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Seton Hall Unversity School of Law
Jennings, E. Judson

Intro: Why Rules of Evidence But Uniform Commercial Code?

The Rules are Not Comprehensive

-No Individual Privileges in UCC
o Common Law
o Important Substantive Policies
-Attorney Client
-No Rule on Burden of Proof
-No Rule on Bias to Impeach
• So what, anyway, IS Evidence at a Trial?
o If Believed Would Help Decide an Issue
o Not Excluded on Policy Grounds
-Competent (given by)
o Sufficiently reliable that a reasonable juror could believe it is true
(-Factual:Direct Perceptions


-Opinion Based on Facts or Expertise

Military Commissions Rules of EvidenceMilitaryCommissiionsEvidenceRules.pdf (153.777 Kb)
This document supplements the main Military Commissions Rules in the course packet. Only a few of the rules are markedly different from the FRE, but they are very important.

R 103, 202, defining Unlawful Enemy Combatant
R 304, permitting use of statement obtained through coercion
R 803, permitting the very liberal use of hearsay, including summaries of statements by iinterpreters and interrogators.
R 304(g) does not require corroboration of a confession.
R 703 permits court to proceed even if extremely important witnesses are unavailable at the time.
R. 611(d)(2) gives judge and jury, but not defendant, access to classified witnesses

The Bill of Rights/Constitutional Issues

Right to Confront Accuser

a. Right to Confront Accuser
-6th Amendment states (Pointer v. Texas) that a criminal defendant “shall enjoy the right…to be confronted with the witnesses against him.” If this were interpreted literally, exemptions and exceptions to the hearsay exclusion rule would be unconstitutional because they allow statements by absent “unconfronted” declarants to be introduced at criminal trials.
-Supreme Court has determined that the Confrontation Clause applies only to testimonial out-of-court statements
-Crawford did not define testimonial, but the opinion provided examples that included preliminary hearing testimony, grand jury testimony, former trial testimony, and statements made in police interrogations
Davis v. Washington elaborated holding that 911 calls are nontestimonial when the object circumstances indicate that the primary purpose of the questioning was to enable the poilice to respond to an ongoing emergency. Statements to the police however will be testimonial when the object circumstances show that there was no emergency and that the primary purpose of the questioning was to establish past events potentially relevant to criminal prosecution
-Crawford v. Washington held that testimonial hearsay must be excluded unless 1) the declarant is available at the trial for cross- examination or (2) the declarant is unavailable and the defendant against whom the statement is sought to be introduced had an earlier opportunity to cross-examine the declarant

Self-Incrimination (witness can refuse to answer question that might incriminate, but must take the stand, and the accused in a criminal trial need not take the stand at all)

–Comment on the refusal to testify is a remnant of the inquisitorial system of criminal justice which the Fifth Amendment outlaws. It is a penalty imposed by courts for exercising a constitutional privilege.

I. Pre-Trial Conference (advantage: want to bring in early so don’t build whole case around it only to find out that it’s not admissible)

A. D NJ Standing Order
-Mandatory Conference
i. Prosecutor Must Provide
a. All Trial Exhibits
1. Def Must Give Notice if Challenging Authenticity, Scientific Analysis or Chain of Custody
b. All Statements by Defendant & Co-Defendants
c. Test Reports & Results
d. Any Defendant Documents or Property
e. Defendant’s Criminal Record
f. Exculpatory Material [Brady—prosecutor is not a pure adversary

Jury Selection:-Jury Pool (drawn at random from populous at large—and we’ve made some dramatic efforts in recent years to make sure it’s an accurate representation—look at motor vehicle records, etc.)

B. Voir Dire of Prospective Jurors (preliminary examination—who among the randomly chosen individuals can give us objectivity…who will handle this case on the merits, and we want people who don’t know anything going in with regard to the facts of the specific case—and some people might have training in a particular area—legal, medical, accounting, etc…)—those people need to put that aside or be eliminated?
-Judge Questions (judge has to agree with the challenge for cause)
-Lawyer Follow Up (traditionally lawyers were able to really follow up, but we’ve gotten away from that more recently)—in the interest of saving time/efficiency, we let the judge take control—NY still does it the old fashion way…in fact the judge isn’t even in the courtroom for a significant part of the time—lawyers have to behave themselves by not getting into the evidence of bribing the jurors obviously…but they can be pretty thorough
-Challenges for Cause (judge has to agree with the lawyer’s challenge for cause)—judge may talk juror into making it clear they are neutral
-First Jury Pick
-Peremptory Challenges (Miller L case—lots of things go into the process at this point, hunches, intuition—such challenges didn’t require any sort of justification until the Batson case—as those challenges are exercised, replacements will be called usually also at random—sometimes you’ll already know what the last one is so you’ll think well maybe I should take my chance with this one in fear of getting the next one…”replacement jurors)
Peremptory Challenges
28USC1870 Federal 3 Civil 6 Pros/10 Def Criminal
Miller El (texas shuffle)
Batson v. Kentucky, 476 US 79 (1986) Discrimination by the prosecutor in selecting the defendant’s jury sufficed to establish the constitutional violation
-Batson provides an opportunity to the prosecutor to give the reason for striking the juror, and it requires the judge to assess the plausibility of that reason in light of all evidence with a bearing on it. It is true that peremptories are often the subjects of instinct and it can sometimes be hard to say what the reason is.
-But when illegitimate grounds like race are in issue, a prosecutor simply has got to state his reasons as best he can and stand or fall on the plausibility of the reasons he gives.
A Batson challenge does not call for a mere exercise in thinking up any rational basis. If the stated reason does not hold up, its pretextual significance does not fade because a trial judge, or an appeals court, can imagine a reason that might not have been shown up as false.
-don’t have to state reasons unless challenged
-order of exercise important: important to argue whether it was unfair, not a harmless error

-Replacement of Jurors

C. Motion in Limine (LOOK UP MORE ON THAT) “PROFFER”
•Written Motion Before Trial
•Order Admitting or Excluding Evidence
•Court has Discretion to Defer Ruling Until Trial
•Motion may be Renewed At Trial
-Renewal may not be required
•R103(a) 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.


I. First

D is generally careless driver, to suggest that D probably acted carelessly in the particular accident under litigation
–”Character trait” refers to elements of one’s disposition, such as honesty, temperance, or peacefulness
–Intelligence is not a character trait within the meaning of the rule)

(1) Character- Civil: Essential Element of Claim or Defense
•R 405(b) In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense …

1. Defamation
– In a defamation case, the plaintiff’s character might be in issue in two different ways:
(1) if the allegedly-defamatory statement is phrased in terms of P’s character (“P is a crook”), D will be allowed to show that P indeed has the character trait (e.g. that P really is a crook);
(2) if P claims his reputation has been damaged, D is clearly entitled to show that P already had a poor reputation before the defamatory statement, and some courts—not very logically—let D dhow that P has a poor character to support an inference that P’s reputation was poor (or that P’s reputation ought to be poor)

•Schafer11th1998 P’s reputation and character scarcely can be avoided because P seeks damages to his reputation.
2. Negligent Entrustment:
-In a tort case, the essence of the claim may be that the defendant entrusted some instrumentality to a third person, and was negligent in doing so because the defendant knew or should have known that the third person had a poor character for care. e.g. car owner for negligently letting a friend drive drunk; the driver’s character for drunkenness could be shown) e.g.2. D gave dangerous instrumentality, like a car, to one he should have known was of careless or otherwise bad character)
•BaliAirCrash9th1982 Records show that pilot made similar mistakes on prior occasions likely made a mistake on this occasion. inadmissible R 404 BUT offered to show D had notice of incompetence, and should not have allowed him to fly. Relevant and admissible.
3. Wrongful Death
– In a wrongful death action, P’s poor character may be proved, toshow that her survivors haven’t been financially or emotionally damaged very much. (For instance, evidence of the decedent’s compulsive gambling would be relevant to his likely future earnings).
-The Damages Jury Instruction
– Testimony of alleged suicide attempts by Anna.
-Specific instances of conduct are not admissible to prove a person’s conduct at some future time.
– You may not consider such suicide attempts in deciding whether she was attempting suicide as the car driven by John Reynolds approached her.
-The evidence is admissible in deciding the future likelihood of Anna Gerstenberg making contributions to her dependents, i.e.,
– on the issue of money damages.
– In a wrongful death action, the mental characteristics of the decedent are relevant on the issue of damages
– Liability Jury Instruction