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University of North Carolina School of Law
Mosteller, Robert P.

Evidence Fall 2015 Mosteller


Chapter 1: Characteristics of the Adversary System


Rationality is the key feature of the System

i. Only evidence rationally going to the issue AND introduced by the parties is admissible

The introduction of evidence may also be limited by other considerations:

i. Economy

ii. Predictability—So lawyers know what to expect

iii. Decorum

iv. Fairness—Want public to believe in fairness of system

Few rules of evidence involve considerations other than rationality (privilege)

Each party, through counsel, is responsible for presenting evidence, examining witnesses and asserting the evidence rules

Judge: Generally plays a neutral rule

i. Rules on questions of law (including evidence law)

ii. Refrains from presenting evidence or examining witnesses (usually)

iii. Fed-R.Evid 614(b): Exception—Court has sound discretion to interrogate witnesses to elicit germane facts (very flexible)

1. But judge cannot abandon his proper role and assume that of an advocate (interferes with the rational determination of the facts)

a. Harmed party MUST OBJECT!

2. Judge can also call witnesses, but cannot use power to aide either party.

a. Rule 706(a): Exception—Judges may call Expert Witness in certain circumstance.

iv. Generally courts cannot raise subject-matter not raised by either party, and if so, then must have party’s representation flush out relevant info

Jury: Trier of fact—They decide if the witnesses are telling the truth

i. Judges cannot ask questions showing their belief or disbelief of the witness because they can significantly influence the jury.

ii. Jury questioning is allowed under limited circumstances, but cannot compromise their neutrality

Rules of Evidence

401: Relevant evidence— Evidence is relevant if: (1) it has any tendency to make a fact more or less probable than it would without the evidence; and (2) the fact is of consequence in determining the action (Materiality)

i. Only requires that you advance the ball just slightly

ii. Evidence is only probative if it is provable

iii. Does not require that the evidence make the guilt or innocence more likely to be true or not true

iv. Does not matter if fact to be proved is ultimate, intermediate or evidentiary as long as it is a necessary determination of the action**

1. Ex: May form a further link in the chain of proof for the final proposition…

v. Background evidence is generally not disputed but admissible anyway to aid in understanding (charts, photograph, etc.)

vi. Note: evidence of flight after crime occurred is probative in terms of relevancy, but may be excluded under Rule 403.

vii. Note: evidence is irrelevant if it is too remote in time

402: Things That Limit General Admissibility: All relevant evidence is admissible, except as otherwise provided by the Constitution, a federal statute, by the Rules of Evidence, or rules prescribed by Supreme Court.

i. Irrelevant evidence is not admissible.

Logical Relevancy Analysis—helpful to construct logic syllogism to determine relevancy. Ex:

i. Major premise: Villagers who refuse the cobra ordeal are more likely to be guilty of the crime than without the that evidence

ii. Minor premise: D refused the cobra ordeal

iii. Conclusion: Admissible evidence that D is guilty, but in our society, we would not admit that evidence because Major premise fails

Exclusion of Relevant evidence

403: Excluding Relevant Evidence For Unfair Prejudice—Relevant evidence may be excluded if it’s probative value is “substantially outweighed by the danger” of:

1. Unfair prejudice, (the one below fall within unfair evidence)

a. Tends to defeat rational determination of facts (emotion)

2. Confusing the issues

3. misleading the jury,

4. undue delay (waste court time), or

5. needlessly presenting cumulative evidence.

ii. Opponent of the evidence has the burden of proving that the evidence has a substantial danger of unfair prejudice, etc.

1. Legal Test: 403 will be denied if proponent can show that probative value substantially outweighs the dangers of unfair prejudice**

2. Trial Court generally has the discretion to make decision, and is reviewed using an abuse of discretion approach

iii. Purpose: Prevent relevant evidence from interfering with the rational determination of the facts

Considerations such as predictability and decorum may also come into play

Evidence Excluded in Specific Instances

411: Insurance Policy—Evidence that a person was or was not insured against liability is inadmissible to show negligence or wrongful act

i. Policy: Prejudicial to both D’s liability and to the amount of damages awarded

ii. Exception: Admissible for other Purposes

1. To Prove Agency or Ownership or Control

2. To Prove Bias or Interest on the part of a Witness

iii. Note: However, because juries generally know that insurance is involved, appellate courts are less likely to reverse solely because of this unless disclosure was deliberate invitation for jury to base decision on it

Wealth of a party: Evidence as to the poverty or wealth of a party to an action is not admissible to show negligence or wrongdoing (403).

i. Not admissible in damages actions unless i

FRE 408 Compromises & Offers to Compromise

i. Evidence of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evidence of conduct or statements made in compromise negotiations is likewise not admissible.

ii. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations.

iii. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution.

iv. Statements made in negotiating settlements, and the existence of a settlement, are kept from trier of fact.

1. If evidence is otherwise discoverable it is NOT covered by this rule

2. Purpose is to encourage settlements à proponent of rule’s application must show that there was a disputed claim

3. Distinction between offers to pay or payments & statements made in negotiating a payment à if litigation hasn’t been mentioned, probably it isn’t a covered negotiation

v. Can introduce evidence related to settlement if it is related to something other than validity of settled claim (ex. show bias by beneficiary of settlement) but not to show liability

vi. If disclosure by opponent during settlement talks gives one a lead on other evidence to gather, that evidence is admissible so long as it was obtained outside the settlement negotiation and is relevant à can’t immunize information from being introduced at trial by mentioning it in settlement talks

FRE 409 Payments of Medical Expenses

i. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.

1. Evidence of medical payments is not admissible to show liability for the injury BUT can come in for other purposes

2. No protection for statements made in connection with the payment