Law School Resources

Case Briefs, Hypos, Class Notes, Outlines, & Analysis

Law School Resources


1)   Relevance

a)      Objection:  Objection, your honor.  The question calls for an irrelevant answer because [it doesn’t “go to” a proposition that is properly provable in the case] or [it doesn’t have any probabtive value (unlikely!)].  (Never object to relevance without a very specific explanation.  A ‘naked’ relevance objection allows opposing counsel to immediately step onto his soapbox in response to your objection and explain how “Ms. Zylan’s gambling problems show that she is not a credible witness, that she has no self control over her habit, and that she’d do anything to escape her massive gambling debts – including….”  You get the picture.  Don’t lose that opportunity if your opponent makes a naked Relevance objection!)

b)      Response:  The evidence is relevant because [it goes to (proposition) that the jury needs to hear (because…)]

c)      The rule:  Federal Rule of Evidence (FRE) 401

i)        tends to make the existence

ii)       of a consequential (material) fact

iii)     more or less probable (probative)

d)      Must be Material (a "fact of consequence")

i)        the evidence must "go to" the proposition

(1)    is this a fact of consequence in the case?

(2)    is this something properly provable?

e)      Admissible for Multiple Purposes & Limited Admissibility

i)        FRE 105: 

(1)    Evidence admissible for only one purpose/to one party

(2)    upon request, the court shall restrict the Evidence’s admissibility & instruct the jury

2)   Prejudice & Proabtiveness: 

a)      Objection:  Objection, your honor.  Under Federal Rule of Evidence 403, this evidence is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice.  It’s probative value is low because [explain ground]. 


Objection, your honor.  Under Federal Rule of Evidence 403, this evidence is inadmissible because its probative value is substantially outweighed by the danger that the jury will be confused and misled to take the evidence for the inadmissible purpose [state inadmissible purpose].

b)      Response:  Counsel’s objection goes to the weight rather than the inadmissibility of the evidence.  Probative value is high because [state].  Any potential for prejudice is easily cured by a limiting instruction.  We realize this evidence is prejudicial to [party].  It’s obvious that they don’t want the jury to hear it, however, Rule 403 only calls for exclusion is evidence is unfairly prejudicial.  This evidence is not unfairly harmful to them because it does not cause the jury to decide the case on an improper basis.


c)      Rule 403

i)        evidence may be excluded if

ii)       probative value is substantially outweighed by:

(1)    the danger of unfair prejudice

(2)    confusion of issues

(3)    misleading jury

(4)    considerations of undue delay (“waste of time” in FRE)

(5)    or needless presentation of cumulative evidence

the above are not exemplary – there is no “such as”

d)      probative value:

i)        strength of logical inference

ii)       how central to material issues/core issues of case

iii)     remoteness:  farther away, less probative

iv)     similarity

v)      proponent’s need: 

(1)    if offer to stipulate, decreases need

(2)    court can’t force you to accept stipulation but probative value is decreased nonetheless

(3)    consider:

(a)    probative & prejudicial tendencies of offered E

(b)    probative & prejudicial of avail. alternatives, include stipulation (is it really a good alternative?  will it really be less prejudicial?)

e)      trial concerns:

i)        unfair prejudice

(1)    all E is prejudicial or you wouldn’t offer it!

(2)    Standard is: “would cause the jury to render a decision on an improper basis”

(3)    If it only appeals to juror’s sympathies, arouses horror, desire to punish, to cause jury to base decision on improper basis (not the propositions of the case), it is inadmissible.

ii)       confusion & misleading jury: 

(1)    happens when you create a satellite q causing juror confusion

(2)    always argue this when something offered w/ limiting instruction by saying the jury won’t understand the ltd. nature of the E & will mislead them into deciding on improper basis

iii)     needlessly cumulative

(1)    already established & the new evidence doesn’t add anything

(2)    repetitive = asking same W several times

f)       practical considerations:

i)        You should probably ask “Your honor, may we approach [constructively]” and argue this at the bench so the jury doesn’t hear about the horrible evidence you’re trying to keep from their ears.  This is very very important!

3)   Witnesses

a)      Personal Knowledge (R. 602)

i)        Objection:  Objection, your honor.  There has been no showing that the witness has personal knowledge of [fact].

ii)       Response:  I will lay the predicate at this time.  Or  We have shown the witness has personal knowledge because he testified that [fact]. 

iii)      personal knowledge = something perceived through witness’s own senses

iv)     lay the factual predicate to avoid opposing counsel making an objection and you having to beg the judge to show how it is within the witness’s personal knowledge.  The facts you must lay as the predicate are:

(1)    enough evidence so a rzbl person could find there was personal knowledge

(2)   examples

(a)    Q: do you know what color the light was?  A: yes.  OBJECTION lack of personal kn.  OR’d.  Ask to take on voir dire to est. a lack of personal kn (to ferret out if he knows from hearsay or something).

(b)     Did the driver of the blue car know the light was red?  OBJECTION speculative because humanly impossible to have personal kn. of this. ...more