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Exclusionary Rule by Frank Gerber: practitioner materials

Criminal Law

Real World Concerns

Federal Evidence Practice Guide

The Federal Evidence Practice Guide is a resource that examines real world applications of the rules of evidence in federal forums. It is by far the most useful resource to understand the exclusionary rule and how it is applied in the real world. 

1-3 Federal Evidence Practice Guide § 3.03

This section of the Federal evidence practice guide provides a good general overview of the Federal Rules of Criminal Procedure that are applicable to pre-trial criminal procedure. It speaks about how a lawyer or a person conducting his or her own defense should go about drafting a motion to suppress and focuses on real world considerations rather than theory. This section also focuses on what factual allegations are sufficient to trigger to satisfy certain requirements found in the Federal Rules of Criminal Procedure. Further, this section also gives a good overview of other important topics in criminal procedure such as Discovery and how to obtain a Bill of Particulars. 

2-12 Federal Evidence Practice Guide § 12.04

This section has a minor but important concern about the exclusionary rule, mainly that excluded evidence can be used to impeach a witness. This is a VERY important practical concern for those attempting to utilize the rule and craft a case strategy. Further, this section points out that this evidence will not usually be allowed in the governments case-in-chief, but rather only to rebut testimony and will usually be offered to damage the witnesses credibility.  

3-16 Federal Evidence Practice Guide § 16.03

This section of the Federal Evidence Practice Guide speaks about Motions in Limine, which is another way that an attorney can obtain a pre-trial evidentiary ruling from a judge as to the admissibility of certain evidence. 

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