Evidence – Ford – Fall 2013
Appellate Review of Evidentiary Rulings
· FRE 103 Preserving a claim of error (page 4 in supplement)
o (a) A party may claim error in a ruling to admit or exclude evidence ONLY if the error affects a SUBSTANTIAL right of the party and
§ (1) if the ruling admits evidence a party on the record:
· (A) TIMELY OBJECTS or moves to strike AND
· (B) STATES THE SPECIFIC GROUND, unless it was apparent from the context
§ (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context
o (b) Don’t need to renew the objection IF it is
§ definitive AND
§ on the record
o (c) Directing an offer of proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court MAY direct that an offer of proof be made in question and answer form.
o (d) to the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means
o (e) Appellate court may take notice of plain error affecting a SUBSTANTIAL right, even if the objection was not properly preserved
· ACNs (policy etc.)
o Re: 103(b) à need to renew objection
§ The amendment provides that a claim of error with respect to a definitive ruling is preserved for review when the party has otherwise satisfied the objection or offer of proof requirements of Rule 103(a). When the ruling is definitive, a renewed objection or offer of proof at the time the evidence is to be offered is more a formalism than a necessity.
§ The amendment imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point
o Re: 103(c)à Offers of proof
§ Nothing in the amendment is intended to affect the rule set forth in Luce v. United States, 469 U.S. 38 (1984), and its progeny. The amendment provides that an objection or offer of proof need not be renewed to preserve a claim of error with respect to a definitive pretrial ruling. Luce answers affirmatively a separate question: whether a criminal defendant must testify at trial in order to preserve a claim of error predicated upon a trial court's decision to admit the defendant's prior convictions for impeachment. (A criminal defendant must testify in order to preserve his improper impeachment with a prior conviction objection.)The Luce principle has been extended by many lower courts to other situations.
o Policy Re: Timely Objections
§ A rule requiring a timely objection serves several purposes. (1) it brings any potential error to the trial court’s attention so that the court can prevent the error from occurring by ruling on the admissibility of the proffered evidence before it is admitted; (2) it gives opposing counsel an opportunity to cure the potential problem, such as by laying the necessary foundation, rephrasing the question, or calling a different witness; (3) it promotes finality by minimizing the need for re-trials by preventing errors from occurring in the first place. A rule requiring a timely offer of proof serves these same purposes, and also ensures that a record is created that enables the appellate court effectively to review the trial court’s decision on appeal.
· Cases
o US v. Meserve (1st Cir 2001)—Timely Objection
§ “To be timely, an objection must be ‘made as soon as the ground of it is known, or reasonably should have been known to the objector’
§ General Principle (at trial): An objection should be made after a question has been asked but before an answer has been givenà but this is flexible eg. in a hotly contested criminal trial
· Can also make a motion to strike if the answer has already been said
o US v. Wynn (2d Cir. 1988)—Proper Objection
§ To preserve an issue for appellate review, a party must make a proper objection at trial that alert the court and opposing party to the specific grounds for the objection. An objection is proper only if a party timely objects or moves to strike, and states the specific ground, unless it was apparent from the context. Fed. R. Evid. 103(a)(1). Neither a general objection to the evidence nor a specific objection on other grounds will preserve the issue for review. The specific ground for reversal of an evidentiary ruling on appeal must also be the same as that raised at trial.
o US v. Adams (10th Cir. 2001) –Offer of Proof
§ Error may not be based on a ruling excluding evidence unless the substance of the evidence was made known to the court by offer of proof or was apparent from the context within which questions were asked. Merely telling the court the content of proposed testimony is not an offer of proof. In order to qualify as an adequate offer of proof, the proponent must first describe the evidence and what it tends to show and, second, identify the grounds for admitting the evidence. If the proponent’s offer of proof fails this standard, then the appellate court can reverse only in instances of plain error that affected appellant’s substantial rights.
§ POLICY: A twofold purpose underlies these requires showings. First, an effective offer of proof enables the trial judge to make informed decisions based on the substance of the evidence. Second, an effective offer of proof creates a clear record that an appellate court can review to determine whether there was reversible error in excluding the testimony.
§ Federal Rule of Evidence 103(a)(2) does not mandate a particular form for offers of proof. Instead, the rule invests the trial judge with discretion in determining the form of the offer. Fed. R. Evid. 103(c).
§ There are at least four ways to make an offer of proof of testimony and achieve the purposes underlying the rule:
· (1) the proponent may examine the witness before the court and have the answers reported on the record;
· (2) a statement from counsel as to what the testimony would be; à MT prefers this method
· (3) a statement written by examining counsel describing the answers the proposed witness would give if permitted to testify;
· (4) a written statement of the witness’s testimony signed by the witness and offered as part of the record.
o Crowe v Bolduc(1st Cir 2003)à definitive ruling on admissibility of evidence
§ A party must renew at trial its motion to offer or exclude evidence if there has been an earlier provisional ruling by motion in limine and a clear invitation to offer evidence at trial. If, by contrast, the in limine ruling is final and unconditional, the issue was preserved for appeal and no further steps need be taken to preserve the issue. Once the court rules definitively on the record —either before or at trial—a party need not renew an objection or offer of proof to preserve a claim of error for appeal. Fed. R. Evid. 103(b). This imposes on counsel an obligation to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point. Fed. R. Evid. 103 advisory committee note.
o Luce v. US (US 1984)à improper impeachment with a prior conviction
§ To raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. POLICY Requiring that a defendant testify in order to preserve the Rule 609(a) claims will enable the reviewing court to determine the impact any erroneous impeachment may have had in light of the record as a whole; it will also tend to discourage making motions solely to plant reversible error in the event of conviction.
o Ohler v. U.S. (US 2000) — a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted.
o Mohawk Industries, Inc v. Carpenter (US 2009) — decisions by a trial court judge admitting or excluding evidence generally are not subject to immediate appellate review.
o U.S. v. Piper (1st Cir. 2002) — harmless error doctrine.
§ A non-constitutional evidentiary error is harmless (and therefore does not require a new trial) so long as it is highly probable that the error did not influence the verdict. Under this test, the government bears the burden of establishing harmlessness. There is no bright-line rule for divining when particular errors that result in a jury’s exposure to improper evidence are or are not harmless. Rather, a harmlessness determination demands a panoramic, case-specific inquiry considering, among other things, the centrality of the tainted material, its uniqueness, its prejudicial impact, the uses to which it was put during the trial, the relative strengths of the parties’ cases, and any telltales that furnish clues to the likelihood that the error affected the fact-finder’s resolution of a material issue.
§ Cumulative evidence is typically regarded as harmless.
§ The harmless error and plain error doctrines are similar because both allow for reversal only when the error can be shown to have affected the outcome of the proceedings but are different with respect to the burden of proof.
§ The harmless error standard for non-constitutional errors in Piper was that the government must show that it is highly probable th
§ The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute.
o Re: 104à Preliminary Questions
§ 104(a) standard is whether the court itself is convinced by a preponderance whether the conditions for admissibility have been met
§ There is no objection for Rule 104 per se
§ 104(b) standardà “conditional relevance”
· Lower belief of court standard:
· She doesn’t have to believe that the predicate fact is true
· Has to let evidence in if a reasonable person could believe the predicate fact is true
o Re: 403à Excluding Evidence
§ …certain circumstances call for the exclusion of evidence which is of unquestioned relevance. These circumstances entail risks which range all the way from inducing decision on a purely emotional basis, at one extreme, to nothing more harmful than merely wasting time, at the other extreme. Situations in this area call for balancing the probative value of and need for the evidence against the harm likely to result from its admission.
§ In reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction. (Rule 105) The availability of other means of proof may also be an appropriate factor.
§ POLICY: give jury all the information it needs to reach a verdict. Rule 403 withholds relevant information
§ Span[s] the whole of the Federal Rules of Evidence, and as such trial judges must apply Rule 403 in tandem with other Federal Rules under which evidence would be admissible
o Re: 105à Limiting Instruction
§ A close relationship exists between this rule and Rule 403…
§ The availability and effectiveness of this practice must be taken into consideration in reaching a decision whether to exclude for unfair prejudice under Rule 403.
§ In Bruton v. United States, the [Supreme] Court ruled that a limiting instruction did not effectively protect the accused against the prejudicial effect of admitting in evidence the confession of a codefendant which implicated him. The decision does not, however, bar the use of limited admissibility with an instruction where the risk of prejudice is less serious.
§
o Re: 106à Remainder of Related Writing/Recorded Statement
§ The rule is based on two considerations. The first is the misleading impression created by taking matters out of context. The second is the inadequacy of repair work when delayed to a point later in the trial. See McCormick §56; California Evidence Code §356. The rule does not in any way circumscribe the right of the adversary to develop the matter on cross-examination or as part of his own case.
§ For practical reasons, the rule is limited to writings and recorded statements and does not apply to conversations.
· Cases
o Re: 401à Test for Relevant Evidence
§ U.S. v. Dillon (6th Cir. 1989)à Inferential Relevance Re: Flight Evidence
· Flight evidence comes in as an admission of guilt by conduct. SCOTUS has consistently doubted the probative value in criminal trials of evidence that the accused fled the scene of an actual or supposed crime. Where evidence of flight has genuine probative value, however, it is generally admissible as evidence of guilt and juries are given the power to determine how much weight should be given to such evidence.
