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University of Baltimore School of Law
Murphy, Joseph F.

FYI: XXX = know generally
I.   Introduction
A.     Federal Rules of Evidence
1.     Basics:
·    Not statutes, use to be common law; un-codified
·    Not uniform – jurisdictional unless SCOTUS decision
·    Rules are not self-executing
o  If not objected by L, E is presumed admissible
·    Guide jury trial process
·    à Give Trial judge major discretion
2.     Purpose:
·    Promote predictability and stability
3.     FRE 1101: Applicability of the Rules                                                                                     
·    Courts of original trial court
·    (d) Exceptions
o  Privileges
o  Grand jury proceedings
o  Preliminary hearings of criminal cases
o  Fact hearings under FRE 104
·    à Only apply to trials, not sentencing
B.     Appealing an Evidentiary Error
1.     FRE 103: to appeal an Evidentiary Error there must be:
·    An erroneous ruling
·    Brought to the trial judges attention in an appropriate way ; and
o  specific and timely objection or offer of proof
·    the error has to affect a “substantial right of the party”
2.     Extremely hard to reverse the error of a trial judge
·    Appellate judges give great deference to trial judge
C.     Three R’s – to answer E question
1.     Relevance – is the evidence relevant to the present matter/case
·    Irrelevant E ¹ admissible
·    Need to know Elements of issue to determine relevancy
·     FRE 401: Test for Relevant Evidence  – What’s it got to do w/ the case??
o  àDEFINITION = “The Flowers that Bloom in the Spring” – deals w/ the case
o  E is relevant if: (2 part test) – always contextual
§ It has any tendency to make a fact more or less probable than it would be without the evidence; and
ú Purely evidentiary determination
ú Logic, human behavior, experience
§ the fact is of consequence to the action
ú Must be directed to some fact that is important to the case
ú Q of substantive law – driven by pleadings
·    Relevant E is presumed admissible unless specific reason to keep out
o  402: General Admissibility of Relevant Evidence
§  Relevant E is admissible unless the following says different:
ú U.S. Constitution
ú Fed. Statute
ú FRE’s
ú SCOTUS rules
2.     Reliability – is the evidence reliable for the offered purpose; can it be trusted?
·    FRE’s don’t specifically require reliability, but the rules favor reliable E
·    Is the E reliable enough for the jury to hear it and consider it
·    Analyzed in light of E’s relevant purpose
o  à Relevant E should not be admitted if:
§ W does not speak from personal knowledge of the matter
§ Expert bases opinion on unreliable data
§ Important testimony is elicited from leading on direct
§ E ¹ survive challenge by Hearsay rules
·    “Firmly Rooted” = reliability grounded in law, experience, and logic (Hearsay Exceptions)
o  When ¹ firmly rooted, HE must contain circumstantial guarantees of trustworthiness to establish reliability
3.     Rightness – is it right admit the E? Does it violate some privilege or other principle?
·    Even if the E is relevant and reliable, there may be good reasons to keep it out.
o  Constitutional strictures
o  Social/political policy
o  Unfair prejudice and courtroom efficiency
o  Privilege
·    2 types of barriers to admissibility of relevant and reliable E:
o  à Social and Political policies
§ FRE’s bar the following:
ú FRE 407 – subsequent remedial measures
ú FRE 408 – compromise and offers to compromise
ú FRE 409 – payment of medial expenses
ú FRE 410 – pleas or plea discussions
ú FRE 411 – liability insurance
ú FRE 412 – rape victim’s past behavior
ú FRE 501 – privileged communications
§ 4, 5, 6 A violations
o  à Concerns about how trial is conducted
§ Don’t want juries to decide the case for the wrong reasons
ú à presumptive admissibility of probative E*
ú Can exclude E if its probative value is substantially outweighed by the danger of:
·         3 Factors:
w  Unfair prejudice
w  Confusing the issues and or misleading the jury
w  Undue delay, wasting time, or needlessly presenting cumulative E
ú à Judge determines probative value w/o assessing the credibility of E
·         then jury gives appropriate weight
·         Judge can give limiting instruction under FRE 105
§ Balancing probative value against the likely harm
ú Way of protecting the integrity of the fact-finding process
ú Scale tips towards admissibility b/c E presumptive admissible
·         BOP of opponent of saying not admissible b/c of harm 
II.      Role & Power of a Trial Judge
A.     Basics
1.     Judge decides what E L can present
2.     ¹ weight on value/worth of E
3.     Jury gives E weight, if any
4.     FRE give trial judge vast power in conduct of trial
·    Weighing relevant and reliable E by an impartial decision maker so that morally and factually results will be achieved
5.     Objections to E:
·    Judges differ as to what to say to object
·    Generally discourage speeches – if need to say more ask for Side-Bar Conference
B.     Sources of Judicial Power
1.     FRE 611: Mode and Order of Examining Witness and Presenting Evidence                                
·    Keeps the courtroom from being a circus
·    Provides scope of direct, cross, re à
o  (a) Control by the Court; Purposes
§ “Court should exercise R control over the mode and order of examining W’s and presenting E as to:
ú Make those procedural effective for determining the truth;
ú Avoid wasting time; and
ú Protecting W’s from harassment or undue embarrassment”
§ à Grants Judge very broad discretion for courtroom manner
ú Can do much more than just 1-3
·      Limit # of experts; call W out of turn; require W testimony in narrative, etc.
ú Unreasonable to deprive a party of critical E in the name of expediency
·      Links to FRE 403
o  Scope of Cross-Exam
§ ¹ go beyond the subject matter of direct and matters affecting the W’s credibility
§ Judge can allow inquiry into additional matters if as on direct
ú ¹ use leading for these new matters
o  Leading Qs
§ ¹ use in direct unless to develop W’s testimony
§ Allowed

nvolves admissibility of a confession
ú D in crim case is a W and requests; or
ú justice so requires
o  (e) Evidence Relevant to Weight and Credibility [Impeachment by specific fact] § This rule ¹ limit a party from introducing E to the jury that is relevant to impeachment of a W
·    à Takeaway:
o  BOP for 104: preponderance of the E in both civil and criminal
o  Judges decide the preliminary Qs of fact
§ Whether a W (expert) is qualified
§ Privilege
§ E is admissible
o  Jury only weighs admitted E
o  Screening process – only relevant and reliable E to jury
§ Conditional Admission – connect it up
ú Connect up = subject to condition subsequent
§ à E to prove conditional fact must meet all E rules
4.     FRE 105: Limiting E That is Not Admissible Against Other Parties or for Other Purposes [Limiting Instruction] ·    Request must be timely
o  R time  ¹ have to be made during or immediately after testimony
o  Judge has discretion of what is “timely”
·    If request is timely, court must restrict the E to its proper scope and instruct the jury
o  If entitled to it, should ask for it
o  In absence of LI, E comes in on the merits and the jury can consider it for everything
·    à Limiting Instruction: E is admitted for a limited purpose – not on merits
o  the OPPOSING PARTY must ask for the LI, if not = E is on its merits
1.      The objection must be timely. It must be made when the grounds become apparent
2.      State the specific legal grounds for the objection, unless so apparent
a.      General objections = default relevance objection
b.      Look to local rules
3.      State the correct reason for the objection, chance of waiving grounds if not clear
4.      Objections ¹ contain speeches, and should not argue the E.
5.      Request a side bar conference w/ Judge if need to explain more
6.      Make sure the record reflects the objection made – Don’t let the other side proceed until the Judge has ruled. If hear nothing from Judge, ask for a ruling
7.      If Judge reverses the ruling or E is admitted subject to your objection, renew objection and ask for a ruling
8.      Must be a legally significant grounds for objecting, not “that’s unfair”, etc.
9.      Ask judge for a continuing objection for objections to the same thing
10.  Make objections specific to the part of the E you’re objecting, if not the whole
11.  When grounds for the objection do not become apparent until after the Jury has heard it: