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University of North Carolina School of Law
Myers, Richard E.

Evidence Outline—Myers—Fall 2015
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 the evidence to its proper scope and instruct the jury accordingly
III.              Relevancy—Rules 401, 402, & 403
a.       Rule 402—General Admissibility of Relevant Information
                                                               i.      Relevant evidence is admissible unless any of the following provides otherwise:
1.       The U.S. Constitution;
2.       A federal statute;
3.       These rules; or
4.       Other rules prescribed by the Supreme Court
                                                             ii.      Irrelevant evidence is not admissible
b.      Rule 401—Test for relevant information
*Evidence is relevant if:
                                                               i.      2 Prong Test
1.       Evidence must have “any tendency” to make a fact more or less probable than it would be without the evidence; and
2.       The fact must be “of consequence” in determining the action
                                                             ii.      FOUR Relevancy Facts:
1.       Relevancy under rule 401 is a very low bar
2.       Relevancy depends on the substantive law
3.       Relevancy changes as facts and legal arguments change
4.       Can be of consequence because it goes to the ultimate proposition or it can be a link in the chain
c.       CORE QUESTIONS (for working through the problems)
                                                               i.      What is the theory of the case?
                                                             ii.      Does the piece of evidence fit with the theory of the case?
                                                            iii.      What are the best arguments for admitting or excluding the evidence?
1.       You need to list all the grounds for the objection in order to reserve these issues for the appellate record
                                                           iv.      Does the evidence require a limiting instruction?
1.       Limited purpose or limited/modified evidence
2.       Curative instruction following motion to strike
d.      Rule 403—Exclusion of evidence for being confusing, prejudicial, or wasting time.
                                                               i.      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, or needlessly presenting cumulative evidence.
1.        “substantially outweighs” means that the balance tips strongly in favor of admissibility; in order for evidence to be INADMISSIBLE the prejudice must be extremely harmful.
a.       The rule assumes the jury will weigh the evidence appropriately
2.       “Unfair” means that the evidence “lures the fact finder into declaring guilt or liability on a ground different from proof specific to the offense charged.
                                                             ii.      5 Factors that frequently influence a judge’s decision when applying 403
1.       Extent to which evidence will arouse emotions or irrational prejudices amount the jurors.
2.       Extent to which the jury might overvalue the evidence – that is, take a piece of evidence which is only slightly relevant and give it undue weight.
3.       Strength of the connection between the evidence and the elements of the case
4.       Whether the advocate can prove the same facts through less prejudicial or confusing means.
5.       Whether it would be possible to reduce prejudice or other harm once the evidence is introduced (redacting, limiting instructions, etc.)

                                                            ii.      Adjusting product design after product liability event,
                                                                                                                                    iii.      Adding warning label,
                                                                                                                                   iv.      Taking a product of the market altogether,
                                                                                                                                     v.      Subsequent policy change,
                                                                                                                                   vi.      Firing/disciplining an employee involved in act that led to lawsuit, etc.
2.       “Subsequent” à means that the measure was implemented AFTER the INJURY of the particular party occurred NOT after the sale of the product, after the design of the product, or after the manufacturing of the product
                                                            iii.      NOTE: Application of this rule is limited to measures taken by parties to the lawsuit (does not bar evidence of remedial measures taken by 3rd parties)
1.       Rule 407 generally applies to tort cases (negligence), but it can apply to all controversies — for examples, contract claims, intentional harm, and strict liability.
a.       Congress amended rule in 1997 to make it clear that it also applies to strict liability cases, not just those involving fault (though some states' rules still limit their version of 407 to fault-based cases)
                                                           iv.      EXCEPTIONS à Subsequent remedial measures are not admissible for fault but are admissible for other purposes
1.       Can introduce evidence of remedial measures to prove that party who took them actually exhibited ownership AND/OR control over item/property at the time the injury occurred, BUT ONLY IF THE PARTY DISPUTES OWNERSHIP AND/OR CONTROL
2.       Can also introduce evidence of remedial measures to refute party's claim that it the situation which led to the injury could not have been remedied (i.e. FEASIBILITY IS IN DISPUTE) because of economic, physical or other constraints — proving that the party actually DID remedy it after the injury proves feasibility
3.       Can introduce evidence of remedial measures to impeach witnesses, however, for purposes of 407, may only use evidence of remedial measure to impeach when EITHER:
a.       A witness makes a specific representation that conflicts with the subsequent remedial measure;
b.      The witness makes an absolute declaration like “the product was perfectly safe”; OR
c.       The witness making the statement was personally involved in implementing the remedial measure.
                                                             v.      NOTE: If judge admits evidence under 407 exception for “another purpose,” party can still request a limiting instruction (Rule 105), or claim that it should be excluded because it is unfairly prejudicial (Rule 403 – though it is difficult to argue that the prejudice still substantially weighs the probative value after judge has agreed to issue limiting instructions to the jury)
b.      FRE 408—Settlements and Offers to Compromise (SEE CHART PG. 115)
                                                               i.      Rule Language
1.       a) Prohibited Uses. Evidence of the following is not admissible — on behalf of any party — either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:
a.       (1) furnishing, promising, or offering — or accepting, promising to accept, or offering to accept — a valuable consideration in compromising or attempting to compromise the claim; and
b.      (2) conduct or a statement made during compromise negotiations about the claim — except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority.
2.       (b) Exceptions. The court may admit this evidence for another purpose, such as:
a.       proving a witness’s bias or prejudice,
b.      negating a contention of undue delay, OR
c.       proving an effort to obstruct a criminal investigation or prosecution.