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(b) Relevancy conditioned on fact.—When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. 72(a) provides that a party who fails to file a written objection to a magistrate judge's nondispositive order within ten days of receiving a copy "may not thereafter assign as error a defect" in the order. In making its determination it is not bound by the rules of evidence except those with respect to privileges. Its purpose is to reproduce for an appellate court, insofar as possible, a true reflection of what occurred in the trial court. While judicial unwillingness to be constructed by mechanical breakdowns of the adversary system has been more pronounced in criminal cases, there is no scarcity of decisions to the same effect in civil cases. 91, 160 (1932); Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L. Some courts have held that a renewal at the time the evidence is to be offered at trial is always required. Other courts have distinguished between objections to evidence, which must be renewed when evidence is offered, and offers of proof, which need not be renewed after a definitive determination is made that the evidence is inadmissible. Thus when a hearsay statement is offered as a declaration against interest, a decision must be made whether it possesses the required against-interest characteristics. In view of these considerations, this subdivision refers to preliminary requirements generally by the broad term "questions," without attempt at specification. It must, however, be read as subject to the special provisions for "conditional relevancy" in subdivision (b) and those for confessions in subdivision (d).



Nothing in the amendment is intended to affect the rule set forth in answers affirmatively a separate question: whether a criminal defendant must testify at trial in order to preserve a claim of error predicated upon a trial court's decision to admit the defendant's prior convictions for impeachment.These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrate judges, to the extent and with the exceptions stated in rule 1101. Thus the content of an asserted declaration against interest must be considered in ruling whether it is against interest.Rule 1101 specifies in detail the courts, proceedings, questions, and stages of proceedings to which the rules apply in whole or in part. This revision is made to conform the rule to changes made by the Judicial Improvements Act of 1990. Again, common practice calls for considering the testimony of a witness, particularly a child, in determining competency.Legislative History: (a) Effect of erroneous ruling.—Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection.—In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or (2) Offer of proof.—In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Rule 47 of the Federal Rules of Criminal Procedure provides: An application to the court for an order shall be by motion * * * It may be supported by affidavit. Rule 43(e), dealing with motions generally, provides: When a motion is based on facts not appearing of record the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or depositions.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. Rule 4(g) provides for proof of service by affidavit.

The rule does not purport to change the law with respect to harmless error. evidence in a murder case that accused on the day before purchased a weapon of the kind used in the killing, treated in Rule 401. Otherwise, detailed treatment of when preliminary matters should be heard outside the hearing of the jury is not feasible. Not infrequently the same evidence which is relevant to the issue of establishment of fulfillment of a condition precedent to admissibility is also relevant to weight or credibility, and time is saved by taking foundation proof in the presence of the jury.



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