5) Emanuel's Evidence

5) Emanuel's Evidence - Emanuel Law Outlines Evidence...

Info iconThis preview shows pages 1–3. Sign up to view the full content.

View Full Document Right Arrow Icon
Emanuel Law Outlines Evidence Chapter 1 BASIC CONCEPTS I. KINDS OF EVIDENCE A. Direct versus circumstantial [11] 1. Direct evidence: Direct evidence is evidence which, if believed, automatically resolves the issue. ( Example: W says, "I saw D strangle V." This is direct evidence on whether D strangled V.) 2. Circumstantial: Circumstantial evidence is evidence which, even if believed, does not resolve the issue unless additional reasoning is used. ( Example: W says, "I saw D running from the place where V's body was found, and I found a stocking in D's pocket." This is only circumstantial evidence of whether D strangled V.) 3. Probative value: The probative value of direct evidence is not necessarily higher than circumstantial evidence, but it will sometimes be more readily admitted by the judge. B. Testimonial versus real and demonstrative: [458] 1. Testimonial: Testimonial evidence arises when W makes assertions in court. The fact-finder must rely on W's interpretation of W's sensory data, W's memory, etc. 2. Real and demonstrative: Real evidence is a thing involved in the underlying event (e.g., a weapon, document, or other tangible item). Demonstrative evidence is a tangible item that illustrates some material proposition (e.g., a map, chart, summary). The fact-finder may interpret either real or demonstrative evidence by use of its own senses, without intervening sensing and interpreting by a witness. II. CONDITIONS FOR ADMITTING EVIDENCE A. Relevant: Only relevant evidence may be admitted. ( FRE 402 ) [10 - 16] 1. Definition: Evidence is "relevant" if it has "any tendency to make the existence of [a material] fact . .. more probable or less probable than it would be without the evidence." ( FRE 401 ) a. "Brick is not wall": The piece of evidence need not make a material fact more probable than not; it must merely increase the probability (even by a small amount) that the material fact is so. "A brick is not a wall," and the piece of evidence merely has to be one brick in the wall establishing a particular fact. 2. Exclusion: Even relevant evidence may be excluded if its probative value is substantially outweighed by the danger of: (1) unfair prejudice ; (2) confusion of the issues; (3) misleading of the jury; or (4) considerations of undue delay, waste of time, or needless presentation of cumulative evidence. ( FRE 403 ) B. Offering testimonial evidence 1. Lay (i.e., non-expert) witness:
Background image of page 1

Info iconThis preview has intentionally blurred sections. Sign up to view the full version.

View Full DocumentRight Arrow Icon
a. W must take oath , i.e., solemnly promise to testify truthfully. ( FRE 603 ) b. W must testify from personal knowledge . ( FRE 602 ) c. W must preferably state facts rather than opinions . At common law this rule is sometimes stated as a firm requirement (although often loosely enforced). Under FRE 701 , W may give an opinion if it is: (1) rationally based on his own perceptions; and (2) helpful to the fact-finder. d.
Background image of page 2
Image of page 3
This is the end of the preview. Sign up to access the rest of the document.

This note was uploaded on 09/21/2009 for the course LAW All taught by Professor All during the Fall '09 term at University of the West.

Page1 / 74

5) Emanuel's Evidence - Emanuel Law Outlines Evidence...

This preview shows document pages 1 - 3. Sign up to view the full document.

View Full Document Right Arrow Icon
Ask a homework question - tutors are online