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EVIDENCE OUTLINE
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II. RELEVANCE
a. “Relevance” – an everyday word describing factors that bear on the
decisions we make and problems we set out to solve
b. Relational – it carries meaning only in context
i. Applicable substantive law
ii. Issues that the Parties raise
c. Evidence
i. “Direct” – if accepted as genuine or believed true, necessarily
establishes the point for which it is offered
ii. “Circumstantial” – even if fully credited, may nevertheless fail to
support the point in question, simply because an alternative
explanation seems as probably or more so
d. Logical Relevance
i. Relevance and Materiality
1. Common Law
a. “Relevant”
b. “Material”
2. Federal Rules of Evidence
a. “Relevance” – evidence is relevant if it tends to
make more or less probable the existence of any
consequential fact (RULE 401)
ii. Establishing Relevance: The Evidential Hypothesis
1. “Evidential Hypothesis” – why the proof is relevant
2. Using Experiences to Predict what will happen next
a. Inductive and Deductive Logic
3. “Deductive Argument” – premises stated necessarily lead
to a particular conclusion
a. Conclusion contained in premises
b. Example:
i. All humans are mortal. Socrates is Human.
Socrates is mortal.
4. “Inductive Argument” – conclusion does not necessarily
follow from the underlying premises, but the premises
support the conclusion
a. Conclusion contains conjecture about the world that
goes beyond what is in the premises
b. Example:
i. Defendant robbed a bank.
ii. People who intend to do something likely do
it. People who state an intent likely have it.
1. Likely
iii. Notes:
iv. PROBLEM 2-A
v. Evidence is a Relational Constant
1. Need to know the underlying issues and elements of the
substantive law
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a. Legal Issues
b. Underlying Issues
i. Liable or Not (Civil)
ii. Guilty or Not (Criminal)
c. Underlying Issues 2 UI II
i. elements of the crime/tort/counterclaim/etc.
and defense
2. Facts
a. Passing downhill and crash occurs going uphill –
less likely Hill’s testimony
b. Speed limit sign – less likely Hill’s testimony
c. Accident happened in East bound Lane (Jay’s lane)
– R out of lane, Hill’s testimony not matter
3. Evidence to be Offered
4. Objection
5. Relevance
a. TEST: Any tendency to make a fact of
consequence either more or less probable (RULE
401)
6. Subsidiary Facts – facts that build up to that fact of
consequence
a. Cannot offer the fact of consequence (speed at time
of collision) directly
b. Must use subsidiary facts
7. Lowest possible standard to have – Any Tendency
a. Logical standard for Relevancy adopted as Legal
Standard
b. Although miniscule, Not Treated As Liberally As it
Sounds
vi. Admissibility
1. RULE 402:
2. Relevant Evidence is Admissible
a. Except: Constitution of the United States, by Act of
Congress, by these rules, or by other rules
prescribed by the Supreme Court pursuant to
statutory authority
3. Irrelevant Evidence is Inadmissible
vii. Civil Burden of Proof:
1. More Probable Than Not
viii. No Evidence
1. Directed Verdict
ix. Attorney: Drive that stretch of road!!! Look for stuff!
x. Inductive Logic = Fact – Sensitive!
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i. Circumstantial
1. Not necessarily true, have to draw an
inference =
ii. Circumstantial vs. Direct Evidence
iii. Direct Evidence:
1. witness
iv. Better? Neither, TRICK QUESTION
v. Direct: Always rests on credibility of
witness (includes confessions)
vi. Circumstantial: Inference can be really
strong (includes photographs and
surveillance)
2. Facts: Carl’s arrest was based on an outstanding default
warrant, issued two years earlier on unrelated charges.
a. Inference: Anyone would have run if had a prior
warrant
b. Judge: Equally likely for him to run for the old
warrant as for the new warrant NOT
ADMISSIBLE
c. Sidebar: Mere argument infers that there are
facts/information there, and if it is not admissible,
have polluted the Jury (RULE 103 (c))
i. “potentially prejudice” the jury – cannot
hear it
xvi. Notes on Evidence of Attempts to Avoid Capture
1. Evidence of efforts to avoid capture
a. (1) Generally admissible in criminal trials
b. (2) Does not create a “presumption of guilt” or
suffice for conviction
i. Reasons for flight apart from guilt
1. Jury
2. Do not wish their names to appear in
connection with criminal acts
3. Arrest and Trial
4. Because they do not wish to be put to
the annoyance or expense of
defending themselves
c. (3) Open to Interpretation
i. No doubt
1. High speed chase
2. Runs when uniformed officers
approach
ii. Doubt
1. Cannot be located in his usual haunts
2. Left the environs after the crime
3. Arrested in another jurisdiction
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e. Pragmatic Relevance
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4. Notes
5. Rule 104 (a): “Preliminary questions concerning the
qualification of a person to be a witness, the existence of a
privilege, or the admissibility of evidence shall be
determined by the court, subject to the provisions of
subdivision (b). In making its determination it is not bound
by the rules of evidence except those with respect to
privileges.
a. To decide relevance, need to hear the evidence
which may not be relevant or admissible.
6. PROBLEM 2-A (revisited)
a. Facts: Object to graphic pictures of the crash on
Rule 403
i. Not Relevant Rule 401 b/c have to prove
that Husband is dead
ii. Rule 403: Although relevant, evidence can
still be excluded if unduly prejudicial
1. If a little unduly prejudicial, is still
admitted: “substantially
outweighed”
iii. What’s the Prejudice? Emotional jury not
good instead of Rational evidence
1. Should be Prepared to Point to
Which Kind of Prejudice That You
Talking About and Explain Why:
Unfairly Prejudice, Confusion of the
Issues, Etc.
b. Note: Rule 103 (a): Harmless Error Rule
i. Great deference given to Judge
ii. Original:
iii. Rule 403: Tell us so little about what
happened and causes Jury to draw
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e. Case-in-rebuttal:
i. Relevant: more relevant –
1. not accident but pattern of abuse,
counters particular defense
15. PROBLEM 2-E
a. Facts: Passenger in car that is rear-ended dies
when the car explodes b/c of a ruptured fuel tank.
b. Evidence: Guilty plea of other driver to counteract
the fuel tank explosion and the speed of the other
car.
i. Products Liability Test: Standard –
ii. Design Defect:
a. reasonable design for reasonably
foreseeable situation
b. Causation of the Harm
c. Evidence: 68 mph
i. Relevance: Not reasonably foreseeable,
ii. Causation “any tendency” – even though
may have 70 mph zones
iii. Prejudice: NOTHING RULE 401
iv. Even though low probative value, still no
prejudice
v. Decision: ADMITTED
d. Evidence: Guilty plea of driver of rear car
i. Relevance:
1. Caused the accident which ultimately
killed the guy, but manufacturing
defects might also be the cause of the
flames that killed the guy
2. Re-enforcing the speeding
ii. Prejudice:
1. cumulative evidence;
2. confusion of the issues – driver of
the car took responsibility for the
accident and caused it.
a. Therefore, how could the
manufacturer have caused the
accident?
iii. Decision:
ii. Limited Admissibility – Confining the Impact of Proof
1. RULE 403
a. Balance the probative worth against risks of “unfair
prejudice” or “confusion” of issues or “misleading
the jury” and admit or exclude accordingly
2. RULE 105
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1. Hearsay
e. Notes:
i. Misleading under RULE 106.
ii. RULE 106 – introduction of whole or
another part of the letter ought in fairness to
be admitted when only a part is introduced.
iii. Hearsay
iv. Judge: Let in
5. Notes:
a. RULE 106 – only written but under RULE 403 can
do oral and RULE 611 (a) where Judge is allowed
to control the Order of Witnesses, etc. and the spirit
of RULE 106 to get the same result.
b. Notion of Completeness:
(1) Allows to Counter Inference of Inconsistency or
Incompleteness
a. Rebuttal Function
(2) Notion of Completeness has a Trumping
Mechanism
a. Trumping Function
b. RULE 106 Trumps Hearsay Rule for the
Notion of Completeness.
(3) _________________________________
a. E.g.: Statement to Police about a Murder
– had a migraine and stayed in the House except for
Lunch when went outside and say murder.
Defendant: “only stayed in bed”.
b. Object: RULE 106 as the thing comes
to pass. MISLEADING. And, Interrupt Function:
Interrupt Party to read the rest of the statement.
Forces Opponent to Draw Out Evidence That Is
Harmful to Them.
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3. Indirect Hearsay
a. Routine hearsay questions: birth date, place of
birth, parents names and addresses are hearsay
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i. Regularly accepted
ii. Technically: lack of “personal knowledge”
challenge
1. Still accepted
b. UNITED STATES v. CHECK
i. Facts: Testified to what said out of court to
a CI when CI didn’t testify. Half of a
conversation, basically so that able to get
what the other guy said without really
saying, “This is what he said”
ii. Rule: Indirect and Direct Hearsay
iii. HYPOTHETICAL: Same FBI case. BUT,
Proceeded to Location and set up
surveillance. Saw D buying white powder
substance from guy. Then we arrested.
iv. Technically, a little bit of indirect hearsay –
know to go to Location.
v. However, probative value is miniscule of
where she went.
4. Machines and Animals Speak
a. Clocks okay
b. Screen read: Hearsay
c. Usually allow animal
ii. When is a statement not hearsay?
1. Something other than truth of matter asserted NOT
HEARSAY
2. PROBLEM 3-C
a. Impeachment
i. Cross:
1. Offered to prove impeachment NOT
HEARSAY
a. Bystander was confused, liar:
Credibility NOT HEARSAY
2. To Prove Truth that light green for blue
sedan HEARSAY
b. Judge: Not Hearsay since offered for purposes of
Impeachment, Credibility
i. Relevance doesn’t depend on its truth
c. not to prove the truth of the statements, but that the
statements CHANGED
3. Notes on Impeachment by Prior Statements
a. Prior inconsistent statements
b. RULE 403: prejudicial to the jury BUT not likely
to be thrown out b/c probative value to
CREDIBILITY = Judge
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3. Think: Oral –
a. Anything that comes out of your mouth that is a
voluntary utterance is a STATEMENT
i. Example: Questions, Commands
b. Involuntary Verbiage – NOT A STATEMENT, but
as soon as it becomes voluntary, it’s a statement
4. Conduct:
a. Assertive Conduct
i. STATEMENT with the Risks
b. Non-assertive Conduct
i. NOT A STATEMENT
ii. Not asserting anything, therefore no risks
iii. Not trying to communicate anything
5. Conduct
a. Non-Assertive Conduct: No Statement, No Hearsay
b. Assertive Conduct: Same Reasoning of Offered to
Prove (by party) the Truth of Matter Asserted (by
declarant)
6. Verbiage:
a. Involuntary Utterance: No Statement, No Hearsay
b. Voluntary Utterance: Reasoning of Offered to
Prove (by party) the Truth of Matter Asserted (by
declarant)
i. Directly (Problem 3-A (1) and (2))
ii. Indirectly
1. Intended Implied Assertion:
(usually) Hearsay
2. Unintended Implied Assertion:
a. WRIGHT v. DOE d.
TATHAM: Unintended
implied assertions are
Hearsay, no matter whether
verbiage or conduct
i. Now: Sometimes
Hearsay or
Sometimes Not
Hearsay
ii. Trustworthy: Not
Hearsay
iii. Not Trustworthy:
Hearsay
iv. Factors of
Trustworthiness:
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1. Acted on belief
that M was
competent
7. NOT for the truth of the matter asserted
a. Context
b. Impeachment
c. Verbal Acts
d. Effect on Listener
e. Circumstantial Evidence of State of Mind
f. Circumstantial Evidence of Memory
g. Verbal Object
8. Indirect Hearsay:
a. Routine Machine (clock, etc.)
b. Drug Dog (think don’t lie)
c. Hearsay and Nonhearsay – Borderland of the Doctrine
i. Statements with Performative Aspects
1. UNITED STATES v. SINGER
a. Facts: Envelope with the address, sent by a
landlord to tell them that they were being Evicted.
Prosecution offered to prove that the men were
associated.
b. Declarant: Landlord
c. (1) OOC: Envelope
i. Court: Analyzed as conduct. Not an
assertion, though, and therefore, not hearsay.
ii. Problem: Is it just conduct? There is
verbiage there, and therefore SHOULDN’T
be pure conduct.
iii. Undercover agent handed letter to Landlord
to mail. Is that allowed?
iv. Doesn’t know that watching Landlord, and
therefore not assertive and non-hearsay.
v. Assertion: Landlord’s belief that they lived
together at this address
vi. Intended or Unintended?
1. Intended Implied Assertion:
Hearsay, maybe, but
TRUSTWORTHY, to the postal
carrier to deliver the envelope.
2. Unintended Implied Assertion:
Delivery, not asserting to anybody.
vii. Cannot treat it simply as conduct, just at the
end in support of Trustworthiness. CHART
(under intended implied assertion)
d. (2) Eviction: Trying to accomplish an act
LEGAL ACT
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6. PROBLEM 3-K
a. Facts: Man charged with letting stolen airplane to
land on his airstrip that was used to pick up and
deliver drugs illegally. Bruno offers that the plane
made an emergency landing on his airstrip and
communicated that a plane was there to people.
b. Inference: If communicated that had a plane on the
airstrip, it wasn’t a big deal, i.e. illegal.
i. Offers own statements made to people.
c. Declarant: He
d. OOC Statement: I’ve got a plane on my hangar.
e. (1) Offered: To prove that not hiding anything and
therefore not guilty for anything.
f. State of Mind: Innocent.
g. Circumstantial? Yes, otherwise: I’m innocent.
h. Not being offered for direct assertion (that a plane
was there) but an implied assertion that there’s
nothing wrong going on.
i. Intended or Unintended? Unintended if truly
innocent. Intended if he’s not.
j. Since it’s a Criminal Case, may be unconstitutional
to not allow this defense by letting the judge decide
it and not the jury.
k. (2) Also, State of Mind.
7. Notes on the Significance of Disclosure
a. Relevant because of what it does, not to prove its
truth.
ii. Using Statements to Prove Matters Assumed
1. United States v. Pacelli
2. Facts: Gov’t charged P with conspiracy to interfere with
the constitutional rights of other (i.e. killed a Federal
witness, now a Federal Crime)
3. Evidence: Statements of family and friend that presume his
guilt. Lipsky is to testify to:
a. Meeting
i. No hearsay problem, but not relevant
ii. Context/moving the story along
b. Talked about the manner in which the murder was
committed; bungling of the murder and the
disposition of the body.
i. Relevant – why aren’t they talking about
how innocent P is, instead of the bungling of
the murder – ASSUME murdered, upset
about how done; belief that P was involved
in the crime
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a. Conditional on relevancy
i. Impeach and substantive
2. Prior Consistent Statements
a. Rehabilitation
i. Substantive
3. Out-of-Court Statements of Identification
a. In-court not as reliable
b. Includes: descriptions
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2. Court:
a. Limiting Instruction does not save the case against
the Confrontation Clause, even though it saves
against HEARSAY
3. “Bruton and I did it”
a. HEARSAY with respect to (wrt) Bruton
b. Admission (RULE 801 (d)(2)(A)) with respect to
Evans
x. PROBLEM 4-D
1. Facts: Napton works for Ace and runs over O’Brien
during while making deliveries for Ace. Six months later,
Napton tells O’Brien: (1) The brakes failed; (2) I was
speeding. O sues both N and A.
2. (2) Admission
a. Hearsay Ace (party admission)
b. Excluded Probative = Hearsay
3. (2) Probative Admission
a. Relevant but Hearsay (Not in employ)
b. (RS)
c. Probative value makes it prejudicial
4. BRUTON SITUATION
5. No Confrontation Clause issue – CIVIL
a. Bruton – CRIMINAL
6. End: Admit it with a RULE 105 Limiting Instruction
towards Ace
-???-
xi. Notes:
1. QUESTION: How do you fix a Bruton Problem?
a. (1) Redact the name in the Confession,
i. But, it may be obvious and not sufficient
ii. If Jury pieces together certain facts
mentioned in the Confession Not a
problem
b. (2) Sever the Trial
i. Confession doesn’t appear at the Bruton
Trial
c. (3) Same case with Dual Juries
i. Hear/tailor evidence and send out other Jury
when person’s evidence comes in
ii. Undermines Jury if one comes back guilty
and one innocent no rationale
2. CIVIL Trial
a. Limiting Instruction does not survive Summary
Judgment or Directed Verdict
b. Solution: Call N as a hostile witness to the stand
i. CIVIL
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xvii. PROBLEM 4 - F
1. Facts: Child killed by bus. Parents sue bus driver and bus
company. Names wrong bus company and action is
dismissed against them. Bus driver lawyer admits into
evidence statement against bus company. Bus driver wins
and parent appeal use of testimony about bus company
claim.
a. “statement” – pleading, anything written
b. IRONIC EXCEPTION: Admissions requested to
admit – Admission are not “admissions”
i. Purpose: to narrow scope
1. Because under Rules of Civil
Procedure, have to put in ALL
theories of liabilities
a. Therefore, not truly an
admission
2. Admit: BUT probative value is outweighed by prejudice
a. Confusion of jury by the conflicting theories
xviii. Notes on Admissions in Judicial Proceedings
1. “Admissions” filed in response to requests to admit
a. Federal Rules of Civil Procedure: a matter admitted
in this way is “conclusively establish” in the
pending suit but that such an admission is “for the
purpose of the pending action only and is not an
admission … for any other purpose and may not “be
used against him in any other proceedings”
xix. Admissions by Employees and Agents
1. FRE 801 (d) (2) (D)
2. Multiple or Layered Hearsay
a. Hearsay within Hearsay
b. Depends on what others have said
c. RULE 805
i. Each Hearsay statement must pass the Rule
or an Exception to the Rule to be admissible
d. There is no personal knowledge requirement
3. Government Admissions
a. Traditionally, statement by public employees have
not been admissible against the government
i. Cannot bind the government
ii. No personal stake
4. MAHLANDT v. WILD CANID SURIVIVAL &
RESEARCH CENTER
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