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University of Baltimore School of Law
Smalkin, Frederic N.

Evidence – Summer 2005

Chapter 1

The Three R’s (Relevance, Reliability, Rightness)

– Most evidentiary problems can be quickly and effectively analyzed by a sequential posing of three questions:
1) Is the evidence relevant for the offered purpose? If not, the inquiry ends. If the answer is yes,
2) Is the evidence reliable for the offered purpose? If not, even though relevant it should not be admitted. If yes,
3) Is it right to allow the fact resolver to receive the evidence for the offered purpose? That is, even if the evidence is relevant and reliable, there may be good reasons to keep it out. These include constitutional strictures, matters of social policy, and considerations of unfair prejudice and courtroom efficiency.


– Why does the proponent want the fact resolver to hear or see the evidence?
– One proposing the evidence should be required to bear the burden of explaining its purpose.
– Once the purpose of the offered evidence is defined, the opponent can fashion a response, and the judge can rule. If the offered evidence has “any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence,” it is relevant within the meaning of FRE 401.
– In effect, the evidence must pass two tests in order to be relevant.
o First, it must be directed to some fact that is important to the issues in the case.
o Second, the evidence must tend to make the existence of that fact more or less probable
– If the evidence is relevant, it is admissible unless there is some specific reason to keep it out. FRE 402 sets out those reasons.


– This second “R” must be analyzed in light of the relevant purpose of the evidence. Thus, the first two questions are entwined. Relevant evidence should not be admitted if the witness offering it does not speak from personal knowledge of the matter, if the expert bases an opinion on unreliable data, if important testimony is elicited by leading questions on direct examination, or if the offered evidence cannot survive challenge by the hearsay rules. That kind of evidence is not reliable, no matter how relevant, and should be excluded.


– The FRE establish two kinds of barriers to the admissibility of relevant and reliable evidence.
– The first barrier consists of rules that reflect social and political judgments, e.g. privilege, rape victim’s past behavior, violations of 4th-6th Amendments, etc.
– The second barrier, contained in FRE 403, reflects concerns about the ways trials are conducted and the ways juries should and should not reach decisions. FRE 403 contains a balancing test. This balancing of probative value against likely harm is a way of protecting the integrity of the fact-finding process. The jury must not misuse evidence, and the jury should not be sidetracked by feelings of anger, outrage, or sympathy.
– FRE 403 addresses two areas of concern. One has to do with the integrity of decision-making. Relevant evidence may be excluded “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” The other implicates judicial efficiency. Relevant evidence may be excluded “if its probative value is substantially outweighed… by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.”
– There is presumptive admissibility of probative evidence under FRE 403. The opponent of the evidence bears the burden of tipping the scale toward exclusion.
– Before any final reading of the scale is made, the judge considers whether a curative or limiting instruction can diminish unfair prejudice, potential confusion, or jury misdirection. FRE 105 recognizes the judge’s power to instruct a jury on the limited purpose of evidence.
– Redaction- change evidence by taking out prejudicial parts.

Chapter 2- The Role and Power of the Trial Judge: Evidentiary Objections…

– “The Judge Admits, The Jury Weighs.”
– The sources of judicial power are principally contained in three of the FRE: 102- Purpose and Construction, 611- Mode and Order of Interrogation and Presentation, and 614- Calling and Interrogation of Witnesses by Court.

FRE 102- Purpose and Construction

– FRE 102, is rarely cited and much ignored by lawyers. The rule is a declaration of intent. FRE 102 encourages the judge to construe the Rules in a way that invites admissibility and a firm hand over the proceedings.

FRE 611- Mode and Order of Interrogation and Presentation

– FRE 611(a) is aptly titled: “Control by Court.” It says the court “shall,” not “may,” “exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence.” The discretion granted by FRE 611(a) is broad.
– FRE 611(b) governs the scope of cross-examination.
– FRE 611(c) refers to the proper use of leading questions

FRE 614- Calling and Interrogation of Witnesses by Court

– The only restraint on the judge is that the questioning must be condu

admit it subject to “connecting it up.” Then you must remember to connect it up, i.e. show the facts that make it relevant.

FRE 103- Rulings on Evidence

– FRE 103 establishes a formidable roadblock to a successful claim of evidentiary error. First, there has to be an erroneous ruling. Second, this has to be brought to the trial judge’s attention in an appropriate way, by specific and timely objection or offer of proof (proffer). Third, even if the first two hurdles are cleared, the error has to affect a “substantial right of the party.”
– FRE 103(a) is a full discloser rule. Lawyers bear the responsibility of telling the judge and each other why they are offering or objecting to evidence, arguments, and instructions.

FRE 105- Limited Admissibility

– FRE 105 relies on the presumption that jurors will follow instructions to consider evidence for one purpose, but not another, or to consider it as to one party, but not the other.
– When considering whether to admit evidence for a limited purpose, judges consider the 3 R’s.
– FRE 403 requires that the probative value of the limited evidence be weighed against the danger of creating unfair prejudice, confusing the issues, and misleading the jury.
– Whether a limiting instruction will be given is ordinarily a decision that rests with the opponent of the evidence. For strategic reasons, a lawyer can choose not to ask for a limiting instruction, fearing that it will emphasize the damaging evidence.
– Giving an uninvited instruction and giving an instruction over objection are not considered error on appeal. Late requests have resulted in waiver on appeal. If the request for a limiting instruction is timely and specific, the trial judge is required to give it. Refusing to give it is error.
– When evidence is admitted for a limited purpose, final argument of the lawyers must be limited to that same purpose.
FRE 103 has two basic requirements for evidentiary objections. First, the lawyer opposing the admission of evidence has a clear obligation: make a timely