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.