Law School Resources
Evidence
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].
Or
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.
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