One of the cornerstones of the United States’ criminal justice system is the principle that every person is “innocent until proven guilty.” The tool by which guilt is proven is evidence. This, of course, applies to civil cases as well. In fact, every finding of fact that is made by every court is based on evidence. The rules of evidence, which are the focus of this course, comprise the user manual for doing so. These rules lay out the “do’s” and “don’t’s” of evidence. Each state has its own version of its rules of evidence, though there are also the “Federal” Rules of Evidence, which apply in federal courts. While differences exist, the federal rules represent a sample set of rules that is representative of the evidentiary rules that are applied in state courts, as well.
In this module, we will introduce the Federal Rules of Evidence. We will discuss when the federal rules apply, when evidence can be challenged, the types of evidentiary decisions made and appellate standards of review.
Congress originally enacted the Federal Rules of Evidence in 1975. The Supreme Court wrote the original version of the federal rules and the rules remain substantially similar to this day. However, case law and legislative changes have effected some changes the rules over the last forty years.
The purpose of the federal rules is “to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.” Rule 1101 provides that the rules govern the introduction of evidence in civil and criminal trials in federal courts.
The federal rules do not apply to the following situations:
- grand jury proceedings;
- when determining whether a warrant will issue;
- bail proceedings; and
- preliminary question determinations
Each of these proceedings, administrative proceedings, arbitration proceedings and certain family court proceedings also may be governed by different sets of evidentiary rules and customs.
Before delving into the specific evidence rules, let’s take a moment to understand some of the nuances of evidence law.
If it is unclear whether evidence can be admitted at trial, its admissibility, or lack thereof, may be determined at a preliminary question hearing. The parties may present their intention to proffer various pieces of evidence or challenge evidence that they anticipate the other party will seek to introduce. In this proceeding, conducted in front of the judge but not in front of the jury, the judge can rule on admissibility. These determinations may include, for example, whether an evidentiary privilege exists, whether an expert witness is qualified to testify and/or whether any exception to the hearsay rule applies to anticipated testimony. The preliminary hearing promotes trial efficiency because the judge can exclude certain evidence and settle the admissibility of other, admissible evidence at the outset. This can also ensure that these confusing evidentiary arguments don’t take place in front of the jury, which could otherwise potentially confuse and bias them.
Not every piece of evidence presented at trial must be supported with formal proof. Under Federal Rule 201, judicial notice allows a judge to assume a fact even if unsupported by the introduction of evidence at trial. By taking judicial notice, the court establishes that information is true for the purpose of the trial. The fact must be so well-known, obvious or self-evident that it can’t be reasonably doubted, or it can be verified by a reliable source that leaves little doubt as to its truth.
With the advent of the Internet, the definition of “reliable” source has changed. In the case United States v. Kelly, the defendant challenged his conviction for drug-trafficking offenses. He asserted that there was insufficient evidence for a reasonable jury to find that the two charged crimes took place in Weber County, Utah, since there was no evidence introduced that the crime happened in that county. The court used MapQuest, a popular online web mapping service, to take judicial notice of the fact that the locations at issue were in the county.
The court held that there is no requirement of direct proof of venue and that the government determining whether an offense took place within a geographic location was an appropriate subject for judicial notice. As such, the lower court didn’t err when it took judicial notice that the offenses took place in Utah because MapQuest validated that Weber County is in Utah.
Not all websites are created equally, however, and not all qualify as reliable sources. In a case involving a copyright infringement dispute, Capcom Co. v. MKR Grp., Inc., a court declined to take judicial notice of a Wikipedia list of zombie movies, a fact that was critical to the case. First, a Wikipedia article “may be, at any given moment, in a bad state […] it could be in the middle of a large edit or it could have been recently vandalized.” Second, Wikipedia articles are “also subject to remarkable oversights and omissions.” Finally, many contributors to Wikipedia do not cite their sources, which makes it hard for a reader to judge the credibility of what is written.
Examples of facts subject to judicial notice because they’re common knowledge or because they can be easily verified by reliable sources include:
- geographical facts, such as the location of a city;
- political facts, such as the identity of the governor of a certain state in a given year;
- economic facts, such as the Consumer Price Index; and
- religious facts, such as the beliefs and practices of well-known religions.
Taking judicial notice is a simplification process and its purpose is to conduct a trial more efficiently. It would waste both the court’s and jury’s time if attorneys had to prove every obvious fact by formal proof. It is self-evident, for example, why it makes no sense to require a party to call a meteorologist to the stand to testify that it was raining on a given day, when well-supervised meteorological data can reliably show that it is true.
Objecting to Evidence
If a party seeks to introduce objectionable evidence, the other party can seek to deny its admission through objection. Moreover, even if the evidence is introduced, it can be limited in scope or in the purposes for which it is introduced.
The party seeking to preclude the evidence must object to it in a timely fashion. Rule 103 of the Federal Rules of Evidence provides that a party “may claim error in a ruling to admit or exclude evidence” and object to it. A party can object to the introduction of certain evidence for myriads of reasons. For example, the evidence may be irrelevant, privileged, not authenticated or it can be cumulative and a waste of the court’s time.
An objection to evidence must be made at the time it’s introduced or at the earliest opportunity. The first reason timeliness is required is that the time of introduction is when a judge can be most helpful if he sustains an objection. For example, objecting as soon as an objectionable question is asked before it is answered may prevent the answer from ever being stated on open court. Objecting after the question is answered may bring a judicial admonition to the jury to ignore the answer, but just as one cannot un-ring a bell, one cannot ensure that the jury will truly ignore testimony that it has heard merely because a judge instructs it to.
Additionally, if an objection isn’t timely, it’s not “preserved” and it cannot be referenced on appeal. The attorney will no longer have the right to argue on appeal that a mistake was made when the evidence was introduced.
A judge can limit the scope of admitted evidence with a limiting instruction. A piece of evidence may be admissible for one purpose but not another. With a limiting instruction, the judge informs the jury that it can only use the evidence for a certain purpose but may not consider it in other parts of its decision-making process. An effective limiting instruction should be customized to allow a jury to “effectively distinguish appropriate from inappropriate inferences.” The judge must tell jurors, “in plain language” the specific purpose for which the evidence is offered and that they should not draw any conclusions about other issues. For example, a judge might allow questions about a defendant’s history of tax evasion to show that his testimony is unreliable, but not to show that he has a tendency to break the law.
For example, in United States v. Jones, the defendant signed a written confession that he had been dealing drugs and that the crack cocaine the police had found during a search of his home was his. During his prosecution, the government produced evidence of his prior conviction for unlawful delivery of a controlled substance. The judge admitted the evidence, but provided the following limiting instruction
“Ladies and gentlemen of the jury, the [prior conviction] provides evidence of other crimes, wrongs, or acts. It is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes such as proof of intent […] You should consider this evidence only for this limited purpose and for no other purpose.”
On appeal, the defendant argued that the evidence of his prior conviction was prejudicial and that the limiting instruction was ineffective. The higher court disagreed and found that there was no prejudice because the limiting instruction was concrete and specific enough so that the jury understood what it could do with the evidence.
Appealing an Evidentiary Determination
If a party believes that evidence was improperly admitted, she may file an appeal, assuming the appellant’s attorney preserved the claim of error with a timely objection at the time of the alleged mistake.
Though most appeals take place after a trial has ended, in some cases, an appeal may be made during a judicial proceeding, which is called an interlocutory appeal. A party may file a petition with the appellate court for an interlocutory appeal at any stage of the proceeding.
In response to the filing, either the presiding judge or the appellate judge may issue an interlocutory order that halts the court proceedings until settlement of the interlocutory appeal. An interlocutory appeal is appropriate when evidence has been admitted in error and the decision to admit the evidence must be immediately reversed to avoid irreparable harm. Irreparable harm occurs when damage has been done that cannot be monetarily compensated for nor restored to its original condition.
Let’s discuss an example of when an interlocutory appeal may be appropriate. Imagine a professional athlete’s doctor is on the witness stand and has just been asked to tell the jury all of the athlete’s medical problems. The athlete’s attorney objects and says that this is inadmissible because the information is protected by the doctor-patient privilege. The judge rules that there is no doctor-patient privilege in this situation and allows the doctor to discuss the athlete’s medical problems. If this information goes public, the athlete may lose endorsement deals, lose contract extensions and possibly even lose his career altogether––none of which are consequences that could easily be fixed. The athlete’s attorney can file for an interlocutory appeal, and on appeal, he’ll argue that the evidentiary determination regarding doctor-patient privilege must be reversed to avoid irreparable harm.
Standards of Review
An appellate court reviewing a case must first determine the standard under which it judges the issue. This is called the standard of review. It determines how much deference the appellate court gives to the lower court’s decision. The two most important standards of review for appealing evidentiary rulings are de novo and clearly erroneous.
Under the de novo standard of review, an appellate court does not defer to the lower court’s decision. The appellate court must examine the case as if it had come for the first time before the appellate court. De novo review is appropriate when the issue on appeal is “a legal question,” i.e., a question about the interpretation or application of a law. For example, in United States v. Mateo-Mendez, the defendant appealed the lower court’s determination that a piece of evidence was admissible. The appellate court noted that both parties agreed on the existence and depiction of all the facts in the case. Therefore, the issue on appeal was solely about whether the rules regarding admissibility were appropriately applied. The admissibility question in that case was legal, not factual, so de novo review was appropriate.
Reviews of factual determinations by the lower court are reviewed under the clearly erroneous standard of review. This standard recognizes the trial court’s role as the primary fact-finder. Therefore, when deciding issues of fact, appellate courts start with the assumption that the trial judge was in the best position to make the determination and will reverse only when the trial judge’s decision was “clearly erroneous.” This occurs when the appellate court, in considering the entire body of evidence, is left with the definite and firm conviction that a mistake has been made by the trial judge.
In our next module, we will look at the rules surrounding the introduction of character evidence and the circumstances under which this normally prohibited category of evidence may be admitted.
 Federal Rules of Evidence, The National Court Rules Committee, www.rulesofevidence.org.
 Federal Rules of Evidence, December 1, 2017, Government Publishing Office, https://bookstore.gpo.gov/products/federal-rules-evidence-december-1-2017.
 Fed. R. Evidence 102.
 Fed. R. Evidence 1101(b).
 Charles H. Barnett & Sara E. Barnett, Determining Admissibility of Evidence, Spragins Barnett & Cobb, https://www.spraginslaw.com/Articles/Determining-Admissibility-of-Evidence-by-Charles-H-Barnett-III-and-Sara-E-Barnett.shtml.
Fed. R. Evidence 104.
Fed. R. Evidence 201.
 See Cupey Bajo Nursing Home, Inc. v. United States, 36 Fed. Cl. 122, 134 (1996).
 Fed. R. Evidence 201(b)(2); Capcom Co. v.MKR Grp., Inc., 2008 WL 4661479 at *4 (N.D. Cal. 2008).
 United States v. Kelly, 535 F.3d 1229, 1232, 1236-37 (10th Cir. 2008).
Capcom Co. v. MKR Grp., Inc., 2008 WL 4661479 at *4 (N.D. Cal. 2008).
 Campbell v. Sec’y of HHS, 69 Fed. Cl. 775, 781 (Ct. Fed. Cl. 2006).
 1 Weinstein’s Federal Evidence § 201.12 (2018)
Fed. R. Evidence 103.
Fed. R. Evidence 105.
 United States v. Jones, 455 F.3d 800, 809, 811-12 (2006).
 Interlocutory Appeals Law and Legal Definition, U.S. Legal, https://definitions.uslegal.com/i/interlocutory-appeals/.
 What is a Standard of Review in an Appeal, HG.org, https://www.hg.org/article.asp?id=31627.
 United States v. Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000).
Kelly Kunsch, “Standard of Review (Stateand Federal): A Primer,” 18 Seattle U. L. Rev. 11, 24 (1994).