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Advanced Evidence
University of Alabama School of Law
Emens, Steve


Advocacy Approach to Trial Evidence

Approach to Evidentiary Problems

Most evidentiary issues can be quickly and effectively analyzed by a sequential posing of three questions:

1. Is the evidence relevant for the offered purpose? If not, inquiry ends.

2.Is the evidence reliable for the offered purpose? If not, it should not be admitted.

3.Is it right to allow the fact resolver to receive the evidence for the offered purpose? Are there good reasons to keep it out (constitutional strictures, matters of social policy, and considerations of unfair prejudice)?


Meaningful analysis of the relevance question requires everyone to have a clear idea of the purpose of the offered evidence. Why does the proponent want the fact resolver to hear or see the evidence?

If the offered evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” it is relevant within the meaning of FRE 401.

Evidence must pass two tests to be relevant:

1. The evidence must be directed to some fact that is important to the issues in the case. Inquiry of substantive law, driven by the pleadings.

2.Evidence must tend to make the existence of that fact more or less probable. Purely evidentiary determination.

If the evidence is relevant, it is admissible UNLESS there is some specific reason to keep it out. FRE 402 sets out the reasons for federal courts: Constitution of the United States, Act of Congress, other Federal Rules of Evidence, and other rules prescribed by the Supreme Court pursuant to statutory authority. State rules of evidence are burdened by the relevant constitution, statutes and court decisions.


Evidence should not be admitted unless it is reliable.

Many rules are injunctions against unreliability – hearsay, witness compentancy, authentication, etc.

Must be analyzed in light of the relevant purpose of evidence.


Is it right to admit the evidence?

The FRE reflects a policy that prefers admission of relevant and reliable evidence, subject to specific rules of exclusion. The Rules are designed to limit the trial judge’s discretion in certain areas.

Error occurs when a judge excludes competent evidence without good reason.

Two barriers to admissibility in the FRE:

1. Rules that reflect social and political judgments. Certain 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 – Constitutional guarantees, privilege, etc.

2.Rule 403 – a concern about the way trials are conducted and the way juries should and should not reach decisions.

Raising and Meeting Objections

FRE 103 has two basic requirements for evidentiary objections:

1. Lawyer opposing the admission of evidence has a clear obligation: timely objection(as soon as the ground for it becomes known or should have become known) or motion to strike stating the specific ground of the objection. When a proper question elicits an improper answer, the objection must come when the answer is given, accompanied by a motion to strike – if no motion to strike is made, error is waived.

2.Objection must state a specific legal basis – specific ground of objection means correct ground of objection.

Objections in the presence of the jury should not be speeches or mini-arguments. State the legal basis, the number of the rule offended is both appropriate and desirable.

FRE 103 discourages general objections. Outside of Alabama, general objections when sustained in the trial court will be upheld on appeal if there is any proper ground for the objection. When evidence is excluded by a ruling sustaining a general objection, the proponent should ask the judge to require counsel to state his reasons.

Some reviewing courts will say the objection was apparent from the context – still good practice to state the objection and legal reason and get a statement of reasons from opposing counsel.

Objecting lawyer who fears waiver can ask for a continuing objection to the evidence, reminding the judge about it every once in a while out of the presence of the jury.

If the trial judge makes a definitive ruling on the record, the party need not renew the objection or offer of proof to preserve a claim of error. But when the ruling is reserved, or indicated the ruling is preliminary or conditional, the objection or offer of proof must be renewed at the appropriate time.

Renewal of an objection is required to preserve error if the judge changes an initial ruling, definitive or not, or if the other party violates the terms of the ruling.

Well established that the party introducing evidence cannot complain on appeal that the evidence was erroneously admitted – serious dilemma for trial lawyers who try and take the sting out of bad evidence by offering it themselves.

When the judge’s ruling excludes evidence, the offering lawyer must be sure that the substance of what he was offering is clear in the record. Two ways:

1. Making an offer of proof;

2.By being confident that the substance of the evidence was apparent from the context of the questions.

Offer of Proof

An offer of proof is simply the way lawyers show a trial judge (as well as an appellate court) what the excluded evidence, either witness testimony or exhibits would have been. First purpose is to give the trial judge a chance to reconsider his ruling.

Can take various forms – not defined in the rule. If witness is available, safest course is to asked the proposed questions and get the answers out of the presence of the jury. FRE 103(b) authorizes the trial judge to get the question-and-answer form.

Another method is the offering lawyer makes a narrative statement of the proposed questions and expected answers. Can be oral or in writing. Can be in the form of a signed statement by the witness.

Making an offer of proof on cross-examination is more difficult since you are not sure what the expected answers are.

The offer of proof, like an objection, should be timely and specific – made when the question arises. If the judge does not rule immediately, be sure to get a ruling later.

Summary of Objection Procedure

1. Objection must be timely (when grounds become apparent).

2.Specific statement of the legal grounds.

3.Statement of the correct legal grounds.

4.No speeches, no arguments.

5. If more than a simple statement is required, asked to speak outside presence of jury.

6.Make sure the record reflects your objection. Do not let other side proceed until judge has ruled. Ask if necessary.

7. If judge reserves ruling or admitted subject to objection, renew objection and ask for ruling.

8.If necessary, ask for a continuing objection.

9.When only a part of the offered evidence is objectionable, objection must be directed specifically towards that part.

10. When grounds for objection does not become apparent until after the jury has heard the evidence, be sure to make a prompt objection and move to strike the evidence and disregard evidence.

11. When other side’s objection to your evidence is sustained, be sure to make a proper offer of proof.

Sources of Judicial Procedure

FRE 103, 104, and 105 map the evidentiary territory for lawyers and judges.

Rules express a clear preference for resolving evidentiary issues out of the presence of the jury, at a time when the judge may reflect and the lawyers have a reasonable opportunity to present their positions.

Goals of these three rules suit the purposes of competent judges and lawyers: trial efficiency, the admission of relevant and reliable evidence, considered rulings, and rational decisions by the trier of fact, uncluttered by lengthy interruptions and admonitions to jurors to disregard what they have heard or seen.

FRE, Rule 103. Rulings on Evidence

(ARE 103 is slightly different)

(a) Effec

(d) Testimony by accused.

The accused does not, by testifying upon a preliminary matter, become subject to cross-examination 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.

Substantial ARE differences:

ARE 104(c) and 104(d) are substantially different in form.

(c) Hearing or presence of jury.

In criminal cases, hearings on the admissibility of confessions or evidence alleged to have been obtained unlawfully shall be conducted out of the hearing and presence of the jury. Hearings on other preliminary matters shall be conducted out of the hearing and presence of the jury when the interests of justice require.

(d) Testimony by accused.

The accused does not, by testifying at a preliminary hearing on the admissibility of a confession, become subject to cross-examination as to other issues in the case.

FRE 104 draws the line between the functions of judge and jury. Judge admits or not; jury weighs.

FRE 104 is a means of ensuring that the jury receives relevant and reliable evidence that does not run counter to some established public or legal policy.

Aims to avoid jury curative instructions.

FRE 104 assumes lawyers will raise evidentiary issues at the appropriate time – as early in the proceedings as possible. Motion in limine, made at any time before or during trial in writing or orally – written remains better practice.

FRE 104 expresses a strong preference that preliminary questions of evidence be determined outside the juries presence.

Civil practice – preliminary evidentiary questions can be raised pursuant to Rule 16 of the FRCP.

FRE 104 has two principal sections. Section (a) governs the procedure used to determine competency of offered evidence; section (b) governs procedure used to determine conditional relevance of offered evidence.

FRE 104(a) applies when the admissibility of evidence depends on a preliminary factual finding by the trial judge. Determination is made by the judge before or during trial. Judge alone determines whether based on preliminary facts are sufficient concerning the “qualification of a person to be a witness, the existence of privilege or the admissibility of evidence.”

104(a) issues involve witness competency, factual foundations for testimony and authenticity of exhibits.

Under 104(a), judge must consider evidence on both sides of the question of whether the preliminary facts have been established by a preponderance of the evidence. Opponent has a right to voir dire the foundation witness. Opponent has the right to offer contrary evidence to demonstrate the inadmissibility of the offered evidence.

[1] Not in ARE.

[2] ARE: “affecting substantial rights in a case in which the death penalty has been imposed, even if they were not brought to the attention of the court.”

[3] ARE: “the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition or may admit that evidence subject to the introduction of of evidence sufficient to support such a finding.”