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University of Baltimore School of Law
Smalkin, Frederic N.



FALL 2014

Chapter 1 “An Advocacy Approach to Trial Evidence”

The Three R’s (2)

· (1) Is the Evidence relevant for the offered purpose?

◦ If Not—then the inquiry ends here (see FRE 401 Relevance)

· (2) Is the Evidence Reliable for the offered purpose?

◦ If not reliable even though it is relevant it should not be admitted

◦ IF YES—then

· (3) Is it RIGHT to allow the fact resolver to receive the evidence for the offered purposes?

◦ Even though the Evidence is RELEVANT and RELIABLE there may be good reasons to keep it out

▪ Including: (1) constitutional strictures, matters of public policy, (403) Unfair prejudice, courtroom efficiency


· First what is the purpose of the proferred evidence? Why does the proponent want the fact finder to hear/see this piece of evidence

◦ Judges cannot rule unless they know why the evidence is being offered

◦ Burden is on the party proposing the evidence

◦ Once defined—the opponent then can fashion a response and then the judge will make the ruling)

· FRE (401) “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”

◦ Professor Smalkin: what the hell does this evidence have to do with this case?

▪ How is it connected to a fact that is at issue within the scope of claims and defenses

▪ Not an absolute standard, but it is flexible, because you can only decide it in the circumstances (always associate what the evidence is actually connect to

▪ Examples: (1) intent; (2) state of mind; (3) knowledge (link back to elements)

· Counsel: this piece of evidence tends to prove this—which is connected to this element

▪ Key: Relevance is a threshold issue, must continue with analysis

· Rules are designed to always exclude evidence that is irrelevant

· Two-part Test for Relevant Evidence

◦ (1) Must be directed to some fact that is important to the issues in the case

◦ (2) Evidence must tend to make the existence of that fact more or less probable

· If deemed RELEVANT then it is admissible unless there is a specific reason to keep it out


· Mechanical Process rather than a “moral rightness issue”

· Fact finders should not base decisions on unreliable evidence (stakes are high)

· Competency Rules

◦ (601-604, 606)

◦ Opinion Testimony Rules (701-705)

◦ Hearsay Rules (801-807)

◦ Authentication and identification rules (901-902)

◦ Writings, recording, photographs (1001-1008)

◦ Witness Questioning (611)

◦ Hearsay (803-04)

· RULE: RELIABILITY must be analyzed in light of the relevant purpose of the evidence.

3. RIGHTNESS—prejudice is the center of this issue

· Question: While the evidence is relevant and reliable is is about right to admit this evidence?

· Professor: Even though this is relevant we will not let the jury hear it—due to prejudice

◦ If D testifies lawyers are allowed to cross prejudicial issues

◦ Moral Rightness


(1) Social and Political Judgments

◦ (407) Compromise and Offers to Compromise

◦ (408) Payment of medical expenses

◦ (409) Plea Discussions

◦ (411) Rape Victims past behavior

◦ 4th 5th 6th Amendment guarantees and those in the state constitutions

(2) Reflects concerns about the ways trials are conducted and the ways juries should and should not reach decisions (403) Probative v. Prejudicial

◦ Reversals are rare for the weighing process authorized by (403)

▪ (1) probative evidence must be “substantially” outweighed

▪ (2) refers to “consideration” aimed at saving time and preventing boredom

▪ Weighing process: there is no simple wrong or right answer

FRE (105) Before any final reading of the scale is made the judge considers whether a curative or limiting instruction can diminish unfair prejudice etc

◦ This rule recognizes the judge’s power to instruct a jury on the limited purpose of evidence

Examples (pg 5)

(1) Suspect–(HEARSAY ISSUE)

· Relevant: yes the height and description of suspect—with identification

· Reliable: is the issue; Hearsay would be the proper rule (which is based on reliability)

◦ Non-hearsay–Not going for the truth of the matter asserted (going to show why the police officer went looking for the Defendant)

◦ Limited instruction (105)

◦ Professor: maybe

· Rightful:

· Key: “work arounds” are crucial


· Evidence: four other explosions prior to P’s injury (letters)

· Claim: negligence

· (1) Relevant: breach of care;

◦ Yes it is relevant

◦ Breach of duty: How does this evidence add to the fact that something was wrong with tank

◦ Strict Liability: “defective, danger” also relevant to this claim

· (2) Reliability—is the issue in this example

◦ Authentication

◦ No name on the letters

◦ Notice: whether they received them prior or after is crucial to reliability or relevance

▪ If before: duty to recall defective products

▪ If After: not relevant

· (3) Rightness

◦ 403 Prejudicial—NEED TO KNOW THIS RULE

▪ The letters don’t really prove notice or that the wells were defective

Trial procedure: (1) Voir Dere; (2) preliminary’s; (3) opening statements; (4) Plaintiff begins their case in chief (demonstrative or real evidence)


· FRE represent a broad and virtually limitless grant of power to trial judges to control the admission of evidence (no single rules lays this out)


· RULE 102 Purpose of Construction (pg. 10)

◦ Declaration of intent—encourages the judge to construe the rules in a way that invites admissibility and a firm hand over the proceedings

◦ More judges are “managing” the trial

◦ Professor: not a useful rule

RULE 611 Mode and Order of Interrogation and Presentation (control by court)

◦ (a) control by court: Court shall exercise reasonable control over the mode and order of interrogating witnesses and presentation effective for the ascertainment of the truth (1) make it effective (2) avoid needless consumption of time (3) protect witnesses from harassment or undue embarrassment

▪ (1) Effective

ule is important

· (1) Preservation of the record

· (2) Preservation of appeals

· (3) Erroneous ruling

◦ error of law—jury can make an error of law (if against the clear weight of the evidence)

◦ Judge can make an error of law: (1) motions; (2) evidence; (3) jury instructions

· 103 (a) two sections 1 (erroneous) 2 (exclusion of evidence)

◦ For an error of reversal:

▪ (1) erroneously excluded or admitted

▪ (2) Substantial right of a party is impaired

▪ (3) you must properly preserve the point.

◦ 101 A(1) properly preserve the point TIMELY

▪ Motion to strike: to strike the answer to a question because it is in evidence already

· Example: non-responsive, or brings in wrong acts

· Most of the time it happens when they give an unexpected answer

· If not a timely objection—and if substantial impairment then malpractice

· A) needs to appear on record, specific ground for objection, or offer of proof if needed

◦ Specific ground: only need to state the nature of the rule abbreviated (ie relevance)

◦ (2) Offer of Proof: when the evidence is excluded (when it is a real piece of evidence)

▪ Offer of proof (proffer) when testimony is excluded (expert is not allowed to testify) she would have said this 1,2,3,

· Can also be applied to one question

◦ Can also do this by stipulation

◦ Rule: excluded evidence must trigger preservation

◦ Definitive Ruling (103)(a)(2)

▪ if definite a counselor does not need to preserve claim for appeal

▪ Judge doesn’t make a definite rule—counselor needs to ask

· (C) hearing of Jury

▪ (pg 14) outside the presence of the jury

▪ Substantive issue: sensitive evidence; matters of import.

· (d) Plain error: so obvious and a substantial right of a party, that we have to discuss it even though it wasn’t raised on appeal

◦ Plain error can be triggered by: no objection/preserve/make the point on appeal

◦ Two steps: (1) They notice it; (2) it is only after it is notice does the COA then say it was plain error because they have to determine the substantial nature.

◦ Purpose: very limited escape route for bad lawyers who didn’t identify the error during trial

◦ High threshold of substantial impairment

Motion in Limine—to exclude evidence or complete testimony

◦ Evidence that carries crucial weight to your client

Exclude evidence prior to trial: (1) helps with tactics; (2) usually with qualifications of experts; (3) 404(b) wrong acts

Example: Acme practice question; (4 letters that they had notice) you would want to exlcude this prior to trial