Evidence Outline

EVIDENCE
Make Extrinsic v. intrinsic chart and 102(a) v. (b)
·         Analysis
o   FRE 402 (401) – all relevant evidence is admissible
o   Exclusions of Evidence:
§ FRE 403 – is its probative value substantially outweighed by the danger of …
§ Character evidence
·         Proving he acted in conformity with
§ Hearsay
·         FRE Basics
o   Purpose Section 102 – …fairness in administration, elimination of unjustifiable expense and delay…truth…justly determined
o   Federal rules do not apply (Section 1101(d)) grand jury, extradition, preliminary hearings, sentencing, probation, arrests or search warrants, bail, preliminary questions of fact under FRE 104
o   Effects of erroneous rulings (section 103) must object at time of evidence unless plan error then must show abuse of discretion
o   Appellate court reviews ONLY if substantial right was affected. Evidence decisions are made by the trial court. They are rarelyoverturned. Only if there was prejudicial or plain error.
o   Types of Errors
§ Harmless – no substantial right was affected
§ Prejudicial – substantial right was affected
§ Plain – i.e. you sat there at counsel table and didn’t object even though it was plainly wrong to admit it
 
CONDITIONS FOR ADMITTING EVIDENCE
·         RELEVANCE
o   FRE 402 – All relevant evidence is admissible; evidence which is not relevant is not admissible
o   Relevant (FRE 401) – means having the tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
o   3 questions about evidence
§ What is the evidence being offered to prove?
·         What fact does proponent claim that it establishes
§ Does it help establish that fact?
·         Does the evidence offered have any tendency to make that fact  more or less likely to be true, then if the evidence is not admitted
§ Is the fact provable in the case?         
§ àIf the answer to ANY of these is NO, then the evidence is irrelevant and thus inadmissible.
o   FRE §403 – Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence
·         Virtually always do §403 balancing with any piece of evidence
·         §403 issues often arise when evidence is admissible for one purpose but inadmissible for another purpose.
o   3 step balance
§ Judge determines probative value of evidence
§ Judge determines presence of any of the listed dangers or considerations
§ Judge must balance probative value against dangers (unfair delay, confusion of issues, misleading injury) or considerations (undue delay, waste of time, needless presentation of cumulative evidence). If danger/considerations substantially outweigh PV, exclusion is discretionary.
·         Pay attention to the word “unfair.” Good evidence is prejudicial. What we care about is UNFAIR prejudice.
o   Old Chief §403 balancing test when alternative piece of evidence that can get you to same place
§ For what proper purpose, if any could evidence be used?
§ For what forbidden purpose could evidence be used?
§ Could proper purpose be accomplished as well or nearly as well by evidentiary alternatives that do not create as much danger that evidence will be used for a forbidden purpose?
§ Considering the alternatives, does prejudice substantially outweigh probative value?
o   Not judges j