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Evidence
University of Alabama School of Law
Harwood, Robert Bernard

RELEVANCY: FRE & ARE 102-104, 401-403, 105

FRE & ARE 102à Purpose and Construction.
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

FRE & ARE 103à 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.
· FRE adds last sentence
· abuse of discretion

FRE & ARE 104 à Preliminary Questions. *the other act
(a) Preliminary questions concerning the qualification of a person to be a witness, the existence of privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of section (b). In making its determination is not bound by the rules of evidence EXCEPT those with respect to privileges.
à Judge determines these preliminary questions:
(1) qualifications to be a witness (competence of lay witnesses, qualifications of expert witnesses
(2) existence of a privilege
(3) admissibility of evidence.
à Judge must consider 104(b) when making determinations
(b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon the introduction of evidence sufficient to support a finding of the fulfillment of the condition or may admit that evidence subject to the introduction of evidence sufficient to support such a finding.
· Can the jury find by a preponderance or evidence that the act occurred.

· requirements:

other act must be relevant to issue, other than character [Rule 401 and 404(b)] sufficient proof of other act [Huddleston, 104(b): proof by a preponderance] apply a 403 balancing test [Old Chief] proper notice
upon request the Court shall instruct the jury that the prior act is to be considered ONLY for the proper purpose for which it was admitted [Rule 105]

FRE & ARE 104(b)
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition or ma

than its admissibility… it is practically impossible and NOT at all accurate to attempt to state a fixed rule or standard with particular reference to the time element… It rests largely in the enlightened discretion of the court whether or NOT such proof will be allowed.

FRE & ARE 403à Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.
· biased in favor of admission

· application: three steps

judge determines probative value of offered evidence
judge identifies ‘dangers’ [and effectiveness of limiting instructions] and ‘considerations’ listed in 403
judge determines if 1 is substantially outweighed by 2

· dangers:

unfair prejudice
confusion of the issues
misleading the jury

· common issues:

probability evidence
excessive violence evidence
similar events and occurrences
novel scientific evidence