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Evidence Outline

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This is an extract of our Evidence Outline document, which we sell as part of our Evidence Outlines collection written by the top tier of Seton Hall Law School students.

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Evidence Outline
Evidence Law and the System
I. What is the Law of Evidence
Why Evidence Law 5 reasons:
(1) Mistrust of juries;
(2) Serve substantive policies relating to matter being litigated, such as allocating burdens of persuasion;
(3) Further substantive policies unrelated to the matter in litigation (extrinsic substantive policies),
such as seeking to affect behavior or quality of life outside the courtroom, and privileges (e.g.,
spousal privileges, attorney-client);
(4) Ensure accurate fact-finding, such as authenticating documents (meaning, jurors will not evaluate hearsay in the right way); and
(5) Control the scope and duration of trials.
Evidence rules tell us what evidence is admissible and what evidence is inadmissible. There are numerous grounds upon which a court may exclude a particular piece of evidence.
Why FRE rather than Common Law?
SCOTUS on its own can't make the rules of evidence. Congress was given the right to make the federal courts. Rules Enabling Act gives SCOTUS the power to make the FRE.
28 U.S.C §2072: gives SCOTUS authority to make FRE
28 U.S.C §2073: Advisory Committee drafts proposed FRE and submits proposals to SCOTUS
28 U.S.C §2074: SCOTUS submits FRE to Congress for approval
The FRE were promulgated by SCOTUS in 1972 and enacted by Congress in 1975 for the federal court system. These rules constitute the most influential statement of American evidence law in the early years of the 21st century. As of 2008, 42 states have adopted evidence codes after the FRE.
When Do the FRE Apply?
The FRE apply to:
(1) civil trials and proceedings generally, including admiralty and maritime cases and bankruptcy proceedings;
(2) criminal trials and proceedings, subject to a limited number of exceptions under FRE 1001(d):
grand jury proceedings, preliminary hearings, bail release hearings, sentencing or revocation hearings, the issuance of search or arrest warrants, and extradition proceedings; and
(3) contempt proceedings, expect those in which the court may act summarily; and
(4) habeas corpus proceedings to the extent not inconsistent with statute.
A. HEAR PA BROWN: almost every evidence problem will fall into these areas. Each one is an independent ground for excluding evidence - a separate hurdle for evidence to make it to the jury box. (Presumption and procedure are not in this list since they will be obvious).


2. Privileges

3. Authentication

4. Best Evidence Rule

5. Relevance

6. Opinion Testimony

7. Witnesses

8. Notice 1 Evidence Outline
B. The Players

1. Parties: the lawyer offering the evidence for admission (proponent) and the lawyer objecting to its offering (opponent).

2. Factfinder: jury or judge

3. Judge: determines relevance
C. Objections: two requirements:

1. (1) Must be timely made (first reasonable opportunity).
a. Although most objections are made during trials, evidentiary objections may be made through pre-trial motions in limine (addressing evidence issues that you know will arise during trial).

2. (2) Must be made with specificity (a ground for objecting). If you aren't specific,
you will have waived your right for appeal. It is not the appellate court's job to figure out the objection.
D. Preserve the Record (at the time of trial)

1. FRE 103(a)(2): Effect of erroneous ruling . "Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and: (1) Objection, or (2) Offer of proof."

2. FRE 103(d): Plain error. "Obvious" (judge should have known better even if lawyer did not) or "more serious" in the sense that it provides greater certainty that outcome was affected at trial.

3. Reversible/Prejudicial error: even if there was an error, it must have substantially affected the outcome. If it probably affected the outcome, then it can be overturned.
a. "Saving the judgment": if the appellate court finds some other basis under which the evidence would have properly been admitted/excluded, then it will use that basis to save the judgment. This will never happen to reverse a judgment, just to save one.

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II. Relevancy and Its Limits
A. Definitions

1. FRE 401: Definition of "Relevant Evidence"

Makes the juror think the consequential fact is more or less probable than before hearing the evidence.

Evidence is relevant if it has "any tendency" to make a fact of consequence to the outcome of the case "more or less probable" than it would be without the evidence."

a. Does the piece of evidence move the needle?
b. Example:

i. Common law crime of rape. Defendant wishes to testify that victim invited him to her bedroom. This evidence could tend to prove consent and is of consequence to the outcome of the case.

ii. Statutory rape: Defendant wishes to testify that victim invited him to her bedroom. While this evidence could tend to prove consent, it is irrelevant because the substantive law of statutory rape tells us that consent isn't of consequence (it isn't a defense to statutory rape).

2. FRE 402: "Relevant Evidence Generally Admissible; Irrelevant Evidence
All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.
Evidence which is not relevant is not admissible.

3. FRE 403: Exclusion of Relevant Evidence on Grounds of Prejudice,
Confusion, or Waste of Time
Although relevant, evidence may be excluded if its 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 a. Relevant may be excluded because it will tend to interfere with the jury's factfinding mission (e.g., accuracy) or because of extrinsic social policies
(e.g., attorney-client privilege, subsequent remedial measures)

B. Judicial Discretionary Power to Exclude Relevant Evidence Based on Weighing
Probative Value Against the Danger of Unfair Prejudice

1. Similar Happenings Evidence: when a party wants to introduce evidence that concerns other events or transactions between the parties, or that involves another party similarly situated, as proof of the event or transaction in question. As a general rule, courts are skeptical in offering this evidence (might deflect jury's attention away from the issue at hand). The key issue is whether the other event occurred under circumstances substantially similar to those surrounding the event in question. Without substantial similarity, the court is going to exclude it.

3 Evidence Outline a. e.g., as proof that defendant corporation breached contract with plaintiff,
plaintiff wants to offer proof that defendant breached contract with another party over a similar matter

2. Photographs: see STATE v. CHAPPELLE [p. 69]: while a photographic exhibit might have probative value on issues in dispute, it is for the trial court to weigh that value against the danger of prejudice and its conclusion on this point will not be reversed by an appellate court absent a clear abuse of discretion.
a. e.g., the appellate court in CHAPPELLE determined that the photographic exhibits had little probative value and their "capacity to inflame" was obvious; thus, their admission was legally erroneous and an abuse of discretion.

3. Reenactments and Demonstrations: okay so long as substantially similar to incident.

4. Standard of Care: a party may offer evidence of the standard of care in an industry as evidence of what reasonable conduct would be (thus, evidence that a defendant's conduct fell short of the industry standard of care would tend to show the defendant acted negligently). However, the industry standard is not conclusive evidence of what constitutes reasonable conduct - it's probative, but not conclusive
(everyone in the industry may be negligent).
C. Specific Rules That Exclude Relevant Evidence Due To Extrinsic Policy Concerns

1. FRE 407: Subsequent Remedial Measures
Admissible when remedial measure is
When, after an injury or harm allegedly caused by an event, measures are taken used to prove that, if taken previously, would have made the injury or harm less likely to ownership, control, or occur, evidence of the subsequent measures is not admissible to prove feasibility of measure negligence, culpable conduct, a defect in a product, a defect in a product's
(perhaps coupled with design, or a need for a warning or instruction. This rule does not require the a limiting exclusion of evidence of subsequent measures when offered for another instruction).
purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted or impeached
Inadmissible when remedial measure is offered to prove the disputed issue.

a. (A remedial measure is any measure taken after the litigation accident occurred that would have made the accident less likely to occur.)
b. The idea behind the rule is that the law wants to encourage parties to take a safety measure without fear that it will be used against them.

2. FRE 408: Compromise and Offers to Compromise
(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
(1) furnishing or offering or promising to furnish - or accepting or offering or promising to accept - a valuable consideration in compromising or attempting to compromise the claim; and
(2) conduct or statement made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of its regulatory,
investigative, or enforcement activity.
(b) Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of 4 Evidence Outline permissible purposes include proving a witness's bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.
a. The rule applies most obviously when the offeree turns down the offer and then uses it against the offeror, but the rule also applies when the offer is accepted and someone else tries to use it against the offeror.
b. Policy reason: we don't want to discourage lawyers from offering to settle a case.

3. FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements
Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions:
(1) a plea of guilty which was later withdrawn;
(2) a plea of nolo contendere;
(3) any statement made in the court of any proceedings under Rule 11 of the
Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or
(4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn.
However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel.

4. FRE 409: Offers to Pay Medical Expenses
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
a. Catch: this rule does not protect statements of liability made in connection with the unilateral offer to pay medical expenses. Thus, if you get into a car accident, your offer to pay medical expenses will be inadmissible BUT any admission of liability WILL be admissible.
D. Specific Rules That Govern Relevant Evidence Due To Weighing Probative Value
Against Unfair Prejudice

1. FRE 411: Liability Insurance
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

5 Evidence Outline

2. FRE 404: Character Evidence Not Admissible to Prove Conduct; Exceptions;
Other Crimes

Available in both civil and criminal cases.


(a) Character evidence generally. Evidence of a person's character or a trait of character is not admissible for the purpose action in conformity therewith on a particular occasion, except:
(1) Character of accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under
Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;
(2) Character of alleged victim. In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor;
(3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609.
(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
a. Ask yourself the 3 following questions i.
What is the evidence being offered to prove?
1) Character is offered to prove an element of a claim or defense, such as a negligent entrustment or hiring case,
defamation or libel, mental status (e.g., insanity, mental competency), or predisposition to commit the crime

ii. May character evidence be used to prove this?
1) Reputation evidence 2) Opinion testimony 3) Specific instances of conduct 4) Character evidence is ordinarily not admissible as circumstantial evidence to show that he/she acted in conformity with character. This rule reflects the view that the probative value of character evidence isn't so great in proving that the person did the charged act iii.
How may character evidence be proved?
1) A defendant may prove character only through reputation evidence and opinion testimony. The prosecution may then rebut. A defendant may also offer evidence of the victim's alleged character.

1. FRE 405: Methods of Proving Character

6 Evidence Outline
(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-exam, inquiry is allowable into relevant specific instances of conduct.
(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.
a. Cross-exam questions:
i. Reputation: Have you heard?
ii. Opinion: Did you know?
iii. Prosecutor may not use extrinsic evidence (call other witnesses) to prove that questioned incident occurred.
b. FRE 404(b): Other crimes, wrong, or act i.
May be admissible if offered for some reason other than showing the person's character. Most, if not all, of this evidence raised in criminal cases.

1) Motive 2) Identity (of the person who committed the crime is at issue - modus operandi)
3) Absence of Mistake or accident 4) Intent 5) Common plan or scheme 6) Opportunity 7) Preparation

3. FRE 406: Habit; Routine Practice
Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.
a. A habit is a regular response to a repeated specific situation (e.g., eating the same thing for breakfast, failing to stop at a particular stop sign, always locking one's front door, a company date stamps a letter upon receipt, etc.).
A semi-automatic response to a particular circumstance.

i. Contrast with "character" which relates to a generalized disposition or trait (e.g., cautious, reckless driver, etc.).


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