Maria-Elena James, Magistrate Judge
United States District Court
Northern District of California
NOTES TO CLASS:
Class meets Mon, Wed, Fri 6:30-8:55pm; starting Wed June 2
and ends July 19th; July 5th is a holiday
You will be divided randomly into discussion groups.
There are a number of cases you must look up outlined in the
syllabus; Pick up Lexis FRE copies (free) from the Library
Missing more than two classes during the summer session will
lower your final grade by half a letter grade
Final Exam is on July 26th at 6:30. Please check with Ben
Leung for any changes.
The Powerpoint slides and handouts are on sale for $25.00.
You must bring these to class each time
California Evidence Law is on the 2007 Bar.
Federal Rules of Evidence 101
These rules govern
proceedings in the courts
of the United States and
before the United States
bankruptcy judges and the
United States magistrate
judges, to the extent and
with the exceptions stated
in Rule 1101.
Federal Rules of Evidence 102
Purpose 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 proceedings
Federal Rules of Evidence 103(a)
Motion to Strike
(1) 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. . .
When to Make Motion to Strike
1. The question is proper but the
witness‟s answer is improper.
2. The witness answers so rapidly that
the opponent did not have a fair
opportunity to interpose an objection.
3. After the witness has given
apparently proper testimony, it
develops that the testimony was
improper....i.e., he admits he was
testifying from hearsay rather than his
Elements of a Motion to Strike
1. The opponent addresses the Judge.
2. The opponent indicates that he or she is
moving to strike.
3. The opponent specifies what he or she
is moving to strike
4 The opponent specifies the legal
ground for the motion.
5. If the Judge grants the motion, the
opponent requests a curative
instruction to disregard.
Curative Instruction to
Motion to Strike Hypothetical
Burglary prosecution. The defendant
has a number of prior burglary
arrests. Prosecution witness is the
arresting officer. The officer is
testifying that he observed the
burglary in progress. The proponent
is the prosecutor.
Federal Rules of Evidence 103(a)
Offer of Proof
(2) 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
Elements of Offer of Proof
1. The proponent asks for permission to approach the
bench or for an out-of court hearing.
2. The proponent states that he or she intends to
make an offer of proof.
3. The proponent states what the witness would have
testified to if the judge had permitted the
proponent to pursue the line of inquiry.
4. The proponent states the purpose for which he or
she wanted to offer the testimony. The proponent
explains the testimony‟s logical relevance.
5. The proponent explains why the evidence is
Offer of Proof Hypothetical Case
Drumond is the defendant in a rape
prosecution. Not only does Drumond
deny the rape but, he denies ever
having intercourse with the victim.
Drumond’s Attorney, Ms. Pem, calls
Dr. Gerhard as her next witness. Mr.
Oliver is the prosecuting attorney.
Federal Rules of Evidence 103(c)
Motion in Limine
(c) 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.
Motion in Limine - Definition
“in limine” – on or at the threshold;
at the very beginning; preliminarily.
Any motion, whether used before or
during trial, by which exclusion is
sought of anticipated prejudicial
Elements of a Motion in Limine
1. The opponent states his or her intent to move „in
limine‟ to exclude evidence.
2. The opponent has reason to believe that the
proponent possesses the evidence and will offer it
3. The opponent briefly states the ground on which
the evidence is inadmissible. This must be done
with the same specificity with which it would be
made at trial as an objection.
4. The opponent explains why an ordinary trial
objection would be inadequate protection for the
5. The opponent presents the legal argument in
favor of the motion.
Laying a Foundation for
The most important legal rule is that the
proponent of an item of evidence must
ordinarily lay a foundation before formally
offering the item into evidence.
Evidence law which makes proof of a fact
or event a condition before an item may
be received governs the subject matter
Federal Rules of Evidence 104(a)
(a) Preliminary questions
concerning the qualifications 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 of
subdivision (b). In making its
determination it is not bound by
the rules of evidence except
those with respect to privileges.
CEC §310. QUESTIONS OF LAW FOR COURT
(a) All questions of law (including but not limited to questions
concerning the construction of statutes and other writings, the
admissibility of evidence, and other rules of evidence) are to
be decided by the court. Determination of issues of fact
preliminary to the admission of evidence are to be decided by
the court as provided in Article 2 (commencing with §400) of
(b) Determination of the law of an organization of nations or
of the law of a foreign nation or a public entity in a foreign
nation is a question of law to be determined in the manner
provided in Division 4 (commencing with §450).
CEC §403. DETERMINATION OF FOUNDATIONAL AND OTHER PRELIMINARY FACTS
WHERE RELEVANCY, PRIOR KNOWLEDGE, OR AUTHENTICITY IS DISPUTED
The proponent of the proffered evidence has the burden of producing evidence as
to the existence of the 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:
• The relevance of the proffered evidence depends on the existence of the
• The preliminary fact is the personal knowledge of a witness concerning the
subject matter of his testimony;
• The preliminary fact is the authenticity of a writing; or
• 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.
(b) Subject to Section 702, the court may admit conditionally the proffered
evidence under this section, subject to evidence of the preliminary fact being
supplied later in the course of the trial.
(c) If the court admits the proffered evidence under this section, the court:
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.
Shall instruct the jury to disregard the proffered evidence if the court
subsequently determines that a jury could not reasonably find that the
CEC §405. DETERMINATION OF FOUNDATIONAL AND
PRELIMINARY FACTS IN OTHER CASES
With respect to preliminary fact determinations not governed by
§§403 or 404:
(a) When the existence of the preliminary fact is disputed, the
court shall indicate which party has the burden of producing
evidence and the burden of proof on the issue as implied by the
rule of law under which the question arises. The court shall
determine the existence or nonexistence of the preliminary fact and
shall admit or exclude the proffered evidence as required by the
rule of law under which the question arises.
(b) If a preliminary fact is also a fact in issue in the action:
The jury shall not be informed of the court’s determination as to
the existence or nonexistence of the preliminary fact.
If the proffered evidence is admitted, the jury shall not be
instructed to disregard the evidence if its determination of the 26
Request by Opponent to
Take a Witness on Voir Dire
“Voir dire” - Definition
“To speak the truth.”
This phrase denotes (1) the preliminary
examination that the court and attorneys
make of prospective jurors to determine
their qualification and suitability to serve
as jurors or; (2) preliminary examination
of a witness to demonstrate a lack of
qualification or foundation for proffered
Voir Dire Hypothetical Case
Homicide prosecution. The prosecution
witness is an ambulance attendant. The
prosecutor hopes to elicit the ambulance
attendant‟s testimony that he heard the
decedent identify the defendant as the
assailant. The prosecutor‟s theory is that the
decedent‟s statement falls within the dying
declaration exception to the hearsay rule.
The proponent of the testimony is the
prosecutor named Ms Perry. Witness is
named Willie. The defense Attorney is
named Mr Oliver.
Federal Rules of Evidence 104(b)
Relevancy Conditioned on Fact
(b) 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
Advisory Committee Note to
There is no problem of conditional
relevance for example with
“evidence in a murder case that
the accused on the day before
purchased a weapon of the kind
used in the killing.”
Under Rule 104(b)
The traditional practice where evidence is
presented that is subject to exclusion on
an objection that its relevancy has not
been shown or that it lacks adequate
foundation, the judge may admit the
evidence conditionally upon counsel’s
promise to “connect it up” later.
Defendant agrees to undergo polygraph
examination. The Judge excluded the results of
the test itself. The defendant then seeks to
introduce the fact that he had submitted to the
test even after he was warned that the
technique effectively detected deceit. His
attorney argues that the relevance of the
consent to the examination was that it tended to
prove his consciousness of innocence. Shall the
evidence be admitted?
Federal Rules of Evidence 104(c)
Hearing of Jury
(C) 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.
Cox v. State
Cox is charged
with the murder
To establish motive for the
killing, the State wishes to
call David Puckett, who
will testify that Helene
Johnson was present at
bail hearing for Jamie
Hammer. At the time
Hammer was charged with
Cox v. State
Objection. Your Honor, What is the
Your Honor, Mrs. Johnsons‟
relevance of this witnesses testimony.
testimony a probative in
Mrs. Johnson is neither isparty to these proving
nor defendants knowledge and
proceedings the a percipient witness to
motivation for killing Mr. Leonard.
the events of this case.
How extensive is Defendants’ relationship
with the witness?
How likely is it that he would have received
information about Hammers’ bail hearing from Mrs.
Are there enough supporting factual
circumstances that a jury could infer
the condition exists?
Cox v. State
Due to the relationship that exists between Cox and the
witness. Their daily interaction over a period of many years.
And that Mr. Coxs’ alleged victim is father to Mr. Hammers’
victim, the testimony is probative of Mr. Coxs’ motive.
REVIEW OF FRE: 104 (a) + (b)
104 (a) embodies the orthodox common-law
doctrine that the judge, not the jury, decides
preliminary questions of fact that determine the
admissibility of evidence. (i.e., competence,
104(b) gives to the jury issues that go only to
the relevancy, as opposed to the competency, of
evidence. The judge exercises only the usual
judicial control over jury fact issues. The judge
permits the issue to proceed to the jury only if
there is “evidence sufficient to support a finding
of” the fact.