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University of North Carolina School of Law
Smith, Robert J.

Smith – UNC LAW – EVIDENCE – Fall 2013
General stuff – note that evidence rules only come into play when there’s an OBJECTION to something!
Purpose/value of evidence rules:
–          Efficiency
o   Ex. Rule 401 – make sure only pertinent evidence is admitted
–          Preventing prejudicial and irrational decision-making
o   Ex. Rule 403 balance – we don’t have sufficient confidence that fact-finders can really ignore prejudicial facts
–          Social policy
o   Social policy objectives (ex. attorney-client privilege) would be undermined by a system of unconstrained advocacy
–          Ferreting out potentially unreliable information
Note: even though there are very few fed trials, still need to know evidence rules – they can come up at any stage of litigation (ex. summary judgment)
–          Only exception: evidence rules NOT at play in bench trials b/c its just the judge – no reason to use evidence rules in that situation
–          Important in how you value settlements – what is going to get to the fact-finder impacts how much you’re willing to pay
First principles: The Federal Rules of Evidence are PURPOSE-DRIVEN
–          This means that admissibility is going to be heavily dependent on the purpose for which the evidence is being offered
o   This means that the same pieces can be inadmissible for purpose A, while being totally admissible for purpose B! (RULE 105)
§  Note: in this situation, the proponent of a piece of evidence will offer the evidence and be prepared to articulate ONLY the ACCEPTABLE purpose because there will definitely be an objection
§  We do this because if we had a total bar against ANY bad purpose, TOO MUCH evidence would be excluded!
o   In these situations, a court will issue a limiting instruction – tells the jury this evidence can be used for x purpose but not y purpose.
§  Cardozo: at some point, the reverberating claim of the bad part of the evidence overcomes the sound of the good – at this point, limiting instruction will not do the job and 403 will exclude
Background of the FRE:
–          Pre-FRE=common law
–          FRE (goes from Advisory Committee – Supreme Court – Congress)
o   Advisory committee (appointed by SCOTUS) – made up this code, then sent it to Congress.
o   Advisory committee made up of judges, practicing lawyers, law professors
o   Goes to the Supreme Court next
o   Congress – future modifications CAN come straight from Congress, or if Congress or SCOTUS doesn’t modify it, straight from the Advisory Committee
–          How to interpret the federal rules:
o   Plain meaning (read the rules)
o   Advisory notes AND CONGRESS
–          Where do the FRE apply?
o   All federal courts, including trials by bankruptcy and magistrate judges
o   Civil and criminal cases
o   NOT in state courts, but many are very similar
–          Trial Structure (in order)
o   Pretrial Motions
o   Motions In Limine – most common kind of motion – is made right at the start, and usually in criminal cases it’s requesting that a judge admit certain kinds of evidence
§  You file them pretrial because in most criminal cases, defendants will take a plea. Motions in limine would help guide you as to whether you should go to trial at all. If a judge, for instance, allows you to request things like prior criminal history, that could help you a lot if you go to trial. If she doesn’t allow it, trial could be a bad choice for you.
o   Motions Hearing – you’ll debate with the other side before the trial judge about whether a motion should be granted & evidence admitted
o   Jury Selection
§  You start with the jury pool, or venire, and narrow it down to 12 people
§  Ask them lots of questions to figure out if they’ll have a bias for plaintiff, defendant, etc.
o   Opening Statements (from both sides)
o   Plaintiff’s case-in-chief
o   Defendant’s case-in-chief
o   Plaintiff’s Rebuttal
o   Defendant’s Rebuttal
o   Closing Arguments (from both sides)
o   Jury Instructions
§  Given by the judge to the jury, basically a restatement of key terms and of the law/reasoning that the jury is supposed to be using to convict someone 
o   Deliberation (by the jury)
o   Delivering the Verdict
§  Sometimes it is requested that the jury be polled, and if that is the case, each juror has to say how he or she voted (just to make sure; sometimes there’s some drama here)
I. Preserving a Claim of Error, Limiting Instructions, and Relevance
–          FRE 103 (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 (note: “affects a substantial right” is the harmless error standard codified) AND
o   (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 context
o   (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.
–          FRE 103 (b) Not needing to renew an objection or offer of proof
o   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.
o   If the court didn’t rule definitively on a motion in limine, you have to make your objection again and make your offer of proof again at trial (this is a case where you DO have to renew both)
–          FRE 103(c) court’s statement about the ruling; 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
–          FRE 103(e) Taking Notice of Plain Error
o   A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved
–          Some points about this rule:
o   Burden is on parties to make their points the record
§  Object/move to strike
§  State grounds
§  State factual basis
§  If not clear if ruling is final
·         Ask: is this a first ruling?
·         Object contemporaneously
·         Don’t context/expressive conduct
§  Proffer
§  Judges can takes steps to make the record clear
–          Judge’s Options Rulings on Evidence Options
o   Overrule (admit evidence)
o   Sustain (exclude evidence/strike evidence from the record)
o   Admit evidence w/limiting instructions
o   Admit modified version of the disputed evidence (e.g. redacted)
o   Admit for limited purpose or against limited parties 
–          Appellate courts review evidentiary issues only if the complaining party complied with the proper procedures during their bench or jury trial.
o   Appellate judges use a lenient “abuse of discretion” standard to review most evidentiary decisions.
o   An appellate court will reverse a judgment on evidentiary grounds, only if the trial judge’s erroneous decision affected a “substantial right of the party.” 
–          FRE 105 – Limiting Instructions:
o   IF T

ething must be substantially more prejudicial than probative to be excluded
–          This only happens in the most egregious of cases – 403 is concerned with:
o   Prejudice/jury inflammation
o   Confusion of the jury
o   Undue delay of proceedings
Delay is the ONLY prejudice you can raise in a bench trial because we have this legal fiction that judges can’t be prejudiced and the judge will be insulted if you say he got confused or is prejudiced
–          You need to consider the total amount of evidence when making the 403 assessment
o   The more evidence you have, the less important one piece will be
o   The less evidence the prosecution has, the more prejudicial evidence they can get in
o   When the evidence is in equipoise (equally probative and prejudicial), it will be admitted
How to object on 403 grounds:
–          Make an in limine motion in advance of trial
o   Judge will hold in camera (in private) hearings to rule on admissibility of test’ny
–          Object before or when the question is answered
o   You need to object to get a less lenient std of review (see below)
–          In a bench trial, you can only object based on “unreasonable delay”
Standard of review?
–          Appeals courts are SUPER deferential to a trial court’s 403 determination – standard of review is abuse of discretion
o   Does NOT turn on whether the court’s exclusion was RIGHT, just about whether it was reasonable – why?
§  Appeals courts look at cold record; trial judges see everything in person
§  Trial judges have to make immediate decisions, so we are willing to cut them a little slack – otherwise, trial courts would have to take a really long time and this would undermine the justice system
o   BUT there still are major missteps that can lead to a reversal under an abuse of discretion standard
§  When the trial court improperly balances the evidence (ex. judge thought prejudice just meant “harms the other side,” as opposed to “unduly harms the other side”)
§  The judge is supposed to assume the evidence is true before conducting a probative value analysis – any decision that the judge makes as to the evidence’s credibility at this stage is an encroachment on the jury’s role as fact-finder and is thus an abuse of discretion
o   NOTE: if the opposing party does NOT make a “timely and specific objection” to the introduction of a piece of evidence in question, the standard of review is even more deferential – PLAIN ERROR [need to object to the evidence] §  In order to be granted a reversal under plain error review, the mistake must be obvious and unjust
§  Will basically NEVER happen in the evidence realm because a judge is rarely SO wrong in failing to intervene – the judge is not an advocate, not his job to step in and KEEP OUT bad evidence