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Law Outlines Evidence Outlines

Evidence Outline

Updated Evidence Outline Notes

Evidence Outlines

Evidence

Approximately 29 pages

...

Available here

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 Law and the System

  1. 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.

  1. 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).

    1. HEARSAY

    2. Privileges

    3. Authentication

    4. Best Evidence Rule

    5. Relevance

    6. Opinion Testimony

    7. Witnesses

    8. Notice

  2. 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

  3. Objections: two requirements:

    1. (1) Must be timely made (first reasonable opportunity).

      1. 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.

  4. 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.

      1. “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.


  1. Relevancy and Its Limits

    1. Definitions

      1. FRE 401: Definition of “Relevant 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.”

  1. Does the piece of evidence move the needle?

  2. Example:

    1. 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.

    2. 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).

  1. FRE 402: “Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

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.

  1. 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

  1. 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)

  1. 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...

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