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University of Dayton School of Law
Turner, Dennis J.

Real Evidence & Demonstrative Evidence
Demonstrative Evidence—Visual Aid
1) used to illustrate testimony
a. no independent substantive value
i. only testimony of witness as substantive value
2) not introduced into evidence
a. mark as exhibit
b. jury does not get it
3) relevancy standard less
a. all you need is a witness to say it is helpful to get it admitted
4) marked for identification
Drawn to scale:
1) used to illustrate and may have independent substantive value
2) introduced into value
3) relevancy standard is higher—more accurate representation
a. fairly and accurately depicts scene
4) marked for identification
5) did not exist in time past
a. prepared just for this trial
6) useful to jury
a. not helpful for witness
Real Evidence:
1) substantive evidence itself
a. jury can consider “its” testimony apart from witness’s testimony
2) must show it is the “thing” itself in same condition a differences in condition and irrelevant
3) marked for identification
4) introduce into evidence
5) relevancy standard higher?
a. Capable of belief?
6) Had to exist in time past
a. Connected to the incident witness ID
7) Chain of custody
a. Continuous, exclusive custody
b. Uniquely marked and in tamper proof container

Rule 101: Scope
These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.

Rules applies to ALL US courts (bankruptcy, magistrates)
General introduction to the Federal Rules of Evidence
Does not apply at certain times—1101 (preliminary matters)

Rule 102: Purpose and Construction:
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 to the end that the truth may be ascertained and proceedings justly determined.

Rule of liberal construction applicable to all rules of evidence
Construed in favor of fairness and administration of justice
Avoids expense
Provides courts with a limited power to supplement the Rules of Evidence through case law

Rule 103: Rulings on Evidence:
(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
(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 object, if the specific ground is not apparent from the context; or
(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 of was apparent from the context within which 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.
(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.
(c) Hearing of the 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.
(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.

Addresses objections, motions to strike, and offers of proof
Preserve error for appeal, a party complaining of the admission of evidence must make a timely and specific objection or motion to strike
(to prevail on appeal) Error must be both:

Prejudical—substantial right of a party was affected
Preserved for appeal—the party took all appropriate steps to ensure that the lower court was given a reasonable opportunity to avoid the error that arguable might lead to reversal

Effect of erroneous ruling:

Doctrine of Harmless Error applies unless

Substantial right of the party affected by the ruling
And the party makes a

Timely objection or motion to strike on the record stating specific ground if not apparent from the context (admission); AND
Offer of proof (exclusion)

The substance of the evidence is made known to the court or
The substance is readily apparent from the context in which the question is asked

Unless there is some chance that a retrial might turn out differently, there is no point in reversing a judgment merely because some item of evidence was erroneously admitted or excluded in violation of the rules of evidence
Constitution entitles a criminal defendant to a fair trial, not a perfect one

Rule 103(a) does not preserve error in a pretrial ruling—if the ruling is based upon a condition that does not materialize at trial, or if the error is brought up in a pretrial motion to exclude evidence—even if the motion is denied

If judge’s ruling is tentative or provisional, or if the judge indicates that the ruling might change if the judge is asked to reconsider the matter during trial, the ruling is not definitive, and no claim of error is preserved for appeal unless the losing party renews its objection or offer of proof at an appropriate time during trial

If part of an offer is admissible and part inadmissible, an objection to the whole may be properly overruled and the entire offer admitted, if the objector fails to specify properly which part are inadmissible
Evidence—partly admissible and partly inadmissible, without limiting the offer to the admissible part, the party may not complain on appeal if court excludes entire offer

t, subject t the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(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.
(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.
(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.
(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.

Judge, not the jury, decides preliminary questions of fact (qualifications, privileges, and admissibility)

Not bound by the Rules of Evidence except privilege

Rules empower the judge to make determinations of admissibility under Rule 104(a) and to comment on such rulings under Rule 103(b)
Court may admit conditional evidence

Conditional evidence—the relevance of the evidence depends on the establishment of other factual evidence of a condition
Where evidence is presented that is subject to exclusion on an objection that its relevancy has not been shown or that it lacks adequate foundation, the judge may admit the evidence conditionally upon counsel’s promise to “connect it up later”

Hearings on admissibility of confessions are outside the hearing of the jury
Accused may testify on preliminary matters without being cross-examined
Favorable determination regarding the admissibility of evidence does not preclude opponent from using contrary evidence
“Admit it so that its sufficient to maintain that finding”
Rule 104 (c) contains a mandatory provision and a permissive provision

mandatory provision—hearings on admissibility of confessions in criminal cases
In all other cases presence of the jury on preliminary matters is within the discretion of the judge

Allowing the jury to hear such foundational evidence avoids duplication of effort and waste of time