Basics of Evidence
What is relevant evidence?
Evidence that has any tendency to make a fact of consequence more or less probable than without it.
Who decides the admissibility of evidence? AND . . . Who decides the weight of evidence?
Judge - Admissibility
Jury - Weight
Which FRE covers character evidence?
404
What are the two requirements for making a proper objection?
(1) Make it without undue delay, and
(2) state the specific grounds for the objection.
What is a declarant?
A person who makes a statement.
What is impeachment evidence?
Evidence used to undermine opposing parties assertions.
What are the burdens of proof in Criminal and Civil Trials?
Criminal - Beyond a Reasonable Doubt
Civil - Preponderance of Evidence
What is FRE 403: Unfair Prejudice?
Relevant evidence can be excluded if its unfair prejudicial value outweighs its probative value.
What is a “motion in limine”?
A pretrial motion to exclude or admit certain evidence before it is presented in court.
General rule for hearsay?
A witness repeating an out-of-court statement made by a declarant now being offered for the truth is inadmissible.
What is substantive evidence?
Supports a fact in issue that goes to the substantive law.
For Example: In a murder trial, the fact that the defendant’s fingerprints are on the weapon is substantive evidence because it helps prove the legal element of identity of the killer.
By contrast, impeachment evidence (showing a witness lied in the past) doesn’t prove an element of murder directly — it just attacks credibility.
What are the basic rules for cross examination?
The subject matter must be:
(1) relevant
(2) limited by the scope of direct
(3) to the credibility of the witness, and
(4) done in good faith.
Pursuant to FRE 611, how are witnesses examined?
By direct or cross examination.
What is allowed under FRE 103 when a witness answers before an objection is said?
A party can move for the court to strike the words of the witness.
What is indirect hearsay?
Indirect hearsay is hearsay that’s embedded inside a question or a narrative, rather than being directly offered as a quoted statement.
Ex. "I called the police because my neighbor said there was a robbery.”
(The neighbor’s statement is tucked inside the narrative and is still hearsay if used to prove that a robbery happened.)
Difference between direct and circumstantial evidence?
Direct evidence: A witness says, “I saw Alex shoot Chris.” → Directly proves the fact in issue (who shot Chris).
Circumstantial evidence: A witness says, “I saw Alex running away from Chris’s house with a smoking gun in his hand.” → The jury can infer that Alex shot Chris, but the witness didn’t actually see the shooting.
What does the scope of direct include?
FRE 611 states that the scope of direct includes:
Accreditation – establishing who the witness is and why they’re relevant (How long have you worked as a traffic safety officer?).
Foundation – showing the witness has personal knowledge about the facts they’ll testify to. (Were you on duty at the intersection of Main and 5th Street on June 5th).
Substantive questions – asking about the facts that help prove your case (What did you see happen when the blue car entered the intersection?).
Under FRE 612, what can you do if a witness can't remember something?
You can use anything to jog a witness's memory. Writings and tangible media need to be shown to OPC.
What happens if you don’t object to improper evidence at trial?
You usually waive your right to complain about it on appeal, unless it qualifies as plain error.
What exceptions are there to hearsay when the declarant is available?
Present Sense Impression – "That red truck is swerving into our lane."
Excited Utterance – "He’s got a gun!"
Then-Existing State of Mind – Statement about current feelings, emotions, or intentions (e.g., “I’m scared,” “I’m going to Chicago tomorrow”).
Business Records – Records kept in the ordinary course of business, made at or near the time of the events by someone with knowledge.
What are some types of Non-Testimonial Evidence?
Evidence by means of writings, real evidence, or demonstrative evidence.
Writings - Contracts, letters, emails, etc.
Real - Murder weapon
Demonstrative - Photographs, graphs, crime scene diagrams.
What questions must you ask yourself when dealing with testimonial (witness) evidence?
1. Is this relevant?
2. Is this witness competent?
3. Is this barred by hearsay?
4. Is this barred by privilege?
5. Is this barred by the best evidence rule?
What rare occurrence does FRE 614 allow?
A judge may call a witness to either,
(1) clarify something essential for justice, or
(2) ensure the jury hears from a witness who can provide important, neutral information.
Ex. Imagine in a civil case about a car accident, neither side calls the 911 operator. The judge realizes this operator's testimony might clear up the timeline. The judge can call the operator as a witness, then allow both lawyers to question them.
What is the plain error rule?
It's a sort of legal safety net that allows the appellate court to step in even if nobody objected during trial.
The plain error rule is met if:
It was an error, the error was plain, it affected the party’s substantial rights, and it seriously affects the fairness or integrity of the proceedings.
Ex. A judge's jury instruction remove the prosecution’s burden to prove an element of the crime. Even if the defense failed to object for improper jury instruction, the appellate court could step in under the plain error rule.
What exceptions are there to hearsay when the declarant is unavailable?
1. Former Testimony - (Prior sworn testimony from an earlier proceeding, same issues, subject to cross.)
2. Dying Declaration - “It was Mike… Mike stabbed me.”
3. Statement Against Interest - “I was the one who took the money from the register.”
(So self-incriminating that a reasonable person wouldn’t say it unless true.)
4. Statement of Personal or Family History - “My parents were married in Chicago in 1975.”
(Relates to the declarant’s own family history.)
5. Forfeiture by Wrongdoing - “If anything happens to me, tell them Sam threatened me to stay quiet.” (The opposing party caused the declarant’s unavailability to prevent testimony.)