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University of Iowa School of Law
Stensvaag, John-Mark

Evidence stensvaAg spring 2015


Note: Preliminary questions always arise from the fight in the courtroom


A. 104(b) Questions (Preliminary questions relating to relevance.)

1. Judge makes quick determination

In ruling on an item of admissibility regarding authentication (was pistol really the one found at the scene) – the judge makes only a quick and dirty ruling on this because the jury will be asked to reassess this situation. So this is only a preliminary determination that authentication has passed a minimum threshold. The judge will only listen to one side of the story to decide whether it is authentic – the party offering it. (This is the classic procedure described in pg. 5 3.14 – but the judge does have power under Federal Rule 611(a) to change the mode and order of proof if necessary, so sometimes he will listen to the rest of the story.)Only later in the case through CX will they hear the other side’s argument and ask the jury disregard it later.

2. No Voir dire allowed

B. 104(a) Questions

· The judge will decide

· Voir dire is allowed (judge may hear the full story.)

· Jury not asked to reassess

· Judge Can Consider Inadmissible Evidence

Bourjaily: Said that 104(a) means what it says – the judge can consider inadmissible evidence (the hearsay statement itself, for example) Bootstrap metaphor – evidence is allowed to lift itself by its own bootstraps into evidence. So we can consider hearsay to determine whether hearsay admissible.

· Standard is preponderance of the evidence

C. Sorting Device for 104(a) & 104(b) questions – handout

Plug in evidence, plug in the proposition, and plug in the preliminary question.

Then ask yourself, which category it falls into.

If preliminary question must be answered “YES” to be RELEVANT– then 104(b) applies.

If the evidence is RELEVANT no matter what answer we give, then 104(a) applies. (Relevance of evidence does NOT depend on answer to the question.)

Note: We do not sort based on ADMISSIBILITY of evidence hinging on the answer to the question, but rather whether the RELEVANCE of the evidence depends on answer to question.


Test for Relevant Evidence

Evidence is relevant if:

(a) It has any tendency to make a fact more or less probable than it would be without the evidence; and (deals with probativeness)

(b) The fact is of consequence in determining the action (deals with materiality)

Relevancy is not an inherent characteristic of an item of evidence. Rather, it is a relation between an item of evidence and a proposition seeking to prove. We can never answer question “is it relevant” before answering “What is the evidence being offered to prove?”

A. Relevant Evidence Admissible; Irrelevant Evidence Not Admissible – FRE 402

Irrelevant evidence is not admissible. There are NOT different degrees of relevance. An item of proof is either relevant, or it is not. Of course, some items of circumstantial evidence are more PERSUASIVE, but rule 401-402 speak only of a threshold relevance determination.

1. Materiality and Probativeness

Relevance is broken down into two concepts: materiality and probativeness.

Evidence might be excluded as irrelevant for two reasons:

· It is not probative on the proposition to which it is directed (evidence does not support the proposition); OR (not probative)

· The proposition to which it is directed is not provable/germane in the case. (not material.) The way to say this is: “The evidence is directed to an immaterial proposition.”

a. Probative

The evidence offered must have probative value, i.e. it must logically tend to prove the proposition for which it is offered. The determination of probativeness then is the legal conclusion that there exists a sufficient relationship between the evidence offered and the fact sought to be proved.

b. Materiality

The test for materiality relates to whether the evidence is offered upon a matter properly in issue. We look to the substantive law and pleadings to see what is within the range of allowable controversy. As the substantive law changes, evidence that is relevant under one substantive law is irrelevant under a new substantive law.

Union Paint & Varnish Co. v. Dean pg. 75:

Put in evidence (A), proposition(conclusion), then third step ask: is the proposition the lawyer just named a fact of consequence in the case (Rule 401 don’t forget this)?

In this case, it is a fact of consequence because we want to prove paint in drum 2 is defective.

A) Paint in drum #1 is bad

+ M) Paint from the same companies with similar properties might be bad.

Proposition: Paint in drum #2 is bad

Is this a fact of consequence in the case? Yes (go through for more detail.) But it changes if we change the substantive law we are looking to prove.

2. Low threshold of admissibility

Trial judges have great discretion in ruling on the threshold question of relevance. You don’t keep an item of evidence out because it is not a whole wall. A brick is not a wall. It helps build the wall.


It is helpful to recognize that authentication is just a sub-part of a question of relevance. When someone tries to get evidence into the trial record, often the proponent has to establish certain evidentiary foundation to demonstrate the evidence is admissible.

A. Authentication in General

1. The Authenticity Objection

“Objection, there has been no showing that this document is authentic.” (It is irrelevant because they have yet to lay the proper foundation to demonstrate it is what they say it is. Until the document is authenticated, it has no relevance to the case. (Rule 402)

2. Authentication foundation needs to be laid

Authentication foundation needs to be laid; otherwise, the evidence is not relevant.

3. Preliminary Question Relating to Relevance – FRE 104(b)

In ruling on an item of admissibility regarding authentication (was pistol really the one found at the scene) – the judge makes only a quick and dirty ruling on this because the jury will be asked to reassess this situation. So this is only a preliminary determination that authentication has passed a minimum threshold. The judge will only listen to one side of the story to decide whether it is authentic – the party offering it. (Procedure described on pg. 5 3.14 – but the judge does have power under Federal Rule 611(a) to change the mode and order of proof if necessary, so sometimes he will listen to the rest of the story.) Then later on counsel would ask the jury to strike the exhibit and disregard it.

4. Examples of Methods of Authentication – FRE 901(b)

This is not an exhaustive list.

a. Direct Evidence (witness testimony) 901(b)(1)

Put an authenticating witness on the stand – she was in the room, saw him read and sign, on the basis of this testimony, I as attorney for Charlie offers into evidence.

If they want to put a counter witness – saw the authenticating witness forge the document.

This preliminary question falls under 104(b) not 104(a) SO CANNOT VOIR DIRE.

b. Nonexpert Opinion on Handwriting 901(b)(2)

So the witness looks at the disputed document, comparing the signature with the signature they are comparing around in their head. We allow a lay person to express an opinion on something key in the case.

Note: The opinion must be “Based on a familiarity with it that was not acquired for the current litigation” You can’t show him new stuff to refresh the recollection.

c. Comparison with Authentic Specimen 901(b)(3)

It allows it to happen in 2 different ways:

Comparison by EXPERT WITNESS or TRIER OF FACT (two different ways.)

· Jury Alone

· Expert Assistance

So to do this, we have to find an authentic specimen.

(1) Outdated common law

University of Illinois v. Spalding (1901) pg. 8: The specimen has to be found as genuine as a preliminary fact by judge, upon clear and undoubted evidence.

(2) FRE Standard

So then to decide whether the new specimen is authentic the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

(a) Jury Decides if Specimen is Authentic??

So jury decides if the specimen is authentic, and then to decide whether the disputed item of evidence is authentic. So we instruct the jury with jury instructions.

Example: Conditional Relevance Jury Instructions

“IF you find Uncle Milton wrote the specimen, THEN you may compare the specimen with the disputed document for the purposes of authenticating the handwriting. In that case, you may consider the testimony of the handwriting expert.” “ELSE IF you find that Uncle Milton did NOT write the specimen, THEN the specimen is not evidence in the case and you must disregard it. In that case, you must ignore the testimony of the handwriting e

e is permitted, before she rules – not submitted to the jury until gatekeeper decides. This preliminary question might be a 104(b) question by the way it looks, but don’t rely on the language – you just need to know the courts say the admissibility of scientific evidence is a 104(a) question – goes along with whether expert can testify. But other more simple matters re: scientific can be 104(b.)

(c) Daubert talks about the admissibility, not sufficiency, of scientific evidence.

(d) Actors who will benefit from Daubert may differ in civil and criminal cases

Civil: People who benefit are tort claimants – more junk science.

Criminal: Prosecutors will benefit – hair studies/rug sample and blood splatter evidence

(3) Difference between Daubert and Frye

The basic difference is that the Frye instructs the judges to defer to scientists, making the question of admissibility turn on the issue of whether the scientific theory or technique has “general acceptance.” On other hand, Daubert encourages judges to learn enough about the scientific method to decide themselves whether testimony based on “good” evidence.

Rules Excluding Even Relevant Evidence

· Competency & Personal Knowledge

o Keep certain witnesses off the stand.

· Best Evidence Rule

· Prejudice, Confusion, Waste of Time [Rule 403]

· Hearsay Rule

· Rule Excluding Opinion

o (But experts do it all the time.)

IV. Competency and Personal Knowledge

Witnesses must be competent to testify (low threshold) and have personal knowledge.

A. Competency

1. Common Law – Testimonial Capacities

In common law courts, they look at the “testimonial capacity.” A person was competent only if they had these 4 abilities.

· Perception

· Memory

· Narration

· Sincerity (to be truthful.)

2. FRE Competency to Testify in General – Rule 601

Every person is competent to be a witness unless these rules provide otherwise. This general ground-clearing eliminates all grounds of incompetency not specifically recognized in the succeeding rules of this article. So FRE may everyone competent to testify and got rid of the common law requirements of competency.

(a) Federal Rules have only 3 reasons a witness would be incompetent to testify:

· Witness refuses to declare they will testify truthfully (603) – every witness must give an oath or affirmation. (If not, they are incompetent.)

· 605 – Judge cannot be a witness

· 606 – The juror – a juror may not testify before other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

(b) What attorney does with witness they think is incompetent

· Relevance – if a witness has no credibility, you have to discount them – but that is hard because you can’t voir dire on grounds of relevance.

· 403 – Prejudicial – this guy is crazy babbling and strung out on drugs – he is technically competent, but ask to do a 403 to keep the evidence out. Judge could listen to a voir dire on a 403 ruling.

· Can’t keep off the stand, so argue in closing argument to the jury they have no credibility.

3. In civil cases state law governs witness’s competency – Rule 601

In a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Example: Diversity case involving a dog bite. State law governs dog bites – standard tort-type cases. 4 year old bitten, wants to testify. So, with respect to competency, state law governs the witness’s competency.