Select Page

University of Alabama School of Law
Pardo, Michael S.

Evidence – Pardo – University of Alabama – Spring 2010


A. Rule 101. Scope.

The rules govern proceedings in federal criminal and civil proceedings. Note that there are some rules that distinguish between criminal and civil proceedings.

B. Rule 102. Purpose and Construction.

The key purpose of the rules is “fairness, truth, and justly determined.”

C. Rule 611. Mode and Order

(a) Control by Court = Judge has a lot of control over the behavior and and decorum in the trial (make things run effectively, protect witnesses from harassment) but there is a lot of tradition that governs the exact order of things (unwritten, but followed)

(b) Scope of Cross-Examination

1. Limited to subject matter of direct and credibility of the witness. Judge may authorize further inquiry on his discretion. (*ALABAMA doesn’t limit cross to direct subject!)

(c) Leading questions

1. Non-leading on direct

– Open-ended questions: goal is to let the witness tell the story

– Ex: In what classroom does Evidence class meet?

2. Leading questions on cross

– Questions suggest, imply, somehow contain the answer

– Ex: Evidence class meets in Room 187, doesn’t it?

– Generally trying to get witness to admit certain facts are true or false (somehow helpful to your case)

D. Rule 601. General Rule of Competency

Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.

1) Got rid of strange common law rules disallowing people as witnesses (children, aethiests, etc.)

2) Rule 605 = Judge of the trial cannot be a witness in the trial

3) Rule 606 = Jurors in the trial cannot be witnesses in the trial

4) Rule 603 = Witnesses must take the oath

5) Rule 610 = Religious Beliefs or Opinions

“Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced.”

E. Objections

1) Motion in Limine = Either party can make this before trial to admit or exclude certain evidence

a) Helpful for planning purposes to know what evidence is available for you to use

b) Can be difficult to object to such evidence during the speed of the trial; better and more thought out arguments before the trial

2) Burden is on the opposing party to object

a) Objections to the form of the question

b) Objections to exclude evidence

c) No magic words, just make it clear and quick to the judge what you object to and why


Rule 103. Rulings on Evidence

(a) Effect of erroneous ruling.

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and

(1) Objection. – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. – In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling

The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury

In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error

Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

a) You have to have objected against the evidence or argument for the correct reasons.

b) You have to have created a record for appeal (usually the court transcript) that include the evidence and the reason why it should have been excluded OR the offer of proof as to why excluded evidence should have been admitted.

c) Standard of Appeal:

1. Must show that the judge abused his/her discretion = unreasonable in some way

– Best way – show that the judge applied the wrong law

2. Must ALSO show that the error affected a “substantial right” of the party, that it affected the outcome, that it was not “harmless”

d) Plain Error = if it’s so bad, the appellate court can recognize error even if no one objected at trial




1. You cannot determine whether evidence is relevant without knowing what it is intended to prove. The substantive theory of the case will determine whether evidence is relevant.


Evidence having any tendency to make the existence any fact that is of consequence to determination of the action more or less probable than it would be without the evidence.

1. “Any tendency” – to be relevant evidence does not have to prove the case.

2. “Of consequence” (materiality) – to be material the evidence must be offered to prove a properly provable issue in the case.

3. Questions to ask in determining relevancy under FRE 401:

a) What is the evidence?

b) What fact is the evidence seeking to prove?

c) Does is tend to make the fact “more probable or less probable than it would be without the evidence”?

4. Rule 401 has a very low threshold and favors admissibility; as long as there is a nexus between the inferences, the evidence is relevant.

a) The more inferences that you have to make, the weaker the link between the evidence and an issue, the less probative the value, and thus, the less likely that it is to be admitted (but it still may).

i. Evidence with contradictory inferences is not irrelevant as long as one possible inference is relevant.

b) Once the threshold of relevance is passed, the weight of the evidence becomes the issue (Rule 403) and not its admissibility.

Direct vs. Circumstantial Evidence

Direct evidence: Evidence, which accepted as genuine or believed to be true, necessarily establishes the point for which it is offered. Direct evidence is usually accepted into evidence without any problems.

Circumstantial evidence: Evidence which, even if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation seems as probable or more so. Circumstantial evidence is generally more difficult to get into evidence and requires an evidentiary hypothesis.

Rule 402 – All relevant evidence is admissible and all non-relevant evid

as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.

1. 104(b) standard: Does the judge think a reasonable jury will find it more likely authentic than not?

2. Specific connection to the case determines what you have to show to be admissible.

Ex: Knife = Why is it important? It’s the murder weapon. Then, for it to be admissible, you must show evidence sufficient to support a finding that the knife was the murder weapon. – Officer, what is this object. It’s the knife I found at the scene. What is the substance on the blade? It is the victim’s blood.

(b) Illustrations. Ways to get evidence admitted…

By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule:

(1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be.

– Must have personal knowledge of what they’re testifying to.

– Can be the subscribing witness or another witness with knowledge of the document/item

(2) Nonexpert opinion on handwriting. Nonexpert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of the litigation.

– Such evidence may be given by any person familiar with the handwriting of the supposed writer, or by expert testimony, or even by having the trier of fact compare it with some admittedly genuine document.

(3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated.

(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

a. Authentication by content – 901(b)(4)

i. A writing may also be authenticated by a showing that it contains information that is unlikely to have been known to anyone other than the person who is claimed to have written it, or is written in a manner unique to that person.

ii. A writing may be authenticated by evidence that it was received in response to a communication sent to the claim author.

iii. Likewise, when a series of correspondence between two persons is established, and a letter is shown to fit in as a connecting link between other letters in that series, that is sufficient to authenticate the letter as being part of that series.

b. Style or manner of expression – 901(b)(4)

i. Identification of the writer’s style or manner of expression (i.e. the use of certain words, phrases, abbreviations, or idioms that are shown to have been unique to the person who is claimed to have written it.
(5) Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time