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University of Baltimore School of Law
Gilman, Michele E.


I. Rulings on Evidence: FRE 103

a. Claim of Error

i. Party may claim error in a ruling to admit or exclude evidence only if it affects a substantial right of the party, and

1. If Admitting Evidence, Party

a. Makes a timely Objection, or moves to Strike stating the Specific Ground of Objection, if not apparent from context

2. If Excluding Evidence, Party

a. Makes an Offer of Proof – Informs Court of its Substance (jury never sees it)

ii. Once Court rules definitively on the record either before or at trial – No need to renew objection or offer of proof to preserve claim of error appeal

iii. Court may take notice of a Plain Error Affecting a Substantial Right, even if not brought to Court’s attention

b. Categories of Error

i. Harmless Error: Doesn’t affect substantial rights (Trial Court)

ii. Reversible Error: Affects substantial rights (Trial Court)

iii. Plain Error: Error not raised at Trial Court level, but affects substantial rights

II. Relevant Evidence

a. FRE 401: Evidence must be relevant, meaning that the evidence has the 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 without the evidence

b. FRE 402: Irrelevant evidence is generally not admissible

c. FRE 403: Relevant Evidence is admissible unless it might prejudice, confuse, or waste time (Balance)

i. Court may exclude relevant evidence if probative value is substantially outweighed by:

1. Unfair prejudice

2. Confusing issues

3. Misleading Jury

4. Undue Delay

5. Wasting Time, or

6. Needlessly Presenting Cumulative Evidence

III. Preliminary Questions

a. FRE 104: Court must decide witness qualification, privilege exists, or evidence is admissible.

i. 104(a) – General

1. Judge decide by P.O.E.

2. Not bound to the rules of Evidence

ii. 104(b) – Conditional Relevance

1. Judge decides whether there is sufficient evidence to support a jury finding

2. Jury decides whether conditional fact has been proven

IV. Authentication, Best Evidence Rule, and Witness Competency

a. Authentication

i. General Rule (FRE 901): Proponent must produce evidence sufficient to support a finding that the item is what it claims to be

1. The Process

a. Marking it for identification

b. Proving that it is what the proponent claims using testimony of someone with knowledge

c. Letting counsel for the other side examine it

d. Obtaining a ruling if an objection is made

i. Juries – Juries decide authentication issues, Judge plays only a screening role

ii. Standard – Sufficient to support a finding

e. 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 usually remain to be resolved at trial

3. Tangible Items

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

b. Witness Testimony – Testimony relies on distinctive characteristics

4. Writings

a. Lay opinion testimony based on knowledge of handwriting

b. Expert opinion based on comparison with exemplar

c. Jury opinion based on comparison with exemplar

d. Proof of distinctive characteristics

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

a. By means of certified copy

b. By showing public filing or recording

c. By testimony form a knowledgeable witness

b. Best Evidence Rule

i. Definition: 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)

ii. The original is required to prove the content of (FRE 1001/1002):

1. Writings

testify about:

i. Extraneous prejudicial information improperly brought to the jury’s attention

ii. Outside influences that were improperly brought to bear on any juror; or

iii. A mistake was made in entering the verdict form

vi. 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)

V. Hearsay

a. General Rule (801): An out-of-court assertion, whether verbal or non-verbal, offered to prove the truth of the matter asserted, is inadmissible hearsay.


1. Right of the parties to cross-examine the declarant

2. Oath of truth

3. Demeanor evidence

ii. Dangers (testimonial infirmities)

1. Perception

2. Memory

3. Narration

4. Sincerity

iii. Hearsay Definition – An oral or written assertion or nonverbal conduct of a person, if it is intended by the person as an assertion.

1. Verbal Expressions

a. Assertive intent

b. Form: Declarative sentences, requests or commands, questions

2. Non-verbal Assertions

a. Assertive intent (nodding)

3. Silence/Non-compliance

a. Assertive intent (“speak up if this hurts”)

4. Machine/Animal

a. Statements by machines or animals are typically not hearsay

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

iv. Analysis

1. Out-of-court statement (put in quotes)

2. What is it being offered to prove?

3. If declarant is mistaken, is the jury misled?