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University of Kentucky School of Law
Lollar, Cortney E.





I. Introduction and Trial Procedure: FRE 101-02

a. The philosophy and history of American Evidence Law

i. Reason for Evidence rules: we have an adversarial system, which tests the credibility of the evidence of what is presented by the parites.

1. We want to ensure that evidence is reliable (no hearsay allowed)

2. We want to reduce confusion for lay jurors

3. We want to promote judicial efficiency

4. We want to ensure fairness to witnesses

5. We want to ensure competent witnesses

6. There are other external social reasons (ex: husband/wife; atty/client privilege)

b. Scope:

i. FRE apply in U.S. courts in both civil and criminal cases and only in trial proceedings. (FRE 101).

ii. They are statutory because Congress passed them. Most state jurisdictions (44) have adopted FRE in part or in full

c. Underlying goals of the FRE (FRE 102):

i. Fairness

ii. Truth

iii. Justice

d. Conceptual Framework and Overview: Two key questions in American evidence law

i. Is the individual item of evidence admissible?

1. What kind of evidence is being offered? (Testimonial or non-testimonial)

a. If testimonial:

i. Is witness competent to testfy? (FRE 601)

ii. Does (lay) witness have personal knowledge? (FRE 602)

1. Essentially, this is authentication of testimoney

iii. Is evidence relevant? (FRE 401/402)

1. Even if relevant, the judge still has discretion to exclude the evidence because it is unfairly prejudicial, misleading, or confusing to the jury under FRE 403

iv. There may be other FREs that then may make evidence inadmissible (i.e. hearsay, privilege, rule against propensity evidence, unfairly prejudicial)—but always start here.

b. If Non-Testimonial:

i. (Non-Testimonial: “real” evidence (i.e., the bloody glove), documentary evidence (receipt), demonstrative evidence (powerpoint, etc.))

ii. Is it authentic? (FRE 901/902)

iii. Is evidence relevant? (FRE 401/402)

1. Even if relevant, the judge still has discretion to exclude the evidence because it is unfairly prejudicial, misleading, or confusing to the jury under FRE 403

ii. Considered cumulatively, are all the party’s items of evidence sufficient to prove the fact at issue?

1. Evidence must be both legally and factually sufficient meet the presumption set forth in FRE 301/302

II. Ch. 2: Evidence: Types, Sources, and Substitutes

a. Types of evidence:

i. Direct

ii. Circumstantial: one or more logical inferences are required to get from evidence to the fact that is to be proven. (e.g. Lollar’s fingerprints are on the cookie jar)

1. Some argue that all evidence is circumstantial

2. FRE don’t distinguish between direct and circumstantial

b. Types of information to which the evidentiary rules are applied

i. Testimony

ii. Physical (include demonstrative evidence)

iii. Jury view

iv. Jurors often rely on nonverbal communication, so demenaor evidence has significant weight. However, it cannot be adequately reflected in the record and is not regulated under FRE because it is hard to exclude.

c. Sources of evidence law

i. Constitutional considerations

1. The CN provides a floor and limits the information that may be available at trial. The key provisions are 4A’s prohibition against unreasonable searches and seizures, 5A’s privilege against self-incrimination, and 6A’s Confrontation Clause and right to cousel guarantee

2. Constitutional consideraitons trump statutory evidence law

ii. Court rules

1. In some states, the FRE were adopted by the legislature as a statutory code, but in other states, the high court adopted the evidence code as rules of the court

iii. Statutes and Statutory Interpretation

1. Statutes trump common law

iv. The Common Law

d. Substitutes for evidence: other methods of establishing facts

i. Judicial Notice: The judge notes the existence of a fact and instructs the jury that the fact exists.

1. Judicial Notice of Facts

a. FRE 201(a) is limited to judicial notice of “adjudicative facts,” not legislative facts

i. Adjudicative facts are those to which the law is applied in the process of adjudication. They are the facts that normally go to the jury in a jury case

ii. Adjudicative facts usually relate to dates, tide tables, phases of the moon, geographical boundaries, etc.

b. FRE 201(b): Kinds of facts that may be judicially noticed: The court may judicially notice a fact that is not reasonably in dispute because it:

i. Is generally known within the trial court’s territorial jurisdiction; or (matters of common knowledge)

ii. Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. (verifiable certainty)

iii. So, the judge cannot take judicial notice of an adjudicative fact if it is in reasonable dispute

c. A court can take judicial notice of legislative facts, but it is not governed by FRE 201. Judge has unfettered discretion to take notice of legislative fact. (“willy nilly”)

i. A legislative fact are those which help the tribunal to determine the content of law and policy and to exercise its judgment or discretion in determining what course of action to take.

ii. Facts that go beyond a specific instance, e.g., same sex couples creating sound families, are legislative facts because of their broader implications

1. There typically have broader implications (i.e. in other cases)

2. Judicial notice of law

a. Basically the judge taking notice of common law and public statute in force in the state

ii. Other methods of establishing facts

1. Stipulation: an agreement between parties or a commitment by one party not to contest the existence of a particular fact.

a. E.g. “your honor we will stipulate that the traffic light was red when the truck entered the intersection”

2. Judicial Admission: A party can formally request that another party admit a fact.

3. Preclusive Prior Fact Determinations: When a party, on the record, unequivocally alleges a fact under circumstances where the court will treat this allegation as binding on the party

III. Ch. 3: Chronology of a Trial (FRE 614)

a. The Organization of the trial as a whole

i. Jury Selection and Voir Dire

ii. Opening Statements

1. Most common objection is that an attorney is being argumentative

iii. The Plaintiff/Prosecutor’s Case-in-Chief

iv. Defense Motion for Nonsuit or Directed Verdict

v. The Defense’s Case in Chief

vi. The Plaintiff/Prosecutor’s Rebuttal

1. Generally limited in scope to testimony that is rebutting new matters or new theories presented by the defendant’s case in chief

vii. The Defense Surrebuttal or Rejoinder (rare)

viii. Closing Argument or Summation

1. Here, the parties can argue, make inferences, and recap evidence presented

ix. Judge’s Instruction (or “Charge”) to the Jury

IV. Ch. 4: Examination of a witness (FRE 106, 611, 614, 615)

a. The order of the examination of a witness

i. Sequestration or exclusion of witnesses

1. FRE 615: Sequestration

a. At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But, a court may not exclude: a party in the suit who is a natural person; the designated representative of a party who is not a natural person; a person whose presence is essential to present a party’s claim or defense; or a person authorized by statute to be present.

i. Generally crime victims are exempted from sequestration and allowed to sit in on a trial

ii. A party can forfeit its right to be present for trial; the judge consider factor like whether conduct was willful, whether the party or counsel colluded in the violation, and how important the prospective witness’s testimony is

ii. Direct, cross, redirect, and recross examinations

1. Direct examination is done to own witness and asks questions about any evidence logically relevant to any material fact of consequence in the case.

2. Cross-examination is the examination of a witness by a party other than the direct examiner upon a matter that is within the scope of the direct examination of the witness

a. There is a split of authority over the proper scope of cross-examination:

i. FRE 611(b): Majority/Restrictive view: Under this view, the scope of cross exam is limited to the scope of direct

ii. English Rule: Minority (1/3 of states): The scope of direct exam does not limit cross exam. Generally, the cross-exami

object or move to strike; and (b) state the speciic ground, unless it was apparent from the context. (FRE 103(a)(1))

iii. In determining whether the right was substantial under 103(a), courts look to wheher a provision is grounded in the constitution.

b. There is no need to renew an objection or offer of proof once the court rules definitively on the record. (FRE 103(b))

c. Circumstances under which an appellate court may reverse a preserved evidentiary ruling:

i. Harmless Error: Did the error have substantial and injurious effect or influence in determining the jury’s verdict, i.e. the outcome of the case? Is it more probable than not that the error affected the verdict? (Kotteakos)

1. If it didn’t affect the outcome, then deemed harmless error and then usually not basis for reversal on appeal.

ii. Constitutional error: per se reversal IF it renders trial unfair (more than harmless error). In order to not reverse a constitutional error, the error must be harmless beyond a reasonable doubt. (Chapman v. California).

1. Two factors in determining whether error was harmless beyond a reasonable doubt:

a. What evidence the jury considered in reaching its verdict? Objective inquiry based on the presumption that juris follow instructions.

b. Did jury actually rest verdict on evidence that establishes, for example, guilt beyond a reasonable doubt independently of unconstitutional presumption?

d. An appellate court may only reverse an unpreserved error when it falls under FRE 103(e). Plain error. Only for super egregious conduct!

i. Was there error?

ii. Was it plain—clear, obvious?

iii. Does it affect substantial rights? In other words, was the defendant prejudiced by the error?

Preserved, non-Constitutional error: Kottiakos

Preserved, constitutional error: Chapman v. California

Unpreserved error: FRE 103(e)

iii. Objections to evidence at trial

1. What procedural device may be used to assert the ground for excluding the evidence?

a. Most common device is an objection. An objection is a challenge to the question itself; either raises the contention that the question’s form is improper or that the question calls for substantively inadmissible evidence.

b. Motion to strike challenges the witness’s answer rather than the proponent’s question.

2. When should the ground be asserted?

a. The objection or motion must be timely—before the witness begins the answer but cannot be premature

3. How should the objection or motion be phrased?

a. An objection or motion must be specific

i. Objection must specify the part of the question or answer the opponent is challenging

ii. The objection should specify the party on whose behalf the objectino is being asserted

iii. The objection must specify the ground(s) on which it is based, namely, the evidentiary rule being violated

b. The role of the trial judge

i. Questions of law

1. Trial judge always decides pure questions of law

2. Depending on the jurisdiction and type of case, the judge may also resolve mixed questions of law and fact (e.g. FRE 403, where the judge has discretion to exclude evidence where the dangers of prejudice outweigh probative value)

3. Preliminary Facts: All preliminary questions concerning whether a witness is qualified, a privilege exists, or admissibility of evidence are made by a judge. The court is not bound by evidence rules (like hearsay) in making these determinations, except those on privilege. (FRE 104(a))