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Evidence
Temple University School of Law
Natali, Louis M.

Week 1 (8/25/08)
Admission and Exclusion, Preserving Error, Forms of Questions, Judicial Notice
FRE 103,104,106,201,611-612
PG – Chapters 1, 2, 5, 8-17
ADMITTING EVIDENCE
1)    Admissibility of Evidence
a)    The following preliminary questions will be decided by the court:
1)    Qualification of a person to be a witness
2)    Existence of a privilege
3)    Admissibility of evidence
b)    When deciding about admissibility of evidence, the judge may consider inadmissible information. (See, e.g., FRE 104)
c)    FRE 104 (a) Quantum of proof necessary = LOW! Only need to show that a jury could find by a preponderance of the evidence that a certain fact could be found (or, i.e. with competence, that witness is able to observe, recall, relay what they’ve seen, and appreciate nature/quality of need to tell the truth)
d)    The judge – NOT jury decides whether evidence is admissible. For almost every possible objection, the judge rules. EXCEPT: “conditional relevance,” where jury decides for itself. (104(b))
2)    Rulings on Evidence (FRE 103)
a)    Generally, clear pattern that FRE lets more in rather than exclude.
b)    Policy: Let the jury figure it out.
3)    Judicial Notice (Chap. 5, p. 9) “Time saving” rule of evidence
a)    Two basic categories of facts provable by JUDICIAL NOTICE:
1)    Legislative facts = very infrequent! Appellate courts sometimes take judicial notice of legislative facts when they are announcing new principles of law based on public policy, deciding constitutionality of statute or procedure, or interpreting legislative intent.
(1) EG: the Brown court took judicial notice of the fact that separate but equal school systems were a “badge of inequality” for the minority race.”)
2)    Adjudicative facts = more frequent. Facts part and parcel to the lawsuit (e.g. date, time, place of occurrence)
b)    FRE 201: Judge may take judicial notice of a fact that is EITHER: 1) generally known within the territorial jurisdiction of the trial court or 2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.   
1)    NOTE: FRE 201 concerns only adjudicative facts
2)    Fact must be indisputable.
3)    No proof by evidence required.
4)    Very narrow exception to general rule that jury determines facts and judge are sole arbiters of law. The only time that judge finds the facts.
5)    Two types of facts appropriate for JUDICIAL NOTICE:
(1) Fact is generally known by reasonably well-informed people within community in which trial court is sitting.
(a) Generally known: Judge’s knowledge of the fact is irrelevant. The relevant group is the TC community standard.
(b) Trial court: If JUDICIAL NOTICE request on appellate level, the fact must still be generally in the trial court community.
(2) Facts capable of ready and certain verification by resort to authoritative sources.
(a) More frequent: Facts of history, almanac, geography, physical science.
(b) EX: January 21 was a Monday; The speed limit for Pine Street is 25 mph.
(c) Arg against: Source is not as authoritative as it seems. Judge may then reject and rely on fallback of more evidence.
c)    FRE 201(f) Time of taking notice: Judicial notice can take place at anytime during proceeding, including at appellate level. Pre-trial, voir dire, opening statement. 
1)    BUT Judges may have problems with “any time” b/c usually they think that substantive evidence should be presented during their case.
d)    FRE 201(g)Instructing Jury.
1)    In civil case: the jury must accept the fact as conclusively proved.
2)    In criminal case: the jury may, but is not required to accept the fact as proven (because of higher burden in criminal cases)
e)    FRE 201(e)Opportunity to be heard: entitled to the opportunity to be heard as to the propriety of taking judicial notice; if no prior notification, may be made after judicial notice has been taken.
1)    Opposing party has right to be heard: No notice ahead of time of request for JUDICIAL NOTICE, but opposing party has a chance to argue that it’s not proper. May also produce contrary authoritative source. This happens usually during presentation of evidence (can’t wait until case is over to respond).
f)     FRE 201(c) and(d)When discretionary/ When mandatory. A court can take judicial notice at any time, whether requested or not, but must take judicial notice if requested by a party and provided with the necessary information. 
g)    Basic procedures:
1)    At lawyer’s request. Then you give judge whatever they need to make finding. If judge agrees, she’ll instruct jury.
2)    OR sua sponte – but does not happen often because judges may overturned for taking JUDICIAL NOTICE inappropriately (more frequent than for not taking JUDICIAL NOTICE).
(1) Bias in law of evidence for allowing more evidence in. In order for appeal to succeed, must show harm. Likely no harm from failure to take JUDICIAL NOTICE b/c of fallback of taking evidence and proving fact in ANOTHER way.
h)   Tactical pro: Likely that jurors will give it more weight b/c judge agrees with you. Judges like it b/c it saves time. To overturn on appeal may be v. difficult b/c abuse of discretion is hard to show.
i)     Tacitical con: No more evidence can be taken on JUDICIAL NOTICE fact. Some facts are so important that it is more persuasive for jurors to hear it from witness/see from exhibit/a number of times.
 
PRESERVING ERROR FOR APPEAL (TECHNICAL MATTERS & OBJECTIONS)
1)    Practice of evidence law is a PRE-TRIAL practice. Most evidentiary issues are decided in context of motion in limine (to limit testimony) or motion on ruling of admissibility.
a)    If objecting counsel’s IL motion is granted and evidence excluded, in most state practices (not sure yet in federal court), in order to preserve the pre-trial ruling for appeal, questioning counsel MUST make an offer of proof at that time. 
b)    If objecting counsel’s IL motion is denied and evidence included, objection may be repeated in trial.
c)    At end of pre-trial ruling, say “your honor may we incorporate pretrial motions and ruling into trial record? So as to not relitigate issues with renewed objections and offers of proof?”
d)    Authority for this discretion: “Once court makes a definitive ruling 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.” FRE 103(a)(2)
e)    Tactic: The worst thing for your credibility with jury is to make a technical objection, win, and evidence comes in later on.    
2)    Introduction
a)    Generally, to preserve issue for appeal, must object. Objection brings to attention of court opponent’s challenge of evidence. Goal of objection is to keep evidence out! FRE 103.
b)    Plain error: Absent plain error, failure to objection waives appellate consideration of any error in admission of evidence at trial. Plain error is clear and obvious error in admission of evidence, which so substantially affects rights

ct the evidence to its proper scope and instruct the jury (but proponent must move to do so).
b)    Rule recognizes that evidence can be admissible for number of purposes or against multiple Ds. Drafters could have kept the evidence out, but decided that it is better to bring worthwhile information into trial, and take the chance that a jury would obey limiting instruction
c)    BUT it is counsel’s responsibility (NOT judge) to separate inadmissible from admissible: by seeking limitation of evidence to proper admissible purpose + by requesting limiting instruction for jury (certain evidence can influence deliberation only with respect to certain party or certain issue).
d)    The limiting motion is made not for purposes of jury but for purposes of preserving matter for appeal.
8)    FRE 106 Rule of Completeness (Chap. 21, p. 37) – RELEVANCE – “A rule of fairness”
a)    Defined: When a portion of writing/recording is admitted into evidence, an adverse party has the right to have published to the jury other portions of the writing/recording which which ought in fairness to be considered contemporaneously with it
b)    Only applies to writing or recordings intended to be writing (like videotaped deposition)
c)    When a section of writing is offered in evidence, the rest of writing necessary to give explanation to context is also admissible for same purpose of original proffer.
d)    Judicial discretion: Judge may require proferring to provide remainder during his presentation OR judge may require opponent to admit remainder during her questioning.
e)    Tactics: Sometimes you may not want to admit if another damaging part may also be admitted to complete the record. Portion of record otherwise inadmissible becomes admissible for completeness. If P’s lawyer wants to introduce portions of D’s statement, D allowed to introduce portions under completeness even though he could have previously due to hearsay.
f)     Tactics: Also, object at the time of first proffer b/c even if judge doesn’t require yr opponent to introduce it right there, you’ve let the jury know that MORE is coming.
9)    Objections as to Forms of Questions (611; also 612 (RPR)) [LOOK FOR ON EXAM!] a)    Introduction
1)    General ability of judge to control form and manner of evidence – highly discretionary.
2)    NOTE: Judgments are not overturned for improper rulings on form, they are overturned based on substance.
3)    Tactic: Only make pure form objection if lawyer is completely ineffective. The more formal objections you make, the more the you’ll look like a technocrat to jury and not a conveyer of truth.
b)   FRE 611(a) Mode & Order of Interrogation and Presentation governs generally. 
1)    All the common law rules of evidence have been incorporated into the Fed. Rules of Evidence by virtue of FRE 611.