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

Evidence – Mosteller – Fall 2015

General Exam Notes

Evidence Rules are an Obstacle Course-

Use the pneumonic to figure out any possible exceptions
These are an independent ground for exclusion
Trial has 3 rings


Hear Paw Brown

Best Evidence
Opinion testimony
Notice (Judicial)

30 multiple choice, 3 mins each


Hour and a half, federal district court, common law
Possibly 3 questions, separate fact situations
Be prepared to run out of time, this should be an opportunity, write about what you know, better answers are people who move through all parts of the question

Grab the low hanging fruit and move up

More credit for the reasoning process than for the outcome, but definitely pick a side

*Any time you deal with admissibility of evidence, ask what it is being offered to prove*

Four Tests To Pass to Get It In:

Identify what you are using the evidence for
Do the Balancing Test / Relevancy Analysis

Logical relevancy under Rule 401–03
Conditional relevancy under Rule 104(b)

: usually, you have to prove the author of a document to prove the document’s relevance

Authentication (Rule 901)

Proponent must present enough evidence that a reasonable jury could find (104(b) test) that the evidence in question is what you are claiming it to be (prima fascia proof)

Easy for demonstrative evidence, not always easy with real evidence

Make sure it’s not Hearsay
Best evidence (Rule 1002)

The Adversary System

Role of Judges and Juries

Judge: “judge is not a mere moderator, but is the governor of the trial”

Determines whether evidence is admissible,
Other abilities

1) Alter the order of proof at trial
2) Permit a witness to testify out of order
3) Allow a witness to be recalled
4) Grant a party’s request to reopen the case

Juries: finders of fasct, determines weight of the evidence admitted by the judge

Ex: Jury determines how credible a witness is


Find evidence and introduce it and present it to the jury
Decide when to object. This is NOT the judge’s job

Jury Questioning

FR does not allow or disallow this…. Rule 611(a) provides the only guidance: court should exercise reasonable control over the mode and order of examining witnesses

Pro: May increase juror attentiveness, might indicate areas of confusion to lawyers
Con: May convert jurors to advocates, compromising neutrality, attorneys that object can alienate the jury

Rule 614 – Calling and Interrogating of Witness by Court

614(a) – Calling

Judge may call witness on its own (not common) or at the request of a party
All parties are entitled to cross-examine witness, including the judge.
Side Note: Judge can appoint expert witnesses Rule 706, page 71
A party may object to Court calling a witness at the time or next opportunity when jury is not present

614(b) – Interrogation by Court/Examining

Court may examine a witness regardless of who calls the witness
Implicit Impartiality Requirement: judge cannot express belief or disbelief of witness while questioning him, this job is for the jury
Commenting- technically the judge can comment on the evidence as long as he tells the jury this is still their job.
– abuse of authority if judge acts as an advocate for one side

U.S. v. Beaty – Beaty And Ballouz claimed the judge “chilled” their counsel and showed favoritism to the government. Held that judge essentially cross-examined D’s witness, doing more than clarifying.

Judge may interrogate for Clarification, but not about Credibility

Example: You said 5 o’clock, did you mean 5AM or 5PM?

Cautionary Instructions – juries are ok with this but jury instructions are not sufficient to mitigate a huge fail “it might have sounded like I have an opinion, but I don’t.”

614(c) – Objections

A party may object to the judge’s questioning of the witness at that time or next opportunity when jury is not present

Allows counsel avoid embarrassment of objecting to questioning by judge in front of jury

Rule 104 – Preliminary Questions of Admissibility

When a party is objecting to a piece of evidence coming in:

– JUDGE decides preliminary questions or conditional facts (like whether a witness is qualified, a privilege exists, is the witness available, or evidence is admissible). In doing so, the Court is not bound by evidence rules, except privilege. (Judge can consider hearsay etc but cannot undecide if something is privileged)

of Proof: preponderance of the proof for preliminary questions

Sometimes raised to “clear and convincing” in criminal cases

Rule 104(a) applies to: (1) privilege, (2) best evidence, (3) hearsay, (4) expert opinion
judge decides if person is medical expert, and if attny-client privilege exists

U.S. v. Zolin – When bound by privilege, a court may hold in camera hearings when a privilege is challenged to determine if one exists. (ex: att-client) [Review is not automatic].
Before in camera review, requesting party must present evidence sufficient to support a good faith, reasonable belief that review may reveal evidence that establishes the exception’s applicability. In making such a determination, the court may use any relevant evidence that is not itself privileged.

Rule 104(a) does not permit the trial judge to usurp the jury’s function and exclude evidence based on the judge’s determination that it lacks persuasive force

Relevance that depends on a fact (Conditional Relevance)

When the relevance of evidence depends on whether a fact exists, proof must be introduced to support the finding that the fact exists.
Court may admit the proposed evidence on the condition that the proof be introduced later
Rule 104(b) applies to: (1) authentication, (2) relevance, (3) best evidence exceptions
Standard for Conditional Relevance: “Sufficient evidence so jury could find” standard. Big win for prosecutors.

Huddleston v. U.S. – when relevancy of evidence is conditional on existence of fact, a judge is not required to find proof that those acts occurred by a preponderance of the evidence. The standard is whether a jury could reasonably find the evidence relevant.
If the court decides in an advance ruling that the evidence is admissible subject to the laying of a

peal – Preserving Claim for Error Party may claim error in ruling to admit or exclude evidence only if affects a substantial right of the party: AND (1) (A) & (B) OR (2). if the ruling admits evidence, a party, on the record: Timely objects to move or strike, and States the specific ground unless apparent by context OR if the ruling excludes evidence – the party informs court of its substance by an offer of proof, unless substance is apparent from context Notes(a) You can only complain about harmful errors(A) Contemporaneous Objection Rule, you can even object before the witness answers. Must object reasonably after the offending thing.(B) This rule requires a party to state the “specific ground” for an objectionSpecificity Requirement – A specific objection sustained (like gen. obj.) is sufficient, even if naming an untenable ground (aka wrong), if some other tenable ground existedNo objection under the three I’s [Incompetent, Irrelevant, Immaterial] Williams v. State – untimely and unspecific objections will not preserve an issue for appeal, whether pro-se or represented by attorney Pro se defendants cannot consider themselves errorSometimes strategic reasons for general objectionsUseful when not sure exactly why evidence should not be admitted, but bad when no record to review on appeal that would allow ct to overturn judge’s overruling the objectionWilson v. Williams – pre-trial objection to the particular use of evidence does not preserve that objection when the evidence is used in a different, inappropriate way. Misuse of evidence cannot be argued on appeal without a specific objection. NEW violation! To preserve it, need to object again.Documents – specificity requires that counsel indicate which particular portions are objectionableClear from Context- might save you, don’t rely on thisBefore you leave it, have it how you want it or you’re stuck with it. Did judge have opportunity to make the right call? If sustained and the evidence stays out, app court doesn’t know what it was.Now other side has to perfect the record! Your opponent will have to say why the evidence is admissible. If sustained, the evidence stays out so we don’t know what it was. MUST PRESERVE ISSUE ON APPEAL. We need to know what the court ruled as inadmissible. Now proponent of evidence need an offer or proof! If you don’t put in what was excluded, app court doesn’t know if it was harmless error or not. You need to say why it was admissible. This is in case law. Formal record of substance of excluded evidence.à To raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify at trial FRE 609 – impeachment