Rule 103 Preserving Error

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Rule 103Preserving Error
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What is an evidentiary issue?

• Sense 1 -- Has the evidence persuaded the jury?
• Sense 2 -- Should the jury be permitted to
  consider the evidence?

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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?

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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?

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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

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How does Judge keep jury from hearing evidence?
What did Smith say then?
Objection
Hearsay
Sustained
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How does Judge keep jury from hearing evidence?
Isnt it true that P is a dope dealing child
molester
Objection
Move to Strike
Irrelevant, Prejudicial, etc.
Jury Will Disregard That Answer
Objection Sustained
Everybody knows he is
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Has This Prevented Jury from Considering the
Evidence?
Isnt it true that P is a dope dealing child
molester
Everybody knows he is
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How Does Opponent Really Keep the Jury from
Considering It?
Isnt it true that P is a dope dealing child
molester
I Move for a Mistrial!
Mistrial Granted
Everybody knows he is
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Jury in New Trial Never Hears the Evidence
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How Does Judge Tell Jury to Disregard Evidence
What Happened Then?
Move to Strike. Non-Responsive Hearsay.
Sustained. Jury Will Disregard.
Mr. Smith Said P was there.
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Other Ways of Telling Jury to Disregard Evidence
The evidence of Ps receipt of unemployment
compensation is withdrawn from the case and you
should not consider it in determining the amount
of damages, if any, to which P is entitled.
Withdrawal Instruction
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Other Ways of Telling Jury to Disregard Evidence
The evidence of Ps wealth is not to be
considered unless you first find that P is
entitled to recover punitive damages.
Contingent Withdrawal Instruction
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If you believe that is effective, I have a bridge
for sale
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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.

Notice I didnt say anything about all his
money!
Verdict Directing Instruction
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Rule 103Preserving Error
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Preserving Error (Opponent)

• Substantial Right Affected, and
• Objection or MTS
• Timely
• Specific
• On the Record
• Unless Plain Error

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Error Meter
Reversible
Harmless
Plain
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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

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Preserving Error (Opponent)

• Objection is specific if
• States a basis
• Its the right basis
• Its not too general
• Its not masked
• It deals with partial admissibility problems

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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.

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Problem 14A
Do Problem 14A (Worksheet)
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Problem 14A
Do Problem 14A (Bad Objections)
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Problem 14B
Do Problem 14B
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Problem 14B
Medical 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
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Problem 15
Do Problem 15