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University of Alabama School of Law
Emens, Steve

I.     Foundations in Evidence
FRE 102. Purpose
These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination:
·         Administer every proceeding fairly;
·         Eliminate unjustifiable expense and delay; and
·         Promote the development of evidence law,
FRE 103. Rulings on Evidence
a)      Preserving a Claim of Error. A party may claim error in ruling to admit or exclude evidence only if the error affects a substantial right of the party and:
1)      If the ruling admits evidence, a party, on the record:
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)      Not Needing to Renew an Objection or 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
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 to the jury by any means.
e)      Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.
v  Alabama does not have the plain error doctrine except in capital cases. Civil cases and plain old criminal cases do not have plain error escape valves.
      Notes on FRE 103
·         It puts the responsibility on the lawyer to tell the judge what is wrong.
·         It is not the responsibility of the judge to call the objections.
·         You have to tell them timely, and you have to tell them specific grounds for objection.
FRE 104. Preliminary Questions
a)      In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege (See Bourjaily)
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
c)      Conducting a Hearing So that the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:
1)      The hearing involves the admissibility of a confession;
2)      A defendant in a criminal case is a witness and so requests; or
3)      Justice so requires
d)     Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.
e)      Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.
Notes on FRE 104
·         Any preliminary questions are decided at a preliminary hearing, such as whether:
o   Witness is qualified
o   Privileges exist
o   Admissibility of other evidence
·         Judges can admit evidence conditionally.
·         You don’t have to admit the additional evidence immediately, or even in order at trial, for the other (conditional) evidence to get in.
·         So long as all the evidence is supported at the end of the trial to show relevance, it is ok
·         In determining admissibility of evidence, the judge is not bound by the rules of evidence.
o   Reasons
§  Efficiency – the judge wants to make decisions on the fly
§  Thoroughness – we want a free flow of information.
o   Distinction
§  In a bench trial, the judge may still hear inadmissible evidence to determine its admissibility
§  We trust the judge to be able to look past the evidence that he is not supposed to view in granting judgment.
FRE 105. Limiting Instructions
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.
Notes on FRE 105
·         Allows the judge to specify the specific purpose of a piece of evidence

natural causes. Held, extrinsic evidence to prove the man died of natural causes was relevant to the defendant’s belief.
FRE 402. Relevant Evidence Generally Admissible
Relevant evidence is admissible unless any of the following provides otherwise
·         The United States Constitution
·         A federal statute
·         These rules, or
·         Other rules prescribed by the Supreme Court
Irrelevant evidence is not admissible
FRE 403. Exclusion of Relevant Evidence (prejudice, waste of time, confusion, etc.)
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
·         Unfair prejudice
·         Confusing the issues
·         Misleading the jury
·         Undue delay
·         Wasting time; or
·         Needlessly presenting cumulative evidence
o   Acronym: UCMUWN
      Notes on FRE 403
·         If the prejudice substantially outweighs the relevance, then it will be excluded.
·         FRE 403 is biased in favor of admission.
·         FRE 105 often travels with FRE 403.
·         Courts are most popularly overruled for character evidence
·         However, for the most part, 403 rulings are rarely, if ever, reversed.
·         Three steps
1.      Judge determines probative value of offered evidence
2.      Judge identifies 403 dangers
3.      Judge determines if (2) substantially outweighs (1).
·         Four Common 403 Issues
1.      Probability Evidence (See People v. Collins)
a.       Can use statistics to verify stereotypes
b.      However, cannot use statistics to prove that someone did something
2.      Excessive violence (boy shoots his head off with uzi)
a.       Parties can stipulate to 403 issues so long as injustice may be avoided (i.e. 12 orangutans).
b.      The court may limit its admissibility so the jury won’t “lose its lunch”
3.      Similar events and occurrences (there’s a first time for everything)