· Cases are won on the basis of evidence that is admitted. Not everything can be admitted!
· Appellate review
o Appeal the final judgment, not the jury verdict, on the basis of evidentiary errors.
o Interlocutory appeal on denial of admission of evidence (generally criminal only)
§ Prosecutor allowed when there is an acquittal, no double jeopardy, also when prosecutor denied admission of crucial evidence.
o Most evidentiary appeals are criminal where the Δ was convicted.
o There is no substitute for winning at the trial level; overturn on appeal is rare!
· Direct v. Cross: Some evidence is admissible only on one & not other. Know the difference!
o Scope of direct rule: A critical limit of cross-examination is the principle that questioning is limited to the matters explored on direct.
· Determine whether the party is seeking to reverse or affirm the judgment – rules differ! .
· Procedure on appeal:
o Did appellant preserve the record?
§ Objection at trial, 103(a)(1)
§ Offer of proof at trial, 103(a)(2)
Plain error is the only exception to the requirement of an objection.
· The appellate court will forgive appellant’s failure to object in the interests of justice because the error is so egregious that it warrants appeal despite preservation of the objection for appeal. See 103(d).
o Was an error made?
§ Abuse of discretion standard – no abuse of discretion if trial judge
· Made a reasonable choice, and
· Applied the correct law
o If wrong law, review is de novo and decision likely overturned.
· When there is only one reasonable choice and the judge made another choice, that is an abuse of discretion.
§ Constitutional error
· 4th A, search & seizure
· 5th A, self-incrimination
· 6th A, confrontation
o Was a substantial right affected?
§ If affected, it probably affected the outcome, reversible error
§ If not, likely a harmless error
§ What is harmless and what is reversible? Three doctrines:
· Cumulative evidence:
o Supports affirmance despite errors by trial court in admitting and in excluding evidence.
o Does NOT justify affirmance merely because other evidence in the case was sufficient to sustain the result reached below.
o The question is whether evidence erroneously admitted probably affected the outcome or whether evidence erroneously excluded probably would have affected the outcome. If the answer is yes, the error calls for corrective action even though there is enough evidence to support the conclusion reached below.
· Curative instruction: “cures” the error, rendering it harmless..
· Offer of proof, Rule 103(a)(2)
o A lawyer faced with a ruling excluding evidence must make a formal offer of proof in order to preserve the point for later appellate review.
o How to do it
§ This means demonstrating to the court exactly what you are prepared to introduce if permitted. Also preserves the record.
§ 103(b): the court may direct the making of an offer in question and answer form.
§ 103(c): The offer of proof is made to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means.
o The necessary showing may invo
cable substantive law and partly by issues raised by the parties.
· General standard under 401: Evidence is relevant if it has any tendency to make the existence of any consequential fact more or less probable.
o This is very broad! Does not have to PROVE the point, just move the needle.
o Sufficiency: One piece of evidence need not be sufficient to prove the point.
· Direct v. Circumstantial – no distinction drawn by FRE!
o Direct: evidence that, if accepted as genuine or believed true, necessarily establishes the point for which hit is offered. Example: “I saw it happen”
o Circumstantial: evidence that, even if fully credited, may fail to support the point in question because an alternative explanation seems as probable or more so. Example: finding fingerprints – could be an innocent explanation, action can be inferred from known factual evidence.
o But remember that everything is direct evidence of something!
· What are you offering it to prove?
o Under 401: Does it “move the needle”?
§ Does not have to absolutely prove the point. This is the difference between relevancy and sufficiency!
§ Not legal relevance, but logical relevance – does it make sense?
o Under 403: Although relevant, there may be some considerations that warrant exclusion.
§ Trial judge has broad discretion.