A Short & Happy Guide to Evidence
Author:
Beckman, Sydney
Edition:
1st
Copyright Date:
2018
19 chapters
have results for short happy evidence
Title Page 2 results
Chapter I Introduction 5 results
- The study of evidence is a challenging one. This book is designed to assist you in your understanding of this difficult subject. The book is—relatively—short. Its tone is light and occasionally funny; at least I think so, but then—I wrote it. There is only one way to learn evidence. Work very hard. That’s it. That’s the secret. So, let’s get started.
- The study of Evidence intends to equip you with the right weapons (see what I did there?) to help you navigate the evidentiary path. The other critical lesson in Evidence is that there may be more than one path to admission. Look at the dotted line on the dungeon path. This is an alternate path with the same outcome.
- Evidence may be thought of in much the same way. You begin at Point A. That is, a particular piece of evidence is not admitted. You want to get to point B. Point B represents that the piece of evidence IS admitted. How do you get there? All of the barriers must be overcome. This book illustrates what these various barriers are and how, if possible, to overcome them. Points 1 and 2 represent the barriers. Assuming you have effectively overcome the first barrier (Point 1), you might encounter a second obstacle. This obstacle may vary depending upon the type of evidence you are trying to offer. Think of Point 2 as a terrifying Orc.
- With this book supplementing your Evidence class, you will learn how to interpret and apply the rules, and also to apply the rules. In class, you will review relevant cases and other authority to evaluate evidentiary issues. This is the “hard work” I discussed on the first page. This book will help with your understanding of the rules of evidence and their application. But no book will take the place of doing the work. Now, let’s get into the substance of the rules. Oh, and don’t forget to carry a broadsword—in case you run into an Orc.
- The Study of Evidence
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Chapter II The Study of Evidence 59 results (showing 5 best matches)
- “Real Evidence” is generally tangible evidence. Consider a physical object such as a gun; if the gun used in a robbery was admitted into evidence, then that gun would be “real” evidence. On the other hand, if a similar gun was used in an effort to show the jury the type, size, and shape of the gun used in a robbery, then the similar gun would not be “real” evidence but, instead, would be demonstrative evidence.
- The rules are designed to help determine what pieces of evidence should be considered by the factfinder. Only evidence which has been admitted may be considered by the fact-finder. The rules are the “mechanisms” we use to determine whether evidence is admitted or excluded. Do not misunderstand me; the judge is the only one who determines whether evidence is admitted or excluded. We use the rules to argue for the admission or exclusion of evidence.
- You may have heard the phrase “circumstantial evidence.” People frequently believe that circumstantial evidence is less persuasive than “direct evidence.” On the contrary, circumstantial evidence can be significantly more persuasive than direct evidence. Let’s examine the two types.
- With testimonial evidence, you must concern yourself with a number of factors including: competency, the form the evidence takes, whether the evidence is an opinion or a fact, the credibility with regard to such testimony, and what you may do (under the Federal Rules of Evidence) with regard to the testimonial evidence.
- As mentioned earlier, with regard to evidence, your goal is to keep something (“admitted”). But the concept of admissibility is not quite that simple. Evidence may be admitted for “any purpose,” which means what it says: anything and everything. Unless a judge, or rule, specifically provides otherwise, all evidence is admitted for any purpose. But, evidence may also be admitted for a “limited purpose.” That is, the evidence may be considered for that purpose specified by the judge. This is called “limited admissibility,” and there are two types of limited admissibility: 1) evidence which is admissible for one purpose but not another; and 2) evidence which is admissible against one party but not another.
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Chapter V Character Evidence 87 results (showing 5 best matches)
- There is a bit more to the rule—as to procedure, etc., but you can read those portions in the Appendix. Happy reading.
- What is Character Evidence? Character Evidence is defined as “evidence regarding someone’s general personality traits or propensities, of a praiseworthy or blameworthy nature; evidence of a person’s moral standing in a community.” Put in lay terms, character evidence is often expressed in terms such as: “she’s a liar; he’s a thief; she’s always angry; he’s a killer; she’s forgetful; he’s violent;” etc. So, why do we care about character evidence? We care because of the concern that evidence of a person’s character might be used to persuade a fact-finder that a person did something, or acted in some way, because of their “character.”
- A defendant may offer evidence of her pertinent character trait. Think about it—if you consider the policy behind the prohibition (consider the story of the diamond thief above), then it makes sense that a criminal defendant should be permitted to offer evidence of her own character. If the diamond thief thinks evidence of a particular character trait will help her, she can take the risk and have the evidence admitted.
- Character Evidence is impacted by three different things: 1) the purpose for which the character evidence is offered; 2) the method used to prove the character evidence; and 3) whether the case is a criminal case or a civil case.
- At this point, you have determined whether character or trait evidence will, or will not, be admitted. If it is inadmissible, your analysis is complete. If it is admissible, then you must turn to Rule 405. Rule 405 sets forth the methods by which one may prove character evidence. There is never a reason to look to Rule 405, unless you have determined that character evidence is admissible under 404.
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Chapter IX Documentary Evidence 43 results (showing 5 best matches)
- Documentary evidence is frequently referred to in other resources as “writings.” It is, in fact, significantly broader than just writings. Documentary evidence includes photographs, audio recordings, video recordings, etc. As with other forms of evidence, documentary evidence must “check all the boxes” with regard to admissibility—relevance, hearsay exceptions, best evidence, and other applicable rules. But with documentary evidence also comes the need for authentication. This is an issue that does not arise with testimonial evidence.
- Call this a “pet peeve,” call this whatever you want, but the parol evidence rule is a rule of evidence. It govern evidence, so maybe I should just “let it go”—so to speak. However, this rule usually is taught, and tested, in Contracts—not Evidence. Nevertheless, it could be on the bar examination, so let’s take a quick look at it.
- Authentication is required before documentary evidence may be admitted. The term “authentication” in the context of the rules simply means that the evidence “is what the proponent claims it is.” [Rule 901(a)] There are two types of document that fall under the authentication rules: documents which require evidence as to their authenticity, and documents which are considered “self-authenticating” and, therefore, do not require additional evidence for authentication.
- Rule 901 requires that evidence (which is not self-authenticating) be authenticated with “evidence to support a finding that the item is what the proponent claims it is.” Rule 902, on the other hand, sets forth an exclusive list of evidence which is considered selfauthenticating.
- The 10th Circuit once said that “[t]he parol evidence rule is as much one of substantive contract law as it is an evidentiary rule.” At least they got it half right. Anyway, as they said, “[t]he parol evidence rule bars the court from considering evidence of terms outside of an integrated written agreement.” Under the rule, “extrinsic evidence may not be admitted to contradict the terms of a binding integrated agreement or to add terms of [an]. . . agreement. . . . An integrated agreement exists when the parties to a contract have reduced to a final written expression one or more terms of their agreement.”
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Chapter IV Witnesses and Testimonial Evidence 34 results (showing 5 best matches)
- Objections (effective objections) are a necessary part of the trial process. In practice, lawyers will frequently offer evidence which would violate the rules. As a general rule, in the absence of a proper objection, evidence will be admitted regardless of whether the evidence complies with the rules. For example, suppose one side offers evidence that is, without question, irrelevant. Unless the opposing party objects, the evidence will be admitted. Why? Because (again, generally, but not always) a judge will not object
- Remember when I said (okay, wrote) that the experts may rely on evidence which is not admissible? Well, there is a small catch. If the expert relies on inadmissible evidence, then the expert may not disclose the inadmissible evidence to the jury unless its “probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect.” [Rule 703]
- If a witness is biased and/or has an interest in the outcome of the case, then that witness has a motive to be less than truthful. Evidence that the witness is biased or has an interest in the case may be shown by virtually any means. Because of this, the evidence which shows the bias or interest, is not admitted for substantive purposes. That is, the evidence is not use to support or controvert an issue in the case. Rather, the evidence is only admitted to impeach the witness.
- This is always the case, isn’t it? If one who opposes evidence fails to make a timely objection, then the admission of that evidence will almost always be proper. This holds true with the Dead Man’s Statute.
- A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
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Appendix Federal Rules of Evidence 211 results (showing 5 best matches)
- Opinion and reputation evidence of character.
- Evidence Relevant to Weight and Credibility.
- “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
- In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of
- a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
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Chapter XII Procedural Considerations 23 results (showing 5 best matches)
- It basically means that Polly must produce enough evidence to prevent her case from being dismissed; she must produce enough evidence that a jury would be able to deliberate on the evidence. This may include documentary evidence or witness testimony.
- The amount of evidence needed to rebut the presumption is not clear. There is authority which has required “enough evidence to support a finding of the nonexistence of the presumed fact,” and there is also authority which had required “minimal evidence.”
- There are three standards (burdens) of proof (or persuasion): 1) preponderance of the evidence; 2) clear and convincing evidence;
- A criminal defendant may elect not to offer any evidence if the defendant believes that the prosecution failed to meet its burden. However, if the defendant has an affirmative defense, the defendant’s standard of proof is not the same as the prosecutor’s burden. The defendant must prove his affirmative defense with a burden that is usually preponderance of the evidence.
- When the opponent produces some evidence which contradicts the presumed fact, then the presumption is overcome (poof!—into the air it goes). What this means is that the presumption is of no effect at all—when sufficient evidence is admitted which is contrary to the presumption.
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Chapter III Relevance 68 results (showing 5 best matches)
- In the Federal Rules of Evidence, Article IV governs relevance. Although Article IV has fifteen rules in it, there are two primary rules with which we will begin. The first, the most basic, and yet most important rules are 401 and 402. Rule 401 is, aptly titled, the “Test for Relevant Evidence.” But, why do we care? Why do we care whether or not a particular piece of evidence is relevant? The answer lies in Rule 402. Rule 402 provides, in part, that “[i]rrelevant evidence is not admissible.” That’s why we care. If a piece of evidence is not relevant, then it is not admissible. Therefore, the initial inquiry (remember the flowchart from Chapter I) is that a piece of evidence must be relevant to be admitted. That, of course, does not mean that all relevant evidence is admitted. To the contrary, much relevant evidence is not admitted. That is the primary reason the Federal Rules of Evidence exist; they provide a framework for the exclusion of otherwise relevant evidence.
- Although Rule 402 provides that irrelevant evidence is not admissible, in reality a great deal of irrelevant evidence is admitted. The reason is that no one (neither attorney) objects to its admission. Why would an attorney permit irrelevant evidence in? Because sometimes such evidence will have no bearing on the outcome of the case, and objecting to it will waste more time than permitting it.
- How does one determine whether a piece of evidence meets the requirements of Rule 401? Generally, when a piece of evidence relates to an issue with regard to time, an event or a person related to the lawsuit, then it is likely relevant. This is often called “logical relevance.” Suppose you offer the testimony of a witness that offered an identification of the defendant. Would the time of the identification matter? It might. What if the identification happened at midnight with very little light? What if it happened in mid-day? The time of day certainly does not “prove” that the defendant is guilty of the crime charged; however, evidence of time of day may support (or refute) other evidence. In the words of the 6th Circuit, “[t]he purpose of an item of evidence cannot be determined solely by reference to its . That’s because [r]elevancy is not an inherent characteristic of any item of evidence, but exists only as a relation between an item of evidence and a matter properly provable in...
- The evidence in question must be relevant.
- You should also recognize that more than one of the dangers (counterweights) listed in Rule 403 may apply to a particular piece of evidence; for example, a piece of evidence could be . Any single danger that substantially outweighs the probative value of the evidence would permit (but not require) a judge to exclude the evidence.
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Chapter VI Hearsay 19 results (showing 5 best matches)
- If your partner, significant other, or spouse writes “XOXOXOXO” on a card and gives it to you, is that an assertion? Sure, it means hugs and kisses. If an emoji comes across your screen that resembles a happy face, is that an assertion? It might be. It all depends upon the declarant’s intentions. Suppose that you accidentally cut yourself, and in the process of cutting yourself, you let out a scream—“Ahhhhh.” Your scream is undoubtedly
- Remember, even if you determine that the hearsay rules do not exclude a piece of evidence, you must make sure there is no other rule that could exclude the evidence.
- The starting point is whether the piece of evidence hearsay as defined by Rule 801. Next, if it is hearsay, you must determine whether one of the conditions is met that would permit its admission. Rule 802 tells us that hearsay will not be admissible unless any of the following provide otherwise: a federal statute, the Federal Rules of Evidence, or other rules prescribed by the Supreme Court.
- Hearsay is likely to be the most difficult area of Evidence that you will study. It’s just hard. So, what
- hearsay. At the most basic level, for evidence to be considered hearsay, it must satisfy four requirements of Rule 801:
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Chapter XIII Tying It All Together 4 results
- If you have read this entire guide, you should have a pretty good handle on the basics of the Federal Rules of Evidence. Although complex, the Federal Rules of Evidence are fairly logical. Reading the rules in their entirety, along with relevant cases interpreting the rules and Advisory Committee Notes assisting with their explanation, the Rules of Evidence can be readily understood; at least, more than the “average bear” might understand them.
- Now that you have studied most of the rules, examine the flowchart carefully from the beginning to the end, considering what analysis is needed for each piece of evidence. Some evidence may require more than one analysis, while others may not.
- Hopefully by now, you realize that any evidentiary analysis is a process and can follow, somewhat, a formula. Just like traveling down the dungeon path, each hurdle is an Orc you must kill. Kill all of the Orcs and the evidence is admitted. If an Orc kills you, then the evidence is excluded. To wrap things up, it makes some sense to revisit the flowchart from Chapter I, although now somewhat expanded.
- The Comprehensive Evidence Flowchart
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Table of Contents 22 results (showing 5 best matches)
Chapter X Privileges 4 results
- When evidence, which would otherwise be protected by the privilege, is offered into evidence and no objection is made then—guess what? The privilege is waived. You
- Wealth, power, and fame are all associated with privilege. None of them have anything to do with the kind of privileges we are discussing in this chapter. In the context of Evidence, privileges provide the “legal” right to refuse to testify on certain matters or, to prevent someone else from testifying on certain matters.
- The Federal Rules of Evidence do not specifically set forth independent privileges, but they do contain rules that relate to, and recognize, certain privileges. We begin with Rule 501:
- Testimony is considered incriminating when “answers. . . would. . . support a conviction under a. . . criminal statute [and] embraces those which would furnish a link in the chain of evidence needed to prosecute the [witness] for a. . . crime.
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Chapter VII Hearsay Exceptions 18 results (showing 5 best matches)
- Hearsay exceptions are exactly what they seem to be: exceptions to inadmissible hearsay pursuant to Rule 802 which prohibits the admission of hearsay unless the Federal Rules of Evidence (or a Federal Statute or the United States Constitution) provide otherwise. Well, here we have Federal Rules of Evidence that do, in fact, provide otherwise (Rules 803, 804, and 807). If a statement would otherwise be excluded under the hearsay rule and, if that statement meets one of these exceptions, then the evidence is excepted from the hearsay rule and is not excluded.
- Rule 803 contains 23 “strong” exceptions. The theory behind these exceptions is that the statements are reliable when they have been made under the circumstances set out in each exception. Whether you agree or not, it is part of the hearsay challenge to attack a statement and keep it out of evidence. Likewise, it is challenging to see how you might get a statement in evidence under one of these “strong” exceptions.
- This exception is “necessary to permit courts to admit evidence in exceptional circumstances where the evidence [is] necessary, highly probative, and [carries] a guarantee of trustworthiness equivalent to, or superior to, that which underlies the other recognized exceptions.”
- “The purpose of Rule 807 is to make sure that reliable, material hearsay evidence is admitted, regardless of whether it fits neatly into one of the exceptions enumerated in the Rules of Evidence.”
- Documents Which May Fall Short of the Exception
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Chapter XI Judicial Notice 2 results
- Whether or not the defendant is a DNA match to the blood found at the crime scene is an example of what one party might seek to prove, scientifically, through evidence at trial. It’s an adjudicative fact but subject to reasonable dispute and, therefore, not subject to judicial notice. However, the accuracy of DNA testing would reflect scientific principles.
- This concept does not fit the rule. That is, the ability of courts to take judicial notice of applicable law is not addressed by the Federal Rules of Evidence.
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Prologue 2 results
- I love evidence. To me it is logical and useful. As a law student, being a trial lawyer was not my desire. Nevertheless, I became one; and what I found was that those lawyers who knew the rules— knew the rules and how to use them—always had a distinct advantage even when the facts were not in their favor. Textbooks are designed with a particular purpose. Usually, that purpose is to teach with the aid of an instructor. This book, on the other hand, is not designed for that purpose. This book is designed to make you understand evidence—for your exams, for the bar examination, and for trial.
- “We must remember always that accusation is not proof and that conviction depends upon evidence and due process of law.”
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- , the defendant was charged with assault and attempted murder after stabbing a man who allegedly tried to rape his wife. At trial, the prosecution sought to introduce into evidence a recorded statement by the wife describing the stabbing to police. The trial court allowed the tape to be played for the jury and convicted Mr. Crawford. The wife was unavailable to testify at trial because of the state’s marital privilege. The Washington Court of Appeals reversed the conviction, holding that the taped statement violated Crawford’s Sixth Amendment confrontation right. The Washington Supreme Court reversed, agreeing with the trial court that the statement bore guarantees of trustworthiness and reinstated the conviction.
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- Publication Date: February 14th, 2018
- ISBN: 9781683289371
- Subject: Evidence
- Series: Short & Happy Guides
- Type: Overviews
- Description: A Short & Happy Guide to Evidence takes a challenging subject and breaks it into manageable pieces that are easy to understand and digest. Using practical examples and humor, this book takes you through the most difficult, and most often tested, rules. After reading this book you will finally understand the Hearsay Rule. Flowcharts and graphics will assist the reader in a comprehensive understanding of the Federal Rules of Evidence and how they interact with each other.