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Villanova University School of Law
DeCaro, A. Roy



FALL 2013

Key Terms

I. Beyond A Reasonable Doubt = BARD

II. Preponderance Of The Evidence = POTE

III. Rules Of Evidence = ROE

IV. Supreme Court Of The United States = SCOTUS

V. Trier Of Fact = TOF

VI. Under The Circumstances = UTC

VII. Appellant Court = AC

VIII. Personal Knowledge = PK


I. The Rules

a. Rule 402 – General Admissibility

i. Can’t admit evidence if violates Con., Fed. Statute, ROE, & Others by SCOTUS

b. Rule 401 – Relevant Test

i. Rule 401(a) + 401(b)

1. ANY Tendency of Fact (a)

a. Makes more or less probable than it would be without it

b. Shifts fact finder view à no matter how slight

2. Consequence (b)

a. Tends to (dis)prove in some way of fact or controversy and has a legal impact on the outcome

II. Admissibility of Relevant Information (402)

a. Minimal requirement for admissibility

b. BUT do not admit ALL relevant evidence

III. Inadmissibility of Relevant Information (402)

i. Policy Reason for Exclusion

1. Serves Some Broader Societal Goal

a. Exclusionary rule – 4th Amendment

b. Privileges

2. Most Common Reasons

a. Undesirable impact on the TOF

ii. General Reasons for Exclusion

1. Lack of PK

2. Lack of Authentication

3. Opinion Evidence

4. Rules of Privilege

5. Constitutional Concerns – mostly in criminal cases

6. Hearsay

7. Etc.


I. The Rule

a. Rule 403 – Excluding Relevant Evidence

i. May exclude relevant evidence it probative value is substantially outweighed by a danger of one or more of the following:

1. Unfair prejudice

2. Confusing the issues, misleading the jury,

3. Undue delay, wasting time, or needlessly presenting cumulative evidence

II. Application

a. May

i. No bright line rule à UTC

ii. AC rarely reverse these ruling

b. Substantially Outweighed

i. Favors Admissibility

ii. Must substantially outweigh its probative value

c. Unfair

i. If it tempts TOF to decide case on grounds different from those the law demands

ii. If it “lures the TOF into declaring guilty or liability on a ground different from proof specific to the offense charged” – SCOTUS

1. Creates unwanted biases or irrational assumption

Pre-Trial Motions – CHECK FOR THE RULES

I. The Rules

a. Motion in Limine

i. Usually happens before trial

ii. Whether or not information is admissible under the ROE

b. Motion to Suppress

i. Claiming that the opponents evidence

c. Motion for Summary Judgment

i. “There is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law”

Trial Motions/Objections

I. The Rules

a. Rule 103(a) – Raising Objection

i. The steps an attorney must take at trial before a reviewing court will consider objections on appeal

ii. So AC can review the challenge party MUST:

1. Object:

a. Before offending evidence is introduced

2. Motion to Strike:

a. After disputed evidence has already entered the record

3. Timely Manner:

a. As soon as it is known or reasonably should have known

4. “Specific Ground”:

a. Gives notice about the basis of objection

b. Rule 103(a)(2) – Defending Objection

i. Rebuttal to the objections of the evidence

c. Rule 103(d) – Preventing The Jury From Hearing Inadmissible Evidence

i. Attorneys

1. Objection + Approaching the Bench

ii. Judges

1. Ruling on Objections

a. Sustain

i. Exclude Evidence

b. Overrule

i. Admit evidence

c. In-Between

i. Portions admitted and are not

d. Redact

i. Eliminate portions of the document

e. Examination Of The Witness

i. Lawyers have to avoid certain questions

2. Inadvertently Admitted Evidence

a. Curative

i. Tells the jury to disregard evidence

d. Rule 105 – Multiple ∆ Limiting Instructions

i. Judges must instruct jury to look/disregard certain evidence for certain ∆s

On Appeal

I. The Rules

a. Rule 103(a) – Preserving a Claim of Error

i. Substantial Right

1. Only if the error affects a substantial right/outcome of the case

ii. Harmless Error

b. Rule 103(e) – Taking Notice of Plain Error

i. Affects substantial rights and integrity of judicial proceeding

c. Abuse of Discretion

i. AC defers to trial judge

Rule of Completeness of Document

I. In General of Rule 106

a. Lawyer may use a document to impeach a witness or other reasons à even a page of thousand page document

i. Lawyers are not allowed to use selected document to mislead the jury

ii. This rule allows full document to be introduce

stic Records – 902(11)

2. Foreign Records – 902(12)

a. Only for Civil Cases à Fed. Statute controls application for criminal

iv. Websites

1. Government-Owned are usually Self-Authenticating – 902(5)

2. Other Websites admissibility proceeding vary widely

v. Admission & Stipulations

1. Civil Trials have Pre-Trial Authentication

a. Require parties to disclose evidence at least 30 days before the trial and objections within 14 days

2. Criminal Trials usually don’t do Pre-Trial Authentication

Fixing a Problem After the Injury/Problem Occurred

I. In General

a. Providing evidence that the ∆ made a change to an original condition/practice because it was unreasonably dangerous

b. Some types of this evidence are shielded because a ∆’s post-accident conduct often bears little relationship to their pre-accident negligence

II. The Rule

a. Rule 407

i. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

1. Negligence;

2. Culpable Conduct;

3. A defect in a product or its design; or

4. A need for a warning or instruction.

ii. But the court may admit this evidence for another purpose, such ass

1. Impeachment or –

2. If disputed – proving ownership, control, or the feasibility of precautionary measures

III. Application

a. Measures

i. Changing the design or practice of a product that caused and injury

b. Subsequent

i. After injury, not after product was sold

c. Remedial Measures By Non-Parties

i. Does not apply to third parties

d. Other Purpose: Impeachment

i. Discrediting a witness

e. Other Purpose: Ownership & Control

i. Show the ∆ was owner and had control à not to prove liability

f. Other Purpose: Feasibility

i. ∆ states it was impossible to alter something at the time, but then end up changing it