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Wayne State University Law School
Beecher-Monas, Erica

Fall 2002

FRE 401– Definition of “Relevant Evidence”
“Relevant Evidence” means 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 probablethat it would be without the evidence.

FRE 402– All relevant evidence is admissible unless the FRE, Constitution, Statutes, etc., say otherwise & not relevant evidence is NOT admissible.

If the evidence does not meet the definition of 401- -it is out!
Relevance is the threshold question- –
Nonrelevant=   Inadmissible
Relevant=         Possibly admissible unless violates another provision

From FRE 401–“fact that is of consequence to the determination of the action= material proposition (is the fact –evidence- material)

Proponent is putting the evidence in- must prove why evidence is relevant and why we care/ why it matters, i.e. why its material
Opponent is objecting to the evidence

“A brick is not a wall”- fact is relevant even if just a brick in the wall- to be relevant must just show that it makes a consequential fact more or less probable

Standard of Proof= More or Less Probable (beyond 50%)

Relevance, Sufficiency and Conclusiveness
The evidence must only be relevant, does not need to be sufficient enough to win the case or conclude the case
Look for Chain of Inferences 

Evidence can be relevant even if not even close to sufficient
Must only make a Material Proposition more or less probable than it would have been without the having the evidence at all
Remember- a brick is not a wall

FRE 403– Is the benefit worth the burden?
The benefit is the probative value
Probative Value= How much the evidence increases or decreases the likelihood of the material proposition

Evidentiary Relevance- FRE 401, FRE 402- any evidence is relevant no matter how slight if it has any tendency to make a fact more or less probable in the eyes of the jury

FRE 403- Although evidence is relevant, is may still be excluded based on a rule that excludes relevant evidence, FRE 403 is one of those rules

Incorporated into 403- –
Undue delay- i.e., it would take a week to get the witness here and that delay isn’t worth the while
Waste of time- i.e., just simply takes up too much in court time, such as having a whole city of people testify that they did not kill Jimmy Hoffa
Needless presentation of cumulative evidence- proving an already proven point, i.e., show jury a video tape that clearly identifies the robber and then having 10 people testify that Mr. X is the robber
Unfair prejudice- remember that all prejudice is not unfair, there is much fair prejudice since all evidence that harms one side is prejudice, so basically all evidence is prejudice
Prejudice= something that hurts a parties case
Unfair Prejudice= unrelated to actual issues in the case and it distracts the jury from what is actually being tried, from the actual issue
i.e., usually a prior criminal record, in rape cases the victims past sexual history

To win under 403, must show the problems and prove that these problems outweigh (significantly) the probative value
Complaints for a successful 403 objection-
Probative value is small
All the ways the evidence is lousy
Must show that the probative value is substantially less than the unfair prejudice, waste of time, undue delay, confusion, etc.
Pay attention for statistical misuses

FRE 601- -General Rule of Competency- basically the federal rules take the general stance that everybody is competent to testify and that it is up to the jury to evaluate and weight that testimony. Remember that this is not the approach used in most states. Some states give the judges more initial power in determining creditability.
This rule appears to allow even “untrustworthy” people to testify, this is because the FRE realizes that it is difficult to categorize people
You may find some good or truth out of the testimony anyways
Putting faith in the jury
Cross examination
Everyone can testify and the lawyer’s job is to expose the jury to the truth
Examples- “Are you romantically involved with the Plaintiff”- this question is designed to test bias- -“Sir, you are a police officer, correct” Yes “Then you are trained to focus on the face?” This question is designed to show qualification and perception.
FRE 603- -Oath or Affirmation Requirement- can give oath which is religious in nature or can give an affirmation which is not religious, but simply a promise to tell the truth punishable by perjury if not.

FRE 610- -This is an exception to the rule allowing only juries to decide credibility. After someone takes the Oath or Affirmation you cannot ask them questions regarding Religious Beliefs or Opinions in an attempt to prove/ disprove creditability.

Child Witness
Important issue is do they under stand the FRE 603 Oath or Affirmation. Do they understand to tell the truth and what the truth is? Oath may mean nothing but words to a small child. 
Suggestibility of children, interviewing techniques
It has been suggested that children’s testimony shouldn’t be let in unless there is more evidence admitted in furtherance of the same issue- Sufficiency Requirement (problem is sometimes the child’s evidence is all you have0

Other Witnesses Subject to Suggestion
Hypnosis- victim identifies attacker only when hypnotized. Would testify in federal court because would meet the requirements for 601 and 603.
Many states have specific rules to keep out hypnotically induced memories.
If they are allowed the focus will be on experts.

Adults recovering Suppressed Memories of past harmful or wrongful acts.
Would be allowed under the FRE to testify.

Witness Testimony- Lay and Expert Witnesses
Lay Testimony
FRE 602
Personal Knowledge Requirement- this is knowledge gained because you first hand witnessed through your own senses- it is something you know through your own senses and perceptions.
Hearsay is an objection, not personal knowledge
FRE 701 Opinion Testimony by Lay Witnesses
If witness isn’t an expert then the witnesses’ testimony in the form of opinions or inferences is limited to
Opinions or inferences which are rationally based on the perception of the witness, (rationally based on witnesses personal knowledge) and
Helpful to a clear understanding of the witnesses testimony or the determination of a fact at issue, and
Not based on scientific, technical, or other special knowledge with in the scope of FRE 702.
FRE 701 makes it possible for the witness to draw inferences and opinions from their senses in order to describe their perception
The opinion is to be checked for reliability through examination and cross-examination
FRE 602 and FRE 701 taken together- give an outline for what you do not want your witness to opine about- those are the inferences and opinions that should be left to the trier of fact
We do not want lay witnesses to testify to opinions and inferences that the witness has no better reason to draw than the jury or the judge.

Expert Witness Testimony
The FRE draws a distinction between lay and expert witness opinions which is that the Expert witness need not have personal knowledge of the case and the Expert witness can give opinions subject to the other FRE regarding expert opinions

FRE 702 Expert witness must provide scientific, technical or other specialized knowledge to assist the trier of fact

The Ultimate Issue Rules
FRE 704 The ultimate issue is the issue that the jury is there for and trying to decide.
Experts can testify as to the ultimate issue, this is contrary to common law doctrine.
FRE 704(b), no expert testifying with respect to the mental state or condition of a defendant in a criminal cases may state an opinion or inference as to whether the defendant did or didn’t not have the mental state or condition constituting an element of the crime charged or of a defense hereto. These ultimate issues are for the trier of fact.

When an expert is giving testimony in regards to an insanity defense, the expert can:
Say he has bipolar disorder
Can ask the symptoms of bipolar disorder
Can ask the symptoms of Mr.X
Can ask if a person w/ bipolar disorder can determine right from wrong (the heart on an insanity defense)
The expert cannot:
Ask if Mr. X is insane
Ask if Mr. X can determine right from wrong

Remember- the expert makes the foundation; it is the lawyer’s job to make the jump in the argument, to convince the jury

The expert cannot say someone had criminal intent if it is an element of the crime; it violates 704(b)

Under 704(b), you can ask an expert if in their opinion was Ms. T (the victim) raped.
This is okay in a 704(b) sense because it does not go to the mental capacity of defense or prosecution
A objection may still come because she doesn’t know the victim was raped, the expert wasn’t there, it would be a 702, rather than a 704 objection
It would be better to establish symptoms of RTS (rape trauma syndrome) and then correlate the victims symptoms

Possible test Q.- -Purse Snatching Case where policeman says accused due to crowd holding down purse-snatcher, but not due to actually seeing the man steal the purse. This does not violate 704- -it violates 702, because the officer is forming an opinion form listening to witnesses and this opinion should be given to the jury to form. They should be able to hear the actual witnesses testify. Here the expert is testifying beyond his expertise.

Remember an expert gets around the requirement of personal knowledge

Reputability of the Expert Witness
Federal rules adopts the Daubert standa


The Importance of Cross; Consequences of its Denial
Allows the other party (especially a criminal defendant) the opportunity to test/ try the evidence against them.
If for some reason a party is not given cross opportunity after direct, a mistrial may result of the direct testimony may be struck. This is dependant on factors:
§         Has the denial of the opportunity to cross-examine been total, or only partial?
Often a refusal to answer the question will work in the favor of the lawyer conducting the cross examination
§         Is the problem temporary or permanent?
o       If temporary possibly a continuance of the trial will be granted
§         Did either party cause the witness’s unavailability for cross?
If proponent of witness’s testimony did then the direct testimony will be struck.
If opponent of witness’s testimony did then the direct testimony will be kept in.
§         What is the nature of the witness’s unavailability for cross?
Death compared to witness own refusal
§         Who is the party that has been denied the ability to cross?
Careful about criminal defendant’s rights
§         How significant and how disputable is the testimony?
How effective was the cross going to be?

If cant cross-examine in a criminal case, you cannot allow direct to stand, violates 6th Amendment right to confront excuser

The Scope and Conduct of Cross FRE611(b) takes the following variation of the restrictive approach:
The Restrictive Rule: limits cross-examination to the subject matter of direct examination- this is usually approached broadly.
Matters affecting the credibility of the witness are deemed proper even when they were not brought up in direct.
The court may allow the lawyer to make the “witness his own” and ask questions that go beyond the scope of direct – -in this case the lawyer may not ask leading questions (unless of course the witness is hostile)

If court does bar the cross as going beyond the scope of direct, consequences:
If cross examiner is allowed to later put the witness on the stand as his own- major delay in time including that the questioning will take longer b/c it wont be done through leading questions
If cross examine is NOT allowed to later put the witness on the stand as his own-
Adversary may not be able to ask important questions

Redirect and Subsequent Examinations
Provide opportunity to inquire into matters that were opened up on the prior examination.

Cross examination should be within the scope of direct and witness creditability and redirect is supposed to be within the scope of cross examination

Cannot lead on redirect, b/c it’s your witness

2 Basic requirements for redirect:
Roughly, you must NOT have asked the matter on direct
Your adversary must HAVE asked about the matter on cross

If court is very restrictive it will exclude valuable evidence that might have helped to explain, clarify, qualify or avoid testimony given on cross.

If court is very lenient, it will open up room for sloppiness.

Presenting Other Forms of Evidence
FRE 901 Requirement of Authentication or Identification
FRE 902

Real and Demonstrative Evidence
Evidence no matter what form, must have sufficient probative value and must satisfy procedural requirements.

Real evidence: real evidence is one that played an actual role in the event being litigated.
i.e., murder weapon
Need not be the cause, may also have been created by the event. I.e., bullet goes through body and then through chair, chair is real evidence.

Demonstrative evidence: has no special connection to the case and is used to resemble something in the case
i.e., a gun looking like the murder weapon, but not actually the murder weapon

The Procedure for Offering Exhibits: The Authentication Requirement

Procedure to introduce tangible evidence: MIAO FRE 901