Law Outlines Evidence Outlines
This is an outline of Evidence as taught by Professor Kimberly Kessler Ferzan at UVA Law in the Spring of 2016. Professor Ferzan used Giannelli's Understanding Evidence and NITA's Evidence in Context as her primary teaching materials.
The outline is separated into sections for Relevance, Impeachment, Opinion, Authentication, the Best Evidence Rule, Hearsay, and the Confrontation Clause. The outline uses the text of the rules themselves and incorporates summaries major cases and other doctrina...
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:
Evidence Spring 2016
Professor Kimberly Kessler Ferzan
Order/Approach: all possible relevances (character, sex offenses, habit, specific exclusions, impeachment, rehabilitation), witness opinion (lay/expert), authentication, best evidence rule, hearsay, confrontation clause, 403. Consider 104 every time you apply a rule.
General Themes/Questions to Ask
Remember Rule 104 for Everything
What is it coming in for? Are there multiple theories of relevance?
Will it survive a 403 balancing inquiry?
Themes Behind Evidence Rules
Jury verdict (t) should be the same as the truth (T) t=T, but there are things that trump truth
Violations of Constitutional Rights
Shortness of Life: delays to trial, SOL
Substantive Law
Procedural Rules
Witness Problems: bias, perception, memory, capacity, communication/articulation, favorability, malleability
Solutions: cross examination, swear an oath, impeachment, live testimony (jury can weigh credibility), allowing contrasting witnesses (multiple people), comments on physical evidence
Jury Problems: sympathy, bias, confusion, malleability, corruption
Relevance (and Impeachment) (NITA: 1, 3–7, 233 (only relevance of Leslie’s fear of Joe, skip letter and anything beyond relevancy), 9, 11, 14, 12, 37, 32, )
Relevance Procedure:
Determine theory of relevance
See 104(b) for conditional relevancy
If character: see 404 and 405 for action in accordance, etc.
If sex offenses: 412 (victim/rape shield), 413 (criminal defendants), 414 (juveniles), 415 (civil cases)
If habit: 406
Specific Exclusions: 407 (subsequent remedial measures), 408 (settlement offers), 409 (offers to pay med bills), 410 (plea bargains), 411 (insurance)
Impeachment (and rehabilitation): for truth of matter, or just to discredit witness?
Check theory with 401 test
402 gets it in or out based on 401 test
If other possible theory of relevance
Repeat Process
Look to 403 if one is not admissible (after analyzing anything else)
Look to 105 as alternative if it passes 403
401: Test for Relevant Evidence
104(b) issue as to conditions that determine relevance (e.g. opened a letter)
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
Need not be sufficient to prove something
FERZAN: “A brick is not a wall”
Advisory Committee Notes: “Does the item of evidence tend to prove the matter sought to be proved?” – answer depends on experience, science, situation
Rules generally do not distinguish between direct and circumstantial evidence, but jury can weigh them differently and may be important for 403 analysis, see also character
(b) the fact is of consequence in determining the action.
“Of Consequence” changes based on your narrative/theory of the case
E.g., 1) witness credibility and 2) substantive law components, which include a) the elements of a cause of action, b) the elements of a charged crime, c) the elements of an affirmative defense, and d) damages in civil cases.
This is not a credibility rule (see 403, etc). Jury may decide that something relevant under 401 is not credible.
Look to 402 to determine if it’s admissible based on 401 relevance test
Conditional relevancy is a 104(b) question for jury
402: General Admissibility of Relevant Evidence
(a) Relevant evidence admissible unless Constitution (e.g. Confrontation Clause), statute, FRE, SCOTUS rules
(b) Irrelevant evidence is not admissible
403: Exclusion of Relevant Evidence
FERZAN Three-step process: Determine probative value, determine dangers, balance value against dangers (“substantially outweighed”).
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Unfair prejudice: Affects trier of fact in a manner that is not attributable to the legitimate force of the evidence.
Substantially outweighed: Tie goes toward admissibility. The impermissible use(s) must be substantially more persuasive than the permissible use(s).
Permissive standard: court never required to use this rule to exclude (but may be overturned for abuse of this discretion)
Adverse Inferences: Will a jury draw an impermissible conclusion from the introduction of the evidence? Consider the context in which it is introduced and possible other impermissible theories of relevance
See Old Chief stipulation itself does not itself make the evidence irrelevant, and thus you still must do 403 balancing. But 403 considers all possible evidence as well as the context (narrative) in which evidence is presented in the balancing test, so the possibility of stipulation can affect the balancing test
Considerations for judge: availability of limiting instruction (see, 105/403), alternative proof, e.g., stipulations (Old Chief) to reduce unfair prejudice
Reviewed on Abuse of Discretion: win at trial, if not, hard to get overturned
105: Limiting the Evidence (“Limiting Instruction”) (not admissible against other parties or for other purposes)
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.
“Multiple relevancies”
Generally requested in response to the opposing party’s 403 argument.
Use to save permissible chain of inferences if there are substantial impermissible inferences.
“Must” = nondiscretionary when requested, court can do it sua sponte
Failure to raise at trial waives issue on appeal
Does not remedy abuse of discretion under 403 if raised on appeal
_Character (NITA: 18–27, 17, 30, 31)
POLICY: excluded because juries give it too much weight, and can be highly prejudicial (especially in criminal cases with past conduct) - 403 problems.
This is a...
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This is an outline of Evidence as taught by Professor Kimberly Kessler Ferzan at UVA Law in the Spring of 2016. Professor Ferzan used Giannelli's Understanding Evidence and NITA's Evidence in Context as her primary teaching materials.
The outline is separated into sections for Relevance, Impeachment, Opinion, Authentication, the Best Evidence Rule, Hearsay, and the Confrontation Clause. The outline uses the text of the rules themselves and incorporates summaries major cases and other doctrina...
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