Colin Miller Spring 2016 Evidence Outline
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.
Rule 103(a)(1): A party opposing evidence must timely object or move to strike and state the specific ground (unless apparent from context) to preserve the issue for appellate review.
-Objection: 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.
-Motion to strike: same idea as objection but always comes after evidence or testimony is admitted
-Judge can decide to either sustain or overrule the objection.
Rule 103(a)(2) -offer of proof: If a judge sustains an objection or motion to strike, opposing party must inform the court of the substance of the proffered evidence by an offer of proof (unless substance was apparent from context)
-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
-harmless error: did not affect a substantial right
-reversible error/ prejudicial error: errors that affected a substantial right.
Rule 103(e): Taking note 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.
-If a party fails to preserve an evidentiary issue, the court will only reverse for plain error , meaning the error cannot be subject to reasonable dispute, therefore the court still has discretion over whether to reverse.
AUTHENTICATION ON EXAM
(a) In General: To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.
-Evidence is properly authenticated by a party by presenting evidence from which the jury could reasonably find the conditional fact of authentication by a preponderance of the evidence (>50%)
-A party does not need 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.
-For 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 defendant in substantially the same condition.
901(b): examples but not a complete list of evidence that satisfies the requirement
901(b)(1): Testimony of a witness through personal knowledge
901(b)(2): Nonexpert Opinion About Handwriting: A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for purpose of current litigation.
901(b)(2): Allows friends, relatives and acquaintances to authenticate writings based upon pre-existing familiarity with the handwriting of the alleged author.
-Minimal familiarity is usually sufficient to satisfy Rule 901(b)(2)
-Familiarity acquired for criminal investigation is fine; familiarity acquired for criminal prosecution is not
901(b)(3): Comparison by an Expert Witness or the Trier of Fact
901(b)(3) allows for authentication via:
Testimony by a handwriting expert who compares a disputed writing to an exemplar.
Having the Jury compare the disputed writing with an exemplar
901(b)(4) Distinctive Characteristics and the Like: the appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances. (similar to circumstantial evidence)
901(b)(4): allows for authentication based upon characteristics that distinguish a piece of evidence from anything else , ex: a gun with a serial number or an e-mail containing private and personal information about a person.
901(b)(5) Opinions about a Voice: An opinion identifying a persons voice—whether heard firsthand through mechanical or electronic transmission or recording— based on hearing the voice at any time under circumstances that connect it with the alleged speaker.
-If a person saw/heard another person talk, he can authenticate the person’s voice under rule 901(b)(1) (testimony of a witness through personal knowledge)
-For other cases, (ex: hearing a recording) Rule 901(b)(5) allows for authentication through either lay or expert witness testimony
-Mere/minimal familiarity with an alleged speaker’s voice is ordinarily sufficient under 901(b)(5)
901(b)(6) Evidence about a Telephone Conversation: F
B) Another public officer who has a seal and official duties within that same entity certifies under seal—or its equivalent—that the signer has the official capacity and that the signature is genuine.
902(2) allows for the self-authentication of Signed & Certified public documents
902(3) Foreign Public Documents. A document that purports to be signed or attested by a person who is authorized by a foreign country’s law to do so. The document must be accompanied by a final certification that certifies the genuineness of the signature and official position of the signer or attester—or of any foreign official whose certificate of genuineness relates to the signature or attestation. The certification may be made by a secretary of a US embassy or legation; by a cosul general, vice consul, or consular agent of the US; or by a diplomatic or consular official of the foreign country assigned or accredited to the US. If all parties have been given a reasonable opportunity to investigate the document’s authenticity and accuracy, the court may, for good cause, either:
(A) order that it be treated as presumptively authentic without final certification; OR
(B) allow it to be evidenced by an attested summary with or without final certification
902(3) allows for self-authentication of signed & certified foreign public documents.
902(4) Certified Copies of Public Records A copy of an official record— or a copy of a document that was recorded or filed in a public office as authorized by law—if the copy is certified correct by:
(A) the custodian or another person authorized to make the certification; OR
(B) a certificate that complies with Rule 902(1), (2), or (3), a federal statute, or a rule prescribed by the Supreme Court.
902(4) allows for the self-authentication of Certified copies of public records
902(5) Official Publications A book, pamphlet, or other publication purporting to be issued by a public authority
902(5) allows for the authentication of publications issued by Public Authorities