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Rutgers University, Newark School of Law
Rossner, Andrew

FALL 2013


Types of Error that Arise in Evidence Cases:

Reversible (Prejudicial) Errors – Errors at trial that affect the substantial rights of parties
o     The definition of “substantial rights” is vague and courts review the entire record in making the determination of prejudice (pg. 13)

Constitutional Errors – Prosecution has the burden to prove that the error was harmless beyond a reasonable doubt. 

Harmless Errors – When an evidentiary error was made by the trial court but DID NOT affect the outcome of the case (pg. 13)
o     Circuits differ on the degree of certainty that is needed to make an error “harmless.” 
§  9th Circuit – “more probably harmless than not standard” for non constitutional errors
§  3rd Circuit – Reversal is required unless it is highly probable that the verdict would have been the same if the error had not occurred. 5th Circuit – Reversal required unless the court is sure that the error did not influence the jury, or had but slight effect

Note:  Courts generally use the same standard for harmless error in civil and criminal cases. 

Reversal will only occur if PLAIN ERROR exists.

Plain Error is not easily defined, and allows for substantial judicial discretion.  Some examples of Plain Error are when:
o     The Error Was Particularly Egregious;
o     The Error Resulted in a Miscarriage of Justice; or
o     The Error Deprived a Defendant of a Fair Trial

Note:  Most evidentiary rulings are reviewed under the Abuse of Discretion Standard.
o     Very Trial Court Friendly
o     Big Picture – Chances of reversal because of an evidentiary error are very slim.

Introduction to Evidence Law
A.      Introduction
a.       FRE enacted by Congress in 1975.  NY’s evidence law remains un-codified.
b.       Evidence law is overwhelmingly statutory.
B.      Anglo-American Trials
a.       Motions in limine –  (Latin for “at the threshold) evidentiary motions heard before trial (distinguished from objections raised during the trial, when the evidence is actually presented).  Not all motions in limine are actually resolved before trial.   Sometimes judge defers decision bc s/he wants to see how the rest of the evidence unfolds.
b.       After pretrial motions have been addressed, jury selection begins.
c.        Voir dire – jury selection process.  (French from “to speak the truth.)
d.       Peremptory challenges – each side can disqualify a number of jurors w/o giving any reason.
e.        For cause – can disqualify jurors bc they appear biased or otherwise unfit for service.
f.        Physical evidence introduced in two steps:
i.      First, it is marked for identification to make reference easier and to make it a permanent part of the case.
ii.      Second, introducing it (asking the judge to admit it into evidence).
g.        Standards of proof:
i.      Criminal: beyond a reasonable doubt
ii.      Civil: preponderance of the evidence or clear and convincing
h.       Strong preference for viva voce proof – testimony from live, sworn witnesses, who are subject to cross-examination and whose demeanor the jury can observe.
C.      The Role of the Trial Judge
a.       The Trial Judge’s Authority (FRE 104(a))
i.      Advisory Committee Note to FRE 104(a)
1.       Read notes
b.       The Trial Judge’s Discretion (FRE 103)
i.      Evidence Law by Park, Leonard, and Goldberg
1.       The FRE, FRCP, FRCriminalP all mandate that cts disregard errors that do not “affect the substantial rights of the parties.”  Reversal or prejudicial errors are those which affect the substantial rights of the parties. 
2.       Def of substantial rights is vague and cts review the entire record in making the determination of prejudice.
3.       Cts differ on what degree of certainty that the error did not affect the outcome is required to find an error harmless.  Ex:
a.       9th Cir: “more probably harmless than not” test for nonconstitutional errors.
b.       3rd Cir: test requires reversal unless it is “highly probable” that the verdict would have been the same if the error had not occurred.
c.        5th Cir: reversal is required unless the ct is “sure that the error did not influence the jury, or had but slight effect.”
d.       Constitutional errors: SC held that the prosecution has the burden of proving that the error was harmless beyond a reasonable doubt.
4.       Cts generally apply the same standard of harmless error in civil cases as in criminal cases (although some cases argue that the standard should differ in accordance wit hteh differing standards of proof applicable to the civil and criminal cases).
5.       W/o objection at trial, appellate ct reverses only if it finds “plain error”.
a.       “Plain error” allows for great judicial discretion. 
ii.      Federal Rules of Evidence by Saltzburg, Martin, Capra
1.       Pure issues of rule construction are reviewed de novo (but very few such issues arise in practice).
2.       Mixed question of law & fact are also reviewed de novo.
3.       Vast majority of evidentiary rulings are reviewed und the abuse of discretion standard (trial ct friendly standard).
4.       Chance of reversal on the ground of an evidentiary error are slim indeed.
iii.      US v. Walton (7th Cir. 2000)
1.       Abuse of discretion standard.
2.       “We afford great deference to the trial ct’s determination of the admissibility of evidence bc of the trial judge’s first-hand exposure to the witness and the evidence as a whole, and bc of the judge’s familiarity with the case and ability to gauge the impact of the evidence in the context of the entire proceeding.” US v. Van Dreel
3.       Prospect of reversal compare with a camel who wishes to pass through the eye of the needle.
iv.      Bandera v. City of Quincy (1st Cir. 2003)
1.       Facts:  P police officer sued city for sexual harassment and was granted $135k.  Witness testified about her own experience with sexual harassment by the same D and also about the experience of P’s harassment.  The issue is the witness’s testimony as to the P’s experience.
2.       Holding:  There was a failure to properly preserve the objection and the most the appellate ct can review for is “plain error”.  Although the error of allowing her to testify is plain in retrospect, there is no showing that it probably infected the outcome of caused a miscarriage of justice.
3.       Reasoning: 
a.       The attorney had previously moved in limine for an order limiting or excluding the witness’s testimony on the ground that it was irrelevant or unduly prejudicial under FRE 403.   Given these earlier attacks on the testimony, it was not obvious to the judge that the new objections were to impermissible lay witness opinion.  Thus, the objection was not properly preserved.
b.       Attorney did not give reasons during the testimony as to why he had objected. 
c.        An objection, if its basis is not obvious, is not preserved unless the ground is stated.  FRE 103(a)(1).
d.       Failure to preserve the objection means review is at most for plain error.  FRE 103(d). 
e.        It is far from clear that the opinion testimony was harmful. 
f.        Her testimony was not unfairly prejudicial bc the jury relied on her own personal experiences and those experiences had been described in greater and more graphic detail than the witness’s testimony of the P’s experiences.  This later part was mildly phrased.
D.      Rule 103 (Notes)
a.       (a) Rulings on evidence cannot be assigned as error unless (1) a substantial right is affected, and (2) the nature of the error was called to the attention of the judge, so as to alert him to the proper course of action and enable opposing counsel to take proper corrective measures.
b.       When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity.
c.        On the other hand, when the trial ct appears to have reserved its ruling or to have indicated that the ruling is provision, it makes sense to require the party to bring the issue ot the cts attention subsequently.
d.       If the ct changes its initial ruling, or if the opposing party violates the terms of the initial ruling, objection must be made when the evidence is offered to preserve the claim of error for appeal.
e.        A definitive advance ruling is reviewed in light of the facts and circumstances before the trial ct at the time of the ruling.  If the relevant facts and circumstances change materially after the advance ruling has been made, those facts and circumstances cannot be relied upon on appeal unless they have been brought to the attention of the trial ct by way of a renewed, and timely, objection, offer of proof, or motion to strike.
f.        The objector must move to strike the evidence if at the close of the trial the offeror has failed to satisfy the condition.
E.      Rule 104 (Notes)
a.       (c) Preliminary hearings on the admissibility of confessions must be conducted outside the hearing of the jury.  A great deal must be left to the discretion of the judge who will act as the interests of justice require.
Where an accused is a witness as to a preliminary matter, he has the right, upon his request, to be heard outside the jury’s presence.
b.       (d) The rule is intended to be construed as: The accused may subject himself to cross-examination as to issues raised by his own testimony upon a preliminary matter before a jury.


A.      Relevance and Irrelevance: Evidence is relevant if it rationally probative in any way and irrelevant if it is not.  This means that evidence need have very little probative force to be relevant.  Even extremely weak evidence is relevant as long as it rationally can be given some probative value.
a.       Knapp v. State (Ind. 1907)
i.      Facts: D was convicted of murdering a sheriff after he had heard (from someone he did not name) that the sheriff had injured an old man and caused that man’s death.  The prosecution wanted to introduce evidence proving that the old man had no bruises on his body and had died because of alcohol. 
ii.      Ct denied motion for a new trial attempting to exclude the Dr’s testimony because it was relevant.  The state’s evidence seeks to discredit the D and is therefore relevant because it directly counters the D’s testimony.
b.       US v. Dominguez (1st Cir. 1990)
i.      Facts: D, a customs officer, was accused of murder.  He had attempted to have the barrel on his gun replaced.  The gov tried to introduce this evidence.  The D argues that the evidence presented of gun ownership and about barrel replacement was irrelevant and prejudicial. 
ii.      Ct ruled that it was not irrelevant.  Relevant evidence is evidence “having any tendency to make the existence of any fact tat is of consequence . . . more probably or less probable than it would be without the evidence.  FRE 401. 
iii.      Evidence is relevant bc it can allude to guilt if the D tried to change the barrel.  It doesn’t matter that the gov does not want to introduce the gun, but instead only wants to introduce this fact. 
c.        State v. Larson (Mont. 1992)
i.      Facts: D allowed 5-yr-old girl to ride a horse after he had a BAC level 3 times that allowed to drive a car.  D argues that the BAC level which will impair a person’s ability to drive a car is irrelevant to his conduct relative to a high-spirited young horse.

be to prove that the log could be heard.  The tape’s weaknesses could have been exposed during cross-examination. 
ii.      No abuse of discretion.  Juries have a tough enough time deciding cases intelligently even when they are not assailed by evidence of tangential relevance, and federal trials already take up enough time without being prolonged to receive such evidence.
g.       US v. McRae (5th Cir. 1979)
i.      Facts: D convicted of shooting his wife.  He claimed that it was accidental.  The gov introduced pictures of the corpse and crime scene to rebut his defense.  Two of the pics were gross, distasteful and disturbing.  The D argued that they were prejudicial. 
ii.      Ct allowed the pics because they were not flagrantly or deliberately gruesome.  The trial ct reviewed the gov’s pics and excluded some of little probative value. 
iii.      Relevant evidence is inherently prejudicial.  Bt it is only unfair prejudice, substantially outweighing probative value, which permits exclusion of relevant matter under Rule 403.  Rule 403 is not designed to permit the ct to “even out” the weight of the evidence, to mitigate a crime, or to make a contest where there is little or none.  
h.       Old Chief v. US (US 1997)
i.      Facts: D was arrested for assault with deadly weapon and charged with a federal crime which prohibits possession of a firearm by someone who has previously been convicted of a felony.  D had previous conviction of assault with a gun for which he was sentenced for 5 years.  During trial, D argued that the prosecution shouldn’t be allowed to introduce evidence regarding the nature of his previous felony under FRE 403 because probative value substantially outweighed by prejudice.  D willing to stipulate that he had a prior felony.  Prosecution argued that it should be left alone to present its case.
ii.      D’s prior felony was not admissible. The D was willing to stipulate that had prior felony and this would meet the element of the federal crime he is being charged with.  The prosecution’s argument that it should be allowed to present evidence of choice strong but not persuasive here.  Showing the nature of D’s last felony has very little probative value, because needed only show that D had prior conviction, which can be done by stipulation.  But the danger of prejudicial effects is very high.  Therefore, the district court abused its discretion by overriding D’s stipulation and allowing the prosecution to present the evidence.
iii.      Ct says it is improper to generalize a D’s earlier bad act into bad character and taking that as raising the odds that he did the later bad act now charged.
iv.      Although “propensity evidence” is relevant, the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment—creates a prejudicial effect that outweighs ordinary relevance.
v.      The notes to rule 403 state that when a ct considers whether to exclude on grounds of unfair prejudice, the availability of other means of proof may be an appropriate factor.
vi.      The risk of unfair prejudice did substantially out-weigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.
vii.      Old Chief Balancing Test:
1.       On objection, a trial judge will decide whether a particular item of evidence raises a danger of unfair prejudice
2.       The proper test is to balance the degrees of probative value and unfair prejudice for the evidence in question and for alternative, relevant evidence
3.       The alternative evidence may be admitted if it carries the same or greater probative value while having a lower risk of unfair prejudice than the evidence in question. 
viii.      DISSENT: FRE 105 provides that when evidence is admissible for one purpose, but not another, the ct, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.  The District Ct instructed the jury that it was not to consider a proper conviction as evidence of guilt of the crime for which the defendant is now on trial.  The jury is presumed to have followed this cautionary instruction and the instruction offset whatever prejudice might have arisen from the introduction of petitioner’s prior conviction.