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Seton Hall Unversity School of Law
McLaughlin, Denis F.

I. Who creates the FRE?
i. Congress has the right to create lower federal courts, this right includes the ability to establish practice & procedure….but they don’t want to
ii. In 2072 Congress delegates this job to the Supreme Court
iii. In 2073 they say the judicial conference should take care of it, because the SC really isn’t going to do it
1. Judicial conference: The chief judges from every circuit court of appeals, and….(a collection of federal judges)
iv. 2073 says there should be a standing committee on the rules of practice and procedure
v. And there can be other committees, such as advisory committees

b. To come up with the rule, you run it in reverse
i. Advisory committee drafts a rule; then
ii. It goes out for public comment; then
iii. The Advisory committee says this is the way it should be; then
iv. It goes to the standing committee; then
1. Which generally rubber stamps it
v. The judicial conference has to approve it; then
1. this is a rubber stamp too (normally)
a. This is because advisory committee does most of the shit
vi. The SC has to sign off on it; then
vii. It goes to Congress, and if Congress doesn’t do anything it becomes a federal rule of evidence
1. Supreme court will sent it to them by May 1, congress has till December 1 to do something, if they don’t it becomes a rule by default

How Evidence is Admitted and Excluded
I. Direct Examination:
a. When you examine the witness you call:
i. Try to bring out background information;
ii. lay foundation for testimony to follow; and
iii. ask substantive questions to get to witness’ knowledge of pertinent facts.

b. No Leading Questions on Direct: FRE 611(c). Leading questions are when lawyer does most of the talking and seeks to push witness toward a particular response.

II. Cross Examination: After direct, the adverse party has chance to cross-examine the witness.
a. Leading questions may be used here (FRE 611(c))

b. Cross Examination is limited to areas of inquiry:
i. Topics involved in the witness’ direct examination; and
1. Scope of direct rule: Cross is limited to the scope of matters covered on direct, unless the court permits a broader scope (FRE 611(b))
a. Class: Committee vacillated between a scope of direct limit or a wide-open cross. Book says that the Committee was debating between a wide-open cross where judge could limit the scope, or a limited cross where judge could broaden scope.

2. Problem 1-A: How Did it Happen?
a. P testified about what D did in causing the accident, now I want to talk about what the P did in causing the accident. Is this beyond the scope (doesn’t effect credibility)?
i. Depends on how one interprets the Scope of direct:
1. Broad Interpretation: “transaction described” on direct or “issues affected” by direct.
a. i.e. how the accident happened

2. Narrow Interpretation: confines attorney to “points raised”
a. i.e. what your client did to cause the accident

ii. Topics concerning the witnesses’ credibility (FRE 607: any witnesses may be impeached)
1. Issues of Credibility not limited by Scope of Direct Rule.

I. Principal of finality: appellate review may be had only at the end of a case, after final judgment
a. Rationale: Wait till the end of the trial to appeal, otherwise cases would take forever
c. Interlocutory Appeals Exception
i. Generally NOT allowed, but exceptions for:
1. Privilege Rulings: when person claims privilege it can sometimes be reviewed before a final judgment.
2. Suppression Motions: Pretrial order suppressing evidence in a criminal case
a. Rationale: denying the prosecutor the right to present a crucial piece of evidence can lead to double jeopardy…prosecutor can’t appeal after if D is acquitted

II. Three steps to appeal (FRE 103)

Did you make the Record Down Below (Preserve the Point for Review)?

i. Requirements
1. Objection
a. failin

t’s a “harmless error”
a. Four types of error:
i. Reversible: probably affected judgment + proper steps taken to preserve trial record
ii. Harmless: probably didn’t affect judgment
iii. Plain: error warrants relief on appeal even if trial record doesn’t preserve right to appeal
iv. Constitutional: criminal cases only (ex: search & seizure claim)

III. Deference on appeal

a. If you are appealing (seeking to reverse the judgment), you are limited to the objection below as a basis to reverse the judgment.
i. An objection on particular grounds suffices only to preserve errors made on those very grounds
1. Example: if appellant unsuccessfully objected that certain testimony violates the hearsay doctrine, he can prevail on appeal only if the testimony did offend the hearsay doctrine

b. If you are seeking to preserve the judgment below you will receive great deference.
i. The appellate court will look through the rules of evidence to determine another argument P could have made towards the admissibility of the evidence, if yes….the court will make it for them
1. Wont do it for the party looking to reverse the judgment
ii. Note: there is no substitute for winning below in the trial level
1. “the system favors affirmance of judgment, imposing what amount to a double standard operating in favor of trail jug end against trial counsel”
2. 90% of all appeals result in affirmance of the trial court….its very hard to achieve
a. You have to do all three things as above, and if the winning party needs help affirming the judgment, the appellate court will help