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Seton Hall Unversity School of Law
Lillquist, Erik


Dean Lillquist

Fall 2014


Procedural Context


complaint, motion to dismiss 12(b)(6), answer, discovery, summary judgment rule 56, pretrial conference, trial, appeal


complaint, indictment/information, preliminary hearing, discovery, pretrial conference, trial, sentencing, appeal (the sentence not the finding)

Rules of Evidence

a. Traditional rules rarely apply to preliminary trial but become more important in the move towards trial and sentencing

b. Often issues of appeal relate to court’s decision to admit/exclude evidence

a. what is admissible impact s discovery and ability to meet burden of proof

c. Rules of evidence are about controlling information at trial

Reasons/Goals for trials

a. Find out the truth of what really happened

a. Not all trials require accurate fact-finding (reasons: efficiency, right to privacy)

b. Determine with law what is the accurate outcome of the facts ‘beyond a reasonable doubt”

c. Confers legitimacy on dispute resolution (fairness, in the public eye)

d. Information- send a message to the rest of society (society accepts)

e. Giving parties an opportunity to diffuse a dispute

**Always ask: Does the evidence help come to an accurate outcome? But this is not the only question.


a. Accuracy

b. Privacy

c. Privilege – protects information from disclosure, not for accuracy but right to privacy

d. Legitimacy

e. Social Harmony

f. Fairness

g. A Mechanism for Providing an Outcome

United States

· Relatively uniform rules of evidence

· 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

· English system: there were no lawyers in criminal proceedings except for the judge. Very quick trials. No rules of evidence until late 18th century


· a. Judge more involved in fact finding or is fact finder. No rules of evidence


1. Jury selection

a. Voir dire; all challenged for cause and unarticulated challenges are limited; judge engages in initial instructions to jury

· Group of Potential Jurors= Jury Venire

· Process of Questioning the Venire= Voir Dire

· Conducted by either the Judge, the Lawyers, written questionnaire, or both

· Federal Court: judge typically controls

· NY State Court: lawyers typically conduct without the Judge

· Challenges available to “strike” potential jurors

· Get rid of a juror:

a. For- Cause (the juror is biased, lawyers, family members): Unlimited #

b. Preemptory (for any reason except in violation of EPC): Limited # Baston v Kentucky

2. Initial instruction

a. Swears jurors in

b. judge gives the jurors info about the case and their role

3. Preliminary motions/motions in limine

a. Motions to obtain rulings on anticipatory evidentiary issues.

b. Parties can also make motions to exclude witnesses from the courtroom until they testify under FRE 615 (sequester them)(Motion in Limine – Litigate issue prior to trial to exclude or find admissible a piece of evidence)

c. Cannot be formally argumentative as to be objected (permissible v impermissible)

4. Opening statements

a. Attorneys tell a story not based on inferences or arguments. Narrative. First opportunity to convince jury

b. Predictions about what the evidence will be. No legal conclusion. Nothing lawyers say is evidence.

c. Defendant can put on opening after prosecution/plaintiff or after P’s case ends

d. Generally, P or Prosecution gives their statement and then Defendant will give theirs BUT the defendant can reserve their opening until P or Prosecution rests

e. Opening’s cannot contain evidence or argument

i. CANNNOT: “Mr. J committed a battery”

ii. CAN: “The evidence will show that Mr. J struck Off. H with a fist”

f. BUT–The line isn’t always clear: “Mr. J violently attacked Off. H”

i. Could argue that this is argumentative

Ex. In the Johnson case there’s no D opening statement to provide a counter narrative, the witnesses (officer) basically agree with the prosecutor so it becomes his testimony

5. Testimony- Direct exam, Cross exam, introducing exhibits into evidence

a. Oral testimony of witnesses: have witnesses set forth your side of the story in a way that’s accessible to the jury. Ask questions to draw ut information

b. FRE 611: Mode and Order of Interrogation and Presentation

Shall = Must

May = Can

“(a) The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the presentation effective for the ascertainment of truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.”

“(b) Cross Examination should be limited to the subject matter covered in direct examination and matters affecting the credibility of the witness.”

“(c) Leading questions should not be used on the direct examination except as may be necessary to develop the witnesses testimony. Ordinarily leading questions should be permitted on cross-examination . . . . [or with a] hostile witness, an adverse party, or a witness identified with an adverse party.”

In the case of an adverse/hostile witness, leading questions are permitted

Frame questions to anticipate a Y/N answer

FRE 614: The Court may call and question witnesses (but usually doesn’t happen)

6. P Rests

a. D can rest or present case and then rest.

b. P can follow with rebuttal and only respond to things raised during D’s case.

c. D can respond with sur rebuttal and so forth)

7. Jury Instructions

a. Judge instructs jury as to the law regarding the case

b. Judge doesn’t comment on the evidence

8. Closing Statements

a. Attorneys can make inferences about facts and come to legal conclusion. (how law applies to evidence)

b. Why you think the evidence in this case meets legal standard for claim/crime.

c. No personal opinions although sometimes defense gets away with it in order to humanize the defendant)

d. Address the jury and permitted to argue about the evidence

9. Deliberations (secret and unknowable)

10. Verdict Returned #truth

11. Judgment

12. Appeal

a. Have to show

· Decision of lower court was erroneous (reviewed under abuse of discretion standard- no rational judge could have made that decision)

· Had to show it had a big impact on the case (material- affected substantial rights of the party and wasn’t harmless)

Methods Jurors Obtain Information:

· Testimony of Witnesses

· Admission of Documents and other physical things

· Social Knowledge and Experience

Limiting Jury Instructions

· Tell jury what it cannot do with a piece of evidence

· Do you want to ask for one? Could it make things worse?

· Jurors come in with personal knowledge from life (you ant control this)

· Jurors are severely limited in terms of information bc cant research. Why don’t we give them more?



§ FRE are generally applicable in Federal Court, but some situations when case is not bound (mentioned in FRE 1101)

o FRE1101: The Applicability of Rules

§ 1101 (c): The rule of privileges applies at all stages

§ 1101 (d): The rules do not apply to:

· Preliminary questions of fact

· Grand Jury Proceedings

· Miscellaneous Proceedings

o FRE 102: Purpose and Construction

§ “The rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay. . .”

o FRE 103: Ruling on Evidence: How to deal with/ preserve evidentiary errors for appeal

§ 103(a): Effect of Erroneous Ruling

· Error may not be predicated upon a ruling which admits or excludes evidence unless:

o A substantive right of the party is affected;

o A timely objection appears on the record stating the grounds for objections;

) ® Knapp did not fear the Officer (FOC) ® Knapp did not act in self defense (EE)

2. Example Problems:


Length of the inference chain doesn’t matter; the strength of the inferences is the most important.

“I didn’t have the heart to go back” (EF) ® Denise really cared for the kids on the bus (IF) ® Denise had a heightened awareness to be safe (IF) ® Denise is a careful bus driver generally (IF) ® Denise was driving careful that day (FOC) ® Denise was not negligent (EE)

b. Letter from the School Board (EF) ® School Bd. actually wrote the letter (IF) ® School Bd. said it wants her to return to work (IF) ® School Bd. really means that it wants her to return to work (IF) ® School Bd. believes that Denise is a careful driver (IF) ® Denise is a careful driver generally (IF) ® Denise was careful that day (FOC) ® Denise was not negligent (EE).

viii. Conditional Relevancy: Sometimes, the relevancy of one piece of evidence will be conditioned on another piece of evidence.

1. Standard= sufficient evidence to support a finding (FRE104(b))

2. Examples:

a. Johnson case: Johnson’s cellmate being a crip is only relevant if there is evidence that Johnson is also a crip.

FRE 403:

Although relevant, evidence may be excluded if the 403 Danger substantially outweighs the probative value of the evidence.

è Is the evidence relevant? Yes (Meets 401, 402; makes more/less probable)

Is there a reason to keep is out under 403?


1. What is the probative value? (strength)

§ Probative Value= the persuasive effect that the evidence will likely have on the juries thinking about the fact of consequence it is offered to prove.

· Measures the strength of the inferences to make more or less probable.

· Weak evidence = low probative value

· Advisory Committee Notes:

o Balance probative value and need for the evidence against the harm likely to occur.

o Availability of other means of proof can be weighed

· Courts CAN NOT consider credibility

2. Is there a Rule 403 Danger?

§ 403 Dangers: Look to the nature of the danger, the likelihood the jury will be affected and the probable degree of the harmful effect.

1. Unfair prejudice= the danger that evidence might suggest an improper basis of which the jury can decide the case. Jury would use improperly.

An emotional response.

a. Violates another rule of evidence (ex. Character ev excluded other places)

b. Emotional response/reaction to evidence (causes an inference but not a mistaken one- an unwanted one)

2. Confusion of the issues= focuses the juries attention too closely on a fact that is not central to the outcome. Creates a “collateral issue.”

3. Misleading the jury= a risk that an item will cause the jury to draw a mistaken inference (not an unwanted inference). Rely too much on the evidence.

a. Unlikely to work in most situations.

b. Example of evidence that misleads the jury: scientific evidence/ lie detector tests: jury just takes as fact.

4. Undue delay

5. Waste of time (resources of court, attorneys, parties)

6. Needless cumulative evidence

a. evidence that absorbs the courts time and money and is needlessly repetitive