The rationale for excluding these proceedings from the operation of the rule is that evidence, which would be considered incompetent for the purposes of the rules, is regularly admitted in these proceedings. Accordingly, it would tax credulity to prohibit the use of a hearsay statement in a suppression hearing when those statements formed the basis for the probable course for the arrest. Likewise, a court should not be prohibited from from examining secondary evidence or suppressed evidence at a sentencing, where the court may rely on any evidence in deciding what sentence is appropriate for the defendant.

ILLUSTRATION

Assume X is before the court for sentencing on a bank robbery chage. Assume further that the defendant had been charged with three other bank robberies; however, those charges were dropped following the suppression of the instruments and proceeds of those crimes, after a court found that the defendant's rights were violated through an illegal search. The court is not obligated to turn its head and look away from the evidence in those cases, which support the view that the defendant committed those crimes as well. In determining the sentence of the defendant, the court may consider whether X may have committed three other crimes as well.

RULE 1102

AMENDMENTS

Amendments to the Federal Rules of Evidence may be made as provided in section 2076 of title 28 of the United States Code.

RULE 1103

TITLE

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

FEDERAL RULES OF EVIDENCE

APPROACH TO THE RULES OF EVIDENCE

Cases are won and lost in courts of law through the effective use of or the lack thereof, of the rules of evidence. It is through the effective use of the rules of evidence that cases are placed in their best light before the trier of fact for decision. As a lawyer preparing for trial, you must organize your evidence and make the decisions regarding its use before you enter the courtroom. The effective presentation of your evidence may not guarantee that you will prevail in your case on the merits; however, the failure to properly present your case may reflect adversely upon your competence and reputation even though you may ultimately win your case.

The rules of evidence are set forth in a manner which will hopefully benefit you as you prepare your case for trial. There are a few things that should be borne in mind as you set about the task of selecting your evidence for presentation. There are no ironclad rules which should govern this process; however, a few tips will nevertheless provide some assistance.

I. ORDER OF PRESENTATION

As you prepare your case for trial, you should determine the order in which you wish to present your evidence. This order should be congruent with the natural flow of the story you wish to tell through your evidence. Where there are possible problems with the presentation of certain evidence, you should thoroughly research or explore alternate means of introducing the same evidence. If there are possible objections to your evidence, consider them and determine their validity and whether they are likely to be sustained. the objections are likely to be sustained, consider any fall back position

If

you may adopt or the arguments you may make which could enable you to prevail. Remember, if you are caught unawares by opposing counsel's objections and

must fumble and hesitate before you can respond, you will appear as if you do

not know what you are doing and that is almost as bad as not really knowing what to do.

II. CONSIDER EACH PIECE OF EVIDENCE

In preparing for trial, you should consider each piece of evidence and determine how you are going to introduce it into evidence. You should examine each piece of evidence and determine how it assists you in proving that your claim is more probable than your opponent. You should attempt to anticipate all problems with the view of meeting or circumventing them. Accordingly, there are a number of questions you should ask yourself as you determine the admissibility of the evidence. These questions may be stated in the following terms:

ORAL TESTIMONY

1. Is the evidence direct or circumstantial in nature?

2.

3.

4.

5.

If it is circumstantial, what evidence may I link with it in order

to strengthen the inferences to be drawn? [401]

Is the evidence legally competent? [402, 104, 601]

Is the evidence relevant? [401 402]

If I am challenged as to relevance, what can I argue is the probative

value of the evidence? [103, 104, 105]

6. Is the evidence admissible only for a limited purpose? [105]

7.

If it is admissible only for a limited purpose, should a cautionary instruction be given? [105]

8.

9.

10.

11.

12.

If the evidence is testimonial, is there any tangible evidence which can support it? [705, 703, 801(d)(1)]

If the evidence is tangible, is there any testimony which may

support it? [703, 705]

If testimony is being offered, is the witness competent to testify about the facts? [601, 701, 702, 704]

What foundation must be laid before the testimony will be received? [703, 705, 612, 104(b)]

How should the questions be phrased to elicit the desired response without raising an objection for leading the witness? [607, 611] 13. How should the witness be instructed to truthfully answer the question? [603]

14. Will the witness be asked to give an opinion? [701, 702, 704] Is the witness competent to give that opinion? [701, 704]

15.

16.

17.

How may I qualify the witness as being competent? [701, 702]

How may I fashion an argument as to how the witness' opinion will aid the trier of fact?

18. Does the witness have personal knowledge of the events he will

19.

20.

21.

testify about? [602]

If he does not have personal knowledge, how does he know the facts about which he will testify ? [703, 801 et. seq.]

Does his testimony violate the hearsay rule? [801, 802, 803, 804,

805, 806]

Is there an exception to the rule which will allow me to get the testimony admitted? [803, 804, 805, 806]

22. Are there any written statements from this witness? [106]