Select Page

Advanced Evidence
University of Alabama School of Law
Emens, Steve

Advanced Evidence
Fall 2016
FRE 103 establishes a formidable roadblock to a successful claim of evidentiary error
First – there has to be an erroneous ruling
Second – has to be brought to the trial judge’s attention in an appropriate way, by specific & timely objection or offer of proof
Third – Even if 1 & 2 are satisfied, the error has to affect a “substantial right of the party”
Broad discretion given to trial court judges – given great deference by appellate courts
The Three R’s:
Is the evidence relevant for the offered purpose?
Is the evidence reliable for the offered purpose?
Is it right to allow the fact-finder to receive the evidence for the offered purpose? (Even if the evidence is relevant and reliable, there may be good reasons to exclude it – constitutional strictures, matter of social policy, considerations of unfair prejudice & courtroom efficiency.)
– Any tendency to make a fact more or less probable than it would be without the evidence; and the fact is of consequence to the action (FRE 401)
– Evidence must pass 2 tests in order to be “relevant”
            1. Must be directed to some fact that is important to the issues in the              case
            2. Must tend to make the existence of that fact more or less probable
– If the evidence is relevant, it is admissible unless there is some specific reason to keep it out (FRE 402)
– Witness competency (FRE 601-604; 606)
– Opinion testimony (FRE 701-705)
– Hearsay (FRE 801-807)
– Authentication & Identification Rules (FRE 901-902)
– Contents of writings, recordings & photos (FRE 1001-1008)
– Witness questioning (FRE 611)
• Even relevant evidence should not be admitted if the witness offering it does not speak from personal knowledge of the matter, if the expert bases an opinion on unreliable data, if important testimony is elicited by leading questions on direct exam, or if the offered evidence cannot survive challenge by the hearsay rules.
• Hearsay
– Most of the specific exceptions to the hearsay rule (FRE 803-804) are based on notions of reliability grounded in law, experience and logic – “firmly rooted”
– When they are not “firmly rooted,” hearsay exceptions must contain circumstantial guarantees of trustworthiness in order to achieve evidentiary reliability.
• 2 Barriers to Evidence that is Relevant & Reliable:
1. Rules that reflect social & political judgments
– Certain offered evidence might be relevant and reliable, but we run the risk of giving up something important when we allow the fact resolver to hear or see it.
* Evidence of subsequent remedial measure (FRE 407)
* Compromise & offers to compromise (FRE 408)
* Payment of medical expenses (FRE 409)
* Pleas or plea discussions (FRE 410)
* Liability insurance (FRE 411)
* Rape victim’s past behavior (FRE 412)
* Certain privileged communications (FRE 501)
– Includes violations of guarantees contained in the 4th, 5th, 6th Amend. to the U.S. Con

of Judicial Power
1. FRE 102 – Purpose
      * Encourages judges to construe the Rules in a way that invites            admissibility & a firm hand over the proceedings.
2. FRE 611 – Mode & Order of Examining Witnesses and Presenting Evidence
– judges can allow witnesses to testify out of turn; limit the number of expert witnesses a party will present; the time witnesses take up on the stand; require direct testimony of expert witnesses to be presented in the narrative, with time limits.
Constitutional Limitations =
 A criminal def. 6A right to confront witnesses is violated when minor victims are allowed to testify behind a large screen, preventing the def. from seeing the victim.
“Refusal to allow cross-exam of an alleged rape victim on a motive to fabricate the accusation is an error of constitutional dimension.” – Olden v. Kentucky
– governs the scope of cross-exam
– leading questions
Judges have used FRE 611 to overcome a literal interpretation of other rules FRE 613(b) – when impeaching a non-party witness with a prior inconsistent statement, a lawyer no longer is required to question the witness about the prior statement unless the statement concerns a collateral matter.