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University of Iowa School of Law
Stensvaag, John-Mark


Spring 2016 Stensvaag

Sources of Evidence Law

Common Law (only in judicial opinions): Attorneys had to read cases to argue
Codification in 1975; Federal Rules of Evidence (only to the Fed Courts): FRE

Many jurisdictions follow the federal rules; but not perfectly followed

Congress initially did not like the initial proposal; more changes

Legislative history is thus more rich; not just advisory committee notes; debates, and more
Massive revision in 2011; restyled but substantive was not intended to be changed

A lot of language interpreting the previous versions

Law of Evidence; Aspects (Procedural): “what is it?” It is… a procedure

Rules of Admissibility/Exclusion and Judicial Notice

What things can be considered by the decision maker? (admissibility)

What is admissible is defined by what is not admissible (exclusionary rules)

Exclusionary feature (what items of proof may the decision maker consider?)

Hearsay; the Character Rule; Best Evidence Rule

Making something into the record
Doctrine of Judicial Notice; judges can consider great variety of facts that are not strictly in the record

Example: on a rainy day, tire breaking is likely slippery; interstitial stuff
Background stuff can be considered

Rules of Technique (now that the facts are in, the manners)

How the parties have to present the proof to the decision maker
Techniques that counsels must employ at trial

Working tools of the 21C gladiators; trial advocacy

How does one lay a foundation for his argument?

Rules of Evaluation

Facts are identified, and the techniques have been employed, now what?

Judges and juries should use common sense? No, not that simple

The law of evidence frequently limits, in highly artificial ways, the use to which proof may be put in the evaluative process that leads to a decision: How can you use the evidence? (jury instructions)
What does the decision maker do with the evidence?

Law of admissibility predicated on the assumption that jury would effectively use an evidence

Notes on Evidence Procedures

Criminal and Civil differences: Note constitutional overtones in Criminal

Roadmap of the course

Exclusionary Rules

Being protective of the jury; from the unfiltered evidence
Distrust on juries permeates in the law

Limited time for the resolution; cannot take forever to resolve cases

Rule Excluding Irrelevant Evidence (unit 2)

(unit 3&4)

Facts that cannot be of assistance and with probative values
Some items of evidence are absolutely useless
Whether it is relevant or not is the question for the trial judge

Isn’t the trial judge having so much power when one fact to be admitted is decided? Trampling on the jury’s function?

Problem of “conditional relevance”

Does not deal with searching for the truth in any way, we are just throwing away things
: a subpart of the problem of relevance

Whether it is genuine article, you have to authenticate the item
Weighing of conflicting testimonies

Rules Excluding Even Relevant Evidence

Competency and Personal Knowledge (unit 5)

Ex: 2 year old; someone who is under influence; spouse cannot testify (common law)
Witnesses have to have personal knowledge

Requirement of personal knowledge

Keeping out unreliable testimony

Best Evidence Rule (unit 6)

If there is any argument about the document, the best evidence is the document itself

Prejudice, Confusion, and Waste of Time (FRE 403); (unit 7 & 25)

Giving child’s arm in a train-cut case as an evidence: shock value
Judge is given great discretion

(7 weeks)

Superficial & misleading definitions; Riddles; so it will take time

Rule Excluding Opinion (Expert Witnesses)

Impeachment & Cross Examination
Judicial Notice

The Exclusionary Rules

Rule Excluding Irrelevant Evidence (unit 2)

FRE 401; FRE 402

Irrelevant evidence is not admissible

pp.5; Solomon’s Wisdom in Judgement

M-1 ———————— M-2: had child in the morning
Issue: who is the biological mother?

M-1 atty asks: “isn’t it true…?”

What makes M-2 less likely the real mother? What are we assuming?

pp.9-11; Morgan

Who is the biological mother?

M-2 Prefers Death (The Evidence)

Love prefers life (The first premise) + ———> C): M-2 Not Mother (The Proposition)

N) Mothers do love (The second premise)


It is kind of weak to prove something; perhaps not so sufficient to take away a child from a parent

Not a problem of relevancy but a problem of sufficiency
Two distinction: Relevancy to get into the record and/or Sufficiency to go to the jury

In case the two parties are genuinely biological parents, then what?

Shift the issues: who would be the better custodian for the child?
Who would act in the best interest of the child?

Who would be the best custodian for child?

M-2 prefers death

+ ———> B) M-2 would not act in BIC

M) Death is not Best Interest of the Child + ———> C): M-2 not good custodian

N) Good custodian would act in BIC

Relevancy Analysis Steps

Evidence offered
Proposition seeking to prove
Is the proposition material/fact of consequence? FRE 401(b)
All inferences that will lead from A to the proposition

Relevancy is not an inherent characteristic of item of evidence

Ex: Is this pen relevant? Dumb question
FRE 401: Evidence is relevant, IF it has any tendency to make a fact more or less probable than it would be without the evidence and the fact is of consequence in determining the action

Relevancy is a relation between an item of evidence and a proposition that one is seeking to prove (relational thing)

What do you want to prove with the evidence? What is the proposition?
One evidence is not inherent in asserting something. You have to link the things

Here, the issue was not whether the M-1 or M-2 would be the better custodian

Because this was a case of kidnapping
Relevancy is two things going at the same time

Here, the law does not care about the better custodian issue, because
Theory must match with the law

FRE 401: Evidence might be excluded as irrelevant for 2 quite distinct reasons

1) because it is not probative of the proposition to which it is directed; or

Genuine non-probativeness (“the evidence is not probative!”)
Ex: spoons are $1.29, so M-2 not mother; it just does not prove

2) because the proposition to which it is directed is not provable in the case (material)

Ex: Example #2; provable but the issue is not related
“the evidence is not material”
Better yet, “the evidence is directed to an immaterial proposition”

Judge: to the sponsoring lawyer, “what are you trying to prove?” name the proposition

Proposition articulation

You cannot simply assert what you are trying to prove because that violates FRE
Fundamental because you cannot simply assert it (violation of hearsay and best evidence rule)

FRE 401 Test for relevant evidence

Evidence is relevant if:

It has any tendency to make a fact more or less probable than it would be without the evidence; and
The fact is of consequence in determining the action

“more or less probable”: probative
“fact is of consequence”

Material fact; does it direct to an immaterial fact?

a) = Not probative
b) = Directed to Immaterial Fact
*to determine if mate

itness competent?”; “is W actually expert?”; “is evidence hearsay?”

Judges decide once and for all. Thus, hears from the both parties, the whole story.
Voire Dire is possible

Interrupting the direct examination by the opponent to lay the foundation for an objection
However, it does not substitute your right for cross examination; it is only a temporary objection (it could be a strategic choice)

Hypo: Charlie v. The Heirs; Authenticating

Charlie (possible Will?) – Milton ($$) – (Intestate?) Heirs

In a court; Charlie is on the stand hands the document saying it is the will of Milton
Heir’s side: Objection. It is not relevant because it is not authenticated (FRE 402: irrelevant EV is not admissible)
Charlie’s side: Counter possible Evidence(s) : handwriting expert comparing signatures, direct eyewitness testifying, non-expert opinion, comparison with Authentication (FRE 901: ways of authenticating)

1) Direct Eyewitness: FRE 901(b)(1), testimony that an item is what it is claimed to be (w/ knowledge)

Authenticating witness: “I was in the room, and saw Milton sign it”
Is there a right to Voire Dire? FRE 104(b): relevance that depends on a fact: no Voire Dire allowed
FRE 104(a): subject to FRE 104(b); not true that all questions of preliminary questions are subject to FRE 104(a)
FER 901(a): to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is (“is there enough evidence to support sufficiency and reasonable jury would find it authentic?”)
You can move to strike at the end, the opposing party’s possible move

2) Non-expert opinion: FRE 901(b)(2): non-expert opinion as to the genuineness of handwriting based upon familiarity not acquired for purpose of the litigation

One of the rare circumstances where law permits testimony based on opinion of a lay person
Problem with refreshing the W’s memory would seemingly go against the language “testimony must be based on familiarity not acquired for purposes of the litigation”
Real experts will be expensive

3) Comparison with Authentic Specimen: FRE 901(b)(3): by an Expert Witness or the Trier of Fact

Disputed document “will” vs. Specimen

Expert W is in the middle comparing the two documents
What do we need to establish before this is used? Authentication

Spalding (1901) – before any such writing shall be admissible for such purpose, its genuineness must be found as a preliminary fact by the presiding judge, upon clear and undoubted evidence.

Judge does not want the jury to decide from the beginning
FRE 901(a) and FRE 901(b)(3): evidence sufficient to support a finding that the specimen is genuine. Judge is deciding the evidence sufficient to support a finding (someday someone will find whether the specimen is authentic)
What will you instruct the jury after the finding of sufficiency to support by the judge: “if you find the specimen to be authentic, then you may use it as the evidence of the case”, “then you can consider the experts’ opinions”