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

Evidence Myers Fall 2015
[Introduction To Trials] A.    Rule 101, 1101, 103, 1105
1.      101 Scope; Definitions
2.      1101 Applicability of Rule
3.      103 Ruling on Evidence
4.      104 Preliminary Determinations
5.      105 Limiting Evidence
I.                   Intro to Trials
A.    Rule 101. Scope; Definitions
1.      Applies to US Courts (specific courts set out in 1101).
B.     Rule 1101. Applicability of Rule
1.      Apply to proceedings before: district courts, bankruptcy and magistrate judges; court of appeals; Court of Fed Claims; district courts of Guam, Virigin Islands, N Mariana Islands.
2.      Apply in civil/criminal cases and proceedings, bankruptcy, admiralty, maritime, contempt proceedings.
C.     Rule 103. Ruling on Evidence
1.      Party may claim error in a ruling only if the error affects a substantial right of the party AND if the ruling admits evidence, a party on the record objects to moves to strike and states specific ground unless apparent from.
D.    Rule 104. Preliminary Questions
1.       (a) IN GENERAL. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
2.       (b) RELEVANCE THAT DEPENDS ON A FACT. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
3.       (c) CONDUCTING A HEARING SO THAT THE JURY CANNOT HEAR IT. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires.
4.       (d) CROSS-EXAMINING A DEFENDANT IN A CRIMINAL CASE. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case. (e) EVIDENCE RELEVANT TO WEIGHT AND CREDIBILITY. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
[Formalized Applications of the Relevancy Concept] A.       Rules 401-415
1.         Basic Rules of Relevancy
a)         401 Test for Relevance
b)        402 General Admissibility of Relevant Evidence
c)         403 Excluding for Prejudice
2.         Character Exclusions/Exceptions
a)         404 Character; Crimes or Other Acts
b)        405 How to Prove Character
c)         412 Rape Shield Law
d)        413-15 Sex Crimes Cases
3.         Habit
a)         406 Habit
4.         Other Relevancy Exclusions
a)         407 Subsequent Remedial Measures
b)        408 Civil Settlement / Dispute and Settlement Negotiations
c)         409 Medical and Similar Help
d)        410 Plea Bargains and Nolo Contendere
e)         411 Liability Insurance
II.       Basic Rules of Relevancy – Rules 401-403
A.       Rule 401
1.         Evidence is relevant if:
a)         It has any tendency to make a fact more or less probable than it would be w/o the evidence; and
i.          Anything that can shift a fact finder’s view in the smallest degree
b)        The fact is of consequence in determining the action
i.                    To determine if it is of consequence, must know elements of cause of action
2.         Notes: Advisory Committee:
a)         Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation b/t an item of evidence an a matter properly provable in the case
b)        Conditional Relevancy – probative value depends not only upon satisfying the basic requirement of relevancy but also upon the existence of some matter of fact
(1)      Ex. if ev of a spoken statement is relied upon to prove notice, it’s only relevant if the person being charged heard the statement (this would be a 104(b) fact inquiry for the jury)
B.       Rule 402 – General Admissibility of Relevant Evidence
1.         Relevant evidence is admissible unless any of the following provides otherwise:
a)         U.S. Constitution
b)        A federal statute
c)         These rules (ones imposing limitations listed below)
(1)      500 privilege
(2)      600 witnesses
(3)      700 opinions/expert testimony
(4)      800 hearsay not falling in exceptions
(5)      900 authentication
(6)      1000 best evidence (proving content of writings/recordings)
d)        Other rules prescribed by the Supreme Court
2.         Irrelevant evidence is not admissible
C.       Rule 403 – Excluding Relevant Evidence for P

the first aggressor.
(1)      Remember – ANY evidence that deceased was first aggressor allows P to offer evidence of peaceful person (doesn’t have to be character trait introduced first)
2.         Notes
a)         Subsections distinguish between when D may introduce these types of evidence (A and First in B) and when P may do so (C and Second in B)
b)        Allows proof of both D’s character and the alleged victim’s character
C.       Rule 404(a)(3) – Exceptions for a Witness
1.         Evidence of a witness’s character may be admitted under 607, 608, 609.
D.       Rule 404(b)(1) – Crimes, Wrongs, or other acts
1.         Prohibited Uses: Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
E.        Rule 404(b)(2)
1.         Permitted Uses; Notice in a Criminal Case: This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
a)         provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
b)        do so before trial—or during trial if the court, for good cause, excuses lack of pretrial notice.
2.         Notes
a)         List of permitted uses in (b)(2) is nonexclusive and nonexhaustive—ex: can use res gestae (rest of the story)
b)        If you find purpose to let it in other than propensity of character, judge still has to balance with 403.
c)         Known as “Rule of Inclusion”: All admissible unless for (a)’s unpermitted purpose
d)        Criminal cases: defendant MUST request notice, if he fails to request, WAIVES notice requirement and P can bring in without notice for remainder of trial.