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University of Iowa School of Law
Stensvaag, John-Mark

Stensvaag – John – Mark


Spring 2017

Unit 1- Introduction: Making the Record (Text 1-5)

Evidence governs how the process of proof at trial
FRE (1975) but each state has their own, FRE only in federal courts

2011- restyle of the rules

Body of Rule Governing: Procedure

1. Rules of Admissibility- decision maker (judge jury, parent) what things may they consider to use/admit?

Exclusionary rules define admission into record

Hearsay rule
Judicial notice – extra record facts subject to or loosely related to the doctrine of judicial notice – define facts that a fact finder may properly consider when making a decision.

2. Rule of Technique- lay foundation for admission of document or object


3. Rules of Evaluation – (prior conviction) the law of evidence frequently limits in highly artificial ways, the use to which proof may be put in the evaluation process that leads to a decision.

Admissibility of Proof – exclusionary rules: dominated by the fact that we use juries limitations of what they are allowed to hear

Based on assumptions that society only has certain time to solve the case

FRE 103 – Timely Objection: to preserve arguments that the court erred in admitting evidence at trial 103 which requires a timely objection or motion to strike.

Unit 2 – Rule Excluding Irrelevant Evidence “The Meaning of Relevance” (Text 5-14)

FRE 401 – Test for Relevant Evidence
FRE 402 – General Admissibility of Relevant Evidence
Objecting: The Rules of Exclusion/ The Exclusionary Rule

A. Rule Excluding Irrelevant Evidence – no value doesn’t impede the search for truth in anyway

Question for the trial judge

Authentication- genuine factor/ item

The problem of conditional evidence

B. Rules Excluding Even Relevant Evidence-

1. Competency (and personal knowledge) – based to avoid uncertainty, if no personal knowledge then cannot testify
2. Best Evidence Rule
3. Prejudice, Confusion, Waste of Time [FRE 403] 4. Hearsay Rule
5. Rule Excluding Opinion
Cross examination
Rules of Technique

A. Rule Excluding Irrelevant Evidence: The Meaning of Relevance

FRE 402 – irrelevant evidence is not admissible (difficulty is in defining relevance)
Morgan: Serious of Inferences (assumptions are made)

A) evidence –à B) – 1st inference —à C) proposition


M) – 1st premise N) 2nd premise

Relevancy is not an irrelevant characteristic of an item of evidence it is a relation between an item of evidence and the proposition that one is trying to prove.
Evidence might be excluded as irrelevant for 2 distinct reasons

1. Because it is not probable of the proposition to which it is directed or
2. Because the proposition to which it is directed is not provable in the case.

FRE 401: evidence is relevant if:

A) it has any tendency to make a fact more or les probable than it would be without the evidence and;
B) the fact is of consequence in deterring the action

Will focus on non- probative in terms of relevancy
FRE 401: tendency to make a fact more or less probable than without the evidence
Propositions change depending on the substantive law
Judges have a lot of discretion when it comes to deciding whether something is or isn’t relevant.
There are different degrees of relevance – binary decision
It is not the law that all relevant evidence is admissible

FRE 403: on basis of prejudice, confusion and waste of time

Unit 3: Authentication as a Foundation to Relevance, “Conditional Relevance”(Text 14-23)

FRE 104(a),(b) & (e), 611 (a), 901, 902
Preliminary questions: when a court asks whether stuff has been laid before ruling

1. Relevant? Facts or conditions have to be shown

104 (b) – relevance that depends on a fact
“quick and dirty”
ex) police officer fires pistols and only relevant if the genuine article
**has the sufficient base of authentication been laid?
the decision will be re-assessed by the jury and only listens to one side (prosecution)

2. Avoid other exclusionary rules

104 (a) – VOIR DIRE possible
judge will have the final say the jury will not be used to r-asses, the judge hears the full story before she rules
to lay a foundation or show witness is competent
if the evidence is relevant regardless of whether the prelim question is answered yes or no, applies.

Authentication is part of relevance
Authentication Modes:

FRE 901 (b)

1. Direct eyewitness
2. Comparison with authentic specimen
3. Non-expert opinion
4. Distinctive characteristics and circumstances
5. “ancient document” rule

FRE 901 (a) if enough evidence to support a finding
Standard being used: judgment as a matter- could a reasonable jury find X then it is for the jury to decid

u can later make a motion to strike based on evidence of lack of knowledge, or request a limiting instruction for the jury, such as, “First, you must decide if a witness has knowledge. If so, you may consider the evidence” or “First, consider if the specimen is authentic. If so, you may consider the evidence.”

This is a problem because you can’t un-ring a bell… But, that’s how the cookie crumbles.

Unit 6: Best Evidence Rule

FRE 1001 – 1005
Requirement of the original document/ writing rule

When a writing terms are in issue, the proponent must either

Produce an original or duplicate
Both excuse the non-production of the original and present an admissible type of secondary evidence.

Trying to prove context of the writing
The document speaks for itself

Best evidence rule – how to prove with the writing or document itself
Objection sustained because will is in the record the witness is being asked for an opinion

What is a writing?

1001- consists of letters, words, numbers or their equivalent set down in any form.
1002- requirement of the original
1001 (e) duplicate

Meyers principle

If you are testifying to an independent fact from your own knowledge, it doesn’t matter that the fact is also conveniently recorded in a document even if the document is likely to be more reliable than your recollection.

How do we decide what is the original?

FRE 1001 (d) – original

Or any counterpart intended to have the same effect by the person who executed or issued it (2 wills)

FRE 1001 (e) – Duplicate

Carbon copies – used to be
Or other equivalent process or technology that accurately reproduces the original
Admissible without accounting for absence of original (FRE 1003) unless:

1) genuine question raised about authority of the original or
2) it would be “unfair” to admit the duplicate

circumstances make it unfair