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Rutgers University, Newark School of Law
McMahon, JohnJ.

Evidence – Outline
Spring 2012

Teal – FRE actual text
Red – Relevant case law
Purple – BarBri study material

1)      Start with relevance
2)      Move to witnesses [competence, examination, opinion] a.       Are there hearsay considerations?
b.      Impeachment
c.       Privileges
3)      Are their Documentary Evidence Consideration?
a.       Authentication
b.      Best Evidence Rule
4)      Limiting Instruction

·         Evidence can be divided into two (2) categories:
o   Real Evidence – evidenced generated by the case (i.e. knife, written contract)
o   Demonstrative Evidence (i.e. maps, photographs, charts, experiments or computer simulations)
·         Tangible evidence is called an “exhibit”, must be given an exhibit number or letter, and must be shown to be authentic before it may be admitted into evidence (authenticated by questioning of witnesses)
·         Direct and Circumstantial Evidence
o   Direct Evidence – based on a testifying witness’s personal knowledge gained through the witness’s senses which, if true, proves a fact without an inference or presumption.
o   Circumstantial evidence – a fact-finder must make inferences to reach a factual conclusion in the case.

·         Rules require judge to hold pre-trial conference with attorney’s to narrow the legal and factual issues that will be raised at trial and to identify witnesses and documents that will be offered as evidence.
o   Motions in limine – request the judge keep from the jury certain testimony or documents which a party anticipates her opponent will attempt to offer
o   Voir dire – any trial process by which a person’
·         Examination of Witnesses
o   Direct Examination – no leading questions; unless necessary to develop witness’s testimony, witness is uncooperative/hostile, in order to get to meat of testimony
o   Cross Examination – leading question are permitted because it is assumed the witness will be hostile; this Q&A is limited to the scope of direct examination or the credibility of the witness Rule 611(b)
o   Re-Direct – generally limited to points made on cross-examination
o   Re-Cross – limited to rebutting the effect of re-direct
·         Judge can sequester witnesses from the court when they are not testifying under Rule 615
Article I – General Provisions
·         Rule 101 – Scope; Definitions
·         Rule 102 – Purpose
o   These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.
o   Set reasonable time limits on the various states of the trial
o   United States v. Reaves (p. 14) – Tax Fraud Case
·         Rule 103 – Rulings of Evidence
·         Rule 104 – Preliminary Questions
·         Rule 105 – Limiting Evidence That is Not Admissible Against Other Parties of for Other Purposes
·         Rule 106 – Remainder of or Related Writings or Recorded Statements
Article II – Judicial Notice
·         Rule 201 – Judicial Notice of Adjudicative Facts
Article III – Presumptions in Civil Cases
·         Rule 301 – Presumptions in Civil Cases Generally
·         Rule 302 – Applying State Law to Presumptions in Civil Cases
Article IV – Relevance and Its Limits
·         Rule 401 – Test for Relevant Evidence
o   “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
o   Embodies concepts: first, the rule requires that evidence must bear upon a “fact that is of consequence to the determination of the action.  Second, evidence a party seeks to offer must be probative, that is, have a tendency to make the existence of a fact more probable or less probable than it would be without the evidence.
o   More or less probable, all relevant evidence is admissible…unless you’ve got a specific exclusionary rule (i.e. privileges or hearsay; or if the court on a case by case basis considers probative value and whether it is outweighed by one or more pragmatic balancing factors: danger of unfair prejudice, danger that jury will confuse the issues, misleading [aimed at protecting accuracy of fact finding], undue delay, waste of time, or unduly cumulative [deals with efficiency].
§  Probative value vs. Prejudice – Rule 403
o   Rule 401 – definition of relevance, broad standard, any tendency to make material fact more or less probable; all relevant evidence is admissible unless specific exclusionary rule (privileges or hearsay or if the court determines probative  value [strength] is substantially outweighed by one or more pragmatic balancing factors
§  6 balancing factors
·         Danger of unfair prejudice
·         Danger that jury will confuse issues
·         Misleading
o   Aimed at protecting accuracy of fact finding
·         Undue delay
·         Waste of time
·         Unduly cumulative
o   Efficiency
·         Rule 402 – General Admissibility of Relevant Evidence
o   All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority.  Evidence which is not relevant is not admissible.
·         Rule 403 – Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons
o   Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
o   United States v. Reaves (p. 14)
o   Evidence is not prejudicial because it is harmful to the adversary.  Rather, the rule refers to the negative consequences of “unfair” prejudice = that which could lead the jury to make an emotional or irrational decision, or to use the evidence in a manner not permitted by the rules of evidence.
·         Rule 404 – Character Evidence; Crimes or Other Acts
o   (a) Character evidence generally.  Evidence of a person’s character or trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except:
§  (1) Character of the Accused.  In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution [The “Mercy Rule”] §  (2) Character of the Alleged Victim.  In a criminal case, and subject to the limitations imposed by Rule 412, evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor
o   United States v. Calvert (p. 378)
o   Michelson v. United States (p. 482)
o   Rule 404(b) – MIMIC
o   Defendants other crimes – introduced for non-character purpose
o   Rule 404(b) – a defendant’s other crimes/bad acts are not admissible for prosecution’s case in chief to show general propensity (violent)
o   But, if other crimes or bad acts show something specific about the crime currently charges (something separate from just general character) then the other bad acts may be admissible as evidence bearing on guilt
§  Defendant charged with robbery, prosecution wants to present info, on same day he robbed a Wal-Mart and Sears in the

le during case in chief; Rambo has been convicted 3 times…not admissible, just evidence that tends to show general violent disposition, cannot try and raise inference of guilt (doesn’t matter forum: prior convictions, reputation, specific acts of misconduct)
·         Danger of jury misuse, jury may give too much weight and convict not because they think he’s guilty of current murder but simply because he’s a bad person
o   Defendant’s defense – may be able to open the door; may introduce evidence of a relevant character trait (reputation or opinion testimony) – suggest good character to raise inference that he’s not guilty – that his conduct conformed to his good character trait.
§  Law gives defendant a break allowing admission of circumstantial evidence that he did not commit the crime, logically relevant, a peaceful person is less likely to commit a crime of violence and defendant has liberties at stake (raise reasonable doubt in the minds of the jury)
§  Reputation and opinion testimony
§  Not allowed (I’ve seen Rambo get into fights and he always turns the other cheek à no specific acts allowed!  For pragmatic reasons, time consuming)
§  Relevant to type of crime that the defendant has been charged with (peacefulness for violent crime)
§  The door opens!  The prosecution can respond
o   If defendant opens the door, what can prosecution do during cross and rebuttal case
§  Two ways to respond:
·         Cross-examination of defendant’s character witness to ask whether has heard or knows of specific acts or convictions or arrests of the defendant if they reflect adversely on the character trait that the defendant has introduced
·         Impeaching character witness’s knowledge about the defendant
o   Did you know that Rambo was arrested for assaulting Rocky and he killed Adrian?  That is acceptable!
o   An arrest doesn’t mean you did it, but it affects your reputation…it’s in.
o   Good faith basis to ask these types of questions.
·         If the character witness does not have knowledge of arrests/shooting of Adrian by Rambo?  NO.  Not allowed to prove arrests, bad acts, because it’s not worth it…time consuming and distracting.
·         The questions have to relate to character trait that was raised (i.e. violence/peacefulness) [relevance] §  Second way (after defendant has opened the door) – rebuttal, by showing character is opposite of what he claims it to be.  This is done with reputation and opinion testimony.
·         Not allowed during case in chief…allowed during rebuttal (new witness who says no way, Rambo is not peaceful)…contradict/neutralize defendants evidence for peacefulness
§  If Rambo takes the stand himself and only says I did not commit the murder; Murdock’s testimony is not admissible here because he didn’t open the door…testified about the facts of event only (Rambo)
§  Occasionally defendant will take the stand and get carried away (he says, “I wouldn’t do something like that, I’m a really peaceful guy à some judges would say he put his character at issue and the prosecutor can attack)
§  Criminal defendant takes the stand – can impeach defendant, character for truthfulness (separate issue)