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University of Toledo School of Law
Eisler, Beth A.


Beth Eisler

Summer 2011

1. Timeline

P’s Opening Statement P’s Case-in-Chief P Rests D’s Case-in-Chief D Rests P’s Rebuttal Both Rest

2. FRE “Meta” Rules

(a) Rule 101: Scope

These rules govern proceedings in the courts of the United States…to the extent and with the exceptions stated in rule 1101.

(b) Rule 1101: Applicability of Rules

(b) These rules apply generally to civil actions and proceedings…(and to) criminal cases and proceedings.

(d) Rules inapplicable

(1) Preliminary questions of fact (Rule 104)

(2) Grand Jury

(3) Miscellaneous proceedings

(c) Rule 615: Exclusion of Witnesses

At the request of a party the court shall (must) order witnesses excluded so that they cannot hear the testimony of other witnesses.

(d) Rule 611: Mode and Order of Interrogation and Presentation

(a) The court shall exercise reasonable control over mode and order of interrogating witnesses so as to (1) make the interrogation…effective for the ascertainment of…truth (2) avoid needless consumption of time and (3) protect witnesses.

(b) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.

(c) Leading questions should not be used…When a party calls a hostile witness…interrogation may be by leading questions.

(e) Rule 603: Oath or Affirmation

Before testifying, every witness shall be required to declare that witness will testify truthfully, by oath or affirmation.

(f) Rule 103: Rulings on Evidence

(a) Effect of erroneous ruling

(1) Objection…timely objection…stating the specific ground of objection.

(2) Offer of proof.

(b) The court may add any other further statement which shows the character of the evidence.

II. Relevancy

The Basics

1. The Basics

(a) Rule 401: Definition of “Relevant Evidence”

…evidence having any 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.

(b) Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible except as otherwise provided by the Constitution…(and) by these rules.

(c) Analysis

(1) What is the Evidence?

(2) What is the Evidence offered to prove?

(3) Is what the evidence is offered to prove of the determination of the action (Material).

(4) Does the evidence have any tendency to make what is offered to prove more/less probable? (Probative)

2. Analysis: Rule 401

(1) Step 1: What is the Evidence?

(a) i.e. intoxication in a murder case, consent in a rape case, etc.

(2) Step 2: What is the Evidence offered to prove?

(a) i.e. victim in a rape case did consent, an oral agreement was made, etc.

(3) Step 3: Of Consequence to the determination of the action?

(a) “Materiality”

(i) Relationship b/w the proposition (evidence offered) and the issues in the case.

(ii) Is Q2 related to the matter at issue?

(4) Step 4: Any tendency to make more/less probable?

(a) “Probativeness”

(i) Function of proving/demonstrating?

(ii) Not “preponderance of evidence” standard.

(iii) Rather, is the evidence more probative with the evidence than without it?

(b) Admissibility vs. Sufficiency

(i) “A brick is not a wall”

º Each piece of evidence (brick) is not the same size.

º Some “bricks” more probative than others.

(c) “Logic & Experience”

(i) Probativeness determined by judges “logic and experience.”

3. Admissibility: Rule 402

(a) “Admissible except ‘by these rules’”

(i) Evidence may be relevant, yet nevertheless inadmissible by other FRE.

(ii) i.e. hearsay, witness competency, etc.


1. Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

(a) “Balancing” Test (3-Step Process)

(1) Determine Probative Value

(2) Determine Danger of Unfair Prejudice

(3) Weigh #1 against #2

(1) Step 1: Probative Value

(i) Assessed in terms of the evidence if believed.

(2) Step 2: Danger of Unfair Prejudice

(a) “Unfair Prejudice”

(i) Not just “prejudice” (all evidence, if relevant, is prejudice)

(ii) “An undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.”

(iii) If the evidence tends to suggest a result made upon improper grounds (i.e. improper inference)

(b) The Test

(i) Will the jury “shut down” and not listen to other evidence if the current evidence is admitted?

(3) Step 3: Weighing Probative Value Against Danger

(a) Prosecutor’s Argument

(i) “I have the right to prove my case”

(ii) “Richness of Narrative”: Jury has the right to hear the whole story.

(b) Defendant’s Argument

(i) If evidence is presented, jury will automatically think client is a “bad guy” and will “shut down.”

(c) Old Chief v. United States

(i) “Propensity” evidence inadmissible (“other-crimes” evidence)

(ii) S.C: Judges must “take into account the full evidentiary context of the case”

(d) Rule 105: Limited Admissibility

When evidence…is admissible to one party/purpose…but not to another party/purpose…the court shall restrict the evidence.

(i) Admit admissible evidence; exclude inadmissible evidence.

2. Similar Circumstances

(a) Determining “Probativeness”

(i) For “Similarity” Evidence to be admitted, it must be shown that there is a “substantial similarity” between the other happenings and the present litigation.

(b) Example: Slip & Fall Case

(i) Sidewalk hasn’t changed

(ii) Same season

(iii) Lighting the same

(iv) Weather the same

(c) Generally…

(i) Courts will admit “lack of events” evidence under similar circumstances.

(ii) i.e. people do not slip and fall at that particular spot.

Character Evidence

1. “Character”

(a) Definition

(i) One’s disposition in respect to a generalized trait

(ii) i.e. honesty, temperance, peacefulness

2. Rule 404(a): Charac



P’s “Aggressive” Character (Direct Examination by D)






D’s “Aggressive” Character or P’s “Peaceful” Character (Cross Examination by P)?






6. Rule 404(b): Other crimes, wrongs, or acts

Evidence…may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(a) Analysis of “Other-Acts” Evidence

(1) Evidence offered for purpose other than propensity?

(2) Is the purpose relevant?

(3) Relevant purpose in controversy?

(4) Rule 403

(b) Accused Participation in “Other Act” (Rule 104(b))

(i) Test: Could the jury reasonably find that D committed “other act” by a preponderance of the evidence?

Habit Evidence

1. “Habit”

(a) Definition

(i) One’s “regular response to a repeated, specific situation.”

(ii) Not volitional; automatic response to a specific stimulus.

2. Rule 406: Habit; Routine Practice

Evidence of the habit of a person…is relevant to prove that the conduct of the person…on a particular occasion was in conformity with the habit.

(a) Difference b/w “Character” & “Habit”

(i) Habit has greater probative value

(ii) Habit includes “routine practice of an organization” [i.e. custom]

(iii) Habit is admissible; Character is generally not admissible

(b) Proving Habit

(i) No specific rule

(ii) May be proved by opinion or specific instances of conduct.

* EXAM: # 3, pg. 146 will be a M.C. Question (Answer: Admissible under 404(b))

Public Policy Issues

* EXAM: Policy issues tested on M.C. Section (See Hypos from Handout)

1. Rule 407: Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence…This rule does not require the exclusion of evidence of subsequent measures when offered for…proving ownership, control…or impeachment.