Evidence Outline

FRE 103: Rulings on Evidence

Prerequisites for Finding Reversible Error:

1) Trial Judge Committed Error
2) Counsel Preserved the Error, AND
3) Error is NOT harmless – error must be substantial enough as to be reversible
a. FRE 103(a) – exclusion of evidence effects a “substantial right of the party”

Effect of Erroneous Ruling:

Error may not be predicated upon ruling of excluding or admitting evidence unless:
1) Substantial right of party affected (MD – party prejudiced)
2) Objections – Timely made
a. Pre-Trial Motions (Motions in limine) – pre-trial motions to exclude evidence or rule that evidence is admissible are option EXCEPT criminal defense counsels.
b. Trial – must be made AS SOON AS THE GROUND FOR OBJECTION IS APPARENT:
i. Objections to Questions – must make before answer
ii. Motion to Strike Witness’s Answers
Court has discretion to grant untimely motions or to sustain untimely objection; HOWEVER, cannot raise on appeal if untimely.

Specificity of Objections:

1) Must be stated in SPECIFIC TERMS, if specific ground not apparent from context (MD grounds NOT REQUIRED 5-103)
a. Constitutional Grounds must ALWAYS be stated (FED and MD)

Waiver of Objections:

1) Even if Timely Made and Required Grounds Stated
a. Continuing Objections – must re-object if overruled, ALWAYS RENEW if in doubt OR LAPSE IN QUESTIONING.
b. After Motion In Limine – no need to make offer of proof if GRANTING of pretrial motion was CLEARLY INTENDED to be FINAL WORD on matter.
c. Motion to Strike @ close of opponents case – can move to strike evidence which was admitted subject to “connecting up” if “connecting up” did not occur.
2) By Introduction of Evidence
a. Cross Exam is NOT a waiver – may cross-exam witness even if your objection was erroneously overruled.
b. Confirming Evidence is waiver – WAIVE OBJECTION by confirmed the objected to evidence with your own witness
c. “Opening the Door” – cannot object if you introduce evidence on an irrelevant point and then object to relevance grounds to your opponent’s evidence on the same point.

Offer of Proof Rule 103(a)(2)

1) If ruling is to exclude evidence, the substance of the evidence was made KNOWN by to court by OFFER ON RECORD or made apparent from context within which evidence offered.
a. Methods of Placing Substance of Excluded Evidence on the Record
i. Counsel States What Witness Would Have Said (outside hearing of jury)
ii. Witness Answer You Question at the Bench with Court Reporter (outside hearing of jury) – court can require this under 103(b); best method if witness is an important witness.
b. When Offer is not Required
i. Question to Which Objection was Sustained was Leading
ii. Witness’s Answer was Given but Stricken from the Record.
iii. Pre-Trial Motion to Exclude – counsel must make offer of proof at trial (outside hearing of jury) UNLESS court has clearly made during pretrial a final ruling.
(MD – objections must be RENEWED AT TRIAL IF one’s motion in limine was DENIED)
c. Proffer – to offer or tender as the production of a document and offer of the same evidence; used if the court refuses to hear evidence on a particular point because it deems it irrelevant under substantive law.
2) If Excluded Evidence is Objectionable on its Face, Explain to Court Permissible Purpose for which PROPONENT is offering it (i.e. Hearsay Exception, Admissible for Limited purpose, or explain why evidence is relevant if seemingly irrelevant.

Jury Instructions:

1) Must be SPECIFIC and PROMPT (at least before jury retires) as to both the jury instruction NUMBER and GROUNDS
a. Instructions to disregard – if court sustains objection or grants motion to strike, one may choose to also request the judge instruct the jury to DISREGARD the question or inadmissible evidence.

FRE 104: Preliminary Questions

104(a): Questions of Admissibility Generally

1) Preliminary questions concerning the qualifications of witness, existence of privilege or admissibility of evidence (COURT BOUND BY RULES OF EVIDENCE with respect to PRIVILEGE only)
2) Judge decides before the jury is brought in. Must be shown by preponderance of evidence (i.e. to declare something is a business record, must show foundation)
3) MD 5-104(a) – in INTERESTS of JUSTICE, court may DECLINE to require STRICT APPLICATION of rules EXCEPT those relating to PRIVILEGE and COMPETENCY of Witness

104(b): Relevancy conditioned on fact.

1) If item of relevance by itself will have no relevance to any issue at trial but would be relevant if the trial of fact also has some other information, it will be admissible.
a. “relevancy of evidence depends on the fulfillment of a condition of fact.”
2) Jury Determination – Court shall admit evidence if a REASONABLE JURY could find the preliminary fact true – credibility of evidence and existence of foundation fact is for JURY TO DECIDE.
3) JURY Question
a. Judge makes preliminary decision whether foundation evidence is sufficient to support a finding of fulfillment o