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University of Alabama School of Law
Pardo, Michael S.



Spring 2015

Objections and Appeals

Courts have an obligation to rule on the specific objections made. Objections cannot be generalized, it must be specified with a reason.

In order to object, one must:

1. Object with reasons; [otherwise waived the right to appeal]

2. Have an adequate record for the appellate to review; [including clear reasons to object, either in the transcript or pre-trial testimony]

3. Have an unreasonable error; [since there is a lot of deference to the trial court judge]

4. And the error must have affected the outcome of the trial, and matters to the resolution of the case.

Objections and Preservation of Error for Appeal: FRE 103

When evidence is excluded, losing advocates should “perfect the record” or “preserve the issue for appeal.” This is making sure that the substance of the evidence, and the theory of its admissibility, are apparent from the recording order to preserve the issue for appeal.

Rule 401. Test for Relevant Evidence

Relevance. Evidence is relevant if: [1] it has any tendency to make a fact more or less probable than it would be without the evidence; and [2] the fact is a consequence in determining the action.

• Any. “Any tendency” is considered a minimal test of logically probable inferences from the offered item to a fact of consequence.

• Reasonable Generalizations. Relevancy requires reasonable generalizations, which can be the subject of proof. Generalizations may include well-founded scientific opinions, widely shared conclusions, unproven or unprovable beliefs, or even biases or prejudices. There are two limits implicit in the “reasonable juror” test: [1] Necessary generalizations cannot be known to the judge to be false, and [2] They cannot be pure speculation.

○ Generalizations based on stereotypes of gender, race, ethnicity, religion, age, and sexual preference often fall into the “false” or “guesswork” categories of unacceptability.

• Materiality. Generally, a proposition of fact “of consequence”, thus material, in a legal dispute if it matters to the legal resolution of that dispute.

○ [Addresses elements which must be proven]

○ Knapp. In Knapp, testimony that the deceased died from other causes -> less likely to hear the story -> less likely he heard the rumor, because people generally tell the truth -> did not act in reasonable belief of fear of the marshal -> not acting in self-defense.

○ Stever. In Stever, Evidence that DTOs plant marijuana on farms and they are secretive, thus not likely to involve Caucasians -> supports an alternative theory of what happened -> trespass without permission -> grew without knowledge; not too speculative.

Rule 402. Rule 402 provides that relevant evidence is admissible unless otherwise provided by statute, constitution, or rule.

• Background Information. The Advisory Committee Note to FRE 401 explicitly approves the admission of background information as contextual evidence, despite its lack of immediate consequence to the case. Reasonable background information about the witness who is testifying is always admissible because it allows the jury to make better informed judgments about the credibility of a witness and the reliability of that witness’ observations, although the information may not have any obvious connection to any fact of consequence in the case.

Rule 403

Rule 403. FRE 403 allows the court to exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: [1] unfair prejudice, [2] confusing the issues, [3] misleading the jury, [4] undue delay, [5] wasting time, or [6] needlessly presenting cumulating evidence.

Probative Value. Probative value measures the persuasive effect that the item of evidence will likely have on the jury’s thinking about the fact of consequence that is offered to prove.

• [Probative value measures the strength of the effect, relevance, on the probabilities, even if in general terms like “highly”, “somewhat”, or “minimally” probative.]

1. Strength of the Underlying Inferences. The primary measure of probative value is the strength of the inferences that connect the evidentiary fact to the fact of consequence and then to the essential element of the case. This strength depends on the rough probabilities of the generalizations underlying those inferences.

2. Certainty. Certainty of the evidentiary fact can affect the probative value. Judges may lower their estimate of probative value when the evidentiary fact is less certain. However, courts do not count the witness credibility when estimating probative value.

3. Need. Need for the evidence may enhance the probative value. The centrality of the point to be proved with the proffered evidence, the degree to which this point is disputed, and the strength of the evidence in proving the point can demonstrate a party’s need for evidence. The need for a particular item of evidence because there is no alternative means of proving a fact of consequence can also affect the probative value.

Rule 403 Dangers. The second step in resolving a Rule 403 objection is to estimate the danger that the item of evidence.

1. Unfair Prejudice. Unfair prejudice refers to danger that evidence might suggest an improper basis upon which the jury could decide the case.

a. Illogical. Evidence may trigger a response that has nothing to do with its logical connection to a fact of consequence, or

b. Rule of Law. Evidence could be used by the jury in a manner that violates a rule of evidence law.

2. Confusion of the

nowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.

• Evidence sufficient to support a finding requires that a jury could reasonable find that it is more probable than not that the witness has personal knowledge.

• Rule 901: Authenticating Evidence

Authenticating Evidence. Rule 901 (a) provides that to satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.

• Evidence sufficient to support a finding requires that a jury could reasonable find that it is more probable than not that the witness has personal knowledge.

• Rule 901 (b) provides examples of evidence that supports a finding.

i. Testimony of a witness with knowledge, nonexpert opinion about handwriting, comparison by an expert witness or the trier of fact, distinctive characteristics and the like, opinion about a voice, evidence about a process or system, methods provided by a Statute or Rule. [P182]

ii. Detailed: Phone conversations, public records, ancient documents or data compilations;

• “Identification” usually refers to who authored a writing, what is pictured in a photograph, or whose voice was heard speaking;

• “Authentication” usually refers to the genuineness of what the exhibit is in connection to the specific facts of the case.

• Real evidence refers to tangible items that played some role in the litigated event and from which the jury may draw inferences. The foundation for real evidence typically consists of a witness who can identify the item’s physical involvement in the case.

i. Identification through a readily identifiable characteristic

ii. Identification through chain of custody — for generic and no readily identifiable characteristic

iii. Unchanged condition established through chain of custody

iv. A complete chain of custody is not always required under FRE 901(a)

• Recordings. Recordings are a cross between eyewitness testimony and demonstrative evidence. A “percipient witness” can authenticate a recording.

○ A recording with no human witness can serve as a “silent witness”