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Evidence
Rutgers University, Newark School of Law
McMahon, JohnJ.

MODE AND ORDER OF PRESENTATION OF EVIDENCE                          

CONTROL BY THE COURT                                                                                                         
Federal Rules of Evidence 102, 403, and 611(a)
·         102 Purpose and Construction
·         403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
·         611  Mode and Order of Interrogation and Presentation
o        (a) Control by Court

An Application of Judicial Authority
CASE: US v. Reaves: The government initially estimated that the trial of the action would take a month. Upon further inquiry, the court concluded that the government’s estimate was excessive and entered a scheduling order setting time limits for various phases of the case. When the first trial ended in a mistrial due to the conduct of a witness, both the government and defendants challenged the court’s authority to place time limits on the trial. The court rejected the parties’ arguments and held that, pursuant to its power and duty to manage its docket, it had the power to impose time limitations on various phases of the trial. Accordingly, the court entered a scheduling order setting forth time limits for the government’s case in chief, the defense’s case in chief, and the government’s rebuttal, if any.
·         US v. Algie: The court held that the exigencies of court administration did not authorize any amendment of the mandatory language of the Jencks Act.
·         US v. Russell: Finding no error in the refusal of the trial judge to grant a recess late one afternoon so that a final defense witness could testify the next morning.

FORM OF QUESTIONS TO WITNESSES                                                                                        
Federal Rules of Evidence 611(c)
·         611 Mode and Order of Interrogation and Presentation
·         (c) Leading Questions

Direct Examination
CASE: Straub v. Reading Co.:   Appellee employee brought suit against appellant employer under the Federal Employers’ Liability Act (Act) for injuries appellee sustained when he fell off a ladder. Appellee’s case proceeded to trial and a jury entered a verdict in appellee’s favor. Appellant sought review of the lower court’s judgment. Appellant argued that appellee’s attorney’s statements and conduct were so pervasive that appellant was prejudiced. Appellant also argued that the Act was inapplicable to appellee. The appeals court reversed the lower court’s judgment, holding that appellee’s attorney’s improper statements were calculated and pervasive that it prevented appellant from having a fair trial and from litigating legitimate issues. Reversal was warranted where the improper statements created a warped version of the issues. The appeals court, however, found that although appellee was more or less a paper clerk, the Act was applicable to appellee because of its broad coverage.

Cross-Examination
CASE: US v. McKenna: Defendant was convicted of making false statements on certain income tax returns. The court held that defendant was not entitled to a new trial because he failed to establish any violation of the Confrontation Clause where his counsel chose not to cross-examine a witness.



SCOPE OF CROSS-EXAMINATION                                                                                           
Federal Rule of Evidence 611(b)
·         611 Mode and Order of Interrogation and Presentation
o        (b) Scope of Cross-Examination

The American Rule: Cross-Examination within the Subject Matter of the Direct
CASE: US v. Segal: Defendants, after paying money to an Internal Revenue agent to falsify a tax liability, were tried jointly and convicted of conspiracy and bribery of a public official. On appeal, defendants claimed the voir dire of prospective jurors was unduly limited. They argued that after inquiring as to whether any venireman or member of his family ever worked for the government, the judge should have inquired further by asking how many of those people ever worked for the Internal Revenue Service. The court determined that defendants would have reasonably needed to know whether the Internal Revenue Service had ever employed any member of the panel or person in his family. The court held that past employment by the specific agency prosecuting the case was a matter that should have been explored upon defendants’ request and that the trial court’s refusal to do so required that a new trial be granted.
·         Reverse the convictions and remand for a new trial because the cross-examination of the prosecution’s witnesses were improperly restricted.
·         Davis v. Alaska: While the trial court has wide discretion to prevent repetition, harassment of the witness or production of irrelevant material, the right of cross-examination is of constitutional dimension and may not be denied.
·         US v. Riggi: A blanket rule barring re-cross-examination violated the defendant’s confrontation rights.

OBJECTIONS AND OFFERS OF PROOF                          

INTRODUCTION                                                                                                                                   
Federal Rule of Evidence 103
·         103 Rulings on Evidence
o        (a) Effect of Erroneous Ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected; and
§         (1) Objection. In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or
§         (2) Offer of Proof: In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.
o        (b) Record of Offer and Ruling
o        (c) Hearing of Jury
o        (d) Plain Error

CONTEMPORANEOUS OBJECTION                                                                                           
CASE: US v. Spriggs: Because appellants did not make a timely objection to the Rosenthal testimony, we review its admission for plain error. The Court admitted that the testimony should not have been admitted, but that the mistake did not rise to the level of plain error.
·         When can pretrial objections be made? An objection may be made pretrial or during a trial before a witness is called or evidence is offered.
o        in limine objection…at the threshold
o        Luce v. US: To raise and preserve for review the claim of improper impeachment with a prior conviction, a defendant must testify. Luce has been extended by other courts to a variety of other contexts, establishing the principle that if a pretrial ruling is dependent on an event occurring at trial, there is no right to appeal the ruling if the event never occurs.
§         D does not testify than harm never occurred. D will then have to testify in order to preserve the right to contest at the next level.
§         While bringin out the objectionable evidence on direct appears to be good strategy in light of the negative pretrial ruling, it comes at a cost—it constitutes waiver of the right to appeal from the ruling admitting the evidence.
o        Ohler v. US: Held that a party who introduced evidence of a prior conviction on direct examination forfeited her right to appeal an in limine ruling that the evidence would be admissible at trial.
o        NJSC does not follow the USSC’s Ohler holding. Able to practice under the rule because they are operating under the State Constitution.
·         Do pretrial objections have to be renewed at trial? Rule 103 was amended to provide that a renewed objection or offer of proof is not required if the trial judge’s initial ruling was definitive. However, clarify when in doubt.
·         When is an objection sufficiently contemporaneous to preserve a claim of error for appeal? An objection must be made at the earliest practicable opportunity for it to be considered timely.
·         What is a motion to strike? When a non-responsive answer is made to a question unobjectionable in itself, or improper testimony is volunteered in response to a proper question, the remedy is to promptly mover to strike out the objectionable testimony.

REQUIREMENT OF SPECIFIC OBJECTION                                                                                  
CASE: United States v. Wilson: An objection based on “relevance” does not preserve an error based Rule 403. We cannot conclude that the jury probably would have acquitted Wilson but for the gun.
·         May a different justification for an objection be raised for the first time on appeal? When an objection made on one ground has been overruled by the trial judge, an appellate court ordinarily will refuse to consider other grounds not presented to the trial judge if later raised by the objecting party.

THE RATIONALE FOR REQUIRING SPECIFIC AND TIMELY OBJECTIONS              
CASE: Owen v. Patton: Without an objection and a proper request for relief, the matter is waived and will receive no consideration on appeal absent plain error.
·         Harmless Error: Rule 103(a) precludes a party from obtaining a reversal because of evidentiary error unless the error affects “fundamental rights” and a party has made a proper objection or a proper offer of proof.
·         Plain Error: Rule 103(d) provides an escape hatch for “plain errors affecting substantial rights.” Permits some egregious and extremely costly errors to be deemed prejudicial even though a party has failed to comply with the basic requirements of offering and objecting to evidence.
·         How is the harmless error doctrine applied? A constitutional error cannot be deemed harmless unless a reviewing court is satisfied beyond a reasonable doubt that the error did not affect the verdict.
·         Why not rely on the plain error doctrine to preserve important issues for appeal? Three limitations on a court’s power to reverse because of errors that were not properly preserved for review in the trial court: (1) There must be an error; (2) The error must be plain; and (3) The plain error must affect substantial rights. Rule is permissive, not mandatory.

OFFER OF PROOF                                                                                                                                 
CASE: US v. Winkle: This circuit will not even consider the propriety of the decision to exclude the evidence at issue, if no o

rly in dispute and (2) that in must shed some light on those issues—are combined into one rule.
·         Role of Circumstantial Evidence: The difficult relevance issues involve circumstantial, as opposed to direct evidence. The only question to be asked in regard to direct evidence is whether it relates to an issue that is properly in dispute. There is no litmus test or simple formula for determining where proffered circumstantial evidence is relevant. Logic and experience together must supply the judge with skills in determining whether a given piece of evidence tends to prove a disputed proposition.

ANY TENDENCY                                                                                                                                   
CASE: US v. Foster: Defendant was charged with unlawfully possessing crack cocaine with intent to distribute within 1000 feet of a school. At trial, a law enforcement officer’s identification of defendant supplied the only evidence that directly linked defendant with the cocaine. The officer refused to answer questions about the location from which he made his observations. The prosecution objected on the basis of the “observation post privilege” and the district court sustained the objection. The district court also upheld objections to cross-examination of the officer on the basis of relevancy. The jury convicted defendant of the charges. On appeal, the court reversed. Without knowing the location of the observation post, the defense could not effectively probe the officer’s memory or veracity about the accuracy of his identification. No comparable substitute was available. Defendant’s right to cross-examination could not be circumscribed merely on the basis of the prosecution’s assertion about the effect of revealing the post. Defense counsel’s questions to the officer regarding his identification of defendant sought relevant evidence and the district court should have allowed them.
·         Standard of review is elevated through the line of questioning.
·         Relevance v. Sufficiency: To be relevant it is enough that the evidence has a tendency to make a consequential fact even the least bit probable or less probable than it would be without the evidence. The question of relevance is thus different from whether evidence is sufficient to prove a point.
·           “Too Remote”: Occasionally a trial judge will exclude evidence on the basis of remoteness, which is to say that the evidence is too far removed in space or time from the proposition that it is offered to prove.
·         Conditional Relevance: Rule 401 does not cover the concept of conditional relevancy. Evidence is conditionally relevant when its probative value depends upon the existence of another factor.  Rule 104(b) governs conditional relevancy. Under 104(b), the proponent of evidence that is relevant only if a condition is met must provide a foundation that the condition exists. That foundation is stated as “enough evidence to support a finding” of the conditional fact.
·         US v. Troy (failure to introduce evidence): The defense should have been allowed to argue that the government’s failure to produce relevant evidence within its control gives rise to an inference that the evidence would be unfavorable to it.

FACT OF CONSEQUENCE                                                                                                         
CASE: US v. Hall: Defendant was convicted of conspiring to distribute and to possess with intent to distribute cocaine and distributing cocaine. TC allowed opinion testimony from a government witness, a DEA agent, about DEA investigatory procedures and difficulties of having conducted a “controlled buy” and seizure of narcotics, in order to have explained the lack of physical evidence against defendant. The court held that the evidence was irrelevant because the witness presented no facts as to the investigation and prosecution of defendant and made the government’s case no more or less probable. Because the error was not harmless, the convictions were reversed. The expert was nothing more than a quasi expert’s commentary on the strength of the government’s proof.
·         Inviting Speculation when admitting testimony that is not relevant