EVIDENCE POULIN FALL 2015
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
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)
APPLICATION OF FRE
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
FRE DO NOT APPLY to:
Preliminary questions of fact (Rule 104)
Grand jury proceedings
Proceedings for extradition or rendition
In criminal cases:
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
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)
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)
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
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.
State rule number; maybe short statement
State ALL grounds (there are often multiple objections)
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?
STEP THREE: BALANCE
Does risk of unfair prejudice substantially outweigh probative value?
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?
SPECIALIZED RELEVANCE RULES 407-411
Why: Reason for excluding?
What: Scope of rule/what does it cover?
When: Excluded/when not:
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?
Personnel actions (firing, discipline)
Timing – the fix/change must be AFTER the injury or harm
Relationship to injury/harm on which suit is based
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:
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)