THE MCDONNELL HORNBOOK ON DUANE’S EVIDENCE

(PRE-MIDTERM):
PUTTING THE BRAKES ON DUANE
Most important tip: Don’t let your pursuit of grades or class rank become your god. It will ruin you, and worse, God will
want nothing to do with it. He may not bless you, you will not be filled with His Spirit, you will not receive the fruits of
His Spirit, and He may/will be disappointed/angry with you. Remember:
• Let the peace of Christ rule in your hearts, since as members of one body you were called to peace. And be
thankful. Let the word of Christ dwell in you richly as you teach and admonish one another with all wisdom,
and as you sing psalms, hymns and spiritual songs with gratitude in your hearts to God. And whatever you do,
whether in word or deed, do it all in the name of the Lord Jesus, giving thanks to God the Father through
him. (Col. 3:15-17)
• Love the Lord your God with all your heart and with all your soul and with all your mind. (Matt. 22:37)

Tips from the author: Prepare as well as possible for the mid-term, because the final is insanely difficult…everyone I
knew walked out of the final in mind-blowing confusion. I literally almost just gave up…I seriously randomly guessed at
least a fourth of it. BUT, the mid-term is more reasonable, so do as well as you can on it.

Here is what I did to pull an A- on the mid-term:

• I prayed.
• I made my insanely detailed outline, which you now have in your hands. This directly follows his lecture and
power point slides, and I hope it will be a real help to you.
• I read the book and outlined it. I did this during the fall break, since our mid-term was right after it.

103!
• An objection or motion to strike is used to exclude evidence an attorney believes is inadmissible. In
contrast, when an attorney’s proffer of evidence has been excluded by a trial judge’s ruling, an offer of
proof is required to preserve the issue for appeal.
• Failure to make timely and specific Objection Consequences: (Entered on record, therefore…)
o Cannot raise issue on appeal
o Considered by jury in deliberations
o Considered by judge in motions
o Considered by appeals court for sufficiency of evidence
• Failure to move to strike
o Will allow jury to consider and will not require judge to instruct jury to disregard
o Will allow opposing counsel to use in closing argument
• Failure to make offer of proof when evidence has been excluded
o Error not preserved, so appeals court cannot consider whether error was harmless or not
• Forms of offers of proof
o Testimonial
 Summary by counsel as to testimony’s content
 Direct/cross examination (judge will then determine)
 Signed affidavit by witness as to expected testimony
o Documentary
 Append to trial record
• Motions in Limine (at the treshhold)
o Pretrial request for decision on objection or offer of proof
o ??? “Once court makes definitive ruling on the record regarding exclusion/admission before or at
trial, the party need not renew their objection/offer of proof to preserve error.”???
 o If condition to exclusion is not met: no preservation of error
 “Evidence excluded unless defendant testifies”
• Luce: can’t appeal on error of exclusion when you didn’t meet condition: you didn’t
testify, so the evidence REMAINED EXCLUDED
o Invited Error Doctrine: Party inducing the error can’t take advantage at appeal
 “Evidence of conviction excluded UNLESS brought up by moving party”
• Ohler: can’t appeal on error of admission when you brought up the conviction
yourself
• Principles
o “Making the record” is one of trial counsel’s most important responsibilities. If the court does
not make a decision, it is assumed that the court overruled the objection. It is counsel’s
responsibility to ensure that all objections and offers of proof are recorded.
 Off-the-record objections are typically insufficient.
 Questions regarding admissibility are generally out of the jury’s hearing
o Plain Error Doctrine: Appeals can consider evidentiary error despite failure to object, move to
strike, or offer proof. Helps preserve fair trial.
o Harmless error: Simple existence of error does not overturn. Must be REVERSIBLE because it
was PREJUDICIAL.
 PREJUDICIAL=properly preserved + involved substantial right
• RELEVANCY OVERVIEW:
o Relevancy is the most pervasive concept in evidence law. It is the threshold issue for evidence.
If the evidence is not relevant, it is excluded.
 Federal Rule 401 defines relevant evidence (probative value). The rule must be read in
conjunction with Rules 402 and 403. Rule 402 makes relevant evidence admissible in the
absence of a rule of exclusion, and Rule 403 specifies the circumstances under which a
trial court is permitted to exclude relevant evidence.
 Special relevance rules. In some situations an issue recurs so frequently that the courts
developed categorical rules.
• For instance, character evidence is generally prohibited, although there are
important exceptions. Rules 404, 405, 412-15 deal explicitly with character.
• Similarly, evidence of liability insurance is generally inadmissible; Rule 411
covers that issue.
 Ancillary rules based on policy. Rules 407-410 are relevance rules of a different kind.
They all involve the exclusion of relevant evidence based on external policy reasons –
i.e., external to the truth-seeking function of the trial. For example, subsequent remedial
measures (Rule 407) are excluded in order to encourage people to make repairs after
accidents.

FRE 102
Least important rule and dangerously misleading because arguing for evidence in the name of truth, justice and fairness is
not going to get me anywhere in court.
Carlisle v. United States—defendant had drug charge, attorney filed a motion for a judgment of acquittal one day late, yet
the judge granted the motion in the name of justice. This went to the Supreme Court who reversed this on the grounds (1)
that the command to interpret the rules to do justice “sets forth a principle to be used in construing ambiguous rules, not a
principle of law superseding clear rules that do not achieve their stated objectives (not that I think this has to do with the
expense clause in 102).” This reduces the rule to mean nothing and this rule affects nothing!

FRE 1101(c)
Rules of Privilege apply to all actions, cases, and proceedings (this is related FRCP 26(b)(1)). Civ Pro deals with
discoverability whereas evidence deals with admissibility. Yet things can be non-discoverable or non-admissible because
of privilege.
The FRE apply in federal court to both civil and criminal cases (FRE 1101(a)). In theory these rules apply to jury or
bench trials, yet in practice the rules operate differently in a bench trial than a jury trial. In bench trial the judge is going
to hear the evidence and “promise” the attorney that he won’t consider it when deliberating.

FRE 1101(d) deals with when the FRE does not apply because, at the time these rules were written, these proceedings did
not involve a jury (a grand jury is not a jury).

FRE 1101(b)
FRE does not apply to contempt proceedings in which the court may act summarily. There is direct contempt (committed
in the presence of the judge and the court can act summarily, this is allowed otherwise the judge will have no control over
his courtroom and that there is no jury (?)) and indirect contempt (committed not in the presence of the judge and there
can be a trial, possibly by jury) (2).

9/26 REVIEW:
Jury has wide girth to decide the ultimate issues in the case (the allegations of the complaint (in a civil case or the
indictment (in a criminal case) identify the essential elements of the claim or charge, which are what the attorney intends
to prove at trial). But these are not preliminary questions. Preliminary Question: A question of law or fact arising out of
an objection to the admission of evidence which must be resolved (at least provisionally—“for now”) before the objection
can be decided (this is the definition in evidence class). Note that not every objection raises a preliminary question (such
as with leading the witness), but some do (such as an objection for attorney-client privilege). The first thing to do with a
preliminary question is sort out whether it is a question of law or fact. The judge decides all the legal (law) questions.
Rule 104a states that must preliminary questions of fact go to the judge also, but there are two times when they go to the
jury.
• Factual Question that goes both to admissibility and credibility (Rule 104e): Questions that go not only to
legal admissibility but also to weight or credibility go first to the judge and then can go to the jury if the attorney
wants them to (this is under Rule 104e) (such as a confession that the defendant signed after the police beat him
into doing it). Note that “This rule” in 104e is referring to 104a. Yet they cannot tell the jury that the judge
already considered the issue. But remember that the judge is only finding by a preponderance of the evidence that
the police officer is telling the truth (therefore admitting the confession into evidence). But the jury trying to
decide whether there is a reasonable doubt as to whether the defendant is telling the truth, and from there they
may not be able to convict (???).
• Factual Question upon which the very logical relevance depends (Rule 104b): Some objections go to a
fundamental/logical proposition that go to the very relevance of the evidence (such as whether something is a
forgery, because if it is then it is irrelevant). The judge considers it first to determine whether there is or will be
sufficient evidence to support a finding by the jury that the evidence is what it is claimed to be. Specifically, the
judge is deciding whether there is enough admissible evidence here that this issue could go either way (not a lot is
needed, just a little something, and the judge doesn’t deny this much). If there is, then the judge will “admit it”
and it will go to the jury. NOTE that if neither side has any evidence that it is or isn’t relevant, then the judge
should exclude it (not let it in). Another example is that a letter that the deceased wrote to complain about the
stairs that he fell on and died that his widow found who wants it admitted as evidence for notice of the defect to
the landowner. The problem is that the widow has no evidence or knowledge that it was mailed and the defendant
landlord claims he has never seen it. The judge should probably not let the jury see this because 104(b) says that
“if the relevance of evidence depends upon the fulfillment of a condition of fact (here the condition of fact was
whether the letter was received by the landlord), the court shall admit it upon…sufficient evidence to support a
finding”. The widow doesn’t have any evidence to support the finding. She never shifted the burden of
production. If the jury does see this, they might find for the poor old widow without any real evidence under
based on emotions, which is why we don’t let the jury see this. BUT if the guy never died and he is willing to
testify that he did mail it, then there is enough to shift the burden of producing evidence (production) to the
defendant because of the applicable presumption. And if the defendant testifies that he never got the letter, then
the presumption is lifted and it goes to the jury to decide.
Also, once a judge decides that evidence (a confession) is inadmissible, the prosecuting attorney cannot bring it out
because it is inadmissible and the jury cannot hear about it under Rule 103(c). Evidence that goes to the weight or
credibility of the evidence is irrelevant unless the evidence gets admitted. That’s why 104(e) doesn’t come into play
unless the objection gets overruled (which means that the evidence will be admitted!).
ALWAYS ASSUME THAT THERE IS A JURY TRIAL (1)
FRE 104
A judge decides all the questions of law, yet a jury does not decided all the questions of fact. The jury decides: The
ultimate or general issue—this is the question raised by the very heart of the pleadings (civil-complaint-claims/criminal-
indictment-charges/civil-the answer/criminal-the defenses). Jury is typically called to decide the claims or charges (what
is alleged, etc.).
Basic Point of 104(a): Judges decide preliminary factual questions (and of course preliminary legal questions) (any
factual or legal issues upon which the parties disagree) that must be decided logically before some legal issue can be
decided. But the jury decides all factual disputes that are preliminary to a factual issue rather than a legal issue
(was that her blood on the shirt or his knife). These are leading to a ruling on the ultimate issue rather than
admissibility of evidence.
Preliminary Question: A question of law or fact arising out of an objection to the admission of evidence which must
be resolved (at least provisionally—“for now”) before the objection can be decided (this is the definition in
evidence class).
There are two kinds of preliminary questions (104a and 104b respectively)
Conditional Admissibility: Preliminary Questions that only affect the admissibility of the evidence but not its
relevance.
• Example: Police must read Miranda rights to use a defendants confession against him. If the defense
attorney’s only objection is that the police forgot to read him his rights, then this preliminary question has
nothing to do with it’s relevance to the case. So if the defendant confessed but the police didn’t read him
the rights, that evidence will still be VERY relevant but not admissible.
• Judge gets to decide this under 104(a). (NUMBER 1)
• The judge is not bound by the FRE except those with respect to privileges (the judge can hear inadmissible
evidence unlike the jury). (NUMBER 2)
• Questions of conditional admissibility are to be decided by the judge by a preponderance of the evidence.
The proponent of the evidence (party trying to get this thing admitted into evidence) bears the burden of
proving to the satisfaction of the judge to a preponderance of the evidence (NUMBER 3). 51% or more,
then the objection is overruled and the evidence will be admitted, 50% or less then the objection will be
sustained and the evidence will be excluded (not admitted).
• Almost every FRE fits into this category, rather than conditional relevance.
Conditional Relevance: Factual questions that affect not only the admissibility of the evidence but also its very
relevance in the case (affects both). Note that all irrelevant evidence is inadmissible (it’s a waste of time and
shouldn’t be in the trial).
• Example: The written confession is objected to because it is a forgery, and now the relevance of this
question depends on whether this was a forgery or not. If it is a forgery then it has no value to the jury.
• 104(e) holds that the jury gets to decide all the factual questions relevant to the weight or credibility of the
testimony and the exhibits of the other evidence.(6) Whether the confession is a forgery has everything to
do with the weight and credibility of the evidence.
• 104(b) holds that the judge has a preliminary screening role and must first determine whether there is
sufficient evidence that would support a finding that the condition has been fulfilled (whether there is any
way a rational jury could find). Note that 104(b) deals with relevancy conditioned on fact—the relevance
of the evidence depends on a factual question (the factual condition here is did the defendant really sign the
confession). Objections under 104(b) are rarely sustained, they are only sustained if there is no evidence or
the evidence isn’t present.
• 104(b) is referring to “admissible” evidence. This is because the whole question is whether there is
sufficient evidence to prevent the jury from finding in your favor. If there is only inadmissible evidence,
then the jury will not be able to find in your favor because they wouldn’t even be able to hear it.
The judge decides (all other factual issues) those that determine the outcome of any other issue in the case; that is, the
legal issues (2). Such as whether there is personal jurisdiction or whether the defendant’s letter is admissible against him
or privileged. These are preliminary factual questions and preliminary legal OR factual questions are determined by the
judge (the court) (4). This is covered by FRE 104(a).
Yet there are some preliminary factual questions to a factual issue that a jury will decide because they are leading to a
ruling on the ultimate issue rather than a legal issue (such as was that the defendant’s blood on the shirt).
A preliminary question is a question of law or fact arising out of an objection to the admission of evidence, which must be
resolved (at least provisionally) before the objection can be decided. There are two kinds of these:
Conditional Admissibility: Questions that affect only the admissibility of the evidence, but not its relevance. “Did the
police read the accused his rights?”
Conditional Relevance: Questions that affect the relevance of the evidence (and therefore also its admissibility). “Did the
accused really sign the confession?” (5)
FRE 104(e) (6)
Objections under 104(b) are rarely sustained because the party needs to provide some evidence.
Questions of admissibility are decided by a preponderance of the evidence. Conditional Admissibility takes much longer
because

8/27/07
Conditional Admissibility: These are questions raised by rules of law that we do not trust the jury to obey. While we trust
the jury to follow the basic principal rules of law (they are logical and written on their hearts), we do not trust the jury
with the technical and procedural rules (they are not common sense or logical), such as rules of evidence (confession
doesn’t count if Miranda rights aren’t read). This is not because the jury cannot understand them, but because the jury is
not trusted to hold to them (“So what if he didn’t get his Miranda rights, he CONFESSED!”). Note that rules of evidence
were formed because of the distrust of the jury.
Conditional Relevance: These are raised by rules of logic, not by a legal principle (objection that it is a forgery).

FRE 104(c)
Jackson v. Denno: Defendant confessed to killing a cop but argued the police didn’t read him his rights, so the judge let
the jury hear it and then told them to put it out of the juries mind if the police didn’t read him his rights. Supreme Court
decided as a matter of constitutional law that these technical and procedural questions have to first be decided by the
judge and not the jury. Yet the jury can make a decision on it after the judge already makes a ruling that it is admissible
evidence, the jury just can’t decide on it instead of the judge.

The excluding of the jury is automatic if either (1) the objection is to the admissibility of a confession (any
preliminary dispute over the admissibility of a confession), or (2) if the accused is a witness and so requests (note).
Exclusion of Jury: Exclusion of jury technically means taking them out of the courtroom, but it is also sufficient to deal
with the objection at “sidebar” if it is out of hearing of the jury (judge decides which).
The first clause is now kind of outdated because there are certain issues that must be raised prior to trial, specifically
motions to suppress evidence (12b3). Motions to suppress evidence have to be made before trial (because they are easy to
predict and are very time consuming), otherwise the objection to suppress the evidence is waived (all other objections to
evidence can happen during trial). Suppression motions Suppression of evidence does not mean exclusion of evidence
because it violates some FRE or procedure, but exclusion because its admission would violate the federal constitution.
This motion allows the court to deal with these issues before trial and avoid wasting time with a mini-trial during trial in
which the jury has to leave.
Questions: Why isn’t the second clause redundant? While the first clause requires the exclusion of the jury in regard to
confessions, the second clause just gives the accused the option of excluding the jury when testifying (being a witness) on
other preliminary matters.
Why is it limited to preliminary questions? For the primary questions the defendant would either want to testify in front
of the jury or not at all.
What is its purpose? No matter what the defendant says when he takes (for whatever preliminary question), the jury will
wonder why he didn’t testify if he is guilty or innocent while he was on the stand. In short, it is to protect his 4th and 5th
Amendment rights, the right not to answer any questions about whether he is guilty or innocent, or be a witness against
himself in the presence of the jury, etc. It is also to keep the jury from seeing the judge chose to believe the police over
the defendant (which would damage the defendant character by making look less trustworthy).
How does the judge know when to exclude the jury on “other preliminary matters…when the interests of justice require?”
The judge will consider (1) prejudice (whether there is someone in the courtroom that will be unfairly prejudiced if the
jury is allowed to stay) and (2) efficiency (while most objections involve questions of admissibility (technicalities) that the
judge decides and are not useful to the jury because they do not involve the weight or credibility, some objections bear
both on admissibility and weight or credibility and are useful for the jury to hear because if the evidence is admitted, then
the jury would have to hear the stuff all over again according to 104(e), as long as it doesn’t prejudice someone).

Three kinds of objections:

• Objections that only go to admissibility (law says so), but not weight or credibility (police did not read defendant
his rights before the confession). These are determined with finality by the judge.
 • Objections that only go to weight or credibility (common sense says so), but not admissibility
• Objections that bear on both admissibility AND weight and credibility (police physically beat the confession out
of my client). After the objection has been argued before the judge and the judge rules that it is admissible, the
defendant has a right to have this reargued before the jury under 104(e). This is because the confession was
beaten out of him goes to the weight and credibility. Note that a jury will generally never know the stuff is being
reargued and what was the judges ruling. But the jury is deciding a different question than the judge because
while the judge is ruling on a preponderance of the evidence, the jury is ruling beyond a reasonable doubt (is there
a reasonable doubt that the defendant is telling the truth). Even though the judge may rule that the evidence is
admissible, if the objection also goes to the weight or creditability, then it can be reargued before the jury again
(without the jury even knowing that it was argued), and the objector can still win the war (even though he lost the
battle on admissibility) if he convinces the jury through testimony or legal arguments that the evidence, even
though it is admissible, is not credible and therefore worthless.

FRE 102:
Bowles v. Russell: Defendant sentenced to life for murder relied on judges miscalculation for extension to file an appeal.
Even though there was a line of cases that courts have the inherent equitable discretion to disregard a late filing, the
Supreme Court ruled that the procedural rules must be followed, and it’s up to Congress to make a rule to excuse
compliance. But there was a big dissent against this ruling.

FRE 103: This has little to do with truth and justice and is mostly about expense and delay (criminal could be wrongly
convicted but won’t be preserved because attorney did not do something right). This rule is about making sure the system
is running on schedule.

Two kinds of Evidence:

• Testimony: answers from the witnesses to the questions that are put to them on either direct or cross examination.
Direct examination is the questioning of a witness that you called to the stand. Cross-examination is the
questioning of a witness that the other attorney called to the stand. (Note: Then there is redirect and re cross).
Virtually everything that comes out of the mouth of lawyers is not evidence (opening & closing statements,
arguments, etc.), including lawyers questions, EXCEPT when the witness says “yes” to the question, then it
becomes evidence.
• Exhibits: Objects, documents, or things that are shown to the jury.

8/30/07

Three kinds of Objections (ask which type of one we are talking about for each rule) (these are listed in terms of differing
degrees of impediment they set up for the opponent, from most to least):
• The fact you are trying to prove is inadmissible (pursading judge that any evidence about the defendant’s criminal
record is inadmissible, which is a great impediment/victory)
• The evidence you are trying to use is inadmissible (the facts can be proven but some other evidence will have to
be used to prove those facts) (sometimes the fact is not the problem, it’s just the evidence that you are trying to
use, such as hearsay).
• The form of the question is improper (such as leading or badgering the witness) (this just means that the question
will have to be reworded).

Motions: A request to the court for an order. If I win, it is “granted”, but if I lose, it is “denied”.
Objections: If I win, it is “sustained”, but if I lose, it is “overruled”.

103 is unique: All other FRE tell me when I may object and focus on the trial, but 103 in complete contrast, is not about
when one is permitted to object nor does it govern admissibility (not really a rule of evidence), but it defines situations
when I MUST object or make a second or better objection (even if I do not want to). This is about preservation of error
and the focus is on the appeal. This is the least important rule for prosecutors (and trial judges) because prosecutors
cannot appeal.

The three requirements for a court to reverse (all of these must be argued and proved before the court of appeals and there
is no order as to which goes first—they are independent).
 • Error must have been committed at the trial in the lower court.
• The error must be prejudicial (is there a reasonable probability that the error may have affected the outcome of the
case). If the error is not prejudicial, then it is a “harmless” error. To decide this, the court looks in the trial record
to determine the strength of the prevailing parties case. The smaller the case and the shorter the trial, the better
chance that the error was substantial and affected the outcome. The court also looks at the length of the juries
deliberation and the nature of the verdict (how many counts of indictment) to determine how substantial the error
on evidence was. If the jury convicts on a smaller amount of indictments, that means they scrutinized the counts
and evidence more and it looks better for the prosecution. Also whether the error goes to what the jury convicted
the defendant of.
• The error must be preserved.

The FRE and FRCP connect, FCRP deals with preserving errors at deposition.
FRCP 30(c) says that at a pre-trial deposition, “examination and cross-examination of witnesses may proceed as permitted
at the trial under the provisions of the Federal Rules of Evidence except Rules 103 and 615”. These rules are not binding
on a deposition. This is because “all objections made at the time of the examination to the qualifications of the officer
taking the deposition, to the manner of taking it, to the evidence presented, to the conduct of any party, or to any other
aspect of the proceedings shall be noted by the officer upon the record of the deposition; but the examination shall
proceed, with the testimony being taken subject to the objections” (still 30(c)).
When an objection is made in trial, that is a time-out in which the trial stops and a ruling must be made, but a deposition
does not stop for a ruling when an objection is made.
FRCP 32(d)(3)(a) states that “Objections to the competency of a witness or to the competency, relevancy, or materiality of
testimony are not waived by failure to make them before or during the taking of the deposition, unless the ground of the
objection is one which might have been obviated or removed if presented at that time. (this means that the objections are
automatically preserved and do not have to be made unless)
FRCP 32(d)(3)(b) states that “Errors and irregularities occurring at the oral examination in the manner of taking the
deposition, in the form of the questions or answers, in the oath or affirmation, or in the conduct of parties, and errors of
any kind which might be obviated, removed, or cured if promptly presented, are waived unless seasonable objection
thereto is made at the taking of the deposition.”
FRCP 30(d)(1) states “Any objection during a deposition must be stated concisely and in a non-argumentative and non-
suggestive manner. A person may instruct a deponent not to answer only when necessary to preserve a privilege.”
Note that FRCP 26(b)(1) states that evidence is not undiscoverable just because it’s inadmissible.
Key Rule: If the objection is one that, if true, could be obviated or fixed (other than prevelige, such as leading the witness
where the questions could be made less leading) (an objection here would put the other attorney on notice that he will
object to this evidence at trial and if the judge agrees it will not be let in), then it must be raised at the deposition or else it
is waived. But if the objection goes to anything else (the competency of a witness or to the competency, relevancy, or
materiality of testimony), then an objection does not have to made and should only be made sparingly (because too many
objections can be sanctioned) and it is not waived (they are automatically preserved) (such as the criminal record is
inadmissible or it is hearsay) (this is because nothing can be done to change this). You cannot tell the deponent to not
answer the question unless you believe that the information is privileged (could get sanctioned). If the information is
privileged, then not only does the attorney have to object, he has to instruct the deponent not to answer, because if he does
then the privilege has been waived (because soon everyone will know about the privileged secret if it is told by the time it
gets to trial).

Two basic requirements for reversible error:

• Prejudice: Was the error prejudicial? (no exceptions to this) Hear (note)
• Preservation: Was the error preserved, or else plain?

After Break

Four Types of Error (in order from best to last) (look at diagram—if it was forfeited, then it was it waived, then was it
invited).
• Preserved Error: this is done when there is a proper objection, otherwise it is waived
• Forfeited Error (but not waived): this is passive, when the attorney does nothing. This is good enough reason for
an appeals court not to consider an issue on appeal, but this is better than a waived error because the appellant can
 still get a reversal on the grounds of plain error (plain error is an objection to the general rule that every error has
to be preserved).
• Waived Error (but not invited): Waiver requires an affirmative active expression of consent, this is when the
attorney specifically says he has no objection.
• Invited Error: This is when the attorney introduces the evidence or asked the question himself (attorney shoots
himself in the foot).

The proponent is not the one objecting, but the attorney standing up with the floor who is asking questions and offering
evidence (exhibits and testimony).
The opponent (or objecting party) must object if he disagrees with the admission of the proponent’s offer of evidence
The archaic language of 103(a) to “predicate an error upon a ruling” simply means to seek reversal on appeal because of
an error. One cannot seek reversal on appeal unless (1) the error is prejudicial (not harmless—“a substantial right of the
party is affected) and (2) an objection or offer of proof was made:
• An objection must be made in case the ruling is one admitting evidence (the objection is overruled and the
evidence is admitted, then the opponent must be sure to preserve correctly). Depending on the timing, a timely
objection or motion to strike must be made. If the evidence has not yet been admitted (the question has not yet
been answered), then the opponent must object. If the evidence has already been admitted (the question has been
answered and the evidence has been seen by the jury), then the opponent must make a motion to strike. A motion
to strike is basically asking the judge to take the evidence out of the record, or more precisely, asking the judge to
instruct the jury to put this evidence out of their mind. If the motion to strike is granted, the evidence will remain
on the transcript, but the judge will remove the evidence from the admissible evidence that is allowed to be heard
and considered. It will not be referred to in closing arguments and the appeals court will not considered it for the
challenge to the sufficiency of the case (makes a big difference technically). Note that a motion to strike is silly
and superfluous (and will likely irritate the judge) if the same objection was considered and overruled a couple of
moments ago. Yet a good attorney may do this in an attempt to persuade the judge to change his mind about the
objection he just overruled (note that two officially sanctioned reasons for objecting are to (1) prevent error and
(2) preserve the point for appeal). The timely objection or motion to strike must be adequately specific as to the
(1) ground of the objection (privileged, hearsay, irrelevant, etc.), (2) what the attorney wants the court to do, i.e.,
what part of the evidence is inadmissible (generally this is pretty obvious, but it may not be if, for example, he did
not state the specific page or line of the 500 page document that he was objecting to), and (3) why the evidence is,
although admissible to the co-defendant, is not admissible against his client (this refers to semi-admissible
evidence that is admissible against one party and not the other). Note that an objection that is not specific is
called a general objection.
• An offer of proof must be made in case the ruling is one excluding evidence (the objection was sustained and the
evidence was excluded).

9/4/07

HYPO: If the judge overrules your general objection before you have a chance to make it specific, before you continue to
make a stink out of this to make it specific, you need to consider (1) how substantial the objection and how good the
chance is to persuade the appeals court that the trial judge abused his discretion and (2) even if you can persuade the
appeals court that the evidence was clearly inadmissible, how great are the chances that the appeals court will reverse on
that ground (key is to exercise some discretion and choose wisely what is worth fighting for, or else you will look bad in
front of the jury). If it is, then tell the judge “your honor, for the record, I object to this because _______.”
If the defense counsel objects to plaintiff’s counsel and asks to discuss this in his chambers, then the objecting defense
counsel is going to want the court reporter back there (or make sure the reporter puts in what happened in the chambers if
he felt there was an error) because he will need that to preserve an error for reversal (but the plaintiff’s counsel is not
going to care because he cannot appeal errors and it is not his objection—he has everything to lose and nothing to gain).
The three requirements to preserve a point for appeal is that the objection or motion to strike must be (1) timely (no
precise definition, but the sooner the better), (2) on the record (which means that it must have been heard by the judge
and the reporter, but although it can be heard by the jury, it doesn’t have to be), and specific (not a general objection).
A general objection is not worthless because (1) a general objection is just as likely to be sustained as a specific objection
(actually and paradoxally more likely to be sustained because sometimes the judges don’t recall all the FRE, but may
instinctively share the objecting attorneys feeling that one has been violated). But while they can be very effective in trial,
a general objection is almost worthless on appeal unless the ground for the objection was obvious from the context (but no
sane lawyer would purposefully gamble with this, they would make it specific). A general objection can and will be
treated by the court of appeals just as if it had been a specific objection if the specific ground for the objection was
obvious or apparent from the context. (this is a safety valve written for appeals specialists, not trial lawyers) (not plain
error because that is appropriate when no objection is made).
Degrees of Preservation (from best to worst for chances of success on appeal):
1. The lawyer who made the right objection in the lower court.
2. The lawyer who made only a general objection in the lower court.
3. The lawyer who made no objection in the lower court (or it was not on the record). This attorneys only hope is
plain error (even though the attorney made no objection, it should have been obvious to the judge because it was
so outrageously inappropriate).
4. The lawyer who made a specific but different objection in the lower court (the “wrong” objection). It is ironic
that the attorney who at least makes a specific objection comes in lower than the other two, but he will almost
have no hope because it will be very hard to convince the appeals court of plain error when the attorney made the
wrong objection to such a plain and obvious error.
5. The lawyer who told the judge “we have no objection.” This guy is worse than all the rest because he cannot
persuade the appeals court that he is a victim of plain error, if the error was not just forfeited but also waived then
it cannot be error. When a judge violates a FRE with a counsel’s explicit consent then that is not an error.

HYPO: The attorney who speaks up to make specific his reason for an objection that has already been overruled is doing
smart work because he is preserving the error for appeal.

The appellee in appeals court who had his objection sustained or whose opponent had his objection overruled may defend
an evidence judgment on any ground which the law and the record permit, even if the trial judge made the ruling for no
reason or the wrong reason (so if you win the objection, shout up and sit down and don’t try to add things to preserve it).
Preservation is for losers (preservation of error, not preservation of why the judge was correct).

HYPO: If the judge sustains a general objection made by the defense counsel, then defense counsel should not do
anything to specify why it was sustained, but the plaintiff may want to make an offer of proof if he feels the evidence
should be and is important enough to be fought for (he is unhappy with the exclusion of evidence).
The offer of proof must be specific in that it is factually specific as to the nature of the evidence excluded (what the
evidence would have been/what the jury would have seen). There is no need to cite any legal authority because Rule 402
states that all relevant evidence is admissible, except as provided by the rules (check the note here). This is why the
proponent does not have to cite legal authority for admitting evidence, because this rule states that if it is relevant then it is
admissible, and the proponent will argue that it is relevant. The proponent just has to show what the evidence would have
been for the appeals court, because they need to know this to determine whether it was harmless or prejudicial (if the
evidence could have enabled the proponent to win, then the error of not allowing the evidence would be prejudicial and
not harmless). The offer of proof must be on the record in that it is heard by the judge and court reporter, but must not be
heard by the jury. But there is no requirement for timeliness for an offer of proof. This difference between objection
and offer of proof is because errors in terms of what has not yet been done are never too late to remedy (you can always
add in the evidence later).
The two most basic methods for offers of proof are (1) attorney narrative (this is easier and the attorney can “articulate” it
better than the witness, the advantage here is that it is fast) and (2) question and answer form (the court can choose to have
this done to specifically hear what the witness says without the jury there—can call a shady lawyers bluff if he is being
dishonest, the advantage here is that it is honest and reliable). To have the best of both worlds, have it in writing.

Plain Error: This strikes a balance between finding truth and having an efficient court system between the extremes of
having errors always preserved (court always finding truth but very inefficient) and never having errors preserved (court
very efficient, but chance of not finding truth). This allows plain error review when it can be shown that a monstrous
error was committed. Of the four types of cases (civil & criminal for admission and exclusion of evidence), plain error is
most likely to be found in appeals over the admission of evidence in criminal cases (it’s easy for a court to imagine the
case without the evidence that is in the record, exclusion don’t work well because there hasn’t been an offer of proof).
People don’t get to worked up over money in civil cases (not life or limb). Remember the plain error is for the attorney
who forgot to preserve the point for appeal by making a timely and specific objection or an offer of proof on the record (if
that is done then you don’t have to worry about plain error).

Exceptions Not Necessary: Under FRCP 46, formal exceptions are not necessary. Exception basically means that the
attorney does not like the judges decision to overrule his objection (objection-overruled-exception-noted), this just states
the obvious and is not necessary to preserve an error when the attorney has already made his objection and specified it by
stating the ground (does not give the judge any incentive or opportunity to reconsider the point) (exceptions are a thing of
the past). This was required back when there wasn’t a court reporter and it was a signal for the judge to hand-write the
objection done for the record.
Reason for Requirement of Objection: There must be an objection to reserve a point for appeal (even if a huge error
occurred which resulted in a wrong conviction) because this gives the court a chance to fix the error. Otherwise an
attorney could see the error and let it go and if he loses he could try to overturn the entire case, causing all kinds of extra
work for the courts.
Objecting a lot is not realistically a good thing, because jurors see this as the lawyer is trying to hide something from
them. Lawyers do not want anymore than they absolutely have to.

Eight situations where a timely specific objections on the record may not be enough, depending on what happens next
(these are all governed by case law). Just because you did the three things, doesn’t mean they will be upheld on appeal.
1. If the inadmissible evidence was offered or “invited” by you: Generally this happens on cross-examination, when
the lawyer is examining a witness he has never examined before (need to be careful, and even need to lead the
witness). For instance, the defendants counsel asks the prosecutor’s witness on cross-examination what he has in
his notes about a conversation he had with the defendant (which the attorney isn’t sure what’s in the notes), and it
turns out to be stuff about the defendants criminal record. This is invited error for the defendants counsel so he is
screwed, but if it would have been the prosecutors question then it would have been plain error and the defendant
would have been good. (how does he get around this?) Even if counsel asks a reasonable question, and the
witness starts going into inadmissible stuff, the attorney has to object or it may be invited (is this right?)What
does it mean to lead the witness?

9/6/07
Continuation on Eight Circumstances
2. Failure to request a continuing (or running) objection when (1) your objection has been overruled, and (2) the
other lawyer asks the same question again (the objection has to be renewed by requesting a continuing objection).
Also, you need to specify what you continuing objection is. (“Have you ever had a gun before?” This is
irrelevant because it doesn’t have to do with the present charge and is therefore inadmissible and prejudicial. If
the judge overrules your objection to this and opposing counsel continues asking the same question, you’ve got to
ask for a continuing objection.)
3. Failure to request a mistrial (What???)
4. Request that the judge make a specific ruling when (1) your objection has been successful (sustained) but (2) you
are not satisfied with what the judge has done for you. If you sit down after the judge rules sustained for your
objection, the appeals court will presume that you were satisfied with his ruling (you’ve got to speak up further if
you are not satisfied with what the judge is doing for you). For example, if the judge doesn’t actually make a
ruling, or doesn’t say “sustained” or “overruled” (“I’ll keep an eye on him” or “we don’t usually do that in this
courtroom” or “I’m warning you”). Request that the judge make a specific ruling.
Motion in Limine: A request for a ruling on the admissibility of evidence before the evidence is offered (usually
pretrial, but not always). This is usually about the opponent’s evidence, don’t do this for your own evidence, just try
to get it in (don’t do opponent’s work).
5. The motion in limine denied: If your motion in limine was denied in federal court, and you think it was an
erroneous ruling, this will be adequate to preserve a claim of error as long as the objection was “definitively”
overruled (“tentative” rulings count for nothing, these are not solid rulings, such as “At this time point in time I’m
inclined to overrule”). This means that the attorney does not have to object to this evidence when it is offered at
trial. This is covered in FRE 103(a) with “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.” Note that state courts are split on this.
6. The motion in limine and the conditional ruling: A ruling can be definitive yet conditional. A conditional ruling
is a definitive ruling by the judge that depends on what the attorney or one of the parties will do. For example, if
the defendant testifies, then the defendant’s criminal record can be brought in, but if he doesn’t, then the criminal
record does not come in. Note that states are also split on this. The Supreme Court held in Luce v. United States
that the condition ruling on the motion in limine is enough to preserve a claim for error IF the party does what the
judge warned him not to do. If he doesn’t, then he has waived his right to claim error on the judges pretrial ruling
(this is because it is hopelessly speculative for the reviewing court). This is tough on the defendant because if he
doesn’t do what the judge warned him not to do, then he doesn’t have to deal with the warned about consequences
 (such as admitting his criminal record) but he loses his claim for error. But if he does do what the judge warned
him not to do, then he shoots himself in the trial but he preserves his error for appeal.
7. The motion in limine and “biting the bullet.”: This is the situation in which the defense counsel’s motion in limine
was denied (to exclude his criminal record), so he brings it out himself before the prosecutor offers it so he
doesn’t appear to the jury like he is hiding something (such as on direct examination of the defendant). But the
Supreme Court ruled in Ohler v. United States that if you bring this out yourself on direct examination, then you
waive any claim of an erroneous motion in limine ruling. The states are evenly split on whether this is invited
error (note) and waiver, the federal courts hold this is a waiver.
8. The motion in limine and “biting the bullet” in opening statement: Some clever lawyers try to bring out the
evidence that they couldn’t get to be inadmissible because the judge denied their motion in limine in their opening
statement, rather than on direct examination, to preserve the claim for error on appeal. The Supreme Court has
not yet ruled on this, but must courts rule that this is also a waiver.
HYPO for 7 & 8: I’m letting them use the conviction if your client testifies. Under Luce he cannot get a reversal on those
grounds unless his client takes the stand anyways and under Ohler he can’t get a reversal unless his client keeps his mouth
shut about his conviction under oath. Now he’s got to put his client on the stand and ask nothing about the conviction and
then wonder if the prosecutor is going to bring out the conviction.

Final Judgment Rule: This is the FRCP that holds that nothing can be appealed until the case is finished. If this wasn’t the
case then all these situations above become moot because the attorney could just go directly to the appeals court during
the trial on the issue.

Judicial Notice & Stipulations

The concept of judicial notice and stipulations are very close, but stipulations are almost mentioned nowhere in the FRE
(there does not need to be rules as to what parties can agree to). A stipulation is when the attorneys agree that something
is true.
FRE 201 is the first of three rules that has a different effect depending on whether the case is civil or criminal. Whether
the judge agrees to take judicial notice on the request of the parties does not depend on whether it is a civil or criminal
case (it’s the same standard/it’s not easier one way or the other). The difference is that in a civil case judicial notice is
conclusive, and the judge will order the jury to take that fact as though it was proven, BUT in a criminal case the jury is
not required to accept any judicially noticed fact as conclusive. (Look at some slides here he skipped)
Judicial notice, like stipulation, is a way of proving something without any evidence (this is so obvious and indisputable
that we are not going to waste court time proving it). On all other issues that aren’t governed by judicial notice and
stipulations, the juries verdict must be based only upon the evidence.
Note that even a criminal jury must agree with and accept as fact what has been stipulated (it’s conclusive) because the
defendant has already agreed to it. This does not violate a defendant’s right to a trial by a jury of his peers because the
defendant has already agreed/consented to the stipulated fact. A stipulation represents a waiver by the defendant of his
right to demand a jury by his peers. Note that the government cannot get a summary judgment, not matter how heavy the
evidence of guilt is, because a defendant has a right to a jury by his peers.
Stipulations are the reason why judicial notice is becoming obsolete these days (which is why Duane is not spending
much time with this) (BUT JUDICIAL NOTICE WILL BE ON THE FINAL). Stipulations work better than judicial
notice in that (1) they take less court time (more efficient for the court) and (2) judicial notice is limited to the truly
exceptional and rare category of facts where some fact is not just probably true or almost definitely true but for facts that
are indisputable that no reasonable person would doubt (probably no judicial notice that tobacco causes cancer because
some scientist may disagree but judicial notice for Jefferson City is the capital of Missouri). But stipulations can be made
and frequently are to things that might not be true. The rule on judicial notice was more relevant back when pretrial
conferences and meetings were not encouraged. (he skipped some more slides here)

Presumptions
Rule 301 is the first of three FRE’s that state that sometimes a federal judge may follow state law. FRE 301 states that if
it is a diversity case in federal court, then the judge will follow state law, even though he is not bound to by the Erie
doctrine (federal courts apply federal procedure). If it is a different civil case (such as a federal question case), then the
judge will follow federal case law (the presumptions that govern federal question cases are governed by case law). In
Sandstrom v. Montana, the Supreme Court has obliterated any role for presumptions in criminal cases. The Supreme
Court stated in Francis v. Franklin that “a mandatory presumption may be either conclusive or rebuttable. A conclusive
presumption removes the presumed element from the case once the state has proved the predicate facts giving rise to the
presumption. A rebuttable presumption, on the other hand, does not remove the presumed element from the case, but
nevertheless requires the jury to find the presumed element, unless the defendant persuades the jury that such a finding is
unwarranted.” Note that “mandatory” presumption is technically redundant because all true presumptions are mandatory,
mandatory meaning that they are binding (yet they are not all conclusive).
An example of a rebuttable presumption is the presumption of legitimacy, in which children born to married parents are
presumed to be legitimate (the biological offspring of the mother’s married lawful husband). So if the plaintiff was
married to Joe when she gave birth to her son, and the defendant has no other evidence that anyone else is the father, then
the jury will be told that they must conclude that Joe is the father (this presumption comes from when DNA testing wasn’t
available).
An example of a conclusive presumption is that if a man has not been heard from in seven years, then there is a conclusive
presumption that he is dead (though he may be alive). Or children under seven years of age are conclusively presumed to
be incapable of contributory negligence.
Rule 301 states that “in all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules,
a (rebuttable) 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.” Presumption does not
shift the burden of persuasion, but it does shift the burden of production. The term burden of proof is comprised of the
two different ideas of the burden or persuasion and the burden of production. The burden of persuasion (also known as
the “risk of nonpersuasion”) is a rule of law that must be explained to the jury at the end of the trial and that does not shift
during the trial. This is how much evidence a party needs to win the case (in a criminal case it is “beyond a reasonable
doubt” and in a civil case it is usually by a “preponderance of the evidence” or sometimes by “clear and convincing
evidence”). In a civil case it is on the plaintiff and in a criminal case it is on the government. A burden of persuasion is a
way of telling a party upon whom it rests that they better come up with more and better evidence than their opponent
before the end of the trial, otherwise the court will tell the jury that they must find for the opponent. The jury will decide
whether that party has met his burden of persuasion.
The burden of production (also known as the “burden of going forward”) does not need to be explained to the jury. A
presumption is a rule of law that shifts the burden of production (this is what it is all about). The burden of production
says to the party upon whom it rests that they better come up with some evidence right now (or before they rest their
case), or else the court will not go any further on this issue and it will be taken from the jury.
Every presumption, whether it is rebuttable or conclusive, operates to identify a legal connection between the base fact
and the presumed fact. For example, if you can prove that your husband has not been heard from in seven years (the base
fact), then there is a conclusive presumption that he is dead (the presumed fact).
PRESUMPTION HYPO: Suppose there is a civil case in which a widow (plaintiff) and her son the lawful heir (co-
plaintiff) is suing an insurance company (defendant) because she has a life insurance policy on her husband that if he dies
of natural causes then she can collect five million dollars. She claims he is dead and there is some circumstantial evidence
that he is dead, but no body has been found. But the insurance company does not know that he is actually dead and
whether the son is the actual son (no DNA test cause father is dead). At the beginning of the trial both the burden of
persuasion and the burden of production rests on the plaintiff. Since plaintiff has the burden of production, she has to go
first and present some evidence that her husband is dead.
Scenario One: Now, if she doesn’t have any evidence, but she just hasn’t seen him in a week, then the judge is going to
through this out because no jury could reasonably find for her.
Scenario Two: If she states that nobody has heard from him in five years and he was last seen going over Niagara Falls in
a barrel, then this is good enough to give to the jury (in which she may win) but it doesn’t trigger the presumption because
he hasn’t been gone seven years. Then the judge will turn to the defendant to see what evidence he has, but since the
presumption has not been triggered the burden of production has not shifted (he has no burden of production) and he has a
choice to (1) present evidence or (2) offer no evidence and rest his case for closing argument in which he will try to
persuade the jury.
Scenario Three: If she testifies that he hasn’t been heard from in seven years and that she was lawfully married on the date
of conception and birth of the son. Though this is not good enough for summary judgment or a directed verdict, it is good
enough to trigger the two presumptions. Therefore the burden of persuasion is going to stay on the plaintiff but the
burden of production is going to shift to the defendant. If it is a rebuttable presumption and if the defendant presents a
witness who says she saw him last week, then the presumption is gone and everything is given to the jury to decide (jury
decides weight and credibility of evidence). But if the defendant has no evidence, then the plaintiff’s proof on the base
fact is uncontradicted, the court will take this question away from the jury and the jury will be ordered to find that the
father is dead.
If it is a conclusive presumption, then it is even harder. For example, there is a negligence case in which the mother
(plaintiff) is suing the defendant for negligently hitting her daughter with a car, but the defendant is claiming contributory
negligence on the daughter. There is a conclusive presumption that children under 7 cannot be contributorally negligent.
If the plaintiff testifies that the daughter was 6, then the judge is going to turn to the defendant to see if he has any
evidence to contradict the base fact that the kid was 6 (to say the kid was actually 8), and if he doesn’t then the court will
take this question away from the jury and order them to find there is no contributory negligence (even if the defendant has
proof that the kid was drunk and running around crazy, won’t let this be presented).
Remember: None of this applies to criminal court, facts are not taken away from the jury in criminal cases.

9/11/07
A rebuttable presumption is preferable over a conclusive presumption because there are two ways to rebut a rebuttable
presumption. Either (1) prove that the base fact is not true (rebut the base fact) (that plaintiff was married to Joe at time of
birth) or to (2) prove that the presumed fact is not true (rebut the presumed fact) (Joe was the father). If the attorney
cannot rebut the base fact or presumed fact of a rebuttable presumption, then the question will be taken away from the
jury in a civil case and he will not be allowed to argue the point on closing argument, and the jury will be told that the
presumption is basically fact (the child is legitamite).
But the only way to rebut a conclusive presumption is to prove the alleged base fact is not true (rebut the base fact)
(plaintiff’s husband has not been seen in seven years), or else the court court will go straight to the presumed fact.

Presumptions v. (Permissive) Inferences: They have a lot in common; they both come from well-known and well-settled
statistical generalizations. But there is a fundamental difference in that presumptions are a rule of law and must be
accepted (all presumptions are mandatory) and the jury may apply a permissible inference (all inferences are permissive
and the FRE does not regulate these). Note that the use of “may” indicates an inference, such as in a criminal statute
where presumptions are not allowed against the accused. There is even debate as to whether to tell juries anymore about
inferences; they still do largely because that is how it has been done so long).

Witness Competency: This area is different than most other FRE’s because the result is that a witness is not allowed to
answer any questions, where usually a particular line of the evidence (such as a particular question) is taken out. They
completely take out the witness and label him as incompetent and unfit to serve (a radical ruling).

Rule 601: This rule states that every person is competent to be a witness, accept as otherwise provided in these rules.
Most FRE’s have stayed the same as common law, but this is a radical change from the common, which would not allow
many different types of witnesses (spouses, anyone with an interest, infants, convicted felons, etc.) because of their
questionable trustworthiness (there was concern about the trustworthiness of their testimony).

Common Law Category (3 large incompetent groups in What Remains Today?

the Common Law)
Infants, the insane, and felons (“inmates”) Impeachment.
Interested Witnesses Impeachment & Dead Man’s Acts.
Atheists Nothing at all!

There are three groups of witness competence rules (what is left over from the common law).
Questionable Trustworthiness: One group are witnesses who are incompetent because of their questionable
trustworthiness (Rule 601-603). They are divided up between witnesses who gave the court doubt about their (1) mental
capacity (insane and young children) and (2) moral capacity (felons, atheists, and interested witnesses). At common law
these witnesses (infants, the insane, and felons) were incompetent, but today they are subject to impeachment and cross-
examination (the facts are thoroughly explored on cross-examination). While these people aren’t as trustworthy as the
ideal witness, to kick them all out is to deny a lot of truth from the courtroom. Three big differences from today verses
common law: At common law, the jury would have to take true all the testimony given by the ideal witnesses who were
allowed to testify and try to reconcile it all together, but today we don’t trust the witnesses so much. The other is that
Rule 601 puts a lot more faith in the jury to determine witnesses and testimony should be believed and trusted, whereas at
common law they did not. The third thing is that today we are infinitely less worried about people committing perjury,
whereas before the court did not want witnesses to be tempted into committing perjury.
Interested Witnesses: Generally we will not preclude a witness from testifying because it is obvious that he has a special
interest in the case. But on cross-examination the attorney can bring out all the facts to determine the witnesses interest
and if he is truthful (temptation to lie). But there are two remnants that interested witnesses are incompetent to be
witnesses: One is the spousal rules of privilege (cannot testify against spouse). Interested witnesses can be impeached
and also the old rule that they are incompetent remains in the Dead Man’s Acts (when there is an action brought against
the estate of a dead man, interested parties cannot testify because there is a great temptation to lie-witnesses word against
a dead man’s word). Rule 601 states that in diversity cases, the competency of witnesses is determined in accordance
with state law (an example of a state law that may have to be enforced are Dead Man’s Acts). This means that if an
attorney is trying a civil case in federal court and it is a diversity case, and if an evidence objection comes up regarding a
question about the competency of a witness, then the court will follow state law.
Atheists: Nothing can now be done to atheist witnesses. Rule 610 states that a witness cannot impeach or rehabilitate a
witness with his beliefs. The facts about a witnesses beliefs are inadmissible and cannot be exposed or revealed to the
jury on cross-examination. This differs greatly from the past. But note that evidence of a witnesses religious belief is not
inherently inadmissible, but is inadmissible for purposes of showing the witnesses credibility is impaired or enhanced
(sometimes it is relevant to some other issue in the case).

But Rule 601 does not leave a judge powerless to exclude even the most unreliable witnesses. The rule states that every
witness is competent except as provided by these rules (referring primarily to 602, 603, 605, 606). Remember that rules
602 & 603 do not allow the judge to exclude witnesses because HE doesn’t believe them, a rational jury cannot be able to
believe the witness.

Rule 602 states that a witness may not testify to a matter unless evidence is introduced sufficient to support a finding that
the witness has personal knowledge of the matter (this is about mental faculties). This does not disqualify a witness cause
he is crazy or young or has too low of an I.Q., but allows a judge to exclude a witness whose testimony is so far-fetched
that it is incredible as a matter of law and could not be believed by a rational jury. This excludes very few witnesses.

Rule 603 (moral faculties) states that every witness shall testify truthfully under an oath or affirmation. This makes no
belief requirement on the witness and there is no specific ritual or wording that must be followed. As long as the witness
is willing to affirm under penalty of perjury that what he says is truthful, then that is good enough. A witness will not be
allowed to testify if he cannot at least affirm the truth of what he is saying, and this is because the crime of perjury is
committed when you knowingly give false information that is material under oath or affirmation (note that it doesn’t
matter if he has a huge perjury record). This excludes very few witnesses.

Role in the Trial: The second group, witnesses made incompetent because of their role in the trial, are governed by Rule
605 & 606(a). There will be some questions on this on the exam). These state that judges and juries cannot be witnesses
in the same trial. There does not need to be a rule against the attorney taking the stand because that is covered by the
ethical rules (conflict of interests). Remember that these rules do not apply to summarily contempt cases, when a judge
finds someone in contempt and acts as the judge, witness, and jury.

Top Secret Reasons: The third group is witnesses who are made incompetent for top secret reasons.
The difference between Rule 606(a) and 606(b) is that (a) is during the trial and (b) is after the trial. Rule 606(b) deals
with whether a juror should be allowed to testify on a post-trial motion, inquiring into whether there has been a
miscarriage of justice.
Rule 606(b) states in the advisory committee notes that the reasons are (1) freedom of deliberation, (2) stability and
finality of verdicts, and (3) protection of jurors against annoyance and embarrassment.
Supposed Reasons for Rule 606(b) (in Duane’s format):
• Privacy: This is the theory to ensure the secrecy of deliberations, and thereby promote free and frank
communication among jurors. But if a juror tells the other jurors something that he wants to be kept secret (or
anything) during deliberation, the jurors can tell the judge if there has not yet been a verdict. This rule does not
impose any limitations on what the jurors can reveal to the judge, and the judge can yank out a juror and replace
him with an alternate. This rule does not come into play until after a verdict has been returned. Rule 606(b) does
not seal a juror’s mouth from telling the judge about something another juror said or did even after the verdict has
been delivered because the jury has not yet been discharged. Even after the jury has been discharged, they can go
and tell EVERYONE (press release, write a book, etc.) about every detail about what happened in the trial and
during deliberations because they are not on the witness stand about it. Rule 606(b) is not a tort law, it just keeps
a juror from going on the witness stand about this stuff. The bottomline is that 606(b) is not about privacy. If it
was, we would (1) tell the jury about the rule (this rule will not change the jury’s behavior unless we tell them
about it), (2) make what the jury knows secret and make them take an oath to keep it secret (like criminal
procedure grand jury), and (3) require the lawyers to file an affidavit taken from a juror to be used for a motion
for mistrial under 606(b) under seal like other privileged stuff instead out in the open with all the other court
documents were everyone can see it (nor would courts be expected to quote from these affidavits—O’Connor).
 • To protect former jurors from harassment after the case is over: This is supposed to minimize the incentive for
lawyers to waste their time bothering the jurors, but 606(b) does not forbid the attorney from talking to the jurors.
This rule does not even reduce an attorney’s incentive to talk to the jurors because 606(b) lists three different
kinds of information that will be admissible (exceptions), and the lawyer will not know this stuff unless he asks!
This rule doesn’t even discourage the press from calling on the jurors because it is only a rule of evidence (not tort
law), so the press can hound them all they want. If we were serious about this, we would (1) forbid the lawyers
from harassing the jurors (which is already an ethical rule) and (2) give jurors a privilege to refuse to answer these
questions which they could waive (rather than making them incompetent).
• Finality: This is what Rule 606(b) is really all about. Once the jurors have been discharged, this keeps them from
coming back and being able to undue the verdict they gave (impeach their own verdict), unless the information
falls into one of the three exceptions. This rule is about minimizing retrials and denying appeals.

9/13/07
“So help me God” is an abbreviated form of asking God not to help me on judgment day if I do not tell the truth under this
oath.
Tanner Case: O’Connor stated that if the public were able to discover the things that the jurors do to easily, the public
may want to get rid of the jury trial (then Duane talked about some ridiculous things that the jury did).
You can’t blame the makers of this rule, because who knows what would happen if any juror could come forward to say
all kinds of things to change the sentence after it has been given.

There is two limits on Rule 606(b). This rule does not say that you can never get a new trial based on the misconduct of
the jurors.
• The first reason is that this rule does not come into play until (does not impose any limitation on the judge,
attorneys, jurors, bailiff, waiter at lunch) until after the jury has been dismissed. Therefore, if something is going
wrong, then the court can do something about it. The judge can even conduct a hearing (an inquiry) in the middle
of the trial to determine the misconduct and throw out the bad juror. This may seem to violate 606(a) because the
jurors may be asked to testify as to their conduct in the same trial, but it doesn’t because the jurors are not asked
in front of the other jurors (otherwise it may be a violation).
• The second reason is that if there are other witnesses to this juror misconduct that are not jurors (waiter, bailiff,
etc.), they can testify even if the trial is all over. This rule only seals the mouths of jurors.

Duane thinks we ought to tell jurors about 606(b), that they have to say something before the verdict is in or they are
dismissed, and they cannot change their verdict.

606(b) allows an attorney to use an affidavit from a juror even after he has been dismissed if the information falls into one
of the three exceptions, such as if there was any improper outside influence (threats, bribes, tampering with the jury—
there is a list in the book) or improper internal things (listed in the book, like a newspaper with prejudicial info in it that
was not allowed in the case). But other things will not be allowed, such as how the jurors were sleeping, got into a fight,
etc. The Tanner case was in the middle, because the jurors were doing drugs outside the courthouse, but ruled that it was
not like one of the exceptions.

Under the first sentence of Rule 606(b), jurors are never allowed to testify on what effect the irregularity had. They can
testify as to what the irregularity was (the bailiff told about the inadmissible confession), but they can’t testify as to what
effect that had (whether it affected their decision, even though they are the best people to ask this). The judge applies an
objective standard of review in determining whether a retrial should be awarded (not how this affected this jury but an
ordinary jury).

North Carolina v. Robert Kelly: This case was thrown out because there were parents of the abused kids that were
providing expert testimony.
Opinion testimony of lay witnesses is admissible as long as they meet the three requirements in the rule (it is limited, not
inadmissible). The opinions or inferences must be (a) rationally based on the perception of the witness, and (b) helpful to
a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific,
technical or other specialized knowledge within the scope of Rule 702. The parents gave testimony of the actions of the
kids (waking up at night) which is admissible (these are facts which is totally admissible), about the emotions of the kids
(scared, nervous) which is admissible inferences/opinion about mental states because they are not based on scientific,
technical, or other specialized knowledge (you don’t have to be an expert to know this and are therefore competent to
diagnose this, like knowing if someone is drunk, tired, angry, scared, etc.). A lay witness is able to testify whether he
thought the red stuff on the mirror was blood because it is not based on specialized knowledge. The parents were also
asked to testify about their kids behaviors and how that is typical of children being abused, which is inadmissible because
this requires specialized knowledge. On appeal, the prosecutors could argue that this was not reversible error because this
is harmless error because of the other overwhelming evidence of guilt and because a jury usually doesn’t give much
weight to lay witness expert testimony. But the defense could argue that this is reversible error because the testimony
referenced other experts, which does give weight to the jury. Note: The parent’s testifying that “I believe my child, he
would not lie” is not proper because it is not helpful opinion testimony, unless that parent has some special first-hand
knowledge that the jury does not know. These kind of character witnesses are not generally allowed in civil or criminal
trial, but a narrow exception is made for criminal defendants who call character witnesses for his own defense.

The second requirement of Rule 701 requires that the opinion of the witness be helpful to the jury somehow. To a large
extent this second requirement overlaps with the first requirement (rationally based on the perception of the witness),
because if (a) is violated then (b) is most likely violated also (I wasn’t there but I think I know who killed Kennedy). The
second requirement deals with situations where the testimony of the witness will not be helpful to the jury even though it
is rationally based on things that they saw. Is there some way that we can possibly put the jury in as good a position as the
witness is to reach the same conclusion? Usually words alone cannot do this. For example, if Daune’s witness testified
that she saw the silloute of the man at night on Regent and she made an inference that she is fairly certain that it was Dean
Brauch, this is a permissible basis for opinion testimony because it is rationally based on her perception (assuming that
she is familiar with the Dean’s features) and it is helpful to the jury (assuming that it is relevant). It is ridiculous to not
allow the witness to say who he thinks it was because there is certain kinds of factual data that cannot be translated with
100% accuracy into words, that the witness cannot put the jury in the same position that he was in to tell if that was the
drunk dean with lipstick on his collar. But if the witness did not see the Dean, but saw his car parked in his parking spot
and the light was on then turned off when it was gone, then it is not helpful for the witness to tell the jury that the person
was the Dean, even though it would be based on his own rational perception, because he has already put the jury in as
good a position as he ever was or ever will be to tell if the Dean was there that night. Nor is it helpful to take a letter and
as a witness whether it is sexual harassment, even though it would be based on his own rational perception, because the
same letter (or video or whatever) can be given straight to the jurors.
Note that it is probably not proper for a lay witness to distinguish between whether the white stuff in the baggy was
cocaine, flour, or sugar. But if he tasted it or smelled the marijuana, then he can properly testify as to what it is because
you do not have to be an expert to tell what it is, as long as you have some familiarity with it.

9/18/07
Rule 701: the basic idea is that an opinion by a lay witness is admissible if it is helpful to the jury, if the witness is in a
better position to answer a question than the jury.
These rule ends up getting argued in many different ways:
Many lawyers think that questions that begin with “Is it possible that” or “Can you give us a guess” are inherently
objectionable, but it just depends on the context.
For example, in what country was Woodrow Wilson’s mother-in-law born? Could you give me a guess? This guess is
inappropriate because it is a shot in the dark for the witness. Same with in a bank robbery prosecution, asking the teller,
after he testified that he couldn’t see what was in his pockets, whether it was possible the defendant was carrying a wallet
stuffed with counterfeit bills.
How much did your son weigh before he went to college? Could you give me a guess? This guess is permissible because
it is an estimate (asking for an estimate), rather than a shot in the dark. Same thing with “was your son in Onterio on
Tuesday?” Or is it possible if the bang held a shotgun when the bag is not in the courtroom
Test for Admissibility: What determines addmissiblity is whether the witness is being asked something that she is likely to
have an opinion about and is his opinion on the subject, for any reason, likely to be better than the jury’s guess on the
same question. If so, then it will be allowed.

Rule 704(a) is different because it tells you what is not objectionable, this is because this rule is a significant departure
from the common law (this relaxed the common law rule), where witnesses could not answer questions on the ultimate
issue of the case, but there were many problems with this. The advisory committee notes stated that the common law
approach was not unworkable because it is hard to distinguish between the ultimate and penultimate issues, especially
when the ultimate issue is the only issue in the case (whether it was a forgery or not is the only issue in the case). CAN
states that 701 and 702 stand to exclude the kinds of questions that the common law rule was chiefly worried about,
because the closer one gets to the ultimate issue, the closer one will get into legal terminology (inadequately explored
legal criteria) from which the helpfulness of the question and answer are going down fast (“Do you believe he was guilty
of a tort?”). Asking the witness questions in terms of legal criteria is allowing the witness to take over the responsibilities
of the judge (gives the jury the instructions on the law) and the jury (listen to the facts and combine them with the judge’s
instructions). It is not helpful, and may be prejudicial, if the witness does this. Another problem is that the witness may
not really know what the legal terms mean, such as there are many different legal definitions of rape (same with asking
about an anti-trust violation).

Rule 704(b): Duane says this is the most silly rule in the entire book. Congress made this rule to eliminate the confusing
spectacle of competing expert witnesses testifying to directly contradictory conclusions as to the ultimate legal issue to be
found by the trier of fact (such as in the Lorana Bobbet case when the jury could not tell which experts to believe). But
this rule is both under-broad and under-inclusive because Congress wrote this and were only addressing the case of the
attempted assassination of Regan. This is under broad because it is only limited to criminal cases instead of also including
civil cases and it is limited to expert testimony when it could also include lay witness testimony and it is only limited to
questions about the mental state when there is plenty of confusing expert testimony in all kinds of areas. This is under
inclusive because even where this rule does apply it does not do anything of any real value because it does not reduce the
“confusing spectacle” because the experts can still give all there opinion (whether the defendant has mental illness,
conditions of illness, if he is faking symptoms, diagnoses and grounds for diagnoses, etc.) except for the one question of
whether the defendant “had the requisite mental state that would require and permit him to commit the crime charged.”
Rule 706 does help out with the problem of a jury being confused by the experts by allowing the court to pick an
independent expert (but unfortunately this hardly ever happens) who is not being paid by one of the parties (parties pick
experts that testify in their interests).

Rule 26(a)(3) does not require disclosure of evidence in regard to evidence to be used solely for impeachment purposes
because this helps to keep the witnesses truthful and allow liars to be revealed (by keeping them in the dark about what
the opposing attorney may have on them).
Rule 26(a)(3) requires that an attorney tell the opposing side who his witnesses are and which ones are experts (in both
civil and criminal cases).

Difference between Experts and Lay Witnesses: Expert witnesses can (1) give opinion or inferences on specialized and
technical areas in their expertise and can (2) make inferences not based on their own first-hand knowledge. Rule 701 &
702 say that every opinion witness must know more than the jury does about either the (1) facts and (2) the facts
combined with their learning and insight. Otherwise, the witness is not helpful. Remember that an expert does not have
to be some kind of graduate to be an expert (they could get a crack-head to talk about crack).

Rule 703 states that experts may testify to opinions based on facts that were:
• Perceived by them
• Made known to them at the hearing (the expert is at the trial and hears all the testimony and can then give his
opinion, but this is generally way to expensive, so the attorney can also use a hypothetical question, but the
problem with this is that there is almost always going to be an objection from opposing counsel for being
misleading (those hypothetical facts aren’t the facts or that hasn’t been proven))
• Made known to them before the hearing (this is the best way, here the expert reviews all the materials and gives
his opinion)
Whether the underlying facts are required to be admissible depends on whether the facts or data are of a type reasonably
relied upon by experts in the particular field in forming opinions or inferences upon the subject. If so, then the expert may
base his opinion or inference on inadmissible information. For example, generally a doctor’s opinion is based on hearsay
which not trustworthy in courts, but if the doctor uses that daily in his expertise, then he will be able to use that for his
opinion (that’s the rational). An expert can base his opinion on inadmissible evidence, but he cannot ordinarily disclose
these inadmissible facts (otherwise the expert would be circumventing the other rules).

Rule 705 states that the expert may testify with the opinion without testifying to the underlying facts (unless the court
requires), this is because the expert was already required to disclose all the underlying facts before the trial (this is a
reflection of the civil procedure rule).

9/19/07
Review session: Note that Rule 703 allows the opponent on the cross-examination of a witness to bring out the details of
the inadmissible data relied on by the expert. But the proponent cannot do this on direct unless the testimony itself has a
probative value that substantially outweighs its prejudicial effect.

9/20/07
Under Rule 705, the expert witness does NOT have to testify to the underlying facts before disclosing his opinion. But
with a lay witness must testify to the underlying facts (need a foundation) before disclosing their opinion. For example,
before the witness can testify on whether her husband was drunk one night, she must testify in some way that she was able
to perceive this rationally through her own senses (I was with him). Ordinarily the attorney will want the expert to give at
least some of the underlying facts before presenting the opinion, but sometimes this is not done because the underlying
facts are just too complex (DNA stuff). An attorney may also ask the expert for his conclusion first and then explain for
dramatic and strategic effect, because the jurors may get lost in the explanation.
BUT an expert must disclose his underlying facts before he gives his opinion (FRCP 26(a)(2) requires this). This is
required of experts and not of lay witnesses because experts pose special dangers/challenges to the justice system/cross-
examiner (why do experts deserve closer scrutiny) because (1) experts pose a greater risk to jury confusion (the jury has a
higher regard and gives more weight to an experts testimony and jurors usually don’t have the level expertise) (plus cross-
examiners need to do a lot of homework to be able to cross-examine him correctly), (2) it’s easy enough to predict with a
high level of accuracy and confidence what the data will be upon which a lay witness will form his opinions but it’s
impossible to determine what an expert is forming his opinion on, (3) experts are being paid and may be lying for money,
(4) experts are generally less inhibited by fear of perjury prosecutions because it is their opinion which can be mistaken
(lay witness do not give opinions, but facts that can be proved false), and (5) experts are easier to replace (there are only a
finite number of lay witnesses, and for the judge to exclude one because he is dubious would be a direct attack on the
jury’s duty, whereas there are practically an unlimited number of experts out there and it will not be to damaging to not
allow one).

When should you designate a witness as an expert?

The biggest advantages of an expert (things they can do that lay witnesses cannot):
• She can testify to matters outside the ken of lay witnesses
• She can testify to opinions that are not based on personal knowledge
• She can testify to opinions based on inadmissible evidence.
• She can share an opinion without first testifying to her reasoning or data.
The disadvantages of having an expert is that:
• You must give your opponent extensive pretrial disclosure about the witness—including “work product.”
• The court has much greater leeway to exclude your witness on the grounds that the witness or her opinion is not
“reasonably reliable.” Know Rule 702 and the Daubert case at 702.4. This is not the case with lay witnesses.
Daubert most important holding is that a judge is allowed to decide to not let an expert testify because the judge
feels he is not reasonably qualified. This is a radical departure from the judge’s little power over excluding lay
witnesses. The judge is given this power for the five reasons above. This has caused an enormous change in the
amount of pretrial motion and hearings as to the reliability and admissibility of an expert (that involves a lot of
time and money), all of which the jury does not even hear. Daubert requires the judge to find that the expert is
reasonably reliable based on his knowledge, skill, and experience, not whether he is (probably) right or wrong
(which is why under Daubert there are always conflicting expert opinions.

Rule 611
Objections under Rule 611 come up more often in trial than any other objection, yet they are the least likely to cause a
reversal on appeal.
611 (a, b, and c) is about all the rules that there are as to objections to the form of the question and how the question
should be phrased. 611 talks about the mode and order of interrogating witnesses. The court shall exercise reasonable
control over the mode and order of interrogating witnesses and presenting evidence. Remember that a party cannot object
because something is a lie, that party must wait his turn to disprove this (it is for the jury decide whether it was a lie).
Generally the mode and order is not changed, but if an attorney has a good reason, the judge has the discretion to change
the mode and order in whatever way (change the order of the trial, maybe for scheduling reasons with an out of town
expert witness).
Generally the usual rule to the order of the trial is “Shut up and sit down and wait your turn.” This is so the trial does not
turn into the Springer Show. But there are three exeptions:
 • Rule 104(b)--“Connecting Up”: Rule 104(b) states that 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. “Upon” means after and “subject to” means
before (this may be mixed up). “Connect this up” (from the being “subject to”) means that the attorney is asking
the judge to admit evidence now and then he is promising to give the underlying facts or foundation later that
show that the evidence is admissible or relevant. But the problem with this is that if he cannot do this later on,
then the evidence has to be stricken from the jury and sometimes that is hard to get out of the jury’s mind. Yet it
is allowed because there may be witnesses there that day ready to testify on the evidence. Remember that the
objecting attorney has to make sure that the proponent actually connects this up later on, because if the proponent
forgets to connect this up and the objecting attorney forgets to hold him to it, the evidence is in and the jury can
consider it. Objecting attorney needs to make a motion to strike after proponent rests his case.
• To “voir dire the witness” means that the attorney wants to interrupt the direct examination and immediately do a
portion of his cross examination because it cannot wait. Questions that just go to the weight or credibility of the
evidence (“I can show that the witness is a liar”) are not a good enough reason to interrupt direct examination and
will surely be denied because questions that only implicate the weight or credibility of the evidence do not go to
an evidence’s admissibility. Even though the attorney may have questions that could impeach this lying witness,
liars are free to testify and dishonesty does not make evidence inadmissible (unless it’s an expert). But if the
attorney has questions that go directly to the evidences admissibility (such as questions that can show that the
expert is not really an expert), then the judge may grant the voir dire and may preclude the “expert” from
testifying anymore if that’s proven (it would be inadmissible rather than just unreliable). You don’t have to wait
until cross to do this kind of thing, but don’t attempt to sneak in and do your whole cross here.
• Rule 106: This rule has nothing to do with admissibility and everything to do with timing and allows a written or
recorded statement (note that this does not apply to oral conversations) to be shown to put it in context. This does
not change what evidence will be admitted into trial, only when the jury will hear the evidence. Rule 106, if an
attorney can persuade the judge that his opponent is taking something out of context, he can require other parts of
the evidence to be shown to the jury so they can get the full picture before cross examination.

Motion to Strike: When a judge grants a motion to strike, this does not mean that the evidence is removed from the
record. It means that the testimony or exhibit will no longer be in evidence, which means (1) the jury will be told to
disregard it, (2) the attorney cannot mention it in closing, and (3) the jury may not see it or ask to have it read back to
them during deliberations.

STUDENT QUESTIONS
Professor Duane, I was reviewing some of my notes, and I'm a little confused
about the example you gave about Rule 301. Maybe I wrote it down wrong:

Rebuttable: Base Fact

If P gave birth to X & was married to Joe and opponent has no evidence that
someone else was the father, the presumed fact is that Joe must be the
father.

Conclusive: Base fact

If P's husband hasn't been heard from/ seen in seven years, it must be
concluded that he is dead.

My question is with the conclusive example, can't the opponent of the

evidence rebut the base fact by bringing forth evidence, assuming he has
some, to show that the husband has been heard from?

A. Absolutely yes. Any presumption (conclusive or rebuttable) can always

be defeated if the opposing party (that is, the party who does not rely on
the presumption) can introduce some evidence tending to prove that the
alleged "base fact" simply is not true (e.g., by calling a witness who will
testify that she talked to the "missing husband" two years ago). The
difference is that a rebuttable presumption can also be defeated (that is,
"rebutted") in another way, by offering some evidence that the "presumed
fact" is not true.

**************

Would a better example of the conclusive presumption be that a child can't

be guilty of contributory negligence under seven, and the child is three, so
this can't be rebutted?

A. Perhaps. That presumption could be defeated by a party only if he could

show that the child was not really under seven years of age (the alleged
base fact is false). But if he could not show that, he could not get
around the presumption by coming up with evidence that this unusually
precocious six-year old ought to be regarded as the truly extraordinary sort
of tyke who could be -- and in his case, was -- capable of contributory
negligence. That is what we mean when we say that this presumption is
conclusive or irrebuttable.

9/25/07
Eyewitness testimony is part of the reason people are wrongly convicted. Eyewitness testimony is incredibly unreliable.
In Johnson v. Wash. Metro Area Transit, witnesses testified that she was 4-45 feet from the train she jumped in front of,
5-30 seconds in time lapse (from hit in mid-air to she laid down on the tracks). This info is to show us the power of
suggestion, especially how police can manipulate witnesses picking suspects (such as the Poole/Cotton double rape case).

There are four reasons why a witness is testifying to something: (1) he is narrating what really happened, (2) words were
put into his mouth (possibly by a leading question), (3) he read this stuff somewhere, or (4) he heard another witness in
the case say this. Rule 611, 612, and 615 are intended to keep the last three to a minimum.
Note that in the real world, 611, 612, and 615 are pathetic jokes, these just push the problem underground (back to the
lawyer’s office).
Rule 611(a) allows the court to exercise control over the mode and order of interrogating witnesses. The mode of trial is
very broad and it just means the method of presenting evidence. The mode includes at its heart the form of the question
(there is a laundry list of objections to question form) and the arrangement of the room (put a screen between the victim
and defendant).
Three objections to form that that are not always sustained even if they are true:
• Calls For a Narrative: The question is too non-leading and open-ended and invites the witness to talk for a long
time (“Tell us all the events of the day”). If a judge sustains this objection, then he wants you to make your
questions more specific. Judges generally are looking for questions that are between a narrative and too leading.
The primary concern/danger of court with narrative questions is that if the witness is allowed to tell a narrative,
then the witness is more likely to say inadmissible stuff (it is impossible to predict or control whether he is going
to say inadmissible stuff). Short and specific questions are preferred because it gives the opposing attorney a
chance to object and the attorney can steer the witness away from inadmissible or unwanted stuff. But sometimes
judges prefer a narrative question because it may be faster and it may be a better way to get at the truth (rather
than having them steered by leading questions). The danger of a narrative question is minimal (here they are most
often used) with (1) expert witnesses (especially professional ones such as police officers) because they have
experience and knowledge about what they should or should not answer and (2) when there is no jury because the
judge is trusted to not consider inadmissible stuff that the witness may say. Note that I don’t always want to
object to these things because the other side could be shooting himself in the foot.
• Leading the Witness: Any question that (1) begins with the words “in fact”, (2) says “did you not”, or (3) ends
with “isn’t that correct” are most likely leading. The problem with leading questions is that they put words in the
mouths of witnesses. The most important reason why leading questions are generally not allowed is because of
the horrible danger of unethical attorneys and their witnesses to engage in conspiratorial collaboration (just say
“yes” to everything). This would make a mockery of the justice system. But this isn’t the only danger—even
well intentioned witnesses who are trying to tell the truth can be misled with leading questions. Objections to
leading questions are not always sustained (they are allowed when):
o Hostile or Adverse Party: If the witness is hostile (uncooperative) or an adverse party (if an attorney is
questioning someone who is either the opposing party or someone closely identified with the opposing
 party), then the attorney is always (cross, direct, redirect) allowed to lead because the adversary is quite
unlikely to agree with anything the attorney says. Even though the leading questions may change the
witnesses answers as compared to how he would answer if they were not leading, the leading questions
are alright because the inherent adversity context (he doesn’t want to admit if something is true) ensures
that the answer is true (FRCP 36). The opposing party will not want to agree to anything the attorney is
asking. Hostile means “uncooperative” (Kato Kalen).
o Preliminary Undisputed Matters: On “preliminary undisputed matters”, the attorney is always allowed
to lead (doesn’t matter who is on the stand or whether it is cross or direct) because no harm is done (the
change in the answer is always harmless). These are things that both party’s attorneys previously agreed
to, such as the date when something happened. This is alright even if it may change the actual witnesses
answer. Actually, attorney’s should lead here to not embarrass the witness.
o As Necessary To Develop the Testimony of the Witness: Leading questions are also always permissible
“as necessary to develop the testimony of the witness” because it is better than nothing (the attorney is
confessing to the judge here that he is going to change the witnesses testimony (what is feared in court)
with leading because otherwise he is never going to get what he needs from the witness). The common
ground to when this applies that the witness is suffering from some kind of cognitive or emotional
difficulty that makes it difficult for them to testify. Examples include child witnesses, a witness who
cannot recollect, the witness is suffering from a traumatic experience (sexual offense which is hard to talk
about), elderly suffering from problems, language is not clear or understandable. But the attorney cannot
lead as much as he wants (as with the other two exceptions), he can only lead as much as necessary to
develop the testimony of the witness, generally starting with little leading and slowly getting more and
more leading without actually saying the disputed issue that the attorney is trying to get the witness to
say.
o Cross Examination: The witness can usually, but not always, be allowed to lead the witness on cross-
examination because on cross the witness is usually hostile or adverse (this is comes from the first
exception). For example, an attorney will not be able to lead a witness on cross if it is his own client,
UNLESS it meets one of the other exceptions (preliminarily undisputed or as necessary).
• Beyond the Scope (interrogation goes beyond the scope): Usually an attorney cannot question a witness on things
during cross examination that were not brought up on direct examination, unless the judge allows it, and then the
attorney may proceed as if he were on direct. This means that the attorney cannot lead just because it is cross, but
he can only lead if it meets one of the other exceptions above.

9/27/07
Rule 611 ought to say “leading is ordinarily permissible on cross examination of a nonparty witness (because note 1)
Leading is not allowed on direct examination of friendly witnesses on disputed matters (which is most of the trial). Note
that these rules are mostly for an attorney’s own good because if he is violating this rule he is likely to shoot himself in the
foot.
A question that is leading makes it obvious…something about an offer of proof.
Rule 611(b)
Issues in the Case Direct Examination Cross Examination
Liability Yes Yes
Damages No Maybe
Credibility of the Witness No Yes (Impeachment)

Two things that are always within the scope of cross examination are what was raised on direct and the credibility of the
witness. There are two approaches, one is the wide open approach. Rule 611(b) is all about timing.
One of the only exceptions is from Rule 104(d)
Rule 611(c) is the actual rule that allows leading questions to be used to help a witness recollect his memory.
Using a written document is not the only way to refresh the witnesses recollection, it can be done by a leading question.
A document that is used does not need to be made by the witness.

Rule 612 is really a discoverability rule.

The Jencks Act
FRE 612 Jencks Rule
What trials are covered? All trials. Only criminal.
What witnesses? All witnesses. All but the accused.
What documents? Only what the witness used. Only what the witness said.
What is the reason? Test for effect on his memory. Look for changes in his story.

10/2/07
612 and Jencks:
The Jencks ruling is not binding on State courts, though some States have adopted this.
The Jencks doctrine does not touch the attorney-client privilege, which is why this doesn’t apply to defendants, who are
clients of the attorney, but witnesses are not clients of the attorney.
Work Product is discoverable under Jencks in criminal trials but not in civil trials (note).
Prosecutors will generally give all their Jencks material before trial, instead of holding on to it till the last minute of after
the witness has testified, because otherwise the opponent would be entitled to recesses during the trial to read the material.
Then he gave reasons (criminal trials have dangerous people) why the attorney would hold onto this information.

Rule 614 & 615 will be on the exam a little.

Rule 615: Witnesses are not allowed to hear other witnesses because it will change there testimony in some way (but this
is different criminal v. civil)

Evidence is relevant if the evidence (1) makes more or less probable (question of logic) (example is that a full moon does
not prove people act crazy) (2) some fact that is material; that is, it is of consequence to the determination of the action
(question of law) (minor difference in affidavits).
Irrelevant evidence is never admissible and relevant evidence is admissible any time it is not encluded by some rule of
evidence.
The bar for relevant evidence is very low and rule 401 hardly excludes evidence (ice cream in O.J. case).
Rule 403 is the almost universal fallback objection and is sustained pretty frequently, partly because of how vague and
broad it is worded.
Rule 403 Balance
Probative Value does not mean truthfulness, that is for the jury to decide. There are many degrees of probative value.
Probative value means (1) logical force (“relevance”), (2) centrality to the case, and (3) marginal utility (are there other
ways to prove the same thing?). The probative value is weighed against the grounds for exclusion, which are (1) waste of
time, (2) confusion of jury, and (3) unfair prejudice (there is nothing wrong with evidence being prejudicial—that just
means that the probative value of the evidence is high, but unfair prejudice is bad because the jury may get to a
permissible conclusion through an impermissible route (going from step 1 with father slapping daughter straight to step 4
that he is guilty of the assault at the store) (same with not showing the plaintiff bend down and rob the store in a slip and
fall case).

Rule 411 is about liability insurance. If the $5 million dollar insurance policy is admitted, then the jury is likely to jump
to conclude that he should be guilty because he is covered and is able to pay the money (or vice versa if the guy is not
insured). Note that this does not apply to insurance that is not liability insurance (such as life insurance when a defendant
profits from his wife’s death). The second sentence in this rule gives other reasons that proof of insurance would be
admitted, such as proof of bias of a witness for impeachment (witness works for the insurance company that could be on
the hook in the case). Also Rule 403 here can be used to cut parts of this evidence out.

There are two reasons behind Rules 407-410, which are (1) the Rule 403 Argument (the probative value is low and the
danger of confusion or unfair prejudice is high and (2) the Policy Argument (they provide an incentive for people to make
this a better world).

10/4/07
Even though judges would keep ruling the same way without Rule 403 because of the first argument (probative value low
and danger high), this is not redundant in the FRE because of the policy argument that it allows people to correct
problems without having it used against them.

Rule 407 is important because otherwise the jury would be likely to think the defense attorney is lying when he says that
they didn’t think it was reasonable to take the safety precaution before the accident (latch in the trunk).
But this evidence may be allowed in for other purposes (ownership, control, etc.), but this does not make this rule a dead-
letter because the other side can stipulate to the fact that they had ownership or control so that it is not necessary to bring
in this evidence (it will be an undisputed fact and excluded under 403-I think). But even if they will not stipulate this
point, it probably will still not be allowed because generally there is better evidence. Feasibility of precautionary
measures is different than necessity of precautionary measures (whether the lever can be installed).

Note that if an attorney asks an obviously inadmissible question, such as a leading question about there now being a safety
latch in the car, this is against Rule 103(c), and the attorney will have lots of problems, including a possible mistrial.

All a defendant has to argue was that his product was reasonably safe and not perfectly safe.

Impeachment is only for narrow circumstances were the facts directly contradict.

Rule 409: Evidence that someone offered to pay medical bills is not allowed by Rule 409 because this type of behavior,
especially when the defendant was moved by sympathy (not fault) to pay for the injuries.

There are TONS of innocent defendants who settle out of court in large monetary amounts to avoid trial. This rules keeps
these defendants from having to explain why they settled.
This rule also protects defendants in that “unsuccessful settlement offers by the defendant may not be used as evidence
that he did it”. It would look bad if the defendant is arguing to the jury that they should award little when he offered to
settle for a lot more.

The difference is that the defendant is trying to negotiate something, and language around that is excluded under Rule
408, because things need to be said to negotiate. But in Rule 409 the guy is trying to give a gift, and language such as
“I’m sorry it was my fault” can be admitted.

Note the special civil/criminal exception

Rule 410: Unsuccessful settlement offers by the defendant may not be used as evidence that he did it.
You have got to make sure you are talking to the right person with Rule 408 and 410

10/16/07
MID-TERM

This is what Duane sent to us on Rule 104, and some of my notes are mixed into it, which may help you:

There are two kinds of preliminary questions: (1) Conditional Admissibility (104a) and (2) Conditional Relevance (104b)

Rule 104(a): “CONDITIONAL ADMISSIBILITY”

One party (proponent of evidence) wishes to offer evidence of some fact (“Fact A”)

The other party (opponent) objects and argues that the evidence is inadmissible because of some technical reason under
the rules of evidence or some other legal rule (and he may argue that the evidence is unreliable or inaccurate).

The judge then has to decide who is right, and whether the evidence is admissible.

In this situation, the law often provides that evidence of fact A is admissible (that is, it may be heard and considered by
the jury) only if the proponent can also prove that some other fact (Fact “B”) is true (or “lay a foundation” for admitting
evidence of A).

FACT A IS LEGALLY ADMISSIBLE ONLY IF … FACT B IS TRUE.

Witness W believes that some disease was caused Witness W is an expert.

by exposure to asbestos.
The defendant made a statement to the police The police first warned defendant about his
admitting a crime. Constitutional rights.
The police found a gun in the home of the The police knocked on the door and announced
defendant their presence before entering with a warrant.

If the objecting party denies that alleged fact B is true, or that it has been adequately proven, then that dispute over B must
be resolved before we can know whether evidence of fact A is admissible. To resolve this preliminary factual issue (that
is, the truth or falsity of B), called “Conditional Admissibility,” Rule 104(a) provides that the judge shall admit evidence
of fact A only if the judge first makes the preliminary determination that B is true.

Notice that Fact A may be very relevant but inadmissible.

Judges decide preliminary factual and legal questions (???) (factual or legal questions on which the parties disagree) that
must be decided before some legal issue can be decided. Note that the jury decides all factual questions preliminary to a
factual issue (was that her blood on the shirt, then she did it) because these are leading to a ruling on the ultimate issue
rather than the legal issue of admissibility.

Preliminary Question: A question of law or fact arising out of an objection to the admission of evidence which must be
resolved (at least provisionally—“for now”) before the objection can be decided.

The judge is not bound by the FRE except those with respect to privileges when determining preliminary questions on
admissibility (unlike the jury).

The proponent of the evidence bears the burden of proving to the satisfaction of the judge to a preponderance of the
evidence. 51% or more, then the objection is overruled and the evidence will be admitted, 50% or less then the objection
will be sustained and the evidence will be excluded (not admitted).

Often the most important issue is whether the jury be allowed to remain in the court while the judge hears evidence to
decide whether the preliminary legal requirements are satisfied. The jury should not remain in the court if (1) it concerns
the admissibility of a criminal defendant’s confession (this is mandatory), or (2) the evidence is the testimony of a
criminal defendant who so requests the jury to leave (this is optional for the accused) (104c). Otherwise, FRE 104(c)
leaves the presence or absence of the jury to the judge’s discretionary assessment of the interests of justice, based upon
factors such as:
(l) Efficiency: Will the evidence that governs the admissibility of the evidence of A (foundational evidence) also be
valuable to the jury if the challenged evidence is admitted in that it is relevant to the weight or credibility of evidence of A
(such as when the judge is deciding whether the witness is an expert and the jury is deciding how much weight to give the
expert’s testimony)? In such a case, it makes sense to take the preliminary foundational proof on the expertise of the
witness in front of the jury, so it will not need to be repeated for the jury if the witness is deemed to be an expert and is
then allowed to testify to his opinion. Often, however, the foundational evidence relevant to the legal admissibility of fact
A has nothing to do with its logical persuasiveness or force -- in which case we run no risk of repeating ourselves and
wasting time if the jury is excluded from the courtroom while the preliminary question was argued and decided.
(2) Prejudice: Can the preliminary foundational proof be heard by the jury with no adverse effect? As you will learn,
some legal requirements for admissibility have nothing to do with the merits of the case, so there is no real harm to either
side if the jury is allowed to hear the foundational evidence, regardless of what the judge decides to do. Other preliminary
factual issues -- for example, the voluntariness of an accused’s confession -- are so intimately related to the merits of the
case that it would have a powerful and prejudicial impact on the jury to allow them to hear evidence on such matters, even
if the judge subsequently decides that the actual contents of the confession are inadmissible.

Once a judge decides that evidence (a confession) is inadmissible, the prosecuting attorney cannot bring it out because it
is inadmissible and the jury cannot hear about it under Rule 103(c). Evidence that goes to the weight or credibility of the
evidence is irrelevant unless the evidence gets admitted. That’s why 104(e) doesn’t come into play unless the objection
gets overruled (which means that the evidence will be admitted!).

Note that conditional admissibility involves questions raised by technical and procedural rules of law that we do not trust
the jury to obey (yet they are trusted with 104b logical rules).
Question of Law: Does court have personal jurisdiction over the defendant
Preliminary Factual Questions: Was he served within this state? Did the cause of action arise in this state? Does he have
significant contacts with this state?

Question of Law: Is the defendant’s letter admissible against him or was it privileged?
Preliminary Factual Questions: Was it written to a lawyer? Did they have a lawyer-client relationship? Was it written with
a reasonable expectation of confidentiality?

Rule 104(b): “CONDITIONAL RELEVANCE”

The relevance of evidence, of course, is defined by logic.

Often logic provides that evidence of a fact A is not even relevant unless the party offering A can also prove fact
B. This is also part of the process of “laying a foundation” for evidence of A.

FACT A IS LOGICALLY RELEVANT ONLY IF … FACT B IS TRUE.

The murder victim received a threatening letter two The letter was sent by the defendant.
days before his death.

The plaintiff made an oral statement giving notice The defendant was present and able to hear the
of a defect in the defendant’s stairway. statement

Here again, the question arises: What if (as is often the case) the party objecting to the evidence denies that B is true, or
that it has been adequately proven?

In this case, which we might call “Conditional Relevance,” Rule 104(b) provides that in cases tried before a jury
evidence of fact A shall be admitted only if the judge first makes the preliminary determination that the proponent has
offered (or will offer) “evidence sufficient to support a finding” by the jury that B is true (that the condition has been
fulfilled). The judge does not decide whether fact B is true (that would practically destroy the jury’s role as finders of
fact); she merely determines whether there has been (or will be) sufficient evidence introduced to permit (although
perhaps not require) reasonable and rational people to conclude that B is true. The weight to be given the evidence of fact
B can then be argued by the parties and decided by the jurors.

Note that 104(b) deals with relevancy conditioned on fact—the relevance of the evidence depends on a factual question.
Objections under 104(b) are rarely sustained, they are only sustained if there is no evidence or the evidence isn’t present
(the judge should exclude the evidence if neither side has any admissible evidence that it is or isn’t relevant).

The “introduction of sufficient evidence to support a finding” that the judge is considering in 104(b) is referring to
admissible evidence, because if this is inadmissible evidence then the jury would not be able to make the finding.

Conditional relevance involves preliminary factual questions that affect not only the admissibility of the evidence but also
its very relevance in the case (affects both). Note that all irrelevant evidence is inadmissible (it’s a waste of time and
shouldn’t be in the trial).

Always Remember: The judge decides questions of admissibility (that is, whether the jury will be allowed to
learn about certain evidence), but the jury decides questions of weight and credibility (that is, the reliability or
persuasiveness of the evidence that has been “admitted” and which they are therefore permitted to see and hear). FRE
104(e).

Three kinds of objections:

• Objections that only go to admissibility (law says so), but not weight or credibility (police did not read defendant
his rights before the confession, did police have a warrant, did the police knock on the door, was this a privileged
secret between the defendant and his lawyer). These are determined with finality by the judge.
• Objections that only go to weight or credibility (common sense says so), but not admissibility. The best example
is impeachment (is this witness biased because of his relationship with the plaintiff, is this witness lying, is this
 witness mistaken about what he thinks he saw) or “what does this document really mean?” (Note: these are not
true objections and are always overruled).
• Objections that bear on both admissibility AND weight and credibility (did the police physically beat the
confession out of my client, is the doctor really a doctor, is he really an expert). After the objection has been
argued before the judge and the judge rules that it is admissible, the defendant has a right to have this reargued
before the jury under 104(e). This is because the confession was beaten out of him goes to the weight and
credibility. Note that a jury will generally never know the stuff is being reargued and what was the judges ruling.
But the jury is deciding a different question than the judge because while the judge is ruling on a preponderance
of the evidence, the jury is ruling beyond a reasonable doubt (is there a reasonable doubt that the defendant is
telling the truth). Even though the judge may rule that the evidence is admissible, if the objection also goes to the
weight or creditability, then it can be reargued before the jury again (without the jury even knowing that it was
argued), and the objector can still win the war (even though he lost the battle on admissibility) if he convinces the
jury through testimony or legal arguments that the evidence, even though it is admissible, is not credible and
therefore worthless.

Does the opponent need to object to the introduction of Fact B in order to bring up the preliminary question?
Is admissibility in question with conditional relevance, and how does that work with connecting up? When does the judge
make this preliminary decision on admitting evidence when it is being connected up?