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University of Alabama School of Law
Harwood, Robert Bernard

A. Roles of judge and jury
1. Judge has enormous discretion on evidentiary issues – makes admissibility determinations
2. Either can be fact finder, but jury will typically be fact finder in our cases.
3. Rule 102 – Purpose and Construction
a. To promote justice and eliminate unjustifiable expense and delay
4. Rule 103 – Rulings on Evidence
a. (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. (1) Objection. – Where ruling admits evidence à responsibility of the lawyer
2. (2) Offer of proof. – Where ruling excludes evidence
3. Party need not renew objection or offer of proof once definitive ruling is made.
5. Rule 104 – Preliminary Questions
a. (a) Judge makes determinations on:
1. Qualifications of witness
i. Competence of lay witnesses
ii. Qualifications of expert witnesses
2. Existence of a privilege
3. Admissibility of evidence
4. Judge is allowed to use evidence that is otherwise hearsay in making this determination
b. (b) Relevancy Conditioned on Fact
1. “Connecting Up” – If there is something that is going to be relevant given the testimony of another witness or introduction of other evidence, the judge can let it in conditional on the 2nd testimony or evidence.
2. Conditionally relevant evidence will be admitted if the judge could find by a preponderance of the evidence that the fact upon which the evidence depends exists.
c. Summary of 104
1. (a) requires the application of a legal standard and is exclusively the Judge’s decision
2. (b) requires a factual determination and the Judge decides if a jury could find by a preponderance of evidence that the offered evidence is true
d. Effec

ssible; Irrelevant Evidence Inadmissible
3. Rule 403 – Exclusion of Relevant Evidence b/c of Prejudice, Confusion, Waste of Time
a. Application
1. Three Step Process
i. (1) Judge determines probative value
ii. (2) Judge identifies dangers (and effectiveness of limiting instructions) and considerations listed in 403
a. Dangers (Relate to irrationality of jury)
1. Unfair prejudice,
2. Confusion of the issues,
3. Misleading the jury
b. Considerations (Relate to Policy Reasons)
1. Undue Delay,
2. Waste of Time,
3. Needless presentation of cumulative evidence.
i. Keep in mind that you don’t get unlimited time to present your evidence.
(3) Judge determines if 1 is substantially outweighed by 2