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Evidence
University of Iowa School of Law
Pettys, Todd Edward

EVIDENCE OUTLINE
Objections and Offers of Proof
–         Rule 103 Rulings on Evidence
o       (a) Effect of an Erroneous Ruling (Preserving Client Rights) – Error can’t be predicated on a ruling admitting or excluding evidence unless a substantial right of the party is affected (can’t be harmless error).
§         (1) Objection – If ruling is one admitting evidence (you lost when you wanted evidence out) then a timely objection must be made stating the specific ground of objection unless that specific ground is obvious
·        Timeliness – must make a timely objection
o       Must object within a reasonable time – one can object after hearing an answer if he has no reason to know what’s coming after the question
·        Specificity – must state the specific basis of the objection
§         (2) Offer of Proof – If ruling is one excluding evidence (you lost when you wanted evidence in) the substance of the evidence must be made known to the court by offer of proof, unless the substance of the evidence was apparent from the context within which questions were asked
·        Offer of Proof – indication of what the gist of the testimony would be if it was allowed to come in
o        (d) Plain Error – This rule does not preclude taking notice of plain errors affecting substantial rights although they weren’t brought to the court’s attention

Relevancy – 401 – 403 Balancing Test
–         Relevancy – the first line of defense which is used to withhold evidence from the jury that couldn’t rationally be used by the jury to reach its conclusion
–         Evidence doesn’t have to prove D is guilty to be relevant – entitled to build wall one brick at a time subject to Rule 403
o       Direct Evidence – if believed, conclusively establishes a fact of consequence (element)
o       Circumstantial Evidence – if believed, might or might not establish a fact of consequence (depends on the inferences drawn)
–         Rule 402 – All relevant evidence is generally admissible (except as otherwise provided by these rules, Act of Congress, etc.). Irrelevant evidence is not admissible.
–         Rule 401 – Relevant Evidence is evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
o       Materiality – must be targeted at something that matters (fact of consequence)
o       Probative Value – has some tendency (can be small) to prove or disprove a fact of consequence
o       If the evidence is both material and probative, it is relevant
o       Proponent of Evidence has the burden or proving it’s relevant
–         Rule 403 – Even if relevant under 401 – evidence can still be excluded if its Probative Value is substantially outweighed by the 403 evils (danger of unfair prejudice, confusion of issues, misleading of the jury, undue delay, waste of time, or causes a needless presentation of cumulative evidence). (unfair surprise not a valid ground upon which to exclude relevant evidence)
o       If equally weighted – evidence comes in – 403 evil must substantially outweigh probative value (pro-admission bias)
o       Relevant evidence is inherently prejudicial – must hurt the other side UNFAIRLY before it is to be excluded
§         Could cause the jury to make a decision based on an improper rational
§         Jury could give the evidence too much weight
o       Just because something is conceded doesn’t matter – other side can still bring in evidence to prove it – it’s a legitimate target – it’s not considered a waste of time
§         Exception – convicted felon status – if D stipulates he’s a convicted felon then the government must accept that & can’t bring in evidence to prove it
o       Substantial Similarity Test – if wanting to bring in evidence to compare to the problem at hand, it must be substantially similar to come in – if subst

tnesses)     Did you know John assaulted a man last month?
§         By asking this question, the prosecutor hopes the jury will doubt the truth of the testimony on which the ensuing inferences are based. The prosecutor and the jury cannot use the possible assault to establish a new chain of inferences about D’s character. Eg. John is violent à John shot V
§         Witness always loses – if witness said he didn’t know then it shows he doesn’t know the D well enough, or if the witness says he knew of the act then he is incredible
·        It witness says he doesn’t know – can’t bring in outside evidence to prove the matter
–         Rule 404(b) – Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. But it may be admissible for other purposes such as – proof of Motive, Opportunity, Intent, Preparation, Plan, Knowledge, Identity, or Absence of mistake or accident (but accused may request prosecution provide reasonable notice of any such evidence it intends to use at trial)
o       Prosecution just needs some legitimate noncharacter reason to bring up such acts
§         Applies in criminal and civil cases
§         Can be any act – doesn’t even have to be a crime or a wrong
·        104(b) issue – gets to the jury if the proponent introduces enough evidence to permit a reasonable juror to decide that the D committed the other crime/act. (don’t have to introduce enough evidence to convince the judge that the D was guilty of the other crime or committed the act)