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Rule |
Prob |
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ADMITTING AND EXCLUDING EVIDENCE |
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103 |
(a) Basis for appeal - error requires:
a substantial right of a party affected and timely and specific objection
or Motion to Strike: delayed objection to evidence conditionally admitted where condition later fails. failure to object or move to strike = wiaver but if only one of several parties on same side objects, even silent parties are protected. timely: when grounds for objection first b/c apparent (usually b/f question is answered but not if witness jumps the gun or gives testimony later becoming objectionable) specific: must state grounds for exclusion. NO general objections. But no grounds necc if it is “apparent from the context” (e.g. the parties have previously argued the point - such as via motion in limine*.) *Motion in Limine: evidence objections made in pretrial motion. Optional for both parties and courts (to rule). Usually considered only tentative \
no appeal from such rulings losing party can put issue up again by offering evidence at trial (but m/n expose sensitive points to jury) party must renew objection if other side offers it. Judge may change ruling during trial (e.g. if developments turn out differently than expected at pretrial ruling).
Objector may state a “continuing objection” to a line of testimony that makes express what is already implicit in more particular objections. or Offer of proof required. Where excluded evidence - that substance of evidence excluded was made known to the ct. or was apparent from question’s context.
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# |
Rule |
Prob |
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ADMITTING AND EXCLUDING EVIDENCE |
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103 (cont’d) |
Offer of proof must indicate the nature or content of the evidence and describe its purpose and why its relevant. show evidence is competent a) testimony - put witness on stand, ask questions and put his answers in the record.
physical object - mark as exhibit and lodge it w/ the clerk to make it part of the record and make clear to judge that it is being offered into evidence.
(c) Should try to prevent inadmissible evidence from being suggested to the jury by any means.
ct. may take notice of plain error even if not brought to the attn of the court.
A party is limited by its strategy: Invited error: when the witness offers something the questioner might otherwise exclude. Opening the door: one party introduces evidence and another offers counterporoof that may not have been expected by the initial party - objection w/b overruled. limited by issues of: degree and proportion concerns of prejudice and distraction or confusion Also, if a witness gives a nonresponsive or response answer, the examiner can move to strike. Harmless Error - 5 guidelines:
“technicality” s/b avoided unless it affects the rights of the parties (outcome of trial) Reviewing ct. should appraise error by examining the proceedings in their entirety. (mistakes in s/b viewed in context) Problem is to decide whether the error affected the outcome, not to assess the sufficiency of evidence to support the result reached. Precedent is not helpful
reviewing body should decide whether error affected the judgement, not how outcome s/b in new trial.
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# |
Rule |
Prob |
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ADMITTING AND EXCLUDING EVIDENCE |
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104 |
(a) Preliminary questions re: quality of witness, existence of privilege or admissibility s/b det. by a ct, who is not bound at this pt by FRE except re: privileges.
If relevancy depends on condition of fact, ct. will admit it after evidence intro. Sufficient to suppt a jury finding that ct. was fulfilled.
(c) Hearings on admissibility m/b made outside hearing of jury.
(d/e) no cross of accused if testifying on prelim matter but evidence to jury re: weight and credibility of evid OK. |
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105 |
Ct. will restrict evid where admissible as to one party or purpose but not admissible as to another party or for another purpose.
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106 |
Remainder of or related statements c/b required when part of whole stmt is introduced.
But only if distortive otherwise. Allows other side to insist that other relevant parts of a stmt be offered b/f waiting their turn. Only applies to stmts memorialized in permanent form (e.g. written or recorded) But some cts may extend this principle under 401-403.
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# |
Rule |
Prob |
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RELEVANCE |
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104 |
Preliminary Questions -
(a) Court determines:
qualification of a person t/b a witness the existence of a privilege or the admissibility of evidence
Not bound by rules of evidence except re: privileges
(b) When relevancy depends on a condition of fact, court will admit it subject to the introduction of evidence supporting the fulfillment of the condition.
jury has ultimate responsibility to decide whether the preliminary question of fact has been proven. Exclusion only appropriate when no reasonable jury could find that it was heard. (so judge still decides this) but, if the evidence would not be relevant even if the conditional fact is proven, then it still m/b excluded. “connecting up” judge can allow evidence subject to later introducing evidence of the preliminary fact.
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401 |
Relevant: evidence having
any tendency to make it more or less probable \ (any probative value) that a fact of consequence to the determination of the action (includes impeachment of witnesses) occurred. (m/b material) fact need not be in dispute
Primary threshold determination - not admissible unless relevant! Favors admissibility but remote or speculative evidence may not meet minimal stds under 401 Ct relies on own experience but counsel can submit addl info not commonly known. Usually applies to circumstantial evidence (from which factfinder can infer an increased probability that the fact exists) vs. direct (actually asserts the existence of fact to be proven). Critical question: Is the “evidentiary hypothesis” valid? (but not the strength of the hypothesis) “Curative admissibility” - once one party opens the door, rebuttal evidence is always relevant, even if initial evidence is irrelevant (unless rebuttal evidence is unfairly prejudicial under 403).
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# |
Rule |
Prob |
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RELEVANCE (Cont’d) |
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402 |
All relevant evidence is admissible unless otherwise provided by the Constitution or other federal statutes/rules. Evidence which is not relevant is not admissible.
Exclusionary doctrines not recognized by 402: CL grounds for evidentiary exlcusion state exclusionary rules except where specific FRE defers to state law
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403 |
But, evidence with low probative value m/b excluded where probative value is substantially outweighed by:
unfair prejudice
undue emotionalism (inflammatory, shocking or sensational - but gory photos OK) likelihood that jury will misuse evidence or give it undue weight (most often w/ evidence admitted for a limited purpose under FRE 105)evidence of prior crimes is often found unfairly prejudicial
evidence of weapons is often found unfairly prejudicial unless an element of crime charged confusion of issues or misleading jury evidence abt related legal proceedings failure to prosecute other parties reports containing ambiguous legal terminology private agreements to apportion liability between defendants statistical proof (People v. Collins - yellow auto w/ black man and white woman)
undue delay, waste of time, cumulative evidence
counterproof may only be admitted to contradict evidence that really counts - not collateral evidence (e.g. what the witness wore when she saw the accident) but, evidence to refute claims of bias or defects in witness are not collateral
open door policy still doesn’t allow for evidence on collateral points.
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# |
Rule |
Prob |
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RELEVANCE (Cont’d) |
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403 (Cont’d) |
Addl factors in balancing: centrality of point t/b proved need for particular evidence avail of other sources of proof (e.g. stipulations by objecting party - but not if incomplete or unfairly deny full force of evidence) likelihood jury will understand and follow limiting instructs under FRE 105. Surprise not an independent ground for exclusion (but m/b a factor in finding unfair prejudice) Serves to limit admissibility of evidence even if otherwise qualified for admission under another rule. Deference afforded to trial judges in applying 403 b/c
considerations listed in FRE 403 are impossible to define with particularity b/c fact-based. trial judge in better position than appellate ct to weight probative value against impact on jury.
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AUTHENTICATION |
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104(b) |
(b) When relevancy depends on a condition of fact, court will admit it subject to the introduction of evidence supporting the fulfillment of the condition.
judge performs screening function - determines whether there is evidence sufficient to support a jury finding of authenticity. still up to the jury, but if proof of authenticity or not is overwhelming, a court may instruct the jury to take it as authentic or exclude it. opponent can still challenge authenticity once admitted as authentic.
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901 |
Authentication or ID required b/f evidence is admitted (e.g.)
testimony of witness w/ knowledge
A basis for ID is required but only if not distinct items personally known to the witness might also have to say that the object appears to be in the same condition as it was at the time of the events giving rise to the litigation. Witness m/h personal knowledge but need not be absolutely certain of the ID.
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# |
Rule |
Prob |
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AUTHENTICATION (Cont’d) |
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901 (cont’d) |
“Chain of custody” useful for fungible evidence, lacking in distinctive means of ID or likely to deteriorate or change in condition. (e.g. bat in trunk for 1 ½ years) est when custody was taken and from whom analyze precautions taken to preserve item item not changed or tampered w/ (reasonable std) when relinquished and to whom. nonexpert handwriting recog
Need not be present @ signing e.g. family members, employers, employees, co-workers but familiarity c/n be acquired for purposes of litigation can’t compare document w/ exemplar (only expert can do that)
expert or trier handwriting comparison distinctive characteristics
voice ID outgoing telephone convo
if person - self-identification (this is Wendy) if business - call made to place of biz and convo related to biz reas done over phone
a) voice ID - only casual familiarity is required
peculiarity of content
public records or reports
two types writings authorized by law t/b recorded or filed (e.g. deeds) purported public record in any form (e.g. licensing records) 8. ancient documents, process or system, methods provided by statute or rule
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# |
Rule |
Prob |
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AUTHENTICATION (Cont’d) |
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901 (cont’d) |
applies to every type of evidence except for live testimony - but usually exhibits Demonstrative Evidence (e.g. photos, recordings, drawings, etc.)
1. vivid and immediate effect, first-hand sense impression
Only real evidence (thing itself has substantive significance) req authentication not req. for illustrative evidence - only req a “fair depiction.” (a gun like this) \ if you can’t authenticate something, you may change the purpose of using it - use it illustratively instead. photographs: testimony that the photo accurately represents the scene depicted at the relevant time req. “silent witness” - where photots taken by bank surveillance cameras, etc. w/o authenticating witness, must show process by which photo was taken and that it produces an accurate result. “pictoral testimony” vs. “silent witness” - only to illustrate testimony, not independently substantive evidence as w/ silent witness. steps to authentication:
have exhibit marked for ID by the ct. reporter permit adverse counsel to examine it and object if need be ask for permission to approach the witness ask witness to authenticate it submit into evidence received by court ask to present exhibit to jury
“connecting up” - not always possible to lay foundation w/ just one witness, may connect up with other witnesses. |
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902 |
No extrinsic evidence of authenticity required for certain self-authenticating evidence:
domestic public documents under seal.
domestic public documents not under seal Ok if another public officer certifies it.
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# |
Rule |
Prob |
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AUTHENTICATION (Cont’d) |
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902 (cont’d) |
four parts to certificate: must make the appropriate statement m/b apparently signed m/b apparently sealed signer m/b a public official w/ official duties in the same district or political subdivision from which comes the document in question. foreign public documents certified copies of public records official publications, newspapers and periodicals, trade inscriptions and the like acknowledged documents commercial paper and related documents
presumptions under Acts of Congress But only for screening step - authenticity may still be challenged at trial. May also still be excluded under other rules, even if self-authenticating.
No 104(b) analysis (conditioned on fact), but 104(a) analysis - admissibility , generally, applies to judge.
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903 |
subscribing witnesses testimony not necc to authenticate a writing unless req by laws of juris governing writing’s validity |
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1002 |
To prove content of writing, recording or photograph, original is required.
“Best Evidence Rule” - Must bring best evidence only when dealing w/ a document, recordings or photographs. usually used to exclude testimony and other secondary evidence offered to prove content vs. duplicates. Applies in two situations (both re: proof of content - not for est making, execution , existence, etc. of doc):
proof of content m/b controlling on issue of substantive law party strategizes to rely on content to prove a relevant point
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# |
Rule |
Prob |
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AUTHENTICATION (Cont’d) |
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1001 |
Writings and Recordings: letters, words or #’s or their equivalent set down by
handwriting, typewriting printing, photocopying, photographing magnetic impulse recording, other form of data compilation
(2) Photographs: include still photos, x-ray films, video tapes and motion pics.
Original: writing or recording itself or any counterpart intended to have the same effect.
to prove notice - delivered writing to prove knowledge of author - file copy is duplicate of letter received and vice versa.
biz records: a regularly made record kept in the regular course of biz activity = original even if prepared from other docs or kept in other versions elsewhere b/c if it satisfies the biz records exception to hearsay rule, it w/b an “original” under BER. Multiple originals OK - e.g. preprinted receipts, credit card vouchers, deposit slips, etc. Inscribed chattels: determination of whether a “writing” based on 7 pt test: length & complexity of
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