Evidence Fall 2015 Purposes of The Rules of Evidence
Evidence Fall 2015 Purposes of The Rules of Evidence
Evidence Fall 2015 Purposes of The Rules of Evidence
Legal Relevance
I. FRE 403
A. Language
1. 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
B. Decisions on whether to exclude evidence is based on the trial courts
discretion
1. On appeal the review is whether there was an abuse of
discretion
a) Rare that judges overturn trial judges
discretion
C. Referred to as a balancing test:
1. The assumption that it operates under is that the
evidence comes in (allowed)
a) Not 50/50 rule; starts with the idea that
the relevant evidence should come in trial unless real SUBSTANTIAL
risk of prejudice
II. Key Provisions of FRE 403
A. Court may exclude relevant evidence - permissible rule
B. Probative value is substantially outweighed
1. Balancing test
2. Assumption evidence comes in
C. Unfair prejudice
1. Jury has to decide the case on its facts not on emotions
III. Consider
A. Are there other ways in which the information can be taken to the jury
without it being so prejudicial to the defendant? (less prejudicial ways to get the
information in)
B. How else can the persecution get the information in?
C. Old Chief =
1. alternative ways to get evidence in even without
stipulations
IV. FRE 105
A. If court admits evidence that is admissible against a party for one
purpose - but not against another purpose - the court on timely request, must restrict the
evidence to its proper scope and instruct the jury accordingly
1. If a judge is faced with evidence that serves both a
legitimate and illegitimate purpose she can let it in and then provide a limiting
instruction
2. Limiting instruction:
a) You can consider this evidence for X but
not for Y
b) Judge is inclined to give limiting
instructions
c) Focus on the permissible aspect not the
impermissible
B. When It Arises:
1. Civil = defamation, negligent entrustment, good
parenting
2. Criminal = entrapment but very rare otherwise
C. Most of the confusion stems from an overly broad conception of what it
means for a character trait to be an essential element of a charge, claim, or defense
IV. FRE 406: Habit; Routine Practice
A. Witness does not need to have knowledge of the specific instance; non-
thinking, automatic, predictive conduct
1. Regular drinking NOT a habit; only occasionally
admitted
B. Doesnt apply much in criminal context; more likely to be used in civil
case
Hearsay Definitions
I. Hearsay Overview
A. Problem with I didnt hear it is that he doesn't have direct knowledge,
cannot rely on his personal perceptions
B. Problem with hearsay is that we cannot test the person who saw/heard
the original event (this person is the declarant)
C. Do not have the person who has the knowledge therefore cannot test
them
II. FRE 801(a) - (c) Definitions that Apply to this Article
A. Language
1. (a) Statement. Statement means a persons oral
assertion, written assertion or nonverbal conduct, if the person intended is an
assertion
a) needs to be from a person
b) from an animal is not hearsay;
machines, like animals, are not hearsay
c) e-mails, would be hearsay
2. (b) Declarant. Declarant means the person who made
the statement
3. (c) Hearsay. Hearsay means a statement that:
a) The declarant does not make while
testifying at the current trial or hearing; OR
b) A party offers in evidence to prove the
truth of the matter asserted in the statement
III. ShortHand Definition
A. Out of court statement, offered to prove the matter asserted in the
statement by the declarant
B. What are key issues:
1. KEY Issues:
a) statement intended to assert something
b) statement was not made in the
courtroom
c) being used at trial to prove a material
fact of the case
d) offered AT TRIAL to prove that the trust
of the matter asserted IN THE STATEMENT
IV. Three Tools to Find the Truth (mechanisms for this trial)
A. Whether the statement is made under oath
B. Observing the demeanor of the witness
C. Cross-Examination (viewed as the important tool to assess truthfulness)
V. States that are offered at trial can be used to prove different things:
A. Another purpose (we dont care whether the statement is true or false but
offering it for another reason) than the truth of the matter asserted than NOT HEARSAY
1. offer for an effect on the listener
VI. What is the Statement Offered to Prove?
A. However, there are some instances where the statement goes beyond
communicating the declarants thoughts about the world. In some instances, the statement
may have behavioral or performance qualities that are significant in revealing
information about declarants state of mind, and the declarants state of mind is relevant
to an issue at trial.
1. In these instances the statement by be relevant
VII. Two Overriding Questions
A. Is the litigant offering the statement to prove the truth of what the
statement says or was meant to say?
B. Did the declarant assert or mean to communicate that fact?
VIII. Hearsay Checklist
A. Is there a statement?
B. Is it an assertion?
C. What is it trying to assert?
D. Was the statement made in court or out of court (some other time)
E. What is the statement being offered for?
1. If the statement is being offered for the truth of the
matter asserted in the statement
a) HEARSAY
2. If the statement is being offered for another purpose
other than the truth asserted in the statement
a) NOT HEARSAY
F. If it is hearsay, do any exceptions apply?
Hearsay Exceptions
I. Five Categories of Hearsay Exceptions
A. Prior Statement by witnesses (801(d)(1))
B. Statements by Party-Opponents (801(d)(2))
C. Declarants Availability Immaterial (803)
D. Declarant Unavailable (804)
E. Residual Exception (807)
II. Three Primary Reasons for Hearsay Exceptions
A. The out of court statements are sufficiently trustworthy and that making
them come into court is unnecessary
B. We need the evidence, hearsay is better than no say
C. Fairness in the proceeding
D. Two values:
1. necessity and trustworthiness
III. Statements by Party Opponents FRE 801(d)(2)
A. The statement is offered against an opposing party and:
1. (A) was made by the party in an individual or
representative capacity
a) Rationale:
(1) its the adversarial
environment; therefore it is fair game as long as its relevant
(2) any statements you
make you have to live with
(3) likely to be more
truthful; wouldnt lie
(4) some of the hearsay
concerns dont apply
(5) Broad rule - no personal
knowledge of statements made
b) If he has a representative capacity and
the statement is offered against him in that capacity, no inquiry whether
he was acting in the representative capacity in making the statement is
required; the statement need only be relevant to representative affairs
2. (B) Adopted admissions/statements (the party
manifested that it adopted or believed to be true)
a) Doyle Holding = after someone is given
Miranda, if they are silent, that cannot be used against them
b) Silence Rationale
(1) when silence is relied
upon, the theory is that the person would, under the
circumstances, protest the statement made in his presence, if it
was untrue
(2) civil cases:
(a) the
results have been satisfactory
(3) criminal cases:
(a) troubles
ome questions by failing to deny an admission, however,
the rule contains no special provisions concerning failure
to deny in criminal case
c) Requirements
(1) that the party against
whom the statement is being offered heard the statement
(2) that the party could
have responded
(3) that the circumstances
naturally called for a response
(4) that the party failed to
respond or deny (or responded but did not rebut)
3. (C) Speaking Agents (made by a person whom the
party authorized to make a statement on the subject)
a) General
(1) *****The statement
must be considered but does not by itself establish the declarants
authority ******
(2) Broad based rule
(3) Communication to an
outsider hasnt generally been thought to be an essential
characteristic of an admission
b) Looking for in this exception:
(1) What was the
relationship? (was there an agency relationship = most common)
(2) What is the source of
the relationship and whether person is speaking on behalf of that
person?
4. (D) Made by the partys agent or employee on a
matter within the scope of that relationship and while it existed
a) General
(1) **** The statement
must be considered but does not by itself establish the existence
or scope of the relationship **
(2) Usually, based on the
basis of an employment relationship
(3) Can be both broader
and narrower than 801(d)(2)(C)
b) Why should the statements be binding:
(1) Knowledge
(2) The employees will
have the best information that is needed to make that
assertion/truthful on the matter asserted
5. (E) Co-conspiracy (made by the partys
coconspirator during and in furtherance of the conspiracy)
a) ***The statement must be considered
but does not by itself establish the existence of the conspiracy or
participation in it
b) Elements of Co-Conspirator Statements
(1) Must prove that the
parties conspired (example = the existence of the conspiracy)
(Coventurer requirement)
(2) Statement made during
the conspiracy (Pendency requirement)
(3) Made in furtherance of
the conspiracy (Furtherance requirement)
(a) *
Standard that must be met = preponderance of the
evidence
c) ***The limitation upon the admissibility
of statements of co-conspirators to those made during the course and in
furtherance of the conspiracy is in the accepted pattern.
IV. FRE 805 (Double Hearsay)
A. Hearsay within hearsay is not excluded by the rule against hearsay if
each part of the combined statements conforms with an exception to the rule
1. Follow the bouncing ball
2. Exception(s) has to apply to each hearsay; both have to
be satisfied
Evidentiary Privileges