1. Dual Purpose Evidence
    Purpose Matters.

    Admissibility often depends on the purpose for which it is offered.

    When evidence is admissible for one purpose, but inadmissible for another, the judge should give a limiting instruction.

    (point out on essays)
  2. Bias
    =a relationship between the witness and a party that could cause the witness to lie (or even twist the facts).

    Evidence of a witness’s bias is almost always admissible.
  3. Judicial Notice (FRE 201)
    Judicial Notice is the recognition of a fact as true without formal presentation of evidence.


    A court may take judicial notice of indisputable facts which come in two forms:

    1. Matters of common knowledge within the court's territorial jurisdiction (Amtrak stops at NYP).

    2. Matters capable of easy verification by reference to unquestionable sources (Almanac dates)


    --Timing. JN may be taken at any time, including on appeal.

    --Effect. JN facts are considered conclusive in civil, but not criminal cases.
  4. Real Evidence
    • Definition
    • =actual physical evidence that is displayed to the trier of fact.
    • (drugs, guns, the offending product in a PL case)

    • Authentication in General
    • The party must introduce sufficient evidence for a reasonable juror to find that the item is what it is purported to be.

    Authentication of Distinctive Real Evidence

    Distinctive=one of a kind or easily identifiable.

    Personal knowledge is sufficient to identify.

    • (W identifies notebook by recognizing markings on it)
    • (Officer identifies gun by serial number)

    • Authentication of Non-Distinctive Real Evidence
    • =generic items (bag of white powder at crime scene)

    • Proponent must show chain of
    • custody. Need not be perfect, but should be:
    • --substantially unbroken; and
    • --based on reliable procedures for custody and identification.

    • Condition of Real Evidence
    • If the condition of the item is relevant, it must be shown at trial to be in substantially the same condition as at the time the claim arose.
  5. Preliminary Facts
    Preliminary Facts For the Jury

    Questions of conditional relevance (jury finds facts and prelim facts that make evidence relevant)

    (authenticity of exhibit; whether D is the person who committed the prior bad act offered as MO evidence)

    • Judge’s only role is to ensure
    • that there is sufficient evidence for a reasonable juror to conclude that a conditional fact is true (FRE 104(b)).

    Preliminary Facts for the Judge

    • All other questions of admissiblility.
    • (testimony is hearsay, communication is privileged, expert is reliable)

    Burden here is preponderance and judge may consider anything.

    Judge's discretion whether to allow jury to remain in room for hearing on determination on preliminary facts.
  6. Choice of Law
    In federal diversity cases, the FREs continue to apply; but state law is applied WRT:

    • --Burdens of proof and
    • presumptions;
    • --Dead Man’s Statues;
    • --Privileges.
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