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West Virginia University School of Law
McDiarmid, Marjorie A.

100s – General Provisions
Rule 101 Scope
These rules govern proceedings in the courts of the United States and before United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in Rule 1101.
Rule 102 Purpose and Construction
These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
Class Notes:
What are the rules trying to achieve?
Uniformity – benefits attorneys – makes trial procedure predictible
Fairness -> Truth – point of trial process is to reach the truth of what really happened from two different perspectives (i.e. Hearsay Rule)
Efficiency – don’t want to waste time/spend a lot of money on unimportant evidence (i.e. Relevance)
Policy – sometimes societal policy overrides the need for truth and efficiency (i.e. privilege and end of 400 series – we want people to speak freely with their lawyer)
Each new rule should be read and try to determine why it was created – which reason does it fall under
Adoption of Rules:
Rules Enabling Act – Federal Statute that gives Supreme Court the power to draft procedural rules
 – standing committees (Evidence, Civ Pro, Crim Pro, etc.)
– any proposed changes go through committee first, then goes to judicial conference and they sign off, then to Supreme Court for approval, and then to Congress for final approval
Three rules currently awaiting Congressional approval. When evidence rules first promolgated, Supreme Court tried to follow procedure in REA.
Only rules of evidence are affirmatively approved as a Congressional Enactment. (Amendments can go through regular REA procedure) – Does this special treatment afford the Rules of Evidence greater deference than the other rules? Court is very inclined to give the specific language controlling authority.
When both sides can forsee:
Types of Evidence
            – Relevance
            – Privilege
Documents (writing) – include rules that do not apply to live testimony
– Hearsay Rules
– Relevance
– Authenticity
– Best Evidence (original document rule) – set of rules says that originals are preferred over copies
Live Testimony
– Hearsay Rules
– Relevance
– Competency
Every piece of evidence entered must get over each hurdle to be presented at trial.
Rule 103 Rulings on Evidence
Effect of erroneous ruling.
(a) Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
   (1) Objection. 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
   (2) 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. (b) 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. (c) 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. (d) Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
Class Notes
Three kinds of Error
1) Harmless Error – §103(a) – an incorrect ruling that is objected to at trial , but does not affect “a substantial right* of a party.”
2) Reversable or Prejudicial Error – §103(a) – an incorrect ruling that is objected to at trial, that is found on appeal to have affected “a substantial right* of a party”
3) Plain Error – § 103(d) – an incorrect ruling that was not objected to at trial, but is so predjudicial and egregious as to require rectification on appeal. The error must be “obvious” and “fundamental.”
*”Substantial Right,” if affected would affect the final determination of the case.
4) Invited Error – when otherwise inadmissible evidence is admitted because the opposing party either offered the evidence themselves or allowed it to be admitted. This type of Error CANNOT be appealled.
In Limine – are NOT motions to limit evidence – issues “at the threshold” – generally made prior to trial
– can be affirmative or negative
Substantial Rights – 103(a) & 103(d) – meaning is slightly different – 103(d) – Plain Error is a higher standard/harder to get – 103(d) should state “fundamental right” rather than substantial right
§103(a)(1) In trying to keep evidence out
Timely Objection – for bad questions – objection must be made prior to the answer being given
Motion to Strike – for bad answers – ex. irrelevant answers – even if stricken, jury has already heard it
Object if objection is possible
§103(a)(2) Exclusion of Evidence
Offer of Proof/vouching the record – explaining why piece of evidence should come in
§103(b) Judge can listen to question and answer between lawyer and witness prior to the jury hearing it
General objection – does not preserve the right for appeal
Objection must be followed by nature of objection – rule calls for statement of the specific grounds – state all possible grounds
§103(a) –
Definitive Rulings made prior to trial do not need to be renewed during trial to preserve right to appeal – amended in 2000 – most circuits went the other way prior to 2000
If any ambiguity, motions need to be renewed. Also if circumstances change, the objection needs to be renewed. Essentially means that objections always need to be renewed.
W. Va. Evidence Rule DOES NOT have the above language – case law exists which supports the statement.
Amended language – p. 799 – Advisory Committee notes, re: Luce v. United States, 469 U.S. 38 (1984), to preserve appellate record, conditioned definitive pretrial rulings – condition must occur
U.S. v. Ohler – client must be put on stand and conviction cannot be explained to the jury
W. Va. has followed Luce but not Ohler
Rule 104. Preliminary Questions
(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.
(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.
(c) Hearing of jury.
Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests.
(d) Testimony by accused.
The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case.
(e) Weight and credibility.
    This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility.
Class Notes:
Tells us which kinds of evidence are to be ultimately decided by the jury and which are the sole province of the judge.
(a) Default Position – General admissibility – “shall be determined by the court [subject to (b)]”
– qualifications of a person to be a witness
– existence of a privilege
– admissibility of evidence
            In making these determination, it is not bound by the rules of evidence
Examples: expert witness, foundation of hearsay, dying declarations (person must believe they are dying) – judge decides the issue of whether there is sufficient evidence to show that the belief existed.
Judge – how convinced does the judge have to be –
Bourjaly v. U.S. [483 U.S. 171 (1987)] – Judge must find by a “preponderance of the evidence” that the foundational requirement for evidence is met.
(b) Conditional Relevancy
– subset of cases of admissibility determinations in which the admissibility of evidence is conditioned on some factual piece of information (linking of fact to evidence)
Example: Claim made that defendant defamed plaintiff – provides a defamatory writing that is asserted that defendant wrote it – relevant only if defendant is the author has been proven – 104(b) issue
Frequently – authorship issues, tangible things (gun only relevant if proof that gun fired the bullet or defendant owned the gun), forensic testing (DNA only matters if defendant’s DNA)
Rules §§901(a) and 1008 – also have similar language
Two steps:
1) Judge makes initial determination if link has been established – “sufficient to support a finding” – could reasonable jury believe that the link has been established
Policy behind this – Jury needs to be the trier of fact – keep the bedrock decisions about the guts of the case in the hands of the jury
McDiarmid – some questions we trust juries (common sense logic questions) on and others in which we don’t (ex. technical rules fo

2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned
Legislative Facts vs. Adjudicative Facts
Legislative Fact – example – children are better off having two parents
– gives rise to policy judgment that has given rise to case
– legislatures and appellate courts do it all the time
– Rule 201 does not cover these facts but are used all time
Adjudicative Facts –
general knowledge facts – example – normal facts – injury in elevator – do not have to show how elevator’s work
– assumed facts – rely on jury’s knowledge about how the world works to
Once judicial notice is made, no contrary material can be presented
Bring judicial notice material to court
court allows other side to be heard
Courts confuse what they know with what they can take judicial notice of – fact must have general knowledge and acceptance
cannot import facts unless it meets the test of collateral estoppel
W. Va. wrinkle §57-1-1,2,3,4 – provisions that deal with judicial notice of law – particularly foreign law (other state and federal law)
300s – Presumptions
Rule 301. Presumptions in General Civil Actions and Proceedings
In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.
Topic Class Notes
Text is too simplistic for privilege in criminal cases.
Civil presumptions-
very useful to look at the big picture first:
Underlying fact that can be proved – party wants jury to draw inference from that fact that another fact is true
mailbox presumption – prove mail was sent – presumed that mail was received
fact ———> inference —————-> burden
– should there be instruction on the presumption or should we shift obligation of burden to go forward or require opposing counsel to persuade the trier of fact?
used frequently with affirmative defenses
– fairly common as substantive law
Possible rules:
Least limited to most limited
·      No burden shifting at all – prove base fact —-> allowed to argue the inference
·      prove base fact ——> gets you past directed verdict
·      prove base fact ——-> shift burden going forward – opposing counsel must present some evidence(no further information presented leads to directed verdict in favor of prover of base fact)
·      Where Congress established the default position for the Rule of Evidence (301) – burden remains with prover of base fact – Rule falls between shifting burden to go forward and allowing instruction of inference to the jury
·      prove base fact ——> permits instruction on the inference
·      prove base fact ——-> shifts burden of persuasion (must now convince the jury)
·      place where advisory committee believes should be the default position of presumptions
·      prove base fact ——-> conclusive presumption – statement of substantive law (or social policy)- ex. (old W. Va, law) – if child born during marriage it is the legitimate child of the married couple
Rule 302. Applicability of State Law in Civil Actions and Proceedings
In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law.
Topic Class Notes
Erie Doctrine issue:
Rules drafters making a distinction between a state law policy presumption from a presumption based on efficiency
A rule 303 has been proposed –
Criminal cannot be presumed out of proving elements of the crime – burden cannot also be shifted.