PastPaperHero | Presentation of evidence - Introduction of evidence

Learning Outcomes

This article explores the presentation and introduction of evidence under the Federal Rules of Evidence (FRE) for the MBE, including:

how FRE 104 divides authority between judge and jury on preliminary questions, conditional relevance, and hearings outside the jury’s presence;
how to apply the preponderance and sufficiency standards when deciding admissibility versus letting the jury resolve conditioning facts;
how FRE 103 governs timely, specific objections, motions to strike, and offers of proof to preserve or challenge evidentiary rulings on appeal;
how to analyze harmless versus prejudicial error, abuse-of-discretion review, and the narrow plain-error doctrine when no objection was made;
how FRE 105 requires and structures limiting instructions when evidence is admissible for one purpose or party but not another;
how FRE 106’s rule of completeness operates to prevent misleading partial use of writings or recorded statements, even where additional portions raise hearsay issues;
how FRE 201 authorizes judicial notice of adjudicative facts, the procedural steps for requesting it, and its different effects in civil and criminal trials;
how these rules integrate with burdens of production and persuasion, presumptions, and common MBE fact patterns involving gatekeeping, appellate review, and fairness-based doctrines.

MBE Syllabus

For the MBE, you are required to understand how evidence is introduced, limited, and reviewed on appeal in federal court, with a focus on the following syllabus points:

Distinguish the judge's role in deciding preliminary questions of admissibility (FRE 104(a)) from the jury's role in determining weight and credibility.
Analyze situations where relevance depends on a fact (conditional relevance) under FRE 104(b).
Identify the requirements for making timely objections and offers of proof to preserve error (FRE 103).
Recognize the concept of harmless versus prejudicial error, and when plain error may be reviewed despite the lack of an objection (FRE 103(e)).
Apply the rules for limited admissibility and limiting instructions (FRE 105).
Understand and apply the rule of completeness for writings or recorded statements (FRE 106).
Apply the rules for judicial notice of adjudicative facts (FRE 201), including the different effects in civil and criminal cases.
Relate these rules to burdens of production and persuasion, and to presumptions under the law of evidence.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

In a federal trial, the admissibility of expert testimony is ultimately determined by:
1. The jury, based on the expert's credibility.
2. The judge, after considering preliminary questions of qualification and reliability.
3. The proponent of the testimony, subject to cross-examination.
4. Both the judge and the jury jointly.
To preserve for appeal an argument that evidence was improperly excluded at trial, the party must typically:
1. File an immediate interlocutory appeal.
2. Make an offer of proof on the record.
3. Object immediately after the jury verdict.
4. Demonstrate plain error affecting substantial rights.
Which of the following facts is most likely appropriate for judicial notice under FRE 201?
1. The defendant has a reputation for dishonesty in the community.
2. That New York City is located in the state of New York.
3. The witness appeared nervous while testifying.
4. The contract terms were ambiguous based on trade usage.
If a party introduces only the incriminating portion of a defendant's written confession, the rule of completeness (FRE 106) allows the opposing party to:
1. Object and have the entire confession excluded.
2. Introduce any other part of the confession immediately, even if otherwise inadmissible.
3. Introduce other relevant parts of the confession only during their own case-in-chief.
4. Request a mistrial due to unfair prejudice.

Introduction

The presentation of evidence in federal court is not a free-for-all. The Federal Rules of Evidence regulate how evidence comes in, who decides whether it comes in, and how parties must challenge those decisions. Questions on the MBE frequently test the mechanics of:

Who decides whether evidence is admissible.
How to preserve evidentiary issues for appeal.
How courts handle evidence usable for some purposes or parties but not others.
How writings and undisputed facts are treated fairly through completeness and judicial notice.

Key Term: Evidence
Testimony, writings, material objects, or demonstrative items that are offered at trial to prove or disprove a fact relevant to the issues in the case.

Key Term: Admissibility
The legal status of evidence that satisfies all applicable rules so that it may be considered by the trier of fact (jury or judge in a bench trial).

Although the jury is often called the “finder of fact,” the judge acts as gatekeeper: deciding what the jury is allowed to hear and under what conditions. The balance between these roles is central to FRE 104 and underpins most of the other rules in this article.

Role of Judge and Jury (FRE 104)

A core theme of the FRE is the division of labor between judge and jury.

The jury decides questions of fact: what actually happened, whether a witness is believable, and how much weight to give admitted evidence.
The judge decides questions of law: what the rules of evidence require and whether proffered evidence satisfies those rules.

Key Term: Preliminary Question
A threshold legal or factual issue the court must decide before ruling on the admissibility of evidence (e.g., whether a statement is hearsay or whether a witness is qualified as an expert).

Preliminary Questions of Admissibility (FRE 104(a))

Under FRE 104(a), the judge decides preliminary questions about:

Whether a witness is qualified (e.g., as an expert).
Whether a privilege exists.
Whether a hearsay exception applies.
Whether a confession was voluntary for due process purposes.

In deciding these issues:

The judge is not bound by the rules of evidence, except those concerning privilege.
- Hearsay, for example, can be considered at a preliminary hearing to decide whether a hearsay exception applies.
The standard of proof is preponderance of the evidence: is it more likely than not that the preliminary fact exists?

Example MBE patterns include:

Whether a person is an agent of a party so that their statements qualify as an opposing-party statement (FRE 801(d)(2)(D)).
Whether a document is authentic enough to be admitted.
Whether an attorney–client relationship existed for privilege purposes.

From the Themis handout:

In preliminary factual decisions, the court is not bound by the Federal Rules of Evidence.

This allows the judge to consider a broad range of information to decide admissibility without hamstringing the parties’ ability to prove those threshold matters.

Hearings Outside the Jury’s Presence

FRE 104(c) requires the judge to hold hearings on preliminary questions outside the jury’s hearing in three situations:

When the issue is the admissibility of a confession in a criminal case.
When a criminal defendant testifies on a preliminary matter and requests a hearing outside the jury’s presence.
When justice so requires—for example, where the risk of unfair prejudice would be too high if the jury heard the disputed evidence and the judge later excluded it.

This protects the jury from hearing potentially damaging information that might later be ruled inadmissible.

Relevance Conditioned on Fact (FRE 104(b)) – Conditional Relevance

Sometimes, evidence is relevant only if a separate fact is true. This is called conditional relevance.

Key Term: Conditional Relevance
A situation where evidence is relevant only if some additional fact is true; under FRE 104(b), the judge admits the evidence if there is sufficient evidence for a reasonable jury to find that conditioning fact.

Common conditional relevance scenarios:

A letter is offered to show notice; its relevance depends on whether the recipient actually received it.
A prior act is offered to show identity; its relevance depends on whether the same person committed both acts.
A statement is offered as a co-conspirator’s statement; its relevance depends on whether a conspiracy existed and the defendant was a member.

Under FRE 104(b):

The judge does not decide whether the conditioning fact is ultimately true.
Instead, the judge determines whether there is enough evidence for a reasonable jury to find that the fact exists.
- This is a sufficiency standard, not a preponderance standard.
If that threshold is met, the evidence is admitted, and the jury decides whether the conditioning fact is actually established.

Weight and Credibility

Once evidence is admitted:

The jury decides its weight: how persuasive it is.
The jury also decides credibility: whether to believe a witness, and how far to rely on their testimony.

The judge’s rulings on admissibility never instruct the jury what result to reach; they merely define the universe of information the jury may consider.

Worked Example 1.1

A plaintiff offers a letter allegedly mailed to the defendant giving notice of a dangerous condition. There is evidence that the letter was properly addressed, stamped, and mailed, but the defendant testifies they never received it. The plaintiff offers the letter to show notice. The defendant objects that the letter is irrelevant unless the defendant actually received it.

How should the judge rule?

Answer:
This is a FRE 104(b) conditional relevance question. The letter is relevant only if the defendant received it. Evidence that the letter was properly addressed, stamped, and mailed creates a presumption of delivery and is sufficient for a reasonable jury to find that the defendant received it. The judge should admit the letter, and the jury will decide whether it finds receipt—and thus notice—proved.

Rulings on Evidence and Preserving Error (FRE 103)

Appellate courts do not retry evidentiary issues from scratch. To obtain reversal based on an evidentiary ruling, a party must show two things under FRE 103:

The ruling affected a substantial right (was not harmless), and
The party preserved the issue by making the proper objection or offer of proof, unless plain error applies.

Key Term: Substantial Right
An important interest that, if affected by an evidentiary error, might reasonably have changed the outcome of the case.

Key Term: Harmless Error
An error in admitting or excluding evidence that did not affect a substantial right because it likely did not influence the verdict; harmless errors do not warrant reversal.

Objections to Admitted Evidence (FRE 103(a)(1))

If the court admits evidence and a party believes it should have been excluded, the party must:

Make a timely objection or motion to strike, and
State the specific ground for the objection, unless it is apparent from the context.

“Timely” usually means:

Before the witness answers the question, or
Immediately after an objectionable answer, coupled with a motion to strike.

If you fail to object:

You waive the issue for appeal, subject only to the narrow plain error rule.

Practical MBE patterns for objections:

“Objection, hearsay.”
“Objection, insufficient predicate.”
“Objection, unfair prejudice substantially outweighs probative value under Rule 403.”

Offers of Proof for Excluded Evidence (FRE 103(a)(2))

If the court excludes evidence that a party wants to introduce, the offering party must inform the court of the evidence’s substance:

By an offer of proof on the record, unless the substance is apparent from the context.

Key Term: Offer of Proof
A statement or demonstration, outside the jury’s hearing, explaining what the excluded evidence would have shown and why it is admissible, made to allow the court to reconsider the ruling and to preserve the issue for appeal.

An offer of proof may take the form of:

Counsel’s narrative description of the expected testimony.
Question-and-answer examination of the witness outside the jury’s presence.
Marking and describing a document or exhibit for identification.

If you do not make an offer of proof:

The appellate court typically has no basis to tell whether excluding the evidence was prejudicial, so the issue is not preserved.

Burden on Appeal and Standard of Review

On appeal:

The appellant must show both improper ruling and prejudice to a substantial right.
Most evidentiary rulings are reviewed for abuse of discretion: the appellate court gives substantial deference to the trial judge’s decision.

From the Aspen materials:

Matters discretionary to the judge, such as admissibility and 403 balancing, are reviewed under the abuse of discretion standard.
Harmless error does not justify reversal.

Plain Error (FRE 103(e))

Sometimes, a party fails to object or make an offer of proof. FRE 103(e) allows an appellate court to take notice of a plain error affecting a substantial right even without a timely objection.

Key Term: Plain Error
An obvious, clear error that affects substantial rights and seriously undermines the fairness, integrity, or public reputation of judicial proceedings.

Key points for MBE purposes:

Plain error review is exceptional and rarely satisfied.
The error must be obvious on the face of the record.
It must likely have affected the outcome, not merely present a technical violation.

Examples where courts consider plain error:

Admission of a coerced confession.
Instructions that shift the burden of proof on an element of the crime.

Worked Example 1.2

During plaintiff’s case, the court excludes a critical eyewitness after defendant argues lack of personal knowledge. Plaintiff’s counsel believes the witness can authenticate the scene and offer relevant testimony but simply says, “We except,” and moves on. Plaintiff loses and appeals, arguing the witness was improperly excluded.

Has plaintiff preserved the issue?

Answer:
Probably not. When evidence is excluded, the proponent must make an offer of proof showing what the witness would have said and why it was admissible. Simply “excepting” does not inform the trial court or create a record for appeal. Without an offer of proof, the appellate court cannot evaluate prejudice, so the issue is not preserved. Plain error review is unlikely because the alleged error is not obvious from the existing record.

Worked Example 1.3

During Plaintiff's direct examination of Witness, Defendant's counsel objects to a question as "leading." The judge overrules the objection. Witness answers the question. Plaintiff wins the case. On appeal, Defendant argues the judge erred in allowing the leading question. Will the appellate court likely consider this argument?

Answer:
Even though Defendant objected, reversal is unlikely. Leading questions on direct are sometimes allowed (e.g., for preliminary or undisputed matters), so overruling the objection is within the judge’s discretion. More importantly, a single leading question rarely affects a substantial right. Any error would almost certainly be deemed harmless, so the conviction or judgment would not be reversed.

Limited Admissibility (FRE 105)

Evidence can be admissible for one purpose or against one party, yet inadmissible for another purpose or party.

Key Term: Limited Admissibility
Admission of evidence for a specific, permissible purpose or against a specific party, while instructing the jury not to use it for any other purpose or against others.

Typical MBE scenarios:

A co-defendant’s statement admissible against the declarant but not against another defendant.
A prior conviction admissible to impeach a witness but not as substantive proof that they committed the same act now charged.
Evidence admitted to show motive or intent but not to prove propensity.

Under FRE 105:

If the court admits evidence that is limited in this way, the court must, on timely request, give a limiting instruction telling the jury the specific way the evidence may and may not be used.
If the party does not request a limiting instruction, the court is not required to give one, and the failure to instruct generally cannot be raised on appeal.

Worked Example 1.4

In a joint criminal trial, Defendant A’s prior robbery conviction is admissible to impeach A if he testifies. Defendant B objects that the jury will improperly consider A’s conviction against B.

What should the judge do?

Answer:
The judge may admit A’s prior conviction to impeach A if it satisfies FRE 609. On B’s timely request, the judge must give a limiting instruction telling the jury that the conviction may be considered only in evaluating A’s credibility and not as evidence of B’s guilt.

Rule of Completeness (FRE 106)

FRE 106 is designed to prevent misleading use of writings or recorded statements.

Key Term: Rule of Completeness
A doctrine allowing an adverse party, when one side introduces part of a writing or recorded statement, to require at that time the introduction of any other part—or any related writing or recorded statement—that in fairness ought to be considered with it.

Key features:

Applies to writings and recorded statements. (Many courts extend similar principles to oral statements, but the rule’s text is limited.)
The other portion must be such that, in fairness, it should be considered at the same time to avoid a distorted or misleading impression.
The responding party can insist that additional portions be introduced immediately, without waiting for their own case-in-chief.
Courts often allow admission of the additional portion even if, standing alone, it would be inadmissible hearsay, because completeness is treated as a fairness-based doctrine.

Examples:

A confession where only the inculpatory paragraph is offered; the exculpatory paragraph explaining context may qualify under FRE 106.
A contract where one party introduces a single clause out of context; the adverse party can insist on admission of surrounding provisions that clarify the meaning.

Worked Example 1.5

In a fraud trial, the prosecution introduces page 2 of the defendant’s email, containing the sentence, “I lied about the numbers.” The defense objects that page 1, which explains that this was a hypothetical scenario in a training exercise, must be admitted.

How should the court rule?

Answer:
Under FRE 106, if fairness requires that page 1 be considered with page 2 to avoid misleading the jury, the court should allow the defense to require simultaneous introduction of page 1. The rule of completeness permits introduction of other parts of the same writing that “in fairness ought to be considered” at the same time, even if page 1 might otherwise be objectionable as hearsay.

Judicial Notice (FRE 201)

Judicial notice allows a court to accept certain facts as true without formal proof.

Key Term: Adjudicative Fact
A fact about the parties or events of the particular case that would normally be decided by the jury (who did what, where, when), as opposed to generalized “legislative facts” about law or policy.

Key Term: Judicial Notice
A court’s recognition of an adjudicative fact as true without requiring formal evidence, because it is not subject to reasonable dispute.

Types of Facts (FRE 201(b))

A court may judicially notice an adjudicative fact that is not subject to reasonable dispute because it is:

Generally known within the territorial jurisdiction of the trial court, or
Capable of accurate and ready determination by consulting sources whose accuracy cannot reasonably be questioned.

Examples appropriate for judicial notice:

That New York City is in the state of New York.
That July 4, 2020, fell on a Saturday (reliably verifiable by a calendar).
That Miami is south of Atlanta.
That a given year was a leap year.

Examples not appropriate for judicial notice:

That a party was negligent or that a contract was ambiguous—those are contested case-specific facts.
That a particular intersection is dangerous (not “generally known” in the jurisdiction in the required sense).

Note: Courts generally do not use FRE 201 to judicially notice foreign law or sister-state law; those are questions of law handled separately.

Procedure (FRE 201(c)-(e))

Under FRE 201:

The court may take judicial notice on its own.
The court must take judicial notice if:
- A party requests it, and
- Supplies the necessary information.

A party is entitled to be heard on:

The propriety of taking judicial notice, and
The nature of the fact to be noticed.

This opportunity to be heard can be provided after judicial notice has been taken.

Judicial notice can be taken at any stage of a proceeding, including on appeal.

Effect of Judicial Notice (FRE 201(f))

The effect of judicial notice differs in civil and criminal cases:

Civil cases: The court must instruct the jury to accept a judicially noticed fact as conclusive.
Criminal cases: The court must instruct the jury that it may, but is not required to, accept the noticed fact as conclusive.

This preserves the defendant’s constitutional right to a jury determination of every element of the offense.

Worked Example 1.6

In a federal civil trial in Miami for breach of contract requiring delivery by March 1st, Plaintiff asks the judge to take judicial notice that February had 29 days that year because it was a leap year. Defendant objects.

How should the judge rule, and what is the effect?

Answer:
The judge should grant the request. Whether a particular year was a leap year is capable of accurate and ready determination from unquestionable sources such as calendars and almanacs. It is an adjudicative fact appropriate for judicial notice under FRE 201(b)(2). Because this is a civil case, the judge must instruct the jury to accept this fact as conclusive.

Worked Example 1.7

In a criminal arson trial, the prosecution asks the court to take judicial notice that the building burned was used in interstate commerce. The building is a local bar with some out-of-state patrons. The defense objects.

What should the court do?

Answer:
The court should deny the request. Whether this particular bar was used in interstate commerce is a contested, case-specific fact, not generally known nor readily determinable from unimpeachable sources. It is not appropriate for judicial notice. The prosecution must prove this element with evidence, and the jury must decide it.

Relation to Burdens of Proof and Presumptions

Although not codified in FRE 103–106 or 201, understanding burdens and presumptions will help in MBE questions about introduction of evidence.

Key Term: Burden of Production
A party’s obligation to produce sufficient evidence on an issue to allow it to go to the jury.

Key Term: Burden of Persuasion
The level of proof required (e.g., preponderance, beyond a reasonable doubt) and the party that must convince the jury of a fact.

In civil cases, the plaintiff usually has the burden of production and persuasion by a preponderance of the evidence.
In criminal cases, the prosecution must prove each element beyond a reasonable doubt.

Presumptions (e.g., the presumption that a properly mailed letter was received) interact with conditional relevance and judicial notice:

A rebuttable presumption shifts the burden of production, but not the burden of persuasion, to the opposing party.
Judicially noticed facts in civil cases effectively remove an issue from the jury by conclusive instruction.

These concepts frequently appear alongside FRE 104(b) analyses about whether there is enough evidence for the jury to consider an issue.

Key Point Checklist

This article has covered the following key knowledge points:

Under FRE 104(a), the judge decides preliminary questions of admissibility (qualification of witnesses, existence of privilege, applicability of hearsay exceptions) using a preponderance of the evidence standard and is not bound by the rules of evidence (except privilege).
Under FRE 104(b), when relevance is conditioned on a fact, the judge admits the evidence if there is sufficient evidence for a reasonable jury to find that fact; the jury then decides whether the conditioning fact is actually established.
The jury, not the judge, decides the weight and credibility of admitted evidence.
To challenge an evidentiary ruling on appeal, a party must show an error affecting a substantial right and must have preserved the issue through a timely, specific objection (for admitted evidence) or an offer of proof (for excluded evidence) under FRE 103.
Most evidentiary rulings are reviewed on appeal for abuse of discretion, and many errors are deemed harmless if they did not affect the outcome.
Plain error under FRE 103(e) allows an appellate court to correct obvious, outcome-affecting errors even without an objection, but this is a narrow, exceptional doctrine.
Evidence admissible for one purpose or against one party but not others requires, upon timely request, a limiting instruction under FRE 105; failure to request may waive the issue.
The rule of completeness (FRE 106) allows an adverse party to require immediate introduction of other portions of a writing or recorded statement that in fairness should be considered together, even where those portions might otherwise be inadmissible.
Judicial notice (FRE 201) applies to adjudicative facts that are not subject to reasonable dispute because they are generally known in the jurisdiction or readily verifiable from reliable sources.
Judicially noticed facts are conclusive for juries in civil cases but only permissive in criminal cases, preserving the defendant's right to jury determination of each element.
Burdens of production and persuasion and the operation of presumptions interact with these rules, especially in determining whether evidence is sufficient to go to the jury and when courts may take facts as established.

Key Terms and Concepts

Evidence
Admissibility
Preliminary Question
Conditional Relevance
Substantial Right
Harmless Error
Plain Error
Offer of Proof
Limited Admissibility
Rule of Completeness
Adjudicative Fact
Judicial Notice
Burden of Production
Burden of Persuasion

Presentation of evidence - Introduction of evidence