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Evidence
Rutgers University, Newark School of Law
Spring, Gary

Evidence
Fall 2007- Professor Spring
Outline
Course Overview:

Essay Question Mode of Attack:
(1)    Always begin by addressing (briefly) the relevance of the evidence at issue
·         R. 401, 402, 403
(2)    
I. Relevance & Character
A. Probative Value
i. Balancing Test: probative value v. prejudice
B. Probabilistic Evidence
C. Character & Habit
i. Extrinsic Acts/Prior Bad Acts
ii. Sex Offense Cases
D. Similar Happenings
E. Offers of Compromise
F. Impeaching Witnesses
i. Prior Bad Acts of Witnesses
ii. Impeachment by Prior Conviction
iii. Psychiatric Condition of Witness to Impeach
iv. Prior Statement to Impeach or Rehabilitate
v. Witness’s Bias

II. Privilege
A. Attorney/Client
B. Physician/Patient & Psychotherapist/Patient Privilege
C. Marital Privilege
D. Miscellaneous Privilege
i. Seal of the Confessional
ii. News-Person’s
iii. Generally no Privilege: Parent/Child, Accountant/Client

III. Authentication, Expert Testimony & Scientific & Other Exhibit Related Rules
A. The Best Evidence Rule
B. Authentication
C. The Burden of Proof & Presumptions
i. In Civil Cases
ii. In Criminal Cases
D. Opinion, Expertise, and Experts
E. Scientific & Demonstrative Evidence

IV. Hearsay & Confrontation
A. Introduction to Hearsay
B. Exceptions and Exemptions to Hearsay
i. Admissions/Admissions by Silence
ii. Dying Declaration
iii. Spontaneous & Contemporaneous Exclamations
iv. State of Mind
v. Medical Diagnosis or Treatment
vi. Business and Public Records
vii. Public Records & Reports
viii. Residual Exception
C. Confrontation Clause
i. What Constitutes Testimony & Interrogation
ii. Forfeiture by Wrongdoing


Chapter 1 – Making the Record; Trial Objections (PP. 1-62)

A. The Record: What it Means and How it is Made

1. The Meaning and Purpose of the Trial Record
Two things lawyers must do at once in court:
o                 (1) Persuade factfinder the rightness of her cause
o                 (2) Generate a record to convince reviewing ct that justice was not served below

2. How the Record is Made
·         X



3. Stipulations
X


B. Offering Evidence

1. Direct Examination of Witnesses
X

2. Cross-Examination of Witnesses
X

3. Tangible Evidence [compared to testimonial evidence] (pp. 29)
Tangible evidence may be a writing, a murder weapon, the seized marijuana, a rusted metal container, the scar on a tort ∏’s face
Two basic types of tangible evidence: (1) real evidence, and (2) demonstrative evidence
o                    (1) real evidence à this is the real thing; it can be direct evidence, offered to establish facts about the tangible thing itself or it can be circumstantial
Tangible exhibits should be offered during direct or re-direct examinations of a party’s witnesses and not during cross-examination of the adverse party’s witnesses
o                 It is not reversible error, however, to receive exhibits during cross; the court can permit it and the parties can agree to it expressly or by implication (as when no objection is interposed)
Steps for making the record in connection with real evidence:
o

estion
o There must be testimony that a particular demonstrative exhibit is true and fair representation of what it purports to show
Writings: It is often necessary to make a record on the question of authorship
o A writing is not receivable in evidence until it has been authenticated
o A writing can be authenticated by:
i.      By a notice to admit genuineness
ii.      By direct evidence that proves handwriting in question
iii.      By proving the handwriting circumstantially
iv.      By reliance on CL, statutory or rules provisions that render some writings self-authenticaating

4. Judicial Notice
A time and effort saving procedure
Needs to be made on record
Is a form of evidence, substituting for more elaborate proof of facts that are:
Subject to common knowledge among reasonably informed persons in the jurisdiction, or
Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be disputed
If these criteria are met, the court must take judicial notice if a proper record is made. This entails:
An on-the-record request for the taking of judicial notice and for giving of an appropriate jury instruction, and
Presentation to the court, on the record, of any necessary back-up info such as an authoritative source of the sort mentioned in FRE 201(b)(2)