Introduction 1. Federal Rules: a. 102—Purposes and Construction: These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceeding justly determined b. 103—Rulings on Evidence: i. Effect of erroneous ruling: Error may NOT be predicated upon a ruling which admits or excludes evidence UNLESS a substantial right of the party is affected, AND 1. Objection—In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was NOT apparent from the context; or 2. Offer of proof—In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked 3. Once the court makes a definitive ruling of the record admitting or excluding evidence, either at or before trial, a party need NOT renew an objection or offer of proof to preserve a claim of error for appeal ii. Record of offer and ruling: The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. iii. Hearing of jury: In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury iv. Plain error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were NOT brought to the attention of the court c. 104—Preliminary Questions: i. Questions of admissibility generally: Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions below. In making its determination it is NOT bound by the rules of evidence except those with respect to privileges. ii. Relevancy conditioned on fact: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition iii. Hearing of jury: Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require, or when an accused is a witness and so requests iv. Testimony by accused: The accused does NOT, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case v. Weight and credibility: This rule does NOT limit the right of a party to introduce before the jury evidence relevant or credibility d. 1101—Applicability of Rules i. Courts and Judges: These rules apply to US district courts, the District Court of Guam, District Court of Virgin Islands….Northern Mariana Islands, US court of appeals, US Claims Court, and to US bankruptcy judges and US magistrate judges, in the actions, cases and proceedings and to the extent hereinafter set forth. The terms „judge‟ and „court‟ in these rules include US bankruptcy judges and US magistrate judges ii. Proceedings generally: These rules apply generally to civil actions and proceedings, including admiralty and maritime cases, to criminal cases and proceedings, to contempt proceedings except those which the court may act summarily, and to proceedings and cases under title 11, US Code iii. Rule of privilege: The rule with respect to privileges applies at all stages of all actions, cases, and proceedings iv. Rules inapplicable: The rules (other than with respect to privileges) do NOT apply in the following situations: 1. Preliminary questions of fact—the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under 104
2. Grand jury—proceedings before grand juries 3. Miscellaneous proceedings—proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses, and search warrants; and proceedings with respect to release on bail or otherwise v. Rules applicable in part: … 2. California Rules: a. 353—Effect of erroneous admission of evidence: a verdict or finding shall NOT be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the erroneous admission of evidence UNLESS: i. There appears of record an objection to or a motion to exclude or to strike the evidence that was timely made and so stated as to make clear the specific ground of the objection or motion; and ii. The court which passes upon the effect of the error or errors is of the opinion that the admitted evidence should have been excluded on the ground stated and that the error or errors complained of resulted in a miscarriage of justice b. 354—Effect of erroneous exclusion of evidence: A verdict or finding shall NOT be set aside, nor shall the judgment or decision based thereon be reversed, by reason of erroneous exclusion of evidence UNLESS the court which passes upon the effect of the error or errors is of the opinion that the error or errors complained of resulted in a miscarriage of justice and it appears of record that: i. The substance, purpose, and relevance of the excluded evidence was made known to the court by the questions asked, an offer of proof, or by any other means; ii. The rulings of the court made compliance with (i) futile; or iii. The evidence was sought by questions asked during cross-examination or re cross-examination c. 310—Questions of law for court: i. All questions of law (including but not limited to question concerning the construction of statutes and other writings, the admissibility of evidence, and other rules of evidence) are to be decided by the court. ii. Determination of the law of an organization of an organization of nations or the law of a foreign nation or a public entity in a foreign nation is a question of law to be determined d. 312—Jury as trier of fact: Except as otherwise provided by law, where the trial is by jury: i. All questions of fact are to be decided by the jury ii. Subject to the control of the court, the jury is to determine the effect and value of the evidence addressed to it, including the credibility of witnesses and hearsay declarants e. 400—Preliminary fact: “Preliminary fact” means a fact upon the existence or nonexistence of which depends the admissibility or inadmissibility of evidence. The phrase “the admissibility or inadmissibility of evidence” includes the qualification or disqualification of a person to be a witness and the existence or nonexistence of a privilege f. 401—Proffered evidence: “Proffered evidence” means evidence, the admissibility or inadmissibility of which is dependent upon the existence or nonexistence of a preliminary fact g. 405—Determination of foundational and other preliminary facts in other cases: WRT preliminary fact determinations not governed by § 403/404… i. When the existence of a preliminary fact is disputed, the court shall indicate which party has burden of producing evidence and the BOP on the issue as implied by the rule of law under which the question arises. The court shall determine the existence or nonexistence of he preliminary fact and shall admit or exclude the proffered evidence as required by the rule of law under which the question arises ii. If a preliminary fact is also a fact in issue the action: 1. The jury shall NOT be informed of the court‟s determination as to the existence or nonexistence of the preliminary fact 2. If the proffered evidence is admitted, the jury shall NOT be instructed to disregard the evidence if its determination of the fact differs from the court‟s determination of the preliminary fact h. 403—Determination of foundation al and other preliminary facts where relevancy, personal knowledge, or authenticity is disputed:
i. The proponent of the proffered evidence has the burden of producing evidence as to the existence of preliminary fact, and the proffered evidence is inadmissible unless the court finds that there is evidence sufficient to sustain a finding of the existence of the preliminary fact, when: 1. The relevance of the proffered evidence depends on the existence of the preliminary fact; 2. The preliminary fact is the personal knowledge of a witness concerning the subject matter of his testimony; 3. The preliminary fact is the authenticity of a writing; or 4. The proffered evidence is of a statement or other conduct of a particular person and the preliminary fact is whether that person made the statement or so conducted himself ii. The court may admit conditionally the proffered evidence under this suction, subject to evidence of the preliminary fact being supplied later in the course of the trial iii. If the court admits the proffered evidence, the court: 1. May, and on request shall, instruct the jury to determine whether the preliminary fact exists and to disregard the proffered evidence UNLESS the jury finds that the preliminary fact does exist 2. Shall instruct the jury to disregard the proffered evidence if the court subsequently determines that a jury could NOT reasonably find that the preliminary fact exists