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West Virginia University School of Law
McDiarmid, Marjorie A.



Fall 2011

Rule 101: Scope

RULE: FRE govern proceedings in courts of US, before US bankruptcy judges and US magistrates to extent and with exceptions stated in 1101.

· US Cts., US Bankr. Cts, US Mag. Cts, Civil, Criminal, Bench and Jury. Exceptions in 1101.

Rule 102: Purpose and construction

· RULE: Rules shall be construed to 1)secure fairness in administration, 2) eliminate unjustifiable expenses and delays, 3) promote growth and development of laws of evidence.—Truth and Justice.

· 4 Hurdles—1)Relevancy, 2)Authenticity, 3) Hearsay, 4) Best Evidence.

· Gives Judge more discretion to arrive at just decision when proceeding would otherwise produce unfair solution.


(a) Effect of erroneous ruling.

· Error may not be predicated upon a ruling which admits or excludes evidence unless—must: affect a substantial right of the party AND

1. In case the ruling is one Admitting Evidence- need timely objection stating specific grounds OR

2. In case the ruling is one Excluding Evidence- offer proof showing substance of evidence if not apparent.

· Once court makes a Definitive ruling—either at or before trial, a party need not renew objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling: The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury: In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.


Purpose and Applicability of Rule 103

1. Rule Covers All Procedural Aspects of Rulings on Evidence

Rule 103 collects in one provision all the procedural aspects of rulings on evidence. Civil and criminal cases, jury and nonjury, errors of admission and exclusion, harmless error and plain error are all governed by Rule 103.

The rule makes two major points:

(1) that the initiative for raising and preserving error in the admission or exclusion of evidence lies with the aggrieved party and not with the court, although the court may take notice of plain error without a party’s motion or objection, AND

(2) that, in applying Rule 103, a court’s objective is to avoid reversals on purely technical grounds while remaining ready to rectify errors that affect substantial rights of the parties.

· Although subdivisions (b) and (c) specify in some detail how objections to rulings are to be made, Rule 103 is silent as to what factors a court must consider in determining whether substantial rights have been affected. This silence indicates that the court must proceed on a case by case basis rather than apply a mechanical rule. Finally, subdivision (d) of Rule 103 gives the court authority, on its own motion, to take notice of plain errors affecting substantial rights of the parties even though no party has objected.

2. Rule Promotes Finality and Economy in Litigation

Rule 103 promotes finality and economy in litigation by forcing parties to object in the trial court or risk being foreclosed from raising the error on appeal. Calling error to the attention of the trial court gives the court an opportunity for correction, which may obviate the need for proceedings at the appellate level.


Introduction: An objection or motion to strike is used to exclude evidence an attorney believes is inadmissible. In contrast, when an attorney’s proffer of evidence has been excluded by a trial judge’s ruling, an offer of proof is required to preserve the issue for appeal.

Objections: Rule 103(a)(1)

Failure to make a timely and specific objection forfeits the right to raise the issue on appeal. Another consequence of failing to object is that the admitted evidence becomes part of the trial record and may be considered by the jury in its deliberations, by the trial court in ruling on motions (i.e., directed verdicts), and by a reviewing court determining the sufficiency of the evidence.

[A] Specificity: Grounds: Rule 103 requires specific objections – i.e., a statement of the grounds upon which the objection is based must accompany the objection unless the grounds are apparent from the context. For instance, “objection, hearsay” is a specific objection. An objection that is not sufficiently specific is called a general objection.

[B] Specificity: Parts of Documents: Although not explicitly stated in Rule 103, the specificity requirement further demands that counsel indicate which particular portion of evidence is objectionable.

[C] “Continuing” or “Running” Objections: Many jurisdictions recognize “continuing objections,” which remove the need to object repeatedly to a line of testimony after an adverse ruling on an earlier objection based on the same issue.

[D] Timeliness of Objections:

[1] Motions to Strike: In some instances, a witness may answer before counsel can object, or a question’s tendency to elicit an objectionable response will not become apparent until the response is given. If a motion to strike is granted, the court should instruct the jury to disregard the evidence. Even though the jury has heard the answer, it is nevertheless important to ask the trial judge to strike the response because such a ruling precludes opposing counsel from referring to the stricken material in closing argument.

Offers of Proof: Rule 103(a)(2): When evidence has been excluded by a trial court ruling, Rule 103(a)(2) requires an offer of proof to preserve the issue for appeal. Without an offer of proof in the trial record, an appellate court cannot review the trial court’s ruling to determine whether or not the action of the trial court is harmless error.

[A] Form of Offer of Proof: An offer of proof may take several forms. First, an offer of testimonial evidence often takes the form of a statement by counsel as to the expected content of the excluded testimony. Second, the trial court may require or be asked to take the “offer” by an examination of the witness, including cross-examination. Third, an affidavit (which requires an oath) summarizing the witness’s expected testimony and signed by the witness is another way to make offer of proof. Finally, excluded documentary evidence should be “marked for identification” and appended to the record of trial

Motions in Limine: The term motion in limine means “at the threshold.” It is a pretrial request for a preliminary decision on an objection or offer of proof. Although the Federal Rules do not explicitly mention motions in limine, their use is now common.

[A] Definitive Rulings: Rule 103(a) provides: “Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.”

Required Testimony: In Luce v. United States, the Supreme Court ruled that an accused who had failed to testify could not appeal a pretrial (in limine) decision to permit impeachment under Rule 609 (pri

hey cannot appeal their case on the grounds that the evidence was improperly admitted. Rule 103(a) forces lawyers to object to any evidence they think might unfairly decide their case, so as to “preserve error.”

· Objections come in many forms. Many objections are raised “in limine,” before the trial even starts. This keeps attorneys from having to argue about sensitive evidence in front of the jury. Some objections are made when one side’s attorney asks a witness a question that makes the other side uncomfortable.

· Objections can even be made after the evidence is heard by the jury: such an objection is called a “motion to strike,” and while it won’t keep the evidence away from the jury, it will preserve error.

Rule 103(a)(2) OFFER OF PROOF – this involves the other type of error – when the judge fails to let evidence come in that should have come in.

· It is the proponents’ burden to bring the evidence forward and explain to the judge why the evidence should come in and what the witness will say. ( This is the offering of proof to ensure that the reviewing court is presented with a complete record on appeal.)

o In WV this is called VOUCHING THE RECORD.


· a MOTION IN LIMINE – may be made by either party seeking admission or exclusion, and are usually made before trial.

· The rule provides that a DEFINITE advanced ruling excluding or admitting evidence, either before or during trial, is sufficient to preserve a claim of error; the objection or offer of proof need not be renewed at trial.

· There is no clear definition of DEFINITE rulings.

o When there is any doubt about the finality of the ruling, the loosing party must take it upon himself to obtain clarification.

· If the judge at pre-trial has been at all ambiguous, then you need to renew your objection.

· Even after a definite ruling, the judge may revisit the matter at any time. When this happens, or when an opposing party or the judge violates and earlier ruling, the lawyer aggrieved by that course must renew his objection, and may not rely on his motion in limine to preserve his contention for appeal.

· This rule DOES NOT preserve error in pre-trial ruling, even one that is final and definite, if the ruling is based upon a condition that does not materialize at trial.

o For example Luce v. United States – says that a criminal D must testify at trial in order to preserve a claim of error predicated upon a trial court’s decision to admit the D’s prior convictions for impeachment WV follows this rule.

· This rule DOES NOT preserve error in a pretrial motion to exclude evidence, even if the motion is definitively denied, if the loosing party then bites the bullet and offers the evidence himself in an effort to remove its sting.

o What if you lost pre-trial motion trying to keep out evidence, Ohler v. United States – says that if you, on a tactical move, voluntarily bring up the evidence yourself, you lost the right to appeal WV does not have a case on this.