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University of Baltimore School of Law
Gilman, Michele E.



General Rules for Evidentiary Issues:

Evidentiary Issues are generally won and lost at the trial level
Motions to Strike and Objections:

Motion to Strike occurs after the disputed evidence has already made it into the record

If a judge rules in favor, he/she will give a curative instruction, asking the jury to disregard the comment/evidence

Objection occurs before the disputed evidence is admitted

Must be timely! As soon as the ground for objection is known or reasonably should have been known
Must state the specific ground for objection (unless reasonably known)
(In MD- no need to state the ground for objection)

Litigant’s responsibility-

to raise objections, the judge will not raise them for you

Judge’s responsibility-

to be the gatekeeper of evidence; and
to shield the jury from evidentiary disputes

The judge may rule to completely admit/exclude evidence, to admit portions (redact documents), or admit only against certain parties

In which case the judge would give a limiting instruction

FRE: 103

Preserving the Error for Appeal

The ruling must have effected a substantial right of the party

If evidence is admitted: the objection must have been timely, must state specific ground to justify and preserve (unless it was apparent from the context)
If evidence was excluded: the defense should make an “offer of proof” explaining quickly what was being offered so that it is on the record, unless the content was apparent

(An Offer of Proof as to verbal evidence can be made by:

Examining the witness on record (outside of the presence of the jury)
Oral statement about the proposed testimony by counsel
Written Statement about the proposed testimony by counsel
Witness’s signed statement)

Once the court rules definitely on an issue, the party need not renew their objection or offer of proof

At Common Law: the lawyer was required to announce an “exception” after overruling an objection, 103(b) removes the need for making an exception

The court must do their best to shield the jury from inadmissible evidence

This can be done by:

Pre-trial Motions
Bench conferences
Asking the jury to leave while the parties discuss with the judge

The appellate court may review decisions by the trial court that effect a substantial right of the party and that constitute plain error, even if the issues were not properly preserved

FRE: 105

If the court admits evidence against one party, but not another, on timely request, the judge must give a limiting instruction as to the proper scope of the admitted information

Appellate Review of Evidentiary Issues:

Standard of Review:



Only overruled if the Judge’s decision was arbitrary, absurd, or plain error

Much deference given to the trial court ruling
Defer to trial court unless the judge plainly abused his discretion

Trial Judge has best ability to rule on the facts and evidence presented, appellate judge has a dry record of what happened
Want to keep stability in the trial court process
Most Errors don’t affect the outcome of the trial


Applies as to questions of law, i.e. when the judge applied the wrong legal standard
The appellate court does not defer to the ruling of the trial court, instead they review the issue as if it’s on trial for the first time

Three Categories of Error:

SUBSTANTIAL RIGHT is effected if:

Had the judge made the correct ruling, there is a reasonable probability that the outcome of the case would have been different

Harmless Error- did not effect the party’s substantial rights

Vast majority of cases

Reversible Error- raised in the trial court, not immediately apparent, and affected the party’s substantial rights
Plain Error- not raised in the trial court, was or should have been immediately apparent, and affected the party’s substantial rights


Action for personal injuries suffered in an automobile accident. Plaintiff’s attorney asks a witness, “What did Plaintiff tell the police when they arrived at the scene?” Defendant’s counsel loudly states, “Objection!” The court overrules the objection. The witness then answers, “Plaintiff said Defendant ran the red light.” Assume the testimony was inadmissible hearsay. On appeal Defendant’s counsel argues that admission of the testimony over her objection was error. How should the appellate court rule?

Affirm: Defendant did not preserve the objection for appeal because she did not state on the record specific grounds on which to object. Rule 103(a)(1)(b).
Though in MD- you would not need to state the specific ground.

Same case. Plaintiff’s attorney asks the witness, “What did Plaintiff tell the police when they arrived at the scene?” Defendant’s counsel states, “Objection, hearsay!” The court sustains the objection. Plaintiff’s counsel then asks, “OK, then what did Plaintiff tell the paramedics when they arrived?” Defendant’s counsel states, “Objection!” The court overrules the objection and allows the witness to answer. The witness testifies, “Plaintiff said Defendant ran the red light.” Assume the testimony was inadmissible hearsay. On appeal Defendant’s counsel argues that admission of the testimony over her objection was error. How should the appellate court rule?

Review: given the context (the second question is practically the same as the first), the nature and reason for this objection was immediately apparent. This issue was preserved for appeal. If the error was harmless, the court would not reverse, but if it affected the party’s substantial rights, and was reversible error, the court should reverse. Rule 103(a)(1)(b).

Same case. Plaintiff’s attorney asks the witness, “Did Defendant run the red light?” The witness quickly answers, “I didn’t see what happened, but I heard Plaintiff tell the police that Defendant ran the red light.” What should Defendant’s now counsel do now? Is it too late?

Defendant should ask for a motion to strike. Because it was not obvious from the question that the witness’s statement would include hearsay, the motion would still be timely. Rule 103(a)(1)(a).

Same case. Plaintiff’s attorney calls the plaintiff to testify and asks, “Who had the red light?” Before Plaintiff can answer, Defendant’s counsel objects on the ground of hearsay and the court sustains the objection. Plaintiff’s counsel has no evidence other than Plaintiff’s testimony to prove who had the red light, which is the crucial issue in the case. Assuming the trial court was wrong to sustain the objection, what must Plaintiff’s counsel do to preserve the issue for appeal?

The Plaintiff should make an offer of proof in order to preserve the substance of the answer for appeal. Rule 103(a)(2).

Prosecution for murder. A rule (that we will study later) forbids the prosecution in a murder case from presenting evidence during its case-in-chief of Defendant’s character for violent behavior. If Defendant objects to such evidence, and the trial court overrules the objection, is the court’s decision subject to “abuse of discretion” review on appeal?

This issue would be subject to a De Novo Review because the judge appears to be misunderstanding the proper legal standard to apply in this situation. This is a categorical rule, not a rule that gives the judge discretion in her ruling. Rule 103(e).

Same case. The prosecution offers evidence during its case-in-chief of Defendant’s character for violent behavior. Defense counsel does not object, the evidence is admitted, and Defendant is convicted. Assuming the evidence was inadmissible under the rules, what must Defendant’s counsel argue on appeal in response to the claim that the failure to object at trial means the error cannot be considered on appeal?

Counsel would need to argue that allowing such evidence was plain error, which is clear from the record, because by not objecting, trial counsel did not preserve the issue for appeal. Rule 103(e).

If an appellate court finds that a trial court committed error in the admission or exclusion of evidence, will the appellate court necessarily reverse the judgment of the trial court? Why not reverse whenever the trial court errs? Wouldn’t a reversal make the court more careful in issuing its evidentiary rulings?

If the ap

e stipulation or nothing, the specificity of the crime was heavily prejudicial and should not have been admitted.

GENERAL RULE: Courts want full and rich stories that feed to the law’s moral underpinnings, in order to meet juror’s expectations. Prosecution should be entitled to prove it’s case free from any defendant’s option to stipulate. BUT, EXCEPTION: You don’t need evidentiary richness to prove he was a prior felon, under the “prior felon” statute, you shouldn’t need to know what the specific crime was to properly present your case.


FRE: 104(a)- Preliminary Issues

The judge must decide any preliminary questions about whether a witness is qualified, whether a privilege exists, or whether evidence is admissible (by a PREPONDERANCE OF THE EVIDENCE.)
In deciding preliminary issues, the judge is not bound by the rules of evidence. Judge can hear anything and everything they deem important (One exception: priviledge.)

FRE: 104(b)- Conditional Relevance

When the relevance of evidence depends on whether or not a fact exists, proof must be introduced sufficient to support a finding that the fact does exist.
Court may admit the evidence on the condition that the proof be introduced later.
(There is no harm in admitting evidence that relies on a fact being proven, if the fact is not eventually proven, because the Jury has enough sense to decide whether the conditional fact was proven. The Judge only decides on whether there is sufficient evidence to support a jury finding.- Low Standard, less than POE)

Problem 1.7- husband motive for killing wife was that she was going to tell their son that husband was not the paternal father. Only shows motive if the defendant knew she was going to tell the son. In interview, husband says, “her son” not “our son.”

Prosecutor argument- it’s reasonable to infer that the wife would tell the husband before telling the son. Trust within a marital relationship. “Her son” slip from the interview.
Defendant argument- Just because she told bio-dad doesn’t mean she told son.
Could go either way on appeal, this is not a irreversible error

Cox v. State

Cox accused of killing Leonard, motive was retaliation for his friend Hammer who was in jail for charges of molesting Leonard’s daughter, filed by Leonard
Evidence- 4 days earlier, Hammer was denied bond reduction
For the evidence to be relevant, he would have needed to know about the bail hearing, but no direct evidence he know
State says because Hammer’s mom was at the hearing, and Cox spent time with Hammer’s mom, he had reason to know
Court rules sufficient evidence to support a finding that Cox knew, so the evidence was correctly admitted, but the jury still doesn’t need to believe he knew.


Types of Evidence:

Witness Testimony

GENERAL RULE: Can’t get exhibits in if you can’t authenticate them

STANDARD: evidence sufficient to support a finding that the item is what the proponent claims it is
Not a high standard (Less than POE) and can use whatever method counsel wants to authenticate

Real Evidence-

Exhibits related to historical factors of the case
Ex: Gun, keys, spoon, contract, CDS seized

Demonstrative Evidence-

Used to explain elements of the case, to help the jury to understand
May or may not go into the jury room
Ex: CGA (animated videos), models, diagrams, etc.