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Seton Hall Unversity School of Law
Caraballo, Wilfredo

Evidence Outline- Prof. Caraballo Spring 2013
I.                   INTRODUCTORY RULES
a.       FRE 102: Purpose and Construction
                                                              i.      These rules shall be construed to secure fairness in administration, elimination of 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 securing a just determination
b.      Preliminary Questions of Admissibility- FRE104
                                                              i.      FRE 104(a) – Questions of admissibility are determined by the judge
                                                            ii.      FRE 104(b) – When relevancy depends upon fulfillment of a condition of fact, the court should admit it on evidence sufficient support a finding of fact
a.       Mistrust of Juries
                                                              i.      Ex. Hearsay Doctrine- exists bc we do not believe juries can properly evaluate statements made outside its presence
b.      Ensure Accurate Fact Finding
c.       Set polices allocating burdens
d.      Set “extrinsic substantive polices”
                                                              i.      Ex. regulating the use of one spouse as witness aims to protect marriage
e.       Reinforce Judges power to control proceedings/control the scope and duration of trials
a.       Bench Trial- Judge acts as decision maker, determines admission/exclusion of evidence, fact finder, and weighs the evidence
b.      Pre-Trial Motions
                                                              i.      Motions in limine- used to get a pretrial ruling on an evidentiary question which is used to exclude evidence from presentation in front of the jury
c.       Jury Selection
                                                              i.      Voir Dire- the questioning process.  Allows you to detect bias
                                                            ii.      Preemptory challenges
1.      Each party gets a fixed number to dismiss a juror for any reason (except if dismissing them bc of race/gender)
                                                          iii.      For Cause Challenges
1.      If Juror is related to a party or is prejudiced on an issue he may be excluded “for cause”
d.      Opening Statements
                                                              i.      Each attorney presents an overview to help the jury to understand what’s to come
                                                            ii.      Sum up facts that each party contends the proof will establish- Attempting to persuade the jury to see the case in a certain way (no arguments allowed)
e.       Presentation of Proof
                                                              i.      Party w. burden of persuasion goes first in presenting their “case-in-chief” which includes calling witnesses to the stand.  Has to est. each element of the cause of action necessary to the case
                                                            ii.      Defense presents its “case-in-chief” which attempts to cast doubt of Ps evidence and prove affirmative defenses
                                                          iii.      P rebuttal- rebuttal evidence may only respond to either (1) matters raised as a part of Ds defenses or (2) attacks during the defense case on credibility of Ps evidence
f.       Closing Arguments
                                                              i.      When proof is in- lawyers can argue but bound by the actual evidence that was admitted
                                                            ii.      Party bearing burden of persuasion (usually P) has right to make two closings one before and one after his adversary
                                                          iii.      Address doubts, reinforce sympathetic reactions, and explain why the jury should find for his client
g.      Instructions
                                                              i.      Judge instructs jury on the law so it understands what it must decide in order to reach a decision and may instruct the jury on what points must be decided before considering a certain piece of evidence
h.      Deliberation and Verdict- Judge asks Qs to ensure all jurors agree on verdict announced
i.        Judgment and Post-Trial Motions
                                                              i.      Time for appeal begins to run after verdict is announced and court enters judgment
                                                            ii.      2 types of post trial motions
1.      JNOV- Judgment Notwithstanding Verdict
a.       No reasonable jury could have reached this verdict
2.      Motion for a new trial
a.       Based on erroneous instructions, admission/exclusion of evidence
IV.               THE RECORD
a.       Always must make sure that the record reflects what you want the audience to see and hear.  Do not:
                                                              i.      Overlap – several voices speaking at once
                                                            ii.      Exhibits—lay proper foundation for tangible evidence- find and unambiguous way of referring to it
                                                          iii.      Going off the record
V.                 TYPES OF EVIDENCE
a.      Real evidence- refers to tangible things directly involved in the transactions or events in litigation (includes writings)
                                                              i.      Except for writings, law does not require production of the items
                                                            ii.      In order to introduce real evidence, attorney must (1) mark it for ID, (2) authenticate it, (3) move to introduce it into evidence, (4) Opponent can object
b.      Demonstrative evidence – tangible proof/reconstructions that makes the illustrations, charts, pictures, and diagrams the point to be proven
                                                              i.      Usually must be supported by testimony showing that the dimensions and perspective are correctly depicted in cases of reconstruction
c.       Circumstantial
d.      Process of evidence
                                                              i.      When evidence is being introduced, attorney wants to make sure:
1.      Only proper evidence is being admitted (substantive)
2.      Make sure it is being presented in the right way (form)
I.                   FRE 611- Mode and Order of Examining Witnesses and Presenting Evidence
a.       (a) Judge has authority to control the examination of witnesses during trial
                                                              i.      Make procedures effective for determining the truth
                                                            ii.      Avoid wasting time; and
                                                          iii.      Protect witness from harassment or undue embarrassment
b.      (b) Cross – should not go beyond the subject matter of the direct and matters affecting witness credibility
a.       Direct- lawyer is question his own witness which is used to est. those facts that are essential to the claim of the party calling the witness
b.      Leading Questions- Q that suggests the answer desired by the examiner and often elicit Y or N answers, narrowing the inquiry
                                                              i.      Should not be used on direct examination. 
                                                            ii.      Judge makes the determination if leading Qs will be allowed
c.       FRE 611(c) exceptions to leading questions
                                                              i.      To develop the testimony
1.      Helping to elicit testimony from a less competent witness such as someone who is young, unintelligent, unfamiliar with the language, or timid
                                                            ii.      When the witness is uncooperative-Hostile
1.      Get the judge to declare witness on direct is a hostile witness in order to treat them as if you are crossing them
                                                          iii.      When memory seems exhausted
1.      Refresh recollection of witness –lawyer reminds the witness of something he has said before, most often in a written statement or affidavit
                                                          iv.      When the rule is more trouble than its worth
1.      Developing preliminary matters
2.      True matters that are not contested, leading Qs may be

unsel’s interpretation of the evidence and are improper- jury is to interpret the evidence
                                                          iv.      Compound Q- contains 2 or more Qs which increase risk of inaccuracy
                                                            v.      Leading the witness
                                                          vi.      Misleading Q- Q misstates the evidence
                                                        vii.      Calls for Speculation- witness cannot testify to what they suppose/guess
                                                      viii.      Lack of foundation
                                                          ix.      Calls for a narrative response- may allow witness to include irrelevant testimony
                                                            x.      Non-responsive to the Q- witness must provide answers when asked proper Qs
X.                 EVIDENTIAL ERROR
a.       Generally-
                                                              i.      Have to be able to preserve rights on appeal
1.      Do that by making objections
                                                            ii.      Reviewing court awards relief ONLY when errors seem to have made a real difference in result
1.      FRE 103- a party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party
a.       MUST have affected the outcome
b.      If ruling admits evidence:
                                                                                                                                      i.      Party must put on the record: timely object or move to strike
                                                                                                                                    ii.      AND state the specific grounds unless it was apparent from context
c.       If ruling excludes evidence:
                                                                                                                                      i.      Party informs court of its substance by an offer of proof
1.      Demonstrate to the trial court exactly what he is prepared to introduce if permitted
2.      Court may make statement about the ruling & may direct an offer of proof
3.      The court must prevent the jury from hearing inadmissible evidence
                                                          iii.      Motion in Limine
1.      When party anticipates that particular evidence will be offered to which he will object à attempt to obtain a ruling in advance
2.      Limits issues of evidence prior to trial
3.      FRE104(c) conducting hearings so jury cannot hear
b.      Kinds of Error on the Merits
                                                              i.      “Reversible error” – mistake that probably affected the judgment
1.      A judge will be overturned when a ruling has effected a substantial right of the parties
                                                            ii.      “Harmless error” – mistake that probably did NOT affect judgment
                                                          iii.      “Plain error” –warrants relief regardless if party failed to preserve its right
                                                          iv.      “Constitutional error” – mistake in admitting evidence in criminal cases
                                                            v.      ** Can only get a ruling reversed if it substantially affects the outcome **