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Stetson University School of Law
Flowers, Roberta K.


1.      Roles of the Judge and Jury in Evidence
a.       The Role of the Judge
i.      Judicial Conduct
1.      US v. Beaty
a.       Appeal for Judicial Misconduct
i.      Judge’s Chastising of Beaty’s attorney ruled harmless error
ii.      Judge’s getting angry at Beaty’s attorney allowed
1.      Human Nature
2.      Don’t get to Create own Mistrial
iii.      Judge’s Lengthy Cross of Ballouz’s witness showed bias and doubts as to credibility in front of jury
1.      This was the material witness – not harmless error
2.      The standard for judicial misconduct is fairly high
a.       More often in criminal trials
i.      Reasonable doubt standard rather than preponderance of evidence
3.      Rule 614 allows judges to call and interrogate witnesses, but they may not advocate for a given side
ii.      Gatekeeper Function
1.      Rule 104 – Preliminary Questions
a.       Subsection (a) – Qualifications of Witnesses, Existence of Privilege, and admissibility of evidence is to be determined by the judge. The rules of evidence don’t apply, except those with respect to privilege and those in part (b)
i.      The judge has say over these matters
1.      Evidence of offers to pay medical expenses are to be excluded by the judge, though they may be relevant
ii.      If a party wishes to oppose privilege, they must make a threshold showing that privilege wouldn’t apply. There will be an in camera review to decide the matter by a preponderance of the evidence.
b.      Subsection (b) – When relevance depends on a condition of fact, the judge shall admit it upon the presentation of evidence sufficient to support the finding of that conditional fact
i.      These determinations of relevancy conditioned on fact are for the jury to decide
1.      A confession is relevant if the fact can be established that the defendant signed it
c.       Subsection (c) – hearings regarding the admissibility of confessions are to be conducted away from the jury. Hearings on other preliminary matters shall be conducted away from the jury when justice requires or when the accused is a witness and so requests
d.      As the gatekeeper, the judge’s determination under 104 is to determine whether a reasonable jury could find the evidence relevant once evidence of the conditional fact has been presented.
2.      Rule 103 – Rulings on Evidence
a.       Error cannot be based on a ruling which admits or excludes evidence unless a substantial right of a party is affected, AND
i.      A timely objection is made on the record to the admission of evidence with the specific grounds stated
ii.      Or, if evidence is excluded, a proffer was made showing the substance of the evidence
1.      Proffers must contain:
a.       Description of what the evidence would have been
b.      The significance of the evidence
c.       Why the evidence would be admissible
2.      Proffers can be made by:
a.       Asking the witness the questions and explaining the significance of the testimony on the record
b.      Telling the court what the witness would testify to and the significance (disfavored)
c.       Make a proffer in writing
d.      Have the witness make a proffer in writing and explain its significance
3.      Proffers don’t have to be made when there is an objection by the cross-examiner
a.       You don’t know what the other side’s witness is going to say
b.      Objections need not be renewed after DEFINITIVE RULINGS, Conditional Rulings should have a renewed objection stated where appropriate
c.       Note that rules of evidence and requirements for objections are not relaxed for pro se litigants
iii.      Judicial Discretion as to timing
1.      Judges have great discretion in deciding the timing of trial
a.       Not error to conclude for the day and exclude expert witness that could have been called at any point during day as part of case in chief
2.      Discretion not limitless
a.       Error to refuse to allow defense witness out of order when limited availability was made known far in advance and when refusal deprived defense of witness (deposition had to be used instead)
b.      The Role of the Jury
i.      The Jury is technically allowed to question witnesses as well – it isn’t prohibited
1.      Each judge is able to decide whether to allow or disallow the practice
a.       The typical practice where allowed is to have the questions written down and screened, then posed by the judge
2.      Party Responsibilities
a.       Unless attorneys fulfill some certain obligations, matters will not be preserved for appeal
i.      If a defendant loses his motion in limine to keep out a prior conviction, he must testify in order to give the appellate court something to review on the record
1.      You cannot create your own mistrial by refusing to testify and claiming error
a.       There must be some proof of the prejudicial effect of the ruling on the record.
2.      Luce v. US (note that this is a federal ruling)
ii.      Defendant testifying on own behalf cannot lose motion in limine to keep out prior conviction, testify to the conviction, and then claim error for the introduction of the conviction
1.      You don’t get to create a mistrial by erroneously introducing the evidence on your own
2.      This is invited error, if you introduce the prejudicial or irrelevant evidence, you waive the right to appeal its introduction.
b.      Opening the Door
i.      If one of your witnesses broaches an issue, you do not get to claim error when your opponent explores it on cross
1.      Opening the Door yourself does not create error
c.       Evidence of Limited Admissibility
i.      When evidence is admissible for one purpose, but not for another, the court shall, UPON REQUEST OF A PARTY, issue an instruction to the jury that defines the proper scope of the evidence
1.      Reversible error is only created if it is plain error for the court not to iss

teriality, Relevance, Admissibility
a.       Rule 401 – evidence is relevant if it shows that some fact is more or less probably true than was the case without the evidence
i.      Evidence to be used to give background information and to clarify other evidence is also considered relevant
b.      Rule 402 – All relevant evidence is admissible
i.      Exceptions
1.      Constitutional Provisions
a.       Compelled Confessions, Unreasonable Searches, Etc
2.      By Act of Congress
a.       Records of Refused Visa Applications are Confidential
b.      Wiretapping Evidence in a jurisdiction not allowing wiretapping
3.      By Rules of Evidence
a.       Privileges
4.      By Supreme Court in its Role of Authoring Procedural Rules
c.       Rule 403 – Relevant evidence may be excluded if probativity is substantially outweighed by danger of prejudice, confusion, misleading, delay, or needless presentation of cumulative evidence
i.      Appeals carry abuse of discretion standard
d.      Rule 411 – Evidence of whether a person was or was not insured is not admissible for issue of whether person acted negligently
i.      May be admitted for other purposes (agency, ownership, control, bias, etc)
ii.      This is just a codified 403 determination
e.       Cases Showing How 400 series rules work together
i.      City of Cleveland v. Kiewit – dock collapse case
1.      City’s Counsel repeatedly mentions value of Kiewit and its insurance to influence jury to award city damages; limiting instruction and remitter insufficient to cure damage
a.       Shown by size of award
ii.      Plumb v. Curtis – credit sale to indigent agent of contractor
1.      Showing evidence of agent’s worth properly admitted to show that credit wouldn’t have been issued to a man known to be unworthy of line of credit
iii.      State v. Mathis – Robbery Homicide of Insurance Man
1.      Prosecutor’s presenting defendant as poor and in need of money as making him more likely to commit crime improper
2.      Note though that showing need for a specific purpose on a specific date is more likely admissible
a.       Poverty is not evidence of criminality = general rule
iv.      Hall v. Montgomery Ward
1.      Evidence of Defendant’s Worth Properly Admitted for fashioning punitive damage award
2.      Note that a limiting instruction or bifurcated trial would also be appropriate when dealing with this type of evidence
v.      OLD CHIEF v. US