I. introduction 2 >II. Burdens & Presumptions 5

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II. Burdens & Presumptions 5


Proponent must be able to show why a piece of evidence is 11

1. Relevant 11

IV. Hearsay 24

Lying & Hearsay: Generally lying NOT hearsay. 29

Significance of Disclosure: Is a statement offered to prove what the speaker knew, or what he was willing to tell others he knew. E.g. a thief not likely to advertise to otehrs his stolen property, so may be innocent of the conspiracy if he talks about the property at his house. 30

Not relevant if a forthright factual disclosure is offered to prove what the person thought—that’d be the end to hearsay. 30

V. Privilege. 44

VI. Competency 48

Surviving remnant of incompetency by reason of interest 49

VII. Witness Examination 50

VIII. Impeachment of W’s 52

IX. Authentication of Writings 56

X. Best Evidence 57

XI. Opinion Evidence 58

Hearsay Summary 64

Non-Hearsay 801—flowing 801(a)-(c) [25] 64

Present Sense Impression—describing right away 64


    1. Why rules of evidence?

        • mistrust of juries (by judges, framers of the Rules) (hearsy rule)

        • serve substantive policies relating to the matter being litigated (setting/allocating burdens)

        • extrinsic substantive policies—affectcing behavior or quality of life outside the courtroom (privileges)

        • ensure accurate fact-finding (authenticiation of documents, Best Evidence doctrine)

        • control the scope & duration of trials

        • Rules rather than common law: Accessability—easily read, freely available

    1. Making the Record

What not to do

          • echoing

          • overlapping

          • numbers, names & big words—clarify

          • exhibits—refer to unambiguously

          • pantomime, nonverbale cue, gesture, internal reference

          • going “off the record”, don’t forget to get back on

          • the sidebar conference

What to do

          • ensure that important utterances are spoken clearly

          • ensure they’ll have meaning when typewritten in the transcript

    1. How Evidence is Admitted or Excluded

1. Getting evidence IN: Foundation & Offer

(a) Ways to Get Evidence In

        • Testimonial proof—DIRECT EXAMINATION: bring out background info, lay the foundation for testimony to follow, ask substantive questions
          • Generally cant be leading—the W, not the attorney, should do the testifying

        • Testimonial proof—CROSS EXAMINATION controlling the W w/out appearing to

          • Leading OK.

          • Scope Of Direct Rule—limited to matters explored on direct (in most j’ns).

            • Rationale: parties have control over when to introduce their own evidence).

            • Critiques: administration difficulties; impediment to the truth.

            • Defenses: the order of proof; the special case of the accused as W (5th Amend.); the voucher principle; striking a compromise (framers compromised between the scope-of-direct limit or wide-open cross).

            • Object- Beyond the Scope of Direct but remember credibility counter-argument.

        • Real evidence = tangible things directly involved. Not required, other than writings. Maybe established by testimonial account.

          • Best evidence doctrine generally requires introduction of writings

          • Authenticating. By stipulation or by testimony from a W w/ firsthand knowledge.

            • Attorney must lay the groundwork to establish that the evidence is what it is claimed to be.

            • If it’s fungible, want to show chain of possession

            • Implicit judgment that proponent need not show precautions against a switch.

        • Demonstrative evidence created for illustrative purposes & for use at trial- played no actual role in the events.

          • Usually considered relevant & routinely admitted. No solid rules—proponent must show that fair & accurate depiction. W’s, experts.

          • Computer-aided reconstructions have raised the ante. May require experts.
          • Writings must be introduced at trial rather than proved by means of testimonial description. 1) Must establish authenticity. Article IX. Discovery or stipulations pretrial. 2) falls within a hearsay exception.

(b) Preliminary Questions—R104 & Judicial “mini-hearings”

        • Judge 104(a) Prelim questions of law have to be decided before evid can be excluded or admitted

            • legal std that must be applied

            • stmt fit a hearsay exception

            • character evid

            • W qualification

            • privilege

          • Judge considers everything & anything in during this phase (including hearsay)

          • Judge determines if a particular pt a proffered evid concededly tends to estb or refute, is “consequential”

          • Judge determines if proffered evid really has a tendency to prove the pt for which it is offered.

          • May involve heavy factual determination

        • Jury – 104(b)

          • Prelim question of fact

          • CONDITIONAL RELEVANCY (Relevancy conditioned on fact): If relevancy of evidence itself depends on a preliminary, disputed fact.

            • Jury needs to decide whether the conditional fact is true before it can even consider the evidence.

            • Relative faith in judge v. jury… real policy question R104(b) seen as resolving the tension

            • E.g. Evidence=spoken statement to prove notice, Conditional Fact=whether X heard it.

              • Questions of authenticity

              • Whether a W as personal knowledge

              • Whether a person heard a statement which supposedly provided him notice

              • Whether a letter apparently from Y is offered as his admission, probative value turns on whether he actually wrote it.

            • Example—gov’t condemned property, offered a certain amount. Property owners rejected it—they could increase the value by diving the property & selling for recreation. Ct. Appeals held that it ws inappropriate to exclude evidence about the possiblity of valuation at the recreational level. Jurors had to decide first whether the proeprty could be used that way. Then if so, could consider that value. US v. 478.34 Acres of Land (6 Cir. 1978).

            • Judge decides which is which - whether it is a piece of evid for the judge (admissibility of evid) or jury (relevancy conditioned on fact)

        • Jury Hearing 104(c): CONFESSIONS admissibility of confessions MUST be out of their hearing.

          • Other prelim matters “when the interests of justice require” or when the accused is a W & requests.

        • Testimony in PRELIM HEARING 104(d) Accused doesn’t open himself to cross by testifying here.

(c) Rulings on Evidence – FRE 103

103(a) Appeals on evidentiary rulings: error must affect a substantial right (outcome of the trial will have been different if the evidence had not been excluded or admitted

103(a)(1) Must have protected the record – there must be evidence on the record of your objection:

Formal Objection: objection to the form of the questions (the way asked), not that violated a substantive rule of evidence.

Substantive Objection: violation of rule of evidence

103(a)(2) Party whose evidence was excluded must make an offer of proof (out of the hearing of the jury, counsel can Q the W’s) = show the judge what the jury would be missing if E’s excluded

- estb what the evid is trying to show & why there is no problem in admitting the evid

- Failure to object or make an offer of proof waives the rt to claim error in excluding it.

- Applies to The Motions in Limine (Seeking a ruling on particular evidence in advance)

      1. Keeping evidence out-- Objections

          • Asked & answered

          • Assumes facts not in evidence

          • Argumentative

          • Compound

          • Leading the W

          • Misleading

          • Person not an expert in what they’re testifying in

          • Speculation or conjecture

          • Ambiguous, uncertain, & unintelligible

          • Nonresponsive to the question

          • The general objection—“incompetent, irrelevant, & immaterial” or just “I object, he can’t do that…”

          • Joining—co-litigant needs to ask to join to clarify that her rights are also preserved on appeal.

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