Select Page

Villanova University School of Law
Poulin, Anne Bowen


Litigator’s Hurdles:

Admissibility of E – How high is the threshold? ß our focus
Motion for directed verdict – Standard = could a reasonable fact finder be persuade that
Persuading the fact finder to return a favorable verdict!Fact finder has all E and given standard of proof to which they have to be persuaded by

Burden of Proof

Preponderance of the evidence: prevailing civil standard
Clear and convincing – disfavored position
Beyond a reasonable doubt – want a high level approximation because freedom is on the line

Types of Evidence

Oral testimony
Categories of witnesses:

Fact – people who perceived facts relating to the lawsuit and testify on such.

Also known as Eyewitnesses

Expert – someone who has specialized knowledge and can help jury assess facts
Character – the character witness knows something about one or more of the people

Real evidence – own special category of rules**
Demonstrative evidence – models, charts, tables, etc. to help jury understand
Stipulations – agreement between parties that certain facts are true for litigation purposes
Judicial notice – special rules, e.g. something commonly known. Both parties don’t have to agree on it


Circumstantial Evidence versus Direct (circumstantial can be more important!)

Direct: Eyewitness to the alleged event. Evidence (W saw ∆ stab V) à Fact (∆ stabbed V)

Circumstantial (woke up and saw snow on ground): Evidence à Inference à Fact

E (∆ left town after stabbing) à I (Guilty people often flee) à F (∆ stabbed V)

E (∆ was seen holding bloody knife after stabbing) à I (few innocent reasons to have bloody knife) à F (∆ stabbed V)


FRE apply under Rule 101 (Scope; Definitions) and 1101 (Applicability of the Rules):

Civil proceedings (including admiralty and maritime cases)
Criminal cases and proceedings
Some contempt proceedings

Rules of Privilege: ALWAYS APPLY


Preliminary questions of fact (Rule 104)
Grand jury proceedings
Proceedings for extradition or rendition
In criminal cases:

Preliminary examinations
Granting or revoking probation
Issuance of warrants (arrest, search) or summonses
Proceedings with respect to release (bail or otherwise

Evidence is based around RELEVANCE

Rule 402 – General Admissibility of Relevant Evidence

Irrelevant E is not admissible
Not all relevant E will be admitted

Reasons for excluding E

Protect jury
Ensure E is reliable
Administrative concerns (avoid delay, etc.)
Serve a greater good (less common)

Procedures: Objections, Rulings, and Appellate Review


FLAG – OBJECTION – POSSIBLE RESPONSE(S) (what should make me think this type of E and what are the possible responses)
Each objection

Triggered by specific type(s) of E
Response must match objection


Irrelevant Rule 402

Objections for RELEVANT E:

Form in which it is presented
Hearsay (Rule 802)
Lack of personal knowledge (Rule 602)
Lack of authentication (Rule 901)
Best evidence (Rule 1002)
Opinion (Article 7)
Specialized relevance objections (Rules 404 – 415)
Privilege (Rule 501)
Constitutional concerns
Negative impact (Rule 403) – Back stop

RULE 103(a) – Preserving a Claim of Error

A party may claim error in admitting or excluding ONLY IF the error affects a substantial right of the party and: (1) ruling admits E, party timely objects and states specific grounds OR (2) ruling excludes E and party informs court of substance by an offer of proof

Rule 103 – Also known as the harmless error rule – show error was not harmless

How to object:

Before trial (or before E is offered)

Motion in Limine
Other pretrial motion

At trial

Objection – make as soon as E is presented and you have a problem with it
Motion to strike – if E already came in


Did the question signal basis for objection?
E.g. What did your mother tell you?She told me blank.

NOT TIMELY OBJECTION – because the question signaled the answer may contain hearsay
BUT, judge discretion

E.g. What happened next?I saw my mother crying…

Objection. Move to Strike. Hearsay.
Timely J


State rule number; maybe short statement
State ALL grounds (there are often multiple objections)


Sustain (exclude)
Overrule (admit)
Admit part of the E (redact)
Admit E with limitation (R. 105 – limiting instruction)

RULE 105 – Limiting E that is NOT ADMISSIBLE against other parties or for other purposes (limiting instruction)

Limit as to party
Limit as to purpose – can use it for this and not that

RULE 103(e) – Taking Notice of Plain Error – Fallback protection

Limits on Appellate Review

Standard: Abuse of Discretion + “substantial right”
May turn on fact finding by trial court
Harmless error applies
KEY: Persuade trial court!!!

s the harm?
Is there any way for the court to reduce either the risk of negative impact or its harm?


Does risk of unfair prejudice substantially outweigh probative value?

On appeal:

Did the trial court abuse its discretion?

2 possible errors:

Assessment of probative value is wrong (over or under-estimated)
Assessment of unfair prejudice is wrong (over or under-estimated)

: Rule 403 unfair prejudice:

Explain fair probative value
Explain anticipated negative impact

How likely is it?
How great is the harm?
Can the court take any steps to protect?

Apply standard: Does risk of unfair prejudice substantially outweigh probative value?


Social Policy

Why: Reason for excluding?
What: Scope of rule/what does it cover?
When: Excluded/when not:

Prohibited purposes
Permitted purposes

Evaluating this E

Recognize type of E covered by rule
Assess its role in the case (how is it relevant in this trial?)
Apply the rule

Rule 407 – Subsequent Remedial Measures

Applies only to parties in the suit
What kind of action = a measure?

Recalls, warnings
Personnel actions (firing, discipline)

Timing – the fix/change must be AFTER the injury or harm
Relationship to injury/harm on which suit is based

Policy concern:

Want to encourage the party to fix things, and NOT punish by making it negative E against them

Can’t be used to prove the following:

Culpable conduct
Defect in product
Defect in design
Need for warning or instruction

Can be used:


Attacking/derogating W’s credibility

(of precautionary measure?)* (could have changed it?)

* must be disputed, can then apply Rule 105 – Limiting Instruction, and Rule 403 Unfair Prejudice (proves ownership, but also prejudice jury that ∆ knew of it)