Select Page

Rutgers University, Newark School of Law
McMahon, JohnJ.

EVIDENCE                              John McMahon                           Spring 2015

The Process of Proof & the Structure of Trial

2 Types of Evidence:  1) Testimony
2) Physical; a) Real (knife in murder), b) Demonstrative (maps or photographs)

Direct Evidence—Evidence based on a testifying witness’s personal knowledge gained through her senses, which if found true, proves a fact without an inference or presumption.

Circumstantial Evidence—Evidence from which a factfinder must make inferences to reach a factual conclusion in the case.

Rule 102 allows the trial judge to use the rules to “secure fairness” and “eliminate undue expense and delay.”

Rule 402 permits the judge to exclude evidence if it confuses the issues or misleads the jury, or causes undue delay, wastes the time of the court, or needless presentation of cumulative evidence.

Rule 611(a) gives the judge the power to regulate the order and presentation of evidence. The judge may analyze and dissect evidence for the jury as long as he does not distort or add to it.

Rule 614 gives the judge the right to call and question witnesses, even repeatedly and aggressively, to clear up confusion and manage trials when necessary. The judge’s overly aggressive questioning of witnesses will not result in reversal unless it affects the substantial rights of a party.

Pretrial Conference            Pretrial Motions             Selection of the Jury (VOIR DIRE)
Presentation of Evidence (Plaintiff/Prosecutor’s Case-in-Chief, Defense’s Case-in-Chief, Rebuttel & Sur-rebuttel)             Closing Arguments             Jury Instructions            Jury Deliberates             Verdict

Motion in limine—This is a pretrial motion to control the admissibility of evidence, requesting that the judge keep away from the jury certain designated testimony or documents which a party anticipates her opponent will attempt to offer. If the motion is not granted, the party making the motion has another chance to object and keep the jury from hearing the evidence when it is offered at trial.

Bench trial—Trial with no jury

Objections—Must be made before witness answers the question. Made to oppose the introduction of evidence and to preserve error in admission of that evidence over objection for appeal. Per Rule 103(a)(1), a timely objection and specific ground must be provided.

Offers of proof—You cannot object if you are the proponent of evidence that is excluded. Per Rule 103(a)(2), you can inform the court of the substance of the evidence by an offer of proof  to have a record for appeal.

Witnesses: Competency and Examination

Rule 601 presumes all witnesses competent to testify. In a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

Trial judges have a great deal of discretion in making competency determinations, but 18 USC Section 3509 contains a presumption that children are competent witnesses.  The statute permits the exclusion of child testimony only for “compelling reasons” other than the age of the child.

Rock v. Arkansas (1987)—Rock was charged with manslaughter for shooting her husband, and sought to introduce her own testimony that had been reRuleshed by hypnosis. An expert witness corroborated her reRuleshed testimony that the gun was defective. The trial court ruled that hypnotically reRuleshed testimony was inadmissible per se and the Arkansas Supreme Court affirmed. The state’s legitimate interest in barring unreliable evidence does not justify a per se exclusion because the evidence may be unreliable in an individual case.

Rule 610 says that a witnesses’s religious beliefs or opinions is not admissible to show that the witness’s credibility is impaired or enhanced.

Rule 605 prevents the presiding judge from testifying as a witness at the trial.

Rule 606(a) prevents a juror from testifying as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

Rule 606(b)(1) renders jurors incompetent to give affidavits or testify concerning the jury’s deliberations or his mental processes concerning the verdict when a losing party files a motion for a new trial.

Rule 606(b)(2) creates three exceptions to the above and lets a juror testify if 1) extraneous prejudicial information was improperly brought to the attention of the jury, 2) an outside influence was improperly brought to bear on any juror, or 3) a mistake was made in entering the verdict on the verdict form.

Rule 603 requires the witness to take an oath or affirm to testifying truthfully before providing testimony.

Rule 602 requires a fact witness to have personal knowledge of the subject matter of his testimony. This is not a rule of competency, since competency refers to the qualification of a person to be a witness at all.

Direct examination—Open ended and non-leading questions, lawyer has called the witness to testify.

Cross-examination—Questioning by the lawyer of an adverse witness. Rule 611(b) limits scope to matters asked on direct examination and witness credibility. A witness’s credibility may be attacked by asking questions that relate to: 1) the witness’s perception, 2) memory, 3) communication of the story, 4) the witness’s own truthfulness.

Redirect examination—Conducted by direct examiner after cross-examination. Scope limited to matters raised during cross. If new matters are raised on redirect, the trial judge may allow recross by the opposing party.

Leading questions—According to Rule 611(c)(1), the court should allow them for cross-examination. Rule 611(c)(2) says that the court should also allow them when a party calls a hostile witness, an adverse party or a witness identified with an adverse party.

Rule 612 governs the process for refreshing a witness’s memory with a written statement. The writing does not have to be authored by the witness or be admissible in evidence. The proponent must show the writing to opposing counsel and wait for an objection. If there is no objection or objections are over ruled, the witness is asked to read the document silently to herself. The witness is then instructed to put the writing face down or return it to the proponent. The opponent must be given an opportunity to cross-examine the witness with the document and introduce portions that relate to the testimony of the witness.

Direct examination—open-ended questions, don’t suggest the answer to the witness
Cross examination—leading questions, suggest the answer to the witness

The judge can ask questions for clarification purposes, neutral and ope

ecting them to consider the evidence only for one purpose and not the other.

Rule 104(a) indicates that the trial judge determines the admissibility of proposed evidence except for matters involving “conditional relevancy”. In making that decision, the judge may hold a hearing outside the presence of the jury. A judge’s findings as to these preliminary questions must be made by a “preponderance of the evidence” in both civil and criminal cases. The judge is not bound by the rules of evidence in determining evidence admissibility except for those with respect to privileges.

Conditional relevancy—The relevancy of a piece of evidence may depend upon proof of other facts. Per Rule 104(b), both the judge and the jury share the responsibility of determining admissibility.

Preponderance of the evidence—the greater weight of the evidence, which is the standard burden of proof in civil trials. “More likely than not” standard.


Rule 403—does the evidence move the ball or send it backwards


People v. Adamson (pg. 90)—Weight doesn’t go towards admissibility, relevance does. In terms of the stocking caps, the jury could think that the defendant has a weird fetish or that he is a robber.

During a Rule 403 argument, you must first address the probative value of the evidence, you cannot jump right to unfair prejudice. Never say “prejudicial value” of the evidence. The defense can say that the stockings in the victim’s and defendant’s houses do not match and the evidence has no probative value.

Use the word “propensity” when you are trying to exclude evidence. There is unfair prejudice, because if the jury hears the evidence, they will think the defendant is a criminal. The evidence can be used for an impermissible purpose—clouding judgment or creating an emotional response. A prosecutor would try to beef up the probative value. If there is some unfair prejudice, even if not substantial, the court has to deal with it. The judge can give a jury instruction.

Consciousness of guilt—if the police chase after a man fleeing the scene of a crime and catch him, there is more probative weight to the evidence.

Carter v. Hewitt (pg. 99)—There is no valid Rule 403 argument for unfair prejudice here.

Old Chief v. US (pg. 101)—The prosecution wants to paint the defendant as a violent person. The Court said that where the prior conviction is an element of the crime charged, evidence of a defendant's prior conviction may not be admitted if the defendant is willing to concede to the fact of the conviction.

Huddleston v. US (pg. 114)—The Court utilized Rule 104 to have a hearing regarding admissibility of evidence.