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Thomson Reuters

Chapter 11

GENERAL AND MISCELLANEOUS PROVISIONS

Table of Sections

Sec.

11.00 Scope of the Federal Rules and Evidence Code.

11.01 Construction of the Rules.

11.02 Amendments.

11.03 Title.

11.04 Rulings on Evidence.

11.05 Limited Admissibility.

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§ 11.00 Scope of the Federal Rules and Evidence Code

FEDERAL RULES OF EVIDENCE

Rule 101. Scope; Definitions

(a) Scope. These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.

(b) Definitions. In these rules:

(1) "civil case" means a civil action or proceeding;

(2) "criminal case" includes a criminal proceeding;

(3) "public office" includes a public agency;

(4) "record" includes a memorandum, report, or data compilation;

(5) a "rule prescribed by the Supreme Court" means a rule adopted by the Supreme Court under statutory authority; and

(6) a reference to any kind of written material or any other medium includes electronically stored information.

Rule 1101. Applicability of the Rules

(a) To Courts and Judges. These rules apply to proceedings before:

• United States district courts;

• United States bankruptcy and magistrate judges;

• United States courts of appeals;

• the United States Court of Federal Claims; and

• the district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.

(b) To Cases and Proceedings. These rules apply in:

• civil cases and proceedings, including bankruptcy, admiralty, and maritime cases;

• criminal cases and proceedings; and

• contempt proceedings, except those in which the court may act summarily.

(c) Rules on Privilege. The rules on privilege apply to all stages of a case or proceeding.

(d) Exceptions. These rules--except for those on privilege--do not apply to the following:

(1) the court's determination, under Rule 104(a), on a preliminary question of fact governing admissibility;

(2) grand-jury proceedings; and

(3) miscellaneous proceedings such as:

• extradition or rendition;

• issuing an arrest warrant, criminal summons, or search warrant;

• a preliminary examination in a criminal case;

• sentencing;

• granting or revoking probation or supervised release; and

• considering whether to release on bail or otherwise.

(e) Other Statutes and Rules. A federal statute or a rule prescribed by the Supreme Court may provide for admitting or excluding evidence independently from these rules.

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CALIFORNIA EVIDENCE CODE

§ 300. Applicability of code

Except as otherwise provided by statute, this code applies in every action before the Supreme Court or a court of appeal or superior court, including proceedings in such actions conducted by a referee, court commissioner, or similar officer, but does not apply in grand jury proceedings.

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Comparative Note. These provisions list the courts in which the Federal Rules of Evidence and the California Evidence Code apply. The most notable are the trial and appellate courts. The Federal Rules do not apply in grand jury proceedings or preliminary examinations. The Evidence Code does not apply in grand jury proceedings but does apply to preliminary hearings. As discussed in § 8.47, hearsay that may be inadmissible at a trial may be offered in California preliminary hearings under some circumstances.

§ 11.01 Construction of the Rules

FEDERAL RULES OF EVIDENCE

Rule 102. Purpose

These rules should be construed so as 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.

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CALIFORNIA EVIDENCE CODE

§ 2. Abrogation of common law rule of strict construction; liberal construction

The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to this code. This code establishes the law of this state respecting the subject to which it relates, and its provisions are to be liberally construed with a view to effecting its objects and promoting justice.

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Comparative Note. These provisions are designed to guide judges in the construction of the Rules and the Evidence Code.

§ 11.02 Amendments

FEDERAL RULES OF EVIDENCE

Rule 1102. Amendments

These rules may be amended as provided in 28 U.S.C. § 2072.

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Comparative Note. Congress may amend the Rules. The California Legislature may amend the Code.

§ 11.03 Title

FEDERAL RULES OF EVIDENCE

Rule 1103. Title

These rules may be cited as the Federal Rules of Evidence.

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CALIFORNIA EVIDENCE CODE

§ 1. Short title

This code shall be known as the Evidence Code.

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Comparative Note. These provisions state the form in which the Rules and Code may be cited.

§ 11.04 Rulings on Evidence

FEDERAL RULES OF EVIDENCE

Rule 103. Rulings on Evidence

(a) Preserving a Claim of Error. A 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 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 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 an objection or offer of proof to preserve a claim of error for appeal.

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

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

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

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CALIFORNIA EVIDENCE CODE

§ 353. Erroneous admission of evidence; effect

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:

(a) 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

(b) 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.

§ 354. Erroneous exclusion of evidence; effect

A verdict or finding shall not be set aside, nor shall the judgment or decision based thereon be reversed, by reason of the 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:

(a) 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;

(b) The rulings of the court made compliance with subdivision (a) futile; or

(c) The evidence was sought by questions asked during cross-examination or recross-examination.

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Comparative Note. Rule 103(a) and Code § 353 embody the Common Law rule that imposes upon the opposing party the obligation to object to inadmissible evidence. The failure to object carries a penalty: the use of erroneously admitted evidence may not be raised on appeal.

Under the Rules and the Code, the objection must be timely and specific. Ordinarily, timeliness requires the party opposing the evidence to object at the conclusion of a question calling for inadmissible matter; if the inadmissible nature of the matter cannot be determined until after it has been disclosed, the Rules and the Code require the opposing party to move to strike the matter.

Specificity requires the objecting party to state the ground upon which the objection is based. Rule 103(a) dispenses with this requirement whenever the ground is apparent from the context. The Code does not expressly allow this dispensation.

Rule 103(a) and § 354 impose upon a party complaining about the exclusion of evidence the obligation to make an offer of proof. The offer must inform the judge of the substance, purpose, and relevance of the excluded evidence. The failure to make an offer like the failure to make an objection carries a penalty: the exclusion of the evidence may not be raised on appeal.

Rule 103(d) embodies the federal plain error doctrine. It permits federal appellate courts to notice plain errors affecting substantial rights even if they were not brought to the attention of the trial judge. There is no counterpart under the Code.

Parties often use motions in limine to exclude matter which they believe should be inadmissible at the trial. Motions in limine are usually made before the trial. If a judge denies a motion to exclude, in California the opponent of the evidence should renew the objection at the time the evidence is offered. The failure to renew the objection can preclude appellate review of the use of the evidence.1 In federal courts, an amendment to Rule 103 dispenses with the need to renew the objection at trial if the in limine ruling was definitive.

§ 11.05 Limited Admissibility

FEDERAL RULES OF EVIDENCE

Rule 105. Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes

If the court admits evidence that is admissible against a party or for a purpose--but not against another party or for another purpose--the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

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CALIFORNIA EVIDENCE CODE

§ 355. Limited admissibility

When evidence is admissible as to one party or for one purpose and is inadmissible as to another party or for another purpose, the court upon request shall restrict the evidence to its proper scope and instruct the jury accordingly.

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Comparative Note. Both the Rules and the Code recognize that when evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.