Table of Contents

Chapter 1. Introduction to Evidence Law 1

D. The Role of the Trial Judge 1

1. The Trial Judge’s Authority 1

2. The Trial Judge’s Discretion 1

*NB: This outline accords with Sklansky, Evidence: Cases, Commentary and Problems 4th ed.

Chapter 1. Introduction to Evidence Law

D. The Role of the Trial Judge

1. The Trial Judge’s Authority

FRE 104. Preliminary Questions

• (a) In General. The Court must decide any preliminary questions about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

Advisory Committee note to FRE 104(a)

• Applicability of a particular rule of evidence often depends upon the existence of a condition: e.g., is the alleged expert a qualified physician? If the question is factual in nature, the judge considers evidence pro and con on the issue. Practical necessity leads the judge, when determining admissibility, to hear evidence without regard to exclusionary rules: a piece of evidence offered and objected to may itself be considered in ruling on admissibility.

2. The Trial Judge’s Discretion

FRE 103. Rulings on Evidence

• (a) Preserving a Claim of Error. Party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

  • (1) if the ruling admits the evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or

  • (2) if the ruling excludes the evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

• (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record—either before or at trial—a party need not renew objection or offer proof to preserve a claim of error for appeal.

• (c) Court’s Statement About the Ruling; Directing an Offer of Proof. Court may make any statement about character or form of evidence, objection made, and ruling. Court may direct an offer of proof be made in question-and-answer form.

• (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, court must conduct jury trial so inadmissible evidence is not suggested to jury by any means.

• (e) Taking Notice of Plain Error. Court may take notice of plain error affecting substantial right, even if claim of error was not properly preserved.

Park et al., Evidence Law

• FRE, like FRCivP and FRCrimP, mandates courts disregard errors not affecting substantial rights of the parties. Reversible or prejudicial error must affect substantial rights. Definition of substantial rights is vague, and prejudice is determined on case-by-case basis.

• Courts differ on degree of certainty required to find error harmless.

  • 9th Cir. uses “more probable than not” for nonconstitutional errors; 3rd Cir. requires reversal unless harmlessness is “highly probable”; 5th Cir. requires reversal unless “sure” error did not influence or had very slight effect on jury verdict.

• If party opposing admission did not object, objected on wrong ground, or failed to specify ground, appellate court will reverse only if trial judge’s admission was “plain error.” Plain error is not easily defined and allows substantial judicial discretion, considering facts of case, gravity of offense, and probably...

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