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West Virginia University School of Law
Rhee, William

1. objection & motion to strike: Two ways to claim evidence is admissible at trial:  Objections occur before potentially offending evidence emerges fully. Motions to strike occur after disputed evidence is entered/presented.
2. parties must challenge evidence in a timely manner. –made as soon as ground for objection is known/reasonably should be known.
3. “state a specific ground”-lawyers must raise each specific ground for or any objection to evidence. Gives judge & opponent notice about basis for an objection
– When one party objects to introduction of evidence, the opponent makes an offer of proof to show the judge what the evidence entails. If opponent fails to make this offer, then he waives any objection to appeal.
–          Formal offer of proof not necessary if, as Rule 103(a)(2) provides, “substance of the evidence” is “apparent from the context within which questions were asked.”
1. MAINTAINING OBJECTIONS:Once counsel makes specific & timely objection, & judge overrules objection, issue is preserved for appeal
2. SHIELDING THE JURY: Attnys usually note initial objection in jury’s presence; judge will rule on simple objections or offers of proof. If further explanation needed, attorneys approach bench for a sidebar to shield jury from overhearing discussion
   1. Judge agrees: with evidentiary objection: sustain and exclude
   2. Judge disagrees: overrule objection and admit evidence
o    Judge may also admit some evidence and keep out others.
   3. Redact: judge directs party to eliminate portions of the document violating FRE.
   4. Curative: instruction given to jury by judge to disregard evidence
   5. Limiting instruction: admission of evidence for limited purposes
4. ON APPEAL:  If lawyer follows procedural steps to preserve evidentiary objections for appeal, appellate courts rarely reverse trial decisions based on evidentiary issues alone. 
1.       Abuse of Discretion Standard affects substantial rights of parties.: app. Judge usually defers to trial judge’s decision bc trial judge familiar with case UNLESS there’s an abuse of discretion on the part of the judge, and: Rule 103: app. judges reverse trial decision on evidentiary error only if error affected “substantial right” of parties. 
2.       Harmless error: Under Rule 103(a), most evidentiary missteps constitute harmless error. 
3.       Plain errors:  Rule 103(d) allows reversal only for plain errors that are clear and obvious under current law, affects a party’s substantial rights, and would seriously affect the fairness of judicial proceedings if left uncorrected.
– You need to preserve your objection for the record. May also change the court’s mind. local practice dominates but don’t lose your opportunity to preserve your record. If there is a jury trial, make sure to make the offer outside of the jury’s presence.
1.       Practice tip: Usually summarize the testimony/submit the evidence (again writing is better than speaking, or even better, use both) unless so important to your case that you need to call the actual witness. Make sure you stay neutral and factual.
6. 103(b) Record of offer and ruling: court may add any other further statement showing character of the evidence, the form in which offered, objection made, and ruling thereon. It may direct the making of an offer in question and answer form.
7. 103(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.
8. 103-(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. Exception to the contemporaneous objection rule: Grave error
Chapter 6: Relevance
– Fundamental rule of evidence is relevance: only relevant evidence admissible. limits wasted time and focuses jurors on facts the law deems important. This makes jury more likely to decide the case under legal principles governing the dispute rather than extraneous factors.
2. The Rules:
Rule 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible
All relevant evidence is admissible, except as otherwise provided:
– By the US Constitution, Acts of Congress, By the FRE, or By other rules prescribed by the Supreme Court pursuant to statutory authority
– Evidence, which is NOT RELEVANT, is NOT ADMISSIBLE.  (Must pass the relevance test in Rule 401)
Rule 401: Definition of “Relevant Evidence”
– Evidence having any tendency to make the existence of any fact that is of consequenceto the determination of the action more probable or less probable than it would be without the evidence.
1.       Any Tendency”: embraces evidence that could shift a fact finder’s view of the facts even the smallest degree. 
2.       “More or Less Probable”: indiv. Piece of evidence can be relevant even if does not establish any fact on its own.
o    More or less can be very slight. Relevant as long as it makes some fact of consequence “more or less” probable.
3.       “Of Consequence”: fact itself must be related to the cause of action. Evidence must be related and connected, but of consequence is not as strong as if the framers had made it a material standard (a much higher burden). 
– Limiting Instructions: When advocate introduces evidence to prove one fact, even if the opponent successfully objects to using evidence for another purpose; judge gives jury a limiting instruction to not apply the evidence to the other situation.
In The Courtroom
·         Evidence is relevant even if it addresses matters the opponent concedes or if opposing party is willing to concede the truth of the fact.
·         Rule allow parties to introduce direct evidence of damaging facts, despite opponent’s attempts to minimize impact of the facts by conceding them.
·         UNRELATED MISDEEDS: Courts may conclude that evidence is too far removed from the parties’ dispute in time, place, to satisfy Rule 401–Like past discrimination of others, or past illegal or immoral behavior
·         NEGATIVE EVIDENCE: Evidence that tends to show that criminal is less culpable because of missing circumstances; “seems appropriate to rule generously in favor of evidence offered by Ds; jury can reject evidence it finds self-serving or unpersuasive.
·         HINDSIGHT: Liability in perceived self-defense cases depends on the defendant’s subjective belief, or his or her perception of the threat, rather than the objective, actual threat. Actual threat is not of consequence to the action. Courts try to eliminate the effect of hindsight, which incorporates knowledge of the actual threat, on a jury’s decision. 
·         OPENING THE DOOR: Irrelevant evidence becomes relevant to rebut claims made by another party– known as opening the door.
·         Case-by-Case Determination: Judges decide relevance based on a case-by-case examination of both the facts and the law
FRE 402 authorizes admission of relevant evidence, FRE 401 defines evidence, FRE 403 recognizes some evidence, although relevant, might have unfair effects if introduced at trial, FRE 403 allows judge to close doors against unrelated and possibly prejudicial information. 
The Rule
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of:
o    Unfair prejudice, confusion of the issues, or misleading the jury, or by
o    Considerations of undue delay waste of time, or needless presentation of cumulative evidence.
1.  May: judge has discretion under Rule to decide what evidence to allow based on interpretation of what constitutes prejudicial evidence
o    Supreme Court has held that Rule 403, like 401-02, is decided on a case-by-case basis.
o    Judicial discretion under rule 403 means two things for litigators:
ú   1) First, appellate courts rarely reverse rule 403 rulings.
ú   2) Second, the discretionary nature of Rule 403 offers opportunities for persuasive advocacy.
2) Substantially outweighed: For judge to exclude relevant evidence the unfair prejudice, confusion, or delay must “substantially outweigh” its probative value. 
3) Unfair: Unfairly prejudicial evidence lures the fact finder into declaring the guilt or liability on a ground different from proof specific to the offense charged. Unfairness tempts the jury to decide the case on grounds different form those law demands.
Five factors that influence a judge’s decision when to apply Rule 403:Judges more likely to deny/accept evidence under 403 WHEN:
1) DENY: evidence will trigger strong emotions or irrational prejudices among the jurors
2) DENY: jury might overvalue the evidence— or apply undue weight to only slightly relevant evidence.
3) ADMIT: evidence that is closely related to essential elements of a case, even when that evidence is highly emotional.
4) DENY: If advocate can prove the same facts through less prejudicial or confusing means through alternative routes.
5) Whether it would be possible to reduce prejudice or other harm once the evidence is introduced. If the judge can redact prejudicial components of the evidence or instruct the jury to refrain from improper use of the evidence, he or she will be more likely to admit the evidence.
   Common scenarios for unfair prejudice:
1.       Damaging evidence: Rule 403 allows exclusion of evidence that is unfair only because it inflames jury’s passion/otherwise introduces an improper basis for decision.
2.        VIDEOS/PHOTOS: Videos or pictures that only show the effects of the crime are more likely to be deemed unfairly prejudicial, and jurors may overlook other evidence and seek to punish the defendant without considering other mitigating factors. Most courts strike a balance, allowing some pictures and videos but trying to keep emotions under control.
3.        Socially undesirable Behavior. Racist attitudes, lavish lifestyles
4.       Flight: Courts must carefully analyze defendant’s flight from jurisdiction…people can leave a crime scene for many reasons.
5.       Stipulations: Presence of stipulations may affect the balance of unfair prejudice and probative value under rule 403. 
6.       Waste of Time, Undue Delay, Needless Duplication: The rule 403 also empowers trial judges to exclude evidence that would waste time, cause undue delay, or needlessly duplicate other evidence.
7.       Bench Trials:Rule 403 applies to both bench and jury trials, but in a bench trial this objection is not invoked when a judge serves as the fact finder…they may still object to evidence as a waste of time or unduly cumulative
Rules 407-411 are narrow and exclude evidence related to five different subjects. Rule 407:subsequent remedial measures, Rule 408: settlement negotiations, Rule 409: payment of medical expenses, Rule 410: plea bargaining, Rule 411: insurance coverage
a.       Each of these rules furthers two goals:
         i.      Promotes socially valuable activity, like plea bargaining or purchasing liability insurance, by protecting those who engage in that activity from evidence that might be used against them.
       ii.      Removes unfair prejudice: Evidence targeted by these rules tends to cause a high degree of unfair prejudice, while contributing little probative value. These rules apply to rule 403’s balancing approach to exclude particular categories of evidence. 
b.       Four of these rules share another characteristic: exclude evidence only if a party offers the evidence for the purpose of proving liability or fault. If a litigant offers the same evidence for a different purpose, the judge may admit the evidence. Judge will use a limiting instruction to not apply the evidence to the forbidden purpose. 
c.        Rule 407 bars evidence of subsequent remedial measures. This is like admitting evidence that the defendant tried to change conditions after the incident occurs, which shows that the original condition was unsafe; This tends to prove a fact of consequence.
                     i.      There are two problems with admitting this type of evidence
1)       First, Creates a perverse incentive for defendants; D might wait till after trial to fix the problem, which may lead to more injuries, just so the fixing can’t be used as evidence
2)       Second, juries may give too much weight to evidence of subsequent remedial measures. (Ps accident may have revealed a previously unknown danger…that no reasonable person would have predicated but then the D remedies)
                   ii.      Rule 407 addresses these problems by restricting the admissibility of subsequent remedial measures, which encourages prompt repairs but while also shielding defendants from unfair prejudice.
                  iii.      Rule 407 does not always bar evidence of subsequent remedial measures.
When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:
a.       Negligence
b.       Culpable conduct
c.        A defect in a product
d.       A defect in a product’s design
e.       Or a need for a warning or instruction
This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as                                      a) Proving ownership, control, or feasibility of a precautionary measure, if controverted, or b) Impeachment
1. What is a “measure?” Action that changes a product or dangerous condition directly to remedy situation. Also includes taking products off the market or issuing recalls. Also policy changes, firing or disciplining a responsible employee, etc. are all remedial measures.
2, When is a remedial measure “subsequent?: MEASURES taken after an injury or harm allegedly caused by an event. ONLY applies to measures taken after the injury itself, not before the injury because before the injury occurs the defendant does not face the conflicting pressures of correcting a defect while looking guilty.
3. Negligence, Strict Liabilit

ove liability, establish damages, or impeach a witness with inconsistent statements. 
             ii.      408 does permit use of evidence from settlement discussions for other purposes
a.        A party may use evidence of settlement discussions to counter an argument that they delaying in pursuing their claim
b.       Parties may introduce statements from settlement negotiations for any purpose other than ones specifically prohibited by rule.
5)       Bias
i. One way allowed under Rule 408 to impeach witness is showing that a witness is biased
ii. A witness who has settled a claim with one of the parties, for example, may develop a bias in favor of that party; other litigants may try to introduce evidence of the settlement to demonstrate that bias
6)       Impeachment: Inconsistency versus Bias
               i.      Another way to impeach or discredit a witness is to show that the witness made an earlier statement that as inconsistent with the witness’s testimony on the stand. 
a)       Rule 408 allows parties to use settlement evidence for the first type of impeachment (bias), but not the second (inconsistency)
7)       Preexisting Evidence
               i.      Parties cannot immunize evidence by discussing it during a settlement conference. 
             ii.      Rule 408 was designed to promote settlement discussions, not to encourage shady strategies for withholding evidence. 
            iii.      Evidence made before settlement negotiations is allowable (like a memo describing how a building should be built)
8)       Criminal Cases
               i.      FRE 408 applies to criminal as well as civil cases.  If a D is facing both civil and criminal liability for his action, he may make statements relevant to the criminal case while trying to settle the civil dispute.
B.       RULE 403 AGAIN.
1)       Even when Rule 408 allows intro of evidence,  judge may still determine under Rule 403 that admitting evidence would cause unfair prejudice substantially outweighing any probative value.
2)       Rule 403 offers an important backup for parties seeking to exclude evidence related to settlement negotiations.
3)       Rule 403 is important because it can keep the jurors from hearing settlement evidence that can unfairly harm the opposing party (because they were willing to participate, which can infer liability)
4)       Rule 403 is a good backup argument for excluding evidence related to settlement negotiations.
RULE 409 Encourages individuals and organizations to pay medical expenses for people who have been injured and excludes evidence of offers/promises to pay medical expenses, as well as payment of those expenses, when offered to prove liability
a.       Protects parties from unfair prejudice, Protects humanitarian objectives by removing a factor that might discourage some potential litigants from paying the medical expenses of injured individuals, Advances business and judicial purposes
b.       Some businesses find it beneficial to pay immediately the medical expenses of individuals injured in connection with their business
1) Promote good customer relations, 2) Encourage rapid settlement of any legal claims that develop, 3) Sometimes reduce the extend of damages by treating injuries before they develop expensive complications
c.        Insurance companies respond to the same incentives, and may choose to pay the medical expenses of a person injured by one of its insure because company knows it is likely to pay the claim eventually. Immediate payment may promote quick settlement, while reducing odds of expensive medical complications. 
d.       Business goals also serve judicial system’s interest in promoting settlements. 
e.       Rule 409 allows potential defendants to pay medical expenses without worrying about plaintiffs using evidence of those payments against them at trial to prove liability.
Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury.
–          Rule 409 applies to any situation in which an individual or organization pays or agrees to pay medical expenses
–          Unlike rule 408, there need not be a dispute or claim. HOWEVER, Rule 409 ONLY excludes the offer to pay or furnishing of medical expenses- It does NOT exclude any other statements that were made with the offer. Rule 409 only bars admission of covered evidence when offered to prove liability,  If party offers evidence of medical payments to prove some other fact of consequence, the evidence is admissible.
1. FURNISHING, OFFERING, Promising.  Rule 409 only bars admission of offers, promises, and actual payments of medical expenses. Other statements, even if said in connection with the offer, are admissible.  Contrasts with Rule 408, which covers offers to settle but also the conduct or statements made in compromise negotiations regarding the claim. 
2. MEDICAL, HOSPTIAL, OR SIMILAR EXPENSEa. Only covers offers/promises/etc to pay “medical, hospital, or similar expenses occasioned by an injury. “Similar expenses” includes fees for all kinds of medical treatment and physical rehabilitation, but does not encompass lost wages, auto repairs, or to compensate injured party for other types of economic or property damages.
3. TO PROVE LIABILITY: Rule 409 ONLY excludes evidence if it is offered for a particular purpose: to prove liability for the injury. Evidence is not bared if party can establish some other purpose for the evidence.Judge may give a limiting instruction (jurors can find this confusing
– REMEMBER: Rule 409 or any other rule excludes a piece of evidence, then Rule 403 cannot rescue evidence that another rule has rejected.