C. DISCRETIONARY EXCLUSION (FRE 403)
Probative Value v. Danger & Considerations
1. Probative Value : logical force & context in which it is offered.
2. FRE 403 “Danger”
The following factors are intended to protect the integrity of the fact-finding process.
a. Unfair prejudice
It means an undue tendency to suggest decision on an improper basis, commonly, a purely emotional basis (ACN). For example, gruesome photos of human injuries or of a corpse, evidence of other crimes.
When a court a weighing an item’s probative value against its prejudicial effect, the court should normally compare the proffered item against other possible evidence on the same point. If the alternative evidence has the same or nearly the same probative effect, and much less prejudicial value, the court should normally insist that the less-prejudicial item be used.
Example:
D is charged with the crime of possession of a firearm while having a prior felony conviction, and also with the crime of assault with a deadly weapon. D offers to stipulate that he has a prior felony conviction. The trial judge instead allows the prosecution to read the prior judgment to the jury. Consequently, the jury learns that the prior conviction was for aggravated assault and that D was sentenced to five years imprisonment on it. Held, the trial judge should have compared the probative value and prejudicial effect of reading the actual judgment to the jury, with the probative value and prejudicial effect of accepting D’s stipulation. After such a comparison, the judge should have used the stipulation instead of the judgment. Old Chielf v. U.S., 519 U.S. 172 (1997).
b. Confusion of issues
For example, evidence that the accused has committed past crimes may not only be prejudicial, but it may also distract the jury from the fact that there is only weak evidence that the accused was the person who did the act charged.
c. Misleading the jury
3. FRE 403 “Considerations”
The factors are intended to conserve judicial resources.
a. Undue delay
b. Waste of time
This is especially likely to be the case where the evidence is cumulative. For example, in a case in which the accused is charged with having poisoned the decedent, presentation by either side of more than two or three witnesses all testifying as to the cause of death might be deemed to be needlessly cumulative and therefore excluded.
c. Needless presentation of cumulative evidence
4. Judge’s Discretion
a. Admissibility
Though its probative value is substantially outweighed, it may be admitted.
Courts of appeals employ an abuse of discretion rule in reviewing a trial court’s FRE 403 decisions.
b. the Old Chief rule
The judge should consider (1) the effect of cautionary jury instructions, (2) the availability of alternative proof, and (3) the possibility of stipulations to reduce unfair prejudice in making the balance determination.
See Old Chief v. United States, 519 U.S. 172 (1997).
Monday, September 20, 2010
Intro to the Federal Rules of Evidence - 4
B. RELEVANT EVIDENCE GENERALLY ADMISSIBLE (FRE 402)
1. Admissibility
2. Some examples of relevance
a. Evidence of an undisputed fact
Probative, but not necessarily material. Thus, irrelevant.
Cf. demonstrative evidence.
b. Rebuttal evidence
Evidence that is irrelevant during the P’s case in chief may become relevant during D’s case in chief. For example, evidence rebutting an affirmative defense.
c. Conduct suggesting guilt
Fleeing from scene of crime, hiding from police, changing appearance, using an alias, refusing to take a breath test in a DUI case.
d. Similar happenings; Other accidents
How probative are incidents that are similar yet not the same as to parties, times, places, or circumstances from the event involved in the litigation? For example, other claims, misrepresentation, contracts, and business transaction, sales of similar property.
In most jurisdictions, there are no black letter rules governing the admissibility of evidence of similar happenings. In general, it is required a substantial similarity between the collateral event offered as evidence and the event at issue.
Though the FRE do not specifically treat the admissibility of evidence of similar happenings, the test of substantial similarity is applied. Nevertheless, the issue involves a classic FRE 403 analysis in addition to FRE 401.
3. Limited Admissibility
1. Admissibility
2. Some examples of relevance
a. Evidence of an undisputed fact
Probative, but not necessarily material. Thus, irrelevant.
Cf. demonstrative evidence.
b. Rebuttal evidence
Evidence that is irrelevant during the P’s case in chief may become relevant during D’s case in chief. For example, evidence rebutting an affirmative defense.
c. Conduct suggesting guilt
Fleeing from scene of crime, hiding from police, changing appearance, using an alias, refusing to take a breath test in a DUI case.
d. Similar happenings; Other accidents
How probative are incidents that are similar yet not the same as to parties, times, places, or circumstances from the event involved in the litigation? For example, other claims, misrepresentation, contracts, and business transaction, sales of similar property.
In most jurisdictions, there are no black letter rules governing the admissibility of evidence of similar happenings. In general, it is required a substantial similarity between the collateral event offered as evidence and the event at issue.
Though the FRE do not specifically treat the admissibility of evidence of similar happenings, the test of substantial similarity is applied. Nevertheless, the issue involves a classic FRE 403 analysis in addition to FRE 401.
3. Limited Admissibility
Intro to the Federal Rules of Evidence - 3
II. RELEVANCE (ART. IV)
The underlying policy:
Knowledge is power. The way to find truth is to present the jury with all the evidence that bears on the issue to be decided, except when there is good reason to do otherwise.
A. DEFINITION OF RELEVANCY
1. FRE 401
Evidence having any tendency to make the existence of a consequential fact more probable or less probable than it would be without the evidence.
Relevance is a relational concept meaning only in context. Relevance is determined by the issues raised by the parties, the other evidence introduced, and the applicable substantive law. A determination of relevancy may depend on the content of pleadings, indictments, pretrial orders, and pleas, as well as the testimony of other witnesses and the opening statements and arguments of counsel (Evidence, p.225)
In ruling upon relevancy, the court must draw on its own experience, the court must draw on its own experience, knowledge, and common sense in assessing whether a logical relationship exists between proffered evidence and the fact to be proven. (id., pp.225-6)
2. Of a consequential fact
a. Substantive evidence
i) relating to an element of a cause of action or affirmation defense
ii) generally if stipulations made, irrelevant.
iii) generally must related to time, event, or person in controversy; if not, not probative.
b. Evidence of impeachment/rehab of witnesses
c. Expert testimony & demonstrative evidence ; “assist-the-jury” – clarifying other admissible evidence.
“But the fact to which the evidence is directed need not be in dispute…. Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category” (ACN).
3. Probative Value
“any tendency” – if more than 0 (= irrelevant), the evidence is relevant.
The judge normally does not make the assessment of probative value by applying cut-and-dried legal principles. Rather, he applies his own experience, general knowledge, and understanding of human conduct and motivation.
a. Chain of inference
In assessing probative value, the judge must determine what proposition the evidence is being offered to establish, and he must then follow the chain of inference between the evidence and that proposition. Obviously, the more steps there are in the chain of inference, the less probative value the evidence has.
Example: suppose the contested issue is whether D is the person who killed V, and the evidence if a love letter from D to W, V’s wife. The chain of inference would be something like this: (1) a man who writes a love letter to a woman probably loves her (“probably” in the sense that he is more likely to love her than a man who does not write a love letter); (2) a man who loves a man probably wants her for himself alone; (3) a man who wants a woman for himself alone probably would like to get rid of her husband; (4) a man who wants to get rid of the husband of the woman he loves probably plans to do so; (5) a man who plans to get rid of someone probably does o, by killing him.
b. “A brick of the wall of evidence.”
Because the “any tendency” standard is so low, objections on this ground are rarely sustained.
Example:
D, a black man, is charged with robbing a bank. The prosecution offers a surveillance tape of the robbery, which shows the robber is black but which does not show enough detail to demonstrate that the robber is or is not D. The tape will be relevant, and admissible, because it tends to show that the robber was black, and this fact makes it more likely that the robber is D than would be the case if the tape was not in evidence – it doesn’t matter that the tape is not by itself enough to make it more likely than not that D was the robber.
In point of fact, evidence should rarely be excluded for lack of probative value. On the other hand, evidence is very frequently excluded because its probative value is outweighed by prejudice, tendency to confuse, or other discretionary considerations.
EXAMPLE
Q (PROSECUTOR): Mrs. Higgins, were you at the bank on June 1, one week before the robber?
A; Yes.
Q: Did you see the defendant that day?
DEFENSE LAWYER: Your honor, we object on relevance grounds. May we approach?
JUDGE: Yes. [Lawyers come to the bench.] Prosecution, where’s this testimony going?
PROSECUTOR: The witness will testify that she saw the defendant outside the bank that day, that he was looking at the bank, but never came insider.
JUDGE: What’s that prove?
PROSECUTOR: It shows the defendant was already planning the robbery and casing the bank.
DEFENSE LAWYER: The fact that he’s outside the bank hardly proves he was planning to rob it.
JUDGE: The objection is overruled. The witness may answer.
The underlying policy:
Knowledge is power. The way to find truth is to present the jury with all the evidence that bears on the issue to be decided, except when there is good reason to do otherwise.
A. DEFINITION OF RELEVANCY
1. FRE 401
Evidence having any tendency to make the existence of a consequential fact more probable or less probable than it would be without the evidence.
Relevance is a relational concept meaning only in context. Relevance is determined by the issues raised by the parties, the other evidence introduced, and the applicable substantive law. A determination of relevancy may depend on the content of pleadings, indictments, pretrial orders, and pleas, as well as the testimony of other witnesses and the opening statements and arguments of counsel (Evidence, p.225)
In ruling upon relevancy, the court must draw on its own experience, the court must draw on its own experience, knowledge, and common sense in assessing whether a logical relationship exists between proffered evidence and the fact to be proven. (id., pp.225-6)
2. Of a consequential fact
a. Substantive evidence
i) relating to an element of a cause of action or affirmation defense
ii) generally if stipulations made, irrelevant.
iii) generally must related to time, event, or person in controversy; if not, not probative.
b. Evidence of impeachment/rehab of witnesses
c. Expert testimony & demonstrative evidence ; “assist-the-jury” – clarifying other admissible evidence.
“But the fact to which the evidence is directed need not be in dispute…. Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category” (ACN).
3. Probative Value
“any tendency” – if more than 0 (= irrelevant), the evidence is relevant.
The judge normally does not make the assessment of probative value by applying cut-and-dried legal principles. Rather, he applies his own experience, general knowledge, and understanding of human conduct and motivation.
a. Chain of inference
In assessing probative value, the judge must determine what proposition the evidence is being offered to establish, and he must then follow the chain of inference between the evidence and that proposition. Obviously, the more steps there are in the chain of inference, the less probative value the evidence has.
Example: suppose the contested issue is whether D is the person who killed V, and the evidence if a love letter from D to W, V’s wife. The chain of inference would be something like this: (1) a man who writes a love letter to a woman probably loves her (“probably” in the sense that he is more likely to love her than a man who does not write a love letter); (2) a man who loves a man probably wants her for himself alone; (3) a man who wants a woman for himself alone probably would like to get rid of her husband; (4) a man who wants to get rid of the husband of the woman he loves probably plans to do so; (5) a man who plans to get rid of someone probably does o, by killing him.
b. “A brick of the wall of evidence.”
Because the “any tendency” standard is so low, objections on this ground are rarely sustained.
Example:
D, a black man, is charged with robbing a bank. The prosecution offers a surveillance tape of the robbery, which shows the robber is black but which does not show enough detail to demonstrate that the robber is or is not D. The tape will be relevant, and admissible, because it tends to show that the robber was black, and this fact makes it more likely that the robber is D than would be the case if the tape was not in evidence – it doesn’t matter that the tape is not by itself enough to make it more likely than not that D was the robber.
In point of fact, evidence should rarely be excluded for lack of probative value. On the other hand, evidence is very frequently excluded because its probative value is outweighed by prejudice, tendency to confuse, or other discretionary considerations.
EXAMPLE
Q (PROSECUTOR): Mrs. Higgins, were you at the bank on June 1, one week before the robber?
A; Yes.
Q: Did you see the defendant that day?
DEFENSE LAWYER: Your honor, we object on relevance grounds. May we approach?
JUDGE: Yes. [Lawyers come to the bench.] Prosecution, where’s this testimony going?
PROSECUTOR: The witness will testify that she saw the defendant outside the bank that day, that he was looking at the bank, but never came insider.
JUDGE: What’s that prove?
PROSECUTOR: It shows the defendant was already planning the robbery and casing the bank.
DEFENSE LAWYER: The fact that he’s outside the bank hardly proves he was planning to rob it.
JUDGE: The objection is overruled. The witness may answer.
Intro to the Federal Rules of Evidence - 2
E. PRELIMINARY QUESTIONS (FRE 104)
1. Questions of admissibility generally (FRE 104(a))
If an objection to admissibility is based on a technical exclusionary rule, any factual question needed to decide that objection belongs solely to the judge. When the judge makes such a finding, the judge is not bound by the rules of evidence except those regarding privileges.
And the judge decides such a factual issue by a preponderance of the evidence standard in both civil and criminal cases. See Bourjaily v. U.S., 483 U.S. 171 (1987).
But if the objection is that the evidence is irrelevant, the judge’s role may be more limited. While the judge handles ordinary relevance issues himself, the judge and the jury work on conditional relevance issues.
2. Relevancy conditioned on fact (FRE 104 (b))
If fact B is relevant only if fact A exists, B is conditionally relevant.
It is the jury that will decide whether fact A exists, but the judge decides whether a reasonable jury could find that fact A (the preliminary fact) exists.
For example, when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorizes it. Relevance in this sense has been labeled “conditional relevancy.” (ACN)
The Judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. (ACN)
Example 1:
P borrows D’s car, and is injured when a tire blows out. D seeks to prove that as P proves away, D shouted, “The left tire’s bad, so keep it under 55.” (D claims that this statement made P assume the risk of the kind of accident that occurred.) P asserts that she never heard this warning, and points out that if she didn’t, she cannot be held to have assumed the risk because she didn’t know about it.
Evidence of fact B (that D made the warning) is not logically relevant unless fact A (that P heard the warning) is first established. Who should decide whether P heard the warning, judge or jury?
Under the FRE, it is jury.
But the judge must decide whether a reasonable jury could find that the preliminary fact exists: if the answer is no, he will not allow the conditional relevant evidence.
Example 2: Authentication
Questions of authentication of documents and real evidence fall into this conditionally relevant category, and thus must be left to the jury.
P claims that D has libeled P in a letter written by D to X. P offers a letter purporting to be from D to X. So long as the judge thinks that there’s enough evidence that the letter was written by D that a reasonable jury could possibly find that it was indeed written by D, the judge must let the document into evidence, even if the judge thinks that the letter was probably nor written by D. It will now be up to the jury to decide (by a preponderance of the evidence) whether the letter really was written by D; if the jury concludes that it wasn’t, then the jury will disregard the letter.
3. Weight & Credibility (FRE 104(e))
The judge decides issues of admissibility and the jury decides questions of weight and credibility. A court’s admissibility ruling does not curtail the right to a party to dispute the reliability evidence before the jury.
F. LIMITED ADMISSIBLITY (FRE 105)
1. Multiple admissibility
An item of evidence may properly be used for multiple purposes. For example, a party’s prior inconsistent statement may be admitted for impeachment as a prior inconsistent statement (FRE 613) and substantive evidence as a party admission (FRE 801(d)(2)(A)).
2. Limited admissibility
Evidence may be admissible for one purpose but inadmissible for another purpose. (ex. FRE 404(b), FRE 407, FRE 408, FRE 411). Evidence also may be admissible against one party but not against another party. In other words, the evidence is admissible for a limited purpose. Under FRE 105, the court must, upon request, instruct the jury as to the limited purpose of the evidence.
1. Questions of admissibility generally (FRE 104(a))
If an objection to admissibility is based on a technical exclusionary rule, any factual question needed to decide that objection belongs solely to the judge. When the judge makes such a finding, the judge is not bound by the rules of evidence except those regarding privileges.
And the judge decides such a factual issue by a preponderance of the evidence standard in both civil and criminal cases. See Bourjaily v. U.S., 483 U.S. 171 (1987).
But if the objection is that the evidence is irrelevant, the judge’s role may be more limited. While the judge handles ordinary relevance issues himself, the judge and the jury work on conditional relevance issues.
2. Relevancy conditioned on fact (FRE 104 (b))
If fact B is relevant only if fact A exists, B is conditionally relevant.
It is the jury that will decide whether fact A exists, but the judge decides whether a reasonable jury could find that fact A (the preliminary fact) exists.
For example, when a spoken statement is relied upon to prove notice to X, it is without probative value unless X heard it. Or if a letter purporting to be from Y is relied upon to establish an admission by him, it has no probative value unless Y wrote or authorizes it. Relevance in this sense has been labeled “conditional relevancy.” (ACN)
The Judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If so, the item is admitted. If after all the evidence on the issue is in, pro and con, the jury could reasonably conclude that fulfillment of the condition is not established, the issue is for them. If the evidence is not such as to allow a finding, the judge withdraws the matter from their consideration. (ACN)
Example 1:
P borrows D’s car, and is injured when a tire blows out. D seeks to prove that as P proves away, D shouted, “The left tire’s bad, so keep it under 55.” (D claims that this statement made P assume the risk of the kind of accident that occurred.) P asserts that she never heard this warning, and points out that if she didn’t, she cannot be held to have assumed the risk because she didn’t know about it.
Evidence of fact B (that D made the warning) is not logically relevant unless fact A (that P heard the warning) is first established. Who should decide whether P heard the warning, judge or jury?
Under the FRE, it is jury.
But the judge must decide whether a reasonable jury could find that the preliminary fact exists: if the answer is no, he will not allow the conditional relevant evidence.
Example 2: Authentication
Questions of authentication of documents and real evidence fall into this conditionally relevant category, and thus must be left to the jury.
P claims that D has libeled P in a letter written by D to X. P offers a letter purporting to be from D to X. So long as the judge thinks that there’s enough evidence that the letter was written by D that a reasonable jury could possibly find that it was indeed written by D, the judge must let the document into evidence, even if the judge thinks that the letter was probably nor written by D. It will now be up to the jury to decide (by a preponderance of the evidence) whether the letter really was written by D; if the jury concludes that it wasn’t, then the jury will disregard the letter.
3. Weight & Credibility (FRE 104(e))
The judge decides issues of admissibility and the jury decides questions of weight and credibility. A court’s admissibility ruling does not curtail the right to a party to dispute the reliability evidence before the jury.
F. LIMITED ADMISSIBLITY (FRE 105)
1. Multiple admissibility
An item of evidence may properly be used for multiple purposes. For example, a party’s prior inconsistent statement may be admitted for impeachment as a prior inconsistent statement (FRE 613) and substantive evidence as a party admission (FRE 801(d)(2)(A)).
2. Limited admissibility
Evidence may be admissible for one purpose but inadmissible for another purpose. (ex. FRE 404(b), FRE 407, FRE 408, FRE 411). Evidence also may be admissible against one party but not against another party. In other words, the evidence is admissible for a limited purpose. Under FRE 105, the court must, upon request, instruct the jury as to the limited purpose of the evidence.
Intro to the Federal Rules of Evidence -1
I. INTRO (ART. I & ART. XV)
A. SCOPE (FRE 101, FRE 1101)
The FRE apply to almost all federal court proceedings with the exceptions of FRE 1101 (d) & (e).
The FRE apply also in diversity cases. But regarding presumptions (FRE 302), privileges (FRE 501), and competency of witnesses (FRE 601), the law of a state is applied.
B. ROLES OF JUDGE AND JURY
1. Allocation of Responsibility
The judge decides the admissibility of evidence, the jury decides its weight, which includes the credibility of witnesses.
2. Role of the Judge
“In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial.” Quercia v. United States, 289 U.S. 466, 469 (1933).
C. MAKING AND RESPONDING TO OBJECTIONS
1. Making objections
a. Not automatic exclusion
Evidence will not be excluded unless the opponent makes an objection (FRE 103(a)(1)).
b. Timely
The objection must be timely (FRE 103(a)(1)).
c. Specific
The objection must be specific enough to explain the trial judge and the appeals court the basis for it (FRE 103(a)(1)).
2. Responding to objection
If the judge sustains objection, the proponent must usually make an offer of proof in order to preserve his right to argue on appeal that the evidence should have been admitted (FRE 103(a)(2)).
D. RULINGS ON EVIDENCE (FRE 103)
1. The harmless error doctrine (FRE 103(a))
The verdict below will be reversed, or a new trial ordered, only if the appellate court believes that the error may have made a difference to the outcome; an error that is harmless (i.e., that probably did not affect the outcome) is disregarded.
A ruling admitting or excluding evidence only affects a party’s substantial right if it may have affected the outcome.
In a criminal case, where the error is the admission of evidence in violation of the defendant’s constitutional rights, it is fairly easy for the defendant to convince the appellate court that the error was not harmless. Chapman v. California, 386 U.S. 18 (1967).
2. Plain error (FRE 103(d))
A party’s failure to respond promptly to the erroneous admission or exclusion of evidence may result in a waiver of that party’s right to complain about the error on appeal. But there is a key exception to the rule of waiver: if the appellate court concludes that the error was plain, it may treat the error as grounds for a new trial even if no objection or offer of proof was made.
3. Harmless error v. plain error
Since the two concepts are not defined very precisely in the FRE, federal courts are free to require a larger showing of prejudice before they will deem an error to be plain than before they will find an error that was pointed out below to be non-harmless.
(a)(1) objections
In practice, you should state your strongest reason in the presence of the jury. The jury may see multiple alternative objections as a sign of surprise or desperation.
But in an essay exam, you should state as many reasons as you can.
(a)(2) Offer of proof
If the judge sustains an objection to your offered evidence, make sure you preserve any error for appeal if that evidence is important. If the judge sustained an objection to an exhibit, make sure the exhibit is marked and the court clerk gets it so that the exhibit is included in the trial court record. If the judge sustained an objection to a question or a witness’s answer, you need to make an offer of proof (out of the jury presence). (Trials, p.526)
EXAMPLE 1
LAWYER: Your honor, may we approach the bench?
JUDGE: Yes. [Lawyers come up to the judge’s bench.]
LAWYER: Your honor, I’d like to make an offer of proof.
JUDGE: Very well.
LAWYER: My question, to which an objection was sustained, was: “Tell us what the driver of the truck said right after the crash.” If the witness were allowed to answer the question, he would have said:
“The driver jumped out, walked over to my car, and said ‘I’m sorry, I shouldn’t have been out here with the company truck.” The statement is a statement by an employee of the party-opponent, and is admissible under Rule 801.
JUDGE: My ruling stands. Continue with your examination.
Another, and better way, if the witness is in court, is to ask the proposed questions and get the witness’s answers, out of the presence of the jurors. The court reporter’s trial transcript will then contain the actual exclude testimony.
EXAMPLE 2
LAWYER: Your Honor, now that the jurors are out of the courtroom, may I make an offer of proof, since the witness is still on the stand?
JUDGE: Proceed.
Q (BY LAWYER): Mr. Jackson, what did the driver of the truck do after the crash?
A: He got out of his truck and walked over to my car.
Q: Did he say anything?
A: Yes.
Q: Tell us what he said.
A: He said: “I’m sorry. I shouldn’t have been out here with the company truck.”
LAWYER: Your Honor, in light of the witness’s answers, we ask that you reconsider your ruling.
JUDGE: I have, and my ruling remains the same. The objection sustained.
A. SCOPE (FRE 101, FRE 1101)
The FRE apply to almost all federal court proceedings with the exceptions of FRE 1101 (d) & (e).
The FRE apply also in diversity cases. But regarding presumptions (FRE 302), privileges (FRE 501), and competency of witnesses (FRE 601), the law of a state is applied.
B. ROLES OF JUDGE AND JURY
1. Allocation of Responsibility
The judge decides the admissibility of evidence, the jury decides its weight, which includes the credibility of witnesses.
2. Role of the Judge
“In a trial by jury in a federal court, the judge is not a mere moderator, but is the governor of the trial.” Quercia v. United States, 289 U.S. 466, 469 (1933).
C. MAKING AND RESPONDING TO OBJECTIONS
1. Making objections
a. Not automatic exclusion
Evidence will not be excluded unless the opponent makes an objection (FRE 103(a)(1)).
b. Timely
The objection must be timely (FRE 103(a)(1)).
c. Specific
The objection must be specific enough to explain the trial judge and the appeals court the basis for it (FRE 103(a)(1)).
2. Responding to objection
If the judge sustains objection, the proponent must usually make an offer of proof in order to preserve his right to argue on appeal that the evidence should have been admitted (FRE 103(a)(2)).
D. RULINGS ON EVIDENCE (FRE 103)
1. The harmless error doctrine (FRE 103(a))
The verdict below will be reversed, or a new trial ordered, only if the appellate court believes that the error may have made a difference to the outcome; an error that is harmless (i.e., that probably did not affect the outcome) is disregarded.
A ruling admitting or excluding evidence only affects a party’s substantial right if it may have affected the outcome.
In a criminal case, where the error is the admission of evidence in violation of the defendant’s constitutional rights, it is fairly easy for the defendant to convince the appellate court that the error was not harmless. Chapman v. California, 386 U.S. 18 (1967).
2. Plain error (FRE 103(d))
A party’s failure to respond promptly to the erroneous admission or exclusion of evidence may result in a waiver of that party’s right to complain about the error on appeal. But there is a key exception to the rule of waiver: if the appellate court concludes that the error was plain, it may treat the error as grounds for a new trial even if no objection or offer of proof was made.
3. Harmless error v. plain error
Since the two concepts are not defined very precisely in the FRE, federal courts are free to require a larger showing of prejudice before they will deem an error to be plain than before they will find an error that was pointed out below to be non-harmless.
(a)(1) objections
In practice, you should state your strongest reason in the presence of the jury. The jury may see multiple alternative objections as a sign of surprise or desperation.
But in an essay exam, you should state as many reasons as you can.
(a)(2) Offer of proof
If the judge sustains an objection to your offered evidence, make sure you preserve any error for appeal if that evidence is important. If the judge sustained an objection to an exhibit, make sure the exhibit is marked and the court clerk gets it so that the exhibit is included in the trial court record. If the judge sustained an objection to a question or a witness’s answer, you need to make an offer of proof (out of the jury presence). (Trials, p.526)
EXAMPLE 1
LAWYER: Your honor, may we approach the bench?
JUDGE: Yes. [Lawyers come up to the judge’s bench.]
LAWYER: Your honor, I’d like to make an offer of proof.
JUDGE: Very well.
LAWYER: My question, to which an objection was sustained, was: “Tell us what the driver of the truck said right after the crash.” If the witness were allowed to answer the question, he would have said:
“The driver jumped out, walked over to my car, and said ‘I’m sorry, I shouldn’t have been out here with the company truck.” The statement is a statement by an employee of the party-opponent, and is admissible under Rule 801.
JUDGE: My ruling stands. Continue with your examination.
Another, and better way, if the witness is in court, is to ask the proposed questions and get the witness’s answers, out of the presence of the jurors. The court reporter’s trial transcript will then contain the actual exclude testimony.
EXAMPLE 2
LAWYER: Your Honor, now that the jurors are out of the courtroom, may I make an offer of proof, since the witness is still on the stand?
JUDGE: Proceed.
Q (BY LAWYER): Mr. Jackson, what did the driver of the truck do after the crash?
A: He got out of his truck and walked over to my car.
Q: Did he say anything?
A: Yes.
Q: Tell us what he said.
A: He said: “I’m sorry. I shouldn’t have been out here with the company truck.”
LAWYER: Your Honor, in light of the witness’s answers, we ask that you reconsider your ruling.
JUDGE: I have, and my ruling remains the same. The objection sustained.
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