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Seton Hall Unversity School of Law
McLaughlin, Denis F.

Professor McLauglin

I. Evidence Law and The System
a. What happens at trial?
i. Jury Selection
1. Voir Dire
a. Exclusion “for cause” (Unlimited exclusions)
b. Peremptory challenges (3)
ii. Opening Statement
iii. Presentation of Proof
iv. Trial Motions
v. Closing Arguments
1. Party bearing the burden of persuasion (P) may make two.
vi. Judge’s Instructions
1. Curative instructions: purpose is to save the verdict and judgment from later reversal on account of inevitable errors as trial progresses (something was revealed that cannot be revealed)
2. Limiting instructions: when instructions advise the jury to consider certain proof only on one point and not others or against one party and not others.
vii. Deliberations
viii. The Verdict
ix. Judgment and Post Trial Motions
b. Appellate Review
i. A party must preserve the record below in order to create an issue for appeal
ii. A party should object or offer proof with enough information for the appellate court to understand the reason for the objection and the issues surrounding it. FRE 103(a)(1-2)
iii. Plain error: does not require an objection or offer of proof – it is so obvious and egregious that the court will recognize it on its own. FRE 103(d)
iv. A party has to then show that the case would have come out differently if their objection was sustained – reversible error is one which affects “a substantial right of the party.” FRE 103(a)
1. Standard of review for evidentiary decisions is abuse of discretion – deferential standard; unless trial judge is wrong on the law, then it is automatically an abuse of discretion
a. When it can only be decided one way it is abuse of discretion.
2. The appellate court must find reversible error, rather than harmless error.
v. A party generally must wait until judgment is entered in order to appeal an evidentiary ruling
vi. Steps to take
1. Preserved Record Below?
2. Standard of Review for Error?
3. Reversible or Harmless Error?

c. How Evidence is Admitted or Excluded
i. Getting Evidence In: Foundation and Offer
1. Credibility you can always ask about.
2. Testimonial Proof—Direct Examination
a. Form of Questioning
i. Direct examination must proceed by non-leading questions. 611(c)
3. Testimonial Proof—Cross Examination
a. Leading Questions
b. Scope of Direct Rule
c. 607 “the credibility of a witness may be attacked by any party, including the party calling the witness”
4. Real Evidence
a. Tangible things directly involved in the transactions or events in litigation
b. Authentication of the evidence
5. Demonstrative Evidence
a. Tangible proof that in some way makes graphic the point to be proved.
b. Created for illustrative purposes and for use at trial and played no actual role in the events of transactions which gave rise to the lawsuit.
6. Writings
a. Provide a means to prove what someone has said about a matter in dispute (Lab reports, medical records, etc).
b. Authentication rules
ii. Keeping Evidence Out
1. The Objection
a. Must be timely [raised at the earliest point] b. Should include a statement of the underlying reason [grounds] c. Substantive Objections
i. Rest on particular exclusionary principles of FRE
d. Formal Objections
i. Focus on the manner of questioning; tactical weapons used to delay, obstruct, etc.
e. The General Objection
2. The Motion in Limine
a. A party may anticipate that particular evidence will be offered to which he will object and so he may want to obtain a ruling in advance.
b. It provides a chance for both parties to brief an important evidence issue and present more elaborate argument than is possible during trial.
c. 103(a) provides that an objection need not be renewed at trial if the judge makes a definitive ruling on a pretrial motion.
iii. Types of Error
1. Harmless – does not affect outcome
2. Reversible – affects outcome
3. Plain – affects outcome and is so egregious that no objection had to have been made to preserve for appeal
4. Constitutional – used to be automatic reversal; now opposing counsel may show that it was harmless to avoid reversal.
5. Distinguishing harmless error from reversible error
a. Cumulative Evidence Doctrine: relates to overruling an objection; allows for sustaining the judgment if so much of the other properly entered evidence supported on the same point that the jury would likely have found against the aggrieved party even if the judge had correctly excluded the evidence in question.
b. Curative Instruction Doctrine: the judge may protect his decision if he enters a curative or limiting instruction to the jury to correct the effect of evidence entered.
c. Overwhelming Evidence Doctrine: if the appellate court concludes that evidence properly admitted supports the judgment below overwhelmingly, it affirms the judgment, even if there were errors in admitting or excluding evidence which would otherwise be considered serious.
iv. Grounds of Objection
1. A party may only address grounds of an objection raised at trial. It may not, on appeal, address grounds other than the ones raised on objection.
a. If a party contests evidence on one rule, it may not then contest the evidence on another rule on appeal.
2. The reviewing court will affirm a judgment if there is ANY reason for sustaining the judgment, not necessarily that the judge offered the correct reason.
3. Similarly, if part of a document is excludable or admissible, the party raising an objection should specify what part they are objecting to. The reviewing court will side with the judge if ANY part of the evidence was limitable or excludable.

a. Relevance and competence is about – are you allowed to prove this? Assuming the answer is yes, hearsay is about how are you going to prove it? If you are relying on a hearsay testimony, better have hearsay exception.


Does it move the needle??

Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence – FRE 401

i. What level of “tendency” is required? Four answers offered:
1. More probably t

e but exists only as a relation between an item of evidence and a matter properly provable in the case.

g. Pragmatic Relevance
i. Prejudice & Confusion:What rule 401 giveth, Rules 403-405 taketh away.
1. If there is prejudice, use…
2. Rule 403 – Exclusion of Relevant evidence on Grounds of Prejudice, Confusion, or Waste or Time
a. “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.”
b. [If it is irrelevant then we would never get to Rule 403] c. Unfair Prejudice: undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.
i. All evidence is prejudice so the important part is UNFAIR.
d. Probative value: Something is said to have “probative value” if it helps to prove a particular point.
e. Judge is supposed to see if the prejudice outweighs the probative value. Distinction is important because the person opposing the evidence has the burden of proof of showing that the evidence is prejudicial. Rule 403 thus favors admissibility.
3. State v. Chappel (Az. 1983): Gory photos of murder victim; The photos were relevant but not probative on the issue being tried, which was an identification issue. Photos are gory and the fact is undisputed – so the photos do not serve much probative value. The ∆ has the burden to prove that prejudice outweighs the probative value (the court stated this backwards)
a. Unfair prejudice = photos were not needed; little probative value.
i. Mere fact that the photos are gruesome does not mean they should be excluded.
4. Old Chief II (USSC 1997): Issue – Is there any limit to Rule 401? Yes, Rule 403 says that if relevant evidence must sometimes be excluded because of its connection to other evidence, the reason is not that the other evidence has rendered the original evidence ‘irrelevant’ but that, on its character as unfairly prejudicial, cumulative or the like, its relevance notwithstanding.
a. Abuse of discretion is the standard of review (saying that this could not have gone either way).
b. Unfair prejudice = names of crime do not have to be mentioned in order to prove he was a felon in the past.

ii. Limited Admissibility – Confining the Impact of Proof
Rule 105 – Limited Admissibilityadmits the evidence on the point for which or against the parties as to whom it is competent, but give