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St. Thomas University, Minneapolis School of Law
Magill, Frank

Frank Magill & Fred Karasov
FALL 2015
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 with the 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 to 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. THERE is a subsequent remedial measure doctrine that makes evidence about this action inadmissible because we want people to fix problems.
B.     R

ure out the issues in dispute (from class)
c.       One Hundred Years of Evidence Law Reform: Thayer’s Triumph, Eleanor Swift
                                                  i.      Benefits of Trial Judge Discretion: Promotes judicial economy by reducing appellate expenditure of time and energy; trial judges are more familiar with the particular context/facts of a case.
                                                ii.      Costs of Trial Judge Discretion: fear that discretionary power will be exercised arbitrarily and unfairly; that broad ambiguous principles make evidentiary rulings unpredictable to parties preparing for trial and result in inconsistent outcomes; perceived unfairness of inconsistent outcomes, or outcomes dependent on the personality of the judge one happens to draw; could lead to a loss of confidence in the judicial system.
d.      US v. Noriega (11th Cir. 1997)
                                                  i.      Facts: D was convicted of drug related charges.  He was from Panama and had helped the CIA preform certain tasks, for which he was paid.  D claims he was paid $10M, and the CIA claims he was paid $320k.  The issues arises because the ct did not allow evidence of what tasks the CIA had asked him to preform.  The D said that if he was allowed to testify as to what he did for the CIA, then the jury could decide for itself which figure would be more credible.
                                                ii.      Evidence was not admissible. Court sided with trial court’s discretion even though they may have done it differently.  The court held that the potential probative value of this material (what he did for the CIA) was relatively marginal.  Evidence of the purposes for which monies allegedly are given does not aid significantly in the determination of the fact and amount of such purported payments.  The ct stated that admission of evidence regarding the nature of D’s assistance to the US would have shifted the focus of the trial from allegations of drug trafficking to matters of geo-political intrigue. 
e.       US v. Flitcraft (5th Cir. 1986)
                                                  i.      Facts: Ds, a couple, were convicted of failing to file tax returns and filing false withholding exemption certificates.  W contested only the gov’s contention that these acts were done willfully because she had trusted her H.  H stated that he had researched the issue but did not think that his wages were income.  He based his opinion on a few articles.  The judge allowed him to testify about the articles, but not to introduce the articles into evidence.  The Ds argue that the jury would have been more likely to credit the sincerity of the Ds’ believes that they were not subject to filing a return if it had seen the documents/articles.
                                                ii.      The ct ruled that introduction of the documents themselves would have little further probative value.  In addition, the documents presented a danger of confusing the jury by suggesting that the law is unsettled.
                                              iii.      FRE 403 states that evidence, although relevant, may be excluded if its probative value is substantially outweighed by the danger of confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.
f.        Abernathy v. Superior Harwood’s, Inc. (7th Cir. 1983)
                                                  i.      Facts: D company was sued for negligence when a delivery person was injured with one of its logs.  The D created a tape that would show that the P would have heard the log and should have moved.  The judge allowed the tape to play but with no sound.  D argues that the point of the tape would 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.