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University of North Carolina School of Law
Mosteller, Robert P.


Robert Mostellar

Spring 2014

FRE Series

I) 100 – Procedure

II) 200 – Judicial notice

III) 400 – Relevancy

IV) 500 – Privilege

V) 600 – Witnesses

VI) 700 – Expert & opinion

VII) 800 – Hearsay

VIII) 900 – Authentication

IX) 1000 – Best evidence


Roles of Judge & Jury: Calling and Examining W (RULE 614)

I) Court’s calling or examining W (R614): judge may call Ws according to the following conditions

a. Conditions

i. Calling: court may call Ws (at his discretion or either party’s request)

1. Each party entitled to cross

ii. Examining: court may examine W regardless of who calls the W

1. Authority abused when judge assumes role of advocate

iii. Objections: party can object to calling/examination of witness (1) at the time or (2) next time jury isn’t present

b. Display of bias by judge

i. Becomes advocate

ii. Judge’s questions damage W’s credibility

iii. Questions are for clarification (rather than leading)

iv. Importance of W (key or peripheral)

v. Presence of jury?

vi. Neutrality

Roles of Judge & Jury: Preliminary questions (RULE 104)

I) General rule (104(a)): Judge must decide preliminary question whether W is qualified, privilege exists, or evidence is admissible

a. Std: preponderance of the evidence (does judge believe more likely than not)

b. Decider: judge

c. Applicable series: 200, 500, 700, 800, 1000

i. Judicial notice, privilege, EW, hearsay, best evidence

d. NOTE: judge can rely on inadmissible evidence except in making determination

i. Exception: privilege

1. Arguably privileged material can be looked at by judge

2. Adjudicated privileged material can’t be looked at by judge

II) Conditional relevance exception (104(b)): Judge only makes screening determination whether triable issue exists and jury makes actual determination

a. Applicable series: 400, 900 (and 1008)

i. Relevancy and authentication

b. Decider: judge screens for triable issue; jury decides based on preponderance of proof

i. “Could a reasonable juror could find issue by a preponderance of proof (>50%)”

c. Conditional relevance ONLY

i. Ex: letter purporting to be from Y is relied upon to establish an admission by him; it has no probative value unless Y wrote or authorized it

d. Connecting up: judge can admit proposed evidence on condition that proof is introduced later

e. Even acquittal can be brought in b/c of reasonable doubt vs. preponderance

i. Huddleston

1. D convicted of knowingly selling stolen goods

2. P wanted to introduce evidence of D’s past shady-dealings w/ stolen goods

a. D argued that since he hadn’t been convicted of dealing w/ stolen goods that the evidence couldn’t be used against him

3. Court held that D didn’t have to be convicted of other crime, only that jury could determine by preponderance of evidence that D committed the other crime

III) 104(c): Judge must have hearing away from jury regarding prelim question if (1) it involves admissibility of confession, (2) D is a witness that requests, or (3) justice requires

IV) 104(d): by testifying on prelim question, crim D isn’t subject to cross on other issues in the case

V) 104(e): R104 doesn’t limit party’s right to introduce evidence before the jury that is relevant to the weight or credibility of evidence admitted under R104

a. Even if the judge allows evidence to come in, party can introduce evidence relevant to the weight/credibility of the allowed evidence

b. Crane v. Kentucky

i. Judge allowed evidence of D’s confession to come in despite claim it was coerced

ii. Even though confession comes in, D can still over evidence regarding the confession (# of interrogators, length, etc.)

Party Responsibility (RULE 103)

I) R103 (rulings on evidence): covers objections and preserving arguments for appeal

a. Preserving claim of error: party can claim error in ruling only if it affects a substantial right

i. If evidence admitted: party must (1) timely object/move to strike and (2) state specific ground

ii. If evidence excluded: party must inform court of substance if the evidence had come in via offer of proof (added to record for appellate purposes)

b. Offer of proof

i. Excuse jury and put W on stand

ii. Stmt by counsel as to what W’s testimony would be

iii. Written stmt of W’ testimony signed by W

c. No renewal of objection: once judge rules definitively on the record (before or at trial), party doesn’t have to renew objection/offer of proof to preserve claim

d. Plain error: court can take notice of plain error affecting substantial right, even if the claim of error wasn’t properly preserved (must be extremely substantial and obvious) (very rarely successful)

e. Contemporaneous objection: if objection isn’t in a timely fashion, party is typically barred from full review and instead heard under plain error

f. Specificity: denote which parts are being objected to (some might be admissible while others are inadmissible)

g. General objection

i. Sustained: beneficial for moving party

1. Non-moving party should seek clarification from judge on basis objection

ii. Overruled: detrimental for moving party at COA

iii. Loser will typically be left with plain error review on appeal

h. NOTE: to preserve claim of improper impeachment w/ prior conviction, D must actually testify

i. Ex: if court overruled D’s motion in limine to exclude previous drug conviction, D can’t challenge ruling unless D actually testifies at trial (Luce)

i. NOTE: “p

nadmissible in negligence action

1. Exception: determination of punitive damages (Hall v. Montgomery Ward)

ii. Evidence of poverty offered to prove motive for crime involving financial gain

1. Exceptions: p. 229

iii. SEE PROBLEM 7-5

IV) Liability insurance (R411): evidence that person did/didn’t have liability insurance is inadmissible to prove that person acted negligently

a. Plcy rationale: encourage public to buy insurance

b. Exception: admissible to prove W’s bias or to prove agency, control, ownership

i. Ex: D claims he didn’t own property; P could introduce evidence of D’s insurance of property to prove ownership

ii. Then proceed to R403

iii. Reed v. GM (inability to pay doctrine renders existence, not amt, of insurance coverage relevant)

V) R403 applications

a. Similar happenings/events (negligence): evidence of occurrences similar to the one sued upon in negligence action to show dangerousness of a condition if the agency or instrumentality are in substantially the same condition

i. Typically considered under R403 rather than R404(b)

ii. Used to show:

1. Existence of condition

a. Spout was designed w/ hook that caused horses bridle to stick and the horse to bolt (Bloomington v. Legg)

2. Condition unreasonably dangerous (thing must be in exact same condition)

3. Condition caused the accident

a. Wasn’t the bridle that caused the accident as demonstrated by similar prior horse accidents (Bloomington v. Legg)

4. Notice: parties should be on notice b/c of previous accidents

iii. Potential objection: confusion of the issue (will be excluded if it substantially outweighs)

iv. NOTE: requirement of similarity of circumstances

1. Strict similarity: evidence offered to show dangerousness of condition

2. Less similarity: evidence offered to show notice

b. Absence of info doesn’t necessarily prove that nothing happened (accidents not always reported)


c. Replication: evidence of tests/experiments conducted under circumstances approximately similar to the incident is admissible

i. Created specifically for litigation (can be suspect b/c of bias)

1. Carpenter v. Kurn

ii. Created outside litigation (done neutrally)

1. Foster v. Agri-Chem