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Rutgers University, Newark School of Law
Eisinger, Erica

Evidence – Professor Eisinger – Fall 2010



A. District Attorney – William Cummings

B. Defense Attorney – Mark Deemer


A. Count 1 – Battery on Correctional Officer Huston

B. Count 2 – Battery on Correctional Officer Van Berg

Elements of Battery:

A. Willfully & unlawfully

B. Uses any force or violence

1. Any unlawful application of physical force against the person of another, even though it causes no pain or bodily harm, or leaves no mark & even though only the feelings of such person are injured by the act

2. The slightest unlawful touching, if done in an insolent, rude, or angry manner, is sufficient

a. It’s not necessary that the touching be done in an actual anger or w/ actual malice à sufficient if it was unwarranted & unjustifiable

b. Touching essential for a battery may be a touching of the person, of the person’s clothing, or of something attached to or closely connected w/ the person

C. Upon the person of another

Prosecution’s Case-in-Chief:

A. Direct Examination

1. George Huston – Correctional Officer

2. Richard Van Berg – Correctional Officer

3. Brandon Walker – Correctional Officer

4. Stephen Smith – Correctional Officer

5. Ruth Taylor – Correctional Case Records Specialist

a. Defendant was confined as an inmate in the state prison on the date in question

Defense’s Case-in-Chief:

A. Direction Examination

1. George Butler – Defendant’s Cell Mate

2. Michael Green – Inmate at Pelican Bay

3. James Johnson – Defendant

4. Robert Stokes – Correctional Lieutenant

I. Federal Rules of Evidence

A. 404 – character evidence, in contrast to reputation evidence, is normally not admitted to show that a person committed an act in conformity w/ that character

1. Example of general principle that relevancy is a necessary but not a sufficient condition for admissibility

B. 609 – felony convictions may be admitted to impeach the character for truthfulness of any testifying witness

C. 615 – permits the court to exclude witnesses from the courtroom while another witness is testifying to safeguard against the possibility of “contaminating” a witness

1. Objective is to preclude a witness from altering or modifying testimony to explain or dovetail w/ the testimony of another witness

II. Pretrial Motions

A. If an advocate knows that an evidentiary problem is likely to arise at trial, the advocate can attempt to get a pretrial resolution of that issue – e.g., motions to suppress illegally obtained evidence

1. A more general procedure involves filing a motion in limine (at its threshold) à can be used to get pretrial rulings on virtually any evidentiary question

III. Opening Statement

A. Primary purposes:

1. To state the facts that the advocate expects to produce at trial

2. To present the facts w/in the framework of a story or theme that’s persuasive & that will be the basis for closing argument

3. To personalize the client

B. Also used to introduce the jury to weaknesses in the case

IV. Rebuttal

A. Rebuttal evidence is put on by the prosecution after the defense has rested

1. Restricted to evidence made necessary   by Δ’s case – e.g., response   to new evidence or to new grounds of innocence – and shouldn’t include what the prosecutor should have proved in the case-in-chief

V. Closing Argument

A. Final opportunity for the advocates to speak directly to the jury about the case

B. Many closing arguments contain summations of the evidence – i.e., a recitation of the key witnesses & key testimony

1. But where the case isn’t long + complicated, and where not many witnesses have testified, the jury may not need much help keeping things straight

2. Summing up the evidence should be contrasted, then, w/ arguing the evidence, where the advocate seeks to persuade the jury about contested facts & about why his/her client is entitled to prevail

a. Such arguments should be simple enough to be clearly understood, and sound enough to withstand the jury’s scrutiny

b. Argument about what inferences should be drawn from the evidence

C. Advocates often refer to the instructions during closing argument, particularly   those defining critical legal terms


Theme of Jury Insulation

A. Evidence

1. To a large degree, the rules of evidence focus directly on the question of what evidence the jury will be allowed to hear

2. Policy implications of most evidence rules based on someone’s answer to the question: What is the effect on the accurate resolution of disputes of allowing a jury to consider this type of information?

B. Trial Process

1. Modern juries decide only factual issues (not issues of law)

2. Virtually all legal   discussion – including proper   substantive & procedural   law to be applied   to the case, and   whether evidence should be admitted/excluded – occurs   outside the hearing   or presence   of the jury


A. Adversary System – dominant theory of dispute resolution in the U.S.

1. Adverse parties each present a self-serving version of the truth to a disinterested fact finder, judge or jury, which hears the evidence the parties present & decides in a disinterested fashion what actually happened, and thus what verdict is appropriate

2. Parties are responsible for investigating the case, preparing the case for trial, and in large measure controlling the presentation of evidence at trial

a. Many believe that adversarial investigation & presentation of evidence is more likely to yield a verdict consistent w/ the truth than is a process more dominated by a tribunal

i. Disinterested tribunal will lead to less abuse & manipulation of the evidence, thus increasing the changes that judgments consistent w/ the truth will emerge

B. “Inquisitorial” System – used in many Western European countries

1. Adjudicative tribunal often involves itself actively in investigation, and controls the trial process much more than the litigants do


A. Witnesses – ppl w/ knowledge of out-of-court events who are called on to reveal that knowledge in court, under oath, in front of the judge, jury, and litigations

B. Jury – uses it senses to perceive info in the courtroom & its reasoning capacity to evaluate + make inferences about that info to reach a conclusion about which version of disputed events is the truth

1. Jurors expected to come to conclusions about disputed facts in the case w/ bringing to bear any outside or firsthand knowledge of their own

a. Typically, they know nothing about the case beforehand, and are instructed by the judge not to investigate the facts on their own

b. However, they’re not expected to disregard their own generalized background knowledge & experience à assumed they

– the written criminal pleading setting forth the charge, which states the statutory elements of the alleged offense

D. Opening Statements

1. Lawyers take turns introducing their respective cases to the jury, in the order in which they will present their evidence: π (civil) or prosecution (criminal) proceeds 1st, then Δ

2. Opening statement is neither evidence nor argument, but is supposed to be a compact narrative of what the lawyer believes in good faith the evidence will show

a. Purpose is to provide the jury w/ a coherent overview of the case to make it easier for the jurors to assimilate the testimony they will soon hear, testimony that may necessarily tell the story in a fragmented, nonchronological fashion

3. Argument & discussion of law are NOT allowed à can result in an objection being sustained

a. Argument – e.g., conclusions or inferences derived from the evidence, contentions about legal rules, comments about witness credibility

i. Pointing out   weaknesses in your adversary’s   case clearly   constitutes objectionable argument

E. Presentation of Evidence & the Burden of Production

1. The Order of the Parties’ Presentation of Cases

a. After opening statements, π/prosecution presents its case-in-chief (main case) à calling a series of witnesses to the stand

i. Primarily through direct examination   of these witnesses, π/prosecution   must present evidence sufficient to prove – i.e., sufficient to support a finding by the jury to establish – each element of its cause of action (or of the crime charged)

§ 2 important devices make it unnecessary, in many instances, to prove facts through testimony   or other evidence:   “stipulation”   (facts agreed by the parties)    & “judicial   notice”

b. After π/prosecution   “rests” its   case, and any motion   to dismiss    is heard (& denied), Δ’s   case begins

i. Like π, Δ conducts direct examinationof witnesses, but the trust   of the defense case is to cast doubt on π’s evidence & to present evidence sufficient to prove each element of any affirmative defense

c. When defense rests its   case, π/prosecution has   an opportunity to call   witnesses in   a “rebuttal”   case

i. Presentation of rebuttal evidence proceeds in same way as the case-in-chief, expect the scope of rebuttal evidence is limited à rebuttal evidence must respond to either:

(a) Matters raised an part of Δ’s affirmative defenses; or

(b) Attacks during the defense case on the credibility of π/prosecution’s evidence

ii. Normally, a π or prosecutor won’t be allowed to repeat evidence presented in its case-in-chief, or to present evidence that should’ve been party of its case-in-chief

iii. Δ may be entitled to a “sur-rebuttal” (a rebuttal to the rebuttal), but this is unusual