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University of Pennsylvania School of Law
Rudovsky, David

Rudovsky – Evidence – Spring 2010
A.      Purpose of Evidentiary Rules– Five major reasons have been advanced…
1.       Mistrust of Juries – Federal Rules insure the evidence which is presented to juries is reliable
2.       Serve Substantive Policies Relating to the Matter Being Litigated – Rules should further the other rules and substantive policies relating to the trial (e.g. burden of proof, etc.)
3.       Further Substantive Policies Unrelated to the Matter in Litigation – Rules must not affect other institutions or relationships (e.g. privilege and medical relationships)
4.       Ensure Accurate Fact-finding
5.       To Control the Scope and Duration of Trials – Must set limitations on the trial (scope and duration) and force attorneys to be efficient in how they go about litigating their cases
B.      Evidentiary Procedure: Making & Responding to Objections
1.       Making Objections – When inadmissible evidence is offered, it is not the judge’s responsibility to notice this and to exclude the evidence. Instead, the adversary system places upon the other party the responsibility of objecting to the evidence, and only after a timely object with the trial judge determine whether the evidence is admissible
i)        Waiver – Where the non-offending party does not make a timely objection, he will normally be held to have waived any claim on appeal that the evidence was wrongfully admitted
2.       Timing – Objections must be timely. If the question alone makes it clear that the answer would be inadmissible, the objection should come before the witness answers.  Sometimes, however, it is not feasible to object before the answer b/c the inadmissibility may not become apparent until after the answer is given. In these situations, an “after-objection” may be made following the witnesses answer. The lawyer moves to have the witness’ answer stricken, and to have the jury instructed that it should disregard this evidence.
3.       General v. Specific Objections – Generally, the objection should be sufficiently specific for the judge and opposing counsel to know which of the many rules of evidence is being invoked.
i)        Federal Rules – FRE 103(a)(1) allows the appeals court to consider an evidentiary ruling only if the opponent made a timely objection “stating the specific ground of objection, if the specific ground was not apparent from the context.”
ii)      Effect of Specificity on Appeal – The handling of the ruling on appeal varies depending on whether the objection is specific or general…
a.       General Objections – A trial judge’s ruling on a general objection, whichever way the judge decides, will rarely be reversed on appeal. Only if there is no purpose or theory of admissibility to support the trial judge’s overruling will it be overturned. Conversely, if the general objection was sustained, the appellate court will uphold the ruling unless there is no basis whatsoever.
b.      Specific Objections – If the objection is specific, there are three possibilities…
i.         Correct Ground Cited – If the objector has correctly pointed out a specific rule of exclusion to the judge, and the trial judge overrules the objection, the appellate court will reverse (unless the error is found to be harmless, see infra)
ii.       Wrong Ground; Objection Overruled – If the objector picks a specific ground which is erroneous and the objection is overruled, the objector will generally lose on appeal even if there was a different specific ground on which merited exclusion. Rationale is that it is the party’s duty to select the correct ground for objection.
iii.      Wrong Ground; Objection Sustained – If the objector picks a specific ground which is erroneous and the trial judge erroneously sustains the objection even though there is a different, unnamed, valid ground for the objection, courts are split – some sustain the trial judge’s ruling on the grounds that the result was correct even though the reason was wrong; others reverse on the theory that the proponent, had he known of the valid ground, could have offered different evidence to support the point or otherwise cure the defect.
4.       Offer of Proof – If the trial judge sustains an objection, the proponent of the evidence must normally make an “offer of proof” if he wishes to be able to contend on appeal that the exclusion was reversible error. This offer of proof must normally consist of two parts: (1) a description of the evidence being proposed; and (2) an explanation of how that evidence relates to the case, if its relevance is not clear from the context.
i)        Federal Rules – Under FRE 103(a)(2), an appellate court will be permitted to normally consider a ruling excluding evidence only if “the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.” Furthermore, FRE 103(c) requires, where practicable, that the offer of proof be made outside of the jury’s hearing.
5.       “Plain” v. “Harmless” Error – Not every error in the admission or exclusion of evidence will be grounds for reversal. Furthermore, not every error to which no objection (or incorrect objection) is made will lead to an affirmance. An error will not lead to a reversal if it is “harmless” and an unobjected error may nonetheless lead to a reversal if it is “plain”
i)        Reversible Error – Refers to the kind of mistake that probably did affect the judgment
ii)      Harmless Error – Refers to the kind of mistake that probably did not affect the judgment
iii)    Plain Error – Refers to the kind of error in the estimation of the reviewing court that warrants relief on appeal even though the appellant failed at trial to take the steps usually necessary to preserve its right
C.      “Funnel” Illustration of the Rules of Evidence – Broadly, courts will allow all relevant evidence that has some sort of probative worth. Secondly, some evidence will be weeded down by issues of prejudice, time, and convenience. Then, evidence must be presented in a form or manner that is subject to challenge and impeachment through cross-examination by opposing counsel (e.g. hearsay evidence; an attorney can’t cross-examine a witness who is not present or accessible). Next, courts favor facts being given by witnesses over opinions (exception for expert witnesses, however). Finally, some evidence will be disallowed because of policy reasons (e.g. privileged information).

A.      Relevance Generally – The relevance rules restrict the trier of fact to considering only material that relates closely to the facts that matter in the case. Relevance is a low bar.
1.       Rationale – Concept of relevancy saves time b/c it narrows the topics that parties need to develop in preparation for trial. It also increases the perceived legitimacy of trials by ensuring that outcomes will be based on data most people would believe have something to do with the controversy.
2.       Two Aspects of Relevance…
i)        Probative Relationship – The evidence must make the factual proposition more or less likely that it would be without the evidence.
ii)      Materiality – The evidence must also be material. There must be a link between the factual proposition which the evidence tends to establish and the substantive law.
B.      FRE 401– Evidence is relevant if it has ANY tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable that it would be without the evidence.
1.       Evidence Almost Always Probative – Almost every piece of evidence at least slightly increases the probability of the existence of the fact to which it is directed; thus, evidence should rarely be excluded for lack of probative value. Alternatively, evidence is very frequently excluded b/c its probative value is outweighed by prejudice, etc.
2.       Credibility Not a Factor for Relevance Determination – When the court measures probative value to determine whether it is outweighed by prejudicial effect, the court should not factor in doubts it may have about

it should normally compare the proffered item against other possible evidence on the same point. If the alternative evidence has the same or nearly the same probative effect and much less prejudicial value, the court should insist the other evidence be used.
2.       Stipulation to Past Convictions – When a prior criminal conviction is a necessary element to a charged offense, defendants will often seek to stipulate to the existence of the prior conviction to avoid a reading of the details of the prior offense. When such an alternative exists, it is improper to allow a reading.
i)        Old Chief v. United States – D is charged w/ assault with a deadly weapon & possession of a fire arm while having a prior felony conviction. D offers to stipulate that he has a prior felony conviction. The trial judge instead allows prosecution to read prior judgment for aggravated assault. Held: Prior judgment had the same probative value as D’s proposed stipulation. On the other hand, the judgment itself posed a large danger of prejudice to D, b/c the risk that jury would reason that since D committed serious assault before, he was probably guilty of the presently-charged assault as well. Reversible error.
3.       Gruesome Photographs – Where gruesome photos of human injuries, or of a corpse, are sought to be shown to a jury, they will be usually excluded if they are distorted (wounds are from autopsy, not accident) or are unnecessarily large or colorful. 
i)        However, where the photos are necessary to convey to the jury the details of how the defendant brought about the victim’s death/injury, the fact that the photos are gruesome, colorful, or greatly enlarged will not usually lead to exclusion.
C.      Confusion – Relevant evidence may be excluded if its probative value is outweighed by its tendency to confuse or mislead the jury, or unduly distract it from the main issues.
1.       Ex: Evidence that the accused has committed past crimes may not only be prejudicial (supra) but it may also distract the jury from the fact that there is only weak evidence that the accused was the person that did the act.
D.      Waste of Time – Evidence may also be excluded if it would be a waste of time. This is especially likely to be the case where the evidence is cumulative
1.       Ex: I a case in which the accused is charged with having poisoned the descendent, presentation by either side of more than two or three witnesses all testifying as to the cause of death might be deemed to be needlessly cumulative and therefore excluded.
E.       No “Unfair Surprise” Exclusion – FRE 403 does not recognize “unfair surprise” as a ground for excluding otherwise relevant evidence. If proposed evidence takes the other side by surprise, appropriate remedy is a continuance.
F.       Standard for Appellate Review – Appellate courts have generally given trial courts wide discretion in the balancing between probative value and prejudice. Only where there is clear abuse of discretion will the trial court’s decision be overturned on appeal. The Federal Rules tip the scale in favor of the inclusion rather than exclusion of doubtful evidence, by allowing exclusion only where the probative value is “substantially outweighed” by prejudice, confusion, etc.