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University of Dayton School of Law
Hagel, Thomas

Evidence Outline
Fall 2009–University of Dayton School of Law–Professor Thomas Hagel
Evidence: Cases and Materials, Seventh Edition, Broun, Mosteller & Giannelli
Courtroom Evidence Handbook, 2007-2008 Student Edition, by Goode & Wellborn

A. The Roles of the Judge and Jury.
There are three categories of Rs of evidence. 1. Prohibition- Some are Rs of absolute prohibition – some things are absolutely prohibited. 2. Limitation- There are also Rs of limitation which say that evidence can be let in, but it’s use can be very limited. 3. Procedure- A third category are Rs of procedure. Admissibility of particular evidence is often determined not just by specific requirements of a R, but it’ll be determined by when it is introduced in the flow of a trial.
1. United States v. Beaty (3d Cir. 1983) (Judicial Participation – Judge is overzealous in questioning witnesses in hashish smuggling trial).
The trial judge may manage the trial and his actions create reversible error only where he has manifested to the jury a prejudice to one side.
A judge may on his own initiative and within his sound discretion interrogate witnesses. (R 614(b))
“The judge’s participation must never reach the point where ‘it appears clear to the jury that the court believes the accused is guilty.’”
A judge’s conduct in a trial must not be so prejudicial as to deprive a defendant of a fair, as opposed to a perfect, trial.
A judge’s questions to a witness are proper “unless they conveyed to the jury the judge’s belief on the proper outcome of the trial.”
“‘A trial judge’s isolated questioning to clarify ambiguities is one thing; however, a trial judge cannot assume the mantle of an advocate and take over the cross-examination for the government to merely emphasize the government’s proof or question the credibility of the defendant and his witnesses.’”
Statements by a judge instructing jurors that, “I am not a partisan either way. I have no view. And you are to treat any questions put by me as though they had been put by anybody else,” “may offset [only] brief or minor departures from strict judicial impartiality.” “Where a court has expressed its opinion on a pivotal issue in the case, and has expressed that opinion in a strong, unequivocal and one-sided fashion, abstract instructions regarding the jury’s role as fact finder are not a sufficient remedy.”
U.S. v. Beaty. The classic R on limitation of judges is that they can’t do anything that appears to favor one side or the other, and second, you can’t function as an advocate in fact – you can’t do it in appearance or in fact. Third, you can ask for questions clarifying facts. What does that mean though – it’s pretty broad. He’s a big believer in doing that as a judge. Judges have to stop themselves from developing a case though. That’s a fine line.
If a judge was making his prejudices known through non-verbal body language you’d have to object and make that body language a part of the record. You’d have to “object on the record.” You would call for a bench conference – outside the hearing of the jury. You’d ask to approach the bench, then making sure it’s on the record, you’d state what you observed on the record, and maybe even make a motion for a mistrial, so that’d be on the record. You’d also ask the judge to refrain from doing that behavior. If you lose the case then, at least you have something on the record to argue on appeal.
a. Notes and Questions 1 – Judicial Questioning. R 614(b) specifically approves interrogation of witnesses by the court. It does not, however, authorize questioning that demonstrates the court’s partiality in the matter. While permitting counsel to delay objection to the court’s questioning until a time when the jury is not present, R 614(c) does not eliminate the requirement that an objection be made.
b. 2 – Reversals rare. It is the extraordinary case where judicial action, even if apparently slanted strongly in favor of one party, produces a reversal. While the same standard – whether the trial is unfair – is generally applied in both criminal and civil contexts reversals are even rarer in civil cases.
c. 3 – View from above. In ruling on the claim of improper judicial intervention, the appellate court’s characterization of the purpose and effect of the judge’s questioning is far from objectively certain.
d. 5 – Bench trials. The absence of a jury would seem to eliminate, or at least reduce, the harm caused by undue participation by the judge.
e. 6 – Jury questioning. The Federal Rs neither explicitly authorize nor disallow the practice of juror questions. R 611(a) provides the only guidance by way of the statement that the court is to “exercise reasonable control over the mode and order of interrogating witnesses.”
States v. Feinberg, “Although questioning by jurors is “deeply entrenched” in American jurisprudence, concern over the practice is warranted. Witness questioning by jurors is fraught with risks. If permitted to go too far, examination by jurors may convert the jurors to advocates, compromising their neutrality. Id. Jurors also may begin premature deliberation. Id.Further, the practice “will often impale attorneys on the horns of a dilemma.” Id.Attorneys are faced with objecting to questions proffered by the arbiters that the attorneys are attempting to influence. The risk that an objection will alienate a jury is rather obvious.
For Questions by Jurors, United States v. Bush, 47 F.3d 511 (2d Cir. 1995) said, “1)jurors should be instructed to submit their questions in writing to the judge; (2) outside the presence of the jury, the judge should review the questions with counsel, who may then object; and (3) the judge itself should ask the approved questions of the witnesses.” Questions by Jurors = Submitted in Writing, JudgeReviews with Counsel, JudgeAsks SW JRC JA
f. 7 – Court witnesses. R 614(a) authorizes the trial judge to call witnesses. However, as with questioning witnesses, there are somelimits, albeit largely indefinable. In the extraordinary case when a judge crosses the boundary between the appropriate, though limited, role as a searcher for the truth and becomes a partisan, aiding one side by calling witnesses, such conduct becomes improper. R 706 also permits the trial court to appoint an expert witness, who the judge can then call as a witness under R 614(a).
R 104. Preliminary Questions.

R 104. Whether to admit or exclude evidence is left to the judge’s discretion. If the standard of review of an issue is abuse of discretion, that’s a very hard standard to meet. Abuse of discretion is where the conduct is not only erroneous, but unconscionable. There also has to be a causal connection to the outcome of the trial. 104(a) goes to the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence. That is all determined by the court. The judge will demand personal knowledge from a witness before the judge will allow that witness to testify, either as an expert or as a lay witness.
104(b) is about relevancy conditioned on fact. Whether something’s admissible often depends on when it’s brought before the court. There will be times when you might have to call a witness out of order of the required set up foundation due to circumstances out of your control. You can tie up loose ends later when foundation is missing. So, an objection of lack of foundation, can be overcome by tying it up later. The come back to that is to ask when the tying evidence will be introduced and by whom. That should be answered by the attorney who’s attempting to introduce. So, get the specifics of when the foundation will be laid on the record. It’s so important to have this specifically on the record because if the foundation isn’t tied up later, then you can go back and request that the evidence be thrown out. You’d ask for the testimony to be stricken and that the jury should be instructed to disregard that evidence. The only way that can be done is if you lock in the attorney on when the foundation will be tied up.
R 104 – Preliminary Questions – is one that we’ll be constantly referring to. It gives the trial court an incredible amount of discretion over what evidence gets into a trial. Admission of evidence is a preliminary question. Relevancy of condition on fact –that’s taking evidence out of order or setting out the requisite foundation for evidence – that goes to 104(b). 104(c)&(d) only goes to criminal cases because “confessions” and “accused” only applies to criminal cases. They’re really talking about hearings on a motion to suppress evidence.
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.” This allows a defendant to testify in, usually, pretrial hearings, about certain facts. The defendant can come forward and testify to a limited issue, and the prosecution can cross on that issue, but not on other additional facts related to the case. That way a defendant isn’t penalized in exercising his constitutional rights. Most accused want to deny the accusation and go into detail about why it’s untrue. The Federal Rs of Evidence follow the American R of cross which means that the subject matter that’s allowed to be considered on cross is limited to the subject matter of direct examination.
104(e) Weight and Credibility. “This R does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.” This means that one may always question about credibility despite the American R’s restriction that cross can only deal with subject matter dealt with on direct examination. E.g.: You can impeach someone based on a prior conviction, assuming that evidence is there and allowed in, on this credibility topic.
Scope and purpose of R 104. The admissibility of evidence often turns upon an issue of fact. R 104 sets forth the respective roles of the judge and the jury in deciding preliminary questions and also addresses some procedural matters concerning the disposition of preliminary questions.
Questions of admissibility generally. R 104(a) embodies the orthodox common-law doctrine that the judge, not the jury, decides preliminary questions of fact that determine the admissibility of evidence under the Rs of evidence. R 104(a) does not confer any additional discretion to the trial court to exclude evidence that is established to be admissible. Where a piece of evidence rests upon a proper foundation, R 104(a) does not permit a trial judge to usurp the jury’s function and exclude the evidence based on the judge’s determination that it lacks persuasive force.”
Rs of evidence, except privileges, inapplicable on preliminary questions. The second sentence of R 104(a) liberates the judge from the Rs of evidence, except privileges, in determining preliminary questions relating to admissibility.
Relevancy conditioned on fact. R 104(b) in effect gives to the jury issues that go only to the relevancy, as opposed to the competency, of evidence. As to these issues, the judge exercises only the usual judicial control over jury fact issues, i.e., the judge permits the issue to proceed to the jury only if there is “evidence sufficient to support a finding” of the fact. The function of the judge is merely to determine whether a prima facie case has been presented, not to decide the actual issue of genuineness.
“Connecting up”. R 104(b) also embraces the traditional practice referred to as “connecting up.” Where evidence is presented that is subject to exclusion on an objection that its relevancy has not been show or that it lacks adequate foundation, the judge may admit the evidence conditionally upon counsel’s promise to “connect it up later.” If sufficient “connecting” evidence fails to appear by the close of the proponent’s evidence, the judge, upon the opponent’s motion, will strike the conditionally admitted evidence and instruct the jury to disregard it.
Other crimes, wrongs, or acts. R 104(b) also applies to evidence of “other crimes, wrongs, or acts” offered under R 404(b) “as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident,” or for another proper purpose.’
Hearing of jury. R 104(c) addresses whether hearings on preliminary questions must be out of the hearing of the jury. Determining this issue is a matter of the trial judge’s discretion, in general. In two situations R 104(c) eliminates discretion and makes withdrawal of the jury a matter of right: (1) when the hearing is to determine the admissibility of a confession, and (2) when an accused is a witness on the issue and requests withdrawal of the jury.
Weight and credibility. The purpose of R 104(e) is to clarify that the procedures provided in R 104 for the disposition of preliminary questions determining admissibility do not limit the introduction of other evidence before the jury for purposes of weight and credibility. For example, the judge decides, under R 104(a) whether a person is competent to testify as a witness. Yet a favorable determination by the judge on the preliminary issue does not preclude the opponent from introducing before the jury evidence as to the witnesses lack of credibility.
Testimony by accused out of the hearing of the jury. R 104(d) does not address questions of subsequent use of testimony given by the accused on a preliminary matter out of the hearing of the jury. In general, the prosecution may not use testimony given by the accused on a preliminary matter against the accused as evidence in chief, but under some conditions it may be used for impeachment.

R 611. Mode and Order of Interrogation and Presentation
R 611. This R deals with procedure and court discretion. On direct exam, you’re not supposed to use leading questions on direct examination – that’s 611(c) – although there are exceptions. On cross-examination, you’re almost always allowed to use leading questions.
Scope and purpose of R 611. R 611 addresses the order of interrogating witnesses and presenting evidence as well as the method by which these are done. First, the R directs trial courts to exercise reasonable control over the order of interrogation of witnesses and presentation of evidence with three goals in mind: (1) making the interrogation and presentation effective for the ascertainment of the truth; (2) avoiding unnecessary consumption of time; and (3) protecting witnesses from harassment or undue embarrassment. Second, R 611(b) adopts a flexible approach to the traditional American R that limits the scope of cross-examination to the subject matter of direct examination and matters affecting the witness’s credibility. Third, R 611(c) addresses the use of leading questions both on direct and cross-examination.
Order of interrogation and presentation of evidence. The trial court is granted wide discretion to allow witnesses to testify out-of-turn. For example

e used to include and exclude evidence.
A Motion to Strike is that if you’re successful in getting an objection sustained, but the witness has answered the question already, yet the objection was still timely – to have the statement stricken from the record.
103(a)(2) says that an offer of proof is only appropriate when there’s a ruling excluding evidence. Never assume the substance of the evidence was apparent, although the text of the R says that’s okay – that’s too risky a thing to do.
The second paragraph in R 103 goes to the issue about the split in jurisdictions at the time whether there was a duty, for example, say you filed a motion in limine to enter a ruling admitting certain evidence at trial, and the court denied it, do you have to then offer evidence at trial, get it excluded, then offer proof to preserve the issue for appeal. There was a split on this. That’s an example of offer of proof. The R says: “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.” This applies for an attempted including and an offer of proof and for excluding evidence. There’s still a split among the states on this – you need to find what your particular state requires about this. Notice the language says “Once the court makes a definitive ruling.” The court won’t always make a definitive ruling before trial. Motions to suppress, for example, are definitive rulings – they keep something out definitively. A conditional ruling says that something may be allowed in under certain circumstances. So, for conditional rulings, objections have to be renewed at trial, and this part of R 103 won’t help you.
(1) Scope and purpose of R 103. R 103 addresses objections, motions to strike, and offers of proof. To preserve error for appeal, a party complaining of the admission of evidence must make a timely and specific objection or motion to strike. To preserve error as to the exclusion of evidence the proponent must make an offer of proof.
(2) Effect of erroneous ruling—Harmless error. The opening clause of R 103(a) incorporates the common-law doctrine of harmless error, by stating as a prerequisite to any claim of error in the admission or exclusion of evidence that a substantial right of the party must have been affected by the ruling. “A number of factors have guided the courts in their determinations of whether error is harmless, including (1) whether erroneously admitted evidence was the primary evidence relied upon, (2) whether the aggrieved party was nonetheless able to present the substance of its claim, (3) the existence and usefulness of curative jury instructions (4) the extent of jury argument based on tainted evidence, (5) whether erroneously admitted evidence was merely cumulative, and (6) whether other evidence was overwhelming.
(3) Objections—Timeliness. To be timely, an objection or motion to strike must be made as soon as the ground of it is known or reasonably should be known to the objector. In the case of an offer of real or documentary evidence, the proper time for objection is when the item is formally offered; after it has been admitted is too late. In the case of oral testimony, normally the objection must precede the witness’s answer.
In some circumstances, an objection after the answer, accompanied by a motion to strike and a request for an instruction to the jury to disregard the answer, will be timely; The motion to strike is itself subject to a requirement of timeliness.
(5) Continuing objections. A continuing objection, if requested and granted, will preserve error with regard to a series of similar or connected questions or offers of evidence.
(6) Depositions. In general, objections that might be obviated or cured at the deposition, such as to the form of a question, are waived unless made at the deposition. All other objections, such as to the competency of the witness or to the competency or relevancy of the evidence, are reserved until the deposition is offered at trial.
(7) Motions in limine. Even if a pretrial ruling is unconditional, it resolves only the arguments and issues actually presented; a trial offer of evidence that is broader or otherwise raises different issues requires a new, specific objection to preserve any error. Wilson v. Williams.
(8) Objections—Specificity—In general. There are four aspects as to which an objection may be wanting in specificity and may therefore be inadequate to protect the rights of the objector: grounds, parts, parties, and purposes. A failure of specificity in any of the four respects may have the result that the objector cannot successfully complain on appeal if the objection is overRd, even though the evidence was in fact not properly admissible or not admissible as offered. R 103(a)(1) refers to “stating the specific ground of objection.” This language is interpreted to refer to specificity as to parts as well as to legal grounds. Four aspects of objection specificity = Grounds, Parts, Parties Purposes GPPP
(9) Objections—Specificity—Grounds. An objection only preserves the specific ground or grounds named. A so-called “general” objection, such as the notorious “irrelevant, incompetent, and immaterial,” preserves no ground for appeal, except perhaps the ground of total irrelevancy to any issue in the case.
R 103(a)(1) contemplates that an objection general by itself may acquire specific meaning in the context, which will be recognized on appeal.
Since an objection only preserves the specific grounds named, if an objection naming an untenable ground is overRd, the ruling will be affirmed on appeal even though a good but unnamed ground existed for exclusion of the evidence. If an objection naming an untenable ground is sustained the ruling will not be upheld on appeal on the basis of an unnamed valid ground if the valid ground might have been obviated by the proponent had it been raised at the trial.