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Evidence
Seton Hall Unversity School of Law
McLaughlin, Denis F.

EVIDENCE

Professor Denis McLaughlin

Seton Hall University School of Law

Spring 2012

– Intro

o Imp motion in limine

§ Motion in Limine: the opportunity to obtain a ruling in advance on an important evidence issue and present a more elaborate argument than is possible during trial

· Especially if think will obtain an objection on an item of evidence this is good to do

o Rules

§ Rule 611: Mode and Order of Interrogation and Presentation

· (a)

· Control by court: the court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so to

o Make the interrogation and presentation effective for the ascertainment of the truth

o Avoid needless consumption of time

o Protect witnesses from harassment or undue embarrassment

· (b)Scope of cross examination

o Should be limited to subject matter of the direct examination and matters affecting credibility of witness, Court may in discretion, permit inquiry into additional matters as if on direct examination

· (c)Leading questions

o Leading questions should not be used on direct examination except as may be necessary to develop witness testimony. Ordinarily leading questions are permitted on cross examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading question.

§ When reading rules see what is allowed only on cross examination!!

§ Rule 103***on exam Rulings on Evidence

· (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

o 1) objection: in case the ruling is one admitted 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

o 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

· (b) record of offer and ruling: the court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form

· (c) hearing of jury: In jury cases, proceeding shall be conducted to the extent practicable so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

§ Assuming a record is made need to prove prejudicial error and that it would have affected the outcome

§ Rule 101: Scope

· Pg 41 in supplement

· Be sure to use old rules in the beginning of the rule book

§ Always ask a fact witness if they have ever been convicted of a crime

§ Rules of evidence apply equally in criminal and civil cases

· 85% of appeals on the civil side are denied

o Appellate Review

§ Even when judgment has been entered, a party may obtain full appellate review only if it has preserved its claim of error by stating its position promptly and clearly at trial

§ Steps to an appeal

· Have persevered the error for appeal; object and voice objection at the time the evidence is presented

o Have to have made an offer of proof is judge allowed evidence despite of objection

o Only the specific objection you made is preserved on appeal

· The reviewing ct must conclude that the trial court erred

o Show that the judge made a mistake

o Standard of review on evidentiary issues is …..

· Assuming preserved the error and convinced the reviewing court an error was made you THEN need to convince the appellate court that it affected the outcome

o Outcome would have been different—reversible or prejudicial error

§ Appellate standard of review on evidentiary issues is abuse of discretion!! Broad discretion allotted to the trial court judge.—-have abuse of discretion if choice made was WRONG, or wrong law

· When it’s an issue of law the standard of review for the appellate court is de novo—no discretion is given

– Relevance

o Rule 401

§ Evidence is relevant if

· having any tendency to make a fact more probable or less probable than it would be without the evidence (50%)

· And the fact of consequence in determining the action

o 402: Relevant Evidence Generally Admissible; Irrelevant generally inadmissible

§ All relevant evidence is admissible except as other provided by x,y,z. Evidence which is not relevant is not admissible

o 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time pg 53 rule book

§ Court may exclude relevant evidence, if its probative value is substantially outweighed by the danger of one or more of the following; unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay waste of time or needless presentation of cumulative evidence.

· Only time reverse this judgment would be when the judge abused his discretion —if there was only one option (if can go either way not an abuse of discretion)

o Relevant evidence is generally admissible ad irrelevant evidence is not

§ Burden of proof probability—preponderance of the evidence 50%—evidentiary burden of proof in criminal and civil cases

§ Just needs to have any tendency to make a fact of consequence in the case to make the fact more probable or less probable

· To meet 401—doesn’t need to even be 50%–just needs to move the needle

o Logical Relevance

§ Evidence is relevant if it tended to establish the point for which it was offered, and material if the point bore on issues in the case

§ Evidence should be admitted only if it is relevant and material

§ 401 defines relevant evidence as having any tendency to make the 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

· Only needs to move the needle

o Establish relevance

§ Proponent should be prepared to put forth an evidential hypothesis why something is relevant

§ Deduction and categorical logic sometimes appears in litigation

o Relevancy as a threshold

§ Evidence of efforts to avoid capture is generally admissible in criminal trials

§ Evidence of flight does not create a presumption of guilt

§ Rule of completenesss

· 106 invites the adverse party to require the proponent to offer another writing at the same writing as the writing being offer

o Authorizes adverse parties to answer an incomplete presentation later in trial

Page 142 *will definitely be on the exam

Rule 103. Rulings on Evidence

(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.

Once the court makes a definitive ruling on the record admitting or excluding evidence

a person

o ALWAYS IDENTIFY ON THE EXAM WHO IS THE DECLARANT—not always the witness

· That is offered for its substantive truth

§ If any one of the above elements is missing we do not have a hearsay statement—this does NOT mean that the statement is necessarily admissible

o Handy Hearsay definition

§ A hearsay issue is presented whenever evidence is offered either through a live witness or an exhibit that consists of a previously made statement that is offered for its truth.

· Previously made statement still qualifies as hearsay under rule 801 even though the statement

o Is the witness’s OWN previously made statement

o Was made under oath subject to the penalty of perjury, such as an affidavit

o Was made at an earlier trial or heading whether in the same case or diff case

o Was made at a deposition

o Was subject to cross examination when the statement was made

· There are the additional rules that are EXCEPTIONS to hearsay

· If statement fails to qualify as hearsay under 801 (a)(b)(c) then the analysis NEVER proceeds on to the hearsay exceptions of 801(d) and rules 803-807.

o When is the statement offer for its truth?

§ The key is What is the statement offered to prove

§ If it is to prove that something was truly said but not for its substantive truth then it may be permitted

o Common examples of not hearsay when offered for other purposes

§ A prior inconsistent statement by a witness offered to impeach the declarant/ witness’s credibility

· Witness who is being impeached must be the one who made the earlier consistent statement

§ A statement by a declarant that constitutes a VERBAL Act or the verbal part of an act by the declarant.

· This is known as words of independent legal significance ( operative facts exception)

· Legal acct of doing something must be done with words

· This exception only allows testimony that the statement was in fact truly said

· Magic person uttering magic words= verbal act

§ Statement by a declarant that is offered to show the effect on the listener or reader of declarant’s statement

§ Statement by a declarant that is offered as circumstantial evidence of the DECLARANT’s state of mind

· The statement by the declarant is ONLY admissible to prove the declarant’s state of mind and is NOT admissible to prove the underlying facts contained in the statement

· Direct evidence of state of mind is covered by its OWN hearsay exception rule 803(3)

o The hearsay outcome under either circumstantial evidence of state or mind or direct evidence of state of mind is identical

· Irrespective of whether the declarant’s statement is offered as direct or circumstantial evidence of state of mind the declarant’s state of mind must be a legitimate issue in the case otherwise the statement is irrelevant and inadmissible under rule 402

§ A statement that constitutes a Verbal object ; ie identifying words on an object

· Allows the words to show that they were ‘said; not that it was true