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University of North Carolina School of Law
Smith, Robert J.

Evidence Outline—Professor Robert J. Smith Fall 2013
I.                    Introduction and Terminology
a.       Types of Evidence
                                                               i.      Oral testimony
1.       Fact witness
a.       Must have firsthand knowledge
b.      Knowledge can be either direct or indirect
                                                                                                                                       i.      Direct knowledge
                                                                                                                                     ii.      Indirect knowledge
1.       i.e. I didn’t see Matt steal Sawyers laptop, but Matt told me he stole it
2.       Expert witness
a.       No firsthand knowledge requirement
b.      Hold specialized knowledge in a particular field
                                                                                                                                       i.      This does not mean that they have special training
3.       Character witness
a.       Very limited use
b.      No direct knowledge requirement
c.       Testify to the good or bad character of a party or witness
d.      Particularly relevant in sentencing
                                                             ii.      Real evidence
1.       Physical evidence that is part of the controversy; must be authenticated
                                                            iii.      Demonstrative evidence
1.       No role in actual events
2.       Explains or illustrates key concepts or facts
a.       i.e. Charts, graphs, diagrams
                                                           iv.      Documents
1.       Rights determinative
a.       Leases, contracts, wills
2.       Suggestive
a.       Recordings, letters, emails
                                                             v.      Stipulations
1.       Facts both parties agree on
2.       Stipulations can come from judicial notice
a.       These facts are indisputably true
b.      Must come from general knowledge or an unimpeachable source
b.       Circumstantial v. Direct Evidence
                                                               i.      Direct evidence establishes a fact without requiring any further inference
                                                             ii.      Circumstantial evidence requires an inferential bridge to connect evidence to disputed fact
c.       How to Interpret the Federal Rules and When Do They Apply
                                                               i.      Plain meaning, advisory notes, social policy arguments
1.       Functional arguments matter very much in terms of interpreting and applying the FRE.
                                                             ii.      Federal rules apply in all federal courts including bankruptcy and magistrate courts.  They apply in civil and criminal cases.  Not in state courts, but many states are very similar to the federal rules. 
1.       The federal rules do not apply in a variety of miscellaneous proceedings, including: Summay Contempt, Preliminary Determination (FRE104(a)), Grand Jury, Warrant Request, Extradition, Bail, Sentencing, Probation
II.                  Mechanics of Objections—FRE 103
a.       Rulings on Evidence
                                                               i.      Preserving a Claim of Error—A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
1.       If the ruling admits evidence, a party, on the record:
a.       Timely objects or moves to strike; and
                                                                                                                                       i.      Must object to the evidence as soon as the ground is known or reasonably should be known
b.      States the specific ground, unless it was apparent from the context; or
                                                                                                                                       i.      If there are multiple grounds for objection, the attorney must raise each one in order to preserve that issue for appeal.
2.       If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent by context
                                                             ii.      Not needing to renew an objection or offer of proof—Once the court rules definitively on the record—either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
                                                            iii.      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
                                                           iv.      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
                                                             v.      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.
b.      Notes on this Rule
                                                               i.      If the ruling admits evidence, a party on the record must timely object by making a pre-trial motion in limine or by making a contemporaneous objection during trial.  If the evidence is revealed and you cannot object, you need to make a motion to strike.  You will ask the judge for a limiting or curative instruction.
                                                             ii.      Offer of Proof — State the evidence that you want admitted and explain why the evidence is important for your case (you don’t have to do this, but you REALLY want to).  Ask to approach the bench and make your proffer at the bench.
                                                            iii.      The burden is on the parties to create the record for appeal
                                                           iv.      Appellate courts apply an abuse of discretion standard to most evidentiary appeals.  Appellate courts apply a de novo standard only when the trial judge misinterprets the FRE of applies the wrong legal standard.  Evidentiary decisions at the trial court are rarely overturned
1.       This is also due to the fact that evidence is only objectionable if it affects a “substantial right”.  This is essentially a harmless error standard, meaning that the evidentiary ruling is reversible only if there is a reasonable probability that if the judge had made the correct ruling, the outcome of the case would have been different.
c.       Limiting Instructions—Rule 105
                                                               i.      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 th

s of evidence available to prove “unity of purpose”
4.       Flight—If a criminal defendant flees the jurisdiction shortly after a crime or after learning that the police have focused suspicion on them, is that admissible evidence of guilt?
a.       Travel can be innocent or it can have a guilty purpose.  Courts look at the circumstances surrounding the flight, as well as other evidence available at trial to determine the admissibility of evidence regarding flight.
5.       Stipulations—a party’s stipulation does not eliminate the relevance of evidence offered by another party.  Facts related to an element of a crime or civil claim are “of consequence even if the parties do not actually dispute that element.
a.       With respect to most elements of a crime, the prosecution can choose to present detailed evidence rather than accepting a defendant’s offer to stipulate.
                                                                                                                                      i.      Probative value of a stipulation cannot match the descriptive richness and coherent narrative of conventional courtroom testimony
6.       Undue delay, wasting time, and cumulative evidence—pressures created by crowded court documents means that judges will reject needlessly cumulative evidence
a.       Ain’t  nobody got time for dat!!
7.       Bench Trials—although it still technically applies, parties do not invoke this rule in cases where the judge is the fact finder unless the 403 objection arises over undue delay or needlessly cumulative evidence.
8.       Other Accidents/Lack of other accidents—proof of other accidents is admissible if it is sufficiently probative of issues in dispute
a.       401/403 balancing; the biggest concern on the 403 side is that other accident evidence diverts the attention of the jury from disputed issues in the case at bar.
b.      Key Factors for Deciding Admissibility (burden is on the proponent of the evidence)
                                                                                                                                      i.      Degree of similarity between the two accidents
                                                                                                                                     ii.      Temporal proximity/remoteness
c.       This evidence is generally admissible in negligence or products liability cases under one or both of two theories
                                                                                                                                       i.      Dangerous Situation—evidence is admitted to show that the situation at the time of the accident was dangerous
                                                                                                                                     ii.      Knowledge/Notice—the defendant knew or should have known that an accident was possible/probable