EVIDENCE OUTLINE FALL 2021
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Understand the role of evidence in our judicial system;
Be able to read evidentiary fact patterns, spot evidentiary
issues, state relevant rules, & apply the rules to reach a
well-reasoned conclusion in writing;
Be able to answer MC questions; and
Have practiced making oral objections, arguing for &
against objections & ruling on objections.
INTRODUCTION
I.
Types of evidence
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
II.
Oral Testimony
1.
Fact Witnesses: ppl who perceived facts related to the lawsuit & testify
about those facts.
2.
Expert Witnesses: use specialized knowledge to interpret evidence or
explain it to the jury.
3.
Character Witnesses: do not testify about facts directly at issue in the
lawsuit.
Real Evidence
Documents
Demonstrative Evidence
Stipulation
Judicial Notice
Photographs & Videos
Evidence in Action
Circumstantial Evidence:
1. any evidence that requires the jury to make an inference connecting the
evidence with a disputed fact.
Direct Evidence:
1. requires no inferential bridge; it directly establishes a contested fact.
Four W’s of FRE: Why, Who, Where, When
a.
Why?
1.
to protect the jury from misleading info.
2.
to eliminate unnecessary delay & promote efficiency.
3.
to protect a social interest, such as confidential relationship.
4.
to ensure that evidence is sufficiently reliable.
b.
Who? Legislative history illuminating the FRE comes from 2 diff sources:
1.
Notes written by the Advisory Committee
2.
Committee Reports & other legislative history from Congress
c.
Where? Where do the FRE rules apply?
1.
Rule 101 Scope; Definitions: rules apply to proceedings in US courts. The
specific courts & proceedings to which the rules apply, along with
exceptions are set out in 1101.
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2.
e.
Rule 1101(a) Applicability of Rules: apply to proceedings before: US
district courts; US bankruptcy & magistrate judges; US court of appeals;
US fed claims; and district courts of Guam, Virgin Islands, & N Mariana
Islands.
When?
1.
Rule 1101(b): these rules apply in: civil cases & proceedings, including
bankruptcy, admiralty, & maritime cases; criminal cases & proceedings;
and contempt proceedings, except those in which the court may act
summarily.
2.
Rule 1101(d) Exceptions: these rules – except for those on privilege – do
not apply to the following:
i. the court’s determination, under rule 104(a), on a preliminary question
of fact governing admissibility;
ii. grand-jury proceedings; and
iii. misc. proceedings such as extradition or rendition; issuing an arrest
warrant, criminal summons, or search warrant; a preliminary examination
in a criminal case; sentencing; granting or revoking probation or
supervised release; and considering whether to release on bail or
otherwise.
RAISING/RESOLVING
EVIDENTIARY OBJECTIONS
I.
Disputing & Defending Evidence:
a.
Rule 103 outlines the process that parties use to dispute & defend evidence at
trial. It outlines the procedural steps that an attorney must take at trial before a
reviewing court will even consider the attorney’s evidentiary objections on
appeal.
1.
Three important points 103(a)(1) about challenging evidence:
i.
the rule establishes two mechanisms for disputing evidence at trial:
(1) by objection; (2) by a motion to strike.
ii.
requires parties to challenge in a timely manner. Does not define
timeliness, understood in practice: Lawyers must object to
evidence as soon as the ground for objection is known or
reasonably should be known.
iii.
103(a)(1) requires trial lawyers to state “the specific ground” for
any objection. The specificity requirement gives both judges and
opponent notice about the basis for an objection.
2.
Rule 103. Preserving a Claim of Error.
i. Preserving a Claim of Error: each party may claim error in ruling to
admit or exclude evidence only if:
(1) If the ruling admits evidence, a party, on the record:
(a) Timely objects or moves to strike; AND
- Object: before the evidence emerges.
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-
Move to strike: if the evidence has already entered
the record.
**Difference here is timing.
Timely: raise objection/ motion to strike as soon as the ground
for the objection is known or reasonably should be known.
(b) States the specific grounds, unless it was apparent from the
context. -- Raise ALL specific grounds for any given
objection, only the raised grounds will be preserved for
review & a claim of error.
(2) If the ruling excludes evidence, a party informs the court of its
substance by an offer of proof, unless the substance was apparent
from the context. -- Request the court to make an offer of proof,
which should provide the judge with the information necessary to
rule promptly on admissibility (describes the evidence). An offer
of proof also provides a record for appellate review - the jury is
not present for an offer of proof, it can be in question & answer
form.
ii. No need to renew an objection or offer of proof: if the court has ruled
definitely on the record (either before trial as a motion in limine or at
trial as an objection or motion to strike). -- *Rule could be different in
state court.
iii. Preventing the jury from hearing inadmissible evidence: the court must
conduct the jury trial in a way that inadmissible evidence is not
suggested to the jury by any means. -- and object in a way that
prevents the jury from hearing the inadmissible evidence.
-- Curative instruction: judge can instruct the jury to disregard
inadmissible evidence that inadvertently reaches the jury’s hears (often in
addition to counsel’s motion to strike from the record).
iv.
Taking Notice of Plain Error: the court may take notice of a plain
error, that affects a substantial right of a party, even if the claim
of error was not properly preserved.
-- Substantial right: reasonable probability that, if the judge rules
correctly, the outcome of the case would have been different.
*Most evidentiary “missteps” are harmless errors, not reversible
errors. “Would seriously affect the fairness, integrity or public
reputation of judicial proceedings if left uncorrected.”
b.
Rule 105. Limiting Evidence (for party or purpose)
1.
If the court admits evidence against a specific party or for a specific
purpose (but not against another party or for any other purpose), the court
on timely request must restrict the evidence to its proper scope and instruct
the jury accordingly. -- Give a limiting instruction and explain to the jury
that the evidence may only be used for certain purposes, and not others.
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RELEVANCE
I.
Rule 402
a.
Rule 402. Relevant evidence is admissible, unless provided otherwise. (statute,
privilege, etc.).
II. Rule 401 Test for Relevance
a.
Rule 401 Evidence is relevant if:
1.
It has any tendency to make a fact more or less probable than it would be
without the evidence; AND
The fact is of consequence in determining the action.
-- Of consequence: depends on the legal theories of the case, must be
connected to legal issues/ legal theories of the case to be “relevant.”
*BUT court can reject a party’s legal theory, thereby making certain
evidence irrelevant.
**Irrelevant evidence can become relevant to rebut claims made by
another party - “opening the door”; essentially creating a new fact of
consequence.
Hackbart: evidence for proof of character of plaintiff is only relevant (otherwise
collateral) if the plaintiff’s character is an issue in the case - not an issue in a tort
case, therefore, not admissible or relevant.
2.
III.
Prejudice – Is the evidence relevant… but prejudice?
a.
Rule 403 Prejudice, Confusion, Waste of Time. (geared toward admission of
evidence; liberal)
1.
Court may exclude relevant evidence if its probative value is substantially
outweighed by a danger of:
- Unfair prejudice;
Undue tendency to suggest decision on an improper basis
(commonly an emotional one). *Not “unfair surprise” discovery accounts for this.
- Confusing the issues or misleading the jury;
- Undue delay, wasting time, needlessly presenting cumulative
evidence.
2.
Unfair prejudice and probative value must be weighed based on the full
evidentiary record - alternative evidence availability affects the Rule 403
balance.
3.
FACTORS:
- Extent evidence will arouse emotions or irrational prejudices. -- Exclude if
it triggers a strong emotional reaction without adding any additional
information.
- Extent the jury will overvalue the evidence -- give undue weight to it or
decide on unrelated/ improper grounds.
- Strength of the connection between the evidence and the elements of the
case.
- Whether the advocate can prove the same facts through less prejudicial or
confusing means -- alternative means of proof.
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Possibility to reduce prejudice or other harm from introducing the
evidence -- maybe redact certain components of the evidence.
Old Chief v. United States: only forced to accept admission instead of live testimony if
the probative value of the testimony is extremely low. *Probative value of an eyewitness
will always be extremely high.
IV.
Subsequent Remedial Measures – Is the evidence relevant… but a subsequent
remedial measure? **only applicable if proving fault.
a.
Rule 407 Subsequent Remedial Measures when measures are taken that would
have made an earlier injury or harm less likely to occur, evidence of the
subsequent remedial measure is inadmissible to prove:
- Negligence;
- Culpable conduct;
- Defect in product/design (strict liability suit);
- Need for warning/ instruction (strict liability suit).
1. Measure: anything the defendant does to minimize future risks to
future plaintiffs; e.g. taking products off the market, recalls, policy
changes, firing or disciplining an employee.
2. Remedial: fix, repair, remedy.
3. Subsequent: after the plaintiff was injured -- not after purchasing the
product. (shields measures from after injury of specific plaintiff)
b.
Evidence of subsequent remedial measure MAY be admitted for purpose of:
1. Impeachment: narrow - if (1) witness makes a specific representation that
conflicts with the subsequent remedial measure; (2) the witness makes an
absolute declaration i.e. “product was perfectly safe”; OR (3) the witness
making the statement was personally involved in implementing the remedial
measure.
2. If disputed: proving ownership, control, feasibility of precautionary measures.
i. Feasibility exception: defendant claims the product could not be safer
or it is impossible due to economic or physical constraints to make it
safer, then the dispute opened the door to admissibility of the
subsequent remedial measure (the subsequent remedial measure shows
that it was not impossible).
ii. Defendant denies ownership: this is a dispute and opened the door to
admissibility of the subsequent remedial measure to prove ownership
and control.
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1. Is the evidence a subsequent remedial measure?
2. Was the measure taken by a party to the lawsuit?
a. If NO, Rule 407 is not applicable. (Not applicable to subsequent
remedial measures of non-parties)
3. Is it being used to show fault?
a. If YES, prohibited.
b. If NO, is it being used to show ownership/ control/ feasibility that the
defendant disputed? OR is it being used to impeach the witness (specific
representations/ declarations/ involvement)?
i.
If YES, then an exception applies and it is admissible.
**Rur00le 403 (Prejudice) may still be used as a final back-up to keep the evidence
out. *Argue evidence of the subsequent remedial measure is prejudicial:
substantially outweighed by its probative value.
V.
Compromise, Offers & Negotiations – Is the evidence relevant… but compromise
offers and negotiations? **only applicable if proving fault
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