Contemporaneous objection rule


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Dan Young

Prof. Tillers


Spring 1994

FRE 103(a) Contemporaneous objection rule - you must make timely objection , ie. when the evidence is offered. If answer to question is already given, the judge has discretion to allow objection. Lawyer must object and move to strike testimony. Only the lawyer asking the question may move to strike the answer from the record.

! If W answered quickly or gave an unexpected or unresponsive answer, you don't need to object before W answers.

! Offer evidence

with W, interrogate

with tangibles - lay foundation and then offer it into evidence. Mark it first for ID purposes. Objection must be when tangible evidence is offered, not before or after.

! Offer must be specific - inform ct. of nature of evidence, relevance of the evidence, and legal reasons why its admissible.

If you don't offer a legal basis for admission, if not allowed in, you lose on appeal anyway before you didn't explain legal basis for admission.

If error in admission or exclusion of evidence is not prejudicial, an appellate court won't reverse. Standard is substantial possibility that the result would have been different.

Exclusionary rule

- if your opponent doesn't object, you get away with admitting unadmissible evidence. You need not show it passes all of the rules, only that it passes rule that objection atty claims it doesn't pass.

- if trial judge makes a mistake and excludes evidence that shouldn't have been excluded, no reversible error unless there was an offer of proof made.

- if you make an offer of proof but fail to give reasons why evidence is relevant and the legal reasons why it is admissible, you have failed to make adequate offer of evidence and you lose on appeal.

Specificity Requirements - Rule is basically, the judge can decide with his rulings who must provide what evidence. So, you can afford to be ignorant about evidence if 1) the trial judge likes you, AND 2) your opponent is also ignorant.

- "irrelevant, incompetent and immaterial" is a general objection.

- a general objection that is overruled can't be appealed

- an incorrect specific objection that is overruled can't be appealed.

- admissible evidence offered with incorrect legal basis for admission is not appealable when not allowed in.

General rules of admissibility

1.If there is no objection, a party may not complain of the trial court's admission of inadmissible evidence.

2.A general objection overruled with not avail the objector on appeal.

3.A general objection sustainted will be upheld on appeal if the proferred evidence was inadmissible for any reason.

4.A specific objection overruled extends only to the grounds specificed in the objection; grounds for admissibility not advanced at trial will not avail the objector on appeal.

5.The exclusion of evidence at trial is not error if the proponent of the evidence does not make an adequate offer of evidence.

! An adequate offer includes: the purpose and relevance of the evidence and the legal basis for its admissibility.

6.A specific objection, if sustained, will be upheld on appeal if in fact the evidence was inadmissible for any reasons.

6a.A specific objection sustained on an invalid ground may be advanced on appeal if the defect in the evidence is curable.

7.An appellate court may reverse for errors in the admission or exclusion of evidence only when such errors are prejudicial.

8.As a general matter hearsay evidence is inadmissible.

9.Statements against interest (admission), even if hearsay, are admissible.

10.Irrelevant evidence is inadmissible.

11.Hearsay evidence is not necessarily irrelevant.

12.The testimony of a W is admissible only if the W has personal knowledge of the matter testified to.

13.Compound questions are objectionable and improper.

14.Leading or suggestive questions are generally improper on direct examination.

15.If one exclusionary rule does not bar a piece of evidence, another exclusionary rule may do so.

**Split in circuits (p1, 1/19/94 notes): if evidence excluded for wrong reason and offeror doesn't recognize this wrong reasoning, some circuits say offeror failed to make adequate offer of evidence b/c he didn't recognize wrong objection. ?????????????????

FRE 103(a)(2)offer of proof - after trial judge denies admission of evidence, evidence asked to be presented to record without jury present for the purpose of appeal - substance of evidence must either be made known to court or be apparent from the question - so you don't have to make offer of proof it everyone knows what the answer would have been.

! formal offer of proof - keeping the W on the stand and having his testify for the record, outside the presence of the jury.

! informal offer of proof - having the atty present the evidence (cheaper, moreefficient but less accurate because lawyer may mischaracterize the evidence)

! Denial of right to make offer of proof is automatic reversible error

! Don't confuse with offer of evidence - evidence asked to be presented to judge in sidebar. Process

1. describe the evidence and its purpose (offer it)

2. explain why its relevant

3. give legals reasons why its admissible.

The steps

- marking for identification

- laying the necessary foundation

- offering into evidence

- securing a ruling on the record

- showing or reading exhibit to the jury

FRE 105Limited Admissibility - multiple admissibility, evidence not admissible for one purpose may be admissible for another purpose. Rule 105 says that if a party requests, the jury shall be instructed to only use the evidence for the admissible purpose.

FRE 401Definition of Relevant Evidence - anything having any tendency to make the existence of any fact more or less probable that is of consequence to determination of the action. This is really like materiality.

! The standard is whether the evidence is probative if believed, and not whether its believable - credibility issues are for the jury to decide, admissibility issues are for the judge.

! specific evidence need not make the case but only needs to add support. "A brick is not a wall." "It is not supposed that every W can make a home run."

! Smith v. Rapid Transit said that just b/c mathematically the probability that the bus was of the defendants wasn't enough proof. A Hertz tuck case, a michigan court found that 90% of Hertz trucks are owned by hertz so its prima facie evidence of being owned by Hertz. The question is what is truth?

Lempert article - says that something is irrelevant if the probability of finding the evidence is the defendant is guilty or innocent is the same. We have an opinion about the odds of a defendant being guilty. If the evidence changes these odds, its relevant. Judges and juries also seek to minimize regret. The equation is to look at the fraction of P(E/G) probability of the evidence given guilt over P(E/-G) probabiltiy of the evidence given not guilty. If this statistic changes with the admission of more evidence then its relevant. This is very subjective though. Its just a method of looking logically at evidence.

! cumulative evidence - not irrelevant if it will make jury more sure about something.

! Baynesian theory doesn't account for the fact that juries usually look at stories and not individual pieces of evidence. But Tillers says Baynesian theory still helps b/c stories are really just connectors to the pieces of evidence.

! Baynesian theory may or maynot look at possibility that Event actually occurred when deciding whether evidence is relevant, so we might want to modify equation to determine source credibility before we measure the probability of E if he is guilty v. probability of E if he is innocent.

FRE 402Relevant evidence is usually admissible. Irrellevant evidence is not admissible. So evidence having a bearing on legaly immaterial issues is irrelevant.

! "logical relevance" standard so evidence of any probative value is relevant.

! background evidence is usually admitted

you can't admit evidence of credibility until attacked but you can establish background evidence - probably an efficiency argument.

! picture of a crime are sometimes allowed, its considered testimony pictorial testimonial theory

! Law of evidence deals with probabilities not certainties.

! Knapp, its the job of the jury to weigh the evidence and its the job of the judge to decide whats relevant. - this is the classic struggle of admissibility v. weight of evidence.

! "the fact to which the evidence is admitted may not be disputed" - advisory committee notes - the charred shirt might be excluded (if unnatural death is admitted) to avoid waste of time or prejudice, but it might be allowed to "aid the understanding" - advisory committee notes.

FRE 403 Relevant evidence can be excluded if its probative value is substantially outweighed by

1. the danger of unfair prejudice

2. confusion of the issues or misleading the jury.

3.consideration of undue delay, waste of time, or needless presentation of cumulative evidence.

! Ballou case of whether evidence of intoxication is to be allowed. The court allowed it saying that its not that the evidence is not allowed if prejudicial, but only excluded if unfairly prejudicial (ie. that the jury would base its decision on emotion rather than evidence.)

In Re Winship S.Ct. case establishing that 'proof beyond a reasonable doubt' is the standard for a criminal charge - based on our belief that it is better to let a guilty man go free than convict an innocent man.
FRE 611(b)Scope of cross examination - should be limited to the subject matter of the direct exam and matters affecting the credibility of the W. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.

FRE 611(a)Court should control interrogation of Ws to

1.make interrogation and presentation effective for the ascertainment of the truth

2.avoid needless consumption of time.

3.protect Ws from harassment or undue embarrassment.
MorganEvidence is a series of inferences. Court must begin with the assumption of the nonexistence of each item in the chain.

Hypnothis - cases, per se rule, safeguards, constit. law aspects.

FRE 601assumes everyone is qualified and competent to be a W, unlike the Common law that had exceptions for irreligion, infancy, idiocy, insanity, infamy, interest, coverture, mental derangement, intoxication, marital relationship
FRE 603Requires oath or affirmation to be a W. If you can't understand oath, you can't be W. Although judge isn't supposed to make credibility decisions, he really is when he decides that a W is too young to testify. Credibility is just another inference hypothesis.

FRE604-606604 - interpreters, 605 - competency of judge as witness, 606 - competency of juror as witness.

Side calling the W is bound by the testimony unless he can convince judge W is hostile or has taken him by surprise. p. 449.

We might doubt a W's story b/c of veracity (is he a lier), reliability (is what he thinks true), mental derangement, basis of knowledge, great stake in outcome (bias - people believe whats in their advantage to believe).
Testimonial qualities

Sensory sensitivity or accuracy




ability to communicate (narrate)

Advisory committee note says factors are:




sincerity (merely an aspect of the above 3)

three conditions ideally under which W will testify are 1. under oath, 2. in the personal presence of the trier of fact, and 3. subject to cross-examination.


Two types: 1. exclude evidence for fact finding accuracy reasons and

2. exclude evidence ot promote a collateral policy (ie. atty-client, marital privilege)

When we examine testimony, we put to the test of the qualities above. These are weaknesses that are characteristics of the source. Hearsay makes this harder by adding a second person b/c now you must access both people's qualities (ability to narrate, etc.) Reason for excluding hearsay shouldn't be weakness b/c judge can't exclude evidence b/w of credibility (he thinks they're lying).

Hearsay not allowed b/c we can't examine qualities of out of court declarant in the court room - we can't cross-x declarant in front of jury.

FRE 801Defn of hearsay - a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.


2. offered to show TRUTH OF MATTER ASSERTED.

Hearsay is declarant not in this court room when he made the statement. Even if not hearsay, the issue to be proved (if not the truth of what is asserted) must be relevant.

NOT Hearsay re: 801 - 801(d)(1) prior statement by W. and

FRE801(d)(1)(a)Statement not hearsay if prior statement by W. makes the prior statement substantive only if the W is there and testifies. So W's testimony before a grand jury is not admissible as substantive evidence UNLESS the W is present at the current trial and testifies at the current trial. This requies inconsistent testimony.

FRE801(d)2admission by party, opponent (agent, conspirator) not hearsay. An admission is a statement by a party offered by that party.
HYPO:D. offers to show the fact that J bolted from scene of crime to prove that J did the buglary and not him. If common law applies, this bolting might be hearsay. No exception for admission b/c J is not a party. But might be admissible to show that J was there, had opportunity b/c was within area.
FRE 801(a)2A statement is 1) an oral or written assertion or 2) nonverbal conduct of a person, if it is intended by the person as an assertion. (nothing is an assertion unless intended to be one)
FRE here was meant to reverse holding of Wright v. Tatham. Implied statements include both verbal and nonverbal conduct.
At common law, implied assertions could be hearsay - conduct could be hearsay - ie. police seeing defendant run from near building with burglar alarm going off could be hearsay at common law because it might have been a statement. Wright v. Tatham - example of Baron Parke's famous sea captain whose evidence that he brought his family on a vessel was concluded to be hearsay for the assertion that the vessel was seaworthy. He said his actions were just like words, but captain could have been blind, might not have inspected ship, and no one can cross him - his statements imply an assertion so they are hearsay and should be excluded.
under common law, it doesn't matter whether the implied assertions were assumptions or actual assertions - in letter case about whether someone was sane based on evidence of letters telling him to tend to his flowers, the assumption was if someone could receive that message, he was sane.

Implied assertions - Zenni case. - bookmaking- calls making betters were implied assertion and admitted as not hearsay under the FRE.

two rationales for implied assertions not being hearsay: 1) when a person acts in a way consistent with is belief but without intending his act to communicate that belief, the problem of veracity is eliminated (& the problem of no cross is abolished). 2) the underlying belief is in some cases self-verifying - his actions speak louder than words.

FRE comments say evidence of implied assertion is untested wit hrespect to perception, memory, and narration of the actor. The committee said no class of evidence is free of the possibility of fabrication but the liklihood is less with nonverbal assertive nonassertive conduct b/c questions of sincerity are virtually eliminated.
Conflict b/w common law and FRE - at CL, non assertive non verbal conduct was hearsay, under FRE non verbal conduct is hearsay only if it is intended to assert something. under FRE non assertive, non verbal conduct is not hearsay.
ORDERS OR COMMANDS - some courts say an order is not an assertion, so not hearsay. Cts. say allowed b/c danger of lying isn't great.

HYPO:If W tries to say that he heard declarant shout "shop that buglar" and point to defendant, then under common law not allowed b/c it is hearsay. Under FRE you could argue it wasn't intended to prove that defendant was robber but only to prove that declarant thought defendant was the robber.

Statements with more than one assertion: the rule doesn't say only the primary assertion is hearsay, but some courts say if statement offered to prove 2ndary assertion, its not hearsay. This doesn't make sense b/c you can't say you're offering it to prove truth of matter asserted.
FRE 801(d)(1)(C)OUT OF COURT Identifications

Under common law, some cts. allowed out of ct. ids under the faulty reasoning that they weren't offered to prove truth of what W said but rather W's state of mind of belief. Under common law, W need not be there and it could still be let in. This reasoning would destroy the hearsay rule.

Under FRE, these out of court ids are allowed, but W must testify at trial and must be subject to cross.

Advisory committee said they should be admitted b/c pre-trial ids are less fragil than normal hearsay b/c made soon after the crime, so memory loss de minimis. Pretrial ids are also less suggestive than ids made in court.

Tillers says neither justification works. All hearsay occurs prior in time to ct, and id out of court not necessarily less suggestive.

Witness's testimony regarding W's own prior testimony. Advisory committee tried to make this not hearsay b/c since w is there in court, no problem with inability to cross, but congress disagree so a W's testimony regarding his testimony is hearsay.
HYPO:W can't say that he said a few weeks ago that D. killed V, but he can presently assert say that D killed V
FRE 801(d)(1)(A)Prior inconstistent statements of W, given under oath and subject to perjury at a trial, hearing, or other proceeding or deposition are not hearsay.
The purpose of prior inconstistent statements isn't to prove the truth of the prior statement but only to prove that W said something different before. Used to impeach the W - used to show that W tells different stories at diff't times. It's not hearsay b/c its not being offered to show truth of prior statement but rather to show that prior contradictory statement was made.
At common law, prior statements could only be used to impeach and not to prove substantive truth of prior assertion.
Judges used to say inconsistent statements must be a strict contradiction but now they say substantial inconsistency is enough.
You can use one W's testimony to try to impeach another W. People can tell different stories. Testimony that impeaches W's testimony doesn't make it inadmissible if its allowed in for another reason.

Judges also used to say that you could in addition to inconsistent statement, the party calling the W (who changed his testimony) had to affirmatively damage that party in order to contradict him. Old common law said that if it didn't affirmatively damage the party (like a statement that said "i don't remember" when you expected "he killed Victim"), then there is nothing to wipe out and no need to contradict. TODAY, most courts say NO affirmative damage or harm requirement so plaintiff today can offer prior statement even if W doesn't do any harm.

FRE607 allows impeachment of own witness but courts are divided. Some require a surprise requirement so that if you call a W just to get a prior statement in and you knew he wouldn't testify, you can't get the prior statement in.

Advisory committee said nothing about suprise requirement, but they wanted prior statements to be used as substantive evidence so the question was moot to them.

Gomez 1990 9th Cir., p450 - Ct. says that W was called so that he could be impeached with otherwise inadmissible evidence. Ct. said gov't called W for the primary purpose of impeaching him, and this was wrong - conviction reversed. "The maximum legitimate effect of the impeaching testimony can never be more than the cancellation of the adverse answer by which the party is surprised."

Under FRE - Impeachment evidence can be used as substantive evidence if made under oath and subject to perjury. Congress believed you need cross of statement at the time it was made but compromised by saying oath was good enough. If not under oath or subject to perjury, prior statement can still be used to impeach just can't be used as substantive evidence. (caselaw says this although rule doesn't appear to).

FRE 607Either party may attack the credibility of a W, including the party calling the W.
FRE 806You can attack credibility of declarant as though he was there with inconsistent statements, etc.

You can impeach non-testifying W if the W's statements are allowed in already as non-hearsay.

HYPO:Difference b/w admitting statement "I am King Tutt" and "I believe I am King Tutt." First is not hearsay b/c we're not offering it to prove he is KT but only that he believes he is. Second is hearsay b/c its offered to prove what he believes. You could argue "I am KT" is hearsay b/c it is implying an expression that he is crazy so meaning of statement may be "I believe I'm KT" - Iffy argument.

HYPO:MD's statement that it looks like you might have cancer may be admitted as proof of your cancerphobia. Offered to prove your fear and not that you actually might have cancer.
Verbal Acts or Performative Utterances doctrine.

Theory is that you don't have to worry about testimonial qualities b/c if it was actually said is what we're worried about. The words are actions so they don't assert things, they do things, they have magical quality. Words that help explain performative utterances are admitted. The importance is that words were actually said and not the declarant's credibility so the credibility that is important is the W's credibility and he can be crossed, etc.

HYPO:Is statement that you want to cancel your insurance policy hearsay? It may be performative utterance but if law requires cancellation in writing then it is hearsay b/c the words then don't have a magical quality.
General hearsay rule in federal courts is that if a W on the stand testifies to his/her out of ct. statements, its hearsay.
HYPO:We'll need a gun statement might be offered not as assertion but as proof that they got a gun so maybe not hearsay.
CHARACTER EVIDENCE RULEyou can't use propensity to prove that someone did something. So you can't use propensity, previous act, or previous crime to prove propensity to prove guilt. But you can use previous act or crime to show OPPORTUNITY.

Robinson case:Evidence that when defendant was arrested 10 weeks after crime that he had .38 caliber gun was admissible to prove identity (that he could have been one of the robbers) when a .38 caliber gun was used in the holdup 10 years prior. Judge allowed in to prove that defendant had opportunity to use .38 gun b/c he had one.

Ct. said probative outweighed prejudice. Probative is that he had a gun, prejudice is that there are lots of .38 guns so if this really good enough.

Conditional Relevance

when the relevance of evidence depends on some other fact, it is inadmissible unless there is evidence to show the other fact.

HYPO:open beer can in car irrelevant unless evidence to show he drank

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