Evidence_Lawson_Spring_2010.doc
Evidence Outline
Article I – General Provisions
Rule 101 – Scope
1. These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrates judges, to the extent and with the exceptions stated in rule 1101
a. Rule 1101 – Applicability of Rules
i. Courts and judges
ii. Proceedings generally
iii. Rule of Privilege
iv. Rules Inapplicable – The rules (other than with respect to privileges) do not apply in the following situations:
– Preliminary Questions of Fact – the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104
• Fact that has to be determined by the judge
o Rules to evidence don’t apply
– Grand Jury – proceedings before grand juries
• Can hear hearsay evidence
o Rules of evidence don’t apply
– Miscellaneous proceedings – proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses
• US v. Monsanto – forfeiture proceeding – Monsanto wanted money back to get an attorney and wanted to know who the informants were against him
o Court allowed affidavits – which are hearsay
o Rules do not apply to forfeiture proceeding
Rule 102 – Purpose and Construction
a. Apply these rules so they make sense to get to ultimate goal – that justice is established – justice is overriding desire to get everyone his “due”
i. US v. Opager – D raised defense of entrapment – P calls guy who worked with D and guy says D was predisposed – D wants to show that W didn’t even work at hair salon
– Rule 608b – if you are attacking W character using specific instances of misconduct – only done so on cross examine
• Extrinsic – comes from something other than mouth
– Reversed because it was not fair
– Rule is meant to promote fairness and achievement of justice
Rule 103 – Rulings of evidence
1. (A) Effect of erroneous ruling – Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and
a. (1) Objection – a timely objection or motion to strike appears of record, stating the specific ground or objection, if the specific ground was not apparent from the context; or
i. People v. Dunham – Child makes statement using machine – there was no objection made to the hearsay
– Specific grounds must be stated for objection
– If objection is sustained – what is the evidence that we are talking about
• Need to state with specificity what the testimony would deal
b. (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
i. (B) Record of offer and ruling – the court may add any other or further statement which shows the character of 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
– Must make offer of proof if evidence is not allowed in
• Fox v. Dannerberg – Can’t determine who was driving the car – objection to expert testifying
o P says what experts would say
ii. (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
– Judge can say:
• It was him speaking and it is relevant
• It wasn’t him speaking and it is not relevant
iii. Those determinations go to jury – admitted subject to fulfillment of condition
– Standard is whether any rationale juror could find
b. US v. Plattero – Rape that occurred on Indian reservation – D wanted to prove V had past sexual relationship – under rape shield law – evidence attacking character of rape V is barred (exception – evidence that tends to establish specific defense)
i. Evidence of past relationship comes in and jury decides if past relationship was there
ii. Fact of relationship is factual question – and admissibility turns upon fulfillment of that condition
Rule 105 – Limited admissibility
1. Dual purposes
a. Contains assumptions
i. Can be admissible for one purpose but not admissible for another
– Using past felonies are allowed to impeach, but not prove character
b. When there is dual purpose evidence
i. First let in and give limiting instruction
ii. A limiting instruction is a not self executing rule
– Gov’t of the Virgin Islands v. Mujahdid – Rape case – the co-D pleaded guilty and testified against D
• Plea shows bias
• Problem with showing deal – her guilt can be imputed to D
Rule 106 – Remainder of or Related Writings or Recorded (rule of completeness)
1. Writing or recorded statement is introduced
