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University of Baltimore School of Law
Jaros, David M.


General Themes à 1. Favor admissibility: Juries are more capable of dealing with evidence

2. Trial judge discretion: Judges need leeway to shape the rules in specific contexts

Objection Process (FRE 103)

· If Judge agrees with the objection = Sustain (objector is happy, proponent is sad)

· If Judge disagrees with the objection = Overrules (objector is sad, proponent is happy)

Appellate Review (FRE 103)

· Litigants have the responsibility to raise and preserve evidentiary issues

o If the court is admitting evidence the litigator objected to, the litigator must object on a specific ground

o If the court is excluding evidence the litigator was a proponent for, the litigator must make an offer of proof while preserving the jury

· Evidentiary rulings will only be reversed where the error effected substantial rights

· Failure to object is a waiver of the right to appeal

Types of Error (FRE 103)

· Harmless

· Reversible

· Plain error

Witness Competency

General Rule (FRE 601): Modern approach is that most witnesses are competent. Competency does not equate to credibility, other FRE and common law rules protect credibility.

1. Lawyer – Lawyers can testify as long as testimony is not barred by ethical rules

2. Juror (FRE 606) – Jurors may testify in cases as long as they are not sitting

IMPEACHING JURY VERDICTS (FRE 606(b)): A juror may not testify to any manner or statement that occurred during deliberation or to the effect of any other juror’s mind or emotions (internal deliberations). A juror MAY testify about:

· Whether extraneous prejudicial information improperly brought to jury’s attention

· Whether any outside influence was improperly brought to bear upon any juror

· Whether there was a mistake in entering the verdict onto the verdict form

Tanner v. US: Jurors may not testify as to the use of drugs or alcohol during a trial.

3. Judge (FRE 605) – Judges can testify as long as they do not preside over the trial

4. Children – No rule prohibits children of any age from testifying

5. Hypnosis – State’s may not impose a per se bar on hypnotically refreshed testimony. Witnesses can testify, after hypnosis, as to matters that occurred prior to hypnosis (Rock v. Arkansas)

6. Personal Knowledge (FRE 602) – Witness can only testify to matters that they have personal knowledge of.

· Facts perceived = Facts testified

· Knowledge: Witness must also be able to comprehend, remember, and communicate what was perceived

7. Oath or Affirmation (FRE 603) – Before testifying, every witness is required to declare that they will testify truthfully

8. Competency Examination – Where there are serious questions raised about mental capacity, courts can allow the matter to be explored through voir dire


General Rule (FRE 901): Authenticating means laying the foundation or showing something is what the proponent claims it to be

1. The Process:

· Marking it for identification

· Proving that it is what the proponent claims, using testimony of someone with knowledge

· Letting counsel for the other side examine it

· Obtaining a ruling if an objection is made

o Juries – Juries decide authentication issues, the Judge plays only a screening role

o Standard – Sufficient to support a finding

· Marking the object as an exhibit

2. Pretrial Authentication: In civil cases, discovery and pretrial proceedings often remove authentication issues. In criminal cases, some issues of authenticity are resolved prior to trial by stipulation, but at least some usually remain to be resolved at trial

3. Tangible Items:

· Chain of Custody – Where the item is fungible (rather than unique), authentication may require testimony describing a series of perceptions.

· Witness Testimony – Testimony relies on distinctive characteristics

4. Writings:

· Lay opinion testimony based on knowledge of handwriting

· Expert opinion based on comparison with exemplar

· Jury opinion based on comparison with exemplar

· Proof of distinctive characteristics

5. Public Records may be authenticated through self-authentication (FRE 902)

· By means of certified copy

· By showing public filing or recording

· By testimony form a knowledgeable witness

6. Best Evidence Rule: Set of rules that, in common law tradition, requires a party who wishes to prove the content of a writing to offer the writing itself for this purpose (has been extended to other forms of evidence)

The original is required to prove the content of (FRE 1001/1002)à

· Writings

· Electronic Recordings – Foundation requires A.) Explaining the process it was made by and why it is reliable and B.) Identifying the participants

· Images – Foundation requires A.) Testimony of a witness with knowledge of the scene of the picture; B.) As to the accurate depiction of the scene

· Telephone Conversation – Foundation requires A.) Offering testimony by one party to the conversation; B.) Identifying the person talking on the distant end

Exceptions à

· Duplicates are admissible unless (FRE 1003):

o A genuine question is raised as to authenticity of the original

o In the circumstances it would be unfair to admit the duplicate in lieu of the original

· The original is not required if (FRE 1004):

o Originals are lost or destroyed

o Originals are not obtainable

o Originals in possession of opponent

o Collateral matters

· Summaries are admissible where the original cannot be conveniently examined (FRE 1006)

Examples. The following are examples only – not a complete list – of evidence that satisfies the requirement:

1.Testimony of a Witness with Knowledge. Testimony that an item is what it is claimed to be.

2.Nonexpert Opinion about Handwriting. A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation.

3.Comparison by an Expert Witness or the Trier of Fact. A comparison with an authenticated specimen by an expert witness or the trier of fact.

4.Distinctive Characteristics and the Like. The appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

5.Opinion about a Voice. An opinion identifying a person’s voice – whether heard firsthand or through mechanical or electronic transmission or recording – based on hearing the voice at any time under circumstances that connect it to the alleged speaker.

6.Evidence about a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

a particular person, if circumstances, including self-identification, show that the person answering

nes or animals are typically not hearsay

o The output of a machine is hearsay if it is merely recapitulation of human statements (police sound a tornado alarm)

4. Analysis

· Out-of-court statement (put in quotes)

· What is it being offered to prove?

Non-Hearsay Purposes: Where the out of court statement is offered to prove something other than the truth

1. Verbal Acts – Where the operative effect under substantive legal principles is significant, the words spoken are not mere evidence of the act – they are the act itself.

ex.) Contract formation, slander, threat

2. Where statements used to show words were spoken, the value of evidence derives from the fact that the words were spoken, not from the truth of the matter asserted.

ex.) “I’m alive,” “I’m dead”

3. Where statements are used to prove its effect on the listener, knowledge, belief, good faith, or reasonableness is the basis of the evidence rather than the truth of the statement.

4. Where statements are offered as circumstantial evidence of state of mind, the evidence directly expresses a state of mind rather than the truth of the matter asserted.

· Circumstantial evidence of knowledge must be distinct so inferences of knowledge can be drawn (victim’s description of a crime scene)

· Indirect evidence is admissible as nonhearsay on the theory that it constitutes circumstantial evidence of the state of mind of the declarant.

· Direct assertions of state of mind (evidence that expressly describes the declarant’s state of mind) is not circumstantial evidence. (803(3))

5. Non-assertive Conduct: Where words or conduct are not assertive or are assertive of something other than what they are offered to prove, relevant evidence is based on an assertion the actor does not intend.

ex.) “Surf’s up,” packing, someone uses an umbrella à carrying on in their day to day lives

6. Impeachment: Where evidence is offered to undermine credibility rather than to prove the truth of the matter asserted.

Hearsay Exemptions (FRE 801(d))

Evidence that is analytically hearsay, but the drafters have chosen to allow it.

POLICY: The opposing party has the opportunity to “cross-examine” or defend the statement and availability to testify is not an issue.

1. Statement of a Party Opponent: Anything the opposing party has said out-of-court is admissible (subject to relevancy or other objections).


· The out-of-court statement is a party’s own statement (by a party involved with the litigation at hand).

· The statement is offered against the party who made it.

o No personal knowledge requirement

o Self-serving statements are admissible

o A party cannot introduce their own statements under this exemption