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University of Kentucky School of Law
Lollar, Cortney E.


Spring 2015


I. General Overview

a. Evidence is about:

i. Where do facts come from?

ii. How parties prove facts

iii. What you can prove and how you can prove it.

iv. What is the truth

b. Goals

i. Only allow certain things into trial because of the adversarial system: parties investigate and judge maintains the gatekeeping function

ii. Ensure if evidence is sufficiently reliable (ex. hearsay). We want the fact finder to hear first hand under oath.

iii. Decrease confusion

iv. Preventing undue delay and promote judicial efficiency

v. Being fair to witnesses

vi. External social policies: privileged parties—promote certain relationships (attorney-client, spouses, etc.). This outweighs the search for the truth

vii. Mistrust of juries. Fear that 12 random people won’t be fair (especially in cases re: damages). We need to protect them. Problem: evidence shows jurors portray the same fairness as judges

c. Applicability of FREs

i. Apply in US courts – civil and criminal cases

ii. Only in trial (not pre- or post-trial) – See FRE 101 “apply to proceedings”

II. General Provisions of FREs

a. Rule 101. Scope; Definition

i. (a) Scope. These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101

ii. (b) Definitions. In these rules:

1. (1) “civil case” means a civil action or proceeding;

2. (2) “criminal case” includes a criminal proceeding;

3. (3) “public office” includes a public agency;

4. (4) “record” includes a memorandum, report, or data compilation;

5. (5) a “rule prescribed by the Supreme Court” means a rule adopted by the Supreme Court under statutory authority; and

6. (6) a reference to any kind of written material or any other medium includes electronically stored information.

· Apply in U.S. courts in civil and criminal cases

· Only in trial—not pre- or post-trial

b. Rule 102. Purpose

i. These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

1. So: fairness, truth, and justice are underlying the whole system.

c. Three main questions to ask:

i. 1. What type of evidence is being offered: testimonial or non-testimonial?

1. Non-testimonial = “real evidence” ex. murder weapon (Tangible). Also like documents, receipts, etc. Include demonstrative evidence, such as charts, photos, cell records on whiteboard, etc. 2 threshold questions:

a. 1. Authentication (901/902) (similar to competence) and

b. 2. Relevant? 401/402

2. Testimonial. If testimonial, 3 threshold questions:

a. Witness’s Competence (601)

b. Do (lay) witnesses have personal knowledge? (602)

c. Relevance: 401 and 402

ii. 2. (Questions that are contingent upon the evidence being testimonial or non-testimonial)

iii. 3. Even if admissible, sufficient? (FRE 301/302)

1. Legal sufficiency

2. Factual sufficiency

d. Relevance: FRE 401 & 402

i. FRE 401

1. 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

b. The fact is of consequence in determining the action

ii. FRE 402

1. Relevant evidence is admissible unless any of the following provides otherwise:

a. The U.S. constitution

b. A federal statute

c. These rules, or

d. Other rules prescribed by the Supreme Court

2. Irrelevant evidence is not admissible

iii. Analysis for determining logical relevance:

1. What is the item of evidence?

2. What is the fact at issue (what are you trying to prove)?

3. Does the item of evidence make the act at issue more probable or less probable than it would be without the item of evidence?

v If the answer is yes, then the item of evidence is logically relevant to prove that fact.

o Problem 8-1, p. 149. Logical Relevance to roving Devitt was insane at time of battery:

§ Full moon: not relevant

§ Capricorn: not relevant

§ Psych care 20 years ago: relevant because increases likelihood. However, weak inference because of time lapse and psychiatric care doesn’t necessarily denote insanity. However, it does make the fact slightly more probable

§ Testimony “acting peculiar”: increases probability of insanity. However, weak inference because it’s a subjective opinion and acting a bit peculiar could mean anything.

§ Psychiatrist testimony that Devitt is psychotic: Increases likelihood of insanity. Strongest inference because talking directly about the issue and is coming from an expert.

o Problem 8-2, p. 149. In Devitt, the ∆se wants to offer evidence the ∆ took and passed a polygraph. During the test, Devitt denied attacking Paterson. At trial, the defense calls Dr. Abrahams, the polygraphist. He explains that the polygraph is generally accurate 70-85% of the time. On the other hand, he concedes that as a scientist, a scientific technique’s validity until 90% accuracy. The prosecutor objects that Dr. Abraham’s testimony is irrelevant given Abraham’s admissions about the fallibility of the polygraph. Who prevails?

§ Scientific relevancy is different from logical relevancy. Thus, it should be overruled.

o Problem 8-3. In Hill, Ms. Hill sues Midwest Mutual for bad faith denial of coverage. She offers to take a polygraph administered by any examiner of Midwest Mutual’s choosing. Midwest Mutual objects that evidence is irrelevant. Is evidence that Ms. Hill offered to submit to a polygraph test logically relevant? Does it matter that in the jurisdiction, polygraph evidence is generally inadmissible?

§ The purpose of this would be to show Midwest Mutual’s state of mind. She’s using this to show the fact that they declined was bad faith. It is logically relevant because she’s showing, what’s their fear? It doesn’t matter that polygraph evidence is generally inadmissible here.

o Problem 8-4. Evidence offered by Ms. Hill that Midwest Mutual worker refused to submit to a polygraph. Defense attorney objects that evidence is irrelevant and polygraph testimony is inadmissible per se. Should the defense attorney’s objection be sustained? What if additional testimony that worker considers a polygraph “highly reliable”?

§ Fact at issue = good/bad faith à consciousness of guilt. Thus, declining to take the test makes it more likely the worker acted in bad faith, especially since he thinks they’re reliable.

o Problem 8-5. Evidence that Polecat redesigned the gas tank after the accident.

§ Fact at issue = negligent design. Relevance = consciousness of guilt. However, FRE 407 generally prohibits this.

o Problem 8-6. To show the defective nature of the gas tank, Ms. Hill offers evidence of two similar accidents six years prior. Polecat’s attorney objects because of irrelevance and SOL.

§ Fact at issue – negligent design. Other accidents might make it more probable, thus there is logical relevance, notwithstanding the SOL.

FRE does not distinguish between direct and circumstantial evidence

ii. Direct: no logical inferences are required to get from the evidence to the fact being proven (Ex. “I stole the cookies from the cookie jar.)

1. Eye-witness testimony is considered direct testimony, but it is unreliable because of cross-racial identification issues, etc.

iii. Circumstantial evidence; one or more logical inferences are required to get from the evidence to the fact that is to be proven (Ex. fingerprints on jar)

iv. Problem 8-14 (p. 157). In Devitt, the π offers doctor’s testimony that ∆ is blood type A. π has already offered the following: (1) V testified that during the fight, the assailant accidentally cut himself with his own knife, and he thinks the assailant bled during the fight; (2) the investigation PO testified that he found red stains at the scene and took them to the police lab; (3) a serologist testified that the stains in question were blood type A. About 42% of the population has blood type A. Is the evidence direct or circumstantial?

1. It is circumstantial because you have to make inferences offered to prove ∆ is the assailant.

v. Problem: Beyonce found shot to death. In searching her house, they find a love letter to Jay Z from Rihanna. If Rihanna is subsequently tried for murder, is the letter relevant? Is it direct or circumstantial evidence? What is the chain of inferences?

1. The letter is relevant. Fact at issue: Rihanna killed Beyonce. This letter makes it more probable because it goes to motive and/or intent

2. Circumstantial evidence because love letter à evidence Rihanna is in love with Jay-Z à Rihanna wants to get rid of Beyonce, who has Jay-Z à Rihanna killed Beyonce

d. Judicial Notice

i. FRE 201

1. (a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact

2. (b) Kinds of facts that may be judicially noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

a. 1. Is generally known within the trial court’s territorial jurisdiction; or

b. can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned.

3. (c) Taking notice. The court:

a. 1. May take judicial notice on its own; or

b. 2. Must take judicial notice if a party requests it and the court is supplied with the necessary information.

4. (d) Timing. The court may take judicial notice at any stage of the proceeding.

5. (e) Opportunity to be heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.

6. (f) Instructing the jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the fact as conclusive.