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SUNY Buffalo Law School
Dillon, Kevin M.


Rule 101: Scope – States that the FRE govern proceedings in US Courts and US Bankruptcy Courts.

Rule 102: Purpose and Construction – States that the rules must be interpreted to promote justice and ascertain the truth.

Rule 103: Rulings on Evidence

(a) an error cannot be complained of unless it affects a substantial right of the party, AND
(1) There is an objection, which is timely and specific (as long as the specific ground was not apparent from the context); or
(2) If the error is one excluding evidence, there must be an OFFER of PROOF so that there is something to show the substance of the evidence if it’s not apparent from the context.
(b) Record of Offer and Ruling – allows the judge to cover his ass by saying why he is overruling an objection even if the opposing counsel doesn’t say anything
(c) Hearing of Jury – proceedings shall be conducted so as to prevent inadmissible evidence from being suggested to the jury. Offers of proof can and should be done outside of the presence of the jury, if necessary.
(d) Plain Error – Catch all provision and allows the appellate court to take the matter into its own hands regardless of what counsel did at trial.

Gov’t VI v. Archibald
The question asked by the gov’t attorney was not answered and the witness gave another type of answer and it was not apparatent that this question would elicit such an answer. The objection was still timely even though he didn’t object when the question was asked but after the inadmissible response was given.

Timely Objection – An 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.
· Occasionally, a question that is unobjectionable elicits an objectionable reply, or previously admitted testimony becomes objectionable only the light of subsequent testimony – in these circumstances, grounds for objection are not known until after the objectionable testimony is given, and an “after objection” may be interposed when the grounds become apparent.

Connecting Up – When there is an objection you can say that you are going to connect this to something later on. An objection must be made later, though, if there is no connecting.

Depositions – the only objections you can make at the time of the deposition is to the form of the question. Other objections are handled right before the deposition is used at trial.

Specific Objection – Since an objection only preserves the specific grounds named, if an objection naming an untenable ground is overruled, the ruling will be affirmed on appeal even though a good but unnamed ground existed for exclusion of the evidence. However, if an objection naming an untenable ground is sustained, the ruling will not be upheld on appeal on the basis of an unnamed valid ground if the valid ground might have been obviated by the proponent had it been raised at the trial.

Rule 104: Preliminary Questions

(a) Questions of Admissibility Generally – Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court…
a. Example: When an co-conspirator statement is being offered under 801(d)(2)(E), the issues of the existence of a conspiracy, its pendency, whether the party against whom the statemement is offered was a member, and whether the statement was made in furtherance of it, are for the court.
b. Example: The determination whether a particular witness is qualified to testify as an expert is for the court under 104(a).
(b) Relevancy Conditioned on Fact – The court can admit evidence that is conditioned on some fact if it feels that there is sufficient evidence of that underlying fact.
a. The court can admit evidence conditioned on the fact that it will be proven admissible later (Connecting Up).
(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 interests of justice require or, when an accused is a witness and so requests.
a. Hearings regarding the admissibility of confessions must be outside of the presence of the jury. Question of admissibility of the search of a car – the defendant wants to get on the stand to testify to this, but nothing else – this hearing, if before or after the trial starts, the prosecution cannot use this information in front of the jury. This can be used if the defendant decides to testify during the trial, now the prosecution can use this information to impeach the defendant.
(d) Testimony by Accused – The accused, if he testifies upon a preliminary matter, does not become cross-examinable 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.

Note: NEW YORK – motions in limine could not be appealed unless the party renewed its objection and made an offer of proof again at trial.

Rule 105: Limited Admissibility

Rule 105 addresses situations of limited admissibility, i.e., when evidence is offered that is admissible as to one party or for one purpose but not admissible as to another party or for another purpose. It prescribes the use of limited instructions upon request of a party.

Example [1]: A says that he held up the store with B. At trial, this is only admissible for A because B has no right to cross examine A. If you want a limiting instruction, you need to make the request as soon as possible. Instruct jury to only consider testimony for A, not B. [Realistically, this ends up as a separate trial]. This will probably be inadmissible under 403. “Confession of nontestifying codefendant implicating accused is inadmissible even with limiting instruction.”

Example [2]: Slip and fall at the mall; workman comes by and comments that he told the supervisors that the water had been there for hours. His comment is hearsay, but it is

confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.
· Because this excludes relevant evidence, this is used SPARINGLY!!! All admissible evidence is inherently prejudicial – we’re talking about unfairly prejudicial evidence.
· Example: In murder prosecution, trial court properly overruled Rule 403 objections to photographs of deceased and death scene. “Relevant evidence is inherently prejudicial; but it is only UNFAIR PREJUDICE, SUBSTANTIALLY OUTWEIGHING probative value, which permits exclusion of relevant matter under Rule 403.”
· Example “Confusion of Issues” – Evidence that bank recovered its investment confused issue of intent to defraud. Inadmissible.
· Example “Misleading the Jury” – Cases invoking the danger of misleading the jury often refer to the possibility that the jury might attach undue weight to the evidence. I.e., danger that the jury might overvalue polygraph results as an indicator of truthfulness because of its scientific nature.
· Example “Undue delay, waste of time, or needless presentation of cumulative evidence” – Evidence of the prior judgment was cumulative, because the Government had earlier introduced seven documents from Bejar’s earlier deportation that would strongly tend to prove that he was an alien.


Notice – If the other accident is relevant to show notice, the requirement of similarity is less strict.
Absence of accidents – The lack of other accidents may be relevant to show the absence of dangerous condition or defect, lack of causal relation, and lack of notice. The admissibility of evidence of absence of accidents is also subject to a foundation showing similarity of conditions and the trial court’s exercise of discretion under Rule 403.
Impeachment – accidents that would otherwise be inadmissible on account of dissimilarity may become admissible to impeach a witness’s broad assertion concerning safety.
Similar contracts or transactions – A party’s business transactions with third parties in similar circumstances may be relevant to prove the probable terms or meaning of terms of a disputed agreement.
Similar claims by plaintiff – Evidence that a plaintiff has brought similar claims that were fraudulent may be relevant to the merits of the present claim. On the other hand, evidence merely indicating that the plaintiff is “claim-minded” is generally excluded.