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University of Toledo School of Law
Lammon, Bryan

Evidence Lammon Fall 2013
I.                    Introduction and Some Basics
a.      Introduction to Evidence Law
                                                              i.      Rule 103(a) → Preserving a claim of error; for an efficiency reason
1.      Timely objects or moves to strike; and
2.      States a specific ground, unless it was apparent from the context.
3.      If objection is not obvious, evidence is not preserved unless the ground is stated.
                                                            ii.      Rule 103(e) → Plain error is extremely difficult to show; there must be an obvious, miscarriage of justice.
1.      Rule 103(a) – Harmless error will not prevail under the plain error standard; not all mistakes require retrial.
a.      Error has to affect substantial rights.
b.      Some amount of confidence the outcome would be different.
2.      Rule 103(a)(2) – Defending your evidence; offering of proof still has to be harmful error.
a.      Only objection is why grounds would be obvious.
3.      General objections will not preserve the error.
a.      Use it if unsure at the time.
b.      Rarely going to win an appeal on evidentiary error.
4.      Rule 103(b) – Once court rules definitively on the record, party doesn’t need to renew objection or offer proof to preserve the claim of error for appeal.
                                                          iii.      Motion in Limine – (Threshold) Made at the beginning before case even starts, prevents certain things from getting to the jury.
b.      Relevance, Probative Value, and Prejudice
                                                              i.      Three Questions to Ask:
1.      Is this relevant?
2.      Does any rule exclude this?
3.      Is it prejudicial? (Rule 403) – Almost always wrap up evidence problem with Rule 403.
                                                            ii.      Relevance (Rule 402) – Relevant evidence admissible unless an exception applies.
1.      Relevant standard very low to meet.
2.      Any evidence that will make an occurrence more or less probable, regardless of whether the evidence is strong or weak.
3.      Doesn’t have to be conclusive.
4.      Doesn’t matter what happened; just matters what you can prove.
5.      Rule 401: Evidence is relevant if…
a.      It has a tendency to make a fact or less probable than it’d be without it; and;
b.      Fact is of consequence in determining the action.
6.      Example: Chain of Inference (Knapp v. State)
a.      Old man died of disease à didn’t beat him to death à no one told Knapp the story.
7.      U.S. Dominquez – Whether evidence of defendant owning a gun is relevant; did he kill him?
a.      Court says this is relevant – defendant owning a gun makes it more likely he killed the person.
8.      How to apply relevance standard?
a.      What is the fact issue we’re fighting over?
b.      What’s the evidence everyone is fighting about?
c.       What’s the relation between disputed fact and the evidence?
                                                          iii.      Probative Value or Prejudice (Rule 403) – Relevant evidence is excluded if its probative value is substantially outweighed by danger of one or more of the following:
1.      Unfair prejudice, confusing the issues, misleading the jury, delay, wasting time, undue delay, or needless presenting cumulative evidence.
2.      Probative value must be substantially outweighed; tilts the scale in favor of admission.
3.      Abernathy v. Superior Hardwoods – let the video of reenactment of the accident in, but not the audio.
a.      Lumber company argues Abernathy should have heard the forklift coming.
b.      Audio is relevant but taken from the perspective of Abernathy.
                                                           iv.      Rule 105 – Where evidence is admissible against a certain purpose for a certain party, the courts, on timely request, must restrict the evidence to a proper scope and instruct the jury accordingly.
1.      Evidence can only be considered to show the defendant has been convicted, not his character.
a.      Jury wasn’t to consider evidence of a prior conviction as guilt of the current crime.
2.      Here, this could possibly be a limiting instruction.
                                                             v.      Preliminary Questions (Rule 104)
1.      Court must decide any preliminary question about whether a witness is qualified, privilege exists, or evidence is admissible.
a.      In doing so, court is not bound by evidence rules, except those on privilege.
2.      (b) Conditional Relevance – Relevance depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.
a.      Court may admit the proposed evidence on the condition that the proof is introduced later.
II.                  Hearsay – An out of court statement introduced to prove the truth of the matter asserted and is not admissible unless an exception applies. (801(c))
a.      Introduction and Non-Hearsay Uses of Out-of-Court Statements
                                                              i.      Prohibits the use of a person’s assertion, as equivalent to testimony of the fact asserted, unless the assertor is brought to testify in court on the stand, where he may be probed and cross-examined as to the grounds of the assertion and his qualifications to make it.
                                                            ii.      Mistakes when addressing hearsay:
1.      Out of court – Out of the hearing of which the evidence is being produced (must be in hearing/trial which it is set).
2.      Matter asserted – Referred to the truth of the matter asserted in the out of court statement (as opposed to what the witness is asserting)
a.      Declarant makes the out of court statement.
b.      Witness introduces the statement in court under oath.
                                                          iii.      Rationale of Hearsay:
1.      Someone said X
2.      Inference: If they said X, they probably believe it to be true.
3.      Inference: X is true.
                                                           iv.      Always a risk testimony may not be true.
                                                             v.      Hearsay risks: Reasons to have cross-examination
1.      Narrative – Risk that declarant’s words did not reflect what they meant to say.
2.      Sincerity
3.      Perception ( believe to be true)
4.      Memory (believe to be true) – honest mistake.
5.      *Can’t test these risks.

as given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition.
1.      Prior inconsistent statements – impeaching a witness by showing they change their story.
2.      To apply this, declarant needs to testify and be available for cross-examination.
                                                            ii.      (B) – Is consistent with the declarant’s testimony and is offered to rebut an express or implied change that the declarant recently fabricated it or acted from recent improper influence or motive in so testifying; or
                                                          iii.      (C) – Identifies the person as someone the declarant perceived earlier. 
1.      Could be used to impeach the credibility of witnesses.
2.      Must be given subject to cross examination, under oath at the penalty of perjury.
3.      Some prior inconsistent statements are not hearsay.
b.      Direct, Adoptive, and Authorized Admissions
                                                              i.      Rule 801(d)(2) – An opposing party’s statement – the statement is offered against an opposing party and was made by the party in an individual or representative capacity.
1.      United States v. McGee
a.      McGee gave 3 inconsistent stories about whether he robbed the bank.
b.      McGee claimed hearsay à fit Rule 801(d)(2) à McGee made the statements and they were offered against him.
                                                            ii.      Two side notes of Direct Admission:
1.      Multiple hearsay – Rule 805 – hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statement conforms with an exception to the rule.
a.      Break down into two statements – outer statement does not equal hearsay
2.      Rule 106 – Completeness – may introduce more of a document that ought to be considered at the same time.
                                                          iii.      Bruton’s Rule
1.      Co-defendant’s admission is not admissible against other co-defendants.
c.       Agent, Employee, and Co-Conspirator Admissions
                                                              i.      Rule 801(d)(2)(E) Co-Conspirator Exception – The statement is offered (1) against an opposing party and was made by the party’s (2)coconspirator (3)during and in (4)furtherance of the conspiracy.
                                                            ii.      Rule 801(d)(2)(D) – Party’s Agent or Employee – The statement is offered against an opposing party and was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.