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Rule to raise objection?
- Rule 103(a) Preserving a Claim of Error. A party many claim error in a ruling to admit or exclude evidence only if....
- (1) the ruling admits evidence, a party, on the record:
- (A) timely objects or moves to strike; and
- (B) states the specific ground, unless it was apparent from the context;...
- (1) 2 mechanisms for disputing evidence at trial: objection and by motion to strike
- Objection-- BEFORE the opponent introduces a potentially inadmissible item into evidence
- Motion to strike-- AFTER disputed evidence has already entered the record
- (2) Challenge evidence in a timely manner
- Must object to evidence as soon as the ground for objection is known or reasonably should be known
- (3) Requires trial lawyers to state the "specific ground" for any objection.
- *Gives both the judge and opponent notice about the basis for an objection.
- *If multiple grounds for objecting to evidence, then the attorney should raise each of those specifics to preserve those other grounds for appeal
- *Requires attorneys to designate the portion of a document or witness's testimony to which they object
- *Entire document/testimony is objectionable then the attorney can object to the whole; but if just one part of evidence is inadmissible, the attorney must specify that portion
- *Rule 103 allows attorneys to forego specificity if the basis of an objection is "apparent from the context" but good litigators always add at least 1 word/phrase to an objection
Rule for defending evidence..... what does the opponent have to do?
When one party objects to introduction of evidence, the opponent makes an offer of proof
to show the judge what the evidence entails. If the opponent fails to make this offer, then he waives any objection on appeal:
- Rule 103(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only...
- (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
- 2 principal ways to make an offer of proof:
- (1) lawyer tells the court what the proposed testimony would be, either in a narrative or question and answer form
- (2) using the witness himself; out of the jury's presence, continue the examination of the witness, using the same questions to which objection had been sustained
Rule for Maintaining Objections
- Rule 103(b) Not Needing to Renew an Objection or Offer of Proof.
- Once the court rules definitively on the record-- either before or at trial -- a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
Rule that governs limiting instructions....
Rules 105 admission of evidence for a limited purpose/party
- Admission of evidence for limited purpose permit parties to introduce evidence for one purpose but not others; admits evidence for specific, limited purposes.
- IE: Cases involving multiple P or D, evidence may be admissible against 1 P or D but not against others.
- Rules 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes.
- If the court admits evidence that is admissible against a party or for a purpose -- but not against another party or for another purpose-- the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
- If evidence is admissible only for limited purposes or against particular parties, and a party requests an instruction making those limits clear, the judge MUST give that instruction.
- 1. Limiting Instruction in Practice:
- Judges also use instructions to explain the role of demonstrative evidence
- There is a tradition that permits a summary of evidence to be put before the jury with proper limiting instruction
- Judges use a limited instruction to prevent a jury from considering irrelevant aspects of a piece of evidence
- 2. Do limiting Instructions Work?
Plain error standard
- If a party fails to preserve an evidentiary objection at trial, appellate review of the challenge is even more limited.
- Rule 103(e) allows reversal only for plain error.
Rule 103(e) Taking Notice of Plain Error.
A court may take notice of a plain error affecting a substantial right
even if the claim was not properly preserved.
Courts require an error that is "clear and obvious under current law; affects a party's substantial rights; and would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected"
Abuse of discretion and analysis
(1) standard to most claims of evidentary error.
Appellate judges are reluctant to reverse...
- (2) Rule 103 allows appellate judges to reverse for evidentiary error only if the error affected a "substantial right" of one of the parties
- Rule 103(a) Preserving a Claim of Error.
- A party may claim error in ruling to admit or exclude evidence only if the error affects a substantial right of the party...
An evidentary ruling affect's a party's substantial right only if there is a reasonable probability that, if the judge had made the correct ruling, the outcome of the case would have been different.
de novo= a trial judge misinterpret a Rule of Evidence or applies the wrong legal standard at trial.
Substantial Right test-- A party may claim error in ruling to admit or exclude evidence only if the error affects a substantial right of the party... reasonable probability that, if the judge had made the correct ruling, the outcome of the case would have been different.
Rules for Relevance
- 402 & 401
- If evidence is relevant, then it is admissible unless a specific rule, statute, or constitutional provision bars its admissibility.
- Rule 402. General Admissibility of Relevant Evidence. Relevant evidence is admissible unless any of the following provides otherwise:
- The US Constitution
- A federal statute
- These rules; or
- Other rules prescribed by the Supreme Court
Irrelevant evidence is not admissible.
- Rule 401. Test for Relevant Evidence. Evidence is relevant if:
- (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
- (b) the fact is of consequence in determining the action.
- 3 key phrases:
- (1) "Any Tendency" to make a fact "More or Less Probable".
- More or less probable indicates that an individual piece of evidence can be relevant even if it does not conclusively establish any fact on its own.
- (2) Must be a fact "of consequence"
- Facts itself must be related to the cause of the action, that is a fact that matters to someone who is trying to decide the case. Evidence must tend to est. a fact that is "of consequence" to the lawsuit.
Evidence must still connect to legal issues involved in the case, but the connection does not need to be "material"
How is relevance determined by judges?
- Relevance under Rules 401 and 402 "are determined in the context of the facts and arguement in a particular case"; cases by cases
- No Per se rules of relevance
A well prepared lawyer can stress the special facts and circumstances of her client's case and cite Sprint
to underline the court's obligation to decide relevance on a case-by-case basis.
Define opening the door
irrelevant evidence becomes relevant to rebut claims made by another party
Relevant evidence has any tendency to make a fact more or less probable and the fact is of consequence in determining the action.
- (1) Is it generally relevant (FRE 401-402)?
- (2) Do FRE 403 considerations prevent admission?... probative value is substantially outweighed by unfair prejudice, confusion, delay, or waste of time...
- (3) Do character traits rules apply (FRE 404, 405)?
- (4) Do other acts rules apply (FRE 404(b))?
- (5) Do habit rules apply (FRE 406)?
- (6) Do policy exclusion rules apply (FRE 407-415)?
- (7) Do privilege rules apply (FRE 501-502)?
- I) On
- Appeal courts look at:
(1) Evidence... there must be a specific objection…. (Offer of proof)
(2) Did the judge abuse his/her discretion
(a) No:Evidence is relevant and no other Rule requires exclusion > :)
- (b) Yes:
- (i) Affect a substantial
- right for reversal à reversal
- 1. Reasonable probability a
- correct ruling would have resulted in a different outcome
(ii) Not affect a sub. Right à harmless error
· Abuse of discretion
· De Novo—judge misinterpret a Rule of Evidence or applies the wrong legal standard at trial
· Plain error—party fails to preserve an evidentiary objection at trial