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Seton Hall Unversity School of Law
McLaughlin, Denis F.

Spring 2011
·         Mistrust of juries is the single overriding reason for the law of evidence.
Jury Selection
·         Voir dire is the process in which court and counsel try to find out whether any members of the panel should not serve in the case at hand.
·         If a juror is related to a party (by blood, marriage, or by business connection such as being the creditor or debtor, employee or employee) or “prejudiced” on an issue, he should be excluded “for cause.”
o   Each party may challenge any number of people for cause.
o   The judge must determine any such challenge, excluding if cause is found.
o   Each party has a fixed number of “peremptory”  challenges (often 3) which entitles him to exclude potential jurors for any reason at all without stating a reason.
§  Must be prepared to show that they are not acting on the basis of race.
·         In federal and many state courts, voir dire is conducted by the judge.
Opening Statement
·         Not an argument but instead sums up the facts that each party contends that her proof will establish.
Presentation of Proof
·         The party with the burden of persuasion goes first, followed by his adversary, and each may have additional turns if needed.
·         The objects actually involved in the events of the litigation are called “real” or “original” evidence.
o   Almost always admitted.
o   Writings are “documentary” evidence and they are so common that special rules apply.
·         The opponent can usually only cross-examine on subjects opened up on direct and may not go into other relevant matters not explored on direct.
Trial Motions
·         When the evidence on both sides is in, a party confident that a reasonable person could only find in his favor may make a motion for judgment (only the defense may do so in criminal law).
·         Typically, such motions are denied and are only rarely granted for the party bearing the burden of proof in a civil case and seldom granted in negligence cases.
Closing Arguments
·         The party bearing the burden of persuasion (usually plaintiff or prosecution) has the right to make two closing arguments, one before and one after his adversary.
·         The parties draft instructions and submit their requests to the court before the process of proof has been completed and the judge often expects and gets instructions before trail even begins.
·         Curative = save the verdict and judgment from later reversal on account of inevitable trial errors.
·         Limiting = advise the jury to consider certain proof only on one point and not others or against one party and not others.
The Verdict
Judgment and Post-Trial Motions
·         Prosecutors usually have no appeal from an acquittal.
Appellate Review
·         Even when judgment has been entered, a party may obtain full appellate review only if it has preserved its claim of error by stating its position promptly and clearly at trial.
·         Only leads to relief if the appellate court finds that that the trial court erred and that the error probably affected substantial rights of the appellant.
            Preserved Error Below / Plain Error (FRE 103 – objection or offer of proof)
            Exception is plain error = something that is so obvious and so egregious that the court will take notice of it (FRE 103d)
            Standard of Review is “Abuse of Discretion”
            Always on evidentiary issues.
            It’s not what the appellate court would have done if they were the trial judge.
            Deferential Standard of Review unless judge is wrong in the law.
            Reversible Error / Harmless Error
Making the Record
1.      Pleadings
2.      Filed documents
3.      Record of proceedings
4.      Exhibits
5.      Docket entries
How Evidence is Admitted
·         Direct examination must proceed by non-leading questions. FRE 611(c)
o   The question should unnecessarily push the witness toward a particular response, it should not be too suggestive of the answers sought.
·         The main instrument of control during cross-examination is the leading question.
o   The leading question narrows the inquiry and limits the opportunity of the witness to stray from the chosen path.
·         Scope-of-Direct Rule (FRE 611-b)
o   Cross-questioning is limited to matters explored on direct.
o   Aims to confine the opponent’s ability to interrupt the calling party’s case.
o   It enables parties to control the order in which they present their evidence.
o   BUT more than a dozen states have abandoned the scope-of-direct rule.
·         Voucher Rule (FRE 607)
o   FRE 607 does away with this rule and provides that ANY PARTY may impeach, including the party calling the witness.
o   It is no longer open to doubt that a party who cannot cross-examine a witness adequately at the outset may recall her later, without fearing that he thereby “vouches” for her or becomes bound by her testimony.
·         Real Evidence
o   Refers to tangible things directly involved in the transaction or events in litigation.
o   Not required to produce such items and their existence and nature may be established by testimonial account.
o   The BEST EVIDENCE doctrine does require the introduction of writings (or an excuse for not producing them), and all such items are generally considered relevant.
§  First, the proponent establishes that the writing is what he says it is (he authenticates it)
§  Second, he shows that it falls within a hearsay exception.
o   The court takes the skeptical position that the thing may not be taken at face value and may not assume what the things seem to be.
§  The proponent must authenticate the evidence.
§  This is done by stipulation or by testimony from a witness having firsthand knowledge.
·         Demonstrative Evidence
o   Tangible proof that in some way makes graphic the point to be proved.
o   It is created for illustrative purposes and for use at trial.
o   It played no actual role in the events or transactions which gave rise to the lawsuit.
o   Such materials are usually considered relevant and are routinely admitted.
How Evidence is Excluded
·         The Objection
o   Must be timely (it must be raised at the earliest reasonable opportunity).
o   Must have a ground (should include a statement of the underlying reason).
·         Substantive Objections
o   These rest of particular exclusionary principles in the Rules of Evidence.
o   The hope is to keep evidence out altogether.
o   Examples: hearsay and Best Evidence doctrine
·         Formal Objections
o   These focus on the manner of questioning.
§  Ask and Answered
§  Assumes facts not in evidence
§  Argumentative
§  Compound
§  Leading the witness
§  Misleading
§  Speculative or conjecture
§  Ambiguous, uncertain, and unintelligible
§  Nonresponsive to the question
·         General Objection
o   Does not preserve for review whatever the point of the objector had in mind.
o   Gives less than the maximum protection.
·         The Motion in Limine
o   Used to obtain a ruling in advance.
o   Provides a chance for both parties to brief an important evidence issue and present more elaborate argument than is possible during trial.
o   Trial judges are than willing to consider and rule in advance upon such matters, hoping to make sounder decision and avoiding delays that are awkward while trial is in process.
o   FRE 103(a) provides that an objection need not be renewed at trial if the judge makes a “definitive ruling” on a pretrial motion.
·         The Offer of Proof
o   A lawyer faced with excluding evidence MUST make a formal offer of proof if he wants to preserve the point for later appellate review.
o   Demonstrating to the trial court exactly what the lawyer is prepared to introduce if permitted.
o   Required for the same reasons as objections.
§  To accord the offering party a fair procedural opportunity to get in his proof.
§  He must be ready to present his evidence when the objection is made and must make its “substance” known to the court (FRE 103(a)(2)).
§  Necessary to “preserve the record” for purposes of review.
§  Without an offer, an appellate court normally has no way to determine whether excluded evidence might have affected the outcome.
§  Ordinarily the jury is excused when a proffer is heard.
·         Judicial Mini-Hearings
o   FRE 104 describes the functions of judge and jury in deciding evidence questions.

rming judgments!
o   Inviting Error
§  A party invites error by relying on evidence offered by his opponent that he might otherwise have excluded by raising objection.
o   Opening the Door
§  Trial behavior may open the door to evidence that would otherwise be excludable.
§  Example: A party testifying on direct examination by his own counsel makes an ill-advised and overboard assertion that he a blemish-free past but has a criminal record.
·         Appeal From Judgment
o   Rulings admitting or excluding evidence, rulings on examination of witnesses (whether dealing with the form or the substance of the questions), and rulings on such evidential devices as presumptions and burden of persuasion are almost always reviewed only after judgment.
o   Rulings on claims of privilege are likewise reviewed only after judgment.
·         Interlocutory Appeal
o   Two important exceptions where interlocutory appeal is commonly permitted.
§  Privilege Rulings; Suppression Motions
·         FRE 402 says that relevant evidence is generally admissible and irrelevant evidence is not.
·         Direct Evidence
o   Evidence, which if accepted as genuine or believed true, necessarily establishes the point for which it is offered.
·         Circumstantial Evidence
o   Evidence, even if fully credited, may nevertheless fail to support the point in question, simply because an alternative explanation seems as probable or more so.
o   The Rules draw no distinction between direct and circumstantial and neither is inferior.
o   Evidence was relevant if it tended to establish the point for which it was offered and material if the point bore on issues in the case (common law).
o   Evidence should only be admitted if it is both relevant and material.
§  Under FRE 401, evidence is relevant if it tends to make or less probable the existence of any consequential fact.
o   More Probably True
§  It has the required tendency only if it makes the point more probably true than not.
o   More Probable Than Any Other
§  Only if the suggested inference is more probable than any other.
o   More Than Minimally Probative
§  Requires more than minimal probative worth, hence that there is a standard of legal relevancy that is more strict than logic and reason alone would indicate.
o   More Probable Than it was Before
§  Evidence is relevant if it makes the point to be proved more probable than it was without the evidence.
§  Most lenient standard; most favoring admissibility.
§  Found in FRE 401!!!!!
o   Weight = the aggregate probative worth that the factfinder assigns to the proof in the case.
o   Sufficiency = there must be enough evidence to satisfy the standard of proof that applies.
§  A civil case is subject to judgment as a matter of law if the evidence as a whole, viewed by a reasonable person, can support only one outcome.
RULE 403:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
·         Probative Value must outweigh unfair prejudice.
·         Unfair prejudice = an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.