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:
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
PRESERVING A CLAIM OF ERROR
– 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
§ 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
How to do the balance? PRESUMPTION OF ADMISSIBILITY/PROBATIVENESS
– 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