Presentation of evidence - Introduction of evidence

Learning Outcomes

This article explores the foundational rules governing the presentation and introduction of evidence in federal court under the Federal Rules of Evidence (FRE). After reading this article, you will understand the distinct roles of the judge and jury in evidence matters, the procedures for admitting and challenging evidence, including objections and offers of proof, the concept of judicial notice, and related doctrines like limited admissibility and the rule of completeness, preparing you to analyze these issues in MBE questions.

MBE Syllabus

For the MBE, you are required to understand the mechanics of presenting evidence at trial. This includes knowing the roles of the judge and jury, how evidence is admitted or excluded, and how to preserve issues for appeal. You should be prepared to:

  • Distinguish the judge's role in deciding preliminary questions of admissibility (FRE 104(a)) from the jury's role in determining weight and credibility.
  • Analyze situations where relevance depends on a fact (FRE 104(b)).
  • Identify the requirements for making timely objections and offers of proof to preserve error (FRE 103).
  • Recognize the concept of plain error (FRE 103(e)).
  • Apply the rules for limited admissibility and limiting instructions (FRE 105).
  • Understand the rule of completeness for writings or recorded statements (FRE 106).
  • Apply the rules for judicial notice of adjudicative facts (FRE 201).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

  1. In a federal trial, the admissibility of expert testimony is ultimately determined by:
    1. The jury, based on the expert's credibility.
    2. The judge, after considering preliminary questions of qualification and reliability.
    3. The proponent of the testimony, subject to cross-examination.
    4. Both the judge and the jury jointly.
  2. To preserve for appeal an argument that evidence was improperly excluded at trial, the party must typically:
    1. File an immediate interlocutory appeal.
    2. Make an offer of proof on the record.
    3. Object immediately after the jury verdict.
    4. Demonstrate plain error affecting substantial rights.
  3. Which of the following facts is most likely appropriate for judicial notice under FRE 201?
    1. The defendant has a reputation for dishonesty in the community.
    2. That New York City is located in the state of New York.
    3. The witness appeared nervous while testifying.
    4. The contract terms were ambiguous based on trade usage.
  4. If a party introduces only the incriminating portion of a defendant's written confession, the rule of completeness (FRE 106) allows the opposing party to:
    1. Object and have the entire confession excluded.
    2. Introduce any other part of the confession immediately, even if otherwise inadmissible.
    3. Introduce other relevant parts of the confession only during their own case-in-chief.
    4. Request a mistrial due to unfair prejudice.

Introduction

The presentation of evidence is governed by procedural rules designed to ensure fairness, efficiency, and the ascertainment of truth. The Federal Rules of Evidence (FRE) provide the framework for federal courts. Key aspects include the division of responsibilities between the judge and jury, the mechanisms for admitting and challenging evidence, and special rules like judicial notice. Understanding these foundational principles is critical for analyzing evidence-based questions on the MBE.

Role of Judge and Jury (FRE 104)

A fundamental distinction exists between the roles of the judge and the jury regarding evidence.

Preliminary Questions of Admissibility (FRE 104(a))

The judge decides preliminary questions concerning the admissibility of evidence. This includes determining whether a witness is qualified, a privilege exists, or evidence meets the requirements of a hearsay exception. In making these determinations, the judge is not bound by the rules of evidence, except those concerning privilege. The standard for the judge's determination is typically preponderance of the evidence.

Key Term: Admissibility The quality of evidence that permits it to be presented to the jury (or judge in a bench trial) because it meets the legal requirements for relevance, reliability, and competence, and is not barred by an exclusionary rule.

Relevance Conditioned on Fact (FRE 104(b))

Sometimes, the relevance of a piece of evidence depends on whether a particular fact exists. For example, whether a statement constitutes notice depends on whether the person actually heard it. In such cases, the judge determines only whether there is sufficient evidence for a reasonable jury to find that the conditioning fact exists. If so, the evidence is admitted, and the jury ultimately decides whether the conditioning fact is true.

Weight and Credibility

Once evidence is admitted, the jury determines the weight it should be given and assesses the credibility of witnesses. The judge's role in admitting evidence does not usurp the jury's function as the ultimate trier of fact.

Rulings on Evidence (FRE 103)

To challenge an evidence ruling on appeal, a party must show the error affected a substantial right and that the party properly preserved the error at trial.

Objections (FRE 103(a)(1))

If evidence is admitted, a party must make a timely objection or motion to strike, stating the specific ground unless it was apparent from the context. Failure to obstruct in a timely and specific manner generally waives the issue for appeal.

Offers of Proof (FRE 103(a)(2))

If evidence is excluded, the party offering the evidence must inform the court of its substance through an offer of proof, unless the substance was apparent from the context. This allows the trial court to reconsider its ruling and creates a record for appellate review.

Key Term: Offer of Proof A presentation of evidence to the court (outside the jury's hearing) demonstrating the substance of excluded testimony or other evidence, made to preserve the issue for appeal and allow the trial judge to reconsider the ruling.

Plain Error (FRE 103(e))

Even if an error was not properly preserved, an appellate court may take notice of a plain error if it affects a substantial right. This is a difficult standard to meet and is typically reserved for serious errors that likely affected the outcome of the case.

Worked Example 1.1

During Plaintiff's direct examination of Witness, Defendant's counsel objects to a question as "leading." The judge overrules the objection. Witness answers the question. Plaintiff wins the case. On appeal, Defendant argues the judge erred in allowing the leading question. Will the appellate court likely consider this argument?

Answer: Unlikely. First, leading questions are sometimes permissible on direct (e.g., for preliminary matters). Second, even if the ruling was erroneous, Defendant must show the error affected a substantial right. Allowing a single leading question rarely amounts to reversible error unless it caused significant prejudice. Without more, this appears to be harmless error, if error at all.

Limited Admissibility (FRE 105)

Evidence may be admissible against one party but not another, or for one purpose but not another. If the court admits evidence for a limited purpose, it must, upon timely request, instruct the jury accordingly. This limiting instruction clarifies the proper scope of the evidence for the jury.

Rule of Completeness (FRE 106)

When a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part—or any other writing or recorded statement—that in fairness ought to be considered at the same time. This rule prevents misleading impressions created by taking statements out of context.

Judicial Notice (FRE 201)

Judicial notice is the court's acceptance of an adjudicative fact as true without requiring formal proof.

Types of Facts (FRE 201(b))

A court may judicially notice a fact that is not subject to reasonable dispute because it is either:

  1. Generally known within the trial court's territorial jurisdiction (e.g., that the Empire State Building is in New York City).
  2. Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (e.g., the date of a historical event using an encyclopedia or almanac).

Key Term: Judicial Notice A court's recognition of a fact as true without formal evidence because the fact is either generally known within the court's jurisdiction or can be accurately and readily determined from reliable sources.

Procedure (FRE 201(c)-(d))

A court may take judicial notice on its own initiative. It must take judicial notice if requested by a party and supplied with the necessary information.

Effect (FRE 201(f))

  • Civil Cases: The jury must accept the noticed fact as conclusive.
  • Criminal Cases: The jury may, but is not required to, accept the noticed fact as conclusive. This preserves the defendant's right to a jury determination of all elements of the crime.

Worked Example 1.2

In a federal civil trial in Miami for breach of contract requiring delivery by March 1st, Plaintiff asks the judge to take judicial notice that February had 29 days that year because it was a leap year. Defendant objects. How should the judge rule?

Answer: The judge should grant the request. The fact that a specific year was a leap year is capable of accurate and ready determination from sources whose accuracy cannot reasonably be questioned (e.g., a calendar). Since this is a civil case, the judge must instruct the jury to accept this fact as conclusive.

Key Point Checklist

This article has covered the following key knowledge points:

  • The judge decides preliminary questions of admissibility (FRE 104(a)), while the jury determines weight and credibility.
  • When relevance depends on a fact existing, the judge admits the evidence if there's sufficient proof for a jury finding of that fact (FRE 104(b)).
  • Error in admitting evidence requires a timely, specific objection; error in excluding evidence requires an offer of proof (FRE 103).
  • Plain error affecting a substantial right may be reviewed even if not preserved (FRE 103(e)).
  • Evidence admissible for one purpose but not another requires a limiting instruction upon request (FRE 105).
  • The rule of completeness allows introduction of related parts of writings/recordings for fairness (FRE 106).
  • Judicial notice applies to facts not subject to reasonable dispute (generally known or accurately verifiable) (FRE 201).
  • Judicial notice is conclusive in civil cases but only permissive in criminal cases (FRE 201(f)).

Key Terms and Concepts

  • Admissibility
  • Offer of Proof
  • Judicial Notice
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