Rule 103Preserving Error

What is an evidentiary issue?

• Sense 1 -- Has the evidence persuaded the jury?

• Sense 2 -- Should the jury be permitted to consider the evidence?

Which do we worry about in this class?

• Sense 1 -- Has the evidence persuaded the jury?

• Sense 2 -- Should the jury be permitted to consider the evidence?

Which do we worry about in this class?

• Sense 1 -- Has the evidence persuaded the jury?

• Sense 2 -- Should the jury be permitted to consider the evidence?

“Evidence” is really a course in Admissibility & Exclusion.

Suppose a Judge decides that evidence should not be considered?

What can Judge do?

• Keep Jury from hearing it• Tell Jury to disregard it• Tell Jury to consider it only for

limited purpose• Ignore it on JAML

How does Judge keep jury from hearing evidence?

What did Smith say then? Objection

HearsaySustained

Everybody knows he is

How does Judge keep jury from hearing evidence?

Isn’t it true that P is a dope dealing

child molester

ObjectionIrrelevant, Prejudicial, etc.

Objection Sustained

Move to StrikeJury Will

DisregardThat Answer

Everybody knows he is

Has This Prevented Jury from Considering the Evidence?

Isn’t it true that P is a dope dealing

child molester

Is he

happy?

Everybody knows he is

How Does Opponent Really Keep the Jury from Considering It?

Isn’t it true that P is a dope dealing

child molester

I Move for a Mistrial!Mistrial

Granted

Jury in New Trial Never Hears the Evidence

Mr. Smith Said P was there.

How Does Judge Tell Jury to Disregard Evidence

What Happened Then?

Move to Strike. Non-Responsive & Hearsay.

Sustained. Jury Will Disregard.

Other Ways of Telling Jury to Disregard Evidence

The evidence of P’s receipt of unemployment compensation is withdrawnfrom the case and you should not considerit in determining the amount of damages,

if any, to which P is entitled.

Withdrawal Instruction

Other Ways of Telling Jury to Disregard Evidence

The evidence of P’s wealth is not to be considered unless

you first find that P is entitled to recover punitive damages.

Contingent

Withdrawal Instruction

If you believe that is effective, I have a bridge for sale

Other Ways of Telling Jury to Disregard Evidence

Your verdict shall be for P if you believe:•D ran the red light, and•D was thereby negligent, and•As a direct result, P was injured.

Verdict Directing

Instruction

Notice: I didn’t say anything about all his

money!

Rule 103:Preserving Error

Preserving Error (Opponent)

• Substantial Right Affected, and

• Objection or MTS

–Timely

–Specific

–On the Record

–Unless Plain Error

Error Meter

Har

mle

ssPlain

Reversible

Preserving Error (Opponent)

• Objection is timely if–Before answer (if possible)–If not possible,

• Object & • Move To Strike• ASAP

–Special Rule if Judge asked question

Preserving Error (Opponent)

• Objection is specific if–States a basis–It’s the right basis–It’s not too general–It’s not “masked”–It deals with partial admissibility problems

Preserving Error (Proponent)

• Substantial Right Affected, and

• Offer of proof made–Unless

• Exclusion is plain error, or

• Substance of answer apparent from

–context or

–question.

Problem 14A

Do Problem 14A

(Worksheet)

Problem 14A

Do Problem 14A (Bad

Objections)

Problem 14B

Do Problem 14B

Problem 14BMedical Bill

Drugs $1,001.00

Doctor $9,999.00

X-Ray $1,000.00

Total 12,000.00

Insurance -9,000.00

Net $3,000.00

Problem 15

Do Problem 15