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University of Baltimore School of Law
Shapiro, Stephen J.

FALL 2013
August 20, 2013
TOPIC I: Introduction and Exclusion of Relevant Evidence
Class 1: Introduction
Textbook: Chap 2 pp. 6-12, Chap 4 pp. 32-39, Chap 5 pp. 40-53
Federal Rules of Evidence (FRE) 103, 105
FRE 103: Rulings on Evidence
1)      Preserving a claim of Error. A party may claim error in a ruling to admit or exclude only if the error affects a substantial right of the party and:
a)      If the ruling admits evidence, a party, on the record:
i)        Timely objects or moves to strike; and
ii)       States the specific ground, unless it was apparent from the context; or
b)      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.
2)      Not needing to renew an objection or offer of Proof. Once 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
3)      Court's statement about 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.
4)      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
5)      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 reserved.
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.
Types of Evidence
1)      Oral Testimony
a)      Fact Witnesses (eye witnesses)
b)      Expert Witnesses
c)       Character Witnesses
i)        Parties: individuals or organizations who oppose each other at trial (pro. & def./plan. & def.).
ii)       Victim: the entity against whom a crime was committed or who suffered damages in a civil case
2)      Real Evidence: any physical evidence that a party claims played a direct role in the controversy
a)      All must be authenticated
3)      Documents: any type of writing or recording of info (most are subcategory of real evidence)
4)      Demonstrative Evidence: evidence demonstrated by presenting concepts and facts to the jury via charts, tables, pics, etc.
5)      Stipulations: when both parties agree to a fact (usually minor facts) as true for the litigation
a)      does not mean that the fact is not one of consequence
6)      Judicial Notice: if a fact is indisputably true, the trial judge can take judicial notice of the fact
In the Courtroom
1)      Pretrial Motions: called “motions in limine” Latin for “at the threshold”, motions can be filed for suppression, discovery, summary judgment, etc., and serve three tactical advantages:
a)      Knowing ahead of time what evidence will be admitted and what will be excluded can help plan trial strategy
b)      Allows the attorneys to make more lengthy and sophisticated legal arguments
c)       Raising the issues in pretrial motions allows the avoidance of tactical mistakes in the court (and in front of the jury i.e. motion to suppress evidence is lost and now the jury is aware of it's importance)
2)      Jury Selection; commonly called “voir dire” by lawyers
3)      Opening Statements: made first by party that has burden of proof (prosecutor in criminal cases and plaintiff in civil cases)
4)      Plaintiff's/Prosecutor's Case-in-Chief: case is presented to fact-finder
5)      Defendant's Case-in-Chief or Case-in-Defense: case presented to the fact-finder after the prosecutor (and usually after request for summary judgment/judgment as a matter of law)
6)      Plaintiff's/Prosecutor's Case-in-Rebuttal: rebutting the case of opposing party
7)      Defendant's Case-in-Rebuttal or Case-in-Rejoinder: responding to plaintiff's/prosecutors rebuttal
8)      Further rebuttal and rejoinder: trail judge has discretion to allow more rounds, although more are usually unnecessary
9)      Closing statements by both parties
10)   Instructing the jury: handled by the judge
11)   Deliberation by the jury
12)   Verdict
Rule 103…
·         There are 2 ways to dispute evidence at trial
Ø  Objection is registered before the opponent introduces a potentially inadmissible item into evidence
Ø  Motion to strike occurs after disputed evidence has already entered the record
·         Objections must be timely, and there must be a specific ground (if there is more than one, raise them all)
Ø  Say at least one word to preserve for appeal i.e. “objection, hearsay”, even if objection is apparent from the context as allowed
·         When defending evidence, a party may offer proof,
·         Approaching the bench to discuss a point is possible
·         Judges can redact some elements of challenged evidence, admit others
·         An appellate judge can only reverse a trial decision for evidentiary error only if the error affected a “substantial right”
Ø  Basically, if there was a reasonable probability that, if the judge had made the correct ruling, the outcome of the case would have been different
Ø  Most missteps are harmless error
Ø  Reviews are done “de novo”
Rule 105…
·         A judge must restrict evidence to its proper scope and instruct the jury, if
Ø  The court admits evidence that is admissible against a party or for a purpose, but
Ø  not against another party or for another purpose, AND
Ø  on timely request from either party
August 22, 2013
Class 2: Relevance
Text: Chap 6 pp. 55-61, Chap 7 pp. 69-78, Chap 8 pp. 85-87
FRE 401, 402, 403, 104
FRE 401: Test for Relevant Evidence
1)      Evidence is relevant it:
a)      It has any tendency to make a fact more or less probable than it would be without the evidence; and
b)      the fact is of consequence in determining action
FRE 402: General Admissibility of Relevant Evidence
1)      Relevant evidence is admissible unless any of the following provides otherwise:
a)      the United States Constitution;
b)      a federal statute;
c)       these rules; or
d)      other rules prescribed by SCOTUS
2)      Irrelevant evidence is not admissible
FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, of Other Reasons
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence
FRE 104: Preliminary Questions
1)      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.
2)      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 of the condition that the proof must be introduced later.
3)      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:
a)      The hearing involves the admissibility of a confession;
b)      a defendant in a criminal case is a witness and so requests; or
c)       justice so requires
4)      Cross-Examining a Defendant is 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.
5)      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.
Chap 6: Rule 401 and Rule 402
·         An individual piece of evidence can be relevant even if it does not conclusively establish any fact on its own AND the fact must itself be related to the cause of action, that is, a fact that matters to some who is trying to decide the case.
Chap 7: Rule 403
·         Words like “may” in 403 show judicial discretion, which appellate judges rarely overrule, however, terms like “substantially outweighed” by the list of dangers still shows a tilt towards admissibility
·         Factors that frequently influence a judge's decision when applying 403:
Ø  The extent to which the evidence will arouse emotions or irrational prejudices among the jurors. Judges are more likely to exclude evidence that triggers strong emotional reactions.
Ø  The extent to which the jury might overvalue the evidence-that

ht to evidence of subsequent remedial measures
·         407 only shields measures taken after the injury to the plaintiff
·         A judge is most likely to admit the evidence when:
Ø  a witness makes a specific representation that conflicts with the subsequent remedial measure,
Ø  the witness makes an absolute declaration like “the product was perfectly safe,” or
Ø  the witness make the statement was personally involved in implementing the remedial measure
·         Something can be excluded via Rule 403 (unfair prejudice) even if it passes Rule 407… but only after a showing of how that prejudice substantially outweighs any probative value
Chap 10: Rule 408
·         Rule 408 exists, in part, to prevent juries from interpreting settlement offers as conclusive evidence of liability
·         doesn’t apply to:
Ø  things that are “claims”
Ø  things that are not “disputed”
Ø  proving/disproving the validity or amount of a claim
Ø  the purpose of impeachment
Chap 11: Rule 409
·         409 excludes evidence of offers to pay medical expenses, as well as payment of those expenses, when offered to prove liability
·         Offers very limited protection and only applies to paying medical bills or offering to pay medical bills
August 29, 2013
TOPIC II: Examination and Impeachment of Witnesses
Class 4: Examination of Witnesses
Text: Chap 14 pp. 157-160 pp. 165-167, Chap 15 pp. 174-185, Chap 16 pp. 195-200
FRE 601-606, 611, 612
FRE 601: Competency to Testify in General
Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
FRE 602: Need for Personal Knowledge
A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703.
FRE 603: Oath or Affirmation to Testify Truthfully
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.
FRE 604: Interpreter
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
FRE 605: Judge’s Competency as a Witness
The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.
FRE 606: Juror’s Competency as a Witness
a)      At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
b)      During an Inquiry into the Validity of a Verdict or Indictment.
1)      Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
2)      Exceptions. A juror may testify about whether;
i)        extraneous prejudicial information was improperly brought to the jury’s attention;
ii)       an outside influence was improperly brought to bear on any juror; or
iii)     a mistake was made in entering the verdict on the verdict for.