Evidence Outline

Evidence – Professor Berner

1. Miss Trust of Jurors
2. Serve Substantive Policies to the issues being litigated.
3. Serves Policies to the issues not being litigated
4. Helps to Serve Accurate Fact Finding
5. Helps to save time.

Whether you might believe a lay witness boils down to 2 things authority and plausibility or fitness

1. Introduction

101. Scope: These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions state in rule 1101.

102. Purpose and Construction: these rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the trust may be ascertained and proceedings justly determined.

1101. Applicability of Rules: d) Rules inapplicable: 1) preliminary questions of fact: the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104, 2) grand jury, 3) misc. proceedings: proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise.

2. Relevance

401. Definition of “relevant evidence”: evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Relevancy = Probative value (proof) + “of Consequence” Materiality

402. Relevant Evidence generally admissible; irrelevant evidence inadmissible: all relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

· All evidence is admissible except:
a. Constitution of U.S.
b. Act of Congress
c. “By These Rules”
d. Other Supreme Court Rules

Evidence ——- Continuity of Action/Intermediate Inference ——- Material Fact

3. Exclusion of Relevant Evidence

· Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Excluded if: “Trial Concerns”
a. Probative value is substantially outweighed by the danger of unfair prejudice
b. Confusion of the issues
c. Misleading the jury
d. Considerations of undue delay/waste of time/needless presentation of cumulative evidence

· Opponent objecting to relevant evidence under 403 has the burden of proof

· Rule 403 Comes up a great deal with Photographs

· Effect of Stipulation – does not make evidence of that very thing relevant under 401, but can bring debate under 403

· Abuse of discretion is standard of review for appellate court under 403

4. Competency of Lay Witnesses

· General Rule of Competency: Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State Law.

· Criminal cases are covered by Federal Rule 601
· In Civil Cases state competency law applies “to an element of a claim or defense as to which State law supplies the rule of decision”

4 Testimonial Risks
(1) Perception
(2) Memory
(3) Narrative/Narrational – Ambiguity
(4) Sincerity

· Lack of Personal Knowledge: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

603. Oath or Affirmation: Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with duty to do so.

604. Interpreters: An interpreter is subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make true translation.

605. Competency of Judge as Witness: The judge presiding over the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point.

606. Competency of Juror as W