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

Evidence Outline – Mosteller – Fall 2010
I. The Order of Proof
A.    The Order of Proof at Trial
·         In a diversity action, the federal rules of evidence control. Do not run into Erie problems because they are procedural, not substantive, with few exceptions (such as rules of privilege, where state rules of privilege control). Reed v. GM Corp.
·         The party with the burden of proof is given a little extra advantage – to open the case and give the last presentation. Liptak v. Security Benefit Association
·         Whoever is going first is supposed to give a relatively full presentation of their case. Courts want to avoid gamesmanship. Seguin v. Berg
a)      The alternative is to march out just enough to give prima facie case, let D present their case, and then march out the really good part of your case. It is risky if the other side tailors their case so narrowly that you cannot claim rebuttal. The scope of rebuttal is limited to the defendant’s evidence.
b)      It is far more efficient if the first side is required to lay out their entire case.
c)      In general, the American Rule is that Plaintiff must present his full case. D must respond to the full case. D presents his full case. P must respond to full case.
·         Court has broad discretion to determine the timing of the case. What may have seemed like an arbitrary decision might have made perfect sense in the context of a busy courtroom. Duran v. Neff and Bommer v. Stedelin.
B.      Rulings on Evidence and Party Responsibility
Rule 103. Rulings on Evidence (2000 Amendment)
(a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. In case the ruling is one admitting evidence, a timely objection or   
motion to strike appears of record, stating the specific ground of objection, if the    
specific ground was not apparent from the context; or
(2) Offer of proof. In case the ruling is one excluding evidence, the substance of the
evidence was made known to the court by offer or was apparent from the context
within which questions were asked.
December 2000 Amendment: Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
·         This section is describing what constitutes harmless error. The policy is designed to afford the court an intelligent basis of decision and to enable the opponent to take possible corrective steps.
·         Substantial Right: A substantial right is affected by error that had a material effect upon or substantially swayed the deliberations of the jury. If error does not affect a substantial right, it is usually characterized as harmless.
·         Objection: The objection is the key to saving for review any error in admitting evidence.
a)      Specific grounds: It is the responsibility of the party who is bringing the objection to ensure that the judge understands the specific grounds of the objection. A party cannot object on one grounds during the trial and, if overruled, object on a different grounds on appeal.
b)      Timing: Party must object as soon as possible in order to prevent injury from inadmissible evidence from happening in the first instance. Motion to strike is used when it is necessary to hear the answer before deciding whether to object. Counsel should ask for an instruction to the jury if the testimony is stricken from the record.
·         Offer of Proof: The offer of prrof is the key to saving error in excluding evidence. If evidence is excluded, the party moving to introduce the evidence must make the evidence a part of the record. Otherwise, the party cannot raise the exclusion as an issue on appeal.
a)      Document: ask to make it part of the record for appeal and state its purpose.
b)      Testimony: more difficult. Judge can engage in question and answer. Party may also offer an affidavit or a statement.
·         December 2000 amendment: If the objection is ruled upon before trial, don’t have to renew it at trial.
a)      Some state rules, including NC, says that you still have to object at the moment the evidence is offered at trial by the other party even when the objection was noted before.
b)      Note: a ruling made by the court which is not “definitive” does not preserve error for appeal; the losing party is required to either renew the objection or make an offer of proof at trial. Counsel must clarify whether a ruling is definitive
c)      Even where the court’s ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is to be offered.
d)     Open question: does a party who objects to evidence that the court finds admissible in a definitive ruling, and who then offers the evidence to “remove the sting” of its anticipated prejudicial effect, waive the right to appeal the trial court’s ruling? The circuit courts are divided on this issue.
e)      Huddleston v. United States (1988): If the court decides in an advance ruling that the evidence is admissible subject to the laying of a foundation but the party fails to establish the foundation during the trial, the opponent cannot claim error based on the failure to establish the foundation unless the opponent calls that failure to the court’s attention by a timely motion to strike or other suitable motion.
f)       Luce v. United States (1984): 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. This rule is not disturbed by the 2000 amendment to Rule 103(a).
103(b) Record of offer and ruling. 
The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
·         This subsection gives the judge the power to add to the record. The judge may also require a question and answer form in order to resolve doubts as to the content of the excluded testimony.
·         The purpose of this provision is to reproduce for an appellate court, to the greatest extent possible, a true reflection of what occurred in the trial court and to resolve doubts about what testimony a witness would have given.
(c) Hearing

y by accused.          
The accused does not, by testifying upon a preliminary matter, becomse subject to cross-examination as to other issues in the case.
·         The accused may not be cross-examined during preliminary hearings
·         While this testimony may not be used against him as evidence, it may be admitted to impeach the defendant if he testifies.
104(e) Weight and credibility. 
This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
·         Something which goes to admissibility might go to weight and credibility, which the jury is allowed to hear. It saves time if the determination is done in the presence of the jury.
a)      Example: evidence used to determine the qualification of an expert.
·         Additional notes about Rule 104
a)      Admissibility is much freer in judge trials because judges are much better at disregarding inadmissible evidence than are juries, even with limiting instructions.
b)      Decision to exclude is much more dangerous than the decision to admit preliminarily.
B.     Limiting Instructions and Limited Admissibility
Rule 105. Limited Admissibility
When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
·         If evidence is coming in for a specific purpose, the opponent can have it limited to that purpose and the jury will be so instructed. Upon objection, the offering party has the burden of telling the court for which party or limited purpose the evidence is admissible.
a)      Example: Luce v. United States –  A defendant’s prior convictions cannot be used to prove the current crime. But there is another use: to demonstrate that the person might lie under oath. This rule only applies if D becomes a witness and it is a federal case.
b)      Party must request the limiting instruction
c)      Cannot complain on appeal unless you requested the limiting instruction. Sherman v. Burke.
d)     Counsel sometimes does not request the limiting instruction because it brings it up in the jury’s mind while they otherwise might have forgotten about it.
·         There is significant interplay between Rule 105 and Rule 403 (Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time). The effectiveness of the limiting instruction must be taken into account when considering whether to exclude the evidence for unfair prejudice under Rule 403.