Select Page

University of Baltimore School of Law
McClain, Lynn

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.
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

t on civil case
b. If criminal defendant is beneficiary of presumption
2) “Proof of one fact” (Basic Fact) will create a presumption that the “presumed fact” is also true.
a. If 301 presumption, satisfies the burden of production and serves to shift burden to opposing party. (stage 3)
b. Permissible Inferences – gets you to stage 2 of chart. Meet burden of production to raise jury question.
3) Effect when presumed fact is rebutted:
a. MD 5-301 – allows judge to decide whether bubble is burst. Case by Case basis. MD 5-301 applies ONLY to REBUTTABLE PRESUMPTIONS that SHIFT BURDEN OF PRODUCTION!!

Jury Instructions

1) Criminal Case
a. Evidentiary Rebuttable Presumption Offered by D– “If you find BF, then you MUST find the PF”
2) Initial Effect when offered by P
a. Civil – P shifts BGF to D = Reasonable jury MUST find for P unless D rebuts.
b. Criminal – only gets to stage 2 = If you find BF, you MAY find PF

302: Applicability of State law in CIVIL ACTIONS

1) The Effect of a presumption respecting a fact which is an element of a claim or defense as to which STATE LAW supplies the rule of decision shall be determined by STATE LAW.
2) MD 5-302 – if presumption recognized by another jurisdiction is to be applied in a civil action in MD, that presumption will have the same effect in MD as it has in the other jurisdiction (to prevent forum shopping)

Burdens of Proof

1) Burden of Pleading
a. P fails to meet burden = Motion to Dismiss;
b. D fails to Plead Affirmative Defenses (Waiver of Defenses)
2) Burden of Production of Evidence (of Going Forward)
a. To Meet BGF = must produce sufficient affirmative evidence to allow jury to reasonably find the existence of the fact as to which you bear BGF
3) Burden of Persuasion (NEVER SHIFTS)
a. Preponderance of Evidence; Clear and Convincing, Beyond Reasonable Doubt (criminal accused may only bear burden of persuasion as to defense)

FRE 401 – 409: Relevancy and Its limits