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Advanced Evidence
University of Alabama School of Law
Emens, Steve

Advanced Evidence
Fall 2014
        I.            FRE & ARE Rule 103 – Rulings on Evidence and Objections to Rulings
a.       Definitive ruling by the court, renewal not needed
b.      TIMELINESS- right after the objectionable material. In practice, object at the preliminary hearing (motion in limine) stage and then again at trial when the evidence is offered or the evidence you tried to get in would have been offered.
                                                               i.      Otherwise, get caught by the plain error rule, which requires
1.      Plain error
2.       which affects substantial rights of a party, fairness.
c.       Object with specific grounds
d.      Objections:
                                                               i.      Move to strike a bad question or answer
                                                             ii.      Move for a mistrial
                                                           iii.      If a ruling excludes evidence, make an offer of proof out of the presence of the jury
1.      Side bar with judge why its admissible
2.      Q&A with witness
3.      Get marked for ID on appeal
      II.            FRE and ARE 614- Court’s calling a witness
a.       Object outside presence of jury
b.      Impartial manner
c.       Either party can cross examine.
   III.            FRE & ARE Rule 104 – Preliminary Questions
a.       104 generally
                                                               i.      Court will decide preliminary questions on whether evidence is admissible by a preponderance standard
1.      Motions in limine- motion before trial to determine whether certain evidence can be used at trial
2.      Conditional issues –
a.       Expert testimony – is the person an expert?
b.      Hearsay – was the statement made in the context of a hearsay exception (like whether the person made the statement under fear of death, etc)
                                                             ii.      Hearing must be held outside presence of the jury if
1.      Involves admissibility of a confession or
2.      Criminal D is a witness and so requests or justice requires.
                                                           iii.      Criminal D doesn’t waive 5th amendment by testifying to preliminary matters
                                                           iv.      Judge not bound by the rules of evidence when conducting these types of hearings.
                                                             v.      Judges can use affidavits to determine factual matters in civil cases. FRCP 43(e).
                                                           vi.      Can do a voir dire of the foundation witness and let the other cross examine too.
b.      104(b)- conditional relevancy
                                                               i.      Judge may admit evidence that is conditionally relevant. Object if the other party doesn’t “prove it up” with sufficient evidence later.
                                                             ii.      Opponent should argue that condition should be met before the damaging evidence is let in. Otherwise it would confuse the jury under 403.
   IV.            FRE and ARE 105 – Limiting Instructions
a.       When evidence has both inadmissible and admissible uses, jury can be instructed to use the evidence only for the admissible purpose.
b.      Can you ask for it? Yes. Should you ask for it? Maybe not, if you don’t want to highlight the damaging evidence.
      V.            FRE 106
a.       Adverse party can request that the rest of the same writing or recording or statement or any other writing that should fairly be considered together be introduced.
                                                               i.      Like for experts- stuff that they rely upon
b.      ARE limits to rest of same statement or

                                                           iv.      Don’t conclude – say “car was going fast” not “accident was unavoidable.”
                                                             v.      Handwriting- enough that witness has seen the signature once to testify to it on a different document later.
                                                           vi.      Stick to the facts
                                                               i.      May not testify except to
1.      Extraneous prejudicial information was improperly brought to the jury’s attention
a.       Received unadmitted documents
b.      Jurors went to the scene of the crime
c.       Conducted experiments with exhibits
d.      Read from unadmitted books or periodicals
2.      Outside influence was improperly brought to bear on any juror
3.      Mistake was made in entering the verdict.
e.       EXCLUDING WITNESSES- FRE 615 – invoking “the rule”
                                                               i.      Court must exclude witnesses from other testimony or opening statements or offers of proof so they don’t get influenced by prior testimony.
                                                             ii.      May not exclude a party
                                                           iii.      May not exclude someone whose presence is essential to the presentation of the party’s case.
                                                           iv.      Does not apply to rebuttal witnesses