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University of Baltimore School of Law
McLain, Lynn

McLain – Evidence Fall 2011

American Trial System

Adversary System: driven by self-interest, so parties will produce arguments which will ensure a fair decision by the trier of fact

· Order at trial:

1. P’s case in chief

2. D’s case in defense

3. P’s case in rebuttal (only new stuff that D addressed)

4. D’s case in rejoinder

· Questions of fact are for the jury

· Questions of law are for the judge

FRE 101 Scope

These rules apply to proceedings in the US courts. Specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.

FRE 1101 Applicability of the Rules

a. To Courts and Judges: These rules apply to proceedings before:

§ US district courts;

§ US bankruptcy and magistrate judges;

§ US courts of appeals;

§ The US Court of Federal Claims; and

§ The district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.

b. To Cases and Proceedings: These rules apply in:

§ Civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;

§ Criminal cases and proceedings; and

§ Contempt proceedings, except those in which the court may act summarily.

c. Rules on Privilege: The rules on privilege apply to all stages of a case or proceeding.

d. Exceptions: These rules — except for those on privilege — do not apply to the following:

1. The court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

2. Grand-jury proceedings; and

3. Miscellaneous proceedings such as:

Extradition or rendition;

Issuing an arrest warrant, criminal summons, or search warrant;

A preliminary examination in a criminal case;


Granting or revoking probation or supervised release; and

Considering whether to release on bail or otherwise.

· Why the exceptions in FRE 1101(d)(3)?: they are small claims that are usually without the benefit of counsel

FRE 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.

FRE 104 Preliminary Questions

a. In General: The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

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

c. Conducting a Hearing so that the Jury Cannot Hear it: The court must conduct any hearing on a preliminary question so that the jury cannot hear it if:

1. The hearing involves the admissibility of a confession;

2. A defendant in a criminal case is a witness and so requests; or

3. Justice so requires.

d. Cross-Examining a Defendant in a Criminal Case: By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

e. Evidence Relevant to Weight and Credibility: This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence.

· FRE 104(a): These are all questions for the judge

§ Foundation facts must be proved satisfactorily before evidence can be admitted into court

§ If preliminary facts are required by the rules of evidence (hearsay and privilege) this is determined by the judge

§ Judge decides by a preponderance of the evidence

· FRE 104(b): Conditional relevancy rule

§ Evidence must be sufficient to support a reasonable jury’s finding that the preliminary fact is true

§ Ex: piece of metal offered into evidence only allowed if proved that this is the metal coming from the industrial accident

FRE 106 Remainder of or Related Writings or Recorded Statements

If a party introduces all of 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.

· This is the modern rule of completeness

· Don’t want your opponent to introduce just some of the evidence, taking it out of context

· This added to the common law; originally, you had to introduce whatever was necessary

· With FRE 106, you can request that your opponent read into evidence the rest of the source

· Example: only offering part of a deposition so that it’s out of context

FRE 611 Mode and Order of Examining Witnesses and Presenting Evidence

a. Control by the Court; Purposes: The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

1. Make those procedures effective for determining the truth;

2. Avoid wasting time; and

3. Protect witnesses from harassment or undue embarrassment.

b. Scope of Cross-Examination: Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.

c. Leading Questions: Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:

1. On cross examination; and

2. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.

· FRE 611(b): cross is limited to subjects covered by direct and witness credibility

§ Why? You can inquire into other subjects when you put your own case on

· FRE 611(c): generally no leading questions are allowed during direct

§ It’s the examiner’s witness, so the idea is that the witness will presumably have helpful information

§ It is proper (for some time) if the witness is forgetful

§ May also be allowed when establishing preliminary uncontested facts

Cross Examination: 2 types

1. Limited

· Cross examiner may only touch on two areas

§ Substantive evidence that direct examiner covered

§ Impeachment of that particular witness

· This is what the MD and federal courts follow

2. Wide Open

· Cross examiner may only tough on two areas

§ Substantive evidence of any subject relevant to the case

§ Impeachment, including that of another witness’s credibility

· This is only available in a minority of jurisdictions

FRE 614 Court’s Calling or Examining a Witness

a. Calling: The court may call a witness on its own (sua sponte) or at a party’s request. Each party is entitled to cross-examine the witness.

b. Examining: The court may examine a witness regardless of who calls the witness.

c. Objections: A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present.


Admissible evidence must be relevant, either as:

1. Substantive evidence – relevant to an issue of the case

2. Impeachment or rehabilitation evidence- relevant to the credibility of the witness

FRE 401 Relevancy: must have a tendency to make a fact more or less probable than it would be without the evidence AND the fact must be of consequence in determining the action

· This doesn’t take much; low standard for admissibility

· If evidence is irrelevant, it doesn’t matter for purposes of the Rules

· Purpose of the Rules: define which relevant evidence is inadmissible

· Embraces 2 rules:

§ Common law relevance: relationship between the evidence offered and the fact sought to be established

§ Common law materiality: relationship between the fact sought to b

ng the witness’s testimony or to determining a fact in issue; and

c. Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702

FRE 704 Opinion on an Ultimate Issue

a. An opinion is not objectionable just because it embraces an ultimate issue

§ Question remains if the opinion is helpful to the trier of fact

§ Ultimate issue: a not yet decided point; one that would be sufficient to resolve the case

§ Example: ME’s testimony about the cause of death isn’t immediately inadmissible

Offer of Proof

· Dual showing a proponent must make when admissibility is challenged

· The offer of proof must include:

1. Description of the evidence sought to be introduced

2. Statement of facts proponent wishes to prove with this evidence

· Sometimes, part 2 is obvious

§ However it can’t hurt to “perfect” the record (this way, even if judge sustains the opponent’s objection, the issue is preserved for appeal

· The offer of proof is usually done at side bar or simply away from the jury

· The judge will only rule on what the offeror and the offeree state, so you must get it right

· FRE 103(a)(1) is for the person objecting to the admission of the evidence

· FRE 103(a)(2) is what you look to when your evidence was not admitted

· FRE 103(e) is the plain error doctrine and permits the appellate court to reverse the trial judgment if there was obvious error

FRE 103 Rulings on Evidence

a. Preserving a Claim of Error: A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

1. If the ruling admits evidence, a party, on the record:

Timely objects or moves to strike; and

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. Not Needing to Renew an Objection or 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.

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 to the jury by any means.

e. Taking Notice of Plain Error: A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

FRE 105 Limiting Evidence that is not Admissible Against Other Parties or for Other Purposes

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.