Select Page

University of Dayton School of Law
Turner, Dennis J.

Evidence Class Outline
        I.            Article I – General Provisions (Rules 101-105)
a.       Rule 101 – Scope of the Federal Rules of Evidence
                                       i.      Rule: 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 101.
                                      ii.      Notes and practical use.
1.       Notes which courts the Federal Rules of Evidence applicable.
2.       Further specified in Rule 1101 (outside scope of this class)
b.       Rule 102 – Purpose and Construction
                                       i.      Rule: 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.
                                      ii.      Notes and practical use.
1.       This rule is applicable to all of the Rules of Evidence
2.       The rules should be construed to:
a.       Secure fariness in administration
b.       Eliminate unjustifiable expense and delay, and
c.        Promote growth and development of the law of evidence (allows for courts to supplement and develop rules through common law.
3.       Interpretation of the rules
a.       Split views
                                                                           i.      Rules are a product of Congressional action and are subject to normal statutory interpretation
                                                                          ii.      Rules are products of common law development
b.       Supreme Court approach uses textualist approach
                                                                           i.      “Moderate” textualist approach: Follow the plain meaning unless it leads to an absurd result
                                                                          ii.      Allows for a limited inquiry to legislative history
                                                                        iii.      Since 1989, (Green v. Bock Laundry) court hasn’t given a meaning other than the plain meaning to a Rule of evidence.
c.        Trial courts given some discretion in interpreting ambiguous rules or choosing a reasonable alternative interpretation.
c.        Rule 103 – Rulings on Evidence
                                       i.      Rule:  (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 objection, if the specific ground was 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 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.
(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 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.
                                      ii.      Notes and practical use.
1.       Sets for the general procedures for appellate review of errors in evidentiary ruilings
a.       Only applies to issue of identifying rulings subject to review, 103 doesn’t provide standards governing circumstances of reversal.
2.       Two necessary requirements before a successful appeal can be made. Error must have been both:
a.       Prejudicial – A substantial right of a party was affected
                                                                           i.      Narrow. A large majority of trial court evidentiary decisions are upheld on appeal
                                                                          ii.      Have to show the outcome was affected and a correction may change the outcome
                                                                        iii.      Harmless error doesn’t affect the outcome
                                                                        iv.      Factors to consider when deciding whether an error was harmless/prejudicial
1.       Strength of the prevailing party’s case (would it be altered anyway)
2.       Length and the complexity of the trial
3.       Whether the trial court gave an effective curative instruction
4.       Whether the evidence was referred to in closing argument.
b.       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 arguably might lead to reversal. The error must be on the record.
                                                                           i.      Two situations specifically identified in R. 103(a) subject to appellate review or evidentiary ruling
1.       Error is predicated on an improperly overruled objection of evidence
2.       Error is predicated on the improper exclusion of evidence
                                                                          ii.      The objection is required to be timely or it is considered forfeited and not reviewable on appeal
1.       Objections must be made as soon as the ground of objection becomes apparent
2.       Forfeiture and waiver: In “plain error cases”: As long as the error was not waived an appellate court is empowered to review the issue and redress the wrong where the error is sufficiently plain and egregious. (RARE, happens more often in a criminal context). Waiver is when the opponent proactively waives instead of failing to object (forfeiture).
                                                                        iii.      The objection must be specific if grounds are not apparent from the context
1.       Objecting on one ground forfeits other possible grounds for objection
                                                                        iv.      Objections in special circumstances
1.       Continuing objections: Can state objections to a line of questions or evidence. Continuing objections only reviewable on the matters stated in the continuing objection
a.       If there are multiple parties (opponents of evidence) one objection serves all
2.       Motion in limine – Ruling on admissibility of evidence before the evidence is offered at trial
a.       Preserves evidence for appeal
b.       Motions in limine can have tentative rulings. If there are objections to a tentative in limine ruling, it must be renewed at trial.
3.       Conditional admission – Error not preserved from a pretrial ruling if the ruling is based upon a condition that does not materialize at trial
                                                                         v.      Court can state the circumstances surrounding a ruling on the record (common in jury instructions)
                                                                        vi.      Discussions concerning rulings on evidence should take place outside the hearing of the jury.
d.       Rule 104 – Preliminary questions
                                       i.      Rule:  (a) Questions of admissibility generally. Preliminary questions concerning the qualification 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.
(b) Relevancy condition 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.
                                      ii.      Notes and practical use.
1.       Allocates responsibility between judge and jury for determining questions of admissibility
a.       Role of a judge in determining admissibility
                                                                           i.      Preliminary questions regarding admissibility handled by judge
1.       Qualifications of a person to be a witness
2.       Existence of a privilege
3.       Questions of admissibility of the evidence itself
                                                                          ii.      Party (proponent) seeking admission has burden of establishing relevance and admissibility
1.       Must prove that a reasonable juror could find that the facts were proven by a preponderance of the evidence
b.       Limitations on the trial judges role in making preliminary determinations.
                                                                           i.      Limited by provisions of 104(b) pertaining to conditional relevance
                                                                          ii.      Limited by best evidence rule (R. 1008) – jury decides truthfulness of secondary evidence in place of hard evidence.
c.        Inapplicability of Rules of Evidence to preliminary admissibility determination
                                                                           i.      In making admissibility determinations, the court is not

st to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of Taking Notice. Judicial notice may be taken at any stage of the proceeding.
(g) Instructing Jury. In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
                                      ii.      Notes and practical use.
1.       Evidentiary process by which a court recognizes a fact in the absence of any antecedent, formal proof.
a.       These are facts that don’t need to be proved because they are reasonably beyond dispute.
b.       Practical Rule placed for policy reasons to protect judicial efficiency.
2.       Adjudicative Facts
a.       Definition – Facts that concern the burdens of proof of the case as they pertain to the immediate parties and to the outcome of the litigation.
                                                                           i.      Normally established through formal proof
                                                                          ii.      Sometimes through Judicial Notice
                                                                        iii.      Subject to judicial notice if
1.       Not subject to dispute or uncertainty because well known by local jurisdiction (Direct streets run)
2.       The fact is capable of ready and accurate determination by resort to some reasonably reliable source (almanac)
                                                                        iv.      Discretionary vs. Mandatory
1.       Court can take judicial notice sua sponte
2.       Express duty to take notice if advanced by proponent with proper information or documentation demonstrating that the fact is reasonably indisputable.
                                                                         v.      Hearing allowed if requested
                                                                        vi.      Can take judicial notice at any time during proceedings.
                                                                      vii.      Jury instructions
1.       Civil Case – If judicially noticed, it is conclusive. Jury must be instructed that its conclusive
2.       Criminal Case – Jury must be instructed that they may, bat aren’t required to accept the evidence as judicially notice.
b.       Analysis – Questions to ask
1.       Is this an adjudicative fact?
a.       Facts in a case that will have an effect on the outcome of the Case?
2.       How do you know?
a.       Have to present the basis of knowledge for the item to take judicial notice (well known, easily pointed to in the almanac.)
3.       How big is the burden to prove what is asked to be judicially noticed
4.       Do you have discretion (or is it mandatory?)
a.       If no discretion, it gets in.
5.       What will you tell the jury?
a.       If judicial notice is taken, the jury is told that it is accepted and not at issue.
b.       In criminal law, a judge can’t take direct a verdict and a jury may, but isn’t required to take notice of a fact
   III.            Article IV – Relevancy and Its Limits (Rules 401-410)
a.       Rule 401 – Definition of “Relevant Evidence”
                                       i.      Rule:  “Relevant evidence” means evidence having 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.
                                      ii.      Notes and practical use.
1.       The threshold/fundamental inquiry is relevance.
2.       Determination of relevance
a.       Ask: Why is the evidence relevant?
                                                                           i.      What are you trying to prove with the evidence in question? Usually some intermediate fact.
                                                                          ii.      The probative value of the evidence in question must reach a certain level for it to be relevant.