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Charleston School of Law
Beckman, Sydney Aaron

Chapter 1
Admitting Evidence


A. Questions arise when a party’s offer of evidence draws an objection
B. Objection Sustained: For appellate review, a record of the rejected evidence is made by identification and physical inclusion in the record of exhibits and by offer of proof.
C. Objection Overruled: the evidence is received and can be considered

Rulings on Admissibility

A. Admissibility is a question of law to be resolved by judge; what weight is a matter for the factfinder
B. Failure to object is considered a waiver (exceptions – “plain error”)
C. Objection before trial – Motion in Limine

Appellate Review

A. Evidence erroneously ADMITTED – Requirements for Reversal on Appeal
1. Specific objection
i. Particular legal ground or reason
2. Timely made
i. Before the evidence was received
3. Ground for objection was valid
i. On the reasons stated in the objection
4. The error overruling was prejudicial
i. A substantial influence or otherwise “affected a substantial right”
B. Evidence erroneously EXCLUDED – Requirements for Reversal on Appeal
1. No valid ground for objection
i. General objection sufficient
2. Offer of proof was made
3. Excluding was prejudicial

Preliminary determinations concerning admissibility

A. Proponent of evidence has the burden of proof
1. Must establish the existence of the preliminary fact by a preponderance of the evidence (Bourjaily v. U.S. (375).

The General Requirement of Relevance
Chapter 2

Relevant Evidence Generally Admissible (FRE 402) – All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.
Relevant Evidence Defined (FRE 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.

A. Evidence must be probative – Relevancy is not an inherent characteristic of any item of evidence but exists only as a relation between an item of evidence and a matter (or proposition) sought to be proved. The rule summarizes this relationship as a “tendency to make the existence” of the fact to be proved “more probable or less probable.”
1. If an item of evidence tends to prove or disprove any proposition, it is relevant to that proposition. If the proposition itself is provable in the case at bar, or if it in turn forms a further link in a chain of proof the final proposition of which is provable in the case at bar, then the offered item of evidence has probative value in the case.
2. The standard of probability under the rule is “more * * * probable than it would be without the evidence.” As McCormick § 152, p. 317, says, “A brick is not a wall.” Dealing with probability in the language of the rule has the added virtue of avoiding confusion between questions of admissibility and questions of the sufficiency of the evidence.
3. Probative evidence does not necessarily lead us to say that A is probably guilty, but that the apparent probability of his guilt is now greater than before the evidence was received.
4. U.S. v. James (25)
i. Woman (D) killed her boyfriend & on trial for murder
ii. D claimed self defense, Stating that her boyfriend told her stories of previous assaults
iii. D Sought to introduce police records to corroborate her story
iv. Trial court did not allow them, but the appeals court overruled stating, that because the crux of D’s defense rested on her credibility, the records if admitted, would have corroborated her own testimony that she heard him tell her those things.
5. Knapp v. State (28)
i. The converse of above
ii. Man claimed he heard things about the way a man died at the hand of the man he killed to give his self defense claim more credibility
iii. The gov’t could bring in documents or testimony to disprove the D’s claim.
6. The two above cases illustrate that documents & unnamed sources make the occurrence of things heard more likely than not.
B. Evidence must be material – The rule uses the phrase “fact that is of consequence to the determination of the action” to describe the kind of fact to which proof may properly be directed. This has the advantage of avoiding the loosely used and ambiguous word “material.”
1. The fact to be proved may be ultimate, intermediate, or evidentiary; it matters not, so long as it is of consequence in the determination of the action.
2. Whether evidence is “material,” turns or what issues are at stake in the proceeding – which often turns or the substantive law of the jurisdiction.
3. The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute. A rule limiting admissibility to

uction of evidence sufficient to support a finding of the fulfillment of the condition.” This must occur before or after the testimony. If the prosecution fails to do so, the judge will instruct the jury to disregard the testimony.

Probativeness Versus the Risk of Unfair Prejudice (FRE 403)

A. Evidence is subject to exclusion if the risk of unfair prejudice substantially outweighs its probative value
B. Unfair Prejudice
1. All evidence that a party introduces is intended to prejudice the opponent
2. It is only when a factfinder might react to aspects of evidence in a way that is not supposed to be part of the evaluation process that the reaction is considered unfair prejudice.
i. General Types – juror disgust with defendant (defendant belonged to a cult), juror giving undue probative weight to an item of evidence (another injured person in a products liability case)
C. Virtually every piece of evidence admitted at trial must survive this rule’s Probativeness-versus-risk-of-unfair prejudice weighing test. Some must survive a stricter test. But only the narrow class of evidence defined by Rule 609(a)(2), infra, is altogether exempt form 403 scrutiny.
D. Rule 403 is short, but its simplicity is deceptive.
1. “Although relevant, . . .”
i. Rule 403 permits exclusion of otherwise relevant evidence
2. “. . . evidence may be excluded . . .”
i. The key word is MAY. These decisions are the trial court’s decision and reviewable only for abuse of discretion.
3. “. . . if the probative value is substantially outweighed by . . .”
i. 403 is a liberal evidence rule. It is friendly to the admission of evidence. Only if the evils “substantially outweigh” the probative value may it be excluded.
4. “. . . the danger of unfair prejudice . . .”
i. The operative word here is UNFAIR. “Relevant evidence is inherently prejudicial; but it is only unfair prejudice, substantially outweighing probative value which permits exclusion of relevant matter under 403.”
5. “. . . [the danger of] confusion of the issues, or misleading the jury . . .”
“. . . or by considerations of [1] undue delay