Class 1: Introduction and The Basics (and a little Relevance) - Jan. 9

Question 1

What is evidence? (Q)

Answer 1

Evidence is “[s]omething (including testimony, documents, and tangible objects) that tends to prove or disprove the existence of an alleged fact.” Black’s Law Dictionary (10th ed. 2014). Evidence can be (1) testimonial (i.e. a written or oral statement), (2) documentary (e.g., a contract or will), or (3) real (i.e., something tangible, like fingerprints or a photograph).

Question 2

What are the Federal Rules of Evidence? (Q)

Answer 2

The Federal Rules of Evidence (FRE), first enacted in 1975, are the rules governing the presentation of evidence in all federal courts, both civil and criminal. The FRE mostly codified common law evidentiary rules, with some departures. Most states have enacted mirroring provisions that apply in state courts, although some states retain at least some common law rules of evidence.

Question 3

Is all evidence admissible in court? (Q)

Answer 3

No. Not all evidence is admissible in court. Courts must determine the admissibility of evidence based on the FRE. The FRE are to be construed to administer all proceedings fairly, eliminate unnecessary expense and delay, and “promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” FRE 102.

Question 4

For purposes of determining whether evidence is relevant, what is a fact of consequence? (Q)

Answer 4

A fact of consequence is a fact that is connected to the legal issues in the case as determined by the substantive law governing the case. Facts of consequence are sometimes called material facts.

Question 5

Is relevant evidence admissible even if it is not very persuasive? (Q)

Answer 5

Yes. Relevant evidence is admissible even if it is not very persuasive. Relevant evidence is admissible unless deemed inadmissible based on the Federal Rules of Evidence (FRE) and principles derived from the United States Constitution. The persuasiveness of evidence is a question for the fact finder.

Keep in mind, however, that just because an item of evidence is admissible does not ensure that it will be admitted.

Question 6

What is the doctrine of curative admissibility? (Q)

Answer 6

The doctrine of curative admissibility provides that a judge may permit a party who failed to object to irrelevant or otherwise inadmissible evidence to introduce evidence that would be irrelevant or otherwise inadmissible to counter any misperception created by the improperly admitted evidence. In other words, curative admissibility permits a party to attempt to correct the fact finder’s impression of the evidence. This is because once evidence is presented, even a limiting instruction cannot undo the fact finder’s exposure to the evidence.

Question 7

What is direct evidence? (Q)

Answer 7

Direct evidence is evidence that supports a fact without requiring an inference to be made between the proof and the fact to be proven. Although direct evidence supports a fact without requiring an inference, it is not necessarily superior to other types of evidence, such as circumstantial.

Question 8

What is circumstantial evidence? (Q)

Answer 8

Circumstantial evidence is evidence that makes a fact more or less probable, but it requires the fact finder to make an inference between the evidence and the fact to be proven. Circumstantial evidence is not necessarily inferior evidence; the fact finder must weigh all evidence admitted to make factual findings.

Question 9

What is conditional relevance? (Q)

Answer 9

Conditional relevance refers to situations in which the relevance of an item of evidence depends on the existence of another fact. A party offering conditionally relevant evidence must sufficiently demonstrate the existence of the other fact.

Question 10

Is irrelevant evidence ever admissible? (Q)

Answer 10

Irrelevant evidence is never admissible.

Question 11

What is probative value? (Q)

Answer 11

Probative value, sometimes called logical relevance or weight of the evidence, is the degree to which evidence makes a fact of consequence more or less likely.

Question 12

The defendant, an art dealer with 20 years of experience, was charged in federal court with conspiring to receive stolen Egyptian antiquities in violation of federal law. The prosecution invoked an Egyptian law that declared all antiquities found in Egypt the property of the Egyptian government, in support of the contention that the Egyptian government was the true owner of the antiquities. The defendant claimed that he was not aware of the Egyptian law and therefore thought the antiquities had no owner. The prosecution called an antiques dealer who worked frequently with the defendant. The antiques dealer testified that she was aware of the Egyptian law and that “even an ignoramus in this field would know about that law.” The defense objected to the testimony, arguing that it was not relevant to the case.

How should the court rule? (Q)

Answer 12

The court should overrule the objection, because the evidence is both material and probative. Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence. Probative evidence is evidence that tends to prove a fact in dispute.

Here, the testimony of the dealer related directly to a fact of consequence in the case: whether the defendant was aware of the Egyptian law. The dealer’s testimony was also probative because the fact that another dealer—a person in the defendant’s line of work and in the same community—knew about the Egyptian law makes it somewhat more probable that the defendant knew about the law.

Question 13

A composer sued a record company for breach of contract, alleging that the company failed to promote the composer’s record as promised and that, as a result, the record did not do well that year. To prove damages in the form of lost royalties, the composer called an expert witness. The expert described the results of a statistical analysis comparing the ultimate success of the composer’s record to the ultimate success of other similarly situated songs released in the same year. The record company argued that the expert’s statistical analysis failed to account for factors such as the reputations of the various artists and the size of the companies promoting the recordings. Thus, the record company moved to strike the testimony as irrelevant.

How should the judge rule on the company’s motion? (Q)

Answer 13

The judge should overrule the objection. Relevant evidence is generally admissible. Evidence is relevant if it has any tendency to make a fact of consequence more or less probable than it would be without the evidence.

Here, the expert’s testimony had some tendency to make a fact of consequence—the exact amount of damages suffered by the composer—more likely than it would be without the evidence. The fact that the expert’s testimony may be attacked on one or more grounds does not make the evidence irrelevant. Instead, that attack goes to the probative value of the testimony. The judge should admit the evidence, and then the jury may determine how much weight to give it when deciding the ultimate issue.

Question 14

What is the process by which a party may ask the court to disallow the introduction of witness testimony or other evidence? (Q)

Answer 14

If a party wishes to ask the court to disallow the introduction of witness testimony or other evidence, the party should object to the evidence’s introduction. Objection should be made before the witness answers an improper question or the evidence is admitted. The court will either sustain the objection and disallow the evidence or overrule the objection and allow the evidence. In the event the evidence gets into the record before a party objects, the party may request that the judge remove the evidence via a motion to strike. If the judge grants the motion to strike, he or she will generally instruct the jury that the evidence has been removed from the record and should not be considered.

Question 15

What is the difference between a specific objection and a general objection? (Q)

Answer 15

The difference between a specific objection and a general objection is that a specific objection states the grounds on which the objection is based and a general objection does not. A general objection may be appropriate if the grounds for the objection are apparent from the context.

Question 16

If an attorney believes that a judge mistakenly admitted or excluded evidence, what must the attorney do to preserve a claim of error for appeal? (Q)

Answer 16

In order to preserve a claim of error for appeal based on the erroneous admission or exclusion of evidence, an attorney must, on the record:

(1) object or move to strike the evidence in a timely manner and

(2) state a specific reason for the objection unless the reason is apparent from the context of the objection.

If the claim of error involves the erroneous exclusion of evidence, the attorney must also provide the court with an offer of proof sufficient to show the court the substance of the proposed testimony unless the substance is apparent from context.

Question 17

What is a motion in limine? (Q)

Answer 17

A motion in limine is a motion made by a party seeking a pre-trial ruling on the admissibility of certain evidence. This technique is often used if a party believes potentially inadmissible evidence would be unfairly prejudicial if heard by the jury, even if it is ultimately ruled inadmissible.

Question 18

What is an offer of proof? (Q)

Answer 18

An offer of proof is a party’s explanation to the court of why objected-to evidence should be admitted. This is often done outside of the presence of the jury. If evidence is disallowed after an objection, the proffering party must present an offer of proof to preserve the issue for appeal, unless the substance of the evidence was apparent from the context.

Question 19

What is harmless error? (Q)

Answer 19

Harmless error is error that does not adversely affect a substantial right of the party and, therefore, will not warrant reversal of the judgment. An error is harmless if it is more probable than not that, even without the error, the jury would have reached the same verdict.

Question 20

May evidence be admitted for a particular purpose but not another? (Q)

Answer 20

Yes. Evidence may be admitted for a particular purpose but not another. If evidence is admitted specifically for one purpose but not another, the court, upon request, must restrict the evidence’s scope by giving the jury a limiting instruction. The limiting instruction will identify the purpose for which the jury may consider the evidence and direct the jury to adhere to that limitation. FRE 105

Keep in mind that the rule allowing evidence to be admitted for a particular purpose but not another is still subject to Rule 403’s instruction that evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.

Question 21

Under which two circumstances must the court give a limiting instruction? (Q)

Answer 21

The court must give a limiting instruction if it admits evidence that is either:

(1) admissible against one party but not another or

(2) admissible for one purpose but not another. A party entitled to a limiting instruction must request it in a timely manner.

(FRE 105)

Question 22

Under which three circumstances is a court not required to provide the jury with a limiting instruction? (Q)

Answer 22

A court is not required to provide the jury with a limiting instruction if:

(1) a party fails to request the limiting instruction in a timely manner,

(2) a party would be entitled to a limiting instruction but decides as a matter of strategy not to request one, or

(3) a limiting instruction is insufficient to cure the danger of unfair prejudice created by the evidence.

(FRE 105)

Question 23

The employee of an oil company was killed in a pipeline explosion at an oil metering station. The employee’s widow brought a wrongful-death action against the company on the theory that the company was negligent in failing to provide the necessary safety systems. The oil company argued that it could not be found liable because it had no control over the metering station where the accident occurred. At trial, as proof that the company had control over the premises, the widow offered evidence that the oil company repaired the metering station after the accident. The oil company objected, arguing that the evidence violated the ban on the use of subsequent remedial measures to prove negligence. The court ruled the evidence admissible. The oil company immediately requested a limiting instruction.

Should the court issue the instruction? (Q)

Answer 23

Yes. The court should issue the limiting instruction. A court must give a limiting instruction if evidence is admissible for one purpose but not another and a party requests the instruction in a timely manner. Parties cannot use evidence of a subsequent remedial measure to prove negligence. However, they can use that evidence for another purpose, including proving disputed ownership or control.

Here, the evidence is not admissible to prove the company’s negligence, but it is admissible to prove that the oil company owned or controlled the metering station. The oil company requested the limiting instruction immediately. Thus, the court should issue a limiting instruction informing the jury that the evidence is admissible to prove ownership and control but not to prove negligence.

Question 24

Which courts and judges do the FREs apply to? (Merritt)

Answer 24

US district courts, US bankruptcy and magistrate judges, US courts of appeals, US courts of federal claims, and the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands. FRE 1101(a) (23)

Question 25

Which cases and proceedings do the FREs apply to? (Merritt)

Answer 25

Civil cases and proceedings including bankruptcy, admiralty, and maritime cases, criminal cases and proceedings, and contempt proceedings except those in which the court may act summarily. FRE 1101(b) (25)

Question 26

What is rule 401 of the FREs? (Merritt)

Answer 26

The test for relevant evidence. (54)

Question 27

What is the test for relevant evidence? (Merritt)

Answer 27

Evidence is relevant if:

(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

(b) the fact is of consequence in determining the action

(FRE 401 (54))

Question 28

If an opponent is willing to concede a fact, does it make that fact not of consequence? (Merritt)

Answer 28

No. If evidence proves that a fact of consequence is more or less probable, that evidence is relevant even if an opposing party is willing to concede the truth of the fact. (60)

Question 29

Who decides questions on the admissibility of evidence? (Merritt)

Answer 29

The judge. (FRE 104 (Quiz))

Question 30

In deciding the admissibility of evidence, is the judge bound by the rules of evidence? (Merritt)

Answer 30

No. (FRE 104 (Quiz))

Question 30

Can appellate courts review rulings that are plain error, even if the claim was not properly preserved? (Merrit)

Answer 30

Yes. (FRE 103(e) (Quiz))

Question 31

What is the definition of plain error? (Merrit)

Answer 31

An error that is clear and obvious under current law, that affects the defendant’s substantial rights, and that would seriously affect the fairness and integrity of the judicial proceedings if left uncorrected. (Quiz)

Question 32

Is a judge bound by the rules of evidence in deciding whether a privilege exists? (Merrit)

Answer 32

No. (FRE 104 (Quiz))

Question 33

What was the ruling from United States v. Zolin (1989)? (Merritt)

Answer 33

The Zolin Court held that in deciding the privilege issue courts can consider potentially privileged information but should intrude cautiously, requiring a showing that the privilege has been breached, and conducting an in camera examination rather than a public adversarial one. (Quiz)

Question 34

When a judge “rules definitively” on an evidentiary issue, even before trial, is the issue preserved for appeal? (Merritt)

Answer 34

Yes. (FRE 103(b) (Quiz))

Question 35

What is a motion to strike? (Q)

Answer 35

A party’s official request that the court remove portions of the pleadings that are insufficient defenses, redundant, immaterial, impertinent, or scandalous.

Question 36

Does FRE 105 include must or may when discussing limiting instructions? (Merritt)

Answer 36

Must, with caveats. (47)