BASIC EVIDENCE PROCEDURE -- RULES, OBJECTIONS and ARGUMENT


1. THE RULES. The admissibility of evidence is controlled by "rules" of evidence. These rules come from four sources (in order of importance):
a. The Federal Rules of Evidence (FRE).
b. Common law and customary local practice
c. Statutes
d. Case law


2. WHEN DO THE RULES APPLY? (See FRE 101, 1101). In general:
a. The rules fully apply to both bench and jury trials.
b. In theory, the rules apply to motions that require a party to prove something, such as summary judgment proceedings or motions for change of venue based on adverse publicity. In practice, they are not strictly enforced.
c. They do not apply to miscellaneous criminal proceedings like probation revocation.
d. They do not apply to depositions.
e. They do not apply when laying foundations. See FRE 104.
f. Exception: The rules of privilege always apply and must be invoked during discovery, well before trial


3. OFFER: Items of evidence are offered one at a time -- one question and answer, or one exhibit. This is sometimes called a "proffer" for no apparent reason.


4. OBJECTIONS.


a. Items of evidence are objected to one at a time.


b. It is the responsibility of the opposing attorney to make an objection. If no objection is made, the evidence is admitted and may be considered by the jury, even if it is a privileged irrelevant hearsay opinion. Therefore, we do not ask whether evidence is "admissible" as if there were some objective determination. We ask whether there are grounds for making an objection.


c. Objections must be TIMELY. An objection must be made as soon as the grounds become apparent.
1) If the grounds are apparent from the question (Q: Is Ben a member of Al-Qaeda?), the objection should be made to the question before it is answered.
2) If the question is innocuous and the grounds arise for the first time in the answer (Q: Do you recall anything else? A: Oh, yes. Ben is a member of Al-Qaeda.),
the objection should be made to the answer before the next question is asked.


d. Objections must be SPECIFIC. A good objection should do three things:
1) Designate what item of evidence is being objected to.
2) State the controlling rule by name ("The Prejudice Rule") or by number ("Rule 403")
3) If a rule has subparts, specify which subpart controls. For example, Rule 403 says evidence may be excluded if it is unfairly prejudicial or confuses the issues. A good objection tells the judge which concept you rely on.


5. MOTION TO STRIKE. A motion to strike the testimony is required if the jury has already heard the evidence.


6. RESPONSES TO OBJECTIONS.
a. A response is optional. You may withdraw the evidence and try again, or you may remain silent and let the judge rule.
b. Responses must be specific as to which items of evidence you think are admissible, which rule applies, and what specific language in the text of the rule supports admissibility.
c. You can make three kinds of arguments: 1) the evidence at issue is not the kind of evidence prohibited by a rule, 2) although the evidence is prohibited by the main rule, it falls within an exception (either explicit or implicit) that allows it. or 3) admitting the evidence is within the judge's equitable discretion to admit because it will make the trial more fair or better advance the search for truth.


7. ARGUMENTS BY LAWYERS.. Arguments in opposition to and support of admissibility are supposed to be conducted outside the hearing of the jury.


8. THE JUDGE MUST RULE ON THE OBJECTION. Rule 102 gives the judge broad discretion. The judge's choices are:
a. SUSTAIN the objection and exclude the evidence entirely.
b. OVERRULE the objection and admit the evidence entirely.
c. Issue a CONDITIONAL ruling, either admitting or excluding the evidence tentatively, pending other evidence that is important to its ultimate admissibility. Rule 104(b).
d. Admit the evidence for a LIMITED purpose while instructing the jury not to consider it for a different purpose.


9. REMAINDERS. (Rule 106 and common law "rule of completeness"). If part of a document, conversation, or transaction is admitted that would be misleading if offered alone, the opponent may request and the judge may rule that all relevant parts be admitted at the same time.


10. OFFER OF PROOF. If evidence was excluded and the offering attorney wants to include that issue in his or her appeal, the attorney must at the time of the adverse ruling make an offer of proof that places the substance of the excluded evidence into the record.
a. Complicated version. The jury is removed from the courtroom, and the witness is questioned exactly as if the jury were present.
b. Simple version. The attorney submits a written or oral summary of the excluded evidence out of the hearing of the jury.


11. APPEAL. Bad evidentiary rulings are rarely appealable. Rule 103 says "A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party." In a long trial with lots of witnesses and 50 hours of testimony, it is highly unlikely that any one erroneous evidence ruling will have affected a substantial right of a party.


2013