EVIDENCE

Evidence law is statutory in nature – you need to pay attention to the language of the rule
Because the rule is the rule
There is legislative history and a common law background (has contributed to the rules)
In 1975 – Federal Rules are published
She doesn’t ask about the history of a particular rule, just about the rule
Do the evidence rules improve on the __ of free proof ?

WEEK ONE
Read Chp. 19 (p. 717-722), Chp. 2-3 // Assignment #1
o Tuesday: Chapter 2, read Problem 19-1 (pp. 717-723), and draft a closing argument in United
States v. O’Ruben in your role as prosecutor
o Chp 2: 1-3
o Chp 3: 1-4, 6-7, 10, 14-17, 19-24

CHAPTER 19:
19.01 Problem
Closing Argument as Prosecutor

CHAPTER 2:
Roles people play in a Trial
2-1: Alimony Al
Can the judge consider the letter from the purported author of the journal in determining whether to admit the
book? Why?
 Judge can consider the letter in determining whether to admit the book. The judge can consider all
evidence. Rule 104(a)
Anne calls Al's new wife, Kristine, to the witness stand. Al objects, relying on the marital communications
privilege. What standard of admissibility applies in determining whether the privilege exists? How does the
standard compare to general relevancy determinations?
 You can’t consider privileged information – but have the same standard when determining whether the
privilege exists (in chambers)

2-2: “Justice Was Done, So Appeal Immediately”

What is the appropriate standard of review by the appellate court?
 Abuse of Discretion because a rule afforded discretion to a trial judge and the judge's evidentiary ruling
exceeded the boundaries of that discretion. The mistake was significant enough and important enough.

2-3: My Cousin, the Lawyer, Vinnie

Should the appellate court consider these objections? Explain.
 Yes, but the interpretation is no?? idk
 CHAPTER 3:
Relevance

Problems:
3-1: Judge Judy
Are the women’s reaction to Judge Judy’s decision relevant? TO what issue is their reaction relevant?
What assistance do the Advisory Committee Notes provide in resolving the relevancy issues in this problem?
Is the parable instead involved two men who both claimed to be the father of the child, would their reaction be
similarly relevant or irrelevant? Compare the relevancy of the reactions of the alleged mothers to the reactions
of alleged fathers.
 Yes, whether which woman actually had a connection to the child
o But also not saying that the other woman doesn’t love the child
 All evidence is admissible other than that what’s barred by the rules and the federal laws? Perhaps that
its relevant bc it makes a connection to the relationship between the women and the child?
 Similarly relevant?

3-2: Bermuda Love Triangle

If Freddy did write the letters, are the letters relevant? To what are they relevant? Write out the chain of
inferences that make the letters relevant.
 Chain of inferences:
o Possible motive – eg, crime of passion
o Possibly not relevant bc months before

3-3: Missing
Which of the following evidence is relevant in determining who took the money? Explain your answers by
describing the inferences you drew from the evidence.
 Could have been the same $50 bill, maybe not many people carrying around $50. Make it slightly more
likely that he took the woman’s bills
 They were trying to leave the movie with the cash without being caught with the purse
 Possibly showing a history of crime, not relevant, would probably be an unfair prejudice, Character
evidence at best
 Yes, it could indicate whether it is more likely that a man/woman took it

3-4: Eddie from Boston

Which of the following items of evidence would be relevant to the prosecution’s case? Explain using inference
chains.
 Relevant: he was trying to scope out the bank
 Relevant: history of robbing banks
 Relevant: history of stealing
 Not Relevant: has nothing to do with the stealing, only tenuous connection is that he uses force which is
an element of robbery
 Relevant: provides motive for wanting to steal
 Relevant/irrelevant: weapon used was a revolver, but possibly relevant bc he is familiar with firearms

3-6: “Beam Me Up…”

Is this evidence relevant? If so, relevant to what?
 Not relevant to the question of whether or not he was acting within scope of employment

3-7: Fire!
How would you argue this objection if you were the prosecutor? How would you argue the objection if you
were defense counsel? What ruling would you make if you were the judge?
  If prosecutor: IT’s relevant bc it shows a connection bc he took out extra insurance for fire on the house
before it burned down.
 Defense: Irrelevant bc it happened 7 mo. Before the fire. Could be other reasons he took the extra
insurance.
 Probably disallow it if I were the judge
 Judge would probably allow it and let the jury decide/

3-10: Ahnald
Is this testimony relevant? Relevant to what?
 Hearsay, relevant yes in self-defense
Does it matter whether Ahnald was in fact “out to get” Franz?
 No, it doesn’t matter, what matters is what Franz reasonably believed
If Franz cannot recall who told him that Ahnald was out to get him if the evidence still relevant?
 Possibly – yes?

3-14: A Bottle of Red

Should the judge admit the evidence?
 No, it is irrelevant whether he purchased liquor earlier in the day to the question of whether or not he
was driving with intoxicated
o Hard to say if the judge should admit it bc he could have bought it as a gift.
Would it be relevant of Billy was seen carrying an empty, rather than a full bottle of wine at 2pm?
 No, it doesn’t mean that he drank it
o If its empty at 2pm it doesn’t tell us what happened at 7pm
Would it be relevant if Billy was seen carrying a half-empty wine bottle at 2pm?
 Yes, because it would indicate that the bottle is open and he was likely consuming it.
o A little closer to relevant than the last question
Would the 2pm purchase of wine be relevant, if, at the time Billy was arrested, he smelled of beer?

3-15: “Name Your Price”

Is this testimony relevant? If so, relevant to what?
 Yes, relevant to the character of the P. It could show that the plaintiff was attempting to cause another
person to commit perjury.

3-16: Too Rough Justice

Is Haynes’s refusal to jump relevant? To What?
 No, it has nothing to do with whether Haynes bit his former friend
Is it relevant if Haynes, prior to being told to jump, attempted to escape while in custody? Why?
 No, it has nothing to do with whether Haynes bit his former friend

3-17: “Lions and Tigers and…”

Is this evidence relevant?

3-19: Exploding Tire

Can she ask the witnesses about the other tire accidents?
 Yes, she can ask the witnesses about the other tire accidents if she is attempting to undermine the
witness’s credibility
 Prof. Ramirez said its prob not relevant but could be a slight connection
o Trying to contradict the testimony thru other evidence to impeached the witness
 No question that 401 covered credibility  here we are talking about the witness

3-20: Parnell v. Asbestos, Inc.

What is this evidence offered to show? Is it relevant? Should it be admitted?
 Evidence offered to show – the expert witness testimony
 Yes, it is relevant bc it would help establish that D’s product does not cause cancer
 Yes, it should be admitted

3-21: Blowing Smoke

Is the motive evidence relevant?
 No not relevant bc he is offering evidence of an alibi
 This is evidence of third-party guilt, establishing motive is not enough – has to be something more.
Need to have enough evidence to raise a reasonable doubt

3-22: On a Cloudy Day

The D objects to this evidence. What is the basis for this objection?
 Basis for the objection: the piece of steel blade was found 10 yards away
o Doesn’t make it likely that the weed thing was broken. Lack of foundation; 104(b) conditional
relevance
How is this evidence conditionally relevant?
 Probably would have to prove that the piece of steel blade found was part of the hedge cutter before
allowing it to be introduced.
o Would have to prove the hedge trimmer exploded first, proven to be part of the equipment
Does adding visual language to the problem affect the way this problem is considered? How would this
language be received by a jury?
 Yes it could influence the jury to think that there would be no wind or adverse weather that caused the
blade to fly so far away.

3-23: Stone Crabs

Are these gloves conditionally relevant? Why? What must be shown for the gloves to be admitted?
 Yes, they are conditional bc there’s no connection yet but they could provide the connection of why
there were no fingerprints on the gloves
 They would need to prove that Alice used the gloves of was connected to them in some way
o Could need to show that the gloves fit Alice, or that they were hers. Have to establish that they
belonged to the burglar
o Could show that they don’t use the gloves in that kitchen bc they are a different color, etc. Could
also ask the staff if anyone was missing their gloves.

3-24: Defective Pain

What foundational evidence might you offer to show a connection between the two sets of paint drums?
 The paint was manufactured in the same way
o Same chemical compositions, but tint added after
o Basically want to show that they are the same in every aspect
 The same types of drums were used
 The paint was tinted from a base used in both paint drums

Rulings on Evidence
FRE 103 & FRE 104

FRE 103: Effect of Erroneous Ruling

• A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial
right of the party
 • It is an objection, or overruled
• Error  Reversal … if it probably affected the judgment below (on appeal)
• Some errors are considered harmless, some are considered reversible
• Emphasis on fair trials, not perfect trials

FRE 103: Making the Record

• Error likely affecting judgment, and
• Opponent makes timely objection or motion to strike, stating specific ground, or
• Proponent makes offer of proof (there are formal and informal offers of proof)
• At or before trial
• Outside of hearing or jury

FRE 103: Plain Error

• A court may take notice of a plain error affecting a substantial right, even fif the claim of error was not
properly preserved
• It is usually when you fail to object
• It is so bad that they rule on it
• The mistake undermines the integrity of the proceedings
• Plain error is rarely granted

CHAPTER 3:

Problems:

3-1: Judge Judy

 Yes, women’s reactions are relevant. The strong emotional reaction show who the mother is.
o Probability and experience – showing that there is a connection such as mother
 ?
 I think it challenges our societal framework but its possible that we can

3-2: Bermuda Love Triangle

If Freddy did write the letters, the letters are relevant. They speak to a potential affair which speaks to a desire
to be with the wife and the necessity to kill Jason.

3-3: ?

3-4:
1. Infers that Eddie was there at the scene of the crime to case the joint // He was just there for the bank
and they see his face and introduce yourself before you rob someone.
2. Relevant because he has done this before // it would be unfairly prejudicial bc he has done this crime
before. It doesn’t establish a connection between the two but it has some tendency that he did it.
Minimally relevant. Exclude it under 404
3. ?
4. Minimally Relevant: Shows he has violent tendency
5. Relevant: shows he is lacking for money and needs it
6. Relevant: shows he is lacking for money and needs it, same as above
7. Relevant: he is used to using guns // Not Relevant: he owns a different type of weapon and would have
used the rifle
8. Not relevant
9. Minimally relevant: is ok doing illegal things
 10. Not relevant

3-10: ?
3-15: ?

3-17:
 Relevant because he had the opportunity to carry out the threat which makes it more likely

WEEK TWO

Chp. 4-5; Do problems 4: 2-7, 9-15

CHAPTER 4:

Problems:

4-2:
 Unfairly prejudicial? Might depend on video itself and how/what it portrays
 Could be unfairly prejudicial
 Just because she has to prove her damages and this helps prove them, its prejudicial bc its going to hurt
the D’s pocket, but doesn’t mean it unduly prejudicial

4-3:
?

4-4:
 Person is treated by others based on “social identity” ie. Age, gender, race, etc.
 Assuming there is statistical data about race, can they bring it in?
o Bc it is statistical, it could be unfair prejudice?
o Only defense is that they reasonably believed they were stopping an assault
o Is the implicit bias relevant?
 Irrelevant bc they didn’t say “stop, police” and went right to shooting them
o Racial bias is a private matter that should not be perpetuated or accommodated by its govt or its
laws. SCOTUS – it means that it is irrelevant, and shouldn’t be an excuse to bring this in based
on biases.
4-5:
 How should a judge rule?
o Probably exclude it bc evidence of excessive violence
o Within the FRE 403 rule bc its probably unduly prejudicial
o Would change things if the contract killer had a pattern of shooting people, but not the case here
 Prosecution probably should stipulate if they want to lose
o What should D’s argue:
 Photo could be so intense for jury that they won’t focus on the actual issue and make an
emotional decision
 Argue that there are alternative methods that they can prove it with other means
 ie. Cut the photo down, use an outline of a person and show the gunshots, etc.

4-6:
  Can go under rule 105 and ask for an instruction to the jury
 Probably not unduly prejudicial
 403 objection for showing stumps
o If already showed them, judge has a fair amount of discretion under 403
o Could motion to strike, best course  get judge to disregard the evidence under 105
o Granting mistrial is bad bc expensive and time consuming

4-7:
 Probably unfairly prejudicial bc the experiment was done on a slight incline; weight should matter too
much if it was only 115 lbs heavier – about the weight of a tank of gas in a normal car. Also, the buick
was identical to the one in the crash. I guess the determining factor would be how much of an incline it
was on.
o Probably prejudicial
 Probably not reversible bc its not a huge difference and it’s a civil case
o Has to be a matter that affects the judgment in the case to be reversible, so not enough info to
answer the question
o Appellate courts almost always affirm on this kind of issue

4-9:
 Yes, bc it shows existence of a dangerous condition
o Probably right
 Probably irrelevant that other people fell bc they may not have the same physical condition as P, also
possibly prejudicial bc it shows there is a high likelihood that someone will fall there
o Probably ok

4-10:
 Parole evidence question  usage between the parties may have established a certain pattern of how to
do things and expectations between the parties. Assuming that scallops and clams are similarly frozen,
and similar events had occurred, the P should have an expectation to rely on the previous remedies
o Probably would admit the evidence
o Parole evidence not an issue here

4-11:
 This is different from other offers of similar acts, etc bc it’s a lack of occurrence rather than a history of
occurrences
 This is unfairly prejudicial to the P bc it could mislead the jury into placing blame on the P Makes them
believe that the injury was less likely to occur

4-12:
 It should not be considered unfairly prejudicial if the other accidences were substantially similar to the
one she experienced. It could show that there is a manufacturing defect/product defect.
 Same as above. Probably ok to be admitted

4-13:
 Evidence of intent, or evidence state of mind  generally gets admitted
 This would probably be admitted

4-14:
1. Admissible
2. Irrelevant
3. Irrelevant  restitution doesn’t change what’s already happened
 4. ?
5. Prejudicial and unreliable
6. Admissible  conditional relevant (this is a subsequent remedial measure  applies in civil and
criminal. Usually almost always civil. Typical example is a staircase with no handrail and someone falls
and gets injured so the owner of the property installs a handrail. Can the change be admissible? Could
show that it was unsafe. Relevant, but generally want to encourage remedial measures, so generally
excluded.
7. Weird question. Can be unduly prejudicial and misleading. Ie. Color coded to match person at trial could
be unfair prejudice; misleading = only showing one person in the video but in real life there would be
two
a. Evidence has to be matching what happened irl to be admissible
4-15:
 C – bc the magazines could just be for design/clothing/fashion purposes. It is not proving that he had
possession of the other magazines
 B – possibly B bc its irrelevant that he has porn w adult persons. Might show that he enjoys watching
porn and trying to sway the factfinder in that direction.
 Close call for B & C
 Other two are admissible

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