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Seton Hall Unversity School of Law
Lillquist, Erik



Fall 2014

I. Relevancy:

Policy: Pro admissibility! (401-403, 105)

Rule 401

Test 4 Rel Ev.

Ev. is relevant if: (2 part test)

(a) has any tendency to make a fact more or less probable than it would be w/o the ev.; &

(b) the fact is of consequence in determining the action.

Rule 402

(1) Relevant evidence is admissible unless provided otherwise by: US. Const., fed stat., FRE, or

other supreme ct. rules

(2) Irrelevant evidence is not admissible.

Rule 403

Balancing test

The ct. may exclude relevant ev. if its PV is substantially outweighed by a (403) danger:

(a) unfair prejudice (b) confusing the issues (c) misleading the jury (d) undue delay (e) waste of time (d) needlessly presenting cumulative ev.

· PV < SO < 403D

Rule 105

(Limiting Evidence: jury instruction):

If the ct. admits ev. that is admissible against a party or for a purpose – but not against another party or for another purpose — the ct., on timely request, must restrict the ev. to its proper scope & instruct the jury accordingly.

· Relevancy Test: (1) Any tendency… + (2) FOC (related to an issue at stake in the case) (by an inferential chain of reasoning).

o Any Tendency: objective – could a rational juror conclude that it is relevant.

§ Reasonable generalizations: can’t be (i) false, or (ii) pure speculation.

· 402 – highlights pro-admissibility policy.

· 403 – (remember scale still heavily in favor of admissibility) (probably only excluded where PV is low & D is high).

o Test: (1) PV of Ev (2) 403 ? (3) Balancing Test.

§ Judicial Discretion here: abuse of discretion (standard 4 appellate review).

o 403 Dangers:

§ Unfair Prejudice: 2 risks (i) Elicits emotional response (ii) used in a manner that violates FRE (misuse).

§ Confusion of issues: leading the jury “off-track” to a collateral issue, away from the main issue. (Fixating)

§ Misleading the Jury à Leads to mistaken inference

· Emotional ≠ Mistaken/Misleading

§ Undue Delay, Waste of Time, Needlessly Cumulative (all related).

o U.S. v. Hitt: picture of gun among others, should be inadmissible, misleading/highly prejudicial + low PV.

o Old Chief: stipulate 2 previous felony offense to avoid jury prejudice à should’ve been granted in light of 403 balancing. (More of an outlier case).

II. Evidentiary Foundations: Laying the Foundation of Proof

· Steps: (1) Label Ev (2) Lay Foundation (3) Formally move into Ev.

a. Laying the Foundation for Witnesses:

Rule 601


(1) Every person is competent to be a witness, unless these rules provide otherwise.

(2) But, in civil cases, where a state law governs a claim, state competency laws applies

– History/policy/common law

Rule 602

Personal knowledge

W must be shown to have personal knowledge to a matter by evidence “sufficient to support a finding” à Witnesses own testimony is enough to show PK.

Rule 603

Oath to Testify Truthfully

Before testifying a witness must give an oath or affirmation to testify truthfully. (must show that duty is understood).

Rule 605

Presiding judge may not testify as a witness (no objection need be made – no point).

Rule 606

A juror cannot be called as a witness. Need to object, but can do it away from the jury.

· Rules favor impeaching a witness on the stand over labeling them incompentent to testify.

· Children: presumption of competence where they are the V/Witness of crime.

· Deadman Statute: in NY, not NJ – can’t testify to dead persons communication if u r being sued by his estate.

b. Authenticating and Identifying Exhibits:

Rule 901

Authenticating or Identifying

(a) In general

(a) proponent must produce evidence sufficient to support a finding that the item is what proponent claims it is (authenticating ev. itself must be admissible) – Low standard.

(b) Examples

(Incomplete List)

(b)(1) Testimony of a W w/knowledge (that the item is what it is claimed to be.

(b)(2) Nonexpert opinion about handwriting (based on familiarity with it, not acquired through litig.

(b)(3) Comparison by an Expert W or the Trier of Fact.

(b)(4) Distinctive Characteristics and the like – consider appearance, contents, substance, internal patterns, or other distinctive characteristics of item together w/all circumstances.

(b)(5) Opinion about a voice: Opinion identifying a voice firsthand/recording.

(b)(6) Ev. about a telephone conversation: need Ev. that a call was made to the #assigned @time to

(A): particular person – if shown that he/she was the one called.

(B): Particular business – (i) if the call was made to it, and (ii) call related to business reasonably

transacted over the phone

(b)(7) Ev. about Public Records: need Ev. that..

(A) a document was recorded or filed in a public office as authorized by law; or

(B) public record/statement is from from the office where such items kept.

(b)(8) Ev. about ancient docs or data compilations: (circumstances suggest reliability; i.e. ev. that…

(A) Is in a condition that creates no suspicion

ified as correct, or testified as correct by W who compared it with original

Rule 1006

(sparknotes rule)

Summaries to Prove Content

If W/R/P so voluminous à can use summary, chart, calculation

· But O’s must be admissible & need to be available.

Rule 1007

Testimony/Statement of a Party to Prove Content

If party against whom info about the contents of a w/r/p is testifies about its contents à original not required.

Rule 1008

Functions of the Court and Jury

1) Judge – determines if proponent has fulfilled BER conditions

2) Jury – in Jury trial, Jry determines and issue about whether…

(a) An asserted w/r/p existed at all

(b) Another one produced @trial is the O. à (if conflict btwn 2 competing à jury decides)

(c) Other Ev. of the content accurately reflects the content (if O is unavailable).

– 2 Competing versions of same document (one is copy) à Jury decides which is the O.

§ Only need 2prodce W/R/P instead of testimony, when the W is testifying as to the contents of the W/R/P, not to its existence.

d. Judicial Fact Finding Under 104

Rule 104

Preliminary Questions (mostly decided by judge)

(a) In General

The Judge, not the jury, decides whether Ev. is admissible, and rules on almost every possible objection to admission. There is only one specific type of objection that is left for the jury to rule on, “conditional relevance,” see infra sec (b) à

· Standard of proof 4 judge – preponderance (decided by SCOTUS).


Relevance that Depends on Fact

When the relevance of Ev depends on whether a fact exists, proof must be introduced, sufficient to support a finding that the fact does exist. The Ct. may admit the Ev. on the condition that the proof be introduced later.

· “Sufficient to support a finding”- could reasonably be more probable than not (higher than “any tendency” standard of 401.

· 104(a) vs. 104(b) à does the relevancy turn on the existence of some other fact.

· Dispute over Ev usually dealt with in pre-trial in-limine motions.