evidence outline

EVIDENCE OUTLINE BACKGROUND/BASICS: - Judges rule on whether the evidence is admissible and not bound by FRE except with privileges (104(a)) - Jurors determine how much weight the evidence should be given - Evidence is admitted unless objected to - Rules of evidence tell us what to exclude, not what to admit - Objections must be timely, with reasoning, and non-objecting party must have a right to offer proof for why admissible (103) - Sustain = Exclude - Overrule = Admit Rule 103(a): A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party AND; - if the ruling admits evidence , a party on the record - timely objects or move to strike and - states the ground unless it was spparent from the context or - if the ruling excludes evidence a party informs the court of its substance by an offer of proof, unless the substance was Apparent from its context Rule 103(b): Once the court rule definitely on the record– either before trail or at trial- a party need not renew an objection or offer proof to preserve a claim on appeal A motion in limine is sufficient to preserve the moving party’s right ot appeal the evidentiary ruling - Limiting Instructions can be used if a piece of info is admissible for one purpose but inadmissible for another, or there are multiple parties and evidence is only admissible against one of them. Here, the jury still needs to hear info but must be guided as to how to use the info. (105) - “Rule of Completeness” = Party introduces all or part of a writing or recorded statement, adverse party may require the introduction of any other part– or any other writing or recorded statement– that in fairness ought to be considered at the same time (106) Structure of a Trial 1. Pretrial Motions a. Motions in Limine i. BEFORE trial ii. Seeks a ruling on the admissibility of evidence based on the FRE 1. Request to preclude 1

2. Request for a ruling that evidence is admissible iii. Preserves the right to appeal (no need to object during trial) (Rule 103(b) b. Motion to Suppress i. Motion seeking to preclude evidence because it was illegally obtained c. Motion for Summary Judgement i. No genuine issue of material fact 2. Jury Selection/ Voir Dire 3. Opening Statements a. P → D 4. Plaintiff/Prosecutor’s Case in Chief a. Witness Direct → Witness Cross → Witness Redirect, etc. 5. Defendant’s Case in Chief a. Witness Direct → Witness Cross → Witness Re-Direct, etc. 6. Plaintiff’s Case in Rebuttal → Defendant’s Case in Rebuttal 7. Closing Statements 8. Jury Instructions → Deliberations → Verdict Types of Evidence 1. Testimonial Evidence a. Good Examination Elements i. Background ii. Lay Foundation iii. Tell Story (non-leadings q’s) b. Cross-Examination (allowing leadings q’s) → Re-direct c. Fact Witness i. People who perceived facts related to the lawsuit and testify about those facts ii. Ex. Eyewitnesses, parties, and victims d. Expert Witness i. Use specialized knowledge to interpret evidence or explain it to the jury e. Character Witness i. Not testifying about facts directly but offer information about the good or bad character of a party or witness 2. Real Evidence a. Physical evidence that a party claims played a direct role in the controversy Ex. Murder weapon, stolen property, etc. 3. Documents/Writings a. Any type of writing or recording or information 2

b. Must be authenticated! (Unless fall under Rule 902) i. Handwriting on documents can be identified by anyone familiar with the handwritings, not needed to have expert ii. Authentication is frequently stipulated c. Rule 1002 : Original Writing i. If you want to talk about the contents of a writing, you must have actual document or photocopy 1. Contents cannot be testified to orally ii. Exceptions in Rule 1004 4. Demonstrative Evidence a. Tangible or visual evidence which played no role in events leading up to the trial BUT instead were created FOR the trial i. Less probative value, more vulnerable to Rule 403 ii. “Is this a fair and accurate representation of X at the time of the occurrence? Ex. Charts, tables, graphs, literal demonstrations 5. Stipulations + Judicial Notice a. Stipulations i. Both parties agree that the fact is true for the purposes of the litigation ii. Both parties must agree to its exact language b. Judicial Notice i. Rule 201: Upon request a judge must take judicial notice of a piece of evidence if it is “not subject to reasonable dispute” AND if it is either 1. Generally Known, or 2. “Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned” c. Juries in civil cases MUST accept stipulated facts and judicially noticed facts as true d. Juries in criminal cases are told that it is reasonable to do so, but they are free to accept it or reject it All evidence must be authenticated - Establishes = Relevance (shows how it is linked) + Genuineness - DOES NOT guarantee reliability or ensure that it is admissible - Authentication Process - Mark for identification - Show to witness - Witness authentication - Move into evidence (objection) - Publish to jury - Use/describe item 3

Authenticating REAL EVIDENCE: - Rule 901 = Must have “evidence sufficient to support a finding that the item is what its proponent claims it is” - ”is this object in the same condition as it was on the date that you recovered/tested/saw it? - Rule 902 = Some documents are “self-authenticating” ARTICLE IV: RELEVANCE 1) Is it relevant? What FC is it relevant to? 2) Does the evidence implicate any issue covered by the rules on preclusion? (407, 408, 409, 410, 411, 412) 3) Can there be any problem of unfair prejudice? If so, can it survive a Rule 403 balancing test? STEP 1: IS IT RELEVANT? All relevant evidence is admissible (unless otherwise provided), all irrelevant evidence is inadmissible ( Rule 402) (very low standard) (yes or no) - Relevance is subjective! - Start With = What are you trying to prove? Rule 401: Test for Relevant Evidence Evidence if relevant if; a) PROBATIVE = It has any tendency to make a fact more or less probable than it would be without the evidence (irrelevant = equally consistent with guilt or innocence) b) MATERIAL = The fact is of consequence in determining the action Fact of Consequence = A material fact; a fact which helps the finder of fact decide the case The evidence might prove multiple facts, only ONE of which is a FC– as long as there is ONE FC that you prove which is relevant, you move past 401 Circumstantial Chain of Inferences - Each thing need to be relevant - Ex. D flees → Consciousness of guilt → Consciousness of guilt for crime charged → actual guilt of crime charged - If court rejects one of the links (because major premise not commons sense or a minor fact-based premise is too tenuous) look to 104(b) rule on conditional evidence , allowing you to bring in more support for inference chain 4

STEP 2: IS THE EVIDENCE RELEVANT BUT INADMISSIBLE? (rules 407, 408, 409, 410, 411, 412) Rule 407: Subsequent Remedial Measures *PERSONAL INJURY/CIVIL* BARS a dmission of measures taken that would have made an earlier injury or harm less likely to occur for the purpose of proving - Negligence - Defect in Product or Design - Need for a warning or instruction - Culpable Conduct ALLOWS admission of this evidence for another purpose, such as - Impeachment (SRM directly contradict D’s testimony) - Ex. W says “we had the safest possible design”, P can introduce evidence of their design modification after the injury - What did they believe at the time of the event? - Likely to admit when - W makes a specific representation that conflicts with SRM - W makes an absolute statement (“the product was perfectly safe”) - W was involved in implementing the SRM - If disputed by other party: - O wnership or control - D argues they did not own or control the instrument that injured P - F easibility - D says there is no way they could have remedied a dangerous situation - What did they believe at the time of the event? - Physically, technologically or economically impossible OR would make situation more dangerous What is an SRM? - After the injury occurred - Applied to Strict Liability - Does not apply to third-party repairs, only those made by D - Ex. firing employee, recalling a product, changing a policy, altering a design (apply 403) Rule 408: Compromise Offers and Negotiations CIVIL BARS settlement offers and statements made during settlement discussion from being admitted to prove: - Liability/Damages - Impeach W with inconsistent statements - Disprove those elements 5