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Seton Hall Unversity School of Law
Caraballo, Wilfredo


Wilfredo Caraballo

Seton Hall Law

Spring 2011


o The Federal Rules of Evidence (FRE) were adopted in 1975

o FRE 102: Purpose and Construction: The FRE are construed to secure fairness in administration, eliminate unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

o There are two spousal privileges

§ Marital confidences

§ Use of one spouse against the other

o “voir dire” – the court and counsel try to determine whether any potential members of the jury panel should not serve in the case at hand

§ Lawyers like to conduct it if they are allowed

§ May the juror participate?

· 1. Does the juror meet the statutory qualifications?

o A. citizen

o B. maximum and minimum age (18 & 72)

o C. quaint prerequisites (not being decrepit)

· 2. Shouldn’t serve because:

o Related to the party (by blood, marriage, business connection)

o Prejudiced on an issue or against a party à excused for cause

§ Excluding a juror process:

· Each party challenges for cause

· The Judge determines the challenges

· Each side gets 3 “peremptory” challenges

o The lawyer can exclude potential juors for any reason not needing to be stated

o (Can’t be racist)

§ The judge or lawyers will talk in general terms about the case to the jurors and ask whether they are ready to serve

· Judge is controlling on evidence issues

o FRE 403 à evidence may be excluded if its probative value is substantially outweighed by the danger of 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

o Evidence excluded if: probative value < unfair prejudice etc.

o Even if relevant

o Judge also gives Jury Instructions

§ “curative” instructions à admonish the jury to exclude from consideration certain testimony that it heard or information suggested by a question during trial

· This can backfire however and make the jury more aware of what the judge instructed them to disregard

o Like when someone says, “Don’t think about Frogs jumping into mashed potatoes” you are going to think about this for the rest of the day.

§ “limiting” à advise the jury to consider certain proof only on one point and not others or against one party and not others FRE 105

· There are 5 types of material in the “official record”

o 1. Pleadings; 2. Filed documents; 3. Record of proceedings; 4. Exhibits; 5. Docket entries

· Sidebar Conference

o Off the Record

o Technicalities


o Opening Statements

§ Prosecutor / Plaintiff first; then Defendant

§ Not an argument

o Order of Proof

§ 1. Plaintiff / Prosecutor presents case in chief

§ 2. Defendant presents case in chief

§ 3. Plaintiff / Prosecutor presents case in rebuttal

§ 4. Defendant presents case in rebuttal

§ 5. Both sides present further cases in rebuttal

o Order of Examination

§ 1. Direct Examination by calling party

· Background information

· Lay the foundation

· Substantive questions

o Non-leading questions

o Witness does the testifying

§ 2. Cross-Examination by adverse party

· Counsel control

· Leading questions

· Scope-of-direct rule applies most of the time but trial judge may permit broader cross

· FRE 611(c) scope of cross examinations should be limited to

o 1. Subject matter of direct examination

o 2. Matters affecting the credibility of the witness

§ 3. Redirect examination by calling party

§ 4. Re-cross-examination by adverse party

§ 5. Further redirect and re-cross as necessary

o FRE 611: Judge controls the trial including the order of some of the things above

o FRE 611(c): leading questions are not to be used in direct examinations, however they can be used when necessary to develop a witness’ testimony

§ Usually we don’t allow this b/c:

· Don’t want to invoke false memories

· Want to make sure that the witness’ testimony is her own and not the lawyer’s questions’ testimony

§ Exceptions: A nervous witness not answering questions; an adverse party; a young kid too nervous to answer; judge’s discretion to permit a question in the interest of getting the truth, and an answer

· Baker v. State

o Present Recollection Revived v. Past Recollection Recorded

o Witness took the stand and said “I don’t remember.”

o Lawyer wants to introduce a written report by the other officer in order to jog this officer’s memory

o Past Recollection Recorded: sometimes it is possible to introduce previous testimony or a writing into evidence

o Present Recollection Revived: if you are seeking merely to jog someone’s memory, there is no limit to revive their recollection, “it may be anything.”

§ Present testimony will come out of someone once their memory is jogged

§ The recording doing the jogging isn’t going to be introduced (stimulus ≠ evidence)

§ Permitted because it uses the law of association only serving to trigger memory

o FRE 612 à opposing counsel may request that whatever stimulus be read, questioned, or introduced into evidence

§ (if opposing counsel can show the jury that the witness testified only as to what was on the stimulus, this is really bad for the party trying to do present recollection revived)

· James Julian, Inc. v. Ratheon Co.

o Whether in extending the rule to include documents used to refresh a witness’ memory before testifying, Congress intended to include all documents or only those not subject to claims of privilege

o Here: Binders were within the scope of FRE 612(2)

§ Party seeking the binde believed that the binder was used to direct the testimony of the witnesses before testimony (which is covered under 612 just as actual testimony in court is)

o If the party contends that not all of the information is relevant, the court can look at it in camera and determine which parts the opposing party requesting the documents is entitled to view

o Rules in conflict here:

§ Attorney work product rule v. cross examination should allow opposing party to view binder

o Case-by-case determination


o FRE 615: if one party requests, the court shall order witnesses excluded so they can’t hear the testimony of other witnesses

§ (court can do this on its own too)

§ CAN’T exclude:

· 1. Party who is natural person

· 2. Officer or employee of a party which is not a natural person designated as its representative by attorney

· 3. Person whose presence is shown by a party to be essential to the presentation of the party’s cause

· 4. Person

he existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

· Circumstantial Evidence

o Indirect evidence

o Even if fully credited, may still fail to support the point in question because another alternative explanation may seem more probable

· Evidence is only admitted if both:

o Relevant; &

o Material (if point bears on issue of the case

o Relevance and Materiality are merged under FRE 401

· Relevance: making it more likely so or making it less likely so

· Old Chief

o D argues that the names of his previous felonies are not relevant to the case so he wants them excluded

o Still relevant à if they wanted to exclude this evidence, maybe they should have tried the argument that the probative value didn’t outweigh the prejudicial nature to the defendant

o To be excludable: must be some reason other than [not relevant] because it is relevant in this case

· Relevance: tendency to prove or disprove a consequential fact

o 1. More probably true?

o 2. More probable than any other

o 3. More than minimally probative

o 4. More probable than it was before

· Inductive Reasoning:

o 1. Inductive generalization: inference from sample of observed instances to a conclusion about further instances not observed

o 2. Inductive analogy: reasoning proceeds from resemblances between known instances and some aspects of the instance under study, then suggests an inference that an unknown aspect of the latter follows a known aspect of the former

o 3. Inductive inference to a cause: inductive argument proceeds upon observation of an event that seems to be the “effect” of something else, and draws an inference that a previous event or condition was the cause

o 4. Inductive explanation or hypothesis

· Evidence of Flight is admitted across the board

· Experts

o FRE 104(a) preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court subject to the provisions of 104(b)

§ Judge isn’t bound by rules of evidence in making its determination (judge decides admissibility)

§ FRE 104(b): When the relevancy of evidence depends upon 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

· FRE 403 Relevant Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury, or by considerations of undue delay, waste of time or needless presentation of cumulative evidence