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West Virginia University School of Law
McDiarmid, Marjorie A.

Prof. Marjorie McDiarmid – WVU College of Law
Fall 2015
Rule 101: Overview of the scope of the rule.  Evidence rules apply in courts of the United States, U.S. bankruptcy judges, and U.S. magistrate judges.  Exceptions in Rule 1101. Rules of Evidence generally apply in both civil & criminal cases & in both jury & bench trials.
Rule 102- Grants a certain degree of discretion to the trial court in admitting evidence, at least in the area where the rules have not plainly spoken. 
Primary approach employed by the Supreme Court in deciding interpretive questions about the Federal Rules of Evidence has been a textual or plain meaning approach. The plain language of a Rule controls unless the result would be either absurd or unconstitutional.
Rule 103: Rulings on Evidence
Rulings on Evidence – This rule embodies the general procedures pertaining to appellate review of errors in evidentiary rulings.
Effect of Erroneous Ruling Error may not be affirmed or denied upon a ruling which admits or excludes evidence unless a substantial right of the party is effected, and
– 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
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
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.
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
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. 
3 classifications of Error
1.       HARMLESS ERROR:   This type of error does not affect a substantial right. This is error that is erroneous, but for whatever the reason the mistake is not enough for an appellate court to overturn the decision. This error did not affect the outcome of the case.21
2.      REVERSABLE ERROR: This type of error affects a substantial right. This is an erroneous ruling that was properly objected to at trial, and is found on appeal to have affected a substantial right, and could have affected a substantial right.
3.      PLAIN ERROR:        An incorrect ruling that was not objected to at trial, but is so prejudicial and egregious that the appellate court will grant an appeal despite an objection not being made.
There are two situations in which the record of the trial proceedings must clearly reflect alleged prejudicial error if the appellate court is going to review.
Where error is predicated on an improperly overruled objection to the admission of evidence.
Where error is predicted on the improper exclusion of evidence.
Preservation of objections on appeal: how to give sufficient notice to trial court that there is a problem.
Threshold in the Rule:
What is the standard under 103?Substantial right.The erroneous ruling must have affected a substantial right.
Substantial Right Definition:
Must have affected the outcome of the case.
Prejudicial error v. Harmless error
Two Conditions for Rule: The Error must have been both
Prejudicial, meaning that a substantial right of the party was affected AND
Preserved for appeal (Can do at trial or in a pre-trial hearing)—meaning the party took all appropriate steps to ensure that the lower court was given a reasonable opportunity to avoid the error that may lead to a reversal.
*Definitive Pre-trial Ruling:
Can make “motions in limine”: means at the “threshold” & can be any motion before the case beings
Ex: Determining qualification of an expert witness.
R. 103(a) amended Dec. 2000—A definitive advance ruling excluding or admitting evidence either before or during trial is sufficient to preserve a claim of error.An objection or offer of proof need not be renewed at trial.
Definitive Ruling: Renew objections if circumstances change and judge revisits.
Circumstances change in a material way—Renew the objection. 
Practically How to Object:
Object right after the question is posedàcannot wait for the answer
State the ground (Specificity required)
A general objection is not a basis for reversal if any significant part of the evidence is admissible.
A timely objection is made when the question is asked—do not wait for the answer.
Motion to strike an improper answer should be made immediately following the objectionable answer.
What type of error is treated differently from all others? Failure to object to plain error.
Exceptions to Preserving Objection for Appeal:
Plain Error Doctrine:
When a trial lawyer blew it.Must be (1) sufficiently plain and egregious and (2) the error must have been prejudicial.
The plain error must have been so obvious that the judge should have caught it.
Threshold for invocation of the plain error doctrine is higher in civil cases than in criminal cases:
Higher threshold for substantial right: the outcome of the case would have been different but for the error
In criminal cases, usually a constitutional right has also been violated in the instance for “plain error” doctrine.
For plain erroràSubstantial right threshold is higher.  Very high burden of proof.  This is a very rare case.  More rigorous standard than that for a preserved error.
The amendment provides that an objection or offer of proof need not be renewed to preserve a claim of error with respect to a definitive pretrial ruling.
The amendment does not answer whether a party who objects to evidence that the court finds admissible in a definitive ruling, and who then offers the evidence to “remove the sting” of its anticipated prejudicial effect, thereby waives the right to appeal the trial court’s ruling.
Ohler v. United States: The party who offers the evidence that the party tried in vain to exclude has waived any claim of error in its admission.
In Ohler, accused testified and brought out her criminal history on direct examination after a pretrial ruling that the prosecutor could do so on cross-examination for impeachment, she waived any claim of error in the pre-trial ruling.
Luce v. United States: after pretrial ruling that accused could be impeached with his convictions under R. 609, accused who did not testify waived his right to challenge that ruling under Luce, even though he explicitly informed the district court that his decision was based on the denial of the motion in limine. Neither Luce nor its rationale makes exception for ∆ who informs the trial judge that the denial of his motion in limine is the basis for his decision not to take the stand.
103(b): Judge can proceed with a question and answer testimony from witness to lay the foundation for the evidence.
Offer of Proof is made to explain to the judge why the evidence is admissible.
W. Va. calls this “Vouching the Record”
Judge may add on the record the circumstances of the evidentiary ruling
Rule 104: Preliminary Questions (Should a piece of evidence be admitted or not; who should decide admissibility).
Questions of Admissibility Generally
Judge determines admissibility. In making the determination of admissibility, the judge is not bound by the rules of evidence except those with respect to privileges.
R. 104(a): The judge shall admit the disputed evidence only if the proponent of the evidence can satisfy the judge that the required preliminary foundation can be established.
Relevant facts need to be proved only by a “preponderance of the evidence.”
“Connecting it up”/Assurance to the Judge: Party admitting evidence makes assurances that she will “connect it up” and lay the foundation for the evidence.  Judge can agree to accept that assurance at face value.
If the attorney does not lay a satisfactory foundation, the opposing counsel should “move to strike.”
Can the judge consider evidence that is otherwise inadmissible to make his decision? Yes. Judge is not bound by the rules of evidence in making admissibility determinations.
Relevancy Conditioned on Fact- “Conditional Relevance”
Situations in which the relevance of some evidence logically “depends upon the fulfillment of a condition of fact.”
Issue is only relevant if another fact is proved. Ex: 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.
The judge does not resolve the factual dispute presented: but merely decides whether there is “evidence sufficient to support a finding of the fulfillment of the condition” that would make the evidence relevant.”  The jury has the power to resolve the issues of weight and credibility. 
Can a judge consider inadmissible evidence for conditional relevance? No. A judge ruling on a conditional relevance objection under R. 104(b) is limited to determining whether there is sufficient evidence to support a finding by the jury on the preliminary factual condition. Evidence must be admissible by definition b/c inadmissible evidence cannot be considered by the jury.
With conditional relevancy, there are issues of fact & substantive law.
Hearing of Jury: Trial Judges has broad discretion
Hearings on the admissibility of confessions shall be conducted out of the hearings

of prior notification, the request may be made after judicial notice has been taken
Time of Taking Notice – Judicial notice may be taken at any stage of the proceeding
Instruction 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.
Judicial notice is the evidentiary process by which a court recognizes a fact in the absence of any antecedent, formal proof. 
It is a substitute of formal proof where, under the circumstances of a particular case, an adjudicative fact sought to be proved is reasonably beyond dispute..
In essence, judicial notice supersedes formal proof, yet it carries equal force.
As such, the doctrine of judicial notice is applicable to circumstantially relevant facts as well as to ultimate facts of any case.
Judicial Noticeà commonly used to “fill in the gaps”
McDiarmidà Highlights other facts that are commonly just accepted.
Advisory Committee example: When a witness in an automobile accident case says “car,” everyone, judge and jury included, furnishes, from non-evidences sources w/in himself, the supplementing information that the “car” is an automobile.
Distinction between legislative and adjudicative facts:
Adjudicative facts, those covered by the rule, are those facts which concern the burdens of proof of the case as they pertain to the immediate parties and to the outcome of the litigation,
Such facts reveal who did what to whom, when, and where it occurred, and how and why it occurred.
Normally established through formal proof & only exceptionally through judicial notice.
Indisputability is a requirement only for notice of adjudicative facts.
Legislative Facts are those facts which are employed by the court in the decisional process of a case in the expansion of the common law or in the interpretation, construction, and extension of legislative enactments. 
When the court makes new law—relies upon policy assumptions concerning the operation of the law & its impact on society; these are largely factual in nature.
Indisputability standard does not attach to legislative facts that a court might judicially notice in extending or expanding the law.
Facts policy-makers use to decide appropriate legal standard.This is usually at the appellate level & is rarely seen at the trial court level.
Qualification of Adjudicative Facts
An adjudicative fact is subject to judicial notice if it is not subject to dispute or uncertainty because it is well-known within the trial court’s jurisdiction. 
Ex of a fact generally known in Mon Co,: That WVU is located within Mon County.
Also, judicial notice is appropriate if the fact is capable of ready and accurate determination by resort to a reasonably reliable source.
Beyond facts relating specifically to the court, the appropriateness of judicial notice is measured by the general notoriety of facts.
Generally, this is stuff like weather reports to show it was raining on a particular day
Water freezes at 32 degrees.
Representative authoritative sources for verification include such reference materials as historical works, science or art books, language and medical journals and dictionaries, calendars, encyclopedias, commercial lists and directories, maps and charts, statutes and legislative reports. 
Also, this is another way to get treatise information into court, so long as it is a widely available treatise
This provision shifts the test from common knowledge to that of verifiable accuracy.
Fact must be capable of instant & reasonable demonstration.
Federal Courts will routinely take judicial notice of pertinent federal or state law, including statutes & judicial opinions, b/c such matters are readily ascertained through universally available sources.
This is not true of municipal ordinances & private codes referred to in state statutes.