EVIDENCE UNDER THE RULES

Text, Cases, and Problems – Mueller, Kirkpatrick

UNIT I: THE TRIAL

1 Introduction 1-48; 487-494
FRE 101-106, 601, 602 & CAN, 611 & ACN
Problem 1-A

A. Why Rules of Evidence?

a. Why evidence at all?
i. Mistrust of juries
1. For example. The hearsay doctrine exists because we
believe that a lay jury cannot do a good job in evaluating
statements made outside its presence, and the rules
governing character evidence assume that juries place too
much weight on such proof or use it improperly for punitive
purposes.
ii. To serve substantive policies relating to the matter being litigated.
iii. Furthering substantive policies unrelated to the matter in litigation
– extrinsic substantive policies.
iv. Ensure accurate fact-finding.
v. To control the scope and duration of trial.
1. For example. Rule 403 authorizes the judge to exclude
evidence that would be otherwise admissible because it
would take more time than it is worth and might confuse the
jury.
2. Rule 611 allows the judge to control the sequence of proof
and the manner of examining witnesses.
b. Why Rules rather than Common Law?
i. Accessibility – The Federal Rules of Evidence as the most influential
body of American evidence law.
ii. Success of the Rules – brevity and simplicity
1. Federal Rules of evidence apply in federal courts across the
land in both criminal and civil cases, and generally apply
regardless of whether federal or state law supplies the rule
or decision.
a. FRE 301, 501, 601
In diversity cases where federal courts apply state
substantive law, the Rules require federal courts to
apply state evidence rules in limited areas – namely,
presumptions, privileges, and competency of
witnesses.
B. What Happens at Trial
a. Jury Selection
i. Usually 12 members in criminal cases, sometimes less; in civil cases
often 12, but often as few as six, plus two alternates.
ii. Voir Dire – court and counsel try to find out whether any members
of the panel should not serve in the case at hand.
1. Most people on the panel are usually eligible, and meet
statutory requirements to serve as a juror, however there
are reasons to exclude a member of the panel:
a. If a juror is related to a party by blood or possess a
confidential relationship
b. Prejudiced on one or another issue or against one or
another party (“for cause”)
i. Each party may challenge any number of
people for cause
ii. The judge must determine any such challenge,
excluding if cause is found.
c. Each party has a fixed number of peremptory
challenges (often three), which entitles him to
exclude potential jurors for any reason at all – the
reason need not be stated.
i. Lawyers exercising peremptory challenges
must be prepared to show that they are not
acting on the basis of racial considerations.
b. Opening Statement
i. Gives each side its first opportunity to set before the jury the story
that the ensuing proof will tell.
1. Lawyer presents an overview that will help the jury
understand what is to come.
a. i.e., background facts of the parties.
ii. Customarily the party bearing the burden of persuasion (usually
plaintiff in civil litigation, and prosecutor in criminal cases) has the
right to make the first opening statement, and the opponent
follows.
iii. In theory, the opening statement is not an argument.
1. Instead, it sums up facts that each party contends that her
proof will establish.
c. Presentation of Proof -- Where each party seeks to build his case and
tear down opponents
i. Ordinarily the party with the burden or persuasion goes first,
followed by his adversary, and each may have additional turns if
needed.
ii. Presentation of “case in chief”, “case in rebuttal” …
 1. The process may go on until each side is satisfied, or the
judge decides that proof and counterproof have become
repetitive or trivial.
iii. Each party calls every witness on who m he depends, building his
case by testimony elicited on “direct examination”.
1. Introduction of tangible evidence,
a. i.e., allegedly defective steering link tat caused the
accident, or the contract sued on.
iv. “Cross examination”
1. The opponent can cross examine only on subjects opened
up on direct, and may not go into other relevant matters not
explored on direct (“scope of direct rule”).
d. The Order of Proof
1. Plaintiff (or prosecutor) presents his case in chief, the rests;
2. Defendant presents his case-in-chief, then rests;
3. Plaintiff (or prosecutor) presents his case in rebuttal
4. Defendant presents his case in rebuttal (“case in rejoinder”)
5. Each side presents further cases in rebuttal.
e. The Order of Examination
1. Direct examination by the calling party;
2. Cross examination by the adverse party
3. Redirect examination by the calling party
4. Re-cross by the adverse party
5. Further redirect and re-cross as may be necessary.
f. Trial Motions
i. When the evidence of both sides is in, a party confident that a
reasonable person could find only in favor of his or her client may
make a motion for judgment (only the defense may do so in a
criminal case).
1. Here the court has a chance to assess the sufficiency of the
proof and to take the case from the jury if a reasonable
person could resolve the dispute only in one way.
g. Closing Arguments (Final Say)
i. Individual possessing the burden of persuasion has two
opportunities to make closing arguments.
h. Instructions
i. Judge instructs the jury on the law, so it understands what it must
decide in order to reach a verdict for either party.
1. Explain substantive principles
2. Allocate and define the burdens of proof on the issues.
3. Evidentiary matters
a. Exclusion from consideration certain testimony that
was heard or information suggested by a question
during trail.
 ii. Parties draft proposed instructions before the process of proof has
been completed
iii. Curative vs. limiting instructions
i. Deliberations
j. The Verdict
k. Appellate Review
i. Even when judgment has been entered, a party may obtain full
appellate review only if it has preserved its claim of error by stating
its position promptly and clearly at trial.
ii. If procedural steps have been taken, appellate review of evidence
rulings may lead to relief
1. Only if the reviewing court concludes both that
a. the trial court erred and
b. that the error probably affected substantial rights of
the appellant, hence the error was reversible rather
than merely harmless.

C. Making the Record.

a. What is the Record and How is it Made?
The “official record’ of a trial actually comprises five different kinds of
material:
i. The pleadings.
ii. Filed documents
iii. The record of proceedings.
iv. The exhibits
v. Docket Entries.
b. The remote audience is the appellate tribunal, which neither sees nor
hears the performance, and depends entirely on a secondhand source –
the cold written record.
D. How Evidence is Admitted or Excluded –
a. Getting Evidence In: Foundation and Offer
i. Testimonial Proof – Direct Examination
1. Background information – name and address and other basic
facts.
2. “laying the foundation” for the testimony to follow by asking
questions that show the witness has “personal Knowledge”
of the matters to which he will speak.
3. “Substantive Questions” getting at the witness’ knowledge of
pertinent facts.
ii. Forms of Questioning
1. For the most part, direct examination must proceed
by nonleading questions. See Rule 611(c).
 a. Questioning should not unnecessarily push the
witness toward a particular response – it should
not be too suggestive of the answers sought
iii. Testimonial Proof – Cross Examination
1. Seeks to set limits or bring out inconsistencies in the direct
testimony
a. Leading the witness on cross is acceptable because
the qualities in this form of questioning that seemed
bad during direct may now seem beneficial.
i. Leading Questions during cross examination
may:
1. Invoke the conscience of the witness
and awaken his memory sufficiently to
dislodge him from his previous version
of events in favor of what he himself
considers a more complete or accurate
version
2. Expose limits or inaccuracies of his
memory
3. Focus his attention on important details.
2. Scope of Direct Rule
a. A critical limit on cross examination is the principle
that cross questioning is limited to matters explored
on direct.
i. The rule aims to confine the opponents’ ability
to interrupt the callings party’s case.
iv. Real Evidence
1. Refers to tangible things directly involved in the transactions
or events in litigation.
a. Apart from writings, the law of evidence ordinarily
does not require production of such items, and their
existence and nature may be established by
testimonial account.
b. But the Best Evidence doctrine generally does require
the introduction of writings (or an excuse for not
producing them) and all such items are generally
considered relevant.
v. Demonstrative Evidence
1. Refers to tangible proof that in some way makes graphic the
point to be roved.
a. Differs from real evidence in that ti is created for
illustrative purposes and for use at tiral, and it played
no actual role in the events or transactions which
gave rise to the lawsuit.
 i. i.e., diagrams, photographs, maps, and
models.
1. Generally considered relevant and
routinely admitted.
vi. Writings
1. Writings are physical evidence that generally must be
introduced at trial rather than proved by means of
testimonial description.
b. Keeping Evidence out – Motion to Strike, Limiting Instructions,
Request for mistrial.
i. The Objection must be:
1. Timely – must be raised at the earliest reasonable
opportunity
2. Grounds – should include a statement of the underlying
reasons (specificity)
a. i.e., irrelevant, incompetent, immaterial (general
objection).
ii. Common Objections
1. “Asked and Answered – the objecting lawyer accuses the
questioner of drumming away too hard on the witness,
putting the same question time and again in hopes of
coercing the desired response.
2. “Assumes facts not in evidence” – if the questioner
imparts important information in his query, it should be
supported by proof already admitted. If such support is
missing, the question is objectionable as assuming too
much.
a. i.e, “thus asking, ‘how long did it take to drive the 20
miles from the ranch to town? Would be objectionable
if nothing in the record indicated that the ranch was
20 miles from the town’.
3. “Argumentative” – questions with sarcasm, contempt,
“grandstanding” which may be permissible in closing
arguments but not while evidence is being p[resented.
a. When the questioner tries to contradict the witness or
wants more to confront her with disbelief than to get
a response.
4. “Compound” – ambiguity; lack of specificity in questioning.
5. “Leading the Witness” – appears that the lawyer is testifying
not the witness.
6. “Misleading” – The question misstates the evidence
a. i.e., If the only proof on point suggests that the ranch
is 40 miles from town, a question asking “why did it
 take you an hour to drive the ten miles to town?”
would be objectionable as misleading.
7. “Speculation or conjecture” – this objection raises the point
that witnesses are expected to say what they “know” and
not what they guess or suppose or expect is true.
8. “Ambiguous, uncertain, and unintelligible”
9. “Nonresponsive to the question"
10. The general objection -- Inability to articulate the
reasons specific to an objection
a. Does not preserve for review whatever point the
objector had in mind.
b. A general objection sustained will survive attack on
appeal if there are any grounds upon which it
may be supported.
iii. The Motion in Limine – “At the threshold” – Pretrial Motions
1. Obtaining a ruling in advance regarding an anticipated
objection to evidence offered.
a. The motion to suppress evidence, which is generally
authorized by Federal Rules of Criminal Procedure
12b and routinely made by defense
c. The Offer of Proof
i. Preserving the Record. Offers of proof are required for the same
reason as objections. A layer faced with a ruling excluding evidence
must make a formal offer of proof, if he wants to preserve the
point for later appellate review.
1. The idea is to allow the proponent to have a fair procedural
opportunity to provide evidence.
2. The lawyer must be prepared to present the evidence when
being objected to.
3. Proponent bears the burden or persuasion after being
objected to, to demonstrate why the evidence should be
admissible.
4. Jury must leave when an offer of proof is made.
E. Consequences of Evidential Error
a. Appraising Such Error on the Merits
i. Reversible Error: refers to the kind of mistake that probably did
affect the judgment. Generally the term also means that appellant
took the necessary steps to preserve the claim of error.

1. Reversible only when App. Ct. “believes it highly probably

that the error did not affect the judgment”.
2. Prosecutor should be prepared to show beyond reasonable
doubt that an error did not affect the result.
 ii. Harmless Error: the kind of mistake that probably did not affect the
judgment.
iii. Plain Error: the kind that warrants relief on appeal in estimation of
the reviewing court, even though appellant failed to take the
necessary steps to preserve its rights
1. i.e., objecting or making an offer of proof.
2. Error is plain only if it is in some sense obvious (the judge
should have known better even if the lawyer did not)
a. “Miscarriage of Justice”
iv. Constitutional Error: Mistake in admitting evidence for the
prosecution that should have been excluded under the Constitution.
b. Distinguishing from “harmless” from “reversible”.
i. Cumulative evidence – supports affirmance despite errors by the
trial court by admitting and in excluding.
1. Still so much other proper evidence supported on the same
point that the jury would have likely found against her even
if the judge had correctly excluded the evidence in question.
ii. Curative Instruction – when a judge commits an evidence error, he
may be able to avoid reversal by means of an instruction to the
jury.
1. Rule 105 Limiting Instructions. Instructions that cure the
error, rendering it harmless.
iii. Overwhelming Evidence -- if a reviewing court concludes that
evidence properly admitted supports the judgment below
overwhelmingly, generally it affirms, even in the face of errors
admitting or excluding evidence that might otherwise be considered
serious.
c. Appellate Deference: The discretion of the Trial Judge – limiting appellate
review of evidential rulings.
i. Rule 403 – trial judge permitted to exclude evidence, even
competent and relevant, if it seems likely to prejudice the jury
against one of the parties.
ii. Rule 611 -- Judge may control the manner and sequence of
questioning witnesses.
F. Direct and Cross Examination Revisited
a. Direct Examination -- Nonleading Questions are required, FRE 611(c).
i. Exceptions –
1. Rule 611(c), trial judges have discretion to permit leading
questions, even when during direct examination.
a. When necessary to develop testimony. Usually the
questioner is permitted to lead a witness who is:
i. Very young, apprehensive
ii. Timid, reluctant, frightened
iii. Ignorant, uncomprehending, unresponsive
 iv. Infirm.
2. When the witness is uncooperative. “hostile” or “adverse”
party
3. When the rule is more trouble than the worth.
4. When memory seems exhausted.
Baker v. State

Parties: Baker, defendant, State of Maryland

Issue:
What latitude a judge should permit counsel when a witeness takes the stand and says
“I don’t remember”.

Procedural History:
Teretha McNeil Baker, was convicted by a jury on murder in the first degree and
robbery.

Appellate Review: Trial judge erroneously refused her the opportunity to refresh the
present recollection of a police witness by showing him a report written by a fellow
officer.

Facts: The ultimate source of most of the evidence implicating the appellant was the
robbery and murder victim himself, Gaither Martin – now dead declarant who spoke to
the jury through the hearsay conduit of Officer Bolton (excited utterance).

Victim picked up three women at a bar, and travelled to stated destination. He was
dragged out of the car by a man, and was subsequently beat by the three women.
Officer Bolton who arrived at the crime scene was told by the victim that he had been
robbed and beat. Officer Hucke, contacted Officer Bolton who was en route to the
hospital and informed him that the suspect had been picked up. Before arriving at the
hospital, Officer Bolton took the victim to where the suspect was being held.

In the trial court, the appellant sought to elicit from the officer the fact that the crime
victim confronted the appellant and stated that the appellant was not one of those
persons who had attacked and robbed him.

Defendant attempted to simulate the present memory of Officer Bolton (testifying

witness) by admitting the police report written by Officer Hucke.

Trial judge excluded the evidence on the ground that the police report was not written
by Officer Bolton himself.

Rule: Documents used to refresh the memory, in a past recollection recorded is not
evidence, but only aids in the giving of evidence.
Holding: the trial judge in this case erroneously measured the legitimacy of the effort
to revive present recollection against the more rigorous standards for the admissibility
of a recordation of past memory.

Judgment: Reversed and Remanded for a new trial.

Federal Rules of Evidence

 Rule 103(a) – Rulings on Evidence (Effect of erroneous ruling): error may not be
predicated upon a ruling which admits or excludes evidence unless a substantial
right of the party is affected.

 Rule 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.

 Rule 611. Mode and order of interrogation and Presentation

(a) Control by the Court. The court shall exercise reasonable control over
the mode and order of interrogating witnesses and presenting
evidences so as to
i. Make the interrogation and presentation effective for the
ascertainment of the truth
ii. Avoid needless consumption of time
iii. Protect witnesses from harassment or undue
embarrassment.
(b) Scope of Cross Examination. Limited to the subject matter of the direct
examination and matters affecting the credibility of the witness. The
court may, in the exercise of discretion, permit inquiry into additional
matters as if on direct examination
(c) Leading Questions. Leading questions should not be used on the direct
examination of a witness, except as necessary to develop the witness’
testimony. Ordinarily permitted on cross examination.
a. Exceptions:
i. Hostile witness
ii. Adverse party
iii. Witness identified with an adverse party.
2 Authentication & the Best Evidence@ Doctrine

Federal Rules of Evidence

FRE 901 & ACN. Requirement of Authentication or Identification
(a) General Provision. 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 propend claims.
(b) Illustrations. The following examples of authentication or identification
conforming with the requirements of this rule:
i. Testimony of witness with knowledge.
ii. Nonexpert opinion on handwriting
iii. Comparison by trier or expert witness
iv. Distinctive characteristics and the like.
v. Voice identification
vi. Telephone conversations
vii. Public records or reports
viii. Ancient documents or data compilation
ix. Process or system
x. Methods provided by statute or rule.

FRE 902. Self Authentication. Extrinsic evidence of authenticity as a condition precedent

to admissibility is not required with respect to the following:
(1) Domestic public documents under seal.
(2) Domestic public documents not under seal.
(3) Foreign public documents
(4) Certified copies of public records
(5) Official publications
(6) Newspapers and periodicals
(7) Trade inscriptions and the like
(8) Acknowledged documents
(9) Commercial paper and related documents
(10) Presumptions under Acts of Congress
(11) Certified domestic records of regularly conducted activity
(12) Certified foreign records of regularly conducted activity.

FEDERAL RULES OF EVDIENCE

FRE 104 & ACN
FRE 1001-1008

Foundational Evidence, Authentication

pp.855-864, 869-875,(875-880), 881-890
 - The proponent offering the tangible evidence before it is admitted
must be authenticated – the proponent must authenticate the exhibits
that he offers. Refer to rule 901.
o Authenticating an item of evidence means offering “evidence
sufficient to support a finding that the matter in question is
what it is proponent claims. FRE 901.
- Judges play the ultimate role in screening function, passing the
decision on authenticity to the jury. Rule 104.
- The proponent must offer enough proof of authenticity to enable a
jury to find an exhibit authentic. If he offers no proof (or not enough
to support the necessary finding), the exhibit must be excluded. If he
does offer enough, the exhibit will be admitted and the jury makes the
ultimate decision on authenticity.
o The traditional steps to authenticate and introduce an exhibit
are the following:
 (1) getting the court reporter to mark the exhibit for
identification
 (2) Offering testimony identifying or describing the
exhibit (heart of the authentication process)
 (3) offering the exhibit as evidence
 (4) letting counsel for other parties examine
 (5) giving other lawyers a chance to object
 (6) submitting the exhibit to the court to examine if it
wishes to do so
 (7) getting a rule
 (8) asking permission to present the exhibit, if admitted,
to the jury by reading it to them or showing it to them
o Until any exhibit is ruled admissible, trial
counsel should not display it or read its
contents or ask the authenticating witness
to do so, or even describe the exhibit in
ways that reveal its substance when
handing it to the authenticating witness.

- “Real Evidence” v. “Demonstrative Evidence”

o Real evidence is considered to be tangible objects or matters
that had a direct part in the events giving rise to the suit.
o Demonstrative refers to evidence having no independent
probative value that serves as a visual aid in understanding
testimony or other evidence. (Illustrative evidence).

I. Tangible Objects
 United States v. Johnson 9th Circ., 637 f.2d 1224 (1980).
a. Rule:
FRE 901(a) - the requirement of authentication or identifyication as a
condition precedent to admissibility is satisfied by evidence sufficient to
support a finding that the matter in question is what itsp proponent
claims.
a. Issue: Appellant argues that the ax used in assault was
admitted into evidence without first being authenticated
properly.
b. Facts:
Appellant argues that witness (victims) testimony was
inadequate as authentication because the witness:
i. failed to state specifically that he could distinguish the
ax from any other,
ii. because he did not identify specific characteristics of this
ax which could tie it to the incident, and
iii. because he appeared to base his identification largely on
assumption.
c. Reasoning:
Here, although the trial record reveals the identification of the
ax made by the witness may not have been entirely free of
doubt, the witness did state that he was “pretty sure” this was
the weapon used, that he was personally familiar with this
particular ax because he used it in the past.
d. Holding:
A reasonable juror could have found that this ax was the
weapon allegedly used in the assault. Although the jury
remained free to reject the governments assertion that this ax
had been sued in the assault, the requirements for admissibility
specified in Rule 901 (a) has been met.

United States v. Howard-Arias (4th Circuit) 679 F.2d 363

 Precision in developing the chain of custody is not an iron
clad requirement, and the fact o a missing link does not
prevent the admission of real evidence so long as there is
sufficient proof that the evidence is what it purports to
be and has not been altered in any material aspect.

II. Telephone Conversations

a. United States v. Pool (5th Cir.) 660 F.2d 547
i. A telephone call out of the blue from one who identifies himself as
X may not be, in itself, sufficient authentication that the call was in
fact from X.
 ii. The standard of admissibility of voice identification testimony is
prima facie.
1. Circumstantial evidence may be used in meeting this
standard.
III. Self Authentication Exhibits
a. Rule 902 provides for the admissibility of self authenticating exhibits
(exhibits that do not require what is called “extrinsic” evidence of
authenticity.
 The CAN makes clear that the fact of self authentication
does not bar counterproof by the opponent.

IV. Demonstrative Evidence: Seeing is Believing

- What is demonstrative evidence?
 Demonstrative evidence is anything which appeals to the
jurors senses.
- The uses of demonstrative evidence:
(1) To establish the liability of the defendant;
(2) To illustrate the full extent and severity of the
plaintiffs injuries
(3) To complement the written transcript for use on
appeal.

THE BEST EVIDENCE DOCTRINE

A. Introduction
- The most effective or persuasive evidence is not always the most
reliable evidence. Litigants are free to choose among admissible forms
of proof, and they may offer “lesser” forms for reasons of practicality,
economy, or tactics.
o EXCEPTION: in proving the contents of writings.
 Common law traditional requirement to provide the
original writing whenever the purpose was to prove its
contents, or at least to explain in a satisfactory way why
the original was not being offered.
B. Defining a “Writing Recording of Photograph”
- United States v. Duffy 454 F.2d 809 (5th Cir.)
o The Best Evidence Doctrine:
In proving the terms of a writing, wehre such terms are material, the
original writing msut be produced, unless it is shown to be unavailable
for some reason other than the serious fault of the proponent.
o Issue: Whether the Best Evidence doctrine applies to inscribed
chattels.
o FRE Rule 1001(a) – letters, words, or numbers that are set down
by handwriting.
 o The trial judge has wide discretion to determine on the afacts
whether the Best Evidence doctrine should apply to inscribed
chattels.
C. Best Evidence Doctrine in Operation.
a. When the Doctrine applies
- When “the content” of a writing is what a party seeks to prove.
- There are two situations in which necessarily content is indeed the
point to be proved:
i. When substantive law forces the content of a
writing into prominence, and in effect simply
requires one party or another to prove that
content.
 i.e., when a breach of K based on
parol evidence, or statute of frauds
is pursued; the best evidence
doctrine requires the
original/duplicate of K.
ii. A party seeks to prove content, even though
she might theoretically present an adequate
claim or defense without such proof.
Problems 13-A, 13-C, 13-E, 14-B
UNIT II: RELEVANCE
Relevance

FEDERAL RULES OF EVIDENCE

FRE 401-402 & ACN,

Rule 401. Definition of “Relevant Evidence”

Relevant evidence means 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.

Rule 402. Relevant evidence generally admissible; irrelevant evidence inadmissible.

PP. 49-65

Old Chief v. United States 319 U.S. 172

Issue: Whether the name of the crimes of which Old Chief had been convicted
previously was relevant? Whether the trial court should have excluded proof of the
name and details of prior conviction as too prejudicial?

Rule: FRE Rule 401&403.

Holding: If relevant evidence must sometimes be excluded because of its connection to

other evidence, its exclusion must not rest on the ground that the other evidence has
rendered it irrelevant, but on its character as unfairly prejudicial, cumulative of the like,
its relevance not withstanding.

Prosecution is entitled to provide its case free from any defendants option to stipulate
the evidence away rests on good sense.

Establishing Relevance: The Evidential Hypothesis

- The proponent should be prepared to put forth an evidential
hypothesis explaining why his proof is relevant. The adverse party
should be ready to refute the hypotheses, if possible, or show its
limitations, or to offer a counterhypothesis that explains away the
evidence of enlists it in aid of his own cause.
a. Deductive Reasoning: an argument in which the stated premises necessarily
lead to a particular conclusion.
b. Inductive Reasoning: an argument in which the conclusion does not
necessarily follow from the premises, though they support the conclusion.

Problems 2-A, 2-C

Relevance
FEDERAL RULES OF EVIDENCE
FRE 403 &ACN. Exclusion of relevant evidence on grounds of prejudice, confusion, or
waste of time.
o Although relevant, evidence may be excluded if its probative
worth is substantially outweighed by the:
1. Danger of unfair prejudice
2. Confusion of the issues
3. Misleading the jury
4. Considerations of unde delay
5. Waste of time
6. Needless presentation of cumulative evidence.

Review FRE 105-106 &CAN.

Pp. 69-90

PRAGMATIC RELEVANCE
i. Prejudice and Confusion
i. The logical relevancy standard in FRE 401 is satisfied
by evidence having even slight probative worth, but
FRE 403 allows the judge to exclude relevant
evidence on accourt of any of the described
“dangers”.
- Evidnce is to be excluded only if probative value is substantially
outweighed by any of the listed dangers and considerations.

Rule 403 Process.

State v. Chapple 660 P.2d 1208
- Appellant contends that the trial court erred by admitting pictures of
the charred body and skull of the victim.,
o “ Where the offered exhibit is of a nature to incite passion or
inflame the jury – the court must go beyond the question of
relevancy and consider whether the probative value of the
exhibit outweighs the danger of prejudice created by admission
of the exhibit.”
- The following uses for which photographs of a corpse may be admitted
in a homicide prosecute (notwithstanding a tendency to create a
prejudice:
i. To prove the corpus deliciti
ii. To identify the victim
iii. To show the nature and location of the fatal injury
 iv. To determine the degree of atrociousness of the
crime
v. To corroborate state witnesses
vi. To illustrate or explain testimony
vii. To corroborate the states theory of how and why the
homicide was committed.
o HOWEVER, if the photographs have no tendency to prove or
disprove any question which is actually contested, they have
little use or purpose except to inflame and would usually not be
admissible.
- Also refer to Old Chief v. United States (II) 519 U.S. 172 for more on
FRE 403 in operation.
 “On objection, the court would decide whether a
particular item of evidence raised a danger of unfair
prejudice. If it did, the judge would go on to evaluate the
degrees of probative value and unfair prejudice not only
for the item in question but for any actually available
substitutes as well.
 If an alternative were found to have substantially
the same or greater probative value but a lower
danger of unfair prejudice, sound judicial
discretion would discount the value of the item
first offered and exclude it if its discounted
probative value were substantially outweighed by
unfairly prejudicial risk.

Limited Admissibility – Confining the Impact of Proof

- Rule 105 allows evidence to be admitted on the point for which or
against the parties as to whom it is competent, but give limiting
instructions to prevent misuse on other issues or as against other
parties.

Problems 2-E, 2-F, 2-G

UNIT III: HEARSAY
What is Hearsay?—What is a STATEMENT?

Federal Rules of Evidence

FRE 801, ACN for 801(a)-(c), FRE 802& ACN

pp. 105-110, 118-123

Problems 3-A, 3-B

What is Hearsay? –When is a STATEMENT not hearsay?

pp. 123-131

3-C, 3-E, 3-F, 3-H