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Evidence-Kirgis 2010

Evidence-Kirgis 2010

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Evidence OutlineFall 2010Prof. Kirgis MultipleChoice/EssayRule 102:
Purpose and Construction: the idea is that if we have areasonable fair/efficient system, then at the end of the day, justice/truthwill come out.Burden of Proof:1. Burden of Production – test: Evidence sufficient to support a findingabout the element of the crime chargeda. If a party fails to meet the burden of production, the case doesnot go to the jury; case dismiss.2. Burden of Persuasion – test: Persuasion of the jury that the facts arein such a way to support a verdict.
FRE 104 Preliminary Questions104(a)→
Where the preliminary fact relates to the
legal admissibility 
of the offered evidence (e.g., the qualifications of an expert),
the issue isdetermined by the judge
. The proponent of the evidence mustestablish a preliminary fact by a
preponderance of the evidence
.
o
Has to do with competence, privilege, hearsay etc –Preponderance of evidence - the question is whether to allowevidence into trial as evidence:
What information needs to be consider
What rule applies
What standard of proof to apply
o
Examples
With experts, the proponent must persuade the judgethe expert possesses expert qualifications
With hearsay, the proponent must persuade the judge of the existence of any facts essential to bring the evidencewithin some hearsay exception
With duplicates, the proponent must show by apreponderance of the evidence the original was lost
104(b)→
Where the preliminary fact goes to
relevancy, credibility, or weight 
of the evidence, the trial judge initially determines onlywhether there has been a minimal showing of the preliminary fact.
The ultimate determination of the preliminary fact is for thejury.
o
Only admissible evidence may be reviewed
How do you decided between 104(a) & 104(b)?
o
If the evidence is absolutely irrelevant without the preliminaryfact, then 104(a) or 401 applies
o
If the evidence is relevant without the preliminary fact, then104(a) applies
 
Trial Overviews:
1. Voir Dire (Jury Selection)2. Opening statement (P –D)3. P’s Case-in-Chief (P direct and D crosses)a. Enough evidence must be brought for or case dismiss4. D’s Case-in-Chief (D directs and P crosses)5. P’s case in rebuttal (P direct and D crosses)6. D’s case in Rebuttal (D direct and P crosses)7. Closing argument8. Charge: Jury Instruction9. Verdict
Rule 103(a): “
Error must be predicated” –meaning you will not be able toappeal if you do not object1. Objections must be made in a timely manner.
RELEVANCY & PROBATIVE VALUEFRE 401 - Relevance
Relevant evidence is any evidence having any tendency to make a fact
more probable or less probable than it would be without theevidence
that is of “consequence to the determination of the action.”Relevancy is the sum of two different concepts:
Materiality
1. Relates to whether the evidence is offered upon a matter properly inissue2. Some issues are always material→credibility of witnesses3. Relationship between the point being offered and the elementnecessary. “…of consequence to the determination of the action…”
Probativeness
1. Evidence must logically tend to prove the proposition for which it isoffered2. Probativeness is a matter of sense, logic, and experienceNote: The evidence must not make the proposition substantially morelikely than not but only somewhat more likely than not.
FRE 402
1. Only relevant evidence is admissible2. The evidence must bear a sufficient relationship to the matters indispute3. The evidence must
tend to prove or to disprove
any proposition
4. Circumstantial v. Direct Evidence
a.
Direct
→is establishing an essential element of the case –involves an eye witness account of the ultimate issue.2
 
b.
Circumstantial
→an essential element not so immediate andmay require intervening inferences – drawing inferences
Rule 104(b) Conditional Relevance:
Evidence sufficient to support afinding test – When the relevancy of evidence depends upon theadmissibility of a conditioned of fact subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition
FRE 105
Where evidence is admissible for one purpose (or as to one party), it is notrendered inadmissible solely because it is improper or irrelevant for someother purpose.
FRE 403 - Balancing
Evidence may be excluded if its
probative value is substantially outweighed 
by the danger of:
Unfair prejudice 
→refers to the danger that evidence might suggestan improper basis upon which the jury could decide the case.
o
The test is not whether the evidence is detrimental, butwhether it is so unfairly prejudiced as to substantially outweighits probative value.
o
Evidence can trigger a response that has nothing to do with itslogical connection to a fact of consequence.
o
A single item of evidence can generate several differentinferences and be used by the jury in more than one way.
o
This rule prohibits the use of prior specific acts to prove actionin conformity with the character.
Confusion of the issue 
→evidence confuses the issues when it focusesthe jury’s attention too closely on a factual issue that is not central tothe outcome of the case. Such issues are called collateral
Misleading the Jury 
o
A risk that a jury may give a piece of evidence more weightthan it deserves
Undue delay 
Waste of time 
Needless presentation of cumulative evidence 
With 403 you must assess the probative value by examining:1. Strength of the underlying inferences2. Certainty of the starting pointa. Judges may not consider the credibility of witnesses, it is thejury’s job to determine the weight; the judge only determinesthe relevancy3. Need3

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