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University of Mississippi School of Law
Rychlak, Ronald J.


The Federal Rules of Evidence itself was derived from the rules laid out from old common law. It plays more on an understanding of the history and working of the rule, rather than the black letter layout. Most states have adopted the federal rules as a model for their individual state proceedings. For evidence to be admitted there must be a foundation for its introduction into the trial.

The point of evidence is to move something into consideration for the jury and to help further their discussion.

It is extremely crucial (as always) to preserve the record for appeal. You must object and give the specific reason for objecting to the evidence being allowed in or excluded.

Sources of Evidence Law

Common Law
Federal Rules of Evidence
Combination of Common Law and Rules
The Constitution
State Law (Most states use the Federal Rules of Evidence)
READ the Federal Rules of Evidence Commentary!
Role of Judge, Jury, Attorney

Jury=Values evidence (how much weight to give it)
Attorney=presents/objects to evidence

Components of a case

Make a list of the elements of the charge that I must prove or disprove
Jury Selection (Voir dire)

Whether you want a jury trial or bench trial
Who do you actually want on the jury
During jury selection, the lawyer is not only picking the jury, but he is also educating the jury and persuading them
Two types of challenges:

Challenge for cause:

Legitimate reason to exclude a juror

Peremptory Challenge

Challenge without cause
Limited number (8-10)
Cannot be used for discrimination or used in a pattern (excluding all men or blacks)

Opening Statements

This is what the evidence will show
I will have witness that will tell…
You will see certain evidence…
Opening statements should be arguments

If opposing side starts arguing, raise an objection=Argumentative
Don’t state legal conclusions

Parallel your opening statement with your opening argument

I said you will see a piece of evidence in my opening and you saw that evidence

Think about the image you want to portray
Try to tell a story

Tell your explanation

Either side may waive their opening statement

Defense may defer their opening statement until after the prosecution has closed their case

Don’t use NOTES

Closing Argument

Logical-parallel the opening and the proof (so you have to plan it all in advance)
Simple, tactful, respectful of jury

Argue your theory (theme)
Argue your facts
Use your exhibits and the court’s instructions

Don’t use notes
Focus on your strengths; address your weaknesses
Force your opponent to argue his weaknesses

“Why have they not answered these questions?”

Don’t be too long
Plaintiff gets rebuttal

Plaintiff goes first
Defendant goes second and does not have a second chance at rebuttal

Position yourself well in front of jury

General Kinds of Evidence

Spoken Testimony

The concept of Evidence:

There might be lots of facts out there, but that stuff is not evidence in the legal sense unless it is deemed admissible “in evidence”

Unless it is deemed admissible for consideration by the jury

Initial questions:

What is the evidence being offered to prove?
Who is offering it?
What form is it in?


Best Evidence-FRE 1000 et seq
Authentication-FRE 900 et seq
Relevance-FRE 400s, 600, 701-
Privilege-State law

1 Evidence § 1

Evidence: any knowable fact or group of facts, not a legal or a logical principle, considered with a view to its being offered before a legal tribunal for the purpose of producing a persuasion, positive or negative, on the part of the tribunal, as to the truth of a proposition, not of law or of logic, on which the determination of the tribunal is to be asked



Adjudicative Facts:

Judicial notice is used to speed up the process in regards to certain facts that are so well known that it would be pointless to run through the process to get it admitted and into the record. You can also take judicial notice to establish facts that would typically be found in a book like an almanac.

Varcoe v. Lee – Here a guy was speeding down a street and killed a child. The judge explained that the street was a business district and the defendant said this tainted the jury. Appellate court said that the fact the street was a business district because it was such a common fact. The knowledge of this by the general public was so overwhelming that a jury could not find otherwise.

Rule 201. Judicial Notice of Adjudicative Facts

Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
Kinds of Facts that may be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:

Is generally known within the trial court’s territorial jurisdiction; or
Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Taking Notice. The court:

May take judicial notice on its own; or
Must take judicial notice if a party requests it and the court is supplied with the necessary information

Timing. The court may take judicial notice at any stage of the proceeding.
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 notice. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
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 noticed fact as conclusive.

Notes of Advisory Committee

“The omission of any treatment of legislative facts results from fundamental differences between adjudicative facts and legislative facts. Adjudicative facts are simply the facts of the particular case. Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body.”

What is the effect of taking judicial notice?

Civil case: The jury is told that it must find the judicially noticed fact to be true. Thus, in Varcoe v. Lee—judicial notice was the functional equivalent of directed verdict on an element of the case.

Criminal case: Judicial notice does not have a binding effect, as the defendant has the right to a jury trial on every element of the case against him. So if the judge were to direct a verdict with respect to an element, it would take away the defendant’s constitutional right to a jury trial.

Federal Rule of Evidence 201 pertains to judicial notice. These facts must be not subject to a reasonable dispute, capable of accurate and ready determination, and generally known within the jurisdiction of the trial court. Typically judicial notice should be asked for in a side bar with the judge.

Judicial notice concerns areas of a case that you don’t have to prove and more so are accepted as common knowledge and understanding. These may or not be things that are central to proving a point. However we are able to take certain things as fact without having to argue over the fact that it is fact.
Almanac type facts, common knowledge in an area or jurisdiction, are things of judicial notice. Things like only women can get pregnant, a certain city is within a state, etc.
However a judge may not take judicial notice of a fact known only to himself. A judge saying “I know,” is not the same as the community knowing. FRE 201 requires that the matter be readily verifiable and commonly known. Pina v. Henderson.
Anything that can be objectively verified can be taken as judicial notice. Subjective facts may not be taken as notice.

When a judge takes judicial notice of a fact it can be dispositive of the case and resolve the issue in civil cases. In a civil case the court shall instruct jury that it must accept fact as conclusive. In criminal cases a judge can instruct a jury that they may find a certain fact, but the judge will not resolve the issue once

nce admitted you must lay the foundation for its admittance into the trial and why it is essential. Two things proceed from showing real evidence:

1) is the showing of the thing itself and that it is real, and

2) is the presentation of an independent fact by inference from which the persuasion is to be produced.

Unique markings can help show that something is real evidence and give a harder based inference to the jury. Also helps to differentiate it from demonstrative evidence. This can also be done by placing it into an evidence bag and putting it through the chain of custody and having each possessor place their signatures on the bag.
When you are able to give real evidence to the jury you are able to place a larger emotional impact on the jury to supply their inferences with.
You can put the evidence in a clear box for them to pass it around if for some reason the jury may be grossed out by the evidence (seems like common sense).
Must show that it is in the substantial same features as it was at the time of the incident.

Defendants can argue Rule 403 and claim that evidence is actually prejudicial rather than probative. This will be done with things that may have such shock value (like an actual eyeball) that taints the minds of the jury. The probative value must be outweighed by the prejudicial value of it. It must be so prejudicial that it causes itself to be excluded.

DEMONSTRATIVE EVIDENCE: This is not real evidence, but rather a model or something that gives the jury an idea of the actual evidence. It is to help the jury and court get an idea of the real thing. It helps jurors understand testimony given by witnesses. Demonstrative Evidence is still subject to Rule 403.

Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

Unfair prejudice
Confusing the issues
Misleading the jury
Undue delay
Wasting time
Needlessly presenting cumulative evidence

USS v. Town of Oyster Bay – Kids were walking home from a double date and one of the kids hit a street sign with their hand that makes the sign fall down and hit one child in the head. The Plaintiffs entered the original sign into evidence during their case. However, Defense counsel entered a model sign that was somewhat similar to the original street sign. However, the model was four feet shorter than the original sign and was embedded in a movable concrete block rather than a blacktop like the original sign was in. During the Defense counsel’s direct examination, he struck the sign with his hand the sign did not fall. The plaintiff objected but was overruled. Both pieces of evidence were taken into the jury room with no objection.

The Plaintiff’s appealed on the basis that the trial court abused its discretion by admitting the demonstrative evidence. However, the appellate court stated that Plaintiff’s objection was aimed at the demonstration, not the fact that it was admitted into evidence. The appellate court stated that the plaintiffs had the opportunity to cross-examine the witness and minimize the significance of the demonstration. The court also found that the model sign was not deceptive, sensational, disruptive, or purely conjectural, so the trial court was affirmed. Some objection would have given a better chance for the appellate court to look at the record.