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University of Toledo School of Law
Steinbock, Daniel J.

Evidence Outline
I. Evidence Generally
A. Law of Evidence: process of fact-finding in legal matters
1. Governs
a. Types of info fact finder may consider in determining facts
b. Way in which this info may be communicated
c. Sets forth roles of judge and jury
B. Need rules of evidence b/c
1. Trials are limited in time and place (courtroom)
2. We are an Adversarial system- evidence presented by the parties, parties control what evidence is presented
a. Need to control the parties b/c they’re out to win
b. Not Inquisitorial system as rest of world: judge plays a greater role in determining what evidence comes in
3. Lay Fact-finders: rules designed to control what the jury hears
4. Public nature of trials- evidence may reveal confidential info. (Rules for privileges)
5. Need a Record of the Case- evidence becomes part of the record when it’s admitted
a. Consists of transcript of testimony of the witnesses, exhibits, motions, pleadings, rulings
b. Jury can’t consider anything that is not part of the record
c. Appeals ct. can’t hear new evidence, only considers the record
C. Common Law
1. 1940s: some attempts to codify laws of evidence- failed
2. 1970s: codified Fed Rules of Evidence
3. 1975: Fed Rules adopted as statute
a. The rules don’t answer all questions
a. If issue not covered in the Fed Rules, SCT says to go back to the common law
b. US Constitution contains rules of evidence: 6th am-rt to confront witnesses, compel witnesses to attend in criminal cases
D. General Rules
1. Rule 101-Scope: rules only apply to Fed Cts
2. Rule 1101 – Exceptions to 101- rules of evidence do not apply to grand juries, preliminary hearings, sentencing, bail proceedings, military tribunals
E. Stages of a Jury Trial
1. Selection of a Jury
2. Opening Statements- lawyers say what plan to prove in trial
a. Usually party w/ burden of proof (P or Prosecutor) has to give one, often both parties will
3. Presentation of evidence by party w/ burden- usually P
a. P’s Direct Case/ Case in Chief – must meet elements of crime that’s being charged
a. Testimony
a. Direct examination
b. Opponent- cross examination is a right but can be waived
c. Redirect
d. Re-cross
b. Exhibits
a. Real exhibits- tangible items involved in litigated event (the gun)
b. Demonstrative- not used in litigated event but used to illustrate/explain, help the jury understand (map, diagram created by counsel)
b. P rests
4. D motion for directed Verdict
5. D’s case in chief/direct case- D doesn’t have to present any evidence
6. P’s rebuttal case
7. D’s rejoined case
8. Closing arguments: P, D, P
9. Jury Instructions
a. Substantive Instructions: substantive elements of the law
b. Cautionary instruction- certain evidence should be weighed w/ care b/c might be untrustworthy: accomplice testimony
c. Limiting Instruction- Rule 105- restricting use of certain evidence so should be used for certain purposes/parties and not others
d. Peremptory Instruction- if certain evidence is believed, then certain consequences must follow
10. Verdict
F. Making and Presenting the Record
1. Rule 103(a)- error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and there is an objection or offer of proof
a. Can’t complain about a ruling on appeal UNLESS substantial Rt of the party is affected, affects the outcome AND
a. If not a substantial rt then = Harmless Error b/c not every erroneous ruling by judge will result in appeal b/c every trial has errors but not every error affects outcome of trial
b. Objection- for admitting evidence- (must state specific grounds for the objection)
a. Timely objection- objection before there’s an answer
b. Motion to strike- if evidence came out before you could object
a. Not as good as objection b/c jury’s heard it but will be stricken from the record
c. Offer of Proof- for excluding evidence
a. Make offer of proof- made after judge says certain evidence is excluded but made outside hearing of jury but on the record
a Puts on record nature of excluded evidence- allows ct of appeals to determine if error was harmful
b Lawyer can make offer of proof- describe evidence that’s excluded
c Rule 103(b)- ct may state for record what they excluded
d. Diff to win on appeal if based on evidentiary errors
e. Under no obligations to raise objections- several reasons why don’t want to make objections
f. If no objection, can’t raise it on appeal unless “Plain Error” – really egregious

II. Relevance
A. Rule 402- All relevant evidence is admissible, except as provided in US Const, Act of Congress, other rules (civ pro/crim pro). All evidence that is not relevant is not admissible
B. What is Relevant Evidence- Rule 401- relevant evidence means evidence having any tendency to make the existence of any fact that’s of consequence to the determination of the action more/less probable than it would be w/o the evidence
a. Materiality- any fact that’s of consequence to the determination of the action: mens rea, actus reus
a. Does the evidence go to a material issue in the case- need to know what the substantive law is in order to determine if the evidence goes to one of the elements
b. Logical Relevance- makes the fact more or less probable that it would be w/o the evidence
a. Not looking for a specific level of probability, just needs to affect the probability in some way, however slight (move the needle some)
a. No one piece of evidence has to prove the case by itself
a Deductive Reasoning- conclusion follows with absolute certainty from the premises
b Inductive Reasoning- inference that can reasonably be drawn from facts coupled w/ major premises about human nature
b. Probative Value (strength) of evidence
a. Probative value greater than 0 is admissible evidence
b. Sufficiency to get to Jury (or to lose on motion for directed verdict)- reasonable person taking all evidence in light of non-moving party could find guilt
c. Diff btwn. admissibility of evidence (piece-by-piece) and sufficiency (in light of all evidence)
c. Direct/Circumstantial Evidence
a. Direct evidence- need make only 1 inference from evidence to the proposition for which it’s offered
a Witness saw D stab V – direct evidence, proposition- D stabbed V, inference = W telling truth
b. Circumstantial Evidence: more than 1 inference btwn evidence and proposition for which it’s offered
i W saw D running from scene w/ bloody knife in hand, inferences- W telling truth, D running from scene b/c D stabbed V, relevant b/c people running from scene w/ bloody knives are more likely to have stabbed than those who don’t
C. Conditional Relevance- Rule 104
1. 104(b) Relevancy Conditioned on Fact- when the relevancy of evidence depends upon the fulfillment of a condition of fact, ct shall admit it upon intro of evidence sufficient to support a finding of fulfillment of condition
a. Can admit the Evidence Conditioned on Fact before the supporting evidence so long as you will introduce the supporting evidence later – offer it “subject to” the later introduction of evidence
a. If experts give confliction testimony both are admitted and jury decides which is correct b/c if the evidence is sufficient to support a finding of fulfillment of the condition, it comes in, and jury decides the dispute
2. 104(a)- preliminary ?’s concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the ct
a. Exception- 104(b)- judge performs screening function of finding if sufficient to support a finding of fulfillment of condition, if is sufficient, then judge lets it in
b. Romano: design defect/prod liability case – plastic cap on metal tube was defective b/c one strips the thread on the other, cap more likely to come off, more dirt, less oil in the tube, leads to brake failure
a. Problem – had to show that at the time of the accident, 1971, there was more dirt than oil – didn’t have that evidence, all had was expert’s testimony re: 1973 observations of more dirt, less oil
a. In order for expert’s testimony to be relevant, there must be additional factual evidence – that the bike remained unchanged from accident until 1973
a P made several offers of proof, indicating the bike was unchanged; P would’ve won
D. Counterweights to Relevance- reasons for excluding evidence even if it has some probative value
1. Must 1st be relevant
2. Rule 403: Exclusion of Relevant Evidence: although relevant, evidence may be excluded (discretionary) if its probative value is substantially outweighed by the danger of Unfair Prejudice (an undue tendency to suggest decision on an improper basis), confusion of the issues in a case, misleading the jury, undue delay, waste of time, needless presentation of cumulative evidence
a. Rule 403 is used to exclude what’s already relevant under 401 and 402
b. Yaweh ben Yaweh: evidence = photos of victims of brutal crimes, D claimed unfair prejudice b/c photos so gruesome that jury would weigh the photos too heavily against him, not look at the other evidence, use proper standard of proof beyond reasonable doubt – the emotional reaction makes more likely to convict
a. Rule: party presentation – party can prove their case the way they want to
a. Probative value of photos: corroborated witness testimony, ID victims, manner of death, weapons
a Practicality – oversized is better b/c jury can see it while the witnesses are testifying, instead of 8×10 which has to be “published” to jury (pass it around), either have to stop talking while they pass it or continue, risk that they might miss something – Speeds

e of the settlement btwn D and Q to show D’s liability?
b Rule: NO, 408 excludes evidence of settlement to show liability
i Exception: can use settlement to show Q’s bias as witness (see below)
b. EX #2: p (passenger) sues D (other driver and proponent of the evidence); D has settled with O (driver in P’s car, O paid D for damage) AND p has settled with O (O paid p for injury)
c. Mediation: if purpose is settlement, statements/evidence during mediation barred under 408
c. Statements excluded
b. Policy for excluding:
a. This evidence is ambiguous
a. Ex. 144: D offers $200 to settle; p rejects, later wants to introduce it at trial
a p’s inference is ambiguous…not the only possible one
i p wants jury to infer that D made offer because he was conscious of being liable
ii However, maybe D just wanted to avoid suit/court
b. Public policy favoring settlement, compromise – want parties to be free to negotiate, attempt to settle; they won’t if it can be used against them
2. Exclusion NOT required…
a. Facts mentioned in negotiations/offers: cannot prove it by offering the statements made in negotiations, but still get to prove the existence of the fact – just do it another way
b. Purposes other than proving liability
a. Some Examples…
a. Witness bias/prejudice
a p (proponent of evidence) sues D ; D has settled with Q (Passenger in p’s car);
i Issue: If P calls Q as a witness and says, didn’t D run red light, and Q says, “no”, CAN intro evidence of settlement to show Q’s prejudice!
b. Negating claims of undue delay
c. Proving effort to obstruct crim investigation/prosecution
C. Payment of Medical/Similar Expenses
1. Rule 409: an offer to pay or payment of medical bills cannot be used to show liability for the injury
a. Policy: law takes into account altruistic impulses
2. Important!! This rule does NOT exclude statements made in connection with offers to pay medical bills
a. Solution: ask for a release in exchange for the payment of med expenses so it will come within rule 408 settlement negotiations!!
D. Inadmissible Pleas, Plea Discussions, Related statements
1. Rule 410: evidence in civil/criminal case isn’t admissible against D who made plea or participated in plea discussions
a. Plea of guilty later withdrawn
b. Plea of nolo contendere
c. Any statement made in course of proceedings under Crim Pro Rule 11
d. Any statement made in course of plea discussion w/ prosecuting attorney which don’t result in guilty plea or result in guilty plea later withdrawn
e. Admissible if statement ought be considered contemporaneously w/ or for perjury/false statement if made by D under oath
2. Policies: encourage bargaining, compromise
3. Examples:
a. Drunk driving – criminal offense and civil tort suit
a. If D is criminally convicted
a. NOT subject to Rule 410- admissible
a Can be used against D as collateral estoppel in the civil tort suit
i p will then only have to show injury/causation
b. If D pleads “Guilty” AND plea is not withdrawn
a. NOT subject to Rule 410- admissible
a In civil case, can be used to show admission by party opponent, but it is not conclusive (admissible)
c. If D pleads “No Contest” – not an admission, but can still be sentenced
a. Subject to 410- inadmissible
d. If D withdraws guilty plea (Usually before sentencing) – means criminal case will go to trial
a. Not admissible against D in the civil/criminal suit
e. If D made statements to the prosecutor trying to get a plea bargain
a. Subject to 410- inadmissible
a Statements made to prosecuting authority during the course of plea discussions are excluded by rule 410
f. If D made statements to the police trying to get a plea bargain
a. NOT subject to 410- admissible
b. Example: D arrested, given Miranda warning
W witnessed plea offer made by p to D, D wants to admit this evidence to show