Law Outlines Evidence Outlines
In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...
The following is a more accessible plain text extract of the PDF sample above, taken from our Evidence Outlines. Due to the challenges of extracting text from PDFs, it will have odd formatting:
Procedure
FRE 103 = “Rulings on Evidence”
No error will be found unless substantial right of party affected
If evidence admitted: Objection must be made on the record, stating specific ground
If evidence excluded: offer of proof needs to be made on record
Substance of evidence
Why it was admissible
Purpose/what it would show
(2)(c) – all efforts must be made to keep excluded evidence from jury
Appeal
When evidence erroneously admitted, the following must be true to appeal…
Specific objection
Must have been inadmissible for the reason stated by appellant; other grounds for objection cannot be raised on appeal for the first time.
Sometimes a general objection will be deemed sufficient on the ground that the basis for the objection was obvious from its context or the question was objectionable from every standpoint
Timely objection
Valid grounds for objection
The error in admitting the evidence was prejudicial
When evidence was erroneously excluded, the following must be true to appeal…
No valid ground for objection
Even a general objection will preserve the exclusion on appeal, exclusion need not be based on specific objection given.
Offer of proof was made by party trying to enter evidence
Error in excluding the evidence was prejudicial
Standard of Review
Defines how deferential an appellate court will be to trial court’s ruling
De Novo = “brand new.” Gives no deference to trial court’s ruling – as if trial court ruling does not exist.
Intermediate = I would have done something differently, most judges would not make that ruling.
Abuse of discretion = most deferential. Trial court’s decision was unjustifiable or arbitrary.
Appellate court must also find that the error was not harmless; that it affected the outcome of the case
FRE 611 – Mode and Order of Examining Witnesses and Presenting Evidence.
Court should attempt to…
Make procedures effective for determining truth
Avoid wasting time
Protect witnesses from harassment or undue embarrassment
Cross examination: may not go beyond scope of matter of DE and matters affecting witness credibility.
Leading questions not allowed during direct. Allowed during
Cross examination
When party calls hostile witness/witness identified by adverse party.
Improper Questions and answers
Misleading (can’t be answered w/o making unintended admission)
“Do you still beat your wife?”
Compound
“Did you see and hear the intruder?”
Argumentative
“Why were you driving so recklessly?”
Conclusionary
“What did your friend think about that?”
Assuming facts not in evidence
In a case w/o evidence that D had been drinking, “After D finished is fifth beer, he got up and went to his car, didn’t he?”
Cumulative
Question that has already been asked, answered
More repetition is allowed on cross-examination than on direct
Harassing or embarrassing
Calls for narrative answer
Calls for speculation
Lack of foundation
Nonresponsive answer
W must address only specific question asked by examining attorney, otherwise the testimony is subject to being stricken for nonresponsiveness
Introducing part of a transaction
Party can cross-X or introduce rebuttal evidence as to any other part of the same transaction necessary to make it fully understandable. If transaction is a writing, she can do this during the direct exam – doesn’t need to wait.
Any objection the P might have invoked as to the D’s evidence is deemed waived because it was the P who elected to introduce part of the transaction
Relevancy
Evidentiary Facts (reasonably) Inferred FactsFact of ConsequenceEssential Element
FRE 401: Test for Relevant Evidence (the fishing net)
Tendency to make fact more or less probable than it would be without the evidence
Don’t get this confused with the burden of persuasion standard, which is much higher
The fact is of consequence
Clearly related to the essential element
Policy
Low standard because we want more evidence to go to the jury. Communal fact finding; anti-elitism.
FRE 402: Precludes relevant evidence if inadmissible under FREs, Constitution, Statute, common law
Cases
Knapp
D at murder trial submits evidence for self-defense claim that he had reason to fear victim because he had heard the victim had clubbed and seriously injured an old man before arresting him. Court admits state’s evidence that the old man actually died of alcoholism and senility. D argues that this was irrelevant, as it only mattered that D heard that V had killed the old man. But state’s testimony tended to render D’s claim less probable, and thus was relevant.
Stever
D in marijuana growing operation trial argues that the marijuana was growing in isolated corner of huge farm, and that Mexican Drug Trafficking Orgs often operated by using plots of land when owners don’t know about it. Tries to submit evidence of DTO’s in D’s region. Government argued that this was irrelevant to D’s guilt/innocence, but 9th circuit found this tended to show that D’s claim was probable.
Other Relevance Rules (not relevant for policy reasons): 407-411
FRE 407 – subsequent remedial measures
Not admissible to prove
Negligence
Culpable conduct
Defect in product/design
Need for warning or instruction
May be admissible to show (if disputed issues in the case)
Ownership/Control
D’s attempts to destroy evidence
Feasibility of precautionary measures
To impeach credibility of W
People v. Mehserle –
Court did not allow evidence that BART changed taser policy, because it was offered to prove that BART thought old policy would create Taser-gun confusion, and that this confusion caused Grant’s death rather than Mehserle’s criminal negligence
FRE 408 – compromise offers and negotiations
Practice tip: when corresponding with opposing counsel, put on top of your letter: “This is covered by FRE 408”
Admissions made in conjunction w/ offer
Bad faith offer = probably the admission would be admissible
Some courts: any...
Buy the full version of these notes or essay plans and more in our Evidence Outlines.
In-depth evidence outline gives the nuances of interpretations of the Federal Rules of Evidence in an easy-to-understand layout. Topics of this outline include: procedure and preliminary matters, character, impeachment, hearsay, the Confrontation Clause, expert witnesses, privileges, and California distinctions to the federal rules. This key gives each FRE number alongside each rule section, to allow you to get maximum points on your test. Also included: outline made in preparation for UBE/MBE ba...
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