Evidence Outline

Evidence- final essays open note- 2 of 3 issue spotters- past exam on BB

person would object on 403 ground because…. (cite case)

Types of Evidence: Physical(knife), Testimony, Demonstrative (illustrative aids- maps, drawings)

Basic considerations

1. Relevant? 401 material issue made more or less probable

2. admissible?

1. Form: 404/5- opinion/reputation/prior acts/prior crimes

801-3- not hearsay or exception to..

1002- is the original or duplicate allowed by 1003/4.

1006- is but a Summary of evid.

2. substance 501/CL- privileged (5th/atty/spousal/Dr/work product or was it waived)

6th – not constit barred testimony

3. foundation/authentication

1. Testimony

(a) Witness is valid

601- competent, 602- pers knwlgd, 603-understand oath

605/6- not the judge/jury

701- lay witness can only give opinion/inference if helpful to jury

702- Expert witness – avg jury not know w/o help.-Reliable Daubert

(b) Witness Credible

611- bias/other motive 613- inconsistent stmts 609-bad dishonest acts

608- reputation/opinion of dishonesty

602- forgot event, or 612- refreshed

2. Phy evid

901/2- authenticated or self-authenticating

701/2- have opinion of witness explain to accuracy and fairness

4. Overly Prejudicial? 403- is evid’s probative value subs outweigh the prejudicial affect.

Pre-trail finding of admissibility: motion in limine(admit), motion to exclude, stipulation(parties agree)

Evidence can be procedural and substantive (per Erie doctrine) federal rules apply-(procedural issue, crim case, of civil diversity/>$75k) or state law applies (substantive issue-changes outcome of case).

—————————DETERMINATION OF ADMISSIBILITY BY CT—————————–

FRE 104-admissibility of evid determined by judge(ct discretion NO need follow precedent), except:

(b)- conditional relevancy- evid relevancy conditional to fulfillment of another point. If condition not met, then too late to object, so must strike.

(e)-questions of weight and credibility – decided by jury or expert.

-inadmissible evidence can be provided to judge in his determination (but not the jury)

Motion to strike (not an objection) – once evidence is in, it’s in unless stricken.

1. A question that includes inadmissible info

2. witness answers before there is time to object (or gives opinion not qualified to give)

3. evidence admitted as conditionally relevant, then condition not met.

Curative instruction- judge tells jury to forget/disregard what they hear.

FRE 105- limited admissibility(when part ok and part not, or admit for only 1 purpose)

In limine instruction- evidence allowed but only for limited purpose , decided before trial

FRE 103(a)- app ct cant find error in admit/excld evid UNLESS plain error affecting subs right, or:

1. party objected (not needed if done before trial- issue still preserved).

-if conditional relevancy that NO materialized, cant object(too late) must strike

2. Proffer-Substance of evid made known to ct(knew what it is when rejected) AND,

3. Definitive ruling by trial ct admitting/excluding the evidence.

————————————PRESUMED/AUTO ADMISSIBILITY———————————

Judicial Notice-201-no proof of admissibility if obvious(dark at night) or easily verifiable from unimpeachable source (legis facts).

– Discretionary- if NOT requested by Party (ct can act on own accord to admit)

– Mandatory- if requested by a party. If a jury is involved then if:

Civil case-admissible & jury MUST accept as conclusive

Criminal Case- admissible, but jury NOT req’d to accept as conclusive.

Presumption- inferred from basic admissible fact- shift burden to prove inadmissible(“burst” presmptn)

-Jury Q if they believe presumptn or not. Presumptions=substantive issue, per Erie = state law.

2 approaches:

1. FRE 301/Thayer approach- presumption shifts burden of admissibility to other side

2. Morgan approach: presumption assigns burden of persuasion to party against whom presumption operates.

————————————–Relevance- whether evidence matters———————————-

-Nothing is inherently relevant. What makes it relevant are issues at trial. ONLY relevant facts admissible. Battles over relevance help shape new legal claims and defenses.

FRE 401-relevancy= fact that makes (1) any tendency (2) of consequence, (3) more or less probable

1. Material- focus on purpose which evidence offered. Does issue make a difference?

2. Probative- does evidence help prove the point it is submitted for?

FRE 402- all relevant evid admissible except if other rule states it’s not(all non-relevant evid NOT ok)

FRE 403- relevant evidence excluded if probative value is subs outweighed by impact on prejudice, confusion/misleading, waste of time, needless duplication (trial judges discretion to decide- not app ct)

-Prejudice must be: 1- unfair -draw a propensity of guilt/innocence based on perceived character

2- substantially outweigh the probative value of evid(if equal weight, then allow)

-before excluding all together, judge should consider a limiting instruction on the evidence. (105).

———————-CHARACTER EVIDENCE of VICTIM or ACCUSED——————————-

-Character evidence not allowed unless meets criteria. (only allowed for D,victim, or witness)

1. 404(b)- PRIOR BAD ACTS/CRIME- if NOT admitted for propensity. (capacity to do crime)

(a) OK to show: motive/Plan/IDENTITY/Opportunity/ knowledge/state of mind(NOT character)

(b) OEC 40.170- prior domestic violence always admitted in new DV case (special relevance)

i. TEST: ((Huddleston)

A. Special Relevancy- 404(b)- NOT propensity to do, but shows motive/ID/MO

B. General Relevancy- 402- if pass special relevancy, pass this.

C. probative V subs outweighs prejudice/confusion/waste- 403

D. limiting instruction- 105- take out non-relevant/unfair parts.

(c) -must give reas notice before submitting prior acts evidence (403(b) balance contest)

2. 404(a)- CHARACTER EVID: PRIOR CONDUCT admitted to show PROPENSITY

(a) P can only bring character evidence when:

i. D bring character in Q 1st. (opens the door)

ii. D makes a claim against the victim who cant testify (self defense in murder case)

iii. is an Element of the case- (child custody hearings- u