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43 Cards in this Set
- Front
- Back
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FRE 101 – Scope; Definitions:
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a) Scope. These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.
(b) Definitions. In these rules: (1) “civil case” means a civil action or proceeding; (2) “criminal case” includes a criminal proceeding; (3) “public office” includes a public agency; (4) “record” includes a memorandum, report, or data compilation; (5) a “rule prescribed by the Supreme Court” means a rule adopted by the Supreme Court under statutory authority; and (6) a reference to any kind of written material or any other medium includes electronically stored information.
b) FRE apply in fed. proceedings; copied by majority of states, w/ some variation among states in specific provision |
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FRE 102 – Purpose
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These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.
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FRE 103 – Rulings on Evid |
1. Party must object to Ct. ruling to preserve an evid. appeal
a) protects against a party that might tolerate an incorrect ruling in the hope of obtaining a favorable trial, but then seek reversal on the evid. ground if the result is unfavorable.
b) the offer of proof req. is intended to assist trial ct. in making evid. rulings, since it guarantees that the trial ct. w/ have a clear idea of the offered evid.
2. Evi. can’t be assigned as error unless a substantial is affected, AND a) the error is called to the attention of the J.
3. Admit Evid. – must be object if disagree
4. Exclude Evid. – must make known the substance of the evid. by “offer and proof” if disagree |
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Direct vs Circumstantial |
Result: It turns out that thereis no real difference between direct and circumstantial evidence. Both canpoint to a different or incorrect direction.
1. POLICY: Our system candetermine truth tellers v. liars, but our system cannot determine if somethingis a false positive. Should we include this in our jury instruction? Would thateven change anything?
i) Peopletend to believe eyewitnesses over DNA evidence. Why? Because people want topick a criminal. 0 |
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Direct v. Circumstantial Evidence: Direct |
1. Does not require any inferences fromit to be relevant. If believed, it automatically resolves the issue.
2. Ex: A sees B shoot C
3. Direct evidence is obviously better.
4. Once you have direct witnesstestimony, everything else is pushed back and you don’t have to ask the hardquestions. People will overlook that because of the direct witness testimony.
5. Generally no issue of logicalrelevance with direct evidence |
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Direct v. Circumstantial Evidence: Circumstantial |
1. Requires an inference from it to berelevant. If believed, does not resolve the issue unless additional reasoningis used.
2. Ex: A sees B with a smoking gun andC dead on the ground.
3. This is tricky, because it could point to the wrong thing if you tweak your perspective on things.
4. Ex: B is a federal agent trying totrack C’s killer. 5. Relevancy may be at issue |
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Relevant to what? |
1. Relevancy is not a scientific question; logical question. Even if science req. higher level of reliability, it’s ok for us
2. Make Distinctions b/w Subtle Aspects: a) Logical Relevance v. Materiality b) Direct v. Circumstantial Evidence c) Facial v. Underlying Logical Relevance |
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Logical Relevance |
Logical Relevance of a piece of evid. depends on rational connection b/w fact and what is sought to be (dis)proved: ---Deductive (mathematical reasoning), ----Inductive (observations applied to similar items), -----Abductive (plausible explanations) ***Relevancy is not inherent,it exists as a relationship ***If an item decreases orincreases the probability, no mater how slight, it is relevant. |
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FRE 401 – Test for Relevant Evidence |
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. 1. Is this evid. relevant? If yes move on to FRE 403. 2. Relevancy: Evid. is relevant if it has “any tendency to make the existence of any fact that is of consequence to there determination of the action more probable or less probable than it would be w/o the evid.” |
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Materiality |
Materiality (“of consequence”) 1. Fact is of consequence in determining the action – it is one of the contested issues in the case.
2. An objection to relevancy would include both parts of this analysis.
– look at substantive & procedural law that governs the case - ask if it’s material and properly provable |
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To decide what is material: curative admissibility
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i) SubstantiveLaw
ii) Pleadings iii) Evidence that has beenintroduced to date at the trial iv) Curative Admissibility : Admission without rebuttal > cure > rebuttal evidence |
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3 way split of authority on the curative admissibility doctrine
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i) Do not recognize the doctrine
ii) Allowed when needed to remove unfair prejudice from opponents testimony iii) MOST: Permit rebuttal evidence ****Can we cure the prejudice caused by inadmissible evidence that we could have, but failed to object to? ***** Allows party to bringinadmissible evidence in response to inadmissible evidence in an effort to“cure” |
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Probative Value
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Probative Value (“any tendency”)
- relationship between the piece of evidence and the fact – the more facts you know, the higher the probative value of the evid.
(1) “a brick is not a wall” – relevant evid. doesn't have to prove the fact; doesn’t have to be sufficient, rather the evid. must make the existence of the fact more probable than it would be w/o the evid. (2) Chain of Inference – in assessing probative value, J. must determine what proposition the evid. is being offered to establish, and he must then follow the “chain of inference” b/w the evid. and that proposition. The more steps in the chain, the less probative value the evid. has. (3) Most litigation under evid. rules is made under FRE 403 b/c of broad definition of relevance – “any tendency.” Very little evid. doesn't have some probative value. |
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FRE 401 merges relevancy and materiality
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Analysis to determine logical relevance of evidence
i) Identify all material facts of consequence in the case, including preliminary, historic, and collateral facts. ii) Convince the judge that the item of evidence is logically relevant to the material facts. |
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FRE 402 – General Admissibility of Relevant Evidence: |
Relevant evidence is admissible unless any of the following provides otherwise:
• the United States Constitution; • a federal statute; • these rules; or • other rules prescribed by the Supreme Court. ***Irrelevant evidence is not admissible |
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FRE 403 – Excluding Relevant Evid (SuperRule) |
**SUPER RULE: because it can exclude evidence that surpasses all other admissibility standards **Rule generally weighs in favor of admissibility
****Ct. may exclude talking about the law; mainreason for no arguments in opening statement is b/c we believe too early for juries tostart formulating ideas |
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FRE 403 - Burdens |
1. Burden is on opponent; Reflects a bias favoring the admission of logically relevant evid., based on the assumption that the J. can reliably forecast the impact of an item of evid. on jurors.
2. J. doesn't impinge on juries right to weight credibility on the evid. 3. Opponent must be able to point to real dangers |
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Balancing Test: |
whether probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
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Unfair Prejudice/ Why rule exists
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Unfair Prejudice: Occurs when a fact finder might react to aspects of evid. in a way that is not supposed to be part of the evaluative process.
a) Could be emotional, but not always b) Usually an issue for the defense’s evidence c) This is why evidence of wealth is only okay when punitive damages are requested. d) Evidence is unfairly prejudicial when it tempts the jury to decide the case o an emotional basis. e) Note that surprise is not grounds for exclusion. Why 403: 1. Judge may fear that a jury will misuse an item of evidence as proof of another proposition. 2. Evidence may be unfairly prejudicial 3. Admission of the evidence may cause undue delay 4. Evidence may be needlessly cumulative (7 witnesses with the exact same testimony) 5. Called “legal irrelevance doctrine,” which gives the judge the discretion to exclude logically relevant evidence that realistically triggers these dangers. HOWEVER, All evid. is intended to be prejudicial to the party against which it is introduced (a party ordinarily avoids introducing evid. that is favorable to the opposing side). |
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Applying FRE 403: Determining the Probative Value of the Item of Evid
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(1) Look at patent flaws (facial vagueness or uncert.)
(2) Consider # of intermediate propositions b/w the item and the ultimate consequential fact to be proved; check the chain of inference (evidence is only as strong as its weakest probative link)
(3) Consider strength of the inference; see how necessary that inference is
(4) Are there other available means of proof (applicable only when exclusion for legal relevance is based on “unfair prejudice”)
(5) Don’t do it in a vacuum; look at other evid. |
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FRE 403: Assessing Probative Value |
1. Assess Probative Value: Not in a vacuum (Old Chief)
2. Identify countervailing dangers: Most common danger isunfair prejudice (Old Chief- name andtype of felony) 3. Perform balance test in rule: test weighs in favor ofadmitting evidence. Danger must be substantially outweigh the probative value.Clue: If the code says “may”, insert 403!! |
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Applying FRE 403: Identify the Countervailing ProbativeDangers; Strike a Balance b/w Probative Value andProbative Dangers |
Identify the Countervailing Probative Dangers -unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
GOAL: We want the jury to use evidence only as proof of the fact that the judge admitted the evidence to prove. Mis-decision: likely to tempt the jury to decide a case on an improper basis Strike a Balance b/w Probative Value and Probative Dangers - Cost/Benefit Analysis – standard based on if “the probative value is substantially outweighed” by countervailing concerns. |
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Recurring Issues Under FRE 403 |
a) Tangible Objects, Photos, & other Visual Evid.(1) “inflammatory” images meant to paint bad character commonly reviewed (violent, gruesome, weapons photos) b) Experiments & Tests(1) out-of-court experiments need to be “substantially similar” c) Exhibitions (1) Jury Views – taking the jury to visit the scene outside the ct.room. (2) Displays of a Person or Parts of a Body d) Demonstrations e) Day-In-The-Life Videos: These are very influential,but they have very low probative value. Likely to unduly influence the jury,BUT they are used in almost every personal injury case. Judges often do notallow them. f) sarcastic confessions g) math on probabilities |
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THE ROLE OF THE ATTORNEYS IN THE ADMISSION AND EXCLUSION OF EVIDENCE: Pretrial Motions to Admit or Exclude Evidence/ Motion in Limine |
1. motion in limine – to obtain an advance ruling admitting evid.; usually made made in J. chambers before trial a) trial J. generally has discretion whether to entertain a motion in limine; ct. caution that a trial --- J. should grant an in limine motion to exclude evid. “only when the evid. is clearly inadmissible on all potential grounds.” 2. motion to suppress – asserts cxl grounds for excluding evid.; ∆ must ordinarily assert cxl grounds for exclusion before trial under pain of waiver |
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Role of Attorneys: Offering Evid. at Trial |
1. Marking the exhibit and showing it to the opponent and W a) proponent atty may not reveal the contents of the doc prior to its admission (1) e.g. can’t refer to the doc. as “a letter signed by the defendant.” – in effect, this would amount to testifying though the atty is not under oath 2. The foundation or predicate a) refers to the testimony the proponent must introduce before offering any item of evid. b) certain items must be authenticated as a condition precedent to admission 3. The formal tender or motion for admission a) when proponent believes foundation is complete, the proponent formally tenders the exhibit into evid. b) signal to the opponent to make any objections such as hearsay or lack of authentication 4. The publication of the exhibit to the jury a) If ct. admits, atty may want to get exhibit into juror’s hands immediately; can also opt to wait and give later to not mess w/ testimony 5. The offer of proof a) FRE 103 “(a) preserving a claim of error. A party may claim error in a ruling to … exclude evid. only if the error affects a substantial right of the party and (2) if the ruling excludes evid., a party informs the ct. of its substance by an offer of proof, unless the substance was apparent form the context.” b) If J. sustains an objection to the tender of evid. proponent must make an offer of proof in order to preserve the issue for appeal.(1) no offer of proof, not preserved, waved, not at issue, not material |
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Role of Attorneys: Objections to Evid. at trial |
– if opponent waits until trial to object to admission of evid., three questions arise: 1. What procedural device may be used to assert the ground for excluding the ev?a) most common device is an objection(1) an objection is a challenge to the question itself; can raise contention that the question’s form is improper or the argument that the question calls for substantively inadmissible evid.(2) motion to strike, by comparison, challenges the W’s answer rather than the proponent’s question 2. When should the ground be asserted? a)should be “timely”; before the W answers; be careful to object to precise questions b) hearsay e.g. – “Did the driver say anything” (not hearsay), “What did he say” (hearsay) 3. How should the objection or motion be phrased? a) must be “specific”; has to specify:(1) the part of the question or answer the opponent is challenging (2) the party on whose behalf the objection is being asserted (3) the ground(s) on which it is based, namely, the evidentiary rule(s) being violatedb) e.g. “Your Honor, I object to the introduction of that letter for lack of authentication”; “…I object to the introduction of that copy on the ground that it is not the best evid.”; “…I object to that question on the ground that it calls for inadmissible hearsay.” |
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THE ROLE OF THE TRIAL JUDGE/ FRE 104 – Preliminary Questions
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Generally, J. should assume evid. is true and let jury decide for themselves
FRE 104 – Preliminary Questions (1) J. decides preliminary factual questions (qualification of W, privilege existence, admissibility); not bound by rules unless privilege exists a) a certain kind of evid. has a lot probative value, but still be inadmissible for other reasons b) third-party’s presence at an attorney-client conversation, which negates the privacy needed to attach. Assuming there was damaging information in that conversation, it shouldn’t be admissible to the jury. |
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Judges Deciding on FRE 104
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To decide, judge asks “is it at all possible? Is there proof sufficient that the jury could find the fact exists.”
Judge decides whether something is admissible under some exceptions.
Judge may rule on the preliminary fact, but this is only admissibility, not weight or probative value. Jury might come to a completely difference conclusion regarding the evidence.
Bourjaily v. United States (pg. 90): i) Who decides these preliminary questions? Parties agree that this is 104(a), so the judge decides them. ii) Issue is whether the evidentiary standard has been met. Does the proponent need to make the showing by independent evidence? iii) Boot Strap Rule: Must have independent evidence to prove something otherwise, the evidence may boot strap itself up. This creates an issue of circularity. |
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Role of Trial Judge: CEC 405 |
2. CEC § 405 – determination of foundational and other preliminary facts in other cases a) With respect to preliminary fact determinations not governed by Section 403 … :(a) When the existence of a preliminary fact is disputed, the court shall indicate which party has the burden of producing evidence and the burden of proof on the issue as implied by the rule of law under which the question arises. The court shall determine the existence or nonexistence of the preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises. (b) If a preliminary fact is also a fact in issue in the action: (1) The jury shall not be informed of the court’s determination as to the existence or nonexistence of the preliminary fact.(2) If the proffered evidence is admitted, the jury shall not be instructed to disregard the evidence if its determination of the fact differs from the court’s determination of the preliminary fact. (c) if relevancy (of evid.) is conditional on another fact that the jury must have, then evid. is admitted as long as the other fact is presented.a) Conditional fact questions are determined by the jury; a reasonable jury could find to be trueb) the Conditional fact is irrelevant if the preliminary fact is not foundc) J. will always control the order of proof |
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Role of Trial Judge: CEC 403 |
4. CEC § 403 – determination of foundational and other preliminary facts where relevancy , personal knowledge, or authentic is disputed
a)The proponent of the proffered evidence has the burden of producing evidence as to the existence of the preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: (1) The relevance of the proffered evidence depends on the existence of the preliminary fact; (2) The preliminary fact is the personal knowledge of a W concerning the subject matter of his testimony; (3) The preliminary fact is the authenticity of a writing; (4) The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself. (b) Subject to Section 402, the court may admit conditionally the proffered evidence under this section, subject to evidence of the preliminary fact being supplied later in the course of the trial. (c) If the court admits the proffered evidence under this section, the court: (1) May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence unless the jury finds that the preliminary fact does exist. (2) Shall instruct the jury to disregard the proffered evidence if the court subsequently determines that a jury could not reasonably find that the preliminary fact exists. |
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Evidence for A Purpose |
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 the evidence to its proper scope and instruct the jury accordingly. Sometimes there is a legitimate basis for bringing evidence into a trial even though the same evidence would have to be excluded if its proponent sought to have it admitted on another basis. In this situation, a rule could state that the evidence must stay out, but the drafters of the Federal Rules decided that it was better to bring the worthwhile information into the trial, and take the chance that a jury would be able to obey an instruction telling it that certain evidence could influence their deliberations only with respect to a certain party or with respect to a certain issue. -- can you offer evid. w/ the hopes that the jury w/ misinterpreted?a) justified that it STILL HAS some sort of value |
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Benefits of pretrial in limine motions to exclude |
1. usually relate to key items of evid., or evid. though atto be especially prejudicial. Knowing whether such evid. is admissible may have an important impact on settlement / plea bargaining. 2. assuming no settlement, the outcome of the motion can affect one’s overall trial strategy 3. Know evid. is admitted, mention in opening statement; not admitted can’t; maybe, then risk incase it’s not 4. May influence jury selection. e.g. if a prior conviction is ruled admissible, you may ask potential jurors about their ability to give your def. a fair trial once they learn of the conviction 5. In addition, even if the J. defers ruling (as is often the case), the motion has benefits. It alerts the J. to the issue, and permits more extensive briefing and argument than ordinarily is possible in the midst of trial |
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Importance of Offer of Proof |
****don’tforget to make this offer. Could stop the appeal – appellate court needs toknow exactly what the evidence was. Once the judge learns exactly what theevidence is, the trial judge may overrule. 1. When trial J. learns exactly what the proffered evid. is, she may reverse her ruling 2. Appellate ct. needs to know exactly what the proffered evid. is b/c a) nature of evid. may determine correctness of ruling b) might be irrelevant c) might affect the reviewing it’s disposition d) might be seen as so little value that, even if ruling erroneous, the error will be deemed harmless 3. as a practical matter, the offer of proof is almost entirely for the benefit of the appellate ct., not the trial ct. A party has an absolute right to make an offer of proof. |
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Objections to Evidence at Trial
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1. Common Appellate Situations
a) gen. objection was made and overruled and there was an unspecified valid ground - objections is considered waived b) gen. objection was made and improperly sustained – appellant may assert any valid ground for the objection; this is one reason why lawyers gamble on gen. objections c) specific objections is made, on wrong ground, and improperly overruled d) specific objection is made, on wrong ground, and improperly sustained, but a valid ground existed |
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Trial Strategy |
Object to everything (1) Messes w/ your opponent (2) Want to make sure to represent client to be ability However (3) Risk jury hates you by messing w/ flow and being annoying |
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General vs Specific Objections & Style |
1. General v. Specific
i) General: Can still stick, even if made on the wrong grounds ii) Specific: Cannot stick if on the wrong grounds and overruled.
2. Style: i) Object to everything you reasonably can object to ii) Help your client by strengthening your case. The rules favor this. iii) Can confuse the other side and mess of the flow |
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FRE 104 Preliminary Questions
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(a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
(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.
(c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:(1) the hearing involves the admissibility of a confession;(2) a defendant in a criminal case is a witness and so requests; or(3) justice so requires.
(d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.(e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. |
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104(a) v. 104(b) |
a) 104(a) has a higher and more demanding burden of proof (preponderance) than 104(b) (sufficient evid.) (1) In 104(b), trial ct. just examines all evid. in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evid. (2) however, 104(b) only allows the use of admissible evid. (no hearsay) to prove contested preliminary facts, where 104(a) does not require evid. to be admissible (hearsay ok) to be used to prove facts under the rule. b) 104(b) governs all matters of conditional relevance only; 104(a) governs everything else (1) This is the one type of objection to admissibility that the jury decides itself (and is not, therefore, something ruled on by the judge). If the party seeking to introduce an item of evidence agrees that it is not relevant by itself but states that it will be relevant when some other fact is established that provides a context for it, the situation is defined as “relevancy conditioned on fact.” In this situation, the evidence is required to be admitted. The jury will hear it. If the proponent then fails to produce information about the supporting context that is required to make the challenged evidence relevant, the jury can be depended on to notice that the challenged evidence has no relevancy to the case. The jury will thus disregard it easily, since there will be no temptation to use a non-relevant item of evidence in deliberations. |
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FRE 602 Need for Personal Knowledge |
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. This rule does not apply to a witness's expert testimony under Rule 703.
1. Must have personal knowledge 2. Witness is NOT competent if they have no personal knowledge |
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FRE 603 Oath or Affirmation to Testify Truthfully
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Before testifying, awitness must give an oath or affirmation to testify truthfully. It must be in aform designed to impress that duty on the witness's conscience
-Witness must promise to tell the truth (oath) -Under modern approach, witnesses are presumed competent. 1. Thus, even a witness who is insane or very young will not be prevented from testifying if the trail judge is convinced that he has relevant first-hand knowledge and understands the obligation to tell the truth. Similarly, even if witness was intoxicated or under the influence of drugs when he witnesses the event, he will be permitted under the federal approach to testify about it. 2. Could be high/drunk and still testify. This is a very low bar. 3. Recognition should be instantaneous, so if a witness takes five minutes, it proably isn’t correct. |
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Issues with Eye Witness Testimony |
1. Could create a false positive
2. False memories (especially with children) |
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FRE 105 – Limiting Evidence for a Certain Purpose
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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 the evidence to its proper scope and instruct the jury accordingly.
a. This limits evidence that is not admissible against another party or for another purpose b. Allows evidence to be admitted for one thing, but remain inadmissible for other things c. People use this rule in hopes that the jury will misuse the evidence. --1. Must have some good faith reason to admit the evidence, not just making a frivolous argument. --2. See Old Chief v. United States |
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Substitutes for Evidence : Other methods of establishing facts
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a. Judicial Notice-FRE 201
b. Judicial Notice of Law c. Stipulations d. Judicial Admission e. Preclusive prior FactDetermination |
