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University of Alabama School of Law
Emens, Steve

I.        Evidence defined: proof of a cause of action or defense offered at trial. Circumstantial evidence requires an inference to be drawn from the evidence in order for it to be relevant. Direct evidence requires no inference to be relevant.
A.    Real: physical, tangible evidence
B.     Representative: represents another thing (chart, diagram, photo)
C.    Testimonial: “viva voce” witness who testifies by voice.
II.     Basic Trial Roles:
A.    Judge: the judge is the “gate keeper” who deals with the question of admissibility. There are preliminary questions of facts pertaining to rulings on admissibility (fact specific situations that are determined on a case-by-case basis). If the judge determines that a “reasonable juror” could find that the predicate fact exists by preponderance, then the fact is given to the jury to find (or not find).
                                                            1.      The judge is given GREAT discretion in applying the rules
                                                            2.      There are few hard rules, and most are subject to various interpretations.
B.     Jury: determines weight of facts and has ability to “nullify” evidence by returning a converse ruling. The rules can instruct the jury to accept certain facts as true (judicial notice) or can instruct that jury that there is the creation of a presumption (that shifts the burden of proof).
C.    Attorney: bifurcated role as advocate for client while creating record objections for appeal:
                                                            1.      must set forth specific objections if improper evidence is admitted
                                                            2.      must make a proffer of proof of proper evidence is excluded stating for the record why it should have been admitted
                                                            3.      Plain errors can always be appealed even if not preserved on record (don’t trust)
III.   Rule 103: Rulings on Evidence
A.    Determines how the rules of evidence will be implemented in the flow of the trail
B.     Objections and proffers must be made at the moment of occurrence (timely objection). An objection that is not made at the time of the occurrence or one that is not specific will be sustained and waived.
                                                            1.      Must be TIMELY (otherwise waived)
                                                            2.      Must be SPECIFIC (have to let judge know what problem is, otherwise there is NO way that it will be overturned on appeal—court will look for ANY reason to uphold judge’s ruling if there are no specifics.
C.     Proffer: put in the record what would have been included if the evidence had not been excluded (allows consideration of evidence on appeal—limited to record). If the proffer is not allowed—that is a reversible error. Jury will be dismissed. Make sure gets into record
IV. Rule 104: Preliminary Questions
A.    Preponderance Standard: court has determined that preliminary questions of admissibility (even in a criminal case) are determined based on the preponderance standard.
                                                            1.      Huddleston: court held that preponderance standard NOT BARD applied to evidentiary determinations (case of stolen merchandise, past trial used to show knowledge of stolen nature of goods)
                                                            2.      Bourjaily v. US: (cocaine conspiracy) Evidentiary standards are unrelated to the ultimate burden of proof of a substantive issue (criminal or civil)
                                                            3.      Preponderance standard ensures that before admitting t

s not brought to the attention of the court. This is the “plain error” rule
RULE 104: Preliminary Questions
(a) Questions of admissibility generally: Preliminary questions concerning the qualifications of a person to be a witness, existence of a privilege, or the admissibility of evidence shall be determined by the court subject to the provisions of (b). The court is not bound by the rules of evidence (accept privilege) when making preliminary determinations concerning character or a witness or the admissibility of evidence.
The judge can even take into account inadmissible evidence (hearsay) in making admissibility determinations. 
Privilege evidence CANNOT ever be considered (excluded from both trial and the judge’s determinations)
(b) Relevancy conditioned on a fact: when the relevancy of the evidence depends on a certain fact, the court shall admit the evidence with the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of jury: hearings on the admissibility of confession shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when justice requires or when the accused is a witness and so requests
(d) Testimony of the accused: the accused does NOT, by testifying on a preliminary matter, become subject to cross examination on other issues
(e) Weight and credibility: this rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.