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Advanced Evidence
University of Alabama School of Law
Emens, Steve

Advanced Evidence
I.     FRE 103: Rulings on Evidence (most important)
(a).    Preserving Claim of Error: allows a party to contest evidentiary issues on appeal only if the error affects a “substantial right” of the objecting party.
(1)      If the ruling admits evidence
A.    Timely objects or moves to strike; and
B.     States the specific ground, unless it was apparent from the context; or
(2)      If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
(b).    No Need to Renew Offer of Proof: once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal. [NOT IN ARE—must renew motion at trial for an offer of proof even if judge definitively ruled on it during pre-trial] (c).    Court’s Statement About the Ruling; Directing an Offer of Proof.  The court may make any statement about the character or form of the evidence, the objection made, and the ruling.  The court may direct that an offer of proof be made in question-and-answer form.
(d).   Preventing the Jury from Hearing Inadmissible Evidence: To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested
(e).    Taking Notice of Plain Error: A court may take notice of something affecting a substantial right, even if the claim of error was not properly preserved. [ARE: limits plain error to “a substantial right in a case in which the death penalty has been imposed, even if…”] (f).     Notes:
(1)      Trump Rule: the notice requirement in other rules is waived if not objected to
A.    BUT failure to prove essential element cannot be waived
(2)      Preserving Claim of Error
A.    “Timely and Specific”: requirement means that a party must object or move to strike immediately once a violation has occurred. You must also state the specific FRE grounds for the objection.  Failure to do so will result in waiver.
(1)   Can wait for the witness to answer, but have to object before the next question (hearsay: have to object before the witness answers; if counsel waits until after, judge can say asked and answered)
B.     Substantial Right: could the right ruling have potentially altered the result of the trial? (Something that's really important; generally one of the elements of the crime/tort/contract)
(1)   Even if the ruling is wrong but it doesn’t affect a substantial right, appellate will not reverse
(3)      No Need to Renew Offer of Proof: if judge keeps something out before trial, then you don't have to renew your motion at trial, it trumps the “timely” part in 103
A.    Offer of Proof: means of explaining to the judge what the evidence would have been/shown if admitted (simplest version is an actual witness questioning out of the presence of the jury).  This gives judge a firm basis for decision of whether to admit/exclude, and puts the information on record to aid the appellate court in deciding whether a violation has occurred.
II.     FRE & ARE 104(a) and (b): Preliminary Questions
(a).    The Judge determines these preliminary questions
(1)      Qualification of a person to be a witness [competence of a lay witness/ qualification of an expert] (2)      Existence of a privilege
(3)      Admissibility of evidence
(b).    Relevance that Depends on a Fact: When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.  The court may admit the proposed evidence on the condition that the proof be introduced later. (connecting up/ conditional admission)
(c).    Notes:
(1)      Deciding Whether it’s a 104(a) or (b) issue:
A.    104(a) requires the application of a legal standard and is exclusively the judges decision
B.     104(b) requires a factual determination and the Judge decides if a jury could find by a preponderance of the evidence that the offered evidence is true.
(2)      Conditional Relevance: role of the judge is to make a finding as to whether a jury (any jury) could find by a preponderance that the conditionally relevant fact exists
III.     FRE 105: Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes [interacts with 403] If the court admits evidence that is admissible against a party or for a purpose — but not against another party or for another purpose — the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
(a).    403 argument: jury will use the evidence for an improper purpose even with the limiting instruction/ instruction with evidence will confuse the jury
IV.     FRE 106 Remainder of or Related Writings or Recorded Statements/ The Rule of Completeness: If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part — or any other writing or recorded statement — that in fairness ought to be considered at the same time. [ARE: “at that time of any other part of the writing or statement” so it must be the same statement, excluding writings from other documents]  
Res Gestae: used by prosecution in criminal cases to bring in other acts as part of the “res gestae” of the charged crime.
I.            Character Evidence – 404
a.      Not Admissible
                             i.      Evidence of a person’s character/ character trait is not admissible to prove that on a particular occasion the person acted in conformity with the character or trait.
                           ii.      Criminal Case Exception: in a criminal case, ∆ may offer evidence of:
1.      Mercy Rule: permits only criminal ∆ to enter evidence of his good character in a criminal case, prosecution cannot offer evidence of bad character of any kind until the ∆ offers evidence of good character to show action in conformity.
a.       Essentially limits prosecution to 404(b) until the ∆ enters in character/ opens the door, then prosecution may rebut as allowed in 404(a)
b.      Door is not opened when ∆
                                                                       i.      Merely using character evidence of another purpose, not to prove victim acted in conformity
                                                                     ii.      Attacking alleged victim’s character as a witness under 608 or 609
2.      ∆’s Trait: ∆ may offer evidence of the ∆’s pertinent trait to infer he did not commit the crime in question and if admitted, the prosecution may offer evidence to reb

ase, 404(a) does not keep the evidence out
1.      Evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident.
                           ii.      Analysis
1.      Other act must be relevant to issue, other than character – rule 401 and 404(b)
2.      Proof of [conditional] other act by a preponderance – Huddleston [104(b)] a.       When relevance of evidence depends on whether a fact exists [the other act in 404(b)], proof must be introduced that would enable the jury to find by a preponderance of the evidence that the act occurred.
3.      Apply a 403 balancing test – Old Chief
4.      Prior notice in criminal cases of an attempt to use 404(b) material is required– if requested.
a.       Provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and
b.      Do so before trial – or during trial if the court, for good cause, excuses lack of pretrial notice
5.      Limiting Instruction (Rule 105) if requested
                         iii.      Scope
1.      Applies in civil and criminal cases
2.      “Acts” can be any relevant act at any relevant time
c.       Other Purposes – must be relevant
                             i.      Motive: other acts offered to show WHY a specific person acted with a specific required mental state
1.      Shows specific relationship between ∆ and victim or an issue specific to the current case.
                           ii.      Opportunity:
1.      Access to or presence at a place
2.      Distinctive skills or abilities
                         iii.      Identity: other crimes/acts that have such a distinctive method that it goes to identify the actor 
1.      Modus Operandi – M.O: applied narrowly when proof itself is used to establish identity as in the modus operandi argument as set out in the book.
a.       Evidence of other crimes is admissible if the method used is “so nearly identical” to that used in the crime charged that it earmarks the crime as the handwork of the accused.
                                                                       i.      Same class is not enough (repeated murders, robberies, or rapes)
                                                                     ii.      The pattern and characteristics of the crimes used must be so unusual and distinctive as to be like a signature (hatchet murders)
2.      Link to Proving Identity: if other acts are offered as a link to proving identity the courts treat these like other 404(b) cases and not as strictly as modus operandi cases.