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University of Baltimore School of Law
McClain, Lynn

Federal Rules of Evidence

General Provisions

Rule 103: Rulings on Evidence
– To preserve the record (for review of a ruling on evidence) the proponent of the excluded evidence must take the following steps:
1. put the substance of the excluded evidence on the record, generally by making an “offer of proof” or “proffer” [Rule 103(a)(2)]; and
o Two ways to make an offer of proof: simply tell the judge what the evidence is that counsel is seeking to introduce or have the witness answer questions in front of the judge and court reporter (both methods are conducted out of earshot of the jury)
o An offer of proof is not required where the substance of the evidence was apparent from the context within which questions were asked [Rule 103(a)(2)] 2. If the excluded evidence in objectionable on its face, explain to the court the permissible purpose for which the proponent is offering it. Otherwise, the trial judge will have acted properly in excluding the evidence.
– Rule 103(a)(1) requires specific objection, i.e. objections accompanied by a reason (In MD, general objections are okay) (specificity required for objections on constitutional grounds as well)
– If evidence is offered for a limited purpose, request that the court give the jury a limiting instruction, otherwise its fair game for consideration
– Objections must be timely, i.e. as soon as grounds for the objection are apparent
– Counsel can make a “continuing objection” to a line of questioning, but be sure to renew objection periodically
– Renew objections at trial if motion in limine (pre-trial) is denied; otherwise no need to object
– Get a ruling; sometimes the court will reserve its ruling, be sure to get it at a later time
– “Opening the Door” will waive any objection one may have to certain questions
– The introduction of inadmissible evidence by one party allows an opponent, in the court’s discretion, to introduce evidence on the same issue to rebut any false impression

Rule 104(a) & (b): Preliminary Questions
– Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence
– Preliminary Facts = Foundation
– Standard of Proof for Preliminary Facts = Preponderance on the Evidence
(a): Questions of admissibility, generally
– Determined by the Court (not the jury)
– Court not bound by the rules of evidence except when it comes to privileges
(b): Relevancy conditioned on fact
– Court admits relevant evidence subject to a condition of fact so long as evidence is introduced that supports fulfillment of the condition.
– Analyze whether 104(a) or 104(b) applies by isolating the evidence at issue, then determine whether it is, without more, relevant to the fact it is offered to prove.
– Next, identify the “preliminary” fact and decide whether it is relevant regardless of whether the preliminary fact is true.
– If the fact is relevant regardless of truth, 104(a) applies; if not, then 104(b) applies.

Rule 105: Limited Admissibility
– When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly

Rule 106: Remainder of; or Related Writings; or Recorded Statements
– Modern refinement of the Rule of Completeness
– Rule of Completeness = when opposing party has introduced a part of a writing, counsel has the opportunity to get the other relevant parts of that writing in on cross-examination or redirect.
– Rule 106 complements the Rule of Completeness by allowing counsel, at the time opposing counsel is examining the witness, to have the complete text of the writing read into the record, not just the part selected by opposing counsel.
– Also applies to depositions

Judicial Notice

Rule 201: Judicial Notice of Adjudicative Facts
– Judicial notice may be taken either by the court sua sponte or at the request of a party
– A judge may take judicial notice of two kinds of facts:
– Legislative facts (the law and relevant policy considerations); and
o Includes both case law, enacted law, and the policies on which the law could or should be based
o Counsel generally does not have to plead and prove the law and send it to the jury to decide; the judge just reads the law to the jury
o Federal courts will judicially notice federal and state statutes and case law, and the Federal Register
o MD courts will judicially notice MD, other states’, federal, and other countries’ laws, but under the Uniform Judicial Notice of Foreign Law Act, counsel must give notice of intent to rely on non-MD law; otherwise, the court may properly assume that the non-MD law is the same as MD law; municipal ordinances compiled in volumes (COMAR or the MD Register), others must be pleaded and proved by certified copy
– Adjudicative facts (who did what in this case, when, where, how, why)
o 201 addresses only the taking of judicial notice of “adjudicative facts;” it is proper within either of the following two categories:
§ Facts not subject to reasonable dispute and generally known within the courts jurisdiction by persons of average intelligence (a.k.a. “everyone knows that”); or
§ Facts not subject to reasonable dispute and capable of ready determination by resort to sources whose accuracy cannot presumably be questioned (a.k.a. “look it up”)

Presumptions in Civil Actions and Proceedings

Burdens of Proof – Generally
– Three different types of burdens: (1) burden of pleading (2) burden of production (3) burden of persuasion
– Each is allocated by the substantive law, for reasons o

u find [the BF], then you must find [the PF]”
– Effect when the presumed fact is rebutted – three approaches
– Traditional Thayer-Wigmore “bursting bubble” approach – the presumption disappears and the BGF shifts back to the plaintiff to offer more evidence of the previously presumed fact
– Uniform Model Rules Approach – follows the “Morgan Approach” of shifting the burden of persuasion as to the nonexistence of the PF; the instruction would be “if you find BF, you must find the PF, unless you are unconvinced by a preponderance of the evidence that [not PF] – Md. Rule 5-301 & Federal Case Law – more flexible than either of the two above – If the BF is logically probative of the PF, the defendant’s rebuttal merely meets the BGF, but does not shift (rebut) it; the federal jury instruction then would be, “if you find the BF, you may find the PF;” in MD the instruction will be “if you find the BF, you may presume the PF”

Rule 301: Presumptions in General in Civil Actions and Proceedings
– provides that the opponent of presumption may either rebut or meet the presumption

Rule 302: Applicability of State Law in Civil Actions and Proceedings
– 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 is determined in accordance with State law

Relevancy and Its Limits

Rule 401: Definition of “Relevant Evidence”
– “Relevant Evidence” = evidence which will make the existence of any fact that is of consequence to the determination of the case more probable or less probable than it would be without the evidence.
– the more probable or less probable standard = very little

Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
– Evidence must be relevant as to any substantive issue in the case or the credibility of evidence submitted in the case.

Rule 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
– The trial court, in its discretion, may exclude relevant evidence if its probative value is substantially outweighed by the risk of unfair prejudice (unfair surprise); confusing the issues in the case, misleading the jury, or creating unduly distracting side issues; and undue consumption of time.