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Seton Hall Unversity School of Law
Lillquist, Erik

Evidence Outline

Fall 2011

I. Introduction

Primary function of rules of evidence is to decide what evidence will be presented to the fact-finder. Rules to control what information is placed in front of the fact finder.

Process: Draw Chart on 8/23 notes

Purpose of a Trial:

1. Accurately determine disputes (facts behind dispute)

2. Forum for parties to resolve a dispute- not necessarily to obtain all the facts

Fairness to both parties

3. Legitimating an outcome

Evidence doesn’t have to be 100% accurate

Jury Trials Impact Rules of Evidence

1. Divide Authority b/w judge and jury

Submit to judge but judge doesn’t decide. Jury never hears information. This is way more effective to the party that wins the evidence argument.

2. Can’t appeal findings of a jury

Controlling inputs- makes us need defined rules.

Increasing control over jury inputs evolved the detailed rules.

Side note-During bench trials (trials w/out jury) Rules of Evidence apply, but application of the rules may be relaxed.

A. Trial Process

Jury Selection

1. Challenges for Cause- know witnesses, too closely related to case

2. Preemptory Challenges- each side gets a predetermined number to strike a juror for no reason at all.

Except can’t be race. 14 amendment protected classes

Fair Cross Section doctrine- applies to jury pool- not the sitting jury. You can challenge if components are out of sync with the population.

* Education of jurors during jury selection is an opportunity in a disguised way to make arguments (Depend on Jurisdiction)

Voir Dire-questioning process by judge or lawyers.

Initial Instructions

Judge reads to jurors administrative and other information/instruction

Opening Statements: Provides jury with a coherent overview of the case.

Generally Defense gives opening statement after prosecution goes.


Eg. Comments about witness credibility, legal rules, conclusions are NOT ALLOWED.

You can make predictions about you think, about what evidence will show, but you MAY NOT make legal arguments about legal conclusion.

Eg. Johnson case- Prosecutor can’t say batter, he can say Johnson struck so and so (Grey Area)

Testimony: Very structured. Parties come in an answer questions.

Prosecution goes first

Presentation of Evidence that is sufficient to support a finding by the jury to establish each element of crime.

Burden of Production- producing enough evidence so that a reasonable fact finder can make a finding for the plaintiff on each element of the claim. Failure by P can result in a judgment as a matter of law.

Examination of Witnesses

Party calling the witness conducts Direct Examination first. Opposing party Cross Examination

FRE 611 Mode and Order of Interrogation and Presentation

Cross Examination (FRE 611b):

-Limited to the subject matter of the 1) direct examination and matters affecting the 2) credibility of the witness—ct may permit additional inquires as if on direct examination.

-Leading questions are permitted.

Direct Examination (FRE 611(a)(b)):

-Leading questions should not be used on direct examination of witness except as may be necessary to develop the witnesses’ testimony.

-When a party calls a hostile witness, an adverse party, interrogation may be by leading questions.

*Leading Questions-(FRE 611(c))

Leading questions are questions that suggest the answer the examiner is seeking.

Redirect Examination

Direct examiner may conduct redirect when cross is completed. Scope of redirect is limited to matters that were raised in cross

Recross Examination

After direct, recross is sometimes allowed.

*More info on Direct and Cross on pgs 90-97

Jury Instructions: Educate Jurors on what the law is and Burden of Persuasion.

Burden of Persuasion:

Civil- preponderance of the evidence means greater than 50% probability or more likely than not.

Criminal- prove guilt beyond reasonable doubt.

Closing Arguments: Story about what happened. Making arguments about credibility

1. Attorney argues what evidence to believe

2. Explain why the facts satisfy the legal standard

Objections and Preservation of Error for Appeal: FRE 103: Tells us how trial lawyers preserve issue for review (appeals) of errors.

In order to attain error for an evidentiary ruling, the evidence must affect a

1) substantial right of the party

Must make a difference in the outcome of a trial.

2) objection must be made timely or motion to strike appears of record, stating specific grounds for objection (if not apparent from the context).

Object before the answer is given, otherwise courts will conclude you forfeit objection

If court excludes evidence that you think is admissible, you have to make an offer of proof.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

Objections Two Types:

1. Improper form of a question

2. Objection as to admissibility of evidence

Motions in Limine: Get a ruling on admissibility of evidence.

R. 103 b- once court rules you don’t have to renew objection at trial.

Standard of Review: (Have to show both)

1. Trial Courts decision was erroneous

Either abuse of discretion or de novo review

2. Error was harmful- had too large of an impact on the outcome.

Federal Standard- error affected substantial rights of parties

Highly probable that error

timony tended to discredit the appellant.

Draw out Diagrams & Problems 3.1-3.4: Make sure we look at all of the theories of relevancy.

D. R. 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or Other Reasons

The court may exclude relevant evidence its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence.

Overall Goal: exclude evidence that the judge believes might distract the jury from its role of rational decision-making.

MAIN POINT: Only exclude if probative value is substantially outweighed by one of the rule’s articulated dangers.

Note*- 403 is heavily tilted toward admissibility.

E. 3 STEPS to 403:

1. Judge first analyzes the persuasive effect that the item of evidence will likely have on the jury’s thinking about the fact of consequence= PROBATIVE VALUE

*RELEVANCE= Any tendency to make the fact of consequence more or less probable


Eg. Highly, mildly, somewhat, low

Note- court isn’t supposed to consider believability of inference (this is the jury’s job)

*Probative value sometimes depends on what other evidence is admitted in the case

2. Judge identifies the competing 4.03 dangers

Terms of Art:

1) Unfair prejudice

-every piece of evidence is has to be unfairly prejudicial

Two Principles:

a. risk that evidence can trigger a response that has nothing to do with its connection to a fact of consequence (emotional, prevent rational determination of the truth)

b. Jury using evidence in a manner that violates a rule of evidence law.

Impermissible inferences- prior specific acts, character inferences

Eg. Unfair prejudice-character (bad guys) or likely to stimulate an excessive emotion

2) Confusion of the issues

Focuses the jury’s attention too closely on a factual issue that is not central to the outcome of the case.

3) Misleading the jury

All kind of Similar:

4) Undue Delay

5) Waste of Time

6) Needless Presentation of Evidence