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University of Toledo School of Law
Lammon, Bryan

Professor Lammon
Fall 2016
I. Introduction
II. Relevance
Evidence is relevant if it has any tendency to make a fact of consequence more or less probable. (use chain of reference to prove. Eg. Evidence—Inference1—assumption—inference 2….)
Direct evidence: evidence if believed proof precisely what it tries to prove
Circumstantial evidence; it requires inference to proof what it try to prove. (Common sense inference)
More or less probable: logical connection between evidence and what we try to proof.
III. Rule 403 (excluding relevant evidence)
Under Rule 403, the trial court may exclude evidence if its probative value is substantially outweighed by the risk of unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Unfair prejudice: 1) inflame jury and risk the jury to make emotional judgment.2) will the jury misuse the evidence for improper purpose.
Charge felony—Government must accept the stipulation when charged with possession of gun—must accept prior felony conviction.
IV. Evidentiary Procedure
A.     Burdens of Proof
In a civil case, the plaintiff normally bears the burden of proving every element of a claim by preponderance of an evidence. (more than 50%)
In a criminal case, the prosecution normally bears the burden of proving every element of a crime beyond a reasonable doubt. –(could a reasonable jury conclude that prosecution proof every elements of the charged crime beyonda reasonable doubt.)
Others: 1) In Criminal case —could use R29 motion of acquittal. 2) 6TH Amendment grants jury trial in criminal case, thus prosecution cannot get direct verdict or judgment as a matter of law from judge. (could a reasonable jury look to admissible evidence come to one conclusion, thus not go to jury)
B.     Preserving Errors for Appeal –R103
R103(a)(1) provides that to preserve a claim of error as to the admission of evidence, the party must 1) timely object or move to strike and 2) state the specific grounds for the objection (unless the grounds were clear from the context).
R103(a)(2) provides that to preserve a claim of error as to the exclusion of evidence, the party must inform the court of the evidence’s substance through an offer of proof (unless the substance was apparent from the context).
Appeal review: (harmless error which not affect outcome not on appeal) 1) De novo review—look the issue fresh, no deference to trial court. 2) abuse of discretion—deference to trial court decision so long as it is reasonable.
Take notice of plain error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
C.     Applying the Rules of Evidence
R104-Preliminary Questions
In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(Conditional relevance rule) Relevance that depends on a fact. When the relevance of evidence depends whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
Others: Judge make preliminary judgment by the preponderance of evidence. Judge must ask could a reasonable jury could conclude it is true.
D.     Limited Admissibility
-Limiting Evidence that is not admissible against other parties or for other purpose.
If the court admits evidence that is admissible against a party or for a purpose—but not against another party for another purpose—the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
Evidence admissible for one purpose and inadmissible for another purpose, thus to avoid jury misuse the evidence, judge instruct jury can or cannot use the evidence for what purpose.
V. Hearsay                                                                                               
A. Hearsay Introduction R801
    1. Hearsay is an out-of-court statement introduced to prove the truth of matter asserted. Hearsay is generally not admissible. (It was made outside of the current proceedings, it was made by a person who intend to assert that …and it’s offered to prove what it asserts…)
             a. Elements:
                  i. out-of-court: outside of current proceeding.
                  ii. statement: a person intends to assert something. (has to be made by a person, video tape is not a person)
                  iii. Truth: introduced to prove the truth of matter asserted. (not necessary to proof any other purpose)
             b. Implied Assertion
                  i. Assertive conduct (non-verbal conduct)-à potential hearsay
                  ii. Non-assertive conduct: is not a statement because lack of intent to assert, thus not hearsay.
                  iii. Verbal expression that reveal something beyond what’s intended: not a statement.
             c. Not hearsay
                  i. Statement of mind. Eg. Circumstantial evidence of children’s statement of mind which makes it more likely that there is a likelihood of confusion between two marks. Or use circumstantial evidence to proof defendant believed he was working for the police, not proof the truth that he was in fact wor

atement is made by the opposing party’s employee,)
Scope (the statement was on a matter within the scope of the employee’s duties, and)
During (the statement was made during the employment relationship.)
  8. Co-Conspirator Opposing Party Statements
(independent evidence requires, judge cannot only rely on a statement; burden of proof beyond reasonable doubt)
Against OP (a statement is offered against the opposing party,)
Co-conspirator (the statement was made by the opposing party’s co-conspirator,)
During (the statement was made during the conspiracy, and)
Furtherance (the statement was made in furtherance of the conspiracy)
C. Rule 803 Exceptions
    (Even though it is hearsay, it is not barred by Hearsay)
   1. Present Sense Impressions
Event/Condition (there is an , eg. Light’s being green)
Describe/explain (statement describes or explains that event or condition, and)
While/immediate (the statement is made while or immediately after the declarant perceived it.)—–(cannot be too long, otherwise the declarant would have time to forget or reflect and fabricate)
   2. Excited Utterances
Startling (there is a startling event or condition, eg. Collision)
Relate (the statement relates to that event or condition, and)
Under stress (the statement was made while the declarant was under stress or excitement that event or condition caused.)
   3. State of Mind
Then existing/current
Statement of mind (eg. Victim said “I believed my husband poisoned me”—statement of belief used to prove the thing believed, it does not fall under the state-of-mind exception.—Shepard doctrine)
  Case law rule:
doctrine: (insurance company provides A’s letter to show B killed A.) Statement of plan or intent can be used to prove declarant’s have actually had plan or intent and they act on it. (eg. Could offer a letter which says “he plans or intent to go somewhere” to proof he actually go somewhere under Hillmon doctrine)
doctrine: A statement of memory or believe cannot be used under state of mind exception to prove the fact remembered or believed. (to prove the fact is true.)
   4. The Medical Exception