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Rutgers University, Newark School of Law
McMahon, JohnJ.


§ Evidence: Whatever the jury is allowed to hear and see.

à EX: Testimony, documents, photos, etc.)

à If a witness testifies, an objection is made, and it’s stricken, then it’s NOT evidence. If something is clearly inadmissible, and no objection is made, then it’s EVIDENCE.


§ Motion in limine: Motion to handle anticipated evidence issues before the trial
It is a pretrial request for a preliminary decision on an objection or offer of proof.

**Rule 103“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.”

§ In a R. 104 hearing, a court can reserve judgment (does not have to R on the motion in limine) on the proffered evidentiary issue because it may want to see where the testimony may fit into the trial (can make it subj to a condition at trial)

§ If you anticipate damaging evidence, take care of it at a R. 104 hearing

Rule 104 requires the judge to hold a hearing out of the presence of the jury when ruling on the admissibility of a confession. Rule 104 requires the judge to hold a hearing out of the presence of the jury when ruling on the admissibility of a confession. Rule 104 also provides that hearings “on other preliminary matters shall be conducted out of the hearing of the jury when the interests of justice require, or when an accused is a witness and so requests.”

§ Renewals of pre-trial objections are not required where the judge’s ruling was definitive

§ Gvt can be ordered to shorten its time to present its case on ground that misconduct of its witness constituted an undue waste of time (R. 403; also cumulative evidence can have same effect)
>pursuant to its power and duty to manage its docket, ct has power to impose time limitations.
>u have to be able to articulate why each witness is imp.

Only a crim D has a Cal right to confrontation (of the accuser.)

>>Restricting D’s time in cross-examining a witness could violate D’s rights under the 1) Confrontation Clause and 2) Due Process Clause

à NEVERTHELESS, if a D’s cross-X time is restricted, the D should:
1. purposely exceed the judge’s limit
2. wait until the judge interrupts
3. call a sidebar put on record that you’re not done, and all the qu*s u’d have asked
4. list the reasons you needed the time to begin with
… File an interlocutory appeal

à Because D’s Cal rights are being impeded, the standard of review is elevated on appeal


urts take a broad view of the scope of cross-X. So long as the subject matter covered in Cross-X is similar to what was covered in Direct-X, it should be okay.
à HOWEVER, the scope of re-direct X is narrowed

§ A blanket rule prohibiting cross-X is a violation of D’s Confrontation Clause right (case ruling)

§ Under the Confrontation Clause, a criminal D has a right to impeach the prosecution’s witness for bias arising from confidential juvenile records

§ Don’t cross-X benign witnesses. It’ll endear the witness to the jury. Instead, call rebuttal witnesses


§ Evidence ruling won’t be ruled as an error unless a substantial right of a party is affected
à POLICY: b/c there are tons of errors made, but they’re not all material
*Irrelevant non-prejudicial testimony can be objected to, but don’t waste time b/c it’s harmless error

§ An objection must be:
1. correct (appropriately apply to the situation)
2. specific
3. timely
à POLICY: This gives the trial court the chance to correct the error on the spot.