Check for HEARSAY in EVERY QUESTION!!
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!
Policy arguments for/against rule/interpretation
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?
Is there some exception this falls into?
If we can make it through these hurdles, then admissible
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
Has to really be a lot and have to call other witnesses for this to be an issue
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.)