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Law Outlines Evidence Outlines

Evidence Outline

Updated Evidence Notes

Evidence Outlines

Evidence

Approximately 29 pages

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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