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University of Dayton School of Law
Turner, Dennis J.

Rule 101: Scope
·         Rule
o       These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in Rule 1101
·         In General
o       The federal rules of evidence apply in all federal courts of the United States
o       Apply in both civil and criminal cases
o       Apply in both jury and bench trials
Rule 102: Purpose and Construction
·         Rule
o       These rules shall be construed to
§         Secure fairness in administration,
§         Elimination of unjustifiable expense and delay, and
§         Promotion of growth and development of the law of evidence
o       To the end that the truth may be ascertained and proceedings justly determined
·         In General
o       Rules were designed to promote the stated goals
§         Fairness to the parties
§         Elimination of unjustifiable expense and delay
o       Allows for judicial interpretation
§         SCT usually applies textual or plain meaning approach
§         Plain meaning controls the rule unless it would be absurd or unconstitutional
§         Plain meaning prevails even in the face of overwhelming common law to the contrary
o       Limit of judicial interpretation
§         May not supersede the plain meaning just because the plain meaning doesn’t satisfy one of the goals
Rule 103: Rulings on Evidence
·         Rule
o       103(a) Effect of erroneous ruling: error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
§         103(a)(1) Objection: In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground is not apparent from the context; or
§         103(a)(2) Offer of proof: In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which the questions were asked
§         Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal
o       103(b) Record of offer and ruling: The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
o       103(c) Hearing of jury: In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury
o       103(d) Plain Error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court
·         In General
o       Rule lays out the procedure for appellate review of errors in trial court evidentiary rulings (admitting or excluding)
o       Four degrees of error
§         Harmless error
·         Incorrect ruling (erroneous admission or exclusion evidence) that is objected to at trial but does not affect the substantial right of the party
·         Not grounds for reversal on appeal
§         Prejudicial (reversible) error
·         Incorrect ruling that is objected to at trial, that did affect a substantial right (affected outcome)
·         Is grounds for reversal on appeal
§         Plain error
·         Incorrect ruling, not objected to at trial, but so prejudicial & egregious that it is ground for reversal
·         Error must be “obvious” and “fundamental” and must be prejudicial
·         Threshold is higher for civil than criminal cases (easier to find plain error in criminal cases)
§         Invited error
·         Potentially inadmissible evidence is offered by the now opposing party
·         Opened the door to its admission, generally not grounds for reversal
·         Preservation of error on appeal
o       For appellate court to review evidentiary ruling, the record must clearly reflect the alleged prejudicial error
§         All discussions must be out of earshot of the jury
o       1) Potentially inadmissible evidence is admitted, to preserve error for appeal
§         a) Must have timely motion to strike or object on the record; and (as soon as grounds for objection become apparent)
§         b) Must state reasons supporting the objection (must be specific)
o       2) Potentially admissible evidence is excluded, to preserve error for appeal
§         a) Proponent must “proffer” the substance of the evidence (unless clearly identifiable from record)
§         b) Ensure reviewing court is presented with complete record on appeal
Rule 104: Preliminary Questions
·         Rule
o       104(a) Questions of admissibility generally: Preliminary questions concerning the qualifications of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges
o       104(b) Relevancy conditioned on fact: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition
o       104(c) Hearing of jury: Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests
o       104(d) Testimony by accused: The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case
o       104(e) Weight and credibility: This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility
·         In General
o       Rule gives judge the discretion of determining what evidence will get into the trial
o       Preliminary questions of fact (privileged communications, qualifications of a witness, admissibility)
§         Jury still fact finder
§         Judge determines if foundation for evidence is laid
·         What can Judge hear
o       Judge may hear evidence that is inadmissible in itself to determine the admissibility of other evidence
o       Judge may not consider privileged information
·         Conditional Relevance
o       Relevancy of evidence [A] depends upon the establishment of fact [B] o       Must prove sufficient evidence to establish [B] to enable the trier of fact to consider [A] ·         If accused testifies in preliminary matters
o       Accused may not be compelled to testify against himself or be cross-examined
Rule 105: Limited Admissibility
·         Rule
o       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
·         In General
o       Gives judge the discretion to admit evidence, but limit its applicability or scope, through a jury instruction
o       That which is generally inadmissible may nevertheless be admitted for a certain, specific purpose
·         Limiting Instruction
o       Allows judge to instruct the jury as to the scope of the evidence
o       Party wishing the evidence to be limited must request the jury instruction
§         Court has a mandatory duty to issue the limiting instruction if requested
§         Judge, however, has discretion to issue limiting instruction without a request
Rule 106: Remainder of, or Related Writings or Recorded Statements
·         Rule
o       When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it
·         In General
o       Ensures that one party does enter only part of a document which doesn’t tell the whole story
o       Discretion of admission is up to the trial judge (104(a))
Rule 201: Judicial Notice of Adjudicative Facts
·         Rule
o       (a) Scope of rule: This rule governs only judicial notice of adjudicative facts
o       (b) Kinds of facts: A judicially notice fact must be one not subject to reasonable dispute in that it is either;
§         (1) Generally known within the territorial jurisdiction of the trial court; or
§         (2) Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
o       (c) When discretionary: A court

difficult for some reason
·         Help someone with BOF to get over the hurdle through the benefit of presumption
·         Example: must show receipt of an offer, need only prove you mailed it and court will presume that the mail was received
§         Used if strong inference not apparent to the jury
·         Jury may not apply adequate weight to the evidence without a presumption
§         Court favors certain parties for social policy reasons
·         Society favors certain parties therefore gives them benefit of a presumption
·         Definitional Distinctions
o       Defined
§         Burdens and presumptions are determined by looking up the substantive law
§         Who has the burden and what is the burden
o       Burden of Persuasion (BOP)
§         Defined
·         Standard the fact finder must use to determine the outcome
·         Risk of non persuasion (If you don’t persuade the jury, you lose)
·         Party has the burden of persuading the trier of fact of the elements of a claim or defense in accordance w/ the degree of proof mandated (preponderance, clear & convincing, reasonable doubt)
§         Not affected by presumptions
o       Burden of Going Forward (BOF)
§         Defined
·         Party has the burden to come forward with enough evidence to avoid a directed verdict
·         Obligation to produce sufficient evidence to support a rational jury decision in favor of the party
§         May be affected by presumptions
·         Presumption shifts the burden of going forward on a factual element where the proponent of the presumption submits evidence as to the base facts of the presumption
·         Burden of going forward is satisfied by the proponent
·         Burden of going forward shifts to opponent who must counter the presumption
o       Inference
§         Permissible deduction or induction which the trier of fact may draw from the facts
o       Rebuttable Presumption
§         Presumption which the law requires the trier of fact to make where the prerequisite base facts have been established and where no contrary evidence has been produced
o       Irrebuttable Presumption
§         Once basic facts are prove, presumption is solidified (opponent doesn’t have opportunity to rebut)
·         Effect of the rule
o       Party bearing the burden of persuasion on an issue introduces facts supportive of a substantive law presumption
o       Burden of going forward shifts to opposing party requiring him to come forward w/ evidence contrary to the presumed fact
§         If opposing party fails to come forward with enough evidence, presumption is crystallized and jury is instructed to find the presumed fact if it believes the base facts to be true
·         If you find X (base facts), then you must find Y (presumed facts)
§         If opposing party does produce sufficient rebuttal evidence, the presumption never takes effect and is not mentioned to the jury
o       Risk of non-persuasion, however, is not affected and remains with the party to whom it was originally allocated
·         Possible allocations of Burdens on Issue
o       Plaintiff has BOF and BOP
§         Most common, burdens usually go together
§         Must survive directed verdict and pass burden of proof
o       Plaintiff has BOF, Defendant has BOP
§         Insurance case
§         P has BOF to show cause of death was accident, D has BOP to show wasn’t accident
o       Prosecution has BOP, Defendant has BOF
§         Usually comes up in criminal case
§         Defense is insanity, D must meet BOF to show insanity is in play
§         Prosecution then has BOP to show beyond a reasonable doubt that