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Rutgers University, Newark School of Law
McMahon, JohnJ.

Evidence McMahon Spring 2018

Rule 102: Allows the trial judge to use the rules of evidence to “secure a just determination” and “eliminate unjustifiable expense and delay.”

Rule 103(a)(2): Lawyer can make an offer of proof to preserve evidence for appeal if judge excludes the evidence.

Rule 611: Gives the judge the power to comment to the jury about the evidence and question witnesses. The powers are broad, but there are instances where the judge can overstep. Note that federal judges have more discretion and control in this regard than state judges who usually can’t comment to the jury about evidence or question witnesses.

Note that the judge may comment on or dissect the evidence and/or draw the jury’s attention to the aspects he feels are important as long as he makes it clear that the facts are up to their determination and as long as he doesn’t distort or add to the evidence. See Quercia v. United States.

United States v. Yates – where the judge stated “it is clear in the record that this defendant did admit his participation in this bank robbery, so call your next witness” is an abuse of this rule.

Rule 614: Gives the judge the right to call and question witnesses to clear up confusion and manage trials. The judge may not question witnesses to signal their belief or disbelief of them as that would usurp the role of the jury. Usually, overly aggressive questioning does not result in reversal due to the inability to convey demeanor in a court transcript.

Both parties can cross examine the witness when the judge questions him. Both parties can object to the examination.

In Crandel v. United States, the judge was clearly hostile to the plaintiff’s expert witness, was impatient with their unwillingness to settle, and attacked their expert witness on the stand. This was an abuse of this rule and the case was remanded to be assigned to a new judge.

Rule 615: “Invoking the rule” or asking that all witnesses other than essential parties leave the courtroom so that they cannot be tainted by or tailor their own testimony based on the testimony of another witness.

Burden of Proof

The burden of proof has two sub-categories: burden of production and burden of persuasion which must both be satisfied to carry the burden of proof. This preserves which side wins if no evidence is presented.

Burden of Production – the amount of credible evidence sufficient to enable the trier of fact reasonably to find for that party (even if the fact finder ultimately doesn’t believe that evidence). The judge ultimately decides if there is any evidence for the jury to weigh at trial and can grant judgment as a matter of law if there isn’t.

Burden of Persuasion – persuading the fact finder that the evidence is convincing.

There are three standards of proof:

Preponderance of the Evidence – (more than 50%)

More likely than not
Applies to most civil cases and defenses and most (but not all) criminal affirmative defenses

Clear and convincing Evidence (greater than or equal to 75%)

Rarest of the standards
Civil cases involving fraud
Federal criminal cases with claims of insanity
Issues relating to family law in some states

Beyond a Reasonable Doubt – (Greater than or equal to 90 – 95%)

Inferences – when evidence is circumstantial (based on inferences made from known facts as opposed to direct evidence from an eye witness), a party may satisfy its burden of proof through inferences or presumptions. Inferences are common sense conclusions from deduced facts.

Presumptions – this is a LEGAL inference as opposed to a factual one. It means that once fact A is established, then fact B is presumed unless opposed by the other party. Presumptions are made by law to ensure expediency and efficiency. They are also sometimes made when the evidence is under the main or sole control of one party.

Presumptions can be permissive (the jury MAY conclude that fact B is established) or mandatory (the jury MUST conclude that fact B is established).

Rule 301: If a party relying on a presumption has the burden of persuasion to prove the presumed fact (fact B), that burden of persuasion never shifts to the opponent. However, once a presumption is established, the burden to produce evidence to rebut the presumed fact does shift to the defendant. If no rebuttal evidence is presented, the fact is presumed. (So the holder of the presumption retains the burden of persuasion and the opponent has the burden of production.)

The Thayer Theory states that once the opponent presents rebutting evidence, the presumption drops out of the case and no longer exists. In this sense, the presumption may be used to survive a JMOL, but has no further effect at trial.

The Morgan Theory states that once a presumption is established, the burden of production and persuasion shifts to the opponent and the presumption may be used by the jury at trial. This theory was proposed when rule 301 was drafted but was ultimately rejected. It’s still sometimes used.

In In Re Yoder, the Bratton did not receive a bankruptcy notice in time to object to it and the trial court held that it was presumed he had received it and his testimony that he had not was not enough to rebu

y, it was cumulative to other relative evidence, it was inconsequential to the outcome of the trial, etc.

Competency and Qualification:

Rule 601 states that all witnesses are competent to testify unless deemed otherwise by the rules of evidence.

Judges have wide discretion to determine if a witness is too impaired to give meaningful testimony. However, the rule states that it’s hard to find a witness wholly without capacity.

In United States v. Roach, the court found that a judge doesn’t have to question a witness extensively and order further examinations to determine a witness’s competency to testify. Note that this is different than competency to stand trial. Any child three and under will probably be deemed too young to testify. Drug abusers usually are not deemed incompetent to be witnesses.

In Wheeler v. United States, the court found that a five year old was competent to be a witness. Generally, courts find young children age 4 and up to be competent if they know the difference between a truth and a lie and can relate facts coherently.

In Rock v. Arkansas, a statute barring hypnotically refreshed memories from testimony was deemed unconstitutional because if it’s done by a trained psychologist, it is reliable and inconsistencies can be flushed out via cross-examination.

Some jurisdictions only allow hypnotically refreshed testimony in criminal defendants. Others only allow it in civil cases on a case by case basis depending on its reliability.

Rules 605 and 606(a) state that jurors and judges are unreliable to testify because they would carry too much weight as fact finders.

Rule 606(b) states that jurors can’t testify as to their deliberations or states of mind, but they can testify if there was prejudicial information given to them, an outside influence was brought to them, or they made a mistake on the verdict form.

In Tanner v. United States, the court held that alcohol and drug consumption is not an “outside” influence under this rule. The court has considered testimony of non-jurors as to juror misconduct despite this holding.