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
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
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
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
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.
Only admissible evidence may be reviewed
How do you decided between 104(a) & 104(b)?
If the evidence is absolutely irrelevant without the preliminaryfact, then 104(a) or 401 applies
If the evidence is relevant without the preliminary fact, then104(a) applies