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Evidence
University of Iowa School of Law
Stensvaag, John-Mark

EVIDENCE OUTLINE—

I.      Background
a.      Many of the evidence rules are based on the distrust of the jury. In particular, fear that the jury is irrational, overly emotional and prone to bias (fear they will make their decision based on something not legally based). 
b.      Focus on two parties: court & jury
i.      104: Preliminary Questions
1.      (a) Questions of admissibility generally. 
a.       Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the COURT, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those w/ respect to privileges. 
b.      Court deciding the admissibility of evidence; what comes in
2.      (b) Relevancy conditioned on fact.
a.       When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (JURY)
3.      (c) Hearing of jury.
a.       Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests. 
4.      (d) Testimony by accused.
a.       The accused does not, by testifying upon a preliminary matter, become subject to cross examination as to other issues in the case. 
5.      (e) Weight and credibility. 
a.       This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. (JURY)
c.      Know standard of review: clear abuse of discretion
i.      Whatever TC says, will be given broad latitude unless really went off deep end. Very deferential std: lawyers need to win their evidentiary rulings to win in appellate court, makes evidentiary rulings really hard to predict (implying that there’s room in there for reasonable people to disagree) 
ii.      103(a): Rulings on Evidence
1.      (a) Effect of erroneous ruling.
a.       Can’t claim evidentiary ruling was wrong, unless: substantial right of the party is affected (ie, error couldn’t have been harmless) AND
i.      (1) In case the ruling is one admitting evidence: timely objection (at the time it’s offered as evidence; must object now and state grounds for why objecting) OR
ii.      (2) In case the ruling is one excluding evidence: put into the record, indication of what the evidence would be if only the trial judge would let it in (offer of proof)
2.      (d) Plain error.
a.       Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. 
II.      Judicial Notice
a.      What is it?
i.      Way of establishing facts without having to produce evidence. 
b.      When?
i.      Facts are generally known.
ii.      Varcoe v. Lee
1.      Negligence per se case. Statute: unlawful to operate a motor “in the business district”
2.      No evidence put in. Crt: took judicial notice of that fact—don’t need evidence. We all alive in San Fran; it’s a famous intersection that’s a well known fact within the community. 
c.      201: Judicial Notice of Adjudicative Facts

levant is NOT admissible. 
a.       All evidence in front of the jury MUST be relevant to get in
iii.      Cases:
1.      State v. Kotsimpulos
a.       Pork chop thief. Says he doesn’t know how they got into his car. Figure out the elements of theft. D: employee at meat plant had told him that he was going to do whatever he could to get D fired. Is this evidence relevant?
b.      Crt: NOT relevant, no tendency, too remote. If you want me to believe that manager had it in for you, we need more than just the threat. (Crt is pretty tough here).
2.      State v. Nicholas
a.       Hooded rapist. Police find him in suspicious condition. Take lab tests to help prove he’s the assailant. Most people have a secretor gene (your blood type is manifested in your other bodily fluids). There’s others who do not have the secretor gene so must get blood sample to get blood. Here: whoever’s fluids these are, there is evidence of a type O secretor. This guys is type A non secretor which means he either did the act but as a non secretor left no fluids, or didn’t do it.
b.      Crt: Evidence all together shows that the D is w/in the 60% of the population that could’ve committed the crime. Does this show any tendency of doing the crime? YES, relevant—most crts say this
3.      US v. Johnson
a.       Tax evader CEO. Elements for corporate tax fraud. D: evidence that on his personal tax forms, he didn’t claim all the exemptions he could have so he probably overpaid his taxes. It shows that I’m a good/honest person; I’m not obsessed w/ escaping taxes.
Crt: NOT relevant, too remote