Select Page

University of Illinois School of Law
Johnson, Eric A.

Evidence Rules Overview Johnson Fall 2012
Article I: General Provisions
Rule 103 – Ruling on Evidence (How to Preserve for Appeal; Object; Offer of Proof)
Raising Objections
1.      Two mechanisms for disputing evidence at trial       
a.       Objection: Made before the opponent introduces potentially inadmissible tem into evidence
b.      Motion to strike: Occur after the disputed evidence has already entered the record
2.      Parties must challenge the evidence in a timely manner
a.       No definition in the rule, but commonly known that objections to evidence must be made as soon as the ground for objection is known or reasonably should be known
3.      Lawyers must state the specific ground for the objection
a.       Hearsay, narrative, asked and answered, relevance, etc.
Defending Evidence (Preserving a claim of error)
1.      Opposing party must give the court an offer of proof
a.       Might just describe the response as given by the attorney
b.      Could also demonstrate the answers by the witness outside the presence of the jury
2.      Rule states that if “the substance” of the evidence “is apparent from the context” a formal offer of proof is unnecessary, but attorneys should generally make at least a brief offer of proof to buttress their argument for admissibility and to clarify the record for appeal.
On Appeal
1.      Appellate courts apply an abuse of discretion standard to most claims of evidentiary error
2.      Appellate judges can only reverse a trial decision for evidentiary error if the error affected a “substantial right” of one of the parties
a.       Evidentiary errors rarely lead to reversals because most evidentiary missteps constitute harmless error
Rule 104 – Preliminary Questions (Judge or Jury)
Standard of Proof for All Preliminary Questions = Preponderance of the Evidence
104(a) = Judge-Made Decisions of Admissibility
1.      Default rule that judges decide preliminary questions related to admissibility
2.      Rules of evidence do not apply except those of privilege
3.      If based on evidence admissibility is based on policy, we will let the judge decide the admissibility
a.       Habit/Routine Practice (FRE 406)
b.      Good faith basis for cross-examining (FRE 405/608)
4.      Judge will apply FRE 403 balancing test at same time he does preliminary questions
a.       If weak evidence barely survives FRE 104(a), then more likely to be excluded based on FRE 403
104(b) = Conditional Relevancy (Evidence that Depends on the Existence of a Fact)
1.      Prima Facie Standard: Is the evidence sufficient for a jury to find a fact by a preponderance of evidence?
a.       If rational jury could decide the factual dispute either way by a preponderance of the evidence, the judge should let the jury decide (Huddleston Standard)
b.      Very low standard
2.      Examples of factual issues that fall under 104(b)
a.       Personal knowledge of a witness (FRE 602)
b.      Evidence of other acts (FRE 404)
c.       Sexual acts, reputation, past sexual assaults/child molestation (FRE 412-415)
d.      Authentication (FRE 902)
Rule 105 – Limiting Instructions:
If evidence is admissible against a party for one purpose, but not for another, the court MUST – if timely requested by the other party – restrict the evidence to its proper scope and instruct the jury accordingly
**No discretion rule; the limiting instruction MUST be given
Rule 106 – Rule of Completeness (Timing): Remainder of or Related Writings or Recorded Statements
Elements – Rule of Completeness
1.      Party can introduce qualifying portions of a writing or recorded statement as soon as the opponent offers the first portion
2.      Applies only to writings or recorded statements
3.      Allows the introduction of whole writings or recorded statements when necessary to understand another document offered by the opponent
4.      Fairness principle of offering portions of writings or recorded statements or other whole documents that in fairness ought to be considered at the same time as those offered by an opponent à Flexible standard to be used at the judge’s discretion
Two Views of FRE 106
1.      Rule of Timing: Only affects the order of proof à accelerating the introduction of otherwise admissible evidence (Majority Rule)
2.      Rule of Admissibility: Not only affects timing, but also affirmatively permits the adverse party to introduce otherwise inadmissible evidence when necessary for the sake of completeness
Article IV: Relevance and Its Limits
Rule 401 – Test for Relevant Evidence
1.      Any tendency = very low standard; if the evidence shifts the degree of likeliness the smallest amount, it conforms to the any tendency model
2.      More or less probable = the piece of evidence can shift the fact finder’s view in either direction (more probable or less probable)
3.      Fact is of consequence = the fact itself that it is being used to prove must be related to the cause of action a fact that matters to someone who is trying to decide the case
Rule 403 – Excluding Relevant Evidence for Prejudice/Confusion/Waste of Time/Others
***Evidence is inadmissible if the unfair prejudice substantially outweighs the probative value***
1.      FRE 403 leans toward admissibility (high standard for inadmissibility on balancing test)
a.       UP substantially outweighs PV à assumes we will let in evidence and allow jury to weight it
2.      Court may exclude evidence
a.       Judge has extreme discretion to exclude evidence under this rule
3.      Unfair prejudice = evidence that lures the fact finder into finding guilt not based on the specific facts in the case
Unfair Prejudicial REC-LOT
·         Extent to which it will arouse emotional or irrational prejudices from the jury (E)
·         Extend to which the jury will overvalue the evidence (O)
·         Strength of the connection between the evidence and elements of the case (C)
·         Can the fact be proven through less prejudicial or confusing means (L)
·         Can the prejudice be reduced (R)
·         Is the evidence worth spending time on (T)
Probative Value NAS
·         Strength of the inferential chain between the evidentiary fact to the fact of consequence (S)
·         Need for the evidence (N)
·         Availability of other evidence (A)
Rule 404 – Character Evidence; Crimes Wrongs or Others Acts
404(a)(1) Prohibited Character Uses
Evidence of a person’s character or their character trait is not admissible for propensity inferences that the person acted in accordance with that character trait, except for a few specific exceptions.
404(a)(2) – Exceptions in Criminal Cases (How to Present this is in FRE 405)
(A) Pertinent character trait of the defendant
à Government can rebut this very same character trait
(B) Pertinent character trait of the alleged victim
à Government can rebu

gle type of evidence: evidence that D committed prior offense of sexual assault or child molestation
a.       Prior act need not have resulted in criminal conviction or even criminal charges
3.      Admissible for any purpose, including propensity
4.      For sexual assault, past conduct focus on physical conduct rather than verbal conduct
a.       For child molestation, past conduct must include a child under 14 years old
5.      Procedures: Must disclose to D at least 15 days before trial or less for good cause, including witnesses’ expected testimony or statements
6.      Subject to a 403 Balancing Test: (a) Length of time passed; (b) Reliability of the testifying witness;      (c) Similarity of the other acts; (d) Could government make similar points with less prejudicial evidence
Article VI: Witnesses
Rule 601 – Competency to Testify
Part 1
Assumption of competency = default rule = Minimal level required to be on the stand
à Another rule must specifically deny competence to exclude a witness from the stand
**The jurors, rather than rules, should decide whether the witness is to be believed or not**
Part 2
If state law supplies the claim under the federal court, then state laws in regard to competency are required
à For example, civil diversity case
Rule 602 – Need for Personal Knowledge
Witnesses may only testify about matters that they know about personally (matters perceived with 1 of the 5 senses); capable of apprehending an event, remembering it and describing it to others
à Low threshold standard that leans toward admissibility; want jury to weigh the witness’s credibility
Witness can provide the foundation for their own personal knowledge
This rule does not apply to experts under FRE 703
Rule 603 – Oath or Affirmation to Testify Truthfully
Young Age/Mentally Ill
If the witness lacks the ability to understand the truth or to appreciate the seriousness of testifying in court, then the judge may find that the witness is incapable of taking the oath or affirmation
No Magic Words
The rule accommodates any set of religious beliefs or non-beliefs à Just need an affirmation to tell the truth
***Must make a commitment though to tell the truth***
Rule 604 – Interpreter
1. Interpreter must be qualified
2. Interpreter must make an oath/affirmation to “make a true translation”
Rule 605 – Judge’s Competency as a Witness
The judge who presides over a case cannot also testify as a witness, because the roles of testifying and presiding are incompatible.
à Objections need not be stated to preserve the issue
Rule 606 – Juror’s Competency as a Witness
(a) Jurors may not testify at the current trial (part can object outside the jury’s presence)
(b) Jurors, with some exceptions, may testify at a subsequent trial