Select Page

University of Wyoming School of Law
Duff, Michael C.

Evidence Duff Fall 2013


A. What is Evidence?

1 Information is a close synonym

2 Battle over what info is admissible

3 Once the jury has the evidence, it will either be persuaded by it or not

4 Jury is like the black box in a plane- law usually will not invade black box even if outcome is questionable

5 FRE apply to both civil and criminal cases, but usually don’t appear in administrative proceedings

B. Admissibility v. Weight

1 Admissibility: Whether the evidence is sufficiently competent to make its way to the fact finder

2 Weight: What the fact finder does once it gets to them

C. Preference to Admit Evidence

1 Tactically

i How do I get information into evidence/the record?

ii How do I keep the other party’s information out of evidence/the record?

D. Policy

1 FRE 102

i Ascertaining the truth and securing a just determination

a Fairness

b Efficiency

c Development of a coherent body of evidence law

E. FRE 403

1 The great judicial gate keeper provision

i The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

a Unfair Prejudice

1 Prejudging without regard to the facts of the case presented

b Confusing the Issues

c Misleading the Jury

d Undue Delay

e Wasting Time

f Needlessly Presenting Cumulative Evidence

F. Types of Evidence

1 Real: Think murder weapons or fingerprints (tangible)

2 Demonstrative: Diagram of an accident scene (tangible, but used to illustrate something)

3 Testimonial/Oral: Witness testimony

G. Anatomy of a Trial

1 Motion in Limine (at the threshold): Where many evidence questions are fought out

i pre-trial phase is critical for shaping a trial

H. Preserving Claim for Error

1 Evidence Admitted

i Must object/move to strike during trial, on the record, to preserve for appeal

ii State grounds for your objection [state and federal constitutions, etc.]

2 Evidence Rejected

i Object; make offer of proof

I. Witness Competency- FRE 601

1 Every person is competent to be a witness unless these rules provide otherwise

2 But in a civil case, state law governs the witness’s competency regarding the claim or defense for which state law supplies the rule of decision

i VERY LOW BAR = Able to perceive/tell the truth (FRE 603)

ii Distinguish from weight/credibility

iii State law governs (age restrictions) if it provides rule of decision negligence)

J. Witness Personal Knowledge- FRE 602

1 Witnesses must be able to say “I know…” (Usually because they perceived through senses)

i No speculation

ii Witness’ own testimony usually suffices

2 Claymore Mine Problem

i May not have knowledge of what mines were purchased for but could testify based on experience on who might use them

K. Witness Oath of Affirmation- FRE 603

1 Oath: swearing to God

2 Affirmation: promise to tell truth without reference to God

3 Must “impress” duty to tell truth on “conscience”

L. Tanner v. United States

1 As long as no outside interference we let the jury do its thing

2 But how far should this go?

M. Shortcuts

1 Stipulations

i Broad latitude for parties to agree to sets of facts

ii Party with bad facts would love to stipulate to diminish impact of actual evidence (pictures of a bloody crime scene)

iii Judge can force stipulation under general authority to exclude highly prejudicial evidence (FRE 403)

2 Judicial Notice (FRE 201)

i Adjudicative facts only- particular to this case/context

ii Not subject to reasonable dispute

iii Generally known in jurisdiction or accuracy easily determined/can’t reasonably be challenged

a Distance from Laramie to Cheyenne is about 50 miles

iv May be taken at any stage of proceeding

a Court must take notice upon request if supplied with necessary information- though opposing party, if any, must be heard


A. Why is this stuff important?

1 Distinguish between burden of proof and production

2 Party with burden of proof always has initial burden of production (evidence on every element sufficient to withstand a motion to dismiss)

i Typically stays on the P in a civil case, prosecutor in a criminal case

ii When P puts on a prima facie case, and the D does nothing, what happens?

3 If burden met by P, burden of production shifts to D, who must in turn produce evidence (or lose)

i Must produce enough evidence sufficient to withstand directed verdict/motion to dismiss

ii Fact finder could find for the P with respect to the element of

D. Context

1 One party offers evidence

i The hand gun

ii Testimony a witness is about to provide following a question from counsel

2 The other part: “Objection your honor, irrelevant.”

3 Judge makes preliminary determination in proceeding under FRE 104 (outside of hearing of jury)

E. Probative and Material/Consequential

1 Proponent trying to prove a fact: The car involved in the accident was red

i Offers red paint chips with witness who will testify it was from car involved in the accident

ii Does evidence make more likely the fact proponent is try to prove?

a Yes

iii BUT- is it of consequence that car involved in the accident was red?

a i.e., does it MATTER

F. Evidential Hypotheses

1 Not as mysterious as it sounds- really just another way of saying fact of consequence

2 The theory that logically connects the evidence offered to the fact you are trying to prove

G. Conditional Relevance

1 FRE 104(b)

i Relevancy that depends on a fact. When the relevance of evidence depends on 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.

H. Unfair Prejudice

1 FRE 403

i Unfair prejudice must SUBSTANTIALLY outweigh probative value

ii Close Calls = Admit (weigh probative, too)

iii Why is all relevant evidence prejudicial?

a Old Chief dissent

iv Emotion is a typical problem (any undue tendency to decide on improper basis)

a Bloody crime scene, sexual abuse of children, personal injure, images of victims

b Prior bad acts- jury really convicting for bad character or to punish for prior acts

2 Limiting Instructions FRE 105

i Really a psychological issue

a Somehow evidence gets in the record for a limited purpose: convicted child abuser party/P- witness