A. INTRODUCTION TO EVIDENCE AND HOW IT WORKS

    The Federal Rules of Evidence were enacted in 1975 and are the controlling source of evidence law. The rules have been amended over the years and were rewritten in 2011 to modernize the language and make the content clearer. Most states have adopted versions of the rules, although there are still a few -- notably California, Illinois and New York -- that have their own codes. 

    Common law principles of evidence that fill in the gaps, apply the Rules to specific situations, or address issues not covered by the FRE are generally still good law.  

    Rules of evidence are considered an integral part of the procedure for operating the court system.  Therefore, the courts have the ultimate power to say what the rules of evidence are and may disregard legislation that conflicts.

1. Evidence Rules Do Not Apply to All Court Hearings

    (A)  Civil trials.  The Rules apply in civil trials, including bench trials. It doesn’t matter if there is a jury. The rules apply “loosely” to substantive motions, especially motions for summary judgment.

    (B) Civil small claims trials.  Small claims trials are informal and the rules do not usually apply except for those concerning privileges.

    (C) Criminal proceedings

1)    Obviously, the rules of evidence apply in criminal trials, whether to a jury or to a judge alone.  The rules mostly apply to the penalty phase of a capital case tried to a jury, although rules of relevancy are generally relaxed to permit evidence of the impact on the victim’s family.

2)    In substantive proceedings other than trials, such as motions and suppression hearings, the rules apply “loosely.”

3)    In criminal proceedings other than trials, such as pretrial hearings on summonses, warrants, extradition, and bail; grand jury proceedings; and post-trial hearings on sentencing, probation and parole, the rules of evidence do not apply except for privilege

4)    In post-conviction relief and habeas corpus factual hearings, the rules governing privilege, exhibit procedures and personal knowledge apply, but not hearsay.   The judge has considerable discretion in deciding what to consider.  

5)    The rules do not apply in a hearing on a petition to revoke probation or placement in a community corrections program. However, many states follow a rule that hearsay may be used against the accused only if it is "substantially trustworthy."  

    (D) Contempt.  In proceedings for direct contempt, even where jail is a possibility, evidence rules do not apply.

    (E) Juvenile proceedings.  In preliminary juvenile matters, such as waiver hearings, the rules of evidence do not apply.  However, in full fact-finding hearings -- the juvenile court equivalent to a trial -- the rules generally will apply.

    (F) ADR proceedings.  In mediation and arbitration proceedings, the rules of evidence do not apply, except for privileges.  

    (G) Administrative Proceedings.  The Rules do not apply to administrative hearings, which will usually have their own abbreviated set of evidence rules. Privileges still apply, but the administrative law judge may relax other rules.

2. Depositions and discovery

    In general, the rules of evidence do not apply to depositions and discovery other than the rules of privilege. In depositions, Fed. R. Civ. P. 30(c)(2) provides that objections are noted by the court reporter but “the examination still proceeds; the testimony is taken subject to any objection. [An attorney] may instruct a deponent not to answer only when necessary to preserve a privilege....” The witness must answer the question, but the objection may be made again if the deposition is offered at trial. In other words, if your client is asked during a deposition if she supported Donald Trump in the 2016 elections, she must answer, but you can object to the admissibility of that information if your opponent tries to offer it at trial.

    Nor can objections based on evidentiary grounds (other than privilege) be made to other discovery requests, such as document production. You cannot refuse on evidentiary grounds to turn over copies of cancelled checks made out to the Trump for President campaign during discovery, but you can object to their being used at trial.

3. Laying Foundations

    Under Evidence Rule 104(a), rules of evidence other than privileges do not apply when laying foundations for the admissibility of an item of evidence. In other words, if a rule of evidence requires that an entry in a hospital record must be shown to have been made by medical personnel before it can be admitted (that’s a “foundation”), then the rules of evidence do not apply to proving that the entrant was a nurse.  You can use hearsay and second-hand information that would normally be excluded by Rules 701 and 802.

4. Judicial Discretion

    Evidence Rule 102 states that the Rules should be applied by trial judges to promote fairness, justice, truth-seeking and the elimination of expense and delay.  Rule 611(a) requires the judge to control the presentation of evidence so as to make the trial effective for ascertaining the truth, avoid wasting time, and protect witnesses from harassment and badgering.  These principles give the judge broad discretion in determining the admissibility of evidence, but not license to ignore the plain language of the Rules.

    Most evidentiary disputes are worked out at the trial court level.  Errors are not grounds for reversal on appeal unless “a substantial right of the party” is affected.  Rule 103(a). It’s pretty rare for a single erroneous ruling to do much harm in a trial with 12 witnesses that takes 3 days.

B. BASIC EVIDENCE PROCEDURE -- OBJECTIONS, RESPONSES and ARGUMENT

1. THE RULES. The admissibility of evidence is controlled by "rules" of evidence. The rules say that some evidence is inadmissible, some admissible, and some might be admissible if you jump through the right hoops.

These rules come from four sources (in order of importance):

     85% -- The Federal Rules of Evidence (FRE)

     10% -- Customary local practice

     3% -- Statutes

     2% -- Case law

2. 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. We will call the person offering the item into evidence as the proponent.

3. OBJECTIONS.

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

b. It is the responsibility of the opponent to make an objection. If no objection is made, the issue has been waived, and 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. The objection must be made on the record when evidence is offered at trial; objections made in chambers or in pretrial proceedings are not adequate to preserve the issue for appeal.

d. 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.

    3) An objection to a document or other exhibit should be made when the opponent offers it into evidence (before the judge rules).

    4) If the grounds do not become apparent until some time after the evidence has been received, an objection will be considered timely if made at that time. For example, if a doctor appears qualified as an expert on direct examination, but on cross-examination admits he has no experience or training in obstetrics, an retroactive objection to his expert testimony is considered timely.

e. 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.

4. MOTION TO STRIKE. A motion to strike the testimony is required if the jury has already heard the evidence. They are used in six common situations where objections alone are inadequate because the jury has already heard inadmissible evidence.

    1)     By examining counsel when a non-responsive answer is given to a proper question.

    2)     By opposing counsel when the witness volunteers improper testimony in answering a proper question.

    3)     When it was not apparent until the answer that inadmissible evidence was going to be introduced.

    4)     To the gratuitous remarks and sarcastic comments of a witness or attorney.

    5)     When subsequent testimony demonstrates that earlier testimony was inadmissible, or the opposing attorney fails to connect up earlier testimony that was admitted conditionally and show its relevance.

    6)     When an objection could not be imposed before the evidence was admitted, as when there is not time for objection.

    It is not a remedy for negligence, however. If the objectionable nature of the evidence was apparent from the question, failure to object waives the right to have the answer stricken. If you realize too late that you should have objected earlier, a motion to strike the previous evidence will not save you. The court in its discretion may grant a late motion to strike if an objectionable question was answered so quickly there was not time to object, or if some other justifiable excuse exists for an attorney’s failure to object at the time the evidence was offered.

5. RESPONSES TO OBJECTIONS.

    a. A response is optional. The proponent may argue, may withdraw the evidence and try again, or may remain silent and let the judge rule.

    b. Responses if made must be specific in three respects: 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.

6. ARGUMENTS BY LAWYERS.. Arguments in opposition to and support of admissibility are supposed to be conducted outside the hearing of the jury. You do not have a right to argue, and some judges rule very quickly.

7. 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.

8. AFTER THE RULING

    a. REMAINDERS. (Rule 106 and common law "rule of completeness"). If the judge has admitted part of a document, conversation, or transaction that is potentially misleading in relation to the whole item, the opponent may request and the judge may rule that other relevant parts be admitted at the same time.

    b. 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 party has a right to make an offer of proof and it is reversible error for the judge to refuse it.  

    1). Complicated version. The jury is removed from the courtroom, and the witness is questioned exactly as if the jury were present.

    2) Simple version. The attorney submits a written or oral summary of the excluded evidence out of the hearing of the jury. No particular level of detail is required, as long as the record is clear what the anticipated testimony would have been and is in sufficient detail for the court of appeals to determine whether it would have been admissible.

    3) If a witness is ruled incompetent to testify or otherwise prevented from testifying, the attorney usually must make a detailed offer of proof containing a full description of the evidence the witness would have given, including the foundation showing the witness's competence to testify.

    4) If the ruling excludes an exhibit, a copy of it should be included in the record.

c. ADMONISHING JURY TO DISREGARD. Upon request, the court should admonish the jury to disregard information which has been struck or limit the way it can be used.  However, counsel usually should not request such an admonition. Empirical studies show that the effect of such an admonition is to aggravate rather than ameliorate the harm from improper evidence.  See Tanford, Thinking About Elephants:  Admonitions, Empirical Research and Legal Policy, 60 UMKC Law Rev. 645 (1992).  

9. 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.

10. WAIVER. An objection to evidence must be properly preserved in order to raise that issue on appeal.  Failure to preserve the issue is considered a waiver.  There are three main ways that the ability to appeal may be lost even though a timely, specific objection was made:

    (1)    If the proponent offered similar evidence, the issue is usually waived. However, if a specific objection is overruled, the losing party may introduce rebuttal evidence on that issue to minimize the damaging effect of the evidence objected to without waiving the objection.

    (2)     If the proponent did not object to similar evidence from the same or a different witness, the issue is waived.  This includes failure to renew an objection to the same evidence if it is re-offered at a later time.

    (3)     If co-defendants are being tried together, failure of a defendant to join in a co-defendant's objection is a waiver. 

11. CONTINUING OBJECTION. If the first objection to a line of testimony or series of exhibits is overruled, it may not be necessary to repeat the same objection to every subsequent similar item of evidence.  The objecting party may ask the trial court for permission to enter a continuing objection, which preserves the issue for appeal without the disruption of a series of identical objections. The proper procedure is to ask the court to consider the same objection made each time a class of evidence is offered, being specific as to the grounds and the definition of the class of evidence. Whether to permit a continuing objection is a matter for the trial judge's discretion.

12. OBJECTIONS TO INTERROGATION BY JUDGE. Judges may question witnesses as long as they do so impartially. If the judge asks improper questions, seeks to elicit incompetent testimony, or acts partially, an objection must be made either at the time of the misconduct or at the next available opportunity outside the hearing of the jury.

13. OBJECTIONS MADE BY THE JUDGE. The court on its own motion may object, strike testimony, and prevent inadmissible evidence from reaching the jury to preserve the fairness and integrity of the trial.  The judge may make sua sponte objections as long as the judge does not thereby become an advocate for one side.  Although a judge must remain impartial and refrain from unnecessary intervention, the judge also has a duty to see that the trial is properly conducted.

14. PRETRIAL EVIDENTIARY MOTIONS

(A)  Motion to exclude evidence.  Inadmissible evidence may be tentatively excluded by a pretrial objection commonly known as a “motion in limine.” However, a ruling on this motion is not final and preserves no issue for appeal.  If the motion is denied, a new objection must be made at the time the evidence is offered at trial.  If the motion is granted, the proponent of the excluded evidence must approach the bench during trial and make an offer of proof in order to preserve the issue for appeal.  

(B)  Motion to admit evidence.  Although less common, a pretrial motion also may be made to admit evidence, e.g., a motion requesting that the court take judicial notice.  This procedure may be used when a party seeks to introduce evidence which is presumptively inadmissible, such as a polygraph test or a rape victim’s sexual history.

(C)  Motion to suppress illegally obtained evidences.  In criminal cases, a pretrial motion may be made to suppress evidence obtained through illegal or unconstitutional means.  If the motion is denied, the defendant must still make an objection to the evidence when it is introduced at trial to preserve the issue.

(D)  Motion to exclude unreliable scientific evidence.  The so-called Daubert rule (see topic 13) conditions the admissibility of expert scientific testimony upon the judge’s finding that it is scientifically reliable.  This determination will usually require a pre-trial hearing on a motion to exclude the proposed expert.

15.  “EXCEPTIONS” NOT REQUIRED. In some older movies, you will hear attorneys say the word “exception” following an adverse ruling on an objection. This was an antiquated procedural device under California law for designating issues for appeal. Exceptions are not required under the FRE or any modern evidence code.