II.Rule 403: Probative Value and the Rule 403 Dangers

I.Relevancy (Rule 401 – 402)

c.Rule 403 dangers

III.Laying the Foundation for Proof

a.Laying the Foundation for Witnesses

i. FRE 601: Competency

ii. FRE 602: Lack of Personal Knowledge

iii.FRE 601, 602, 603 taken together

iv.FRE 603: Oath or affirmation

b.Laying the Foundation for Authentication and Identification of Exhibits

i.FRE 901(a)( & (b): Authentication and Identification of Exhibits

ii.FRE 902: Self-Autheticating Documents

c. FRE 104: Judicial Determination of Preliminary Questions

IV.FRE 1001 -1007: The Best Evidence Rule and Additional Provisions

a.FRE 1001: Best Evidence Rule

b.FRE 1002: Requirement of Original; Former Testimony; Depositions

c.FRE 1003: Admissibility of Duplicates

d.FRE 1004: Admissibility of Other Evidence of Its Contents

e.FRE 1005: Public Records

f.FRE 1006: Summaries

g.FRE 1007: Testimony or Written Admission of Party

h.FRE 1008: Functions of the Court and Jury

V.The Character and Propensity Rules

b. FRE 404 & 405: Evidence of a Person’s Character Used to Show Action in Conformity with That Character

ii.FRE 404 – Character evidence not admissible to prove conduct; exceptions, other crimes

iii. FRE 405: Methods of proving character

VI.FRE 412-415: Sexual Behavior, Sexual Assault and Child Molestation

a.FRE 412: Relevance of Alleged Victim’s Past Sexual Behavior or Alleged Sexual Predisposition

b.FRE 413-415: Evidence of Similar Crimes in Sexual Assault and Child Molestation

VII.FRE 406: Habit and Routine Practice

VIII.FRE 407-411: Evidence Inadmissible to Prove Fault or Liability

a.FRE 407: Subsequent remedial measures

b.FRE 408: Compromise and Offers of Compromise

c.FRE 409: Payment of Medical or Similar Expenses

d.FRE 410: Withdrawn Guilty Pleas, Pleas of No Contest, and Offers to Plead Guilty

e.FRE 411: Liability Insurance

IX.Two Issues that NO Federal Rule of Evidence Addresses

a.Similar Happenings

X.HEARSAY RULES: SEE ATTACHED SUPPLEMENT

XI.Impeachment

b. FRE 607: Who May Impeach

c. FRE 608: Character Evidence – Impeachment and Rehabilitation

ii. FRE 608(a)(1) & (2) : Opinion and Reputation Evidence of Character

iii.FRE 608(b)(1) & (2): Specific Instances of Conduct

iv.FRE 608(b)(2): Specific Instances of Conduct

d.FRE 609: Impeachment by Evidence of Conviction of Crime

ii.FRE 609(a): The General Rule

iii. FRE 609(b): Time Limts

e.FRE 613: Witness’s Prior Statements – Impeachment and Rehabilitation

ii.FRE 613(a): Examining Witness Concerning Prior Statements

iii. FRE 613(b): Extrinsic Evidence of Prior Inconsistent Statement of Witness

iv.Prior Consistent Statements

f.Other Impeachment Techniques

i.Bias

ii.Mental or Sensory Incapacity

iii. Contradiction

XII.FRE 701-705: Lay Opinions and Expert Witnesses

a.FRE 701: Lay Opinion

b.FRE 702: Testimony by experts

c.FRE 703: Bases of Opinion Testimony By Experts

d.FRE 704: Opinion on Ultimate Issue

e.FRE 705: Disclosure of Facts or Data Underlying Expert Opinion

I.Relevancy (Rule 401 – 402)

General
Rule 401: Definition of Relevant Evidence
Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probably than it would be without the evidence
The judge makes its determination under Rule 104(a).
Only relevant evidence helps the jury achieve rational outcomes, meaning outcomes based on the jurors’ use of their reasoning capacity
Only relevant evidence is admissible
“Immaterial” is the common law parlance for “irrelevant”
Rules
FRE 401 – “Relevant Evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
FRE 402 – All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by an Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant ot statutory authority. Evidence which is not relevant is not admissible.
Interpretation of FRE 401 and 402
Their must be a logical process of deduction from the EF(Evidentiary Fact) to the FOC (Fact of Consequence) to the EE (Essential Element as defined by the cause of action).
Several other Inferrential Facts (IF) can be made
i.e. EF  FOC  EE
Relevant Evidence must make a FOC more or less probable
Probability is determined from Knowledge and Experience
Jury uses its various knowledge and backgrounds
Advisory note to FRE 402: “principles evolved by experience and science, applied logically to the situation at hand.”
Relevancy requires reasonable generalizations
In other words, “whether a reasonable person might believe the probability of the truth of the consequential fact to be different if that person knew of the proffered evidence.”
Two exceptions to the “reasonable juror” test:
The necessary generalizations cannot be known to the judge to be false (“people can see through brick walls”)
The necessary generalizations cannot be speculation (“people with red hair are more aggressive than brown-haired people”)
The exceptions are to hinder prejudices
FRE 401’s minimal standard of “Any Tendency”
FRE 401 defines relevancy as “any tendency to make the existence of any fact . . . more or less probable.”
Therefore, if even a slight bit more probable, it should be allowed
This is because judge’s can’t make any assumption as to what others know as anyone else can
The relevance of evidence is determined by whether the evidence could (not would) influence a reasonable juror or reasonable jury.
Direct v. Circumstantial Evidence
Relevant evidence can be either direct or circumstantial
Direct Evidence – Evidence that, if believed, establishes an essential element.
Circumstantial Evidence – The evidence presented requires several intervening inferences to reach the essential element.
Therefore, all that differentiates these pieces of evidence is the length of the inferential chain.
Background Information
“Background information about the witness who is testifying is “always admissible . . . it allows the jury to make better informed judgments about the credibility of a witness and the reliability of that witness’ observations.”
Advisory Committee Note to FRE 401 explicitly allows consequential evidence (that which explains a situation better)
Elaboration of FRE 401 and 402
Knapp v. State:
App. Convicted of 1st degree murder and plead self-defense. Testified he had heard from “someone” in town that sheriff had beaten an old man to death to show he was afraid of sheriff. State was allowed to introduce evidence that the old man died of alcoholism and senility. App. appeals b/c he thinks the only important evidence was that he “heard” the story. Held, not error to introduce state’s evidence because it negates what the app. was likely to have actually heard.

II.Rule 403: Probative Value and the Rule 403 Dangers

Rule 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
Illustration/Examination
Relevant evidence is to be excluded only if its probative value is substantially outweighed by one of the rule’s articulated dangers
Probative Value
The judge must first analyze the persuasive effect that the item of evidence will be likely to have on the jury’s thinking about the fact of consequence it is offered to prove
Strength of the underlying inferences
Most courts and commentators agree that the primary measure of probative value is the strength of the inferences that connect the evidentiary fact to the fact of consequence and then to an essential element of the case
Certainty of the starting point
How certain is the starting point in the inferential chain is important for affecting the probative value
However, judges are admonished not to make judgments as to believability. Judges must estimate the probative value of statements as if they were to be believed.
Need
Advisory Committee notes also say that, alongside probative value, judges’ are to balance the need for the evidence.
The lack of alternative forms of proving a fact of consequence can also raise the probative value of an item of evidence “in the relative sense, as being determined by supply and demand.”
Rule 403 dangers
Unfair Prejudice
The term refers to the danger that evidence might suggest an improper basis upon which the jury could decide the case.
Evidence is not unfairly prejudicial simply because it is detrimental to a party’s case.
Two principals judge this issue:
Evidence about a party can trigger a response that has nothing to do with its logical connection to a fact of consequence (often emotionally)
Evidence can be used in a manner that violates an evidence rule. For example, the violation of establishing an inference that shows that past actions are in conformity with character
Confusion of the issues
Evidence can confuse an issue when it focuses the jury’s attention too closely on a factual issue that is not central to the outcome of the case.
These are termed “collateral” issues – their connection to the essential elements is trivial and may be based on complicated to attenuated theories of relevance.
Misleading the Jury
Often no distinction made between confusion and misleading.
Usually, misleading refers to the risk that jurors will draw a mistaken inference.
Evidence can also be misleading because jurors have a problem estimating its persuasive force.
Scientific evidence and expert testimony can also appear overpersuasive.
Undue Delay, Waste of Time, and Needless Cumulative Evidence
Evidence may not be excluded solely to avoid delay . . . under Rule 403, the court should consider the probative value of the proffered evidence and balance it against the harm of delay.
Evidence may waste the jury’s time if offered to prove stipulated, collateral, or background facts.
Probative Values “substantially outweighed” by Rule 403 dangers
Generally: What is the likelihood that the “bad” aspect of evidence will seriously dominate the mind of the jury, overwhelming the “good” aspect?
Evidence should be excluded only when the judge is quite confident that the prejudicial aspects of the evidence outweigh its probative value
The Effect of Limiting Instructions on the Balancing Process
FRE 105 – When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly
Judge may give a limiting instruction that directs the jury to consider the evidence only for its proper use
May serve to emphasize the inadmissible evidence, which may be more damaging than simply letting the matter go unnoticed
Courts assume that these instructions are effective
Notes
Rule 403 can often be used to exclude gruesome photographs, etc.
Old Chief v. United States (FRE 403)
Old Chief was arrested and charged under a statute that said if convicted of a crime punishable by more than one year and possession of a firearm, he’s guilty. He wanted to reduce the evidence to stipulate he had been convicted of the crime punishable by more than one year, not that he had been convicted of assault – he thought this would add unfair prejudice by the jury forming a character judgment. Held, the failure of the court to stipulate to this evidence is reversible error. (1) Under Rule 403, alternative forms of evidence can be compared (as opposed to Rule 401) to determine the least prejudicial type. In this way, Old Chief wins. (2) However, sometimes some prejudicial evidence can be used to tell a story and connect inferences in a logical sequence. “A convincing tale can be told with economy, but when economy becomes a break in the natural sequence of narrative evidence, an assurance that the missing link is really there is never more than second best.” (3) Here, the nature of the crime could be shown by the stipulation, and the name of the crime, assault, was not needed to satisfy the statute or aid the jury in determining whether Old Chief was guilty. (4) Therefore, the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.

III.Laying the Foundation for Proof

Laying the Foundation for Witnesses
FRE 601: Competency
Every person is competent to be a witness except as otherwise provided these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with state law.
Key Points
FRE 601 establishes that all persons are competent to testify. In most cases, facts that bear on competency will affect the weight of the witness’s testimony, but not that ability to testify.
Particular challenges to the competency of individual witnesses may be resolved as a matter of the trial court’s Rule 601 discretion, or under FRE 602, 603, and 403.
First sentence abolishes all categorical grounds of incompetence, except where state law provides an exception to the rules.
FRE 605 and 606 prohibit the presiding judge or jury from testifying
The FRE permit the jury to decide whether such status or interests of a witness affect his/her credibility, whereas the categorical incompetencies of statutes and the common law would have withheld witnesses form the jury entirely.
FRE 603: abolishes the moral qualification of taking a religious oath in favor of secular obligation to testify truthfully
Pg. 202-203: discussion of the mentally incompetent witness
Pg. 203: discussion of child witness
FRE 602: Lack of Personal Knowledge
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the wetness’ own testimony. This rule is subject ot the provisions of Rule 703, relating to opinion testimony by expert witnesses
Key Points
FRE 602 requires that witnesses must have personal knowledge of the matters about which they testify. The proponent of a witness must present evidence sufficient to support a finding of the witness’s personal knowledge, typically by having the witness testify that the witness saw, heard, or otherwise perceived those matters
Requirement of Personal Knowledge
Percipient witnesses – eye witness or at the scene of the crime
This avoids hearsay or speculation
Requirement of Evidence sufficient to support a finding
Must meet “sufficiency” standard of proof (FRE 104(a))
If the fact of personal knowledge is disputed by the opponent, then final resolution of the question is given to the jury as part of its decision-making role
Usually all that has to happen is the proponent of the evidence ask the witness of they saw or heard the events
FRE 601, 602, 603 taken together
These rules require:
the witness has the capacity to accurately perceive, record and recollect impressions of facts at the time of the event
The witness in fact did perceive, record and can recollect impressions of having any tendency to establish a fact of consequence in the litigation
The witness declares that he will tell the truth, understands the duty to tell the truth as well as undertstands the difference between the truth and a lie or fantasy, and
The witness possesses the capacity to comprehend questions and express himself understandably, where necessary with the aid of an interpreter (Rule 604 – narration)
FRE 603: Oath or affirmation
Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.
Other rules
FRE 604: Interpreters
FRE 605: Judge Can’t be a witness
FRE 606: Jury can’t be a witness
Laying the Foundation for Authentication and Identification of Exhibits
FRE 901(a)( & (b): Authentication and Identification of Exhibits
The Rule
(a) The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims to be
(b) By way of illustrations only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:
Key Points
Real evidence is a tangible exhibit that played some role in the events that are in dispute at trial
Real evidence is usually identified pursuant to FRE 901 by testimony concerning a readily identifiable characteristic of the exhibit or its chain of custody. Testimony concerning chain of custody may also be necessary to establish the exhibit’s unchanged condition.
Pursuant ot FRE 901(a), the judge must decide whether there is evidence sufficient to support a finding of the exhibit’s identity and unchanged condition
Proponent of the exhibit must do two things:
To articulate what it is the proponent claims the exhibit to be
This is the time to articulate the connection between the item and how it connects to the people or events
To produce testimony “sufficient to support a finding” that shows what the exhibit is
This just means evidence that proves that what you’re introducing is what you say it is. It is someone’s signature, it is a rental agreement, etc.
General notes
Examples in 901(b) are not exhaustive of things that would satisfy the requirements
Judicial Determinations of Sufficiency Under FRE 901(a)
Evidence upon which the judge thinks a jury could reasonably find a fact to be more likely true than not.
The Process of Laying the Foundation
You offer it into evidence
You have a hearing where it is proved
It becomes part of the record: ready for appeal process, etc.
Elaboration of FRE 901: Real and Demonstrative Evidence, Written Documents, and Recordings
Real Evidence
Tangible items that played some role in the litigated event and from which the jury can draw inferences
Weapons, home appliances, etc.
Can be identified through a readily identifiable characteristic or through a chain of custody
Under FRE 901, the complete chain of custody is not always required
Demonstrative Evidence
General
Exhibits that reproduce or depict persons, objects, or scenes that are connected the litigated events in the case
It is relevant b/c it its content is connected to the case and is typically identified by a person