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SUNY Buffalo Law School
Sullivan, Winnifred F.

Evidence Outline
Rule 101
All of the following rules are applicable in Federal Court proceedings
Rule 102
The Court has very broad discretion in how rules of evidence apply. You can ask a relevant question and court may disregard it because it is prejudicial or not important. It allows the court to run a trial in a manner that is fair to both sides and in the best way to find the truth. 
2 Primary Elements in every trial
            1. Determination of the Law – Determined by judge. Tells jury what law is.
            2. Determination of the Facts – Determined by jury. Jury uses common sense. The fact    that the judge determines something is admissible is not binding on the jury to determine             it is true. 
Rule 104 – Preliminary Questions
Court determines admissibility, jury determines weight. Court determines the preliminary qualifications of a person to be a witness. Court is not bound by the rules of evidence in making these determinations except when dealing with privilege. 
United States v Zolin – Court said that 104(a) when dealing with qualifications to be determined by the court allows a judge to review privileged material in camera to consider if privilege is valid. Court said that before it will examine the material the party seeking the examination must have a good faith basis for requesting the examination. When making an application against privilege, it is a reasonable man standard that the person must prove. Person making the application must rely on things outside of the documents. 
Rule 103 – Rulings on Evidence
103(a) Effect of Erroneous Ruling – Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and:
103(a)(1) Objection – There is a timely objection stating the specific ground if the specific ground was not apparent from the context. 
What is the purpose of making an objection?
Preservation of an issue for appeal. Not many cases reverse on evidentiary issues unless the ruling affects a substantial right of a party.
Advise the court and your opponent of a perceived error and provide them the opportunity to correct it. With an objection, you give the court the opportunity to correct the error and your opponent the opportunity to present the information in a better way. Without fair opportunity to correct the error, there is no appellate right. 
If you object for the wrong reason, there is no appeal. 
Two types of objections
General – Do almost nothing for appellate rights. Without giving a reason, there is no notice of error and no opportunity to correct. 
Specific – In order to predicate an appeal, you must demonstrate that the court made an incorrect ruling and the ruling substantially affected the rights of a party. If you object and give the wrong reason, you lose your right to appeal. 
Wilson v Williams – Is an objection at trial necessary when a pretrial ruling allows the act? Court said an appeal w/o an objection is not fair to the trial judge. The objection is meant to warn the judge that there is an error and it needs to be averted. Not plain error because there were other possible reasons why the attorney did not object. 
            Conditional ruling – May be possible to avert the ruling by revisiting it.
            Definitive ruling – Do not invite reconsideration.  This is enough to preserve right to        appeal.
Plain error standard – An error that is not only clear in retrospect, but also causes a miscarriage of justice.
Harmless error standard – When a court incorrectly admits or excludes evidence, but the substantial right of the defendant was not effected. 
Motions in Limine – Application before trial to exclude evidence before it is mentioned to a jury. In the Federal system, a denial or acceptance of the motion can be appealed, but it is interpreted narrowly. Since this is the case, you should renew your application at time of trial. In New York State – You CANNOT appeal the court’s ruling on a motion in limine. All courts generally favor motions in limine because if gives the judge an idea of what the case is about. 
103(a)(2) – Offer of Proof – In the case the ruling is one excluding evidence, the substance of the evidence is made known to the court by offer or was apparent from the context within which questions were asked. When evidence is excluded, you must make an offer of proof to preserve your right to appeal. 
United States v Adams – For a valid offer of proof, the proponent must (1) describe the evidence and what it tends to show; (2) identify the grounds for admitting the evidence. If the proponent’s offer of proof fails this standard, then the court can reverse only in instances of plain error that affect the appellant’s substantive rights.
4 Ways to make an offer of proof of testimony
1.Examine the witness before the court and have the answers reported on the record.
2. Statement of counsel as to what the testimony would be.
3. Documentary offers of proof – statement written by examining counsel describing the answers the proposed witness would give if permitted to testify.
4. A written statement of the witnesses’ testimony signed by the witness and offered as part of the record.
*** 3 and 4 must be marked as an exhibit and introduced into the record for proper identification on appeal. 
Appeals – If the court makes a definitive ruling on the record either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
            Luce v U.S. – If someone does not testify due to a pretrial ruling allowing their priors,      they do not have a right to appeal. In order to raise review of improper impeachment  with a prior, the D must testify. Attorney could have kept him off        the stand for some      other reason.
Rule 105 – Limited Admissibility
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
Example: D is charged with extortion. He took two of his bad ass friends over to V’s apartment and said give me money or else.  You can probably allow the fact that he hangs out with bad ass dudes into evidence. In most cases we do not convict D because of this, but it may be admissible in this instance. If you are introducing his bad ass friends as an element of the crime (extortion = generating fear) the judge will weigh the two issues. This admissibility will also depend on your defense. If you are claiming police planted drugs on you, if you have 100 priors for possession, chances are they are coming in. 
Carbo v. United States (multiple admissibility doctrine) – When an evidentiary fact is offered for one purpose and becomes admissible by satisfying all the rules applicable to it in that capacity, it is not inadmissible because it does not satisfy the rules applicable to it in some

he jury, it does not have to be the only conclusion reached by the jury. 
Burden of Persuasion
Criminal Case – Beyond a reasonable doubt.
Civil Case – Preponderance of the evidence. Can be upon both parties in a civil case in certain situations.
Delaware Coach Co. v. Savage – Court said that evidence was at an equilibrium, therefore no verdict for the plaintiff because he did not meet the burden of proof. If it is questionable evidence, you must rule against the party that has the burden of persuasion. If a jury finds that both sides were negligent and that negligence was a substantial factor in the evidence, they will factor a percentage and attribute fault to both sides. This is how both sides can have the burden of persuasion in a civil case. 
In re Winship – To convict a juvenile of a criminal case with the possibility of confinement, the standard of proof is beyond a reasonable doubt. If no confinement, it is preponderance. 
Opening the Door – Once one side opens the door without an objection, then both sides can get into it. It can be strategic not to object. Ex. If a defendant opens the door to the motives of the defending officer, then evidence that as to why the officer investigated (We got evidence that he was a major drug dealer) will come in. 
Criminal Cases and the Burden of Persuasion – This burden never shifts in a criminal case, except with certain defenses such as affirmative defenses. In NYS if a defendant asserts a defense (infancy or justification) the burden is on the prosecutor to disprove the defense. Prosecutors duty is to prove facts that disprove defense. If defendant puts forth an affirmative defense, they must prove it by the fair preponderance of the evidence. This is due to the fact that affirmative defenses deal with the operation of the mind of the accused and the only person that can prove this is the accused. P cannot prove what is in the D’s mind. If D fails to prove this, he still may not be found guilty, P still has to prove beyond a reasonable doubt. 
Chapter 6 – ORDER OF PROOF
Seguin v. Berg – P tries to offer direct testimony of 3 people after D presents case. Court said no, P must present all his evidence before D unless court grants an exception. The only witnesses that can be called after D presents its case are rebuttal witnesses. There was a cross claim in this case, so both will have the burden of persuasion, just at different times. Can apply substantial factor test – percentage will depend on who’s negligence more greatly contributed to causing the accident. 
United States v. Lara – You can refer to issues not covered in direct, but related to matters relevant to those covered in direct. Also matters that go to credibility
Bommer v. Stedelin – Court said P could not reopen a case arbitrarily after a directed verdict.