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Evidence
Seton Hall Unversity School of Law
Lillquist, Erik

Evidence Outline
Professor R. Erik Lillquist
Spring 2010
 
I.                   INTRODUCTION TO ADVERSARIAL PROCESS
a.       Reasons for a Trial:
                                                              i.      Accuracy
                                                            ii.      Legitimacy
                                                          iii.      Social Harmony
                                                          iv.      Fairness
                                                            v.      A Mechanism for Providing an Outcome
**Always ask: Does the evidence help come to an accurate outcome? But this is not the only question.
 
b.      Methods Jurors Obtain Information:
                                                              i.      Testimony of Witnesses
                                                            ii.      Admission of Documents and other physical things
                                                          iii.      Social Knowledge and Experience
 
c.       History of Evidence Rules
                                                              i.      Prior to 1975: No Federal Rules of Evidence
1.      Ca. and NJ were the only states to have written evidence rules
                                                            ii.      1975: Federal Rule of Evidence are created which draw upon years of Common Law judicial decisions.
1.      Now almost all states have adapted entirely or partially the Federal Rules as their state evidence rules
d.      The Trial Process
                                                              i.      Jury Selection:
1.      Group of Potential Jurors= Jury Venire
2.      Process of Questioning the Venire= Voir Dire
a.       Conducted by either the Judge, the Lawyers, written questionnaire, or both
                                                                                                                                      i.      Federal Court: judge typically controls
                                                                                                                                    ii.      NY State Court: lawyers typically conduct without the Judge
b.      Challenges available to “strike” potential jurors
                                                                                                                                      i.      For- Cause (the juror is biased): Unlimited #
                                                                                                                                    ii.      Preemptory (for any reason except in violation of EPC): Limited #
 
                                                            ii.      Initial Instructions: The Judge gives the jurors information about the case and a briefing on their role
 
                                                          iii.      Preliminary Motions/ Motions in Limine: Motions to obtain rulings on anticipatory evidentiary issues.
 
1.      Parties can also make motions to exclude witnesses from the courtroom until they testify under FRE 615
 
                                                          iv.      Opening Statements
1.      Generally, P or Prosecution gives their statement and then Defendant will give theirs BUT the defendant can reserve their opening until P or Prosecution rests
 
2.      Opening’s cannot contain evidence or argument
a.       CANNNOT: “Mr. J committed a battery”
CAN: “The evidence will show that Mr. J struck Off. H with a fist”
 
b.      BUT–The line isn’t always clear: “Mr. J violently attacked Off. H”
                                                                                                                                      i.      Could argue that this is argumentative
 
                                                            v.      Presentation of Evidence: Generally done through the use of testimony
1.      FRE 611: Mode and Order of Interrogation and Presentation
 
“(a) The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”
 
 
“(b) Cross Examination should be limited to the subject matter covered in direct examination and matters affecting the credibility of the witness.”
 
“(c) Leading questions should not be used on the direct examination except as may be necessary to develop the witnesses testimony. Ordinarily leading questions should be permitted on cross-examination . . . . [or with a] hostile witness, an adverse party, or a witness identified with an adverse party.”
 
2.      FRE 614: The Court may call and question witnesses (but usually doesn’t happen)
 
                                                          vi.      Closing Arguments
1.      At this point parties are allowed to make legal arguments; BUT, the parties are bound by the evidence that is already before the court.
 
2.      Parties must:
a.       Explain the crime and show how the facts presented meet (or don’t meet) the elements of the crime
b.      No personal opinions: “I believe that…”
*Sometimes the defense can get away with giving personal opinions.
 
                                                        vii.      Jury Instructions: The Court gives the jury the final instructions on the elements of the crime, their role etc.
 
                                                      viii.      Deliberations: “secret and unknowable”
 
                                                          ix.      Verdict Returned
 
II.                BASIC EVIDENCE RULES
a.      FRE1101: The Applicability of Rules
                                                              i.      1101 (c): The rule of privileges applies at all stages
                                                            ii.      1101 (d): The rules do not apply to:
1.      Preliminary questions of fact
2.      Grand Jury Proceedings
3.      Miscellaneous Proceedings
 
b.      FRE 102: Purpose and Construction
                                                              i.      “The rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay. . .”
 
 
 
 
c.       FRE 103: Ruling on Evidence: How to deal with/ preserve evidentiary errors for appeal
                                                              i.      103(a): Effect of Erroneous Ruling
1.      Error may not be predicated upon a ruling which admits or excludes evidence unless:
a.       A substantive right of the party is affected;
b.      A timely objection appears on the record stating the grounds for objections; AND
c.       If the ruling excludes evidence, the substance of the evidence was made known to the court.
                                                                                                                                      i.      “Would like the record to reflect that Mr. X would have testified that..
                                                            ii.      Appellate Review of Evidentiary Rulings
1.      Need an Error
a.       Erroneous only if there was an abuse of discretion by the trial court judge.
b.      DIFFICULT hurdle because judges are accorded a lot of discretion.
 
2.      Must have affected substantial rights (harmless error rule)
a.       Treated differently in different jurisdictions
                                                                                                                                      i.      NJ-110-2: Error mandates reversal only if it was clearly capable of producing an unjust result
 
b.      Constitutional Evidentiary Rules in Criminal Cases: Error will mandate reversal unless it was harmless beyond a reasonable doubt (Hapman v. Ca.)
 
d.      FRE 104: Standards of Proof
                                                              i.      (a): Preliminary questions concerning the qualification of a person to be a witness, the existence of privilege, or the admissibility of evidence shall be determined by the court.          
 
1.      The rule doesn’t explicitly state the stand, however, the SCOTUS have determined the standard to be “beyond a reasonable doubt”
2.      Examples:
a.       Was there bad faith?
b.      Is there an attorney/client relationship invoking privilege?
c.       General relevancy?
 
                                                            ii.      (b): When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon or subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition
1.      Examples:
a.       FRE 901—the evidence is only relevant if the evidence is what it claims to be.
b.      FRE 602— the testimony is only relevant if the person has the requisite personal knowledge of the event.
c.       FRE 404— the past specific acts are only relevant if there is sufficient evidence to show that the past act happened.
 
III.             RELEVANCY
a.       Overview of Relevancy Rules
                                                              i.      FRE 401- Definition of Relevancy
                                                            ii.      FRE 402- Relevant evidence is admissible; Non-relevant evidence is not.
                                                          iii.      FRE 403- Danger v. Probative Value Balancing
 
b.      FRE 401 Definition of Relevant Evidence: “Evidence having any tendency to make the existence of any fact t

t Butler/Johnson is in a gang
                                                                                                                                      i.      403 Danger? Could argue unfair prejudice. This type of information is likely to generate an emotional response against Johnson. People don’t generally like gangs.
 
 
 
 
2.      Driver case (Bus driver hits kid)
a.       Testimony that she thought of kids as a “truck load of diamonds”
                                                                                                                                      i.      403 Danger: Could argue unfair prejudice because the statement will generate an emotional response in favor of Driver because she is sympathetic and cares for the kids.
                                                                                                                                    ii.      But this likely doesn’t substantially outweigh the probative value (even though probative value is low too)
 
b.      Taking the jury to the scene of the accident
                                                                                                                                      i.      403 Danger: Could argue a few dangers
1.      Waste of time/ resources
2.      Unfair prejudice because going to the neighborhood where the kid was killed, reliving the horrific accident will generate an emotional response for the boy
3.      Misleading because there will be too much emphasis on what the gravel and the scene looks like now not at the time of the accident. Not indicative of what happened.
                                                                                                                                    ii.      Probative value is low and doesn’t add much so the evidence would be likely excluded.
 
3.      Case where the restaurant burns down
a.       Evidence of unpaid property taxes
                                                                                                                                      i.      403 Dangers? Difficult to find one
1.      Not really collateral issue because would be important to motive
2.      Not a mistaken inference
3.      Would need to try unfair prejudice
                                                                                                                                    ii.      Probative Value is likely to outweigh because it goes directly to motive. Burn down and use insurance claim money to pay off debt.
 
4.      Child pornography case. Should the pictures be admitted over the Defenses request to stipulate that the pictures qualify as child porn?
a.       Generally can’t force the government to stipulate to evidence except in narrow cases such as Old Chief where the evidence is blatantly being used to color the defendant.
 
b.      Here, the evidence of child porn is strong evidence of meeting the child porn element of the crime. Show the jury exactly the seriousness of the crime—children are at stake.
 
                                                            v.      Appellate Review of District Courts 403 Analysis= Abuse of Discretion
1.      Appellate Courts are generally very deferential to the lower court’s decision and reverse only if find the decision so unreasonable and so arbitrary
 
2.      United States v. Hitt: Picture of gun (which was small and only showed the outside of the gun) was admitted over the defenses 403 objections.
a.       There are two steps to appellate review:
Length of the inference chain doesn’t matter; the strength of the inferences is the most important.
Remember:
Relevancy ≠ Sufficiency
 
(100%)
¯
Beyond a Reasonable Doubt
(90%)
¯
Preponderance of the Evidence
(51%)
¯
Sufficient to Support of Finding
(20%)
¯
(0%)
 
 
Shall = Must
May = Can