Evidence Flashcards
FRE 103
Rulings on Evidence
Objection!
you can preserve an objection for appeal only if the error affects a substantial right of the party and if:
1. the ruling is admitted
* you must timely object and state the reason
- the ruling excludes
* a party informs the court of its substance by an offer of proof
Sometimes it is so obvious, saying objection is enough and you dont need to state reason
What does it mean to [affects a substantial right] of the party = Aka the HARMLESS ERROR RULE
* Must affect a ‘substantial right’ i.e., have caused harm, or have impacted case outcome
* you are entitled to a fair trial not an error free trial
Offer of proof?
* If were my expert were allowed to testify, he would say X
Relevance
Rule Statement
Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than the fact would be without the evidence
* All evidence is admissible unless a rule says otherwise.
* Irrelevant evidence is not admissible.
Relevance
Application
Evidence → Fact of Consequence → Element/Witness Credibility
* A Fact of Consequence is a fact that goes to a legal element, meaning it is going to impact the outcome or a fact that goes to witness credibility
403
Rule Statement
The court may exclude relevant evidence if its probative value is substantially outweighed by one or more of the following danger(s):
* Unfair Prejudice
* Confusing the Issues
* Misleads the jury
* Undue Delay
* Wastes Time
General balancing test
* Balance the evidence’s probative value against the possible dangers (to accuracy or efficiency) of admission
* Dangers 1-3 = accuracy of the fact finding process
* Dangers 4-6 = the progression of trial
403
in General
Opponent of the evidence may “open the door”
* For example, character evidence may have an improper use; however, when it meets an exception, you are opening the door and thus taking away the danger
Mitigating unfair prejudice = Emotional response; improper use
* Redact
* Limiting Instruction
403 error
* 403 error will be reviewed under a ~highly deferential~ abuse-of-discretion standard
403
Probative Value?
How persuasive is the evidence on a fact of consequence?
Strength of inferences between item of evidence and FOC (generalizations underlying the inferences)
* Primary measure of probative value
* Is it a generalization that most people believe (i.e. gravity) or is it something more like “rich people drive nicer cars than poor people”?
Certainty of starting point → how certain and unambiguous the piece of evidence / witness is
* Length of chain of inferences does not determine how certain
* This is NOT witness credibility, this is for the fact finder to decide
Need: Does it go to a……
* Central Issue? Is the factual issue that this evidence goes to, does it go to a central factual issue?
* Disputed issue?
* Little/no other available evidence on this point → what else could be offered on this point? Must it be this piece of evidence? Do you really need it?
example of central issue
* Ex: In an unpaid wages case, pay rate would be central
Need can include: telling a believable, compelling story (old chief)
403
Dangers
1 - 3 = accuracy of the fact finding process
Unfair Prejudice → Two types
* Emotional Response → Evidence about a party can trigger a response (positive or negative) that will interfere with logical fact finding (i.e. emotions, prejudice, undue sympathy, consciousness of guilt) or
* Improper use → the danger of the jury using evidence properly even if there is a valid purpose for the evidence goes against other evidence rules (i.e. impermissible character evidence like previous prison sentence)
Confusing the issues → When the jury gets distracted by a collateral issue; too much focus from something far away from the central dispute
* Does it take away from the central question? Are we going to end up with a mini trial on x issue?
Misleads the jury → Risk that the evidence will cause the jury to draw a mistaken inference
* Jury likely to draw mistaken inference or to overvalue the offered evidence
403
Dangers
4 - 6 = the progression of trial
(4) Undue Delay, (5) Waste of Time, & (6) Needlessly Cumulative
* Evidence would unnecessarily prolong the trial, evidence is repetitive, or the evidence adds little to no new information
Examples
* The prosecution calls a medical examiner to testify about the victim’s cause of death. Then the prosecution calls another medical examiner to corroborate the first witnesses conclusion
* A court preventing a defendant from calling 8 character witnesses who will testify to the same thing
105
Limiting Instruction
If the court admits evidence that is admissible for [one] purpose – but not for another purpose
* the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly
Opponent of the evidence needs to object if they want the limiting instruction
Standards of Review
ESSF
Evidence Sufficient to Support a Finding
A reasonable jury could find by the preponderance of the evidence that X
104(a)
Preliminary Fact Questions
Foundational Questions
When the admission of an item of evidence depends upon establishing a “foundation fact” or element,” the judge is not bound by FRE
* Judge’s standard = preponderance of evidence (>50%)
104(b) Relevance That Depends on a Fact.
* When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
Example
* P wants to put on Witness to testify that on the evening of the accident Witness was at a restaurant and overheard a woman saying, “I cannot believe I hit little Paul. I should definitely stop drinking on the job.”
* We have a missing fact, who is the woman. Thus, you must prove the woman = bus driver
* You have to put on ESSF that the speaker was the driver
Foundation
Personal Knowledge
if the “piece of evidence” comes from witness testimony
The proponent of a witness must put on ESSF that the witness perceived with their 5 senses what they are testifying to.
A witness’s own testimony describing that they saw/heard.etc. will suffice.
Note → even if you have brain damage and no memory, you still have personal knowledge that you do not remember
Example
* Witness claimed to see incident from slim crack in cell door; judge reviewed diagrams of prison cells and found it was impossible for witness to have observed from there
Foundation
Competency
ORAT
if the “piece of evidence” comes from witness testimony
Witnesses are presumed to be competent unless there is reason to
doubt one or more testimonial qualities
- capacity to observe,
- ability to remember,
- ability to relate information accurately,
- ability to tell the truth.
ORAT
Foundation
Rule
If the piece of evidence is an exhibit
Any physical or documentary evidence must be properly
authenticated.
Proponent needs to get a witness with knowledge to show ESSF that the exhibit is what it is purported to be (low bar).
* extrinsic evidence
Some exhibits may also be self authenticating = When the item is so likely to be genuine, you don’t have to call a witness with knowledge
* newspapers, certified copies of public records (sealed)
After, the other side can object to admission to evidence via contrary evidence or argue foundation evidence is not ESSF.
Best Evidence Rule
trying to prove the CONTENTS of an exhibit
Is it implicated?
- Examples of when you know BER is implicated: The photo showed,” “The recording contained,” “The voicemail told me”
Original or duplicable (mechanical copy that looks okay) is required UNLESS they have a good reason (not in bad faith) as to why they can’t and they can’t use the judicial system to get it (i.e. via a subpoena).
Summary of voluminous writings allowed as long as other side is given fair opportunity to review underlying docs
If original or duplicate was lost in good faith and not obtainable by judicial process → SECONDARY EVIDENCE IS ADMISSIBLE (i.e., witness can testify to the writing’s contents or can recreate the contents)
examples:
* texts
* showing route you took on an apple watch (from practice exams)
* offering a contract
* when you use notes (i.e a medical record) and then offer them to prove TMA
* scuba company came in and said we had a contract, this is what it said, I saw her sign it, here’s what the terms were, I don’t have the original or the duplicate
* If the expert is testifying about the content of their report, like “I wrote a report about plaintiff’s injuries and here is what my report said”
Theories of Relevance
- to show accordance with character trait on this. particular occasion
- animosity
- motive
- identity (signature crime)
- lack of accident
- consciouness of guilt
- Truth of matter asserted
- state of mind
- cause of an injury
- impeachment
