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Evidence
University of South Carolina School of Law
Miller, Colin

Prof. Colin Miller

Evidence

Fall 2015

Objections, Motions to Strike, and Offers of Proof

RULE 103. RULINGS ON EVIDENCE

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(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 the context; or

(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.

-(1) Rule 103(a)(1): A party opposing evidence must timely _object__ or __move to strike_ and state the specific ground (unless that ground was apparent from the context) to preserve the issue for appellate review

-An objection is “a formal statement opposing something that has occurred, or is about to occur, in court and seeking the judge’s immediate ruling on the point.”

-A motion to strike is similar to an objection but always comes after evidence or testimony is admitted.

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Hypothetical: The prosecutor calls John, who testifies, “I heard Mike say that Fred robbed the bank.” (1) Defense counsel, objects, “Objection, your honor. This is inadmissible hearsay.” Was this proper? (2) Defense counsel objects, “Objection, your honor!” Proper? (2) The next day of trial, defense counsel says, “Your honor, we move to strike John’s testimony from yesterday because it was inadmissible hearsay. Proper? YES, NO, NO

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-(2) The judge can either __sustain____ the objection, meaning that the evidence is excluded, or _overrule___ the objection, meaning that the evidence is admitted

-(3) Rule 103(a)(2): If the judge sustains an objection or motion to strike, the opposing party must inform the court of the substance of the proffered evidence by an _offer of proof__ unless (the substance was apparent from the context)

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Hypothetical: Al is on trial for arson. Defense counsel calls Ed as an expert witness. The prosecutor responds, “Objection, your honor. We concede that Ed is an expert in law enforcement, but we think he lacks the credentials to testify as an expert regarding arson investigations. After a Daubert hearing, the court finds that Ed cannot testify as an expert witness. (1) Defense counsel then asks the judge whether Ed can “testify” outside the presence of the jury so that his proposed testimony can be included in the trial transcript. Was this proper? YES (2) Defense counsel simply tells the judge, “You’re going to be reversed on appeal and call his next witness. Proper? NO, no offer of proof

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-(4) If a party preserves an error for appellate review, the court determines on appeal whether the error likely had a substantial influence on the outcome at trial: _harmless error___ analysis. = two part analysis ß how important was the error and is there a reasonable probability that the error substantially affected the trial?

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Hypothetical: (1) At Sal’s trial for robbing a bank, a clear surveillance video showing someone looking just like him is properly introduced. Several hearsay statements, however, are also introduced over defense counsel’s timely objection. Harmless error? NO (2) At Sal’s trial for robbing a bank, there is no surveillance video, and eyewitness accounts seem to indicate that the bank robber was shorter and thinner than Sal. Two hearsay statements are accusing Sal of the crime are improperly admitted over defense counsel’s timely objection. Harmless error? YES

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-(5) Rule 103(e): (e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

-(6) If a party fails to preserve an evidentiary issue, the court will only reverse for _plain error_________, which means that the error cannot be subject to reasonable dispute and that the court still has discretion over whether to reverse.

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Hypothetical: (1) At Ginger’s joyriding trial, the prosecution impeaches Ginger with evidence of her nine year-old conviction for possession of marijuana with intent to distribute without an objection by defense counsel. After Ginger is convicted, she appeals, claiming that the conviction had insufficient probative value to be admitted. In cases involving similar convictions, judges in Ginger’s statements sometimes have admitted the evidence and sometimes excluded it. Plain error? NO, there is (2) Bob is an alleged serial killer convicted of five killings at trial. After he is convicted, he appeals, claiming that the prosecution improperly admitted character evidence against him. Bob, however, did not object to this character evidence at trial. Jerry, the judge handling the appeal, has political aspirations. Even if the character evidence was clearly improperly admitted, does Jerry have to reverse? NO, it’s up to his discretion.

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Hypothetical 1.1: Norman Horn is charged with felony indecent exposure. At trial, the prosecutor called the investigating detective as a witness, and the following exchange took place.

Q. And through that background check, how old did you find the defendant to be?

A. He was—


to establish the authenticity of a piece of evidence by a preponderance of the evidence; instead, it merely needs to present evidence from which the jury __could find_______ authentication by a preponderance of the evidence.

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Hypothetical: A threatening message is left on the voicemail of Vicki’s cell phone before she is killed. The prosecution alleges that the message was left by Sam, who is charged with Vicki’s murder. The message was sent from a disposable cell phone that is not traceable to Sam. The prosecution calls Sam’s estranged brother, Bob, who testifies that he believes that the voice on the message is Sam’s voice but that he is not close to certain that his identification is correct. Upon hearing Bob’s testimony, Judge Jones acknowledges that it is a close call, but he thinks that it is really a 50/50 proposition as to whether it is Sam’s voice on the message. What should Judge Jones do? He should look to see if he thinks that a jury could find that it is Sam’s voice on the message.

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-(2) With evidence seized from the defendant, the prosecution must establish chain of custody, i.e., that the evidence presented at trial is the same evidence seized from the defendant in substantially the ___same condition_________

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Hypothetical: Pedro is charged with murdering Felicia. At trial, the prosecutor calls Medical Examiner Michaels who testifies that Felicia died as the result of five stab wounds to the chest. Prosecutor Peters then says, “Your honor, I would like to introduce this pocket knife as State’s Exhibit 3.” Defense counsel responds, “Objection, your honor, lack of authentication.” The judge then asks, “Peters, what do you have?” Peters responds, “I don’t know, your honor. The attorney handling the case was recently fired, and I was just given this case. I don’t know where this knife has been.” Was there proper authentication? Nope, chain of custody issue. What if the knife is rusty but the prosecutor’s records give no indication that the knife was rusty when it was seized? The defendant could say that it’s a different knife or that it’s just not in substantially the same condition as it initially was.

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