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University of Kentucky School of Law
Lawson, Robert G.

Part One – Basic Concepts

I. Kinds of Evidence
a. Direct versus circumstantial
i. Direct evidence – evidence which, if believed, automatically resolves the issue.
1. Example: W says, “I saw D strangle V.”

ii. Circumstantial evidence – evidence which, even if believed, does not resolve the issue unless additional reasoning is used.
1. Example: W says, “I saw D running from the place where V’s body was found, and I found a stocking in D’s pocket.”

iii. Probative value – the probative value of direct evidence is not necessarily higher than circumstantial evidence, but direct evidence is more likely admitted by the judge.

b. Testimonial versus real and demonstrative
i. Testimonial – arises when W makes assertions in court. The fact-finder must rely on W’s interpretation of W’s sensory data, W’s memory, etc.

ii. Real and demonstrative
1. Real – a thing involved in the underlying event (weapon, document, etc.).
2. Demonstrative – tangible item that illustrates some material proposition (map, chart, summary).

II. Conditions for Admitting Evidence
a. Relevant – only relevant evidence may be admitted. [FRE 402] i. Definition – evidence is “relevant” if it has any tendency to make the existence of a material fact…more probable or less probable than it would be without the evidence. [FRE 401] 1. “Brick is not wall” – the piece of evidence need not make a material fact more probable than not, it must merely increase the probability that the material fact is so. Piece of evidence merely has to be one brick in the wall establishing a particular fact.
2. Exclusion – even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of:
a. Unfair prejudice;
b. Confusion of the issues;
c. Misleading the jury;
d. Considerations of undue delay, waste of time, or needless presentation of cumulative evidence. [FRE 403]

b. Offering testimonial evidence
i. Lay (non-expert) witness
1. W must take an oath. [FRE 603] 2. W must testify from personal knowledge. [FRE 602] 3. W must preferably state facts than opinions
a. Opinions okay if:
i. Rationally based on his own perceptions;
ii. Helpful to the fact-finder; and
iii. Not based on scientific, technical, or other specialized knowledge. [FRE 701] 4. W must be competent
a. Nearly everyone is competent except for judges and jurors. [FRE 605, 606] b. Federal court sitting in diversity must honor state competency laws.

ii. Experts
1. Expert may give opinion if:
a. The opinion relates to “scientific, technical or other specialized knowledge”;
b. The opinion will assist the Trier to “understand the evidence or determine a fact in issue”; and
c. The testimony is based on sufficient facts or data and is the product of “reliable principles and methods,” and W has applied those principles and methods reliably to the facts of the case. [FRE 702] 2. No personal knowledge required
a. Expert’s opinion need not be based on their personal knowledge – may be based on information supplied by others.
b. Under FRE 703, if an expert is not testifying from personal knowledge, he can base his opinion on facts supplied to the expert out of court or through the use of the hypothetical question.
c. Und

a civil suit from an auto accident, P cannot show that D has the general character trait of carelessness, or even that D is a generally careless person, to suggest that D probably acted carelessly in the particular accident under litigation.

b. Character in issue
i. Essential element – a person’s general character, or his particular character trait, is admissible if it is an essential element of the case.

1. Example: P says that D has libeled him by calling him a liar. D may introduce evidence of P’s character for untruthfulness, since that character trait is an essential element of D’s defense that his statement was true.

ii. Illustrations
1. Negligent entrustment (D gave dangerous instrumentality (like a car) to one he should have known was of careless or otherwise bad character.)
2. Defamation
3. Entrapment (prosecution rebuts charge of entrapment by showing that D was predisposed to committing the crime.)

iii. Types of Evidence Admissible
1. When character is directly at issue, all three types of character evidence are admissible:
a. Specific acts,
b. W’s opinion, or
c. The subject’s reputation

c. Circumstantial evidence in civil cases is generally inadmissible.

d. Other crimes (and “bad acts”) evidence in criminal cases
i. General rule [FRE 404(a)]