Select Page

West Virginia University School of Law
McDiarmid, Marjorie A.


101: Scope
n The Federal Rules apply generally in all courts of the U.S.

102: Purpose and Construction
n Apply rules to obtain fairness and eliminate unjust expense and delay.
n Supplement the Rules with case law to ensure growth.
n The court is very inclined to give the specific language controlling authority. It is only where you have ambiguity or where the rule clearly doesn’t mean exactly what it says where we will have interpretations of the rules.

103: Rulings on Evidence
n This rule embodies the general procedures of appellate review of errors in evidentiary rulings.
n There are three degrees of error:
o Harmless error:
§ Incorrect ruling that is objected to but does not affect a substantial right of a party.
§ Not grounds for reversal.
o Prejudicial (reversible error):
§ Erroneous ruling that affects a substantial right.
o Plain error:
§ Not objected to, but is so egregious that it requires rectification at appeal.
§ Compels the court to protect someone.
§ The substantial right here must be dispositive.

n The record must reflect the error if the court is to review it.
n Errors are forfeited if not objected to, or if there is not a motion to strike.
o Timely objections: are made when the question is bad. If you know the question is bad, you cannot wait for the answer. The objection must be accompanied with the grounds. The objection must be made as soon as the grounds become apparent.
o Motions to strike: If the question is fine, but the answer is inappropriate, then you move to strike the evidence

n The judge excludes evidence. Here, it is the responsibility of the attorney to explain what the evidence is that the opposing counsel wishes to exclude, and why it is admissible.
n The only requirement is that the substance of the excluded evidence must be made clear in the offer of proof.
n December 2000 amendment now provides that a definitive advance ruling (motion in limine) excluding or admitting evidence, either before or during trial, is sufficient to preserve a claim of error. You do not have to re-object to preserve the record.
o Marjorie would always renew your objection. Better to be safe than sorry.
n Luce v. U.S.: The rule does not affect the Supreme Court’s ruling. The ruling in that case affected criminal trials and you make a motion to exclude your criminal record in limine. If you lose an in limine motion and you want to preserve your record for appeal, you ha

dge, what the judge is doing in (b) is determining whether a reasonable jury could believe that the link has been made. The trial judge is prevented from usurping the fact-finding function of the jury in the process of determining a preliminary matter of admissibility.

105: Limited Admissibility
n Where evidence is admissible to one party or for one purpose, but not admissible as to another party or for another purpose.
n A limiting instruction allows the judge to instruct the jury as to the proper scope of the evidence—effective instructions prohibit the impermissible use of admitted evidence.
n The judge has the discretion to craft appropriate instructions.
n This rule is triggered by a request for a limiting instruction.
o The request should be specific.
o The timing of that instruction is discretionary to the court, although clearly, it is most effective if it is given at the point that the bed evidence is introduced.
You must request limiting instruction to preserve the record.