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University of Alabama School of Law
Emens, Steve

Emens Evidence Spring 2015
I.     FRE & ARE 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.
II.     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…”] III.     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)
IV.     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.
V.     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] VI.     FRE & ARE 401 Test for Relevant Evidence: Evidence is relevant if
(a).    It has any tendency to make a fact more or less probable than it would be without the evidence; and
(b).    The fact is of consequence in determining the action.
VII.     FRE 402 General Admissibility of Relevant Evidence: Relevant evidence is admissible unless [US Constitution, federal statute, FRE, other rules specified by the Supreme Court] s

dmitted under Rules 607, 608, and 609 [and 616].
(b).    Crimes or Other Acts
(1)      Prohibited Uses: evidence of a crime or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.
(2)      Permitted Uses; Notice: [This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:
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
[ARE 404(b) (1) and (2) aren’t separated. Just 404(b)]  
X.     FRE & ARE 405 Methods of Proving Character
(a).    By Reputation or Opinion.  When evidence of a person’s character or character trait is admissible, except under Rule 404(a)(1), it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion.  On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b).    By Specific Instances of Conduct.  When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.