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Wayne State University Law School
Mann, Lawrence C.

To remember:


If hearsay, is it an admission?

Does it also satisfy 6th Amendment Confrontation Clause issues?

If the Defendant opens the door for character evidence, P may rebut!

Establish foundation

Policy arguments for/against rule/interpretation

Limiting instructions


For what purposes is this evidence being offered? Relevant? Is there some rule of exclusion that would keep this evidence away from finder even if relevant?
Is there some other reason why it doesn’t come in?
Article 5 (the privileges)?
Lack of personal knowledge?
Article 7?
Is there some exception this falls into?
If we can make it through these hurdles, then admissible

General provisions

FRE 103…Rulings on evidence

On appeal, to be reversible, error must have affected a substantial right of the party

Subject to abuse of discretion standard

FRE 104…preliminary questions

(a) Predicates for exclusionary rules of evidence…judge

Whether foundations have been satisfied such that the evidence can come in

Not necessary if no one objects!!…judge not required sua sponte to do this

Administer the elements of evidence

Jury doesn’t even get to hear this debate whether this evidence is in or out

Burdens of proof judge questions

The standard that the judge employs is preponderance of the evidence

Then the evidence comes in or is excluded

After the evidence comes in, it doesn’t stop opposing counsel from arguing that the info was incredible

It’s not as if the jury doesn’t have the role, it’s just that the court is the initial filter

In making the determination, the rules of evidence DO NOT apply

Judge can evaluate hearsay, including the statement that’s being offered itself

(b) predicates for conditionally relevant evidence…jury

Authenticity is typically a 104(b) issue, as is chain of facts/custody

Relevance conditioned on proof of predicated fact

e.g. was present and heard statement

Does this link w/crime?

Protects the right to trial by jury

It’s the jury that decides issues of fact in our jurisprudence

If our judge were to make the decisions by himself, then the jury would not hear facts of the case

Standard here is different, proponent of the evidence simply has to put in sufficient facts to support a finding

Could a reasonable juror find in favor of the fact?

Reduced standard…is the evidence sufficient to find fulfillment of the condition?

Chain of custody questions for jury

More likely to let evidence in if it’s a jury question

FRE 105…limited admissibility

When evidence is admissible for one use but not for another, the court upon request can instruct the jury to restrict evidence for the permissible use

FRE 106…remainder of or related writings/recorded statements

Rule of completeness

In certain cases, the need for completeness will trump the exclusionary rule

Rule pr

Has to really be a lot and have to call other witnesses for this to be an issue

Time wastage

Undue delay

Danger of unfair prejudice

Bias fact finder

Overvalued by fact finder

Juries tend to over-discount hearsay evidence

Consider both relevance AND weight of evidence


FRE 405…Methods of proving character

Whenever proof of a character trait is allowed, the FRE let that proof be by either reputation or opinion testimony (FRE 405(a))

Foundation must still be laid for character evidence

Can be done w/opinion or reputation

Evidence of character coming in on specific issues (FRE 405(b))

Can come in when character is said to be at issue…when essential part of claim, charge or defense

Cross-ref w/FRE 404

A person’s general character, or his particular character trait, IS admissible if it is an essential element of the case (libel, negligence, entrapment, defamation, etc.)