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Evidence
Seton Hall Unversity School of Law
Caraballo, Wilfredo

Chapter 1. Evidence Law and the System: Why We Have Rules of Evidence and How They Work in an Adversary System

n Why rules of Evidence?
o Why Evidence at all?
§ Basic Issue: The basic issue in most evidence problems is whether the evidence is admissible. In trials, factual determinations are made by the jury) or judge in a non-jury trial) based on the consideration only of admissible evidence. Principles of law are then applied to the facts to produce a judgment. Rules of evidence govern what evidence can actually be considered by trier of fact in making its determination.
o Why Rules Rather than Common Law?
§ Historically, the rules of evidence were judge-made products of the common law. Attempts at codification began in 1942; although several states adopted evidence codes, California Evidence Code was the most notable. The U.S. Supreme Court developed the FRE, which were adopted by congress and became effective July 1, 1975. Many of the states have now adopted codes patterned after the FRE. Despite codification, study of the case law is essential to interpret the rules and to understand the policies underlying the rules.
n What Happens at Trial?
o Jury Selection
§ Jury qualifications and number
· Qualifications: From the list of potential jurors, individuals may be dismissed because of individual circumstances or characteristics. Certain classes, such as minors, felons, aliens, and illiterates, are normally excluded from jury service by statute. Members of various types of occupations may be statutorily exempt from jury duty, i.e., servicemen and women, doctors, and ministers. Generally, the exemption must be requested. Also, any individual potential juror may seek to be excused for good cause.
· Number of jurors: Normally the venire includes many more people than will actually be selected as jurors. Under the common law, juries consisted of 12 members. However, the due process clause has been interpreted as requiring only a minimum of six jurors in criminal cases.
· If a juror is related to a party (by blood or marriage, or by business connection such as being his creditor or debtor, employer or employee), or is “prejudiced” on one or another issue or against one or another party, he should be excluded “for cause.”
§ Voir dire examination
· The various qualifications act as a preliminary screening. Those who are qualified are subject to further questioning about their possible bias, prejudice, preconceived notions with respect to the parties or the subject matter of the action. This questioning is referred to as voir dire. Counsel may inquire into the juror’s background as well as into general or specific bias, etc. This is often used as a means to preview the case, but it is improper to pose hypothetical situations that would not be admissible at trial.
· Challenges for cause: if, during voir dire, counsel can demonstrate that there is a reasonable doubt about the ability of a prospective juror to maintain objective neutrality about the parties or subject matter of the action, the juror may be challenged for cause. Each counsel is usually allowed unlimited challenges for cause—as many jurors may be dismissed for partiality as can be shown partial by counsel or court during examination.
· Peremptory challenges: Each counsel in a civil suit usually has the right to challenge a finite number of potential jurors without demonstrating partiality. Each counsel is allowed six such peremptory challenges in most jurisdictions, though only three are allowed in the federal court. A juror challenged peremptorily is immediately excused—the challenge does not have to be for good cause, and the court may not overrule it. But since each counsel has but a few challenges, they must be used sparingly. Indeed, skillful use of peremptory challenges is considered an art that few attorneys ever master.
o Opening Statement: before the presentation of evidence, counsel for each party may make an opening statement to introduce the case to the jury and give a preview of the evidence. The opening statement gives attorneys their first opportunity to directly address the jury and establish rapport. The opening statement also allows the attorneys to tell their clients’ side of the story and help follow and understand the case.
o Presentation of Proof: the normal trial follows an almost universal format. Although court has the inherent power, in the interests of justice, to vary the order followed at trial, as a practical matter, almost every trial follows this format: (i) plaintiff’s or prosecutor’s presentation of the case—calling of witnesses and introduction of evidence; (ii) D’s presentation of the case; (iii) plaintiff’s rebuttal; (iv) D’s rebuttal; and (v) further rebuttals. Include direct and cross-examination by both parties.
o Trial Motions: At the close of proof, motions may be used to determine whether a party has carried the burden of producing evidence, e.g., motion for judgment as a matter of law or for involuntary dismissal.
o Closing Arguments: A closing argument is proper if it “follows from the facts of the case as supported by the evidence or inferences that properly can be drawn from the evidence.” A closing argument is improper if it is based on matters that are not in evidence, if it appeals to passion or to certain prejudices, if it contains reference to financial ability or liability insurance, or if it distorts evidence to make unjustified inferences.
o Instructions: at the close of all the evidence at trial, before submission of the case to the jury, the court has the right, and in some jurisdictions the obligation, to instruct the jury on some applicable laws governing the case. Counsel for the various parties are permitted to submit to the court written requests for specific directions, which requests may or may not be granted by the court, according to whether they adequately summarize the existing law. Most appeals taken from trial court decisions assign as error the giving or failure to give a certain instruction. Much effort has been spent in developing and analyzing the various rules of instruction.
o Deliberations: A jury normally has access to any exhibits or other papers received into evidence. Jurors may also take notes during the trial, which may be used during deliberation. Only information presented at trial and made part of the record may be considered. The jurors may not conduct their own investigation or otherwise obtain information; nor may jurors fraternize with counsel. Any communication between judge and jury must be done in the presence of counsel for the parties to the trial. Each juror must make an independent judgment on the case, although they deliberate and share views with one another behind closed doors.
o The Verdict: Verdicts may take several forms, but the traditional and still most common form is the general verdict. Here, the jury simply makes a decision in favor of one party or the other. In civil cases, such a verdict implies a finding in favor of the prevailing party on every material issue of fact submitted to the jury.
o Judgment and Post-Trial Motions: The most important post-verdict devices for attacking the verdict are the motion for judgment notwithstanding the verdict (or the renewed motion for judgment as a matter of law) and the motion for a new trial.
§ Motion for judgment as a matter of law (notwithstanding the verdict): the standard for granting this motion is the same as that of its pre-verdict counter part (judgment as a matter of law): the legal sufficiency standard. The judgment N.O.V. has the effect of nullifying the jury’s verdict. It is a judicial determination that, regardless of the verdict, the evidence is legally insufficient to sustain the verdict and hence judgment must be entered for the other party.
§ Motion for new trial: on motion, the court may modify a verdict or decision in whole or in part, or grant a new and further trial on all or part of the issues. The basic distinction between granting a new trial and granting a judgment N.O.V. is that a new trial merely sets aside the verdict, and the case has to be retried, while judgment N.O.V. not only sets aside a verdict, but also results in judgment for the moving party.
§ Judgment as a matter of law: used in civil cases.
§ Judgment of acquittal: Criminal case.
§ In federal court and in many states such motions must be made not later than 10 days after entry of judgment. This time constraint is rigorously enforced.
o Appellate Review: An appeal is the normal procedure by which an aggrieved party may obtain a review by a court of higher jurisdiction. It is not a retrial of the case. Rather, the review is based solely on the record of the trial court proceedings (pleadings, transcript of evidence at trial, findings, judgment, etc.), and is limited to the correction of judicial error therein. As such, an appeal is a direct attack on the judgment (to be distinguished from a collateral attack limited to jurisdictional questions).
n Making the Record
o What is the Record and How is it Made?
§ Prepared by the court reporter, a skilled public servant and officer of the court.
§ Description of the record: the possibility of appeal makes it critical that all matters involved in a trial be recorded. Appellate courts can only act upon an official record of the trial. The record includes the pleadings, filed documents, the record of proceedings, the exhibits, and docket entries. These comprise of all the litigation paperwork (complaint, answer, etc.), written motions and briefs, and proposed jury instructions. It also contains the verbatim transcript of what happened at trial, including arguments, testimony, instructions, and any other spoken words. The transcript makes up most of the record.
§ The record needs to be accurate and comprehensive, because appellate courts limit review to what is contained in the record.
o Beware the Pitfalls—What Not to Do
§ Echoing: Do not repeat the answer from the witness before asking the next question.
§ Overlapping: when people in the court room interrupt each other, it becomes hard for the reporter to keep track of who said what.
§ Numbers, names, and big words: When dealing with numbers, clarify exactly what number it is. Ask the witness to spell their name or last name so that no mistakes are made on the record as to spelling of names. Difficult or uncommon words, especially technical terms create difficulties for the reporter. Have the witness spell them out then explain them to the jury.
§ Exhibits: refer to the object in question by reference to its exhibit number.
§ Pantomime, nonverbal cues, gesture, and internal reference: when witnesses use gestures and nod or shake their head, clarify by saying let the record state_____.
§ Going off the record: trial lawyers do this every so often to not clutter the record with long discussions. This produces problems of its own though: the need to do so may not appear until a discussion has begun. The reporter is now in a tough spot because he is professionally responsible to record everything. He will normally keep transcribing until everyone agrees and then note to the transcript that they decided to go off the record. Sometimes lawyers forget that the reporter has stopped recording the proceedings. Tell the reporter to go back on the record.
o Taking Care—What to DO
§ Ensure that utterances important to your case are spoken clearly enough to be understood and put down by the reporter.
§ Ensure that they have meaning when they appear in printed form.
o Dual objectives of the lawyer: the trial lawyer must conduct everything in the trial with an eye toward possible appeal. Conducting an effective record is his second objective. The effective trial counsel must use the rules of evidence in constructing a favorable record of trial. For an appellate court to review such appeals, there must have been, at the trial stage, a specific, timely objection, based on a valid ground, and the trial court’s error

ed and answered: objecting lawyer accuses questioner of drumming away too hard on witness, putting the same question time and time again in hopes of coercing the desired response.
o Assumes facts not in evidence: if the questioner imparts information in his query, it should be supported by proof already admitted.
o Argumentative
o Compound: when the question is really more than one question or suggests alternative responses, while being framed in a way that invites a yes or no response.
o Leading the witness: Here the suggestion is that counsel is telling the witness what to say, and the net impression is that the lawyer is doing the testifying, with the witness simply acceding to the will of counsel.
o Misleading: the question misstates the evidence.
o Speculation or conjecture: This objection raises the point that witnesses are expected to say what they “know,” not what the “guess” or “suppose” or “expect” is true. This one has substantive content.
o Ambiguous, uncertain and unintelligible: Like the alternative general objection (“incompetent, irrelevant, and immaterial”), this three-part protest is time honored.
o Nonresponsive to the question: when the witness doesn’t answer your question.
§ The Motion in Limine: provides the means for obtaining a ruling in advance when a party anticipates that particular evidence will be offered to which he will object. It provides a chance for both parties to brief an important evidence issue and present more elaborate argument than is possible during trial.
· FRE 103 (a) provides that an objection need not be renewed at trial of the judge makes a “definitive ruling” on pretrial motion.
· Even a clear ruling in limine still provides problems for lawyers.
o The Offer of Proof: when the proponent of evidence is unable to overcome objection, he can make an offer of proof to show the trial court (but more importantly the appellate court) what evidence would have been had it been admitted. This offer is of course not made known to the fact finder for consideration. The offer of proof enables an appellate court to determine whether, if the court erred in excluding evidence, such error was prejudicial. A judgment will not be reversed if the errors committed were harmless.
§ FRE 103 (a) (2): in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.
§ FRE 103 (b): Record of offer and ruling—The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.
§ FRE 103 (c): Hearing of jury—In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.
o Judicial “Mini-Hearings”
§ Can be lead to by objections and offers of proof.
§ FRE 104 describes the functions of judge and jury in deciding evidence questions.
· FRE 104 (a): Questions of admissibility generally—Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
· FRE 104 (b): Relevancy conditioned on fact—when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
n Consequences of Evidential Error: the trial court’s rulings admitting or excluding evidence are reviewable on appeal from the final judgment in the case. Many appellate decisions dispose of issues on the ground that they were not preserved for appeal. Basically, evidentiary issues are preserved by giving the trial court a chance to deal with them on the record through offers of and objections to evidence. An appellate court will not reverse judgment unless the evidence was erroneously admitted, or evidence was erroneously excluded.
o Evidence erroneously admitted: the following are the grounds for reversal of the trial courts judgment on appeal for the improper receipt of evidence.
§ (a) there was a specific objection;
§ (b) that was timely made;