Chapter III. Character Evidence and Habit 97 results (showing 5 best matches)
- This means that this evidence is also not covered by Rule 404(b)(2). As you will recall, the evidence addressed by that rule has neither of the components of character evidence. For example, evidence offered to show the defendant’s motive is not evidence of character at all, let alone evidence that on a particular occasion the defendant acted in a manner consistent with that character. In contrast, the evidence offered in the entrapment and custody cases evidence of character; but, as just discussed, it is not evidence about how a particular act was in accordance with that character.
- In addition to offering evidence of their own character, defendants in criminal cases can offer evidence of the character of the victim. So, for example, a defendant in an assault case could offer evidence that the victim was prone to violence and so was more likely the aggressor in the altercation that gave rise to the prosecution. As with evidence of the defendant’s character, evidence of the victim’s character must bear on a pertinent trait.
- The rules we have discussed so far do not address this use of evidence in these sorts of cases. The evidence does not fall within Rule 404(a)(1), the general character evidence ban. You will recall that evidence barred by that rule has two components: (1) it is evidence of character or a character trait and (2) it is offered to show that on a particular occasion a person acted in accordance with that character.
- The uses listed in 404(b)(2), in contrast, do not come within the scope of the ban in the first place. To draw on one of the examples used above, it would make no sense to describe evidence of the defendant’s motive as an exception to character evidence. Evidence of motive simply is character evidence—end of story. In the same vein, if a student is not enrolled in my evidence course then I do not need to create an exception to excuse him from the exam—he was not within the category of people required to take it in the first place. We would say he is from the category of evidence exam takers, just as we would say that evidence of motive is from the category of character evidence.
- Students of evidence often find this category of evidence confusing, in part, I think, because of the structure of the rules. Rule 404 is expansively entitled “Character Evidence” and students become accustomed to going to that rule (and the other rules to which 404 directs them) for guidance on character evidence issues. So there is perhaps some irony in the fact that when it comes to these cases—where character evidence is an
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Chapter II. Relevance and Related Issues 128 results (showing 5 best matches)
- Most evidence is not self-authenticating but this still does not pose much of a problem because, consistent with their approach to relevance generally, the evidence rules set a very low standard here. Federal Rule of Evidence 901 provides that “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence that the evidence is what the proponent claims it is.” In other words, the plaintiff in our product liability case does not need to prove definitively that the toaster he offers into evidence is the same one that shocked him; he just needs to offer evidence sufficient for the jury to conclude that it is. Thus, a judge who rules on authenticity does not need to find that the evidence is authentic—she just needs to find that a sufficient basis exists for the jury to do so.
- For purposes of evidence law, this allows us to make two foundational statements, one categorical and one contingent. We can say categorically that irrelevant evidence is inadmissible. If evidence does not pass our test for relevance then it does not help the truth-finding process and we exclude it—regardless of how reliable, interesting, or impressive it might seem. And we can say, in more contingent terms, that relevant evidence is presumptively admissible. If evidence passes the relevance test then it may help the decision maker and we admit it—unless a competing consideration (efficiency, reliability, fairness, etc.) embodied in another rule dictates otherwise.
- Federal Rule of Evidence 401 provides that “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.” Evidence law traditionally refers to these elements of relevance as (a) probative value and (b) materiality. We might therefore say that relevant evidence has two qualities: it
- These examples offer some important insights into the concept of probative value specifically, and into the concept of relevance and the nature of evidence more generally. We can see that an “any effect” test for probative value is very easily satisfied. It is sometimes said that, if we had an electronic meter that measured probative value, evidence would meet the standard if it made the needle twitch ever so slightly, almost indiscernibly. Indeed, as noted, evidence can meet this test even when it is completely consistent with the of what the evidence is being offered to prove.
- toaster then the evidence appears to be neither material nor probative. To use the language of evidence law, the plaintiff’s lawyer has to “authenticate” the toaster before he can offer it as evidence.
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Appendix. Understanding the Mechanics 81 results (showing 5 best matches)
- Physical evidence
- Physical evidence is somewhat like photographic evidence insofar as it shows us facts directly. It is therefore unsurprising that two very common issues that arise in connection with physical evidence are closely related to those we discussed with photographic evidence. We want to know that the object is what the offering party says it is; and we worry that the presence of the object in the courtroom may result in unfair prejudice.
- Lawyers do not just find evidence; they also help create it. When we hear the phrase “manufactured evidence” we may think of it in its worst form—false evidence assembled by a party to serve some illegal or fraudulent end. In fact, however, good lawyers who have an eye toward the possibility of litigation often assist their clients in developing evidence that will work to their advantage.
- In this Appendix, I hope to offer a useful overview of how evidence works in practice. To that end, we will consider evidence issues in three chronological stages: pretrial, trial, and post-trial. My goal is to provide a sense of the mechanics of evidence that will help you understand how the principles discussed in this book play out in the life of an actual case.
- Before turning to those stages, however, a few preliminary observations are in order. First, there are different categories of evidence, and certain kinds of evidence tend to give rise to certain kinds of issues. Second, evidence can prove a fact to be true or false in at least two different ways—directly or circumstantially. And, third, when lawyers think about evidence they have to think about at least three different cases at the same time—their offensive case, their defensive case, and their case on appeal. Let’s look more closely at each of these issues.
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Chapter VII. Privilege 18 results (showing 5 best matches)
- The evidence principles we have studied up to this point reflect a strong preference in favor of allowing relevant evidence to come into trial. As we have seen, some relevant evidence requires a more cautious approach because of concerns about unfair prejudice, confusion, and inefficiency. But those concerns must substantially outweigh the probative value of the evidence before they become an obstacle to admissibility.
- A similar dynamic plays out when reliability concerns exist, as with hearsay. Such concerns prompt a closer consideration of the evidence and may result in its exclusion. But, even here, our rules create dozens of exceptions that allow for the admission of evidence where reliability and necessity rationales support it.
- Given the multiplication of privileges by state legislatures, we might expect the drafters of the Federal Rules of Evidence to have gotten into the act. And, indeed, they did—but not very successfully. As a result, the law of privilege stands yet another of our expectations on its head: although the Federal Rules of Evidence have generally had a profound influence on the evidence rules adopted in the states, privilege doctrine is largely driven by state law developments.
- Some of the greatest challenges, however, are broad and conceptual. By placing highly relevant and reliable information almost entirely off limits, the law of privilege conflicts with our must fundamental assumptions about how we get at the truth and how the law of evidence helps us do it. As I noted at the beginning, privileges take what we know from the rest of the law of evidence and stands it on its head.
- We turn next to a collection of principles that also test our assumptions about how evidence works. They defy our general operative understanding that if you want to prove something then you must offer evidence of it. Indeed, we might think of these principles as the mirror image of privilege: if privilege serves as a roadblock to proof, then these principles give proof a turbocharged boost down the highway.
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Conclusion 13 results (showing 5 best matches)
- There is no single correct outline for conducting such an analysis, but I will offer a suggestion about how it might proceed in general terms. I think it is important to begin by asking what the case is about and what the party offering the evidence wants to prove. This is critical, because evidence can often be used for more than one purpose and different uses may lead to different analytic threads. And remember that evidence may be admissible for one use but not for another—for example, evidence might be admissible to impeach a witness but not as substantive proof of a fact.
- Once you know what the case is about and what the party offering the evidence wants to prove you can conduct a relevance analysis: does the evidence have any tendency to make a fact of consequence to the action more or less likely than it would be without the evidence? We know that evidence can be relevant for many different reasons—because of the claim, the defenses, what it says about the credibility of a witness, and so on. And we know that relevance standard sets the bar very low.
- Having addressed relevance, we can ask whether the proposed use poses a potential problem in light of the rules that deem certain specific uses to be suspect or forbidden. For example: Is this evidence of a subsequent remedial measure being offered to prove negligence? Is it evidence of prior conduct being offered to show a propensity to act in a particular way? Is it evidence of an out-of-court statement being offered for its truth?
- If it does appear that the proposed use of the evidence may be problematic under a rule then we need to conduct a closer analysis. Does the evidence really fit within the prohibition? For example, does this out-of-court statement meet all of the elements of the hearsay definition? And, if the prohibition applies, does the evidence fall within an exclusion from or exception to that prohibition? For instance, is this character evidence permissible given that a criminal defendant is offering it to show the pertinent character trait of the victim?
- Toward the beginning of this book, I emphasized the importance of bringing a structured, systematic, and disciplined analysis to evidence questions. I suggested that anyone who tried to free-associate their way through an evidence problem would find themselves in trouble—quickly. Now you can see why.
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Chapter V. Impeachment 34 results (showing 5 best matches)
- Given this background, we may be puzzled by Federal Rule of Evidence 609 and the principle of impeachment it embodies. That rule holds that a witness’s character for truthfulness can be attacked by evidence that the witness was previously convicted of a crime. The reasoning at work here seems to be strongly at odds with the ideas we encountered earlier in connection with character evidence.
- Rule 609 places such evidence at the very top of the impeachment hierarchy, holding that evidence of a prior conviction be admitted for impeachment if the elements of the crime included proof of a dishonest act or false statement—regardless of whether the crime was a felony or a misdemeanor. Note that Rule 609 treats such evidence as probative that the judge has no discretion to exclude it—the only exemption to Rule 403 that you will find in our evidence principles. Under the language of the rule, this evidence comes in for impeachment—even if the case is a criminal one, the witness is also the defendant, and the judge believes that unfair prejudice is highly likely.
- When we analyzed the character evidence rules, we encountered a doctrinal hostility to the idea that someone’s past misconduct provides reliable insights into their more recent behavior. As we saw, our principled opposition to character evidence sometimes gives way to competing values in special cases—for example, with respect to evidence that a defendant charged with sexual misconduct had previously engaged in such an act. But, in general, our character evidence rules attempt to ensure that juries decide cases based on what they conclude a party
- Allowing a witness to be impeached by evidence of an earlier conviction does indeed conflict with some of the concepts that inform our character evidence rules. But these distinctions—the ease and efficiency of proving the conviction and our reduced concerns about prejudice where the witness is not a party—complicate our thinking. Also, we view the making of credibility determinations as one of the central roles of a jury, so it may seem particularly important to err on the side of admitting evidence that could tilt such an assessment one way or the other.
- For the moment, let’s put aside evidence of convictions and imagine other ways in which we might try to show that the witness had a general character for untruthfulness. One strategy that immediately comes to mind would be to offer evidence of a number of specific incidents in which the witness lied.
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Introduction 9 results (showing 5 best matches)
- Lawyers routinely tell me that they found evidence one of the most challenging courses in their law school curriculum. More than a few judges have confided in me that they wish they had a better grasp of character evidence or the definition of hearsay or when a party can use collateral evidence to impeach a witness. This is hard stuff.
- This book is divided into eight chapters. The first provides a general conceptual framework that I think is essential to an understanding of evidence law. The following chapters address issues that arise frequently in trial practice and that are common fodder for evidence courses: relevance and related matters; character evidence and habit; hearsay and the Confrontation Clause; impeachment; expert and lay opinions; privileges; and methods of proof that do not depend upon evidence in the conventional sense.
- The law of evidence is complicated and confusing. It has a rich common law background that continues to influence our thinking and that we cannot afford to ignore. At the same time, evidence law today is primarily expressed through byzantine clusters of written rules. Those rules set forth principles, and exceptions to those principles, and exceptions to those exceptions—all of which are subject to constant tinkering and change.
- When we set out to learn something difficult we can easily become bogged down in detail and nuance. We do not just lose the forest for the trees, but for the leaves. At this point, understanding often yields to rote memorization. Indeed, many students give up on trying to understand why the evidence rules say what they say because just understanding what they say seems like accomplishment enough.
- But evidence becomes substantially easier to understand—and vastly more interesting—if the student takes the time to achieve a high-level conceptual grasp of what the law is trying to do, how it is trying to do it, and why that project runs into internal conflicts and tensions. The great tax scholar L. Hart Wright—a brilliant instructor, after whom my law school’s teaching award is named—used to tell us that we could not understand the Internal Revenue Code unless we “climbed on top of the world and looked down.” The same holds true for evidence: our only hope of understanding it in its particulars lies in understanding it in its generalities.
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Chapter I. The Conceptual FrameWork 75 results (showing 5 best matches)
- The rules seek to advance efficiency and do so through a variety of mechanisms. One such mechanism lies in the enforcement of basic thresholds. Thus, the rules require that all evidence be relevant—that is, it must make a fact of consequence to the case more or less likely than it would be without the evidence. All evidence must be authentic—that is, it must be what the party offering the evidence claims it is. When we say that evidence is irrelevant or inauthentic or incompetent we are saying that the evidence will not help us determine the truth and so is a waste of time and a potential source of confusion and mischief.
- So, as with hearsay, there seem to be compelling reasons to exclude from trial anything even remotely resembling character evidence; and, as with hearsay, the Federal Rules of Evidence nevertheless reflect a significantly more permissive view. The principal rule barring character evidence includes a number of exceptions. Exceptions also exist for evidence that attacks a witness’s character for truthfulness. And separate rules carve from the general character evidence ban a number of exceptions that apply in specific types of cases; for example, in a case in which a defendant is accused of child sexual molestation, the court may admit evidence indicating that the defendant previously committed such an act.
- We will see this throughout our study: evidence inadmissible for one purpose may be admissible for another. The rules—consistent with our truth-finding model and the consequently liberal approach toward admissibility—allow this sort of evidence to come in but require the judge to instruct the jury that it may consider the evidence only for the permissible use. Of course, we may wonder whether even the most cooperative and best intentioned of jurors can actually follow such a “limiting instruction” (and, indeed, judges sometimes exclude evidence because they think the jury cannot do so). And we may worry that poorly framed limiting instructions may do more harm than good, inadvertently drawing attention to a problematic use of the evidence that might not have occurred to the jury. We will encounter those issues throughout this book. For present purposes, we need only note that the rules promote the admissibility of evidence by assuming (or, a skeptic might say, by pretending) that...
- We must candidly acknowledge, however, that less elevated concerns also drive the law of evidence. Our evidence principles are not the conceptually pure and wholly consistent by-product of a pristine application of reason and experience. Other factors shape and influence evidence law, including the political nature of the rulemaking process.
- And, of course, above all else evidence is an eminently practical discipline. Our evidence rules must work in courtrooms across the
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Chapter VIII. Proof Without Conventional Evidence 26 results (showing 5 best matches)
- In this chapter, we come to a collection of evidence principles that, in one way or another and to a greater or lesser extent, depart from this general approach. In an earlier chapter we encountered one such principle—the idea that certain evidence is self-authenticating and so requires no independent proof that it is what the proponent of the evidence claims it is. In this chapter we turn to other principles that provide shortcuts to proof.
- A party may also concede the truth of a fact during pretrial proceedings, such as a hearing on a motion in a civil case or a probable cause hearing in a criminal case. Such concessions might come in a brief, or in a statement by counsel to the court, or through the testimony of a party. For example, a party who admits, at a pretrial hearing on a motion to compel production of evidence, that he destroyed evidence he had a duty to preserve will be stuck with the consequences of that admission at trial—usually an instruction from the judge that the jury may assume that the destroyed evidence was adverse to the party who failed to preserve it.
- In light of this statistical reality, the evidence law of many jurisdictions recognizes a presumption in favor of delivery. That is, if I offer evidence that I took all of the steps outlined above (what we call the “basic facts” that set up the presumption), then the law presumes that the letter was delivered as addressed and the jury will be instructed accordingly. You can imagine why this provides a helpful boost to the proponent of the evidence: I cannot testify that the defendant received notice of his breach of contract, because I did not personally see the letter placed in his hand; but I can testify about the measures I undertook to provide him with notice, and the presumption deems evidence of those measures to be equivalent to proof of receipt.
- The laws of the various states, typically through targeted statutes, recognize a number of presumptions. In this sense, presumptions are creatures of underlying substantive law and not of the law of evidence. Because presumptions can affect what happens at trial, however, the rules of evidence have to figure out what to do with them.
- Consider, for example, our well-mailed letter scenario. What if the plaintiff offers evidence that he properly mailed notice to the defendant, but the defendant testifies that he never got it? The jury might, or might not, find the defendant credible. Does the presumption that the defendant received the letter persist? Or does that presumption effectively vaporize once opposing evidence been offered?
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Chapter VI. Lay and Expert Opinions 39 results (showing 5 best matches)
- The central point, though, is that our evidence rules do not require personal knowledge for most expert witnesses to offer opinions and, indeed, such knowledge is typically absent. In several of the preceding chapters we encountered the idea—critical to so much of our evidence law—that witnesses must have personal knowledge. With respect to experts, that foundational requirement all but disappears.
- In short, sound and persuasive arguments can be made for setting our standards for expert testimony very high—or very low. There are good reasons to think we should let very little expert testimony into evidence—or lots of it. As we will see, for all these reasons our courts and rule writers have struggled to determine the best approach to such evidence.
- test on the basis that it is inconsistent with the “liberal thrust” of the Federal Rules of Evidence. On the other hand, the Court’s description of what it takes for evidence to qualify as “scientific” seems very demanding. In other words, despite its discussion of the forgiving standards for admissibility that generally characterize the Federal Rules of Evidence, the “scientific method” discussion in
- In our next chapter, we will see a similar tension in the law of privilege. On one hand, we want our evidence rules to protect certain relationships by rendering communications between certain people inadmissible, indeed even undiscoverable. Here, we do not just erect a gate—we put up an “off limits” sign. On the other hand, placing any category of evidence wholly beyond the reach of discovery and admissibility runs contrary to the liberal thrust of the rules and to the foundational principle that every witness who has relevant things to say should appear and give his or her evidence. We turn now to this complicated and fascinating collection of doctrines.
- These ambiguities matter because they complicate another line that the rules invite us to draw: the line between lay opinions and expert opinions. After all, our evidence principles in part define lay opinions negatively, by requiring that they tell the difference between the two. We will consider whether that suggestion holds true, but only after we first embark on an effort to define expert opinions and to explain why we allow them into evidence.
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Chapter IV. Hearsay and the Confrontation Clause 70 results (showing 5 best matches)
- Our evidence rules give the prosecutor the opportunity to try to undermine this witness’s testimony. The prosecutor may do so in a variety of ways. One option is for the prosecutor to rebut that evidence by calling witnesses of his own who will testify that they know the defendant well and that in their opinion the defendant did indeed have a predisposition toward violence.
- As a general proposition, hearsay evidence is not admissible in court. This rule is subject to dozens of exclusions and exceptions—but we begin with the assumption that hearsay evidence cannot come in. We therefore must first work to understand how the rules define “hearsay.”
- Hearsay consists of three elements. Unless all three elements are present in the evidence, it does not qualify as hearsay. Hearsay is (a) a statement (b) made by the declarant in some context other than the trial or hearing at which the statement is now offered into evidence (c) that is offered to prove the truth of what the statement asserts.
- As noted above, however, we need not despair too much over the imperfections of our rationales here. Less-than-reliable evidence may end up being excluded based on an objection other than hearsay. And, if it does come in, the opponent of the evidence will have the chance to unveil its infirmities to the fact finder.
- This approach of working through the evidence level by level makes perfect analytic sense. Indeed, it is hard to understand how we could arrive at any other approach. After all, we can hardly ignore the serious reliability concerns raised by multiple levels of hearsay. But if each level fulfills our expectations of reliability and necessity then it seems illogical to keep the evidence out.
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Acknowledgments 6 results (showing 5 best matches)
- It has been my privilege to teach evidence for roughly thirty years. I thank the thousands of law students who have patiently endured my well-intentioned, if not always successful, efforts to introduce them to this fascinating subject. To the extent this book provides any clarifying insights into the law of evidence, the credit overwhelmingly goes to them.
- I have been a practicing litigator for the same thirty years or so and continue to work in the trial and appellate trenches. I am grateful to the many clients who have placed their trust and confidence in me and who have given me the opportunity to grow in my understanding of evidence while advocating on their behalf. We learn a lot about evidence by studying the rules and reading books like this (I hope). But we learn even more by listening closely to our clients, getting a clear sense of the story they think needs telling, and then figuring out how the evidence rules allow us to tell it.
- I am deeply indebted to Justice Bridget Mary McCormack of the Michigan Supreme Court for all that I have learned from our many conversations about evidence doctrine. I am particularly grateful for the insights she has given me into the role of stereotyping in litigation. I have left every one of our conversations thinking harder and better.
- I hope you have seen the evidence.
- And thanks to my former evidence students Joseph Celentino, Lauren Dayton, and Andrea Taylor for reviewing several chapters of this book and providing immensely useful feedback. I particularly appreciate that they took the time to help me while they were busy launching their promising legal careers. As is always the case, I have been their student as much as they have been mine.
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Table of Contents 17 results (showing 5 best matches)
- C. Enter: The Rules of Evidence
- 1. The Influence of the Truth-Finding Model: Some Overarching Principles in Evidence Law
- 2. The Dialectics of Evidence: The Principles in Action and Conflict
- 2. Probative Value: Does the Evidence Make a Material Fact More or Less Likely?
- 2. 407 and 408: Barring Evidence from Specific Uses
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- Publication Date: October 6th, 2016
- ISBN: 9781634602983
- Subject: Evidence
- Series: Concepts and Insights
- Type: Hornbook Treatises
This book offers a highly readable and engaging overview of the theory and principles of evidence. An opening chapter offers a broad conceptual framework for understanding evidence. This framework is then used throughout the text to help the reader achieve a firm grasp of the essentials: relevance, character, hearsay, impeachment, opinion, privileges, and non-conventional forms of evidence. The book also includes an appendix that explains the mechanics of finding, offering, and objecting to evidence. The author has drawn on his thirty years of experience as an evidence professor and a practicing litigator to provide the reader with a solid understanding of what the evidence rules are trying to achieve and how they are going about it. This book will be helpful to any law student taking an introductory evidence course, trial practice simulation course, or litigation clinic, as well as to new litigators.
“I'm a foreign-educated LL.M. grad from Georgetown Law, and I took the NY Bar exam two years ago. I randomly just recalled that I chanced upon your book, Evidence Law. Concepts and Insights, at the Georgetown library in the middle of bar prep as a resource for Evidence Law (which I have no real background in because I don't have a JD from the States), and I was hooked! It helped me improve my score tremendously. I thought it was so simple, clear and on point, and it ended up being so much more helpful than a mega abbreviated bar prep commercial outline because the concepts actually stuck with me. I can't even imagine how much work it would've taken to come up with a guide that is so concise and effective, so a big thank you to you.”
—Former Evidence Student