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West Virginia University School of Law
McDiarmid, Marjorie A.



Spring 2014

Federal Rules of Evidence: Rules, Legislative History, Commentary & Authority Real

The law of evidence is aimed at excluding types of materials a lawyer hopes to put on during trial.

§ Constitutional limitations

§ Our evidence system is largely based on the concept of a jury trial

§ Elimination of prejudice

§ Efficiency

§ Policy & Predictability

§ Reliability

Rule 101- Scope

Rule 102- Purpose & Construction

Rule 103-Rulings on Evidence

· Indicates when an appeal may be brought based on the exclusion or inclusion of evidence.

· The most common basis for an appeal is that a judge let in evidence he shouldn’t have let in or he excludes evidence that he should have allowed. Thus, Rule 103 is the tool for handling this.

(a) Effect of an erroneous ruling.

Error must have been:

1. Prejudicial

o Substantial right of a party must have been affected by possibly distorting the outcome of the case

o Must not be a harmless error (does not affect the final determination of the case)

2. Preserved for appeal

a. Party must have taken all appropriate steps to ensure that the lower court was given a reasonable opportunity to avoid the error that might lead to a reversal

(1) Objection- a timely objection (in response to an inappropriate question) or motion to strike (when witness volunteers information that was not asked) must appear of record and

i. state the specific ground of objection if the specific ground was not apparent from the context

® Timeliness of objection is crucial. (In an objection to a question asked must be offered before the question is answered.)

(2) Offer of proof- if the ruling is one excluding evidence the substance of the evidence must be made known to the court by offer or be apparent from the context in 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 ruling thereon. It may direct the making of an offer in question and answer form.

· If there is an definitive advance ruling excluding or admitting evidence, either before or during the trial, a claim of error is preserved and the offer of proof need not be renewed at trial, much less before the jury.

· An error is not preserved in a pretrial ruling, even one that is final and definitive, if the ruling is based upon a condition that does not materialize at trial.

· In WV, “vouching the record” is synonymous to offering proof.

· For successful appeals, the evidence must be more than harmless. It must affect a substantial right. So, we need a substantial right and action at the time of error.

[In limine- “at the threshold”]

(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.

· Gives the appellate court the opportunity to overturn a ruling if there is a plain error that significantly prejudiced a party because of an egregious error.

Luce v. United States 469 U.S. 38 (1984)- in order to preserve the right to appeal (based on the admission of the defendant’s criminal history), the defendant must testify (so as to impeach the defendant)

® Question left open: can the defendant be put on the stand and talk about the evidence himself to remove the sting—NO.

Ohler v. United States 529 U.S. 753- Under the “invited error doctrine” the party who offers the evidence that the party tried in vain to exclude has waived any claim of error in its admission.

· Error is also not preserved if after a pretrial motion to exclude evidence is denied the losing party then bites the bullet and offers evidence in an effort to remove its sting.

· An objection is made if a question is objectionable. A motion to strike is made when the answer is objectionable. Objections must be timely.

· A general objection will not preserve the appellate record unless there is no basis for the evidence to be used. Objections need to be specific.

· The last paragraph of Rule 103(a): deals with objections in special circumstances. Where a party has a continuous objection, they should state so and it will cover all subsequent evidence admitted within its scope. A similar situation is when two or more codefendants are being tried together. Where a defendant objects, the objection serves to preserve the issue for all defendants.

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

· 103(b) gives the court the ability to explain why it’s ruling a certain way on evidence. Under this part, the judge can instruct the jury out, and have the lawyer objecting to ask the questions he wants to a witness so it will be on the record and in the books.

· 103(c) just says to keep the jury shielded from these motions so prejudice doesn’t occur.

· 103(d) deals with “plain error.” By making a plain error claim, you’re saying “I blew it at trial, but please don’t take it out on my client.” This rule is very poorly drafted. The standard is higher under (d), but uses the same language as (a). So, a mere substantial right will not get you a plain error ruling. It has to be something that pretty much rises to a constitutional level.

Rule 1101 Applicability of Rules

Rule 1102 Amendments

Roger: violation of in limine motion; mistrial is a remedy of violation of an order on evidence

-potential for double jeopardy and if you get thrown out, you cannot try the issue again. 103

Rule 104. Preliminary Questions.

Who decides whether or not evidence is admissible? Judge normally decides this. If the question involves whether some fact has been proven, ex. If a document is used in the normal course of business, the judge decides this. Judge does law and a jury does fact is not true under the rules of evidence.

· Judge is allowed to hear testimony and is not bound by the rules of evidence to determine admissibility of evidence.

· Judge is still bound by the law of privilege. If judge hears everything it undermines privilege rule. In 1101 it contains similar language

· This Rule tells us who gets to decide on whether evidence is admissible: the judge or the jury?

· For example, the judge gets to decide factual determinations when these determinations are conditioned on further facts

· The normal division (judge does the law, jury gets the facts) is not true in evidence

· The judge is not bound by the Rules of Evidence when making these determinations. The only exception is the law of privilege. Privilege binds the trial court the same way it binds everyone else.

(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.

· Judge is responsible for determining if the evidence is relevant and can consider pretty much anything including the evidence itself and surrounding circumstances.

· Judge can also use material that would not be admissible. (Broad latitude)

· Factual determination on the relevancy of evidence is for the judge.

· The court may base its ruling on admissibility by considering evidence that is inadmissible or that has not been shown yet to be admissible.

· Foundation for evidence: go line by line through the rule to have the witness testify as to each element, or show evidence that proves each of those elements so that the final determination is that the evidence is admissible.

· Sufficient evidence to convince the judge that each of the elements of the rule can be met. (Evidence can be either admissible or inadmissible in the judge’s considerations.)

® Standard the judge must use: preponderance of the evidence. Bourjaily, 483 U.S. 171 (1987).

(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.

· “Conditional relevance” situations in which the relevance of some evidence logically depends on the fulfillment of a condition of fact.

· Conditional relevance is present in Rule 104(b), Rule 901 and Rule 1008.

· i.e.- Evidence of a written death threat received by a murder victim normally has no relevance to the prosecution’s case unless the threat was made or authorized by the accused on trial. see pg. 45.

· Jury makes ultimate determination on whether or not to believe the evidence and whether or not it has any relevance to the case at all.

· i.e.- Defamation case. Prosecutor wishes to put on evidence of the defamatory statement. The jury must decide if the statement was made by the defendant so to preserve the jury system.

· Jury ultimately decides relevance.

· Jury does not get to make the call on all conditional relevance circumstances.

® Standard the judge must use: sufficient to support a finding. (Is there enough evidence that a reasonable jury could conclude that the evidence is relevant.) If the evidence is clearly irrelevant and jury could find no relevance then the judge may refuse to admit the evidence. Would there be a question for the jury to answer?

® 104 (b) deals with “conditional relevancy.” Sometimes, the relevancy of an item of evidence depends upon the existence of a fact (such as that a kidnapper actually wrote the ransom note, etc.). Relevance in this case is called “conditional relevancy.” If after all the evidence is in, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such, the judge withdraws the matter from their consideration. We want this stuff to go to the juries though; if the judge ruled, the case would practically be closed. Also, we split off this function beca

Dispute in the circuits as to what this rule exactly means. Pg. 61 Footnote 8.

§ Proposition that this is a rule of timing. Other circuits feel that it creates another exception [to the hearsay rule] that permits admissibility. See United States v. Wilkerson, 84 F.3d 692 (4th Circuit)

§ This Rule is the federal codification of the common-law rule of completeness.

§ When a proponent introduces a writing or recording into evidence, the adverse party may require the proponent to introduce any other writing or recording, or the remainder of the proponent’s excerpt, if the court determines that fairness requires that the remainder ought to be considered contemporaneously with the excerpt.

§ See Footnote 9, page 73. U.S. v. Wilkerson, 4th Circ.

§ 4th Circuit rules that Rule 106 does not “render admissible the evidence which is otherwise inadmissible under the hearsay rule.” So it is used as a timing rule. This is completely unfair, because with hearsay statements could be altered. SO, since this is unfair, counsel could object to the evidence, and Rule 101 and 102 should bar the admission of this evidence. So there is a circuit split.

§ Use 403 to claim that without the full admission of the statement or writing, unfair prejudice will result.

Ex. Prosecution has statement from defendant saying “I did not commit the burglary.” Taking the statement and making it “I did [] commit the burglary.”

While it appears straight forward, there is a circuit split on the functionality.

400 Series

We want evidence to be 1) Reliable; 2) Efficient; and 3) Socially acceptable (privilege rules) latter 400 and 500 series

· Underlying notions of Evidence:

· Fairness

· Efficiency

· External social policy (such as privilege rules)

Hurdles of Evidence



Authenticity (Rule 901)

Best Evidence

– Just because you clear one hurdle, does not mean you have cleared all of the hurdles.

– Relevance: efficiency is a huge concern. Making a difference in tendency to prove an existence of fact is or is not true.

Rule 401. Definition of “Relevant Evidence”

“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

§ A fact is a “fact of consequence” if it alters the probabilities.

§ Low standard for this test.

· Standard: Any tendency that makes evidence “more probable or less probable” (very low standard)

· Heavily a fact-driven proposition. But, the substantive law that you are using will tell you whether the evidence would be relevant. For example, if it is a tort case, a fact about duty would be relevant.

· Does the substantive law help me introduce this evidence? And is there logic or commonsense to allow the evidence?

· Appellate courts rarely go against a trial court’s decision of admissibility, partly because the trial court is close to all the facts

· Rule 401 puts the burden on the proponent of the evidence to cross the low standard or probability

§ Source with respect to relevance: substantive law in regards to the cause of action will tell what elements must be proven and what facts fall in line with these elements (tort: duty, breach, causation, damage and a fact tends to prove breach).

§ Threshold: Evidence seeking to be admitted must alter the probability, low threshold.

§ If evidence has any probative value whatsoever, it is relevant and admissible unless otherwise excludable for an affirmative reason.

o Balancing the relative probative vale (Rule 401) vs. its prejudicial value (Rule 403).

o Ex. Defendants fingerprints on gun handle are prejudicial, but are also extremely probative. This balancing test comes in.

§ Evidence can be irrelevant in two distinct ways:

o if it is directed to a fact not properly at issue under the substantive law of the case

o if it fails to alter the probabilities of the existence or nonexistence of a consequential fact.

§ Trial judges are almost never overturned on these issues because they are in the best position to see what the theory of the case is and whether or not the evidence is relevant.

§ The ability to appeal and chance of winning is low: low impact use of appellate time, theory of case.