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Seton Hall Unversity School of Law
Carroll, Jenny E.

Evidence Outline- Spring 2014- Professor Carroll

I. Chapter 1: An Introduction to Evidence

a. The Anatomy of a Trial

i. Knowledge of which evid will be admissible allows to gauge the strength of her case, her opponent’s case, and the settlement value

ii. Breakdown of how a trial unfolds:

1. Pretrial motions:

a. Motions in limine- exclude inadm evide before trial; may request that prop of raise adm of evid outside of the jury’s presence before attempting introduction

b. Judge can defer ruling; adv must make sure that evid not offered in front of jury until judge ruled

i. Imp- very hard for jurors to unring the bell

2. Jury Selection and Instruction:

a. Jury selection:

i. Voir dire- judge/attys ask qs of potential jurors

ii. Attys use selection to come close to ideal jury

iii. Potential jurors can be dismissed b/c of (1) inability to be impartial; or through (2) peremptory challenges- need no reason but must not b/c of race or gender

b. Jury instructions- judge instructs jury of their role – jury decides questions of fact and must keep an open mind

3. Opening Statements:

a. When is the opening statement offered:

i. Party w/ BOP goes first

ii. Def may offer op stmt EITHER (1) after Pltf/Pros op stmt; OR (2) after Pltf/Pros rested their CIC

b. What is the opening statement:

i. Roadmap of what evidence will demonstrate

ii. Judge- latitude defining scope- stating what a witness will state or what an exhibit will show is proper; characterizing evid, trying to persuade the jury about a point is inapprop

4. Plaintiff/Prosecutor’s Case in Chief- test and evid okay ALA adm pursuant to the rules and survive any objs raised by Def

a. Narration planted during op stmt takes shape during exam/cross

b. Live test- call a witness; conduct direct w/ open ended qs for witness to express herself; Def cross-examines w/ leading qs to control witness and cred doubts emerge; judge may allow re-direct (limited to responding to new points raised on cross); judge may allow recross on new points raised on re-direct

c. Witness must be allowed to tell version of story in a credible manner for jury to have faith in her version

d. Atty not asking the questions can object

i. Goal- break up narration; assure that test reliable and relevant

ii. Objs in front of the jury (most) or sidebar (jury cant hear )

iii. Judge makes decision on obj:

1. Overruled- evidence admissible

2. Sustained- disregard q/a; strike answer

5. Motion for Acquittal (Crim) or Directed Verdict (Civil)-Def may ask, at close of Pltf/Pros CIC, to dismiss: Pltf/Pros has not met BOP to estab every elem

a. Judge’s std- whether suff evid exists that could justify a jury verdict in Pltf/Pros favor. If yes- motion denied.

6. Defendant’s CIC-

a. Def presents evid w/ same procedures of P CIC

b. If affirmative def presented- Def has burden to produce sufficient evid to survive a motion to dismiss

i. Crim- Pros may not receive judgment as matter of law due to Def’s 6th Am jury right

ii. Civil- move for DV

7. Rebuttal and Surrebuttal:

a. Pros- rebuttal evid confined to responding to Def’s evid

b. Def- surrebuttal evid lim to evid that responds to Pltf/Pros rebuttal evid

8. Directed Verdict Motions

9. Closing Arguments:

a. Party w/BOP offers first; Def follows, Pltf/Pros given opp to rebut

b. Goal- sum up evid for jury

c. Argue interpretations of evid in order to convince jury that your narrative is correct

10. Jury Instructions- judge instructs jury on app of law; judge determines how jury will be instructed through parties different instructions

11. Jury Deliberations- in secrecy;

a. Gen verdict- who wins and what remedy should result

b. Special verdict- answers series of qs crafted by judge; court will use answers to determine verdict

12. Post-Trial Motions and Entry of Judgment- loser may move of judg as MOL for a new trial; after judge rules, court will enter judgment on the verdict

b. Witnesses

i. Competency

1. FRE 601: Competency to Testify in Trial: Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

2. Second half of 601- Erie Doct: state proc rules apply to adjs of a state law claim

3. Low threshold- almost any witness deemed competent

4. Weight v. adm- almost all matters on witness cred go to weight

a. Just b/c good reason to q veracity/accuracy of test doesn’t mean witness is silenced- issues left for cross (Gazelle theory- something wrong w/ evid will come out on cross and unreliable evid weeded out. Get to present evid but give little weight)

b. Policy:

i. Efficiency- don’t want flood of pre-trial motions and judges making weight determinations

ii. Adversarial system- attorneys can point out to the jurors what evid is reliable

iii. Criticism- sacrifice truth fighting for reliance on adversaries by allowing all evid in

5. Test- Witness can testify ALA they (1) meet FRE 602 (personal knowledge) AND (2) 603 AND (3) are minimally capable of observing, recalling and communicating source of test

a. A judge qs witness outside presence of jury in order to estab threshold for competency is met

6. Limitations:

a. FRE 605- judge who is presiding at trial

b. FRE 606(a)- member of the jury at trial

c. FRE 601- state c

i. FRE 606(b):

(b) During an Inquiry into the Validity of a Verdict or Indictment.

(1) Prohibited testimony or Other Evidence.

During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.

(2) Exceptions. A juror may testify about whether:

(A) extraneous prejudicial information was improperly brought to the jury’s attention;

(B) an outside influence was improperly brought to bear on any juror; or

(C) a mistake was made in entering the verdict on the verdict form.

ii. Tanner v. US (1987)

1. Facts- Jurors revealed rampant drug/alcohol use by jury during the trial: falling asleep during hearing & deliberations.

2. Def Arg- 6th Am: right to trial by a competent jury

3. Rule- Rule 606(b) prohibits adm of juror testimony to impeach verdict except where theres been outside/external influence.

a. External- outside knowledge; bribes

b. Internal- inside info about jury deliberations; mental health issue; staying awake; conversations btw jurors

4. Holding- No. DC didnt err in refusing to hold an evid hearing

5. Reasoning:

a. Pol: Need finality in verdict- full discussion in delib room; jurors’ willingness to return an unpopular verdict; belief in layperson jury would be undermined by post-verdict scrutinizing of juror conduct

i. Don’t want harassment of jurors

b. Voluntarily ingested drugs/alcohol are no more of an external influence than illness or lack of sleep

c. Pet’s 6th Am right to fair trial w/ fair & impartial jury is protected by proc safeguards like voir dire, non-juror test, and juror observability by court personnel

6. Dissent- If jury is intoxicated by drugs/alcohol to point of sleeping through material portions of the trial, verdict must be set aside. 606(b) not app to juror test on matters unrelated to delibs about case. Even if app, test of juror intoxication should be admissible as “outside influence”.