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Seton Hall Unversity School of Law
McLaughlin, Denis F.

McLaughlin Evidence Spring 2016

Evidence Law and the System

Evidence Law

FRE was adopted as the model for NJ – applies in civil and criminal cases but not at sentencing

Jury selections
Opening statement
Presentation of proof

P presents and then rests
D presents and then rests
P rebuttals
D rebuttals

Jury Instructions

Curative instructions

Judge tells the jury to exclude some things from consideration

Limiting instructions

Advise the jury to consider certain proof only on one point but not the other

Motion in limine motion filed by a party asking the court for an order or rule limiting or preventing certain evidence from being presented by the other side at the trial of the case

Obtain an evidentiary ruling in advance

Jury gives verdict and court enters a judgment

Post-Trial Motions

Appellate review
Making a record

However, 90% of civil cases settle

FRE 611 – Mode and Order of Examining Witnesses and Presenting Evidence

(a) – Control by the Court; Purposes

Court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:

Make effective procedures for determining the truth
Avoid wasting time and
Protect witnesses from harassment or undue embarrassment

(b) – Scope of Cross-Examination

Should not go beyond scope of direct and matters affecting the witness’s credibility

Can ask whatever you want on cross subject to court’s limitation
Or can ask only on cross what was covered in direct subject to the court allowing you to ask more

Exception = matters affecting credibility

(c) – Leading Questions

Not used on direct except as necessary to develop the witness’s testimony

Leading questions are generally objectionable on direct
Court should allow them:

On cross-examination or
When a party calls a hostile witness, an adverse party or a witness identified with an adverse party

In criminal cases, D is entitled to an attorney and appeal < >Problem – 1-A: How did it happen?At the intersection of Folsom and Valmont – two cars collide – a yellow car driven by Barton in which Dreeves rode as passenger, and a blue car driven by Felson. In a Rules jurisdiction, Barton sues Felsen for personal injuries and property damage. During her case-in-chief, Barton calls Dreeves, who testifies on direct that the blue car ran a red light. On cross, Felsen’s counsel asks the following questions and to each one, counsel objects for improper as beyond the scope of direct so how should the judge rule:Now Mr. Dreeves, you and Barton are seeing each other socially, isn’t that right?Not beyond scope because this can affect credibility since they may be friendsIsn’t it here, Mr. Dreeves, that at the time of the accident Barton here had turned clear around in her seat and was looking out the back window of the car?Depends on how they view the scope of direct If this is about the accident, it is fair game to askIf this is about what D did, what P did is beyond the scope Tell me, Mr. Dreeves, you and Barton here had just finished lunch at Sebastian’s where she drank three glasses of wine just before the accident?Depends on how they view the scope of direct If this is about what D did, then what P did is beyond the scope FRE 103 – Rulings on Evidence

Preserving a claim of Error – a party may claim error to admit or exclude evidence only if the error affects a substantial right of the party AND:

If the ruling admits evidence, a party, on the record:

Timely objects or moves to strike; and
States the specific ground unless it was apparent; OR

If the ruling excludes evidence, a party informs the court to its substance by an offer of proof, unless the substance was apparent from the context

May claim error to admit/exclude IF it affects a substantial of the rights of the party AND proper objection / offer of proof

Exception is when there is plan error and would reverse the case because of this evidentiary error but otherwise, you must preserve the record

Steps for Analyzing the preservation of a ruling:

Did you preserve the record, object, and did you state the specific ground for the objection on the ground below?

Ex. Judge it is not admissible under x such as 803(4)
General objection does not preserve for review
Failing to object waives right to claim error in admitting evidence

If the judge did allow in your evidence, did you make an offer of proof, presenting the evidence under a particular rule?

Failing to make an offer of proof waives the right to claim error in excluding evidence

If you want to go beyond that, you can ask the Judge for permission and if the Judge refuses, you can call the person as your witness

Rulings on Evidence

Steps for Evidential Error when on Appeal

Preserve the record?

FRE 103 did you object on the right ground or make an offer or proof

Only exception is plain error and if it is this, it is overturned and you don’t move on

Did trial judge commit “error”?

Only an error if when admitting or excluding evidence, there was abuse of discretion

– Only certain reasonable choices here as to whether or not this evidence should have come in or out

Always an abuse is if the judge has the legal standard wrong (wrong on the law)

Then move on to whether or not it is reversible or not

Only one way of looking at it and he screwed up
Several ways of looking at it and he picked a non-choice
If yes, Reversible v. harmless error

Would it have affected the outcome

If yes, it is prejudicial error reversible
If no harmless and not reversible

Is the judgment being preserved or overturned?

If overturned, party is strictly limited to whatever he argued down below
If trying to preserve the judgment, party can argue whatever he wants to save judgment

Can bring it under a different standard (ex. Hearsay exception)

< >Consequences of Evidential Error

Reviewing courts put errors in 4 categories while appraising them on the merits

Reversible error à mistake that probably affected the judgment
Harmless à mistake that probably did not a

ejudice”)This case displayed the difference between relevance v. probative value Must get out of 401 first and then can decide using FRE 403 Is the prior conviction relevant to current lawsuit charges? FRE 401Yes since being a felon is an essential element of getting convicted This is relevant and essential since essential element for felon in possession of a firearm charge Fully competent to prove that he is a felon Probative value of this is we only need to know he is a felon Only need to know it is a defendant since defendant is willing to stipulate and this is an evidentiary alternativeAssault with a deadly weapon is relevant since it moves the needle (but incompetent under 404 since trying to show motive or character)Danger of unfair prejudice is high on this point Using firearms in a crime of violence is relevant since it moves the needle (but incompetent under 404 since trying to show motive or character)Danger of unfair prejudice is high on this point Nothing we can do for jury hearing that he is a felon but can avoid them hearing that is he a felon for assault causing serious bodily injury Want to use a limiting instruction but SC says unfair prejudice is so severe, even as a limiting instructionClassic example of admissible + competent on one point, but no on another Possible that jury can misuse the evidence that they should only consider one count 1 and use it as evidence against him in other counts Evidentiary Appeal stepsD preserved the record by objecting with a motion in limine There was an abuse of discretion here SC says there was only one way of looking at this since the danger of UP was obvious and PV was slight to have all of the evidence heard The Court is right that the felon-in-possession charge did not turn on the nature of the prior conviction since his prior convictions made no difference to present charges. Chapple (Chapple was convicted of 3 counts of murder primarily based on eye witness identification. He claimed he was out of state at the time of the murders and witnesses testified in his support. He offered testimony to support his claim of mistaken identity but not allowed. He contends that the TC erred by admitting pictures of the charred body and skull of the victim) Preserve the record?Yes he preserved the record since 3 photographs were admitted over his objection Abuse of discretion?Yes there was an abuse of discretion Probative value is less than prejudicial danger Only possible use of the photographs was to inflame the jury and since that is not probative value, the admission was legally erroneous and an abuse of discretion Court said the judge got the legal standard correct but came to the wrong reasonable conclusion