The Rules Evidence

8/3/2019 The Rules Evidence

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The Rules

FRE 401 – relevance

1. probative value: something tends to demonstrate something else; more or less

likely to be true

2. materiality: logically related to the issue requiring proof

FRE 401 def: relevant evidence is 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"

Evidence is relevant if it could be believed by a reasonable juror

FRE 402 – relevance

all relevant evidence comes in unless otherwise stated in rules

all irrelevant evidence stays out

FRE 403 – relevance and prejudice

Evidence excluded when its probative value is:1. substantially outweighed

2. by danger of unfair prejudice to jury

Unfair prejudice: 1. exaggeration: evidence exaggerates the probative value(i.e., if evidence is worth conviction rate of 10%, but gives

25%); the probative value must be substantially

outweighed by the danger of unfair prejudice

2. disregard issues: the evidence will cause the jury todisregard the issue (e.g., grizzly photos of dead bodies incases)

when all else has failed (i.e., 401 and 402), then argue 403

FRE 403 balancing test can be done in two ways:

1. view the evidence independently of all other evidence

2. view the evidence in light of full evidentiary context of the case

FRE 403 probative value "may be calculated by comparing evidentiary

alternatives"

TEXT of rule: "its probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury, or by considerations of unduedelay, waste of time, or needless presentation of cumulative evidence."

Relevance vs. Sufficiency



-relevant: a single item or group of items may or may not be

admitted

-sufficiency: do all of the admitted items create enough info to permit the issue to go to the jury

doctrine of limited admission: FRE 105: if a piece of evidence will help your caseon numerous points, you must find one point for

which it is deemed relevant. Then, the evidence

will come in for all points, even if for other purposes the evidence is impermissible

doctrine of conditional relevance: -evidence is admitted on condition that the evidence

is connected up to a proposition at a later period-relevance not readily apparent at the moment of

offering

-opponent of the evidence has the burden to ask

judge to strike evidence if it is not connected up

"Gatekeeper Question": is this issue of fact a question for the judge or the jury?

Preliminary questions of fact: (FRE 104)

1. whether a proffered piece of evidence is admissible? (judge)

2. when evidence to resolve an issue of fact is such that a reasonable person may

decide either way (jury)

104(a) 104(b)

if a jury were to hear the evidence and

conclude that the preliminary question of

fact is not satisfied, but they would then

not naturally and rationally disregard theevidence, then the judge should make the

determination.

if a jury were to hear the evidence and

conclude that the preliminary question of

fact was not satisfies, and would then

naturally and rationally disregard theevidence, then it should be left for a jury to

decide.

NB: judge not bound by the rules of

evidence when making this ruling; judge is

permitted to bootstrap evidence (that is, letthe evidence speak for itself and be true at

face value without any corroboration)

judge determines preliminary questions of

fact using a preponderance of the evidence

standard

the judge still has a role: determine that the

proffered evidence could be believed by a

reasonable juror (i.e., it is not total bullshit

evidence). Therefore, the judge should letthe jury decide even if he does not think the

evidence meets the preponderance standard

of 104(a) but does meet a rational basis

standard

[crime-fraud exception issue: 104(a) doesnot flatly prohibit in camera review of

information claimed to be privileged,



Zolin]

credibility of witnesses is for the jury to

decide

weight of evidence is also a jury question

HEARSAY

1. hearsay problem: must create a reliable chain of inference between the person not

speaking under oath or in court to an event the utterance is supposed to reflect.in other words, hearsay is simply not trusted (despite any potential probative

value) because the statement can't be explored by lawyers for the four testimonial

infirmities: ambiguity, insincerity, faulty perception and erroneous memory.

(B) belief of actor

responsible for A

1. insincerity 3. erroneous memory2. ambiguity 4. faulty perception

(A) action or utterance (C) conclusion

Two main types of hearsay:1. assertion-centered: an out-of-court statement is hearsay when it is offered in evidence

to prove the truth of the matter asserted

2. declarant-centered: an out-of-court statement is hearsay when it depends for valueupon the credibility of the declarant

FRE 801(c)

Hearsay is an out-of-court statement1 used to prove the truth of the matter asserted

therein.

-that is, the evidence is deemed so unreliable that it lacks probative value-evidence is or isn't hearsay depending on why the statement is relevant

-e.g., a statement that can be used inferentially to prove something

other than what is stated is likely not going to be hearsay

Policy: Why do we prohibit hearsay?

Lawyers want the witness/declarant to testify at trial:1. under oath

2. where jury can see him (demeanor evidence)

3. where cross-examination is possible

1 801(a) : "A statement is (1) an oral or written assertion or (2) nonverbal conduct of a

person, if it is intended by him as an assertion."



Problems with hearsay evidence are the same issues that a good lawyer tries to bring out

in a cross: 1. ambiguity

2. insincerity3. faulty perception

4. erroneous memory

In other words, if testimony requires us to assume about these four issues, then it iscertainly hearsay.

legally operative language.

when the making of an utterance is the matter asserted, then deeming the

testimony hearsay is highly unlikely; "utterance as operative conduct"; legally

operative conduct; res gestae; verbal part of an act

implied assertions

801(a) takes care of the problem by expressly exempting implied assertions from thehearsay rule while express assertions remain subject to it:

"A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by him as an assertion."

Reasons to exclude implied assertions from the hearsay rule:

1. when a person acts in a way consistent with his beliefs but withoutintending the act to communicate a belief, the rationale of excluding

declarations whose veracity cannot be tested by cross does not apply

because the declarant's sincerity is not involved2. the underlying belief is often self-verifying: the actor has based his

actions on the correctness of his belief

HEARSAY EXCEPTION

"If a statement is hearsay, but it fits an exception, it can be used for its TRUTH" (its truthdepends on the particular relevance of the evidence).

FRE 805: Hearsay within hearsay is not excluded if an exception can be found

for each level of hearsay.

NB: the evidence let in under 803 is the best because under 804, the evidence admitted

under 804 is so bad that the declarant must be unavailable in order for the evidence to beadmitted; whereas under 803, the declarant is immaterial to the admissibility of the

evidence.

804 – declarant unavailable 803 – declarant available

Dying Declarations: FRE 804(b)(2) Present Sense Impression: FRE 803(1)

Former Testimony: FRE 804(b)(1) Excited Utterance: FRE 803(2)



Declarations Against Interest: FRE 804(b)

(3)

Prior Felony Conviction: FRE 803(22)

State of Mind, Physical Condition: FRE

803(3)

Statements for Medical Diagnosis/

Treatment: FRE 803(4)

FRE 804 rules

Dying Declarations (FRE 804(b)(2))

1. homicide or any civil action or proceeding

2. statement made with consciousness of impending death

3. about cause/circumstances of the impending death

Former Testimony 804(b)(1) [cf 801(d)(1)]

1. testimony given at another hearing [same or different proceeding]2. or testimony given in deposition [same or different proceeding]

3. testimony must be offered against a party who:

a) either himself had an opportunity or similar motive to develop thetestimony by direct, cross, or redirect; or [protects 6th Amend]

[Salerno]

b) such opportunity and similar motive was had by a predecessor in

interest

-predecessor in interest: a party against whom testimony was offered in a

previous action and who has similar interests in a second action and a similar

motive to cross-examine in the second action

-troubling because it can bind a lawyer to the prior work of a different lawyer [argue: hey, I would have developed my cross in a totally different manner]

Declarations Against Interest 804(b)(3)

1. At the time of its making, statement was:

either so far contrary to the declarant's pecuniary or proprietary interest;2

or so far tended to subject declarant to civil or criminal liability;or to render invalid a claim by the declarant against another;

2. that a reasonable person in the declarant's position would not have made the statementunless believing it to be true.

2 NB: a confession or a declaration can be made IN the declarant's interest even when it seems to be

against interest, and therefore would not be admissible under this exception: e.g., "If you confess to the

crimes, we'll give you a reduced sentence" (even if person did not do the crimes, he might confess to them).



2. content of statement must be such as is reasonably relied upon by physicisans

in providing medical treatment or diagnosis

"Statements5 made for purposes of medical diagnosis6 or treatment and describing

medical history, or past7 or present symptoms, pain, or sensations, or the inception

or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment" are admissible under the exception because

when they are made, the patient has a "strong motivation to be truthful."

NB: split of authority on whether the identity of a person who caused theinjury (e.g., parent who hits a child) is admissible as reasonably pertinent

to diagnosis or treatment.

Past Recollection Recorded 803(5)

1. memorandum/record concerning matter about which witness once had

knowledge

2. cannot now recall well enough to testify fully

3. shown to have been made or adopted by witness when matter was fresh in hismemory and reflects that knowledge accurately

-if admitted, may be read into evidence [i.e., as a substitute for testimony] but not

entered into evidence unless offered by adverse party

[present recollection revivd – FRE 612: show witness anything necessary to jogmemory, and then ask if memory is refreshed enough to testify.

Adverse party may cross witness on the object and introduce into evidence

parts related to the testimony – i.e., to prove it could not have possiblerefreshed memory or that there are some inconsistencies with the

testimony]

Business Records 803(6)

1. regularity of recordation: record must be made in the course of regular business activity;

2. at or near the time of event, condition, act

3. by a person with knowledge [i.e., can't have Johnson v. Lutz problem]

4. unless source of information [Johnson v. Lutz] or the method or circumstancesof preparation [Palmer v. Hoffman] indicate lack of trustworthiness

Johnson v. Lutz: a person speaks in business record who lacks the business duty

Palmer v. Hoffman: report cannot be prepared in anticipation of litigation; this

makes its trustworthiness questionable. After all, the policy behind this hearsay

5 could be a statement made by a parent to a doctor describing what is happening with a child6 i.e., permits testimony of expert witnesses, not just a treating physician7 Therefore, admissible even though a statement of memory



exception is that regularly kept records that reflect day-to-day operations create a

probability of trustworthiness.

NB: police reports and factual findings can't come in under this exception due to

policy behind 803(8) – see Oates

803(7) - Absence of Entry in Records kept in accordance with 803(6)

if a matter that normally would be recorded does not appear, this can be used to

show that the event did not occur or the matter did not exist at that time.

Public Records and Reports 803(8)

FRE 801 Rules

Admissions and Declarations Against Interest

Admissions Declarations Against Interest

need not be against interest when made only admissible if at the time it was made it

was against interest and subjects declarantto liability such that no reasonable person

would have uttered it unless true

exception usable even when declarant isavailable

declarant must be unavailable

admissible only when offered by a partyopponent

may be offered by any party

Party Admissions 801(d)(2)(A)

1. statement made by party2. offered into evidence by party opponent

policy: -this sort of evidence is considered so bad, that it is not among theexceptions, but rather is considered an exemption, for the reasoningthat:

1. a party can't really deny a statement on the grounds thatthey are generally untrustworthy; and2. the party is always available to be cross-examined should

they wish to dispute the statement

-admissions need not be based on person knowledge; it is opinion testimony that

received facts are true

The Rules Evidence

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