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West Virginia University School of Law
McDiarmid, Marjorie A.

McDiarmid Evidence Outline
Fall 2010

Background Information
1. How to preserve the record when a substantial right effected
1. Objection or Motion to Strike (deals with admitting)
a. Must be timely
b. Must state the grounds
i. Unless it is apparent
1. But don’t rely on this
2. Offer of Proof/Vouching the record
a. Court may direct the offer in question and answer form
i. Means sending the jury out and then ask the witness the question
1. Not very efficient

2. Once the Court makes a definitive ruling on the record then the record is preserved
· Complication of this – Motion in limine
· “at the threshold”
o made before going into trial
· Is this ruling definite
· It is wise to clarify with the judge on the record

3. Plain Error doctrine
· So bad what happened that will be reversed on appeal
o Basically trial counsel made a huge blunder
· Very hard to get
o Must almost rise to a constitutional level

Article I: General Provision
Rule 101 Scope
These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101.

Rule 102 Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

Rule 103 Rulings on Evidence
(a) Effect of erroneous ruling.
Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
(1) Objection. – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
(2) Offer of proof. – In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
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.
(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.
· United States v. Luce
o Crim defense lawyer thinks prosecution going to use D’s prior convictions. Loses mt. in limine.
o To preserve appellate right, must put D on the stand and let the prosecution bring in prior convictions
· Advisory notes clearly states this is not overruled by the rule
o However, does not address “Removing the Sting” (putting on the evidence before the other side can)
§ Ohler v. United States indicates that this will not preserve the record

Rule 104 Preliminary Questions
(a) Questions of admissibility generally.
Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) Relevancy conditioned on fact.
When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
(c) Hearing of jury.
Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused.
The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and credibility.
This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
· Role of Judge in making determination on admissibility
o Judge determines:
§ Qualification of witness
§ Existence of a privilege
§ Admissibility of evidence
· What can a judge consider when determining admissibility
o Not bound by the rules of evidence
§ So can consider anything – admissible or not
· [similar language in 1101(e)] o Rules of evidence do not apply
o Exception: privilege
§ Cannot breach privilege to get foundation evidence
o Judge makes a factual determination
§ Ex: Hearsay excited utterance
· Judge makes factual determination as to how soon after the utterance was made
· Foundation for evidence
o Talking about what does the particular rule require to convince judge that he should let in
o In order to make this determination, judge goes line by line, phrase by phrase of the rule
o Must be sufficient evidence that judge determines met the rule standard

f the matter noticed. In the absence of prior notification, the request may be made after judicial notice has been taken.
(f) Time of taking notice.
Judicial notice may be taken at any stage of the proceeding.
(g) Instructing jury.
In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.
· Legislative Fact à policy fact
o Ex: Atty-Cl. Privilege
§ Social utility to have client speak freely to lawyer
§ In W.Va. courts determine that no social utility in the dr. patient privilege
· Adjudicative fact
o Ex: Full Moon on Oct. 21
§ Other side can put on counter evidence to prevent taking of judicial notice
· Basically shifts burden
o A single witness can conceivable convince a judge of a fact
§ Use general reputation and take judicial notice
· Hearsay and judicial notice
o In civil case, if take judicial notice of a determinative factor then could end the case
o Judicial notice plays a role with hearsay
§ Learned treatise 803(18)
· Through expert testimony or through judicial notice

Rule 301. Presumptions in General Civil Actions and Proceedings
In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
· In Criminal field burden of proof shifts from prosecutor to defendant is left to the common law
· Affect of presumptions
o Presumptions is talking about a base fact
§ Ex: Letterbox
o By establishing this base fact you are making an inference to a presumed fact
o This inference shifts responsibility to prove that the inference is wrong
· Three levels of the shift
o Inference
o Going Forward
§ Two different burdens in trial
· Whose got burden to put on some sort of evidence (going forward)