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West Virginia University School of Law
McDiarmid, Marjorie A.

Evidence Outline
Evidence is filled with intricate questions and problems. 
5 major topics:
documentary evidence (writings, authentication)
witnesses (competency, opinions, expert, impeachment)
hearsay (including exceptions)
Emphasis on the federal rules of evidence; they represent national mainstream evidence law. The rules are easy to learn, but you’re only halfway there; you have to be able to apply the rules to specific factual patterns. 
I. Relevance
-Relevance should be the starting point; all other pieces of evidence hinge on this. Spend at least one sentence on the exam on relevance. It determines all other rules of evidence. 
2 categories
logical: If it has any tendency to make a material proposition (more or less likely), it is logically relevant; does it help at all? If yes, it is logically relevant. 
      Federal rule 401
      The only time you worry about logical relevance is whether it concerns a different time,       person, or event; it may be too distant to be relevant.
discretionary (pragmatic, policy): this is a stricter standard of admissibility. You might keep it out because its probative value is outweighed; ex. Misleading jury, prejudice. The trial judge has the authority to exclude logically relevant evidence if its value is outweighed. 
      Federal Rule 403: almost applicability in all evidence law. Could always say that it is       admissible, at the court’s discretion. 
Evidence courses are structured around these two questions.
            A. Logical Relevancy: There are at least 8 situations that are exceptions to the logical             relevancy concerns (it will be admissible):
to prove complicated issues of causation (McDonald’s example of bad meat; you can show what happened to other people, and that can be evidence of causation)
prior accidents or claims (usually in a torts or products liability context); A: situation where the defendant wants to show the prior acts of the plaintiff (generally not admissible w/two exceptions (a) prior claims were fraudulent, (b) if the prior accidents are relevant to the damages claimed by the plaintiff (ex: prior injuries); B: sometimes the plaintiff wants to expose the defendant (ex: show similar accidents under same instrumentalities, means that people had notice, and that it is a defective or dangerous condition). 
where the intent or state of mind of a party is an issue (the conduct may involve other people/times/events). Ex: a sexual harassment case, find other female applicants. 
to rebut or to impeach: this is a principle of general applicability. Evidence becomes relevant because your opponent brings in evidence that allows you to use your evidence. Used to defeat the claim of impossibility. Ex: drinking some Coke, there is a mouse in the Coke, and their defense is “absolutely impossible.” Find another mouse in Coke. 
comparable sales to establish value: at issue is t

three rules:
liability insurance: liability insurance is not admissible to assume fault, nor is the absence of liability insurance admissible. But, if liability insurance is relevant to another aspect of the case, then it may be admitted. 2 situations:
A.     to prove ownership and control when that is in dispute. 
B.     where it is relevant to impeach the credibility of a witness by showing interest, bias, or to exaggerate. This has general applicability. One of the favorite exam scenarios of law professors is to take an area that isn’t admissible but to construct the facts so that the evidence which usually is not admissible so that it turns out to be relevant that someone who is testifying has a stake in the outcome of the case. But in this case, the normally non admissible evidence would be admissible to impeach the witness. 
subsequent remedial measures: The basic rule is that they are not admissible to show negligence or culpable conduct. It isn’t non-admissible because of lack of logical relevance. It is admissible because you want to encourage people to make repairs, to make the product safer. It is in the interest of public safety. But there are exceptions: