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Wayne State University Law School
Mann, Lawrence C.

Evidence Outline—Professor Lawrence Mann

Quick Review—To determine applicability of FRE:
Determine admissibility:
Is the evidence “relevant”? See FRE 401
Even if the evidence is relevant, are there reasons of efficiency to exclude it?   See FRE 403.
Are there any other reasons to exclude it, based on the type of evidence it is?

Rule 404-406: The evidence is character evidence of evidence of habit
Rule 407: The evidence is of subsequent remedial measures
Rule 701: The evidence is an opinion
Rule 702-705: The evidence is expert testimony
Rules 412-415: If the case deals with a sex offense and the evidence is of the character of the victim
Rules 608-609: The evidence is of a witness’ credibility or character for truthfulness
Rule 801-802: The evidence is hearsay. (Consider the possibility exists however for exceptions under 803-804.

Is the evidence “authentic”? Rules 901-903

I. Admissibility of Relevant Evidence.
A. When evidence is relevant: Rules 401-403
B. Types of Evidence
Direct Evidence
Circumstantial Evidence
1. Character Evidence: Rule 404
2. Habits and Routine Practice: Rule 406
3. Subsequent Remedial Measures: Rule 407
4. Compromises or Offers to Compromise (Settle): Rule 408
5. Offers to Pay Expenses: Rule 409
6. Pleas and Related Statements: Rule 410
7. Liability Insurance: Rule 411
8. Sexual Behavior: Rules 412-415
C. Hearsay: Rule 801-802
1. General exceptions (availability of witness immaterial): Rule 803
2. When Declarant is Unavailable: Rule 804
3. Hearsay within hearsay (“Double Hearsay”): Rule 805
4. Residual Exception: Rule 807
D. Evidence Dealing with the Credibility of a Witness: Rule 607, 608, 609, 610, 613

II. Competency
A. Lay Person
1. Competency—who can serve as a witness
General Rules: Rule 601-602
Competency of Judge as Witness: Rule 605
Competency of Juror as Witness: Rule 606
2. Credibility of Declarant of Hearsay Exceptions: Rule 806
B. Experts: Rules 702-705

III. Authentication – Condition Precedent to Admissibility, See Rules 901-903

Run through for exam questions:
Opinion Testimony
Notice (judicial notice).


FRE 401. A piece of evidence is relevant if it has any tendency to make the existence of any fact of consequence to the case more probable or less probable than it would be without that piece of evidence.

Two aspects of relevancy: 
(1) The proffered piece of evidence must logically tend to prove the fact that it is offered to prove.
(2) The evidence must be offered to prove a fact that is material to the case.
Direct v. Circumstantial Evidence
Direct – proves a consequential fact directly
Circumstantial – requires factfinder to draw inferences from the evidence in order to conlclude that some consequential fact exists.
CONDITIONAL RELEVANCY – Relevancy of proffered evidence depends on the existence of another fact that has not yet been proved. A court will admit such evidence either (a) upon the introduction of evidence sufficient to support a finding of the existence of the other fact or (b) subject ot the intro of such evidence (SEE FRE 104(b)).

Two Basic Reasons for Excluding Relevant Evidence
(a) Extrinsic Social Policies
(b) Exclude because would lead to less accurate factfinding.
FRE 403 (Discretionary Exclusion) – Requires the court to exclude relevant evidence when its probative value is substantially outweighed by countervailing concerns such as the danger of unfair prejudice, confusion of issues, or misleading the jury, or by considerations of judicial efficiency (such as undue delay or presentation of cumulative evidence.
Evidence is more likely to be found to be probative, under 403, if it is the only piece of evidence that tends to prove a fact, whereas it is less likely when the introduction of such evidence is only in addition to a number of other pieces of evidence tending to prove that fact.
Reasons to exclude evidence?
Unfairly Prejudicial? Evidence is considered UP where it tends to appeal to the jury’s sympathies or otherwise lead it to decide the case on an emotional basis.
Confusion of the issues? Jury won’t know properly address the facts of the given case.
Misleading the Jury? Concern – jury will place to much weight on certain evidence (i.e. a polygraph).
Generally, courts are hesitant to admit evidence of certain past events/transactions outside of the present dispute, but under certain exceptions they will admit the evidence.
Prior or subsequent accidents – If similar enough, they will be admitted to prove negligence.
Contracts or dealings to prove terms (only other Ks between parties will be used to prove terms).
Non-observations and non-occurrences – if the proponent can show that the event probably would have been observed if it had occurred, evidence of non-obs will be admissible.

FRE 407. Subsequent Remedial Measures. The rule applies only when a party seeks to offer evidence of a (1) remedial measure (2) taken subsequent to the accident or injury that is the subject of the suit (3) for the purpose of proving negligence or culpable conduct.

FRE 407 (continued). SRM constitutes any measure that would have made the accident or injury less likely to occur if it has been in place before the accident or injury happened (i.e. repair, improvement, design change, change in procedure, or a policy change.
The SRM must have occurred AFTER the occurrence of the accident or event that allegedly caused the injury or harm. (i.e. A remedial measure taken after product’s purchase, but before the accident or event that caused the alleged injury is not a subsequent remedial measure.
SRM – Inadmissible to prove negligence or culpable conduct.
1997 AMD to 407 – provides that SRM is not admissible to prove a product defect, a design defect, or the need for a warning or instruction. However, many states still allow this evidence in products liability cases.
(1) To prove ownership or control – (if this is in dispute).
(2) Feasibility of precautionary measures – (if party disputes that there was not a way to make the product safer, SRM can be introduced to show that there was)
(3) Impeachment – (SRM can be used to impeach the opponent’s testimony)
Also, if the government forces SRM, the evidence may be introduced, but it doesn’t necessarily place culpability with those who took the SRM, because it was done at the behest of the government.

FRE 408. Compromises and Offers to Compromise (Settle). Evidence that someone offered to compromise a disputed claim or actually did compromise a disputed claim is not admissible to prove liability for or the invalidity of the claim or the amount of damages. RULE: Excludes evidence of (a) compromise or an offer to compromise (b) a disputed claim (c) when offered to prove liability for the claim, the invalidity of the claim, or the amount of damages.

408 applies in these situations (and potentially many others): (1) when a P wants to offer evidence that D offered to settle a claim as a means of proving the D’s liability or the proper amount of damages: (2) when a D wants to offer evidence that P offered to settle a claim as a means of proving the invalidity of the P’s claim or the pr

where the accused offers
the character trait of the alleged victim (under Rule 404(a)(2), and the evidence
is admitted.
(2) Character of the Alleged Victim, if: (a) the evidence is offered by the
accused and is pertinent; or (b) the evidence is offered by the prosecution to       
rebut character evidence offered by the accused; or (c) Homicide Cases – If
the evidence is: (i) offered by the prosecution, and (ii) of the peacefulness of
the alleged victim of a homicide, and (iii) used to rebut evidence that the
alleged victim was the aggressor.
(3) Character of the Witness (see FRE 607, 608 and 609).
(b) Admissibility of Evidence of Other Crimes, Wrongs, or Acts.
1. Evidence of a person’s other crimes, wrongs, and acts is NOT ADMISSIBLE to prove that
person acted in keeping with that character.
a. Such evidence may be admissible for other purposes, such as proof of:
1. Motive
2. Opportunity
3. Intent
4. Preparation
5. Plan
6. Knowledge
7. Identity
8. Absence of mistake or accident
b. Requirement (in a criminal case): Upon request of the accused, the Prosecution must
provide reasonable notice of the general nature of the evidence, either (i) before trial
or (ii) during trial, if the court excuses pretrial notice on good cause shown.

Generally, character evidence is inadmissible to prove that in some criminal charge the defendant acted in conformity with his character. However, FRE 404 does not bar the use of the character evidence when it is being offered as circumstantial evidence of something other than conduct.
Under 404, character is admissible if it is itself an element of a claim or defense. The following are examples:
1.      Negligent entrustment or hiring (i.e should have known person’s bad character).
2.      Defamation – Truth as a Defense (i.e. you really are a bad person).
3.      Entrapment
4.      Mental condition or competency