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Wayne State University Law School
Hopkins, McDonald

TOPICS: Appellate Review and Witness Competency


· Making the record is one of trial counsel’s most important responsibilities.

· Objections and motions to strike are made to exclude information an attorney believes is inadmissible. They must be specific.

· Offers of proof are made when an attorney’s proffer of evidence has been excluded by a trial judge’s ruling.

o Rationale: Without an offer of proof, appellate court cannot determine whether or not the trial court erred.

o Made out of hearing of the jury.

· Appellate Review

o Appellate courts use an abuse of discretion standard in reviewing a trial court’s application of an evidentiary rule.

o However, categorical rules (those that do not allow for discretionary judgment) and questions about interpretation of an evidence rule are reviewed de novo.

· Reversible error: Even if the trial court has erred, the case will not be reversed on appeal unless ruling involves a “substantial right.” This is a very hard standard to meet. Parties are entitled to a fair trial, not a perfect trial.

· Plain error: An appellate court may consider an evidentiary error despite a party’s failure to make an objection, motion to strike, or offer of proof. Purpose of the doctrine is to safeguard right to a fair trial.


· This topic concerns who may testify, not the substance of the witness’ testimony.

· Rule 601 provides that all witnesses are competent.

o But in civil cases where state law provides the rule of decision, state restrictions govern.

· Presiding judges cannot be witnesses. FRE 605.

· Jurors cannot testify in a case in which they are serving as a member of the jury. FRE 606(a).

· Jurors cannot testify about the validity of a verdict if the subject of their testimony involves internal influences. But they can testify about external influences, such as newspaper accounts and bailiff statements. FRE 606(b).

o Rationale (from the Advisory Committee Notes): Promote freedom of deliberation, stability and finality of verdicts, and protection of jurors against annoyance and embarrassment.

· Hypnotic Evidence

o Witnesses: Courts vary in how they treat the competency of a witness whose recollection has been refreshed through hypnosis.

o Criminal Defendants: States cannot have per se rules barring a criminal defendant’s hypnotically refreshed testimony. Violates constitutional protections. The testimony must be considered on a case-by-case basis.

· If the judge agrees with the objection, s/he SUSTAINS it.

o Objector is happy.

o Person putting on evidence is sad.

· If the judge disagrees with the objection, s/he OVERRULES it.

o Objector is sad.

o Person putting on evidence is happy.



· FRE 602 requires that a witness have personal knowledge of the subject about which the witness testifies.

· Personal knowledge is firsthand knowledge that has come to the witness through her own senses, and it involves (1) comprehension; (2) memory; and (3) communication.

· Role of judge and jury

o Judge decides whether sufficient evidence to support a finding of first hand knowledge has been introduced, ie., a prima facie standard. This is not a demanding standard.

o Jury decides whether or not the witness had firsthand knowledge, and the jury may disregard the testimony if it is not persuaded on this point.


· Before testifying, a witness must swear or affirm to speak truthfully.

· Purpose is to impress on the witness the duty to speak the truth and pave the way for perjury prosecution for deliberately false testimony.


· Something is properly authenticated by “evidence sufficient to support a finding” that it is “what its proponent claims.”

· FRE 901(b) sets forth an illustrative list of ten examples of authentication methods.

· Role of judge and jury

o Judge determines whether sufficient evidence to support a finding of authenticity has been introduced, ie., a prima facie standard. This is not a demanding standard.

o Jury decides whether or not the evidence is authentic, and the jury may disregard the testimony if it is not persuaded on this point.

· Authentication of photographs

o Photos are admissible if (1) a foundation witness has personal knowledge of how the real thing looked that relevant time, and (2) the witness can state that the photograph “fairly and accurately” represents the real thing as it looked at the relevant time.

· Authentication through chain of custody

o Usually used for evidence that is fungible, ie., lacking in distinctive means of identification. (If an item has a distinctive appearance or character, chain of custody authentication is not needed. A single witness can authenticate that item based on seeing it just once before testifying.)

o Chain of custody is established when one or more witnesses first describe the initial recovery or use of the object and others then describe handling the object and passing it along to others.

· New technologies often require a combination of authentication approaches under Rule 901(b), which is illustrative and not exclusive. Often, FRE 901(b)(9) is used to authenticate computer output, which requires a description of the “process of system used to produce a result” and a showing that it “produces an accurate result.”


· Certain types of documents are self-authenticating. They are presumed to be genuine and thus, do not require extrinsic proof of authenticity.

· Rationale: These materials are unlikely to be anything different from what they appear to be. Thus, for the convenience of the court and the parties, they should be admitted without authenticating evidence.

· The opposing party can still introduce evidence that attacks authenticity.

· The list of self-authenticating documents in 902 is an exclusive list.

· The most commonly-used self-authentication rules concern certified copies of public records under 902(4) and business records under 902(11).



· To prove the contents of a writing, the “best evidence” rule requires that the original be produced in evidence unless an exception applies.

o A big exception is for duplicates. They are usually admissible.

· Rationale: Prevention of fraud and inaccuracies.

· The best evidence rule applies only to writings, recordings, and photographs – and only when proving their contents.

o There is no general rule requiring that a party put on the best evidence! Thus, a more accurate name for this rule is the “Original Writings” rule.

o The rule does not apply when the event sought to be proved existed independently of a writing, even if that event has also been recorded.

· Duplicates are generally admissible unless (1) a genuine question about authenticity of the original is raised, or (2) fairness requires production of the original.

· There are four exceptions to the best evidence requirement: (1) original lost or destroyed (and not through the proponent’s bad faith); (2) original not obtainable; (3) original in opponent’s possession; and (4) collateral matters. If one of the exceptions applies, any secondary evidence is admissible, including oral testimony.

· In lieu of voluminous writings, Rule 1006 permits use of summaries.

· Be on the lookout for a best evidence problem if someone is testifying about the contents of a writing that is essential to the case, but the writing is not in evidence.


· Judicial notice is a way to prove facts without offering evidence.

· Judicial notice expedites the trial and prevents the jury from reaching an absurd result.

· Only adjudicative facts may be judicially noticed. Adjudicative facts are the facts of the case that are usually left for the jury to decide.

· Two kinds of adjudicative facts are subject to judicial notice as long as they are not subject to reasonable dispute:

o (1) facts generally known within the territorial jurisdiction of the trial court (the judge’s personal knowledge is not enough); and

o (2) facts capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned, such as historical, geographic, physical, political, statistical, and scientific facts.

· Procedural issues: The court can take judicial notice on its own initiative. It must take judicial notice if one of the parties requests. The opposing side has an opportunity to be heard on the issue. Judicial notice can be taken anytime, including on appeal.

· Jury instructions: In civil cases, the court must instruct the jury to accept as conclusive any fact judicially noticed. In criminal cases, the court must instruct the jury that it “may, but is not required to” accept as conclusive any fact judicially noticed.


RELEVANCE — FRE 401, 402, 403

· Relevancy is the most crucial concept in evidence law and the threshold issue for all evidence.

· Irrelevant evidence is inadmissible.

· Relevant evidence is admissible in the absence of a rule of exclusion. As we will see later in the course, otherwise relevant evidence may be excluded by other evidentiary rules, such as the rules on hearsay or privilege.

· Relevant evidence is evidence having any tendency to make the existence of a fact that is of consequence of the determination of the action more probable or less probable than it would be without the evidence. This is a low standard for admissibility.

· Whether evidence is “of consequence to the determination of the action” hinges on substantive law. A p

on it.

o Second, ask yourself, why is the jury being given this evidence? What is it going to prove?

o Third, keeping the answer to the second question in mind, ask yourself, if the declarant was lying or mistaken, would the jury be misled? Would it be receiving unreliable evidence? If so, it is hearsay. If not, it is not hearsay.

· Aspects of the hearsay definition

o Declarant: The declarant is a person who makes a statement. The rule does not apply to animals or machines.

o Statement: A statement can be written, oral, or involve nonverbal communicative conduct. Whether words or conduct constitute a statement depends on the intent of the actor.

o Out-of-court: Hearsay statements are those “other than one made by the declarant while testifying at the trial or hearing.”

§ Thus, even if the witness at trial is the same person as the declarant, there is a hearsay problem.

§ Thus, even if the witness is testifying about statements in a deposition or prior trial, there is a hearsay problem.

o Statements offered for their truth: If the relevance of an out-of-court statement is that it was made, rather than the truth of the assertion, the statement is not hearsay.

§ Thus, we cannot determine if a statement is hearsay until we know what the statement is being offered to prove.

§ To determine whether a statement is being offered for its truth, you can compare the assertion with the reason it is being offered.

§ This is pictured in the two boxes approach below:

Out of court statement Offered to prove what?

[The text of the out-of- court statement] [The issues/the elements]

This is the matter asserted in This is the matter asserted by the

The out-of-court statement. Lawyer at trial. This is the immediate inference to be drawn.

If the two boxes are the same, then the out-of-court state


Introduction: There are a variety of circumstances in which out-of-court statements can be admissible for purposes that do not rely on the statements’ truth — what lawyers and judges commonly refer to as “non-hearsay purposes.” These circumstances are not listed in the Federal Rules of Evidence; rather, they appear routinely in trials and have been identified as not being offered for the truth of the matter asserted. They include (but are not limited to):

· Verbal acts

· Statements used to show that words were spoken

· Statements offered to prove their effect on the listener

· Statement offered as circumstantial evidence of the speaker’s state of mind

· Non assertive conduct

Verbal acts

· In many instances, the substantive law gives legal effect to the making of a statement. These statements have independent legal significance and are not hearsay.

· Examples are the words “I accept” in a contract case, “you have the right to remain silent” in a criminal case, and “that’s my land” in an adverse possession case.

Statements used to show that words were spoken

· There are situations where the making of a statement is important not because of what is said, but merely because the words were spoken.

· In such a situation, the truthfulness of the speaker is not at issue; we only care about the credibility of the witness who relates the speaker’s words – and that person can be cross-examined.

Statements offered to prove their effect on the listener

· An out-of-court statement offered to show its effect on the listener is not hearsay.

· Examples include statements that put a person on notice; threats made to a defendant causing him to fear for his safety or providing a motive for action; and instructions to a person to do something.

· If the statement has both a hearsay and a non-hearsay purpose, the court should give a limiting instruction.

Statement offered as circumstantial evidence of the speaker’s state of mind