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University of Mississippi School of Law
Percy, E. Farish

Evidence Outline- Spring 2015                                                                                                                                                    Professor Percy    
v  Types of Evidence- Chapter 2
v  Testimony
v  Lay Witnesses
v  Expert Witnesses
v  Character Witnesses
v  Documents, Photos, Videos
v  Real Evidence
v  Murder weapon in a criminal case
v  Sponge removed from patient’s abdomen in a medical malpractice case
v  Demonstrative Evidence
v  Charts, graphs, models, video recreations created for the jury, live demonstrations
}  Evidence
v  Direct evidence: An eyewitness testifies that he saw a Belmont Homes truck leave the highway and cause a rut on the side of the highway.
v  Circumstantial evidence: The rut is located on one side of the highway leading south from the Belmont Homes location. Belmont Homes transported 1,234 mobile homes on Highway 25 South during the 90-day period prior to the accident. Trucks used to deliver mobile homes had in-line wheels (the wheels are in line one behind the other on separate axles), rather than tandem wheels (two wheels on the same axle so that if one wheel goes off the road it can’t slip down and cause a rut).
}  Purpose of the Rules
v  Prevent the jury from hearing and considering misleading information
v  Eliminate unnecessary delay and promote efficiency
v  Protect a social interest, such as a confidential relationship (privileges)
v  Ensure that evidence is sufficiently reliable
Structure of a jury trial
v  Pre-trial Motions
v  Motions in Limine
v  Advantageous because:
v  Lawyers know ahead of time what will be admitted and can plan accordingly.
v  Lawyers can make more detailed arguments in a pretrial written motion or at a pretrial hearing than they can when making a contemporaneous objection at trial.
v  If you object at trial in front of the jury and lose, you have lost a skirmish to opposing counsel in front of the jury and the jury may think the evidence is particularly important and give greater weight to because there was an effort to exclude it.
v  If the witness answers so fast you can’t object, then you move to strike and ask for a curative instruction (an instruction to disregard) but the “cat is already out of the bag.” Motions in imine can avoid this problem.
v  Motions to exclude expert testimony as unreliable – (F.R.E. 702/Daubert)
}  Structure of a Jury Trial
1.       Opening Statements
2.       Plaintiff’s/Prosecutor’s Case-in-Chief
3.       Defendant’s Case-in-Chief/Case-in-Defense
4.       Plaintiff’s/Prosecutor’s Case-in-Rebuttal
5.       Defendant’s Case-in-Rebuttal/Case-in-Rejoinder
6.       Closing Statements/Arguments
7.       Jury Instructions
8.       Jury Deliberation
9.       Verdict
v  F.R.E. 101. Scope, Definitions
(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.
}  F.R.E. 1101. Applicability of the Rules- (FLOW CHART ON PAGE 30)
(a) To Courts and Judges. These rules apply to proceedings before:
                · United States district courts;
                · United States bankruptcy and magistrate judges;
                · United States courts of appeals;
                · the United States Court of Federal Claims; and
                · the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.
(b) To Cases and Proceedings. These rules apply in:
                · civil cases and proceedings, including bankruptcy, admiralty, and            maritime cases;
                · criminal cases and proceedings; and
                · contempt proceedings, except those in which the court may act             summarily.
(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.
}   F.R.E. 1101. Applicability of the Rules
(d) Exceptions. These rules — except for those on privilege — do not apply to the following:
                (1) the court’s determination, under Rule 104(a), on a preliminary            question of fact governing admissibility;
                (2) grand-jury proceedings; and
                (3) miscellaneous proceedings such as:
                                · extradition or rendition;
                                · issuing arrest warrant, criminal summons, or search warrant;
                                · sentencing;
                                -considering whether to release on bail or otherwise.
(e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules.
}  F.R.E. 102.

party must timely object and request a curative instruction or a mistrial.
v  If you have new facts at trial or want to make a different argument than has already been made in pretrial proceedings, then you should raise the issue again.
}  F.R.E. 103. Rulings on Evidence
(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.
(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.
(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
}  F.R.E. 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes
}  If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
Chapter 6- Relevance
•          Relevance:  Two Purposes
•          Save time
•          Focus attention
•          F.R.E. 402. General Admissibility of Relevant Evidence
Relevant evidence is admissible unless any of the following provides otherwise:
•       the United States Constitution;
•       a federal statute;
•       these rules; or
•       other rules prescribed by the Supreme Court.
•          F.R.E. 401. Test for Relevant Evidence
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.