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Rutgers University, Newark School of Law
McMahon, JohnJ.

EVIDENCE – Spring 2016

Professor McMahon

Rutgers School of Law – Newark


Two Types of Evidence:

1) Testimony of live witnesses answering questions under oath before the fact finder; and

2) Tangible physical evidence relating to the case. All tangible physical evidence MUST be given an exhibit number or letter, and must be shown to be authentic (shown through questioning of a witness with knowledge of its accuracy), before it can be admitted into evidence.

(Two categories) of Tangible Evidence:

i) Real evidence: evidence generated by the case, such as the knife used in the murder in question.

ii) Demonstrative evidence: evidence such as maps and photographs used to illustrate and explain the real evidence in the case.

Direct and Circumstantial Evidence:

Whether it directly or circumstantially establishes a fact at issue in the lawsuit.

Direct evidence is evidence based on a testifying witness’s personal knowledge gained through the witness’s senses, which, if found to be true, proves a fact without an inference or presumption.

Circumstantial evidence is evidence, which a fact-finder must make inferences to reach a factual conclusion in the case.

Evidence is something that tends to prove or disprove the existence of some fact (whatever the trier of fact is permitted to consider in making their decision)

Standard of review: Abuse of Discretion, unless constitutional issues are implicated

Record includes testimony, but not stricken evidence or arguments in chambers

Evidential issues must be placed in a record in order to preserve them for appeal.

Rule 102. Purpose

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence into law, to the end of ascertaining the truth and securing a just determination.

Order of the Proceeding: (civil and criminal)

Pretrial Conference à Pretrial Motions à Selection of the Jury à

Presentation of Evidence

Plaintiff/Prosecution’s Case-in-Chief à (Defense can move for a judgment as a matter of law: judge concludes no rational jury could find the plaintiff/prosecution’s evidence satisfied applicable standard of proof; beyond reasonable doubt in criminal or by a preponderance in civil) Defense’s Case-in-Chief à Rebuttal and Sur-rebuttal à

Closing Arguments à Jury Instructions read to Jury à Jury Deliberates à Verdict.

Pre-Trial Motions:

BEFORE trial starts, parties can attempt to control admissibility of evidence at trial by filing

motions in limine requesting that the judge keep form the jury certain designated testimony or documents which a party anticipates her opponent will attempt to offer.

*If motio


-Proponent (person who calls the witness) of the witness is only supposed to ask open ended questions; however, the courts have some leeway with this rule (it is not a hard and fast rule). They can be relaxed if the court feels in the interest of justice so demands. Especially if the witness is being difficult or non-responsive.


During presentation of evidence, lawyers make objections for two reasons:

1) to oppose the introduction of evidence and;

2) to preserve error in admission of that evidence over objection for appeal.

Objecting or Motion to Strike

-Objections must be made before the witness answers the question. Failure to object will often waive evidentiary error on appeal.

-If question is not objectionable, but a witness’s answer contains inadmissible evidence, the opposing lawyer makes a “motion to strike” the inadmissible portion of the answer rather than an objection.

-Once objection is made, judge can sustain (agree the evidence is NOT admissible) or overrule (find that the evidence is admissible).

Offers of Proof:

When an objection is sustained the party whose evidence has been excluded may decide to preserve the ruling for appellate review.