Select Page

Seton Hall Unversity School of Law
Lillquist, Erik

Evidence, Dean Lillquist, Fall 2012
1)      Procedural Context
a.      Civil: complaint, motion to dismiss, answer, discovery, summary judgment, pretrial conference, trial, appeal
b.      Criminal: complaint, indictment/information, preliminary hearing, discovery, pretrial conference, trial, sentencing, appeal
2)      Rules of Evidence
a.      Most don’t apply at sentencing
b.      Often issues of appeal relate to court’s decision to admit/exclude evidence
c.       Rules of evidence are about controlling information at trial
3)      normal process by which FRE are created
4)      Supreme court appoints judicial conference of the US- group of judges from all federal courts and they have a standing committee on the rules of practice or procedure and they have an advisory committee that draft the rules. FRE start in advisory committee that comes up with proposals to alter the rules and those go to the standing committee who accepts/rejects/modifies and then passes onto judicial conference who accepts/rejects/modifies and then goes to SC who can accept/reject/modify and then promulgates the rules. Congress has a check on this process and can veto the rules, although it normally accepts.
a.      like the re-stylizing
5)      Reasons for trials
a.      Find out the truth of what really happened
                                                              i.      Not all trials require accurate fact-finding (reasons: efficiency, right to privacy)
b.      Build confidence in the system- legitimacy
c.       Nullification- creates legitimacy of system
d.      Information- send a message to the rest of society
e.      Giving parties an opportunity to diffuse a dispute
6)      United States
a.      Relatively uniform rules of evidence
b.      Until 1975- all rules of evidence were Common Law (except CA and NJ).  Creation of FRE in 1975. In 1991, NJ adopted slightly modified version
c.       English system: there were no lawyers in criminal proceedings except for the judge. Very quick trials. No rules of evidence until late 18th century
7)      Europe
a.      Judge more involved in fact finding or is fact finder. No rules of evidence
8)      Trial Process
a.      Jury selection (Voir dire; all challenged for cause and unarticulated challenges are limited; judge engages in initial instructions to jury)
b.      Initial instruction (Judge gives the jurors info about the case and their role)
c.       Preliminary motions/motions in limine (motions to obtain rulings on anticipatory evidentiary issues.  Parties can also make motions to exclude witnesses from the courtroom until they testify under FRE 615)
d.      Opening statements (Attorneys tell a story not based on inferences or arguments.  Predictions about what the evidence will be.  No legal conclusion. Defendant can put on opening after prosecution/plaintiff or after P’s case ends)
e.      Testimony- Direct exam, Cross exam, introducing exhibits into evidence
f.        P rests- (D can rest or present case and then rest.  P can follow with rebuttal and only respond to things raised during D’s case.  D can respond with sur rebuttal and so forth)
g.      Jury Instructions (Judge instructs jury as to the law regarding the case)
h.      Closing Statements (Attorneys can make inferences about facts and come to legal conclusion.  Why you think the evidence in this case meets legal standard for claim/crime. No personal opinions although sometimes defense gets away with it in order to humanize the defendant)
i.        Deliberations (secret and unknowable)
j.        Verdict Returned
9)      Motion in limine
a.      Litigate issue prior to trial to exclude or find admissible a piece of evidence
b.      Preserve issue for appeal
10)  Hard to win on appeal
a.      Have to show
                                                              i.      Decision of lower court was erroneous (reviewed under abuse of discretion standard- no rational judge could have made that decision)
                                                            ii.      Had to show it had a big impact on the case (material- affected substantial rights of the party and wasn’t harmless)
11)  Limiting Instructions
a.      Tell jury what it cannot do with a piece of evidence
                                                              i.      Do you want to ask for one? Could it make things worse?
a.      FRE are generally applicable in Federal Court, but some situations when case is not bound (mentioned in FRE 1101)
13)  FRE 102. PURPOSE
a.      FRE are about justice and balance
a.      To preserve an issue for review on appeal an objection has to be made. Objection has to be timely (If to form of the question- has to be made before the answer.  If answer brings in erroneous evidence, have to make right after for judge to strike).  Objection has to be specific. Judge might call for attorneys to argue outside of the hearing or presence of the jury. In order to offer proof in order to preserve for appeal- stipulate to other party what the evidence would be or put witness on stand outside hearing of jury to record testimony.
a.      Any party, including the party that called the witness, may attack the witness’s credibility.
a.      (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
                                                              i.      (1) make those procedures effective for determining the truth;
                                                            ii.      (2) avoid wasting time; and
                                                          iii.      (3) protect witnesses from harassment or undue embarrassment.
b.      (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination.
c.        (c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. Ordinarily, the court should allow leading questions:
                                                              i.      (1) on cross-examination; and
                                                            ii.      (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party.
a.      Court may call and question witnesses (usually doesn’t happen)
a.      At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding:
                                                              i.      (a) a party who is a natural person;
                                                            ii.      (b) an officer or employee of a party that is not a natural person, after being designated as the party’s representative by its attorney;
                                                          iii.      (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense; or
                                                           iv.      (d) a person authorized by statute to be present.
b.      Interpretation:
                                                              i.      Avoid other witnesses tailoring their testimony based on what others say
a.      Courts and proceedings where the rule applies.  Where it does not (includes 104(a) preliminary question of fact governing admissibility)
1)      Only relevant evidence helps the jury achieve rational outcomes, meaning outcomes based on the jurors’ use of their reasoning capacity.
2)      Rules promote juries’ access to relevant evidence
a.      Relevant evidence is admissible unless any of the following provides otherwise:
                                                              i.      The US Constitution
                                                            ii.      A federal statute
                                                          iii.      These rules; or
                                                           iv.      Other rules preserved by the Supreme Court
b.      Irrelevant evidences is not admissible
c.       Interpretation
                                                              i.      Relevancy is the first hurdle. Relevancy is a necessary but not sufficient condition for the admissibility of evidence. Even if it’s relevant, it can still be excluded by other rules.
                                                            ii.      Operates more as a shield for an opponent rather than a sword for the proponent
a.      Evidence is relevant if:
                                                              i.      (a) It has any tendency to make a fact more or less probable than it would be without the evidences and
                                                            ii.      (b) The fact is of consequence in determining the action
b.      Interpretation
                                                              i.      Requires a connection from the EF to an FOC
                                                            ii.      No piece of evidence is intrinsically relevant.  Relevancy is always relational to the elements/issues in the case
                                                          iii.      Favors admissibility
                                                           iv.      Relevancy is always relational. No piece of evidence is intrinsically relevant, instead deciding whether a piece of evidence is relevant depends upon the relationship between the piece of evidence on one hand and the elements of the claim/crime/defenses in the case.
                                                             v.      (a) Any tendency to make a fact for more less probable
1.      this basic test is very minimal and the tendency that any rational juror could achieve about a piece of evidence
a.      Judges aren't making determinations about relevancy based on what they think but are asked to externalize from themselves and ask could a juror think that a fact is more or less probable based on this piece of evidence? It is a reasonable generalization based on common knowledge and experience that will support each inference in the chain of reasoning?
2.      Advisory committee note- often whether or not a piece of evidence is relevant is going to depend upon our intuitions about human behavior and generalizations we make about the world.  It may turn out those generalizations are wrong, but unless we absolutely know their wrong, those generalizations will usually be enough to make those pieces of evidence relevant
a.      we generalize that an eye witness accurately remembers what they saw and accurately saw them, so that makes the testimony relevant
b.      necessary generalization cannot be known to the judge to be false (e.g. x-ray vision) and cannot be pure speculation (e.g. men are more aggressive)
                                                           vi.      you always have to tie a piece of evidence to an element of the case.  If not possible, then it’s irrelevant. Doesn’t matter is the tie is weak.
                                                         vii.      Conditional relevancy-probative value depends not only upon satisfying the basic requirement of relevancy as described above but also

will cause the jury to draw a mistaken inference (not an unwanted inference).  Rely too much on the evidence
2.      E.g. picture of guns in Hitt, only one of the guns in the pile were his.  The rest were his roommate’s
3.      E.g.- scientific evidence/lie detector tests: jury just takes as fact
                                                         xii.      curative admissibility or fighting fire with fire
1.      some courts might let the proponent put on the evidence of something that violates 403 as a way of balancing the mistake of admitting another piece of evidence that would normally be barred by 403
2.      courts don't like to allow parties to engage in this because they're gaming the system, but court might allow it. Shouldn’t count on it
                                                       xiii.      Even if you fail to object you can raise an issue on appeal that it was plain error for the evidence to be admitted. Incredibly high standard. in order to guard against plain error, judges ought to jump in to object even if the parties didn't do so
c.       Old Chief
                                                              i.      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
                                                            ii.      About the admissibility of evidence of a felony conviction in a prosecution of being a felon in possession of a weapon under. The defendant had offered to stipulate to the existence of the prior felony thus making it all about whether he was in possession. Question is how much probative value this evidence has given the defendant's stipulation
                                                          iii.      The court here rules in the defendant’s case on this particular issue.
1.      The opinion of the court here is actually much more governmental friendly overall because court goes on at some length on the power of the government to shape the evidence in its own case and under normal circumstances, the defendant is not allowed to stipulate away the evidence
2.      Tendency to reject these stipulations because of storytelling. Need for a narrative richness. the concern the DA has in many situation is about the defendant trying to stipulate away the heart of the DA's case and turn it into a dry recitation of one or two elements and that will hamper the jury's ability to get the information. once you start stipulating away too much, the jury wonders why it's not being able to see the entire case
                                                           iv.      Judge a piece of evidence under rule 403 in the context of all the evidence
1.      The evidence about the prior felony conviction is incredibly probative by itself, however in the face of a stipulation in the overall context of the case; the probative value is quite low. it adds very little if the defendant is already stipulating to the felony. Court says you view it against the other evidence that's out there
                                                             v.      Analysis: Does it fall close enough to Old Chief or is it more like a general situation?
1.      Akin to the felon status of the defendant in Old Chief and really doesn't go to the descriptive richness
d.      US v. Marino Balderama- Defendant stipulated that it involved child porn and asked that the actual videos not be seen because they are too prejudicial. The box covers were indeed shown and showing the actual video tape was to a certain extent overkill. Here, a photo is not as inflammatory as a video.
e.      Limiting Instructions
                                                              i.      Advisory committee notes on FRE 403
                                                            ii.      when you're dealing with Rule 403, think about the availability of limiting instructions.  Under rule 105, the court has the authority to give limiting instruction when asked when the evidence is admissible in one purpose but not another. Trial court takes the view that it can eliminate whatever the Rule 403 concern is by offering a limiting instruction.
1.      Concern as a trial lawyer is that limiting instructions just serve to emphasize the prejudicial nature of the evidence and that juries don’t do a good job with limiting instructions
f.        Appellate Review of district court’s 403 analysis- abuse of discretion
                                                              i.      Appellate Courts are generally very deferential to the lower court’s decision and reverse only if they find the decision so unreasonable and arbitrary- no rational judge could have come to the same conclusion