Select Page

University of Baltimore School of Law
Smalkin, Frederic N.

Evidence Smalkin Fall 2013
Introductory Material
The “Three R’s”
Is the evidence relevant for the offered purpose?  If not, the inquiry ends.  If the answer is yes…
Is the evidence reliable for the offered purpose?  If not, even though relevant it should not be admitted.  If yes…
Is it right to allow the fact resolver to receive the evidence for the offered purpose?  That is, even if the evidence is relevant and reliable, there may be good reasons to keep it out.  These include:
Constitutional strictures,
Matters of social policy, and
Considerations of unfair prejudice and courtroom efficiency.
KEY QUESTION – Is the evidence relevant for the offered purpose?  Why is the evidence being offered?  How is connected to a fact that is at issue within the scope of the claims and defenses of the case?
NO specific “standard” or “rule” – offered evidence either has something to do with the case or not; MUST always know the elements of claims or defense; relevance is highly situational; construct a logical chain back to an element in a claim or defense.
FRE 401 – DEFINITION OF RELEVANT EVIDENCE – if the offered evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
(1) It must be directed to some fact that is important to the issues of the case:
Substantive law
Driven by pleadings.
(2) It must tend to make the existence of that fact more or less probable.
Purely evidentiary determination.
Tested in light of logic, experience, and the ways of human behavior.
IF RELEVANT– admissible unless there is some specific reason to keep it out:
FRE 402 – Relevant Evidence Generally Admissible/Irrelevant Evidence Inadmissible – the Constitution of the U.S., an act of Congress, other Federal Rules of Evidence, and other rules prescribed by the Supreme Court pursuant to statutory authority.
BURDEN OF PROOF – the plaintiff has the burden of establishing a relevant purpose.
KEY QUESTION – Is the evidence reliable for the offered purpose?
STANDARDS OF RELIABILITY – create a way of resolving disputes that has some measure of predictability, order, and rectitude; Reliability MUST be analyzed in light of the relevant purpose of the evidence.
Witness competency rules (601-604; 606);
Opinion testimony rules (701-705);
Hearsay rules (801-807);
Authentication and Identification rules (901-902);
Rules concerning the contents of writings, recordings, and photographs (1001-1008); and
Rules regulating witness questioning (611).
The witness offering it does not speak from personal knowledge of the matter,
If the expert bases an opinion on unreliable data,
If important testimony is elicited by leading questions on direct examination, or
If the offered evidence cannot survive challenge by the hearsay rules.
KEY QUESTION – Is it right to allow the fact resolver to receive the evidence for the offered purpose?
POLICY – Moral/Value Judgment – Evidence that does NOT unfairly prejudice a party; are there policy considerations that should keep the evidence out because it could be too prejudicial; FRE reflect a policy that prefers admission of relevant and reliable evidence, subject to specific rules of exclusion.
(1) Rules that reflect social and political judgments – run the risk of giving up something important when we allow the fact resolver to hear or see certain evidence.
The rules bar evidence of subsequent remedial measures (407);
Compromise and offers to compromise (408);
Payment of medical expenses (409);
Pleas or plea discussions (410);
Liability insurance (411);
A rape victim’s past behavior (412); and
Certain privileged communications (501).
(2) FRE 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time – reflects concerns about the ways trials are conducted and the ways juries should and should not reach decisions.
We are committed to the principle that juries must NOT decide cases for the wrong reasons – evidence must NOT be misused by the jury, and jurors should not be side-tracked by feelings of anger, outrage, or sympathy.
 “SCALE OF JUSTICE” – not evenly balanced; tilted in favor of admissibility because there is a presumptive admissibility of probative evidence under FRE 403.
“Admissibility Side” – the judge will place the need for the evidence and the knowledge that it has slight or substantial relevance.
If there are other ways the proponent can prove the fact in issue, or if the offered evidence barely passed the relevancy test, the side of the scale will tilt only slightly.
Probative value – when considering probative value, the judge should NOT use judicial notions of believability; should be judged without assessing the credibility of the evidence.
“Exclusion Side” – reflects recognition of the nature of the people in the jury box; fallible and untrained for their tasks.
FRE 105 – Limited Admissibility – recognizes the judge’s power to instruct a jury on the limited purpose of evidence.
The Role & Power of the Trial Judge
Trial Process
VOIR DIRE – oath/affirmation to tell the truth.
PLAINTIFF BEGINS CASE-IN-CHIEF – calls witnesses and presents evidence (testimonial and real/demonstrative).
Order of testimony:
Direct Examination – must use narrative, non-leading Qs except for preliminary matters;
Exception – children, stupid, hostile witness (adverse party or associated with adverse party).
Can ask the judge if you can “lead the witness.”
“Turn Coat Witness” – Witness that starts out ok but turns hostile – involves an element of surprise;
Should ask the judge to lead the witness.
“Vouching Rule” – no longer exists in federal and state practice; meant that if this situation happened then the lawyer is stuck; could not attack witness’s credibility; no longer mechanically barred from impeaching a witness.
“Didn’t you tell us before this that…”
Cross-Examination – may use leading Qs;
Re-Direct Examination – judges are very hesitant to go beyond.
Re-Cross Examination – always a matter of discretion; exception – matter of right in criminal case where new matters were gone into during re-direct.
Proponent ALWAYS has last word!!
Sources of Judicial Power
FRE 102 – Purpose & 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

just don’t lose my case for me.”
Typically happens when a judge calls a neutral witness – something the judge feels the jury needs to have; both parties are permitted to cross-examine.
Sources of Judicial Procedure
FRE 103 – Rulings on Evidence
Effect of Erroneous Ruling.  Error (a point or appeal) 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.
Record of Offer and Ruling.  The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon.  It may direct the making of an offer in question and answer form.
Hearing of Jury.  In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
Plain Error.  Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
CLEAR MEANING OF FRE 103 – evidentiary disputes are won or lost on the trial court floor; the proponent must offer and the opponent must resist evidence at the right time, for the right reason, in the right way.
PURPOSE – provides a formidable roadblock to a successful claim of evidentiary error:
There has to be an erroneous ruling;
This has to be brought to the trial judge’s attention in an appropriate way, by specific and timely objection or offer of proof;
The error has to affect a “substantial right of the party”;
Broad discretion is given to trial judges by appellate judges.
SUBSTANTIAL RIGHT IS AFFECTED – whether determined substantial right is affected by an error will depend on the facts and circumstances of the case; reviewing courts, using the cold record, will make a visceral determination of whether it was highly probable the error had an impact on the outcome of the case.
Letting in blatantly prejudicial/detrimental evidence – not just a collateral matter; go right to an element of a claim or defense.