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Evidence
Stetson University School of Law
Rozelle, Susan D.

Characteristics of the Adversary System
Roles of judge & jury
FRE 102. Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
FRE 614. Calling and Interrogation of Witness by Court
(a)    Calling by Court. The court may, on its own motion or at the suggestion of a party, call witnesses, all parties are entitled to cross-examine witnesses thus called.
(b)   Interrogation by court. The court may interrogate witnesses, whether called by itself or by a party.
(c)    Objections. Objections to the calling of witnesses by the court or to interrogation by it may be made at the time or at the next available opportunity when the jury is not present.
Judicial Questioning:
·         Rule 614(b) – Judges allowed to interrogate witnesses; must be impartial
·         Rule 614(c) – Counsel may object to judicial questions after the fact, but nevertheless must object
Reversals:
·         VERY rare, and thus the error must be very bad
·         More common in Criminal cases as opposed to Civil cases
·         Standard for reversal are higher in Criminal cases (beyond a reasonable doubt) than that in Civil cases (preponderance of evidence), which is why it is easier to get reversal in Criminal cases
View from Above
·         An appeals court may reverse, but a superior court may find the conduct acceptable
Expressive Judicial Conduct:
·         Judge shaking their head
o        Appeals courts are likely to defer on issues that are not captured in the record
o        Object and say “May I approach the bench.” Then say, “Let the record show…”
Judicial Witnesses:
·         R. 614(a) authorizes the judge to call witnesses
·         R. 706 allows the judge to call expert witnesses
US v Beaty:
·         held a trial judge may manage a trial and his actions may create reversible error only where he has manifested to the jury a prejudice to one side, otherwise it Harmless/Excusable Error
·         Whether a confession is voluntary has to do with whether it is admissible or not à for the judge
·         The circumstances of the confession go to its credibility à for the jury
o        Therefore jury can still hear about the facts surrounding the confession once it’s been admitted
Harmless Error Doctrine:
·         when overwhelming evidence is against a party, but there is court error, it is highly unlikely that the D will prevail on appeal
Crane v. Kentucky
·         R: offers to pay medical expenses in a claim are not admissible as evidence to a jury to determine liability of a D and the inadmissibility of this type of evidence is determined by a judge, not a jury
·         H: exculpatory evidence (confessions) by a D are admissible b/c they relevance and credibility should be put before a jury
Huddleston v US: 
·         relevant evidence is ALWAYS admitted and evidence of prior conduct, if relevant to show a legit item such as MOTIVE or KNOWLEDGE, is equally admissible
US v Zolin:
·         In camera review may be used to determine whether allegedly privileged docs/info falls w/in crime-fraud exception
·         Before review can occur, party must present evidence to support a reasonable belief that review may yield information subject to crime-fraud exception
·         Threshold showing may be met with any relevant evidence that itself is not privileged

Objections
FRE 103. Rulings on Evidence
(a) Effect of erroneous ruling.     Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the parties is affected, AND
(1) Objection.       In the case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; OR
(2) Offer of proof.                In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context in which the questions were asked. 
Once the court makes a definitive ruling 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.
(b) Record of offer and ruling.     The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury.           In jury cases, proceeding shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
Objections: are used to contest the admissibility of evidence
·         Must be made to preserve a challenge of admissibility on appeal
·         Subject to plain error
·         Timely
o        Immediately after question/response is made
o        Immediately when document is proffered
§         Rationale: counsel should not be permitted to wait and see whether the answer is favorable before objecting
·         Specificity
Rationale:
·         Alerts trial judge to the nature of the claim of error and thus facilitating a ruling on the objection;
o        Burden is on counsel rather than the judge b/c they are deemed to be better acquainted w/ the facts of the case
·         Affords opposing counsel an opportunity to take corrective measures
Motions in Limine:
·         Pretrial request for a preliminary decision on an objection or offer of proof.
·         Trial court’s authority to consider these motions found in 611(a), which recognizes the court’s general authority to control the presentation of evidence.
o        FRE 103 also authorizes “at or before trial”
·         Matter of discretion

Offers of Proof
FRE 103. Rulings on Evidence
(a) Effect of erroneous ruling.     Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the parties is affected, AND
(1) Objection.       In the case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; OR
(2) Offer of proof.                In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context in which the questions were asked. 
Once the court makes a definitive ruling 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.
(b) Record of offer and ruling.     The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury.           In jury cases, proceeding shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error. Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

Offers of Proof: are used to contest the exclusion of evidence
·         Must be made to preserve the issue for appeal
·         State theory of admissibility
·         State content of the excluded evidence
·         Made out of hearing of jury
Rationale:
·         Efficiency
o        Need to raise in timely manner b/c we could have avoid/remedied the problem
Form of Offer of Proof:
1.       Testimonial
a.        Statement by counsel as to the expected content
i.      Danger: this statement will be insufficient
2.       Examination of the witness, including cross-examination
3.       Affidavit summarizing the witness’s expected testimony and signed by the witness
4.       Documentary Evidence should be “marked for identification” and appended to the record
·         this evidence becomes part of the record but is not reviewed by the jury
·         do not have to proffer while you are cross examining, b/c you do not know what opposing counsel’s witness would say
Motions in Limine:
·         Pretrial request for a preliminary decision on an objection or offer of proof.
·         Trial court’s authority to consider these motions found in 611(a), which recognizes the court’s general authority to control the presentation of evidence.
o        FRE 103 also authorizes “at or before trial”
·         Matter of discretion
Definitive Rulings:
·         Once court has made a definitive ruling in response to a motion in limine, a party need not object or make and offer of proof at trial.
o        Rationale:
§         Efficiency and it annoys judge/jury;
§         Allows parties to refine trial strategy
Wilson v. Williams
·         R: an objection at trial is unnecessary to preserve for an appeal an issue addressed in a definitive in limine ruling
·         R: if, however, the issue was addressed in the definitive ruling or if a tentative in limine ruling is made, where an object

estimony by accused.   The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e)    Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
General Rule
·         All decisions concerning the application of evidentiary rules rests with the trial court, unless 104(b) applies
·         Trial judge decides as a preliminary matter questions concerning:
o        Qualifications of a witness, including competency and qualifications of experts
o        Existence of a privilege
o        Whether a statement is hearsay
o        Whether exception to hearsay rule applies
o        Factual matters – when admissibility decision turns on factual issues the judge decides
§         e.g.: Unavailability of declarant
Application of Evidence Rules
104(a): “In making its determination it is not bound by the rules of evidence except those with respect to privileges.”
·         Judge may consider hearsay
Rationale:
·         FRE designed principally for juries
·         Court needs context to consider admissibility
Privileges
·         Disclosure of privileged information at any stage would defeat the policy behind privileges
·         However, SCOTUS rejected a reading of 104(a) precluding the trial judge from examining in-camera materials asserting to be protected by the attny-client privilege to determine whether the crime-fraud exception applied. US v. Zolin
Burden of Proof
·         General Rule:
o        The party offering evidence has the burden of persuasion on preliminary issues
o        Preponderance of evidence standard
·         Exceptions:
o        Criminal cases
§         e.g.: line-up cases: prosecution has burden of establishing by clear and convincing evidence that an in-court identification is not tainted by an unconstitutional out-of-court identification.
Conditional Relevancy: FRE 104(b)
·         Court determines only if sufficient evidence has been introduced “to support a finding of the fulfillment of the condition”
·         Prima facie standard
·         Lower standard
·         Credibility of evidence not considered – question
Rationale:
·         Entrusting some preliminary questions to the judge under a preponderance standard would limit the jury’s role
·         Basic thrust: Expand jury’s role while limiting the judge’s
·         Little danger – not very technical
Hearing of the Jury: FRE 140(c)
·         Confessions
o        Constitutionally mandated Jackson v. Denno
o        Rarely invoked b/c Criminal Rule 12 requires constitutional challenges by made prior to trial by motion to suppress
·         Other Preliminary Matters
o        “on other preliminary matters shall also be conducted out of hearing of the jury when the interests of justice require or when an accused is a witness and so requests”
§         Latter sentence added in to properly regard the right of an accused not to testify generally in the case dictates that he be given an option to testify out of the presence of the jury on preliminary matters
Testimony by Accused: FRE 104(d)
·         Scope of Cross-Examination
o        Limits scope of cross-examination when a criminal ∆ testifies on a preliminary matter; such testimony does not subject ∆ to cross-examination about other issues
Rationale:
o        Designed to encourage the ∆ to participate
·         Trial Use
o        Rule is silent as to whether ∆’s testimony on preliminary matters may be used subsequently at trial
o        Simmons v. US
§         SCOTUS held that suppression hearing testimony given by ∆ to establish standing to object to illegally seized evidence could not be used at trial. Court did not believe the ∆ had to waive his 5th to establish the 4th
o        No ruling yet on impeachment use of suppression hearing testimony
Weight and Cre