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Villanova University School of Law
Poulin, Anne Bowen

Evidence Outline

Professor Poulin

Fall 2015


The Trial

A trial is a proceeding presided over by an impartial judge in which adverse parties present evidence to a neutral fact finder in order to resolve a factual dispute
Is the trial a search for the truth?

The lawyers must try to persuade the jury (or the judge in a bench trial) on what actually happened during an event at issue in the trial

Evidence is used to sway the jury (or judge), who decides which party presented the most convincing evidence

The jury is supposed to assess credibility on their own, which is why polygraph evidence is generally disfavored

In the case that one party provides an insufficient amount of evidence to the jury (or judge), the judge can give a directed verdict in favor of the other party (i.e. burden of production)

Limitations on the jury learning the truth:

Witnesses sometimes have bad memories
People have certain biases and prejudices
Possible lack of physical evidence
Human perception can be frail
Limitations on human knowledge
Although it will be subjected to limitations, testimony regarding the unreliability of eyewitness testimony is allowed

Since the entire truth cannot be reached through trial, the burden of proof establishes what the best approximation of proof must be

In civil cases, the burden of proof is a preponderance of the evidence
Disfavored propositions fall under the clear and convincing evidence standard
In criminal trials, the burden of proof is beyond a reasonable doubt

Pleadings as a blueprint

The evidence that the parties gather from the contents of their pleadings (i.e. complaint, answer, etc.) is the foundation of their evidentiary materials
The attorneys will need to know the Rules of Evidence so that they know what evidence they can or can not include in the pleadings and at trial

Trial jury instructions

Certain things are not evidence:

Statements, arguments, questions and comments made by lawyers trying the case
Exhibits that are identified by a party, but not offered or received into evidence
Objections; if the judge sustains an objection to a question or exhibit, the jury must ignore the question or the exhibit and must not try to guess what the information might have been
Testimony and exhibits that the judge strikes from the record or tells the jury to disregard
Anything seen or heard outside of the trial

Types of Evidence

Oral Testimony

Fact witnesses – witnesses who know relevant information about the particular event in question
Character witnesses – witnesses that know about the people involved in the event in question, rather than the event itself
Expert witnesses – witnesses with specialized knowledge who are able to help the jury make particular determinations

Real Evidence

Any physical evidence that a party claims played a direct role in the controversy
Governed by particular requirements for admissibility

Demonstrative Evidence

Evidence created by attorneys in order to help the jury understand a particular set of facts


Agreements by the parties that certain facts are true
The decision is solely made by the parties and cannot be forced by the judge

Judicial notice

Rule 201 admits facts into evidence that are not in reasonable dispute because it is either generally known within the trial court’s jurisdiction or it can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned
Instructing the jury:

In civil cases, the court must instruct the jury to accept the noticed fact as conclusive
In criminal cases, however, the court must instruct the jury that it may or may not accept the noticed fact as conclusive

Judges can take judicial notice at any stage of the proceeding

The judge can take judicial notice on his or her own, or it may be required to when a party requests it and submits the necessary information


Trial lawyers urge the jury to draw inferences from the evidence that is provided in order to form a story
“Presumption” can be used in a variety of ways, therefore it’s a non-standard term

Things that are called presumptions, but really are not true presumptions

Conclusive or irrefutable presumptions

Rule of substantive law, rather than evidentiary law
Stronger than a true presumption

Permissible presumptions

Too weak to be a true presumption
More like a permissive inference, than a presumption

Possible effects of true presumptions:

Shifting of the burden of persuasion

Strongest effect a presumption can have

Shifting the burden of production

Possible responses to contrary evidence:

The jury can consider it when making its verdict
“Bursting Bubble” presumption – the presumption’s weakest effect because it requires the opposing party to produce evidence rebutting the presumption, but it doesn’t shift the burden of persuasion to the opponent

Rule 301 states that, generally, in a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing eviden

soon as the ground for objection is known or reasonably should have been known
Can’t wait for the witness’s answer to a question before objecting
Allows the judge to make a ruling before the jury learns about potentially inadmissible evidence
Also allows the proponent of the potentially inadmissible evidence to cure any defect(s) within the evidence

Must give the judge proper notice of the objection

Specificity of the objection

Must state the specific grounds for the objection

Gives notice of the basis for the objection to both the opponent and the judge

The opponent can try to cure any defect
The judge can rule on admissibility more easily

If there are multiple grounds for the objection, must state all grounds at once

Must provide the rule number(s) and, sometimes, a short statement in support of that rule(s)
Must designate which portion of the document/testimony to which the objection is made
The party can forgo specificity if the basis of the objection is “apparent from the context”

But good attorneys should always state some basis when making an objection

Defending an Objection

Under 103(a)(2), the opponent to the objecting party must make an offer of proof, otherwise the objection is waived on appeal

Show the judge what the challenged evidence entails

Must be timely and specific in order to get a prompt and correct ruling

The judge has the discretion to determine the form of the offer of proof
Offered more than just to persuade the trial judge:

Preserve the defense on the record in order for the appellate court to examine

Under Rule 103(b), once the court rules definitively on the record, the objection and offer of proof are already preserved as claims of error for appeal
Under Rule 103(d), the court must decide evidentiary issues in a way that shields the jury as much as possible from hearing inadmissible evidence

Approaching the bench for objections that require greater explanation
More detailed arguments will be heard without the jury in the courtroom or in the judge’s chambers