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University of Kentucky School of Law
Underwood, Richard H.



Spring 2015

103 Motions for Rulings on Evidence

1. Procedure

a. Judge makes ruling on admissibility

b. If allowed in

i. Jury decides weight of evidence

2. 103: Adverse party asserting error must:

a. Preserve their objections for COA

i. Timely objects and move to strike

ii. State grounds for objection—must be specific

b. Exception: plain error

i. Obvious

ii. Substantially affected rights (not harmless)

iii. Affected fairness

3. Motion in limine

a. Asks courts to limit or exclude opposing party’s evidence

b. If make motion in limine and it is rejected, don’t have to renew objection

4. Motion to strike

a. Witness answers question before opposing party can object

b. If granted, ct should instruct jury to disregard

i. Opposing party can’t refer to it in closing

901: Authentication of Evidence

1. Authentication is required when proponent of evidence is seeking to introduce

a. Documents

b. Records

c. Physical items

d. Other instances

2. For authentication to be satisfied, the proponent of evidence must produce extrinsic evidence to support a finding that the evidence actually is what they say it is

a. Rationale: if it’s not what they say it is, it isn’t relevant

b. Because it’s relevant conditioned on a fact—that it is what the proponent claims it is—the judge determines whether authentication satisfied under 104(b)

3. Methods of proving authentication: authentication can be done through the use of extrinsic evidence

a. 901(b) lists various ways of authenticating evidence

i. 901(b)(1): testimony of witness with knowledge

1. Must have firsthand knowledge under 602

ii. (b)(2): Non-expert testimony about handwriting

1. Must have sufficient familiarity w/the handwriting that was not acquired for trial purposes

iii. (b)(3): Experts can compare authenticated specimens to determine if authentic

iv. (b)(4) Distinctive characteristics

1. Appearance of thing unique—postmarks, letterhead of person, etc.

2. Reply doctrine: evidence that first communication was made and that second communication appears to be in response

v. (b)(5) Familiarity with voice if have sufficiently reasonable basis

vi. (b)(6) Phones call from person’s number

1. Person identifies themselves on phone

vii. (b)(7) Public record

1. Found in place one normally finds it

2. These might self-authenticate under 902

viii. (b)(8) Ancient documents

1. Over 20 years old

2. Found in place normally find such documents

3. Circumstances of discovery don’t raise concerns of authenticity

ix. (b)(9) Process or system

1. Describes process or system and shows the process or system produces accurate results

x. (b)(10) Any other method prescribed by statute or rule

1. 902

902: Self-Authentication

1. Some evidence is authenticated merely by presenting it—no extrinsic evidence necessary

a. Rationale: this category

uminous to conveniently examine

b. Allowing a summary wouldn’t be unfair to opposing party

c. No genuine questions of summary’s authenticity

2. Other excuses:

a. All originals are lost or destroyed

i. Unless proponent did so in bad faith

b. Original or duplicate can’t be obtained through judicial process

c. Opposing party had control of the original or duplicate and has not produced it

i. Requires notice to opposing party

ii. Their failure to produce it

104 Questions of Admissibility

1. 104(a) questions of logical relevancy—i.e whether the evidence is admissible by law—are determined by the judge

a. Judge determines by preponderance of evidence that

i. Witness qualifications

ii. Privilege

iii. Admissibility of evidence

b. After objection, that party has the BOP

2. 104(b) questions of factual relevancy—i.e whether a fact exists—are determined by the judge under a lesser standard

a. Merely: has sufficient evidence been produced such that a jury could reasonably find that a fact exists

i. Did the defendant actually do the thing (Huddleston standard)

ii. Is the document authentic (901)

iii. Was the confession made

iv. Etc.