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Seton Hall Unversity School of Law
Denbeaux, Mark P.

Spring 2013
Professor Denbeaux
Seton Hall Law
Reasons for evidence law
Mistrust of juries
Substantive policies relating to the matter being litigated (e.g. burdens)
Policies on matters not being litigated (e.g. privileges)
Ensure accurate fact finding
Control the scope and duration of trials
Majority of states have rules tracking the Federal Rules of Evidence
RULE 501 – privilege rules are governed by common law
Order of presentation of evidence in trial
Plaintiff’s case-in-chief
Defendant’s case-in-chief
Plaintiff’s case-in-rebuttal
Defendant’s case-in-rebuttal (a.k.a. case-in-rejoinder)
Curative Instructions – admonish the jury to exclude from consideration certain testimony heard or information suggested during trial
Generally, the party whose case might be damaged by the curative instruction has the option of whether to let the jury hear it
Limiting Instructions – jury may only consider evidence for one purpose and not another
General Verdict – jury verdict that merely answers the ultimate question
Special Interrogatories – jury verdict that answers a series of questions; it may or may not have a “bottom line” general verdict
Principle of Finality – generally, appellate review is only available at the end of the case when there is a final judgment
Interlocutory Appeal is allowed in some instances
Official Record of a trial has five parts
Filed documents (e.g. motions and briefs)
Record of proceedings
Docket entries (e.g. summons, complaint, notice of appeal)
Testimonial Proof – Direct Examination seeks to accomplish three things
Background information of the witness
Laying the foundation to show that the person has knowledge
Substantive questioning
RULE 102 – rules are to be construed to meet three ends
Fairness in administration
Eliminate undue expense and delay, and
Develop the rules of evidence so as to achieve truth and justice
RULE 611
(a) – court has a great deal of control over the proceedings of trial and the questioning of witnesses
(b) – cross examination is limited to
Matters within the scope of the direct, and
Matters affecting credibility
Court may permit inquiry into additional matters as if on direct examination
(c) – leading questions are not permitting during direct examination, unless necessary to develop the witness’s testimony
Leading questions are permitted on cross examination
Attorney may use leading questions when directing a hostile witness  
Scope of the Direct Rule – in most jurisdictions, cross examination is limited to matters explored on direct
It enables the parties to control the order in which they present their evidence
If the other party wants to extract additional information, they must call the witness again later in the trial
When the accused waives his Fifth Amendment right, he waives it with respect to only those matters that are reasonably within the scope of the waiver on direct examination
Supreme Court has one case that suggests that there is a general waiver when the accused testifies
Normally, the scope of direct rule applies, but the court has the discretion to permit a broader cross examination
RULE 607 – any party may impeach the witness’s credibility, including the party that called the witness
RULE 1101
(a) – (c) – applicable to most proceedings in federal court
(d) – except for the privilege rules, these rules do not apply to
Preliminary questions of fact necessary to determine general admissibility under RULE 104
The judge, however, is still bound by them during bench trials
Grand jury proceedings
Miscellaneous proceedings (e.g. warrants, extradition)
FRE do not apply to arbitration proceedings  
Two general types of evidence
Circumstantial – might need to make a “evidential hypothesis” to explain why it is relevant
Direct Examination
RULE 611(c) – generally, leading questions are not permitted on direct examination
Necessary to develop the witness’s testimony
Witness is very young; very timid or frightened; ignorant, uncomprehending, or non-responsive; or infirm
Uncooperative witness (e.g. hostile witness or adverse party)
When the rule is more trouble than it is worth
Preliminary matters that are not in dispute (e.g. background)
When the witness is an expert, many courts permit leading questions; the presumption is that the witness will not be lead by the attorney
Memory seems exhausted
Attorney may “refresh the witness’s recollection”
Refreshing the Witness’s Recollection
RULE 612 – IF a witness uses a writing to refresh recollection either (1) while testifying, or (2) before testifying (if the court finds it in the interest of justice, THEN
Adverse party is entitled to have the writing produced at the hearing
May cross examine the witness on it
May introduce it into evidence (not hearsay because it is not being offered to prove the truth of the matter asserted, but rather to argue that the witness merely read from the document)
If it is claimed that the writing contains information not related to the testimony, the court may remove those portions after an in camera review
You can use anything to refresh the witness’s recollection
There is a distinction between the following:
Past Recollection Recorded
Document must be independently admissible
Present Recoll

th firsthand knowledge
Demonstrative Evidence – includes photographs, maps, diagrams, models, and computer-aided reconstructions
Proponent must demonstrate that they are a fair and accurate depiction of the matter in question
Drawings made by the witness to make a point have no evidential force independent from that testimony
Writings – physical evidence that must be introduced at trial rather than proved by testimonial description
Writings must also be authenticated by either testimony or stipulation
General Objection – “irrelevant, incompetent, and immaterial”
If overruled, it does not preserve for review whatever point the objector had in mind
If sustained, it will survive appellate review if there are any grounds for affirming the ruling
Substantive Objections – rest on particular exclusionary principles in the FRE
Formal Objections – focus on the manner of questioning (e.g. leading)
Many are enshrined in Rule 611, allowing the judge to control the court  
Motion in Limine – “at the threshold”
Judges often prefer not to make them, as they are more akin to advisory opinions
Rule 103(a) – an objection need not be renewed at trial if the judge made a “definitive ruling” on a pretrial motion
Offer of Proof – attorney faced with a ruling excluding evidence must make an offer of proof in order to preserve the matter for appeal
If the court has reason to doubt that the witness would testify as to what the attorney has offered, the court can exclude the jury and hear from the witness “in question and answer form”
For relevance matters, it is essentially the same as an evidentiary hypothesis
RULE 104
(a) – preliminary questions of admissibility are determined by the court (subject to subdivision (b)); the court is not bound by the rules of evidence in making its determination, except those rules relating to privilege
Preponderance of the evidence standard applies to all of these determinations
(b) – when relevance (admissibility) is conditioned on the fulfillment of a condition of fact, the court must admit it to the jury to decide, subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition