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University of Baltimore School of Law
Gilman, Michele E.

Gilman, Fall 2012 Evidence Outline

Process of Proof

Evidence is defined as testimony, writings, material objects or other things presented to the senses that are offered to prove the existence or nonexistence of a fact

Rules of evidence dictate what is presented to the fact finder

Comes from two sources: witnesses, real evidence (writings, other tangible items)

Witness= natural person who testifies in court

Facts can sometimes be proven without resort to evidence: assume facts that are well known & indisputable (judicial notice), assume existence of one fact based on different fact or set of facts (presumptions)

Preponderance of the Evidence standard:

More likely than not, probability of 51% or more

Quantity doesn’t matter, just how persuasive

Clear and Convincing Evidence standard:

Intermediate standard, requires more than preponderance of the evidence but less than beyond a reasonable doubt

Used when the stakes are greater than the typical civil case

Beyond a Reasonable Doubt standard:

Most demanding standard, used almost exclusively in criminal cases

FRE 103: Objections, Offers of Proof, Error, Out of Court Admissibility Hearings

Objections and motions to strike are used to contest the admissibility of evidence, while offers of proof are used to contest the exclusion of evidence

Grounds for Appellate Review

Litigant’s responsibility to object, preserve record

Shield the jury from lawyers’ debate with judge about evidentiary issues, make sure jury remains untainted about evidence that could be excluded

Narrow appellate review, win/lose at trial, will only reverse if substantial rights of parties were affected (judges make lots of mistakes, but most of the time it doesn’t matter, reversals are unusual)


If judge agrees with objection, they sustain it…objector is happy, person putting on evidence (proponent) is sad

Disagrees, they overrule it…objector is sad, proponent is happy

Objection or motion to strike must be made to preserve a challenge to the admissibility of evidence on appeal

Must be timely (more or less immediately) and must specify grounds, indicate which portion of the evidence is objectionable

Offers of Proof:

When evidence has been excluded, counsel must make an offer of proof so appellate court can decide if it was improperly excluded

Counsel must state theory of admissibility

Should be made out of jury’s ear shot

Judge can decide when an offer of proof can me made but may not prevent a party from making one

Failure to object or make offer of proof, waive ability to appeal

Making the record: counsel’s responsibility to ensure that all objections and offers of proof are recorded

MD: no requirement to state ground for objection

Did it affect substantial right: did error affect outcome of the case?

Three Categories of Error

1) Harmless error: error raised in trial court that does not affect substantial right

2) Reversible (prejudicial): raised in trial court and affect substantial rights

3) Plain error: error not raised below but affects substantial rights

Plain Error Rule:

Appellate court may consider an evidentiary error despite a party’s failure to make an objection, motion to strike, or offer of proof at trial

Safeguards right to a fair trial, some errors are too significant to tolerate

Appellate review: Questions concerning the interpretation of an evidence rule rather than its application (abuse of discretion) in a particular case are review de novo

FRE 601: Witness Competency

All witnesses are competent unless rules provide otherwise

Early common law disqualified witnesses with mental defects, substances abuse problems, felons, people who didn’t follow certain religious beliefs, children

Competent does not mean credible, can attack on old grounds

FRE 603: Oath or Affirmation Requirement

Requires witness to swear or affirm to the truthfulness of their testimony prior to testifying

Oath= God

Affirmation= no God

Only needs to stimulate truthfulness

FRE 605: Judge’s Competency as a Witness

Presiding judge can’t testify as a witness at the trial, party doesn’t need to object to preserve issue

Only incompetent witness for case that they are presiding, not in other cases

Likely to be seen as TOO credible, great authority, likely to have more influence that it should, fear of attorney reputation cross-examining judge, important testimony to give means not impartial

Should only arise in exceptional circumstances, almost always excluded themselves if they know they could be a witness in a case

Once disqualified, can be a witness if different judge presiding

FRE 606: Juror’s Competency as Witness

Juror can’t testify as a witness in trial they are servi

sion, just need to have had an opportunity of personal observation, affect weight not admissibility of testimony (

Witness typically supplies proof of firsthand knowledge, can but doesn’t have to be witness’ own testimony but can also be inferred from the testimony

Trial judge doesn’t decide whether or not witness has personal knowledge by preponderance of the evidence (usual standard), but only whether sufficient evidence to support a finding of firsthand knowledge has been introduced (prima facie standard)

If sufficient evidence has been adduced, witness may testify and jury decides whether witness has firsthand knowledge

Can overlap with hearsay rule: witness has no personal knowledge if repeating out of court statement by a declarant

Form of testimony determines type of objection:

If witness indicates that the basis of the testimony is declarant’s statement, hearsay objection

If it appears that the witness was not even present during the event, lack of personal knowledge objection

But witness can have personal knowledge of an admissible hearsay statement being made

FRE 901: Authenticating or Identifying Evidence

“Laying the foundation” for admissibility

Offering party has burden of proving that an item of evidence is genuine, that it is what the proponent says it is

901(b) examples of traditional methods, different methods (or a combination of methods) can be used:

Witness with knowledge (application of firsthand knowledge rule)

Nonexpert opinion on handwriting (must be sufficiently familiar with the handwriting, but can’t be for purposes of litigation)

Comparison by trier of expert

Distinctive characteristics

Public records and reports (must be retrieved from the correct place of custody

Ancient documents (appearance is not suspicious, found in place natural for this document, and 20 years or older)

Process or system

Statute or rule methods