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West Virginia University School of Law
Rizer, Arthur

Federal Rules of Evidence

Fall 2013

Arthur Rizer

●Make sure you meet relevance, hearsay, best evidence, authenticity requirements in everything!!!

●ALWAYS watch for the 3 R’s:



●Right (Fair)

●Seattle Seahawks are his favorite football team. Will be on test as bonus question

●Hammer v. Plummer—When fed rules differ from state rules, then you use fed rules.

●Practitioner’s Approach to Evidence:

Ask yourself three questions

1) Relevant?

a. Low standard

b. In real world, tend to look bad if argue irrelevance a lot

c. Can still introduce if going to be relevant later

2) Reliable?

3) Right/fair?

Use objections strategically. Otherwise, look like you’re trying to hide something. Respect judge’s role as gatekeeper. Don’t let objections be obstructionist. 25% of legal work is reputation.


RULE: Rules shall be construed 1) to secure fairness in administration; 2) elimination of unjustifiable expense and delay; 3) promotion of growth and development of the law of evidence; 4) to the end that the truth may be ascertained; and 5) proceedings justly determined.

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

Rule 103 Rulings on Evidence

Check List

●Four types of Errors

1. Harmless Error—not abridging any “substantive right”

2. Reversible Error—error abridging a substantive right

3. Plain Error—so fundamental judge should have corrected it on his own motion

4. Constitutional—infringing on a constitutional right

●Errors raised regarding a ruling:

1. proper objection or offer of proof—any of 4 above

2. Failure to preserve—can only raise plain or constitutional error.

–Motion in Liminie

–to include or exclude evidence

–No need to make objection again, appellate is safe, BUT is safer to restate objection to alert judge

–You may be asked to approach the bench and ask for a continuing/standing objection of a line of questioning or the jury may be prejudiced.

103(a)(1) Objections Effects of Erroneous Ruling

a)Effect of Erroneous Ruling: Error cannot be affirmed or denied 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 for objection OR

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

Forms of Offer of Proof

1) an offer of testimonial evidence often takes the form of a statement by counsel as to the expected content of the excluded testimony.

2) Examination of the witness, including cross-examination.

3) An affidavit the witness’s expected testimony

4) Finally, excluded documentary evidence should be “marked for identification”

appended to the record of trial

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.

Note: 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


Motion 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 (105) to disregard the evidence.

Motions in Limine

It is a pretrial request for a preliminary decision on an objection or offer of proof. This is not explicitly mentioned in the FRE, but their use is now common.

103(b) – Record of Offer & Ruling “Making the record” is one of trial counsel’s most important responsibilities. If the court does not make a decision, it is assumed that the court overruled the objection. It is counsel’s responsibility to ensure that all objections and offers of proof are recorded. Off-the-record objections are typically insufficient.

103(c) – Hearings Out of the Jury’s Presence Rule 103(c) requires that discussions involving the admissibility of evidence be held outside the hearing of the jury whenever practicable.

103(d) – Plain Error Rule Rule 103(d) recognizes the plain error doctrine, under which an appellate court may consider an evidentiary error despite a party’s failure to make an objection, motion to strike, or offer of proof at trial. The purpose of this doctrine is to safeguard the right to a fair trial, notwithstanding counsel’s failure to object.

Harmless Error: In determining whether to reverse a trial court judgment, appellate courts must decide whether an evidentiary error is harmless or prejudicial (reversible). The term “substantial right” is not defined in the rule, but it refers to the harmless error doctrine.

Appellate Standard of Review of Admissibility Decisions:

1) Questions concerning the interpretation of an evidence rule = de novo review

2) Rule’s application in a particular case – reviewed under an abuse-of-discretion standard.

*Timely objection: made to questions (can’t wait for the answer)

*Motion to strike: made to answers. (question is fine but answer is unexpected)

Rule 104—Preliminary Questions: (Is W qualified?, Privilege? Admissible?)

(a) Standard—preponderance of the evidence

–Is W qualified? A Privilege? Admissible?

–Don’t trust juries here

–Judge decides questions of admissibility (Does the jury see it at all?)

–determines if evidence is admitted under rules

–Hearsay exception

–may use ANY information at hand, subject to reach of privileges

(b) Standard—sufficient to support a finding (could a reasonable jury conclude?)

–trust juries to make these distinction

–Judge determines whether enough evidence for jury to carry out

–Jury role then comes into play: is evidence what PROPONENT claims?

–privilege exception

–1008 Best Evidence Rule

(e) –weight and credibility questions always go to jury. You can challenge weight and credibility to jury.

Rule 1101(c) privilege applies to ALL stages of proceeding

104(a) – Preliminary Questions: Under 104(a), the trial court is “not bound by the rules of evidence except those with respect to privileges” when ruling on the admissibility of evidence. Accordingly, the judge may c


• In jurisdictions that hold that you MAY NOT use otherwise inadmissible statements, you may remedy this with a limiting instruction (i.e. not offering for the truth but only for the purpose of placing the document in context (NON hearsay purpose).

• The example of a prosecutor crossing out the “NOT” in a defendant’s statement of “I did not commit the robbery” is, in my humble opinion, a bad one. This violates rule 102 directly and would not be allowed.

• Wilkerson case, 84 F.3d 692 (4th Cir 1996) –

1) this case was talking about oral statement of a agent – not covered by 106 –

2) the case says that the rule does not provide an exception to hearsay for “admissibility” but I still think you would be able to allow the statement for a non-hearsay purpose of putting things into context – this was not tested here. I also think there would be extreme Constitutional concerns if you tried the above example as a prosecutor.

Rule 301-302 Burdens Of Proof

Burden of proof

• The burden of going forward also called the burden of production is a procedural term and refers to the party that is legally obligated to initiate the production of evidence on a claim or defense.

• Defense has burden of going forward for any affirmative defenses

• If you fail to meet this burden – remedy is a directed verdict.

• Burden of persuasion – this refers to the standard of proof a party must meet to win.

●Presumptions and Inferences:

• Certain inferences from given facts are so reliable that the law elevates those inferences to legal presumptions (think if you address, stamp, and mail a letter). BUT YOU CAN REBUTT IT.

• Bursting bubble approach: a presumption shifts the burden of going forward to the other side – if the other side presents adequate rebuttal evidence the presumption disappears like a bursting bubble. Also called the Thayer approach.

• Morgan approach. This approach holds that the effect of a presumption is to assign the burden of persuasion to the party who the presumption operates against; this is the majority approach. In most states however, under rule 301, the bursting bubble approach is used in federal question civil trials.

• WV follows this approach holding that “once a presumption shifts the burden of going forward with evidence, the party in whose favor it operates is entitled to a directed verdict on the issue if the adversary produces no evidence rebutting the presumption.” If rebutted it can still serve as a basis for an inference that a judge can tell the jury they may infer.

• In diversity civil trials – the court applies state law.

• In criminal cases mandatory presumptions are not allowed due to the due process clause.