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Evidence
Faulkner Law - Thomas Goode Jones School of Law
Skinner, Allison O'Neal

RULINGS ON EVIDENCE AND 104(a) HEARINGS ON PRELIMINARY QUESTIONS
1.        Rulings on Evidence – FRE 103.
a.        Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
                                                               i.      Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
                                                              ii.      Offer of proof.  In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.  Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
1.        Where evidence is ruled inadmissible in trial, an oral or written explanation must be made on the record to enable appellate review.  Such an offer of proof, which is generally made out of the hearing of the jury and involves either the testimony of the witness or just the attorney telling the court the substance of what the evidence would be, must address the relevancy and the admissibility of the excluded evidence.  Offers of proof are generally not required where the substance of the evidence is apparent from the context, but it is always safer to make an offer of proof.
2.        Court’s Discretion.  The court has discretion in the manner of offer of proof.     
b.       Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.  It may direct the making of an offer in question and answer form.
                                                               i.      Judge rules on the admissibility of any given item of evidence as a matter of law.
                                                              ii.      Fact-finder (jury) determines the weight and credibility of the evidence after it has been admitted.
                                                            iii.      General objections are insufficient to preserve an issue for appeal unless (1) the specific ground is obvious from the context or (2) admission or exclusion of the objectionable evidence constitutes “plain error” by denying the ∆ a fair trial (civil or criminal).
                                                            iv.      Specific objections are sufficient to preserve an issue for appeal; however, to obtain reversal on appeal, the specific objection must have been valid for the ground stated.
c.        Hearing of Jury. In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
d.       Plain error. Nothing in this rule precludes taking notice of errors affecting substantial rights although they were not brought to the attention of the court.
2.        Preliminary Questions – FRE 104.
a.        Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of (b).  In making its determination it is not bound by the FRE except those with respect to privileges.
                                                               i.      The party seeking admission of evidence (i.e., the proponent) has the burden to establish preliminary facts such as competency, qualification of witnesses, unavailability, or privilege by a preponderance of the evidence.  Upon doing so, the trial judge makes a preliminary factual determination based on its admissibility; the jury then determines weight and credibility.  The judge may rely on affidavits and hearsay statements in making his determination.
b.       Relevancy conditioned on fact. Whenever the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or in the court’s discretion subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
                                                              ii.      Subsequent to the trial judge’s finding minimal sufficiency to admit a preliminary fact, it is sometimes necessary for the jury to make the ultimate decision on its relevance where connection evidence is necessary to establish probative value of the evidence as related to the issues being raised (e.g., in a defamation action, the judge would determine the authenticity of a photograph, but the jury would consider the pic irrelevant if the defendant did not take the pic or publish it).
c.        Hearing of jury. Hearings on the admissibility of confessions in criminal cases shall be conducted out of the presence of the jury.  Hearings on other preliminary matters shall be so conducted (1) whenever the interests of justice require in all cases, or (2) in criminal cases, whenever an accused is a witness, if he requests.
d.       Testimony by accused. By testifying upon a preliminary matter, the accused does not (1) subject himself to cross-examination as to other issues in the case or (2) waive the 5th Amendment privilege.
e.        Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
3.        Limited Admissibility – FRE 105. Whenever evidence which is admissible as to 1 party of for 1 purpose but not admissible as to another person or purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
4.        Holmes v. South Carolina (U.S. 2006): The Constitution guarantees criminal ∆s “a meaningful opportunity to present a complete defense.”  This right is abridged by evidence rules that “infringe upon a weighty interest of the accused,” and are “arbitrary” or “disproportionate to the purposes they are designed to serve.” 
The Court reversed the conviction of a man accused of rape and murder because he was not allowed to present evidence that another person committed the crime because the trial court found that the forensic case against him was so strong that his defense couldn’t eviscerate the proof against him.  The Court held that this rule was “arbitrary” because it did not rationally serve the interest of “excluding evidence that has only a very weak logical connection to the central issues,” because it was illogical to determine the weakness of a ∆’s evidence by the strength of the prosecution’s case.
 
RELEVANCE
“A brick is not a wall, but evidence only need to be a brick to be relevant.” — McCormick
1.        “Relevant evidence” means evidence having a tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. FRE § 401.
a.        Step 1. This is the first step in evaluating whether to admit or disallow evidence, because it must be relevant to be admitted, and if not, it is automatically inadmissible.
b.       Probativeness and Materiality.  Evidence embraces 2 concepts, probativeness and materiality.  Probativeness refers to the characteristic that evidence has “a tendency to make the existence of any fact . . . more or less probable . . .” while materiality is contained in the requirement that the evidence be “of consequence to the determination of the action.”  Materiality comes from the substantive law of the claims or defenses.  
2.        Generally admissible. All relevant evidence is admissible unless otherwise provided by the Constitution, an act of Congress, other provisions of the FRE, or other rules prescribed by the Supreme Court pursuant to statutory authority.  FRE § 402.
3.        Conditional Relevance. When the relevance of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
4.        FRE 403 BALANCING TEST. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.  FRE 403.  Probative value is judged without assessing the credibility of the evidence. Before any final reading of the scale is made, the judge considers whether a curative or limiting instruction can diminish unfair prejudice, potential confusion, or jury misdirection.
a.        “Great Umbrella.”  Penny White says that FRE 403 is the “great umbrella” because it can always be used to exclude any kind of evidence.
b.       When looking at propensity, a basic tenet of the justice system is that a trial should focus on the litigated event, not extraneous events.  
c.        Old Chief v. U.S. (U.S. 1997): If you have 2 ways of proving something, go with the one that is less prejudicial.  This is not black-letter, but judges should follow this in FRE 403 decisions.  The assessment of prejudice under FRE 403 must be conducted with reference to all the other actually available evidence in the hands of the proferring party.  Although prior convictions are governed by FRE 404(b), they still present a danger of unfair prejudice and are thus subject to FRE 403 also.  Generally, parties are free to present their case in the manner they want and with the evidence they want as long as it complies with the FRE; but here, the element was that ∆ was previously convicted of a felony, and it would be too prejudicial for the jury to hear all the facts of his conviction; the ∆ can stipulate that the element is met, i.e., that he has a prior conviction.  In my notes, I had, “Can’t force the prosecutor to stipulate, but a court abuses its discretion when it fails to consider alternative means of proving an element when doing a FRE 403 analysis.
 
EXCLUSION OF RELEVANT EVIDENCE FOR PUBLIC POLICY REASONS
When a social policy rule is raised as an objection to relevant evidence, the matter is resolved by the trial judge under FRE 104(a).
 
SUBSEQUENT REMEDIAL MEASURES – FRE 407
 
1.        Inadmissible to prove negligence or culpable conduct. When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a product's design, or a need for a warning or instruction. 
a.        Note. While some courts may only apply this to civil cases, the words “culpable conduct” gives you an argument that it applies in criminal cases as well. – Penny White.
b.       Examples. Remedial measures include such post-accident repairs, design changes, additions of or changes to warning labels and package inserts, firings or disciplinary actions against employees involved in the injury, and changes in policies or procedures after an injury.  They do not include post-accident analyses, studies, tests, or reports, so seemingly, these are not precluded by FRE 407.
2.        When admissible. Subsequent remedial evidence is admissible if (1) it is probative of an actual disputed issue (2) other than negligence or fault. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. 
a.        Example.  If a ∆ claims that he didn’t own or control the truck involved in the accident, it opens the door to proof that the ∆ repaired the truck after the collision, because it is being introduced to show ownership or control.
b.       Advice.  The opponent can take these issues out of the case either by not controverting them or not bringing them up at all.
c.        Impeachment. Remedial measures can be used to impeach a witness.  While judges are hesitant to allow remedial measures for impeachment purposes, they will if the witness overly praises the product at issue beyond saying that it is good, safe, or proper, or even strongly denying knowledge of the product’s dangerous condition.
                                                               i.      Limiting instruction. If subsequent remedial evidence is used for impeachment, a FRE 105 limiting instruction should be given.
3.        Policy.  To encourage taking safety measures, because if it was admissible, owners would not repair for fear of its introduction into evidence.
4.        Scope.
a.        Parties to the litigation. Remedial measures apply to parties to the litigation only.  Non-party remedial measures will probably be excluded anyway for lack of relevance or under FRE 403 if they are relevant because of the danger of jury misuse.
b.       After injury. Subsequent remedial evidence only applies to measures taken after injury.  Any evidence of remedial measures before injury are thus not covered by this rule.
c.        Strict liability.  This rule applies in all strict liability cases.
5.        Conflict of Laws. Several states’ rules are different from FRE 407.  Therefore, in federal cases, which law applies?  Some courts have held that the state law applies under Erie because the issue is substantive, but most federal courts apply the FRE because they say it is procedural.
6.        Product Recalls. Most jurisdictions have decided that FRE 407 applies to voluntary, mfg recalls (so manufacturers will recall for safety without worrying about evidence getting in) but it does not apply to involuntary gov’t recalls (so evidence of this gets in).    
 
COMPROMISE AND OFFERS OF COMPROMISE – FRE 408
 
1.        Prohibited Uses.  Evidence of compromises and offers to compromise is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction:
Furnishing or offering/promising to furnish – or accepting or offering/prom

ion is admissible only if it has been placed in controversy by the alleged victim.
a.        Balancing Test.  Notice the differences in this balancing test and 403.  Here, the evidence is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party.  Under 403, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice.
b.       Reputation. Evidence of victim’s reputation is admissible only if placed in controversy by the victim. 
4.        Procedure To Determine Admissibility.  A party intending to offer evidence under subdivision (b) must—(i) file a written motion at least 14 days before trial specifically describing the evidence and stating the purpose for which it is offered unless the court, for good cause requires a different time for filing or permits filing during trial; and (ii) serve the motion on all parties and notify the alleged victim or, when appropriate, the alleged victim's guardian or representative.
Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard. The motion, related papers, and the record of the hearing must be sealed and remain under seal unless the court orders otherwise
5.        Scope and Application.  The rule includes evidence of related matters, such as the use of contraceptives, birth of an illegitimate child, evidence of STD, and lifestyle evidence like wearing short dresses or using vulgar language. This rule applies to any case where sexual misconduct is at issue, even if nobody is not charged with sexual misconduct. 
a.        Workplace Harassment. In a workplace sexual harassment suit, evidence of victim’s sexual behavior in workplace is probably admissible, but not outside behavior.
 
CHARACTER EVIDENCE
 
CHARACTER TRAITS
 
1.        Understanding character evidence – Penny White
a.        Nature of case (criminal or civil)
                                                               i.      404(a) only applies to criminal cases.
                                                              ii.      404(b) applies to criminal and arguably applies to civil cases also.
b.       Person offering character evidence (∆, State)
c.        Person about whom offered (∆, victim, witness)
d.       Purpose for which evidence is offered (conformity, or other purpose)
e.        Type of evidence offered (reputation, opinion, specific acts)
2.        Purposes for Offering Character Evidence
a.        To prove character when character itself is ultimate issue in case. Sometimes, a person’s character is an element of a crime, claim, or defense, and therefore, is admissible. Examples include the truth defense for defamation actions, child custody, entrapment, and character traits for negligent entrustment or hiring cases.  In such cases, this evidence is direct evidence because it is being used to directly prove the pertinent character trait in issue.
b.       To serve as circumstantial evidence of how a person probably acted. Generally character evidence is not admissible for the purpose of proving action in conformity therewith (propensity) on a particular occasion. FRE 404(a).
c.        To impeach credibility of witness.
3.        Methods of Proving Character – FRE 405.
a.        Reputation.  Reputation is the collective belief about the kind of person someone else is.  Any member of the person’s community who is familiar with and knows the reputation of the person involved is competent to testify to that person’s reputation for the pertinent character trait.  Such communities include the home community, work or school community, or church community in which the person spends substantial time and becomes known by others. The relevant timeframe is the time of the event spurring the lawsuit.  Reputation is hearsay, but admissible under FRE 803(21). On cross-exam, inquiry is allowable into relevant specific instances of conduct. Reputation witnesses should be asked “Have you heard?” questions.  At common law, reputation evidence was the only testimony allowed to prove character.
b.       Opinion. Opinion is one person’s personal belief about the kind of person someone is.  Anyone who is personally familiar with the person involved can express an opinion about the person’s pertinent character trait. On cross-exam, inquiry is allowable into relevant specific instances of conduct.  Opinion witnesses should be asked “Did you hear?” questions.
c.        Specific Acts.  Specific acts evidence can be proven by anyone who has witnessed the person involved commit an act that would be probative of the pertinent character trait. FRE 405(b).
Special 404(a) exception rules.  If a 404(a) exception applies, FRE 405(a) limits the evidence to opinion or reputation testimony on direct or rebut, and allows evidence of specific acts on cross-examination.  This comes from the second sentence of FRE 405(a). 
405(a) doesn’t limit 404(b). 404(b) is going to be specific instances by definition, so 405(a) doesn’t limit 404(b).
Disconnect from Impeachment. Disconnect 405(b) from impeachment, according to White.   
4.        Admissible if Character is an Element.  Sometimes, a person’s character is an element of a crime, claim, or defense, and therefore, character evidence is admissible. Examples include the truth defense for defamation actions, child custody, entrapment, and character traits for negligent entrustment or hiring cases.  In such cases, this evidence is direct evidence because it is being used to directly prove the pertinent character trait in issue.  NOTE that FRE 404 doesn’t apply in this case.
5.        Civil cases – Generally not admissible.  Generally character evidence is not admissible in civil cases because of its prejudicial effect on the jury.