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SUNY Buffalo Law School
Dillon, Kevin M.

You must make an objection when you think the FRE are violated; if you do not make an objection, you cannot appeal
·         [1] Put the court on notice that something is hap
·         pening that shouldn’t be happening- this allows the court to address the error that is being committed
·         [2] Notify the opponent that he/she is engaging in conduct that is in violation of the rules, thus, they have the ability to correct their presentation
·         [3] If you don’t complain during the course of the proceedings, the appellate courts don’t hear you
Substantial Likelihood Test: The only time an erroneous evidentiary ruling leads to a reversal of the verdict is when the appellate court finds that there was substantial likelihood that the verdict would have been different had the judge made the correct ruling
·         In order to get an appeal you need and erroneous ruling and a demonstration to the trial court that because of such ruling, the verdict was the way it was
Three main types of evidence
·         Objections to testimonial evidence
o        proper question and a responsive answer
·         Objections to real evidence (the knife, the contract, etc)
o        Procedures to admit real evidence
·         Objections to demonstrative evidence
o        Doctor will bring with him or her a model of a spine to show where plaintiff was injured; accident reconstruction
o        Something jury allowed to see in order to help them understand the case
General Objections v. Specific Objections
·         General objection “objection!”
·         Specific “objection ___” hearsay, irrelevant, constitutes evidence of an insurance settlement, no foundation
o        You do better on appeal with specific objections because the appellate division knows what you were talking about
Harmless error: An improper evidentiary ruling that does not create a substantial risk that the verdict
would have been different
·         When a court makes a mistake on an evidentiary ruling, but it is unlikely that the error had a major bearing on the ultimate ruling
·         Court must find that there was a timely objection
·         [1] If evidence is admitted after the court overrules a specific objection there can be no reversal unless the evidence was irrelevant for any purpose
o        AD will first look to see if the evidence was admissible for some other reason; and will always give deference to the trial court [for the lower court to be wrong in the eyes of the AD, they had to be wrong on all bases] ·         [2] If evidence is admitted after an erroneous ruling to a general objection no appellate relief can be granted on a general objection unless the evidence would not have been admissible for any reason whatsoever
o        AD assumes the trial court was right; f there is any theory under which objection could have been sustained, that is what the appellate division will assume the trial court had used
·         NOTE: If opponent is offering some piece of real evidence into evidence; you object, but it is sustained in order to preserve appellate relief, after being denied the opportunity to offer something into evidence it is best to make an offer of proof
o        this sets forth the particular reasons why you wanted this item admitted into evidence, or why you wanted to ask that question, or why to use that demonstrative evidence
§         if you make an objection that is overruled you may want to ask the court to make a record as to the basis of your objection
·         in a criminal case, if the evidentiary error was one that violated a constitutional right
o        ie- court admitted into evidence a statement after 6th amend right to counsel had attached, Miranda rights violated, the burden is on the prosecution that the error was “harmless error beyond a reasonable doubt” in order for the conviction to be upheld
·         on rare occasions, appellate courts have the authority to reverse even though no error was made on the basis of justice (mostly in criminal case)
Rule 101: Scope [FRE applicable to court proceedings in the US] ·         applicable to depositions; however FRE are applied when it is offered to the court [all objections as to the form of the question are reserved until such time the court reviews the transcript]  
Rule 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 party is affected AND
(1) Objection- in the case the ruling is one admitting evidence, a timely objection or a motion to strike appears of record, stating the specific ground of objection OR
(2) Offer of Proof- In the case the ruling is one excluding evidence, must make offer of proof
·         remember- error in an of itself does not mean there will be a reversal: you need an error that substantially impacted the rights of a party
(b) Record of Offer and Ruling: Court may add further statement which shows the character of evidence, etc- give reasoning/ make record for itself to explain why it ruled the way it did
(c) Hearing of Jury- Proceedings shall be conducted to prevent inadmissible evidence from being presented to the jury. [Many times issues of law will be heard outside the presence of the jury] ·         ask for curative instruction – instruct jury that they must not take statement into consideration when reaching their verdict
(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
·         On rare occasions when there has been an obvious error, and no objection, the AD has discretion to provide relief
Government of the Virgin Islands v. Archibald: Archibald appeals conviction of aggravated rape. Victim’s mother testified that victim knew Archibald because he had sex with victim’s sister (which constituted 3rd degree rape) [404(b): no evidence of uncharged crimes] However, Defense counsel did not object until after witness testified (as opposed to right after “How do you know Archibald?” was asked).
·         Issue [1] Was this objection timely? Yes. Archibald’s counsel could not have reasonably anticipated that Williams would offer evidence of a prior crime in response to the government’s question
o        Grounds for objection only became apparent after Williams responded to the question; defense counsel’s brief postponement of objection neither prejudiced the government nor in any way impaired the court’s ability to remedy the asserted error
·         Issue [2] Did the district court commit reversible error in admitting evidence of an uncharged crime? Did this affect a substantial right of the defendant?  Yes. Even if district court properly determined the testimony in question to be admissible under Rule 404(b), it should have been excluded under Rule 403 probative/prejudicial value test. Highly probable that the evidence did contribute to the jury’s determination that the defendant was guilty
Court SHOULD have stricken the testimony and given a curative instruction- If an objection is sustained as to evidence that has already been elicited, then the remedy is to ask for a curative instruction that strikes the evidence from the record (motion to strike)
NOTE: FRE 103(a)(1) requires a party to make a “timely objection”
·         Appropriate time to raise an objection is as soon as the party knows or reasonably should know of the grounds for the objection, unless postponement is desirable for a special reason and not unfair to the opposition
·         Usually, grounds for objection become apparent “as soon as the question is asked, since the question is likely to indicate that it calls for inadmissible evidence”
·         Occasionally, a question that is unobjectionable elicits an objectionable reply, or previously admitted testimony becomes objectionable only in the light of subsequent testimony- in these circumstances, grounds for objection are not know until after the objectionable testimony is given, and an “after objection” may be interposed when the grounds become apparent
(1) An objection does not have to be perfectly contemporaneous with challenged testimony to be “timely”. Objection can still be timely if raised within a sufficient time after the proffer of testimony to allow the court an adequate opportunity to correct any error
(2a) Factors that have guided the courts in their determination of whether the evidence is harmless:
(1) Whether erroneously admitted evidence was the primary evidence relied upon
(2) Whether the aggrieved p

single out the admissible part]  
104. Preliminary Questions
(a) Questions of Admissibility Generally: Preliminary questions concerning the qualification of a person to be a witness, existence of privilege, admissibility of evidence, etc shall be determined by court subject to provisions of (b). In making its determination it is not bound by the FRE except those with respect to privileges
·         These legal issues are for consideration of the court, not the trier of fact and thus should be argued outside jury. NOTE:by admitting something as evidence, the court is not concluding that what is being said is reliable, truthful, honest- these are questions for the jury
·         judge not bound by FRE; because the court is considered to have enough experience, can ask the attorneys certain questions
·         the fact that judge determines evidence to be admissible does not preclude counsel from making a showing that it is/is not reliable
·         [second part] judge can rely upon hearsay when determining if something is admissible into evidence, but cannot breach attorney-client, physician-client privilege
(b) Relevancy Conditioned on Fact: When the relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of fulfillment of the condition
·         Ex: If witness is taken out of order; “Judge, I am offering this testimony will contingent on the fact that later on, I will connect it to ___.”Court will find that the testimony re: X is relevant only upon the fact that party proves ____. [Permits evidence taken out of order to accommodate parties] o        “I will connect it up later”
(c) Hearing of Jury: Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interest of justice requires, or when the accused is a witness and so requests.
·         Judge has discretion regarding whether hearings on preliminary questions must be out of the hearing of the jury. However, Rule 104(c) eliminates discretion and makes withdrawal of the jury a matter of right (1) when the hearing is to determine the admissibility of a confession and (2) when the accused is a witness on the issue and requests withdrawal of the jury
(d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross examination as to other issues in the case.
·         Ex: the fact that a witness testifies in earlier preliminary hearings does not mean that they can be crossed regarding earlier testimony
(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
·         the fact that the court admits testimony doesn’t mean that the other side cannot introduce evidence that puts that into question; allowed to demonstrate to jury that evidence is suspect
·         Ex- defendant’s statement entered into evidence; doesn’t preclude defense from presenting testimony re: defendant being bribed, threatened, etc to make statement
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.