Evidence - EVIDENCE Rossi I INTRODUCTION A Policy Concerns...

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EVIDENCE Rossi I. INTRODUCTION A. Policy Concerns 1. truth and efficiency in the particular litigation 2. auxiliary societal interests separate from the particular litigation B. Historical Development 1. common law and statutes 2. Model Code (1942) 3. Uniform Code of Evidence (1953) 4. Federal Rules of Evidence (1975) C. General Principles 1. Admissibility Requirements (a) Materiality – evidence must focus on a proposition legally at issue in case (b) Relevancy – evidence must be logically connected to material proposition (c) Competency – evidence must not violate any evidentiary rules 2. Types of Admissible Evidence (a) Testimonial – oral presentation (b) Documentary – written presentation (c) Real – physical presentation (e.g. gun or drugs found on defendant) (d) Demonstrative – visual aid addressed to senses (e.g. crime scene photos) (e) Direct – evidence goes to the precise point at issue (f) Circumstantial – evidence relates to a fact that is not an issue in the case, but to which proposition at issue is to be inferred D. Foundational Rules 1. Preliminary Questions (a) FRE 104(a) – preliminary fact question upon which admissibility depends (e.g. condition precedent to expert witness qualification, privilege existence, best evidence rule, co-conspirator statement, hearsay) shall be determined by judge before evidence admitted (b) FRE 104(b) – if preliminary fact question goes to a relevancy determination, then judge will admit evidence only when there is sufficient evidence for reasonable jury to decide that evidence is relevant 2. Limited Applicability (a) FRE 105 – court shall upon request shall restrict the evidence to its proper scope and instruct the jury accordingly 3. Timely Objections (a) FRE 103(a)(1) – must make a timely and specific objection to strike admitted evidence so as to preserve the evidentiary issue on appeal (i) “timely”: must object when improper question or answer occurs (ii) “specific”: must be much more than a general objection (e.g. “objection, hearsay,” but not “objection inadmissible”), but general objections that are sustained will be preserved on appeal (b) FRE 103(a)(2) – must make a timely and specific offer of proof to
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preserve excluded evidence on appeal (i) “offer of proof”: must introduce grounds of admissibility and what evidence would have proved if introduced 4. Rule of Completeness (a) FRE 106 – if party introduces a writing or recording that is incomplete, misleading, ambiguous or incomplete, then adverse party may require an explanatory part of the evidence to be introduced to prevent misimpression (i) explanatory evidence must be necessary to qualify, explain or put in context introduced evidence, and what would otherwise be inadmissible evidence (e.g. hearsay) may be admissible if necessary (ii) explanatory evidence need not be part of the writing or recording and party may force opponent to introduce explanatory part at same time as when the misleading writing or recording is introduced II. JUDICIAL NOTICE A. FRE 201 1. FRE 201 (a) Rule – judge may instruct jury to accept as true (i.e. relieves party with
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