2. The Rules of Evidence exist to “filter”
and remove from the huge volume of
all available evidence those parts
which should be excluded:
To save the court’s time
To prevent consideration of facts which
may not be fair
To prevent consideration of facts which
can’t be established as reliable
3. Rules to save the court’s time
Relevance: Rules 401, 402, 403
Rule 401 “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.
4. Relevance: Rule 401
This definition contains conditions of
both “relevant” and “material”.
In plain English: “relevant” means a fact
is relevant if it is related to the issue
being determined,
A fact is “material” if it is helpful in
determining the issue.
5. Rule 402
Relevant evidence is admissible;
irrelevant evidence is inadmissible.
The proper form for a relevance
objection to testimony is: “Objection
your Honor. This testimony is
irrelevant.”
Be prepared to argue how this
testimony is either: not related to the
issue or not helpful in determining
the issue.
6. Rule 402
The proper form for an objection to a
question which asks for irrelevant
testimony is: “Objection your Honor.
This question asks for testimony that
is irrelevant.”
Be prepared to argue that the answer
will not be relevant – but don’t argue
about what the witness will say (don’t
say it for them when you argue!)
7. Rule 402
To argue the relevance objection:
Be clear about the issue of the case.
State the issue clearly and briefly – “Your Honor
the issue in this case is the defendant’s actions
and mental state, the testimony tells us nothing
that would help determine this issue.”
If you are trying to get the evidence in, and you
are objected to, the door is open for you to
argue your case and make it even more clear to
the jury how it is related and how it helps in
determining the issue.
8. Rule 402
Warning: A relevance objection allows a
prepared attorney the chance to not just
present evidence but also to explain its
importance. A good response to this
objection turns into a chance to argue the
case.
So:
If the opposing side raises the objection, take
advantage of it!!!!
If it isn’t essential to keep the information out –
don’t make this objection against a skilled att’y.
9. Rule 403
Other reasons for using the relevance
objection can be
“more prejudicial than probative”
meaning more emotionally impacting
on the jury than useful for finding
objective “truth”.
“confusing the issue” meaning it
brings up questions unrelated to the
determination the court must make.
10. Rule 403
If the testimony has already been
introduced, the relevance objection
may be used on the grounds the
testimony is needlessly cumulative.
Usually, it’s their time so let them
waste it; unless the evidence is very
hurtful to your case and you don’t
want them to make their point again.
Don’t make this objection during
redirect.
11. Rules relating to fairness
Character: Rules 404, 405,
Rule 404a: evidence of a particular
character trait in the past cannot be
used as proof that a person would act
a certain way at any certain time.
Evidence a defendant was a heavy
drinker or drug user could not be
used to prove they were drunk or
high in the present case.
12. Rule 404a
A defendant in a criminal case may enter
evidence of a specific character trait:
peacefulness, cowardice, etc.
The defendant must offer this evidence
before the prosecution can offer any
evidence of a different character trait, i.e.
temper or violence.
Once the defense has made an issue of
character, the prosecution may rebut with
similar proof.
13. Rule 404a
In civil cases where character of the
plaintiff is an essential part of the
claim, evidence may be shown by
reputation, opinion, or specific
conduct.
Evidence must be direct and not
circumstantial (learned through the
senses, not inferred).
14. Rule 404a
In criminal cases, the character of the
victim is admissible by the defense,
and by the prosecution to rebut the
defense.
15. Rule 404a
The character of any witness may be
questioned as it relates to the truth of
their testimony.
The character of any witness, as it
relates to their credibility, is also
always relevant.
See Rules 607, 608, 609 relating to
impeachment
16. Rule 404b
Proof of “prior bad acts”, or specific
instances of doing some wrong, is not
admissible to prove the person would
have acted the same way or done the
same wrong during the incident at
issue.
Prior bad acts may be entered to help
prove a motive, a plan, intent, etc.
