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Evidence
Rutgers University, Newark School of Law
McMahon, JohnJ.

Evidence:
Professor John McMahon Spring 2013

Exam is completely based on what we do in class. Only covering and will be tested on the Federal Rules of Evidence (FRE). Closed book, short essay questions.
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I.       Basic Concepts:

What is evidence?: whatever the trier of facts gets to hear; the rules are set up to help us determine what to let in and what to keep out.

A.    Roles of Judge and Jury: in cases tried to a jury, the judge and the jury divide the responsibility of dealing with the evidence:
1.      Judge’s Role: The role of the judge is to determine whether the evidence is admissible
2.      Role of the Jury: Once the judge has decided to admit the evidence, the jury’s role is to determine the weight the evidence should be given. The mere fact that the evidence has been admitted does not mean that the jury must attach any significant weight to it at all – for instance, it is up to the jury to judge the credibility of a witness, and the jury may choose to completely disregard quite admissible testimony because it believes the witness who is giving that testimony is mistaken or lying.
3.      Questions of Fact: Another way of looking at the roles of judge and jury is to say that the judge decides the law applicable to the case, and the jury decides the facts. The admissibility of a given piece of evidence is simply on e type of issue of law; the believability of that piece of evidence is one type of factual question.
a.       Preliminary Question of Fact: Occasionally, however, the admissibility of a given piece of evidence cannot be determined without first making a preliminary determination of fact. Depending on the situation, it may be the judge, not the jury, who decides that preliminary factual issue.
B.     The Federal Rules: in 1975, the Federal Rules of Evidence (FRE) became effective, after having been enacted by Congress. These rules apply to all trials in federal courts, whether civil or criminal, and whether to a judge or jury
1.      Adoption by States: The FRE are so influential, and generally regarded as so well drafted, that over 4/5 of the states have adopted them in one form or another.
II.      Organization of the Trial

A.    Flow of the case: In the usual case, the P’s case is presented first, followed by the D’s. This is because the P generally has the burdens of proof and is given the compensating advantage of presenting his case first to the jury (as well as having the last word in closing argument). Typical case flows as follows:
1.      Opening Statements: The P (or, in a criminal case, the prosecutor) makes her opening statement first. Then, the D may make her opening statement (although many courts allow her to reserve her opening statement until the end of the P’s/prosecutor’s case).
2.      P’s Case: P puts on his case in chief. That is, she presents the witnesses, as well as documents and other tangible evidence, to establish the facts needed for her to prevail.
3.      D’s Case: After the P rests her case, it is the D’s turn. The D presents witnesses and documents to disprove the elements of the P’s case and/or to establish affirmative defenses.
4.      P’s Rebuttal: After the D rests, the P gets another turn at bat. This is called the P’s rebuttal – the P may present additional witnesses, recall former witnesses, or present new exhibits, but only to rebut the D’s evidence, not to buttress her own case in chief.
5.      D’s Rejoinder: Likewise, after the P’s rebuttal, the D has a rejoinder – here, she may only rebut evidence brought out in the P’s rebuttal.
6.      Closing Arguments: After both parties have presented all of their evidence, the two sides make closing arguments. Usually, the P goes first, the D goes second, and the P gets a last chance to rebut the D’s closing remarks
7.      Instructions: Finally, the judge gives instructions to the jury, in which she explains to them the applicable law. In some jurisdictions, she may also comment upon, or summarize, the evidence.
B.     Examination of Witnesses: The examination of a given witness proceeds through up to four stages:
1.      Direct: First, the party who has called a witness engages in the direct examination. Generally, the direct examiner may not use leading questions. Instead, the direct examiner must let the witness give her own testimony, though the examiner may gently guide the path of the testimony.


i) May not ask leading questions on direct unless:
a. Necessary to develop witness’ testimony (i.e. witness is slow to remember certain basic facts)
b. Witness is uncooperative/hostile (i.e. π calls ∆ witness in order to gain concessions)
c. More trouble than it is worth (i.e. preliminary identification (name, address, etc.) in order to get to meat of testimony)

2.      Cross-Examination: After the side that called the witness has finished the direct examination, the other side has the chance to cross-examine the witness. Here, because the witness may be expected to be hostile to the examiner, leading questions are permitted

i) Limited to scope of direct examination or the credibility of the witness – FRE 611(b)
a. court may exercise discretion to allow further inquiry.
b. matters reasonably suggested on direct may come in.
c. Defense on cross-exam has wide subject matter scope for leading questions as well

3.      Re-Direct: The calling side then has an opportunity to conduct re-direct examination of the witness. Re-direct is generally limited to rebutting points made on cross-examination.
4.      Re-Cross: Finally, the cross-examining side gets a brief opportunity to conduct re-cross, which is limited to rebutting the effect of re-direct.

C.     Sequestration of Witnesses: If a witness were permitted to observe the testimony of other witnesses for the same side, she would be able to tailor her testimony (perhaps by perjury) so that it matched this other testimony. To prevent this, nearly all courts have, and often use, the power to exclude all other witnesses from the courtroom while one witness is testifying.

1.      Federal Rule: The trial judge’s right to sequester witnesses is codified in FRE 615, which begins, “at the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order of its own motion”
a.       Exceptions: Like most states, federal courts recognize several exceptions to this principle of sequestration. FRE 615
D.    Control by the Court:
1.      FRE 102 Purpose and Construction: These rules shall be construed to secur

corporation who is a party or its designee
c. “Essential” persons (i.e. investigative agents)
2. If witnesses do talk to each other, remedy is striking of testimony, or at least
bringing the matter up on cross-exam.
3. not applicable to expert witnesses because they are able to screen out prejudicial information, and furthermore, may base their opinion on inadmissible evidence.

Hostile Witness: someone who is identified with your adverse party;
IV. Objections & Offers of Proof

General Rule of Evidence 103 – what do we need to do to preserve an issue for appeal; the judge makes a ruling, there is an objection, (p. 28);
(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. 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.
(b) Record of offer and ruling: The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
(c) Hearing of jury: In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
(d) Plain error: Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.
If the objection is made and the issue is preserved a more favorable standard of review (Plain Error) is going to be employed for your client.  You are still allowed to appeal if you fail to object b/c there are so many very bad lawyers (but the lawyering has to be egregious).

Harmless Error: hearsay that gets in but is repeated exactly by the person who did say it. On appeal, it will be viewed as harmless error and appeal will be denied.

We generally see gov’t appeals on pre-trial issues.