#16886 - Evidence Outline

Evidence Law and the System

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.

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
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
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.
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.

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.”

Does the piece of evidence move the needle?
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).

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.

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

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)

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 evidence that concerns other events or transactions between the parties, or that involves another party similarly situated, as proof of the event or transaction in question. As a general rule, courts are skeptical in offering this evidence (might deflect jury’s attention away from the issue at hand). The key issue is whether the other event occurred under circumstances substantially similar to those surrounding the event in question. Without substantial similarity, the court is going to exclude it.
  1. e.g., as proof that defendant corporation breached contract with plaintiff, plaintiff wants to offer proof that defendant breached contract with another party over a similar matter
2. Photographs: see STATE v. CHAPPELLE [p. 69]: while a photographic exhibit might have probative value on issues in dispute, it is for the trial court to weigh that value against the danger of prejudice and its conclusion on this point will not be reversed by an appellate court absent a clear abuse of discretion.
  1. e.g., the appellate court in CHAPPELLE determined that the photographic exhibits had little probative value and their “capacity to inflame” was obvious; thus, their admission was legally erroneous and an abuse of discretion.
3. Reenactments and Demonstrations: okay so long as substantially similar to incident.
4. Standard of Care: a party may offer evidence of the standard of care in an industry as evidence of what reasonable conduct would be (thus, evidence that a defendant’s conduct fell short of the industry standard of care would tend to show the defendant acted negligently). However, the industry standard is not conclusive evidence of what constitutes reasonable conduct – it’s probative, but not conclusive (everyone in the industry may be negligent).
Specific Rules That Exclude Relevant Evidence Due To Extrinsic Policy Concerns
1. FRE 407: Subsequent Remedial Measures

When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted or impeached

(A remedial measure is any measure taken after the litigation accident occurred that would have made the accident less likely to occur.)
The idea behind the rule is that the law wants to encourage parties to take a safety measure without fear that it will be used against them.

FRE 408: Compromise and Offers to Compromise

(a) Prohibited uses. Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:

(1) furnishing or offering or promising to furnish – or accepting or offering or promising to accept – a valuable consideration in compromising or attempting to compromise the claim; and

(2) conduct or statement made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of its regulatory, investigative, or enforcement activity.

(b) Permitted uses. This rule does not require exclusion if the evidence is...

#16886 - Evidence Outline - Evidence

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