EV 1

Question 1

What are the 4 bases of evidence?

Answer 1

1. Materiality - Is evidence offered for a proper purpose?
2. Probative value - Does evidence help to prove point for which it is offered?
3. Form - Does evidence clear all formalistic hurdles such as hearsay, authenticity, best evidence rule, etc?
4. Prejudice or Harmful effect - Should evidence be excluded because its admission would cause prejudice or other harmful effect?

Question 2

Explain each of the 4 bases of evidence:

1. Materiality -
2. Probative value -
3. Form -
4. Prejudice or Harmful effect -

Answer 2

1. Materiality - Is evidence offered for a proper purpose?
2. Probative value - Does evidence help to prove point for which it is offered?
3. Form - Does evidence clear all formalistic hurdles such as hearsay, authenticity, best evidence rule, etc?
4. Prejudice or Harmful effect - Should evidence be excluded because its admission would cause prejudice or other harmful effect?

Question 3

What are the 4 types of Evidence?

Answer 3

1. Testimony
2. Writings
3. Other Forms of Real evidence (any tangible thing that was involved in the transactions at issue in the trial)
4. Demonstrative evidence (something that was created for illustrative purposes at trial, and that played no roles in the events or transactions at issue in the trial)

Question 4

What settings do the FRE apply?

Answer 4

–Trials
–Not applied as strictly (if at all) in hearings such as sentencing hearings, suppression hearings, preliminary hearings, etc.
–Not applied in grand jury proceedings

See FRE 1101

Question 5

What is the 401 test for Relevant evidence?

Answer 5

Evidence is relevant if:

a - it has any tendency to make a fact more or less probable than it would be without the evidence; and

b - the fact is of consequence in determining the action

Question 6

What is the 1 sentence breakdown of the 401 rule for Relevant evidence?

Answer 6

Evidence is relevant if it has probative value about a material matter.

Question 7

If Bob is in a grocery store and then slips on a puddle of water, but then a half-empty bottle of whiskey rolls out of his pocket.

Is the whiskey bottle falling out of his pocket relevant/admissible evidence?

Answer 7

Yes, because it might be used to show that he was intoxicated at the time and could be used to show contributory negligence or comparative fault.

Question 8

What is the rule from 402 on the General Admissibility of Relevant evidence?

Answer 8

“Relevant evidence is admissible unless any of the following provides otherwise:

o the United States Constitution;

o a federal statute;

o these rules; or

o other rules prescribed by the Supreme Court.

Irrelevant evidence is not admissible.”

Question 9

What is the one sentence breakdown of 402 rule on general admissibility of relevant evidence?

Answer 9

Relevant evidence will generally be admitted unless prohibited by the Constitution, statute, or FRE, but irrelevant evidence will never be admitted.

Question 10

What is the 403 rule on Excluding relevant evidence for prejudice, confusion, waster of time, or other reasons?

Answer 10

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

-unfair prejudice
-confusing the issues
-misleading the jury
-undue delay
-wasting time
-needlessly presenting cumulative evidence.

Question 11

Finish the rule - -

Rule 403 - The court may exclude relevant evidence if its ____________ is ________ ___________ by a danger of one or more of the following:

–___________
–___________
–___________
–___________
–___________
–___________

Answer 11

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:

-unfair prejudice
-confusing the issues
-misleading the jury
-undue delay
-wasting time
-needlessly presenting cumulative evidence.

Question 12

What is the one sentence breakdown of rule 403 Excluding relevant evidence for prejudice, confusion, waste of time, or other reasons?

Answer 12

If the danger is equal or only a little more than the probative value, the evidence should be admitted.

Question 13

What is a motion in limine?

Answer 13

requests the court to make an evidentiary ruling before trial.

These rulings may be revisited by the judge at trial, but parties will frequently structure their litigation strategy around a court’s ruling in limine.

Question 14

What is rule 105 - Limiting evidence that is not admissible against other parties or for other purposes?

Answer 14

If the court admits evidence that is admissible against a party or for a purpose - but not against another party or for another purpose - the court, on timely request, must restrict evidence to its proper scope and instruct the jury accordingly.

Question 15

What is the 1 sentence breakdown of Rule 105 - limiting instruction?

Answer 15

If an out-of-court statement is admissible for one purpose but not another, under FRE 105, the objecting party is entitled to a limiting instruction telling the jury the proper purpose and the forbidden purpose

Question 16

What are the 6 steps in the Relevance Checklist?

Answer 16

o Step 1. Does the evidence proffered have any tendency at all to make a material fact more or less likely?

 If Yes: The evidence is relevant under FRE 401 and the judge should weigh the admissibility of the evidence under FRE 403. Go to Step 2.

 If No: The evidence is not relevant under FRE 401 and should not be admitted.

o Step 2. In setting out the factors for the Rule 403 balancing test, determine how much probative value the piece of evidence has standing alone. Go to Step 3.

o Step 3. Is there alternative evidence in the case that proves the proposition in question in a less prejudicial manner?

 If Yes: The probative value of the evidence is diminished by the availability of other evidence on the same point. Go to Step 4.

 If No: The probative value of the evidence is arguably enhanced. Go to Step 4.

o Step 4. In setting out the factors for the Rule 403 balancing test, consider the unfair prejudice, confusion, distraction, or waste of time that the evidence might generate. Go to Step 5.

o Step 5. Are the Rule 403 “dangers” diminished by a limiting instruction under FRE 105?

 If Yes: Discount the unfair prejudice in conducting the Rule 403 balancing test. If the evidence is ultimately admitted, use a limiting instruction. Go to Step 6.

 If No: Go to Step 6.

o Step 6. Conduct the Rule 403 Balancing Test: Does the unfair prejudice, confusion, distraction, or waste of time substantially outweigh the probative value?

 If Yes: The evidence is excluded.

 If No: The evidence is admissible subject to other rules (e.g., character evidence, hearsay, etc.).