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Stetson University School of Law
Everhart, Stephen Michael

Evidence Outline

Steve Everhart

Spring 2012

FRE 101. Scope; Definition

(a) Scope. Applies to proceedings in United States Courts.

(b) Definitions. In these rules:

(1) “civil case” means a civil action or proceeding;

(2) “criminal case” includes a criminal proceeding;

(3) “public office” includes a public agency;

(4) “record” includes a memorandum, report, or data compilation;

(5) a “rule prescribed by the Supreme Court” means a rule adopted by the SC under Statutory authority; and

(6) a reference to any kind of written material or any other medium includes electronically stored information

FEC § 90.103. Scope; Applicability

(1) Unless otherwise provided by statute, this code applies to the same proceedings that the general law of evidence applied to before the effective date of this code.

(2) This act shall apply to criminal proceedings related to crimes committed after the effective fate of this code and to civil actions and all other proceedings pending on or brought after October 1, 1981.

(3) Nothing in this act shall operate to repeal or modify the parol evidence rule.

Differences – the Florida Code does not delineate the types of proceedings to which is does and does not apply. If you have a specific type of case – family law or probate – you would have to look to the statutory provisions or specific rules governing those types of proceedings. Also, under the Florida Code, it specifies a date to which the rules apply in criminal proceedings, while in federal the date on which the underlying crime was committed is not relevant in determining the applicability of the FRE. Finally, the FEC makes clear that the parol evidence rule is a substantive rule of law and the FEC does not alter it, while the FRE makes no reference (but is set forth in case law).

FRE 102. Purpose

These rules should be construed so as to administer every proceedings fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination

FEC § 90.102. Construction

This chapter shall replace and supersede existing statutory or common law in conflict with its provision.

Differences – the FRE sets forth principles, ascertaining the truth, which give judges flexibility when construing ambiguous provisions of the rules such as 702 (expert qualification). While the FEC does not have this in the statute it does through case law.

FRE 103. Rulings on Evidence

(a) Preserving a claim of error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party, on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not needing to Renew an Objection or Offer of Proof. Once the Court rules definitively on the record – either before or during trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character of form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent predictable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Plain Error. A court may take notice of plain error affecting a substantial right, even if the claim of error was not properly preserved.

FEC § 90.104. Rulings on Evidence

(1) A court may predicate error, set aside or reverse judgment, or grant a new trial on the basis of admitted or excluded evidence when a substantial right of the party is adversely affected and:

(a) When the ruling is one admitting evidence, a timely objection or motion to strike appears on the record, stating the specific ground of objection if the specific ground was not apparent from the context; or

(b) When the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which the questions were asked.

If the court has made a definitive rule 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.

o (2) In cases tried by a jury, a court shall conduct proceedings, to the maximum extent practicable, in such a manner as to prevent inadmissible evidence from being suggested to the jury by any means.

o (3) Nothing in this section shall preclude a court from taking notice of fundamental errors affecting substantial rights, even though such errors were not brought to the attention of the trial judge.

· Notes under both Rules – To perfect an objection you have to make the correct specific objection, only the specific grounds objected to at trial are preserved. You can also object to a given line of questioning by lodging a “continuing objection.” In cases involving multiple Ds, you have to object to the question for each D. A party is excused from having to renew an objection, but only if the decision on that objection is “definitive.”

· Differences – under both there is the harmless error doctrine – an error by the judge will not be the basis for reversing/new trial if that error would not have affected the outcome- but there are differences. 1) Under Fed Criminal cases, a constitutional error will be excused only if the appellate courts finds beyond a reasonable doubt that the error did not affect the outcome, while a non-constitutional error – such as an error in applying the rules of evidence – will be excused on a lower standard, albeit one that varies by federal circuit. By contrast in FL criminal cases, no distinction is made and the appellate court uses a reasonable doubt standard. 2) Under the FRE, errors in the civil cases are subject to the same harmless error standard as is used for non-constitutional errors in criminal cases. FL is unclear for civil actions, but probably used a “reasonable probability” standard that the outcome would have been different.

· FRE 104. Preliminary Questions

o (a) In General. The court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

o (b) Relevance that Depends on a Fact. When the relevancy of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on condition that proof be introduced later.

o (c) Conducing a Hearing so that the Jury cannot hear it. The court must conduct any hearing on a preliminary question that the jury cannot hear it if:

§ (1) the hearing involves the admissibility of a confession;

§ (2) a defendant in a criminal case is a witness and so request; or

§ (3) justice so requires

· (d) Cross-examining a defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

· (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

· FEC § 90.105. Preliminary Question

o (1) Except as provided in subsection (2), the court shall determine preliminary questions concerning the qualification of a person to be a witness, the existence of privilege, or the admissibility of evidence.

o (2) When the relevancy of evidence depends upon the existence of a preliminary fact, the court shall admit the proffered evidence when there is prima facie evidence sufficient to support a finding of the preliminary fact. If prima facie evidence is not introduced to support a finding of the preliminary fact, the court may admit the proffered e

se to an inference that the person knew or should have known the property was stolen (2005 case). While there is no specific FRE, the common law allows judges to sum up the evidence and comment to the jury upon the weight of the evidence and the credibility of the witnesses, if he also instructs the jury that they are to determine for themselves the weight of evidence and credibility of the witnesses and that they are not bound by the judge’s summation or comments. Accordingly both FL and FRE are mirror images.

· FRE 401. Test for Relevant Evidence

Evidence is relevant if:

o (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and

o (b) the fact is of consequence in determining the action

· FEC § 90.401

o Relevant evidence is evidence tending to prove or disprove a material fact

· Notes – essentially the rules are the same; a fact is “material” (or of “consequence”) if its existence would provide the trier of fact with a basis for making some inference, or chain of inference, about an issue that is necessary to a verdict.

· FRE 402. General Admissibility of Relevant Evidence

Relevant evidence is admissible unless any of the following provides otherwise:

The United States Constitution

A federal statute;

These rules; or

Other rules prescribed by the Supreme Court

Irrelevant evidence is not admissible

· FEC § 90.402

o All relevant evidence is admissible, except as provided by law

· Notes – both rules are understood to mean the same thing.

· FEC § 90.4025

o If a person less than 18 years of age gives birth to a child and the paternity of that child is established under chapter 742, such evidence of paternity is admissible in a criminal prosecution.

There is no comparable federal rule, but this evidence would be probative of whether the defendant engaged in sexual activity with the minor and thus would be presumptively admissible under 402, unless excluded for some other reason.

· FEC § 90.4026

o (1) As used in this section:

§ (a) “Accident” means an occurrence resulting in injury or death to one or more persons which is not the result of willful action by a party.

§ (b) “Benevolent gestures” means actions that convey a sense of compassion or commiserations emanating from human impulses.

§ (c) “Family” means the spouse, parent grandparent, stepmother, stepfather, child, grandchild, brother, sister, half-brother, half-sister, adopted child of parent, or spouse’s parent of an injured party.

o (2) The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident and made to that person or to the family of that person shall be inadmissible as evidence in a civil action. A statement of fault, however, which is part of, or in addition to, any of the above shall be admissible pursuant to this section.

· Notes – the scope of this rule makes it clear that statements of fault, i.e. “sorry it was my fault” are not barred from by the rule. Moral of the story is you can say your sorry and ask how the injured party is, but don’t say it was your fault. There is no comparable federal rule, and such evidence is probative of fault and thus likely admissible in federal court.