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University of Wyoming School of Law
Easton, Stephen D. (Steve)

Evidence Outline

Stephen Easton – Fall 2017

Civil law v. Common Law Systems

Civil System

Judge investigates, gathers evidence, determines credibility & admissibility
No hearsay or confrontation concerns
Minor roles for attorneys

Common Law System (ours)

Judge as neutral arbiter
Hearsay and confrontation concerns
Significant role for attorneys

Offering and resisting evidence
Direct and cross examination

Role of judge in our system (regarding evidence)

Arbiter of evidentiary disputes – judge determines admissibility
Follower of rules and other laws

Varying amount of discretion
Appellate review possible (but rare) in evidence concerns

Judge’s job not to look at the credibility of the evidence, but the capability of the evidence

Evidence law controlled mostly by trial judges
Basically: Judge determines what the jury gets and jury decides the weight/credibility of the evidence they get

Evidence terminology

Proponent of evidence: party that wants court to admit evidence (the one that is “offering the evidence or exhibit”)
Proponent of testimony: the party that calls the witness to the stand (conducts direct)
Opponent: every other party who doesn’t present evidence/testimony (like D or coP)

Power to cross examination

Bench trial: judge trial (no jury)
Foundation: Preliminary requirements before doing what you want to do
Bench or sidebar conference: Discussion of evidentiary dispute outside of jury’s earshot
Offer of proof: party offers evidence & judge rejects it, to make a complete record for appeal, lawyer should make sure record reflects what the lawyer wish the evidence to prove (often outside of the jury’s presence)
Door opening: the other side does something to allow you to make the argument etc. (Being able to offer inadmissible evidence after opposing counsel does so)
Motion to strike: Objection and request to strike testimony from the record & for jury to ignore the answer to the question (not effective because jury remembers)
Case in chief: party’s first opportunity to present evidence
Rebuttal case: Second round of evidence (also surrebuttal)
Motion in Limine: generally a pretrial motion w/ a brief – usually it’s an argument that evidence they expect opposing party to use shouldn’t be allowed

most commonly Judge reserves ruling on the issue and decides it when it comes up at trial

Types of evidence

Exhibits (pictures, documents, etc)
Site visits (could be exhibit)

Non-evidentiary Proof


Parties agree to facts

Judicial notice

Judge declares facts as true

Trial Court Dominance in Evidence

Many evidence calls are not appealed (trial court is rarely reversed on evidence issues)

Types of errors

Harmless error doctrine

There was a mistake but error didn’t affect the result

Preservable error (not widely used term)

The harmed party adequately preserved error by making sufficient offer of proof and result in reversal if error was found

Preserving evidence

Must make a timely and adequate objection on the record
Could file a motion in limine
Make an adequate offer of proof

Create circumstances in which the judge knows what the evidence would have been

Make sure that the clerk receives the exhibit for the appellate record

Plain error (very rare finding)

Don’t have to adequately preserve error because the error was so egregious

Abuse of Discretion: very deferential to trial court

3 Rs: Why do we or should we exclude evidence?

Relevance (Rule 401, 402)

2 things

Probativeness- evidence has a tendency to prove what the proponent wants to prove
Materiality- proposition the party is trying to prove is of importance in determining the action


We like evidence that has a high probative value

Witness competence requirements


Rules regarding proving the contents of a document (like best evidence rule)

Rightness (aka fairness & justice)

General ban on past acts being brought up
Attempts to settle
Rape shield statutes
Liability insurance
5th,6th, and 4th Amendments
Must eliminate unnecessary expense or delay
Rule 403

Allows judges to exclude relevant evidence for

Unfair prejudice
Confusing issues
Misleading jury
Waste of time

Also Rule 105 limiting instructions can be used


Purpose for rules of evidence (Rule 102)

These rules should be construed so as to

Administer every proceeding fairly,
Eliminate unjustifiable expense and delay,
And promote the development of evidence law,

ther evidence, the judge only determines if there is enough foundation to support a jury finding of the critical fact. The jury ultimately determines if that fact exists.

(d) Cross-Examining a Defendant in a Criminal Case.

By testifying on a preliminary question,

a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

(e) Evidence Relevant to Weight and Credibility.

This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

Rule 103: Rulings on Evidence

*When the objection is to the question – the objection must be made BEFORE the answer is given *When question is proper but the answer is objectionable, the objection must come when answer is given & with a motion to strike the answer

**You must state the CORRECT basis for your objection – can’t do a general objection

***Make sure the Court rules on your objection

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and
(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record —

either before or at trial —
a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

**Do not rely on this rule: you should renew objection to be safe

(c) Court’s Statement About the Ruling; Directing an Offer of Proof.

The court may make any statement about

the character or form of the evidence,
the objection made,
and the ruling.