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Evidence
Seton Hall Unversity School of Law
Caraballo, Wilfredo

Evidence Law and the System

I. Development of Rules of Evidence
A. Generally
1. Primary issue as to whether evidence is admissible
2. Factual determinations made by the jury based on consideration only of admissible evidence
3. Rules of evidence govern what evidence can actually be considered by the trier of fact
B. Development
1. Historically, judge-made products of common law
2. California Evidence Code was most notable early on
3. Federal Rules adopted by Congress in 1975
II. What Happens at Trial
A. Jury Selection
1. Qualifications
a) May be dismissed because of individual circumstances or characteristics
b) Minors, felons, aliens, and illiterates are normally excluded by statute
c) Members of certain occupations may be statutorily exempt
i. Servicemen, doctors, ministers
d) Potential jury may request excusal for good cause
2. Number of Jurors
a) Common Law
i. 12 members
b) Due Process Clause
i. Requires only a minimum of six (6) in criminal cases
B. Voir dire Examination
1. Generally
a) Questioning about possible bias, prejudice, or preconceived notions
b) Counsel may inquire into juror’s background as well as general or specific bias
c) Improper to pose hypothetical situations that would not be admissible at trial
2. Challenges for Cause
a) Counsel must 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
b) Counsel typically allowed unlimited number of challenges for cause
3. Preemptory Challenges
a) Right to challenge finite number of potential jurors without demonstrating partiality
b) Allowed six (6) preemptory challenges in most jurisdictions
i. Federal courts allow only three (3)
c) Challenge need not be for good cause and the court may not overrule it
C. Opening Statement
1. Gives attorneys first opportunity to directly address the jury and establish rapport
2. Allows attorneys to tell their clients’ sides of the story and help jury follow the case
D. Presentation of Proof
1. Plaintiff’s or prosecutor’s presentation of the case
2. Defendant’s presentation of the case
3. Plaintiff’s rebuttal
4. Defendant’s rebuttal
5. Further rebuttals
E. Trial Motions
1. May be used at the close of proof to determine whether a party has carried the burden of producing evidence
a) Examples:
i. Motion for judgment as a matter of law
ii. Involuntary dismissal
F. Closing Argument
1. Must follow from the facts of the case as supported by the evidence or inferences that promptly can be drawn from the evidence
2. Improper if:
a) It is based on matters that are not in evidence
b) It appeals to passion or to certain prejudices
c) It contains reference to financial ability or liability insurance
d) It distorts evidence to make unjustified inferences
G. Instructions
1. Court has the right (some jurisdictions, obligation) to instruct the jury on applicable laws governing the case
2. Counsel may submit to court written requests for specific directions
3. The most contestable/appealed aspect of cases
H. Deliberations
1. Jury has access to any exhibits or papers received into evidence
2. Only information presented at trial and made part of the record may be considered
3. Jurors may not fraternize with counsel
4. Communication between judge and jury must be done in presence of counsel for the parties to the trial
I. Verdict
1. General Verdict – Criminal
a) Jury makes a decision in favor of one part of the other

2. General Verdict – Civil
a) Implies a finding in favor of the prevailing party on every material issue of fact submitted to the jury
J. Post-Trial Motions
1. Motion for judgment notwithstanding the verdict
a) Applies legal sufficiency standard
b) Judgment N.O.V. has effect of nullifying the jury’s verdict
c) Asserts that regardless of the verdict, evidence is legally insufficient to sustain the verdict, and hence judgment must be entered for other party
2. Motion for new trial
a) Court may modify a verdict or decisions in whole or in part
b) Court may grant a new and further trial on all or a part of the issues.
c) New trial merely sets aside the verdict, and the case must be retried (contra judgment NOV)
K. Appellate Review
1. Normal procedure by which an aggrieved party may obtain a review by a court of higher jurisdiction
2. Review is based solely on the record of the trial court proceedings
a) Pleadings, transcript of evidence at trial, findings, judgment, etc
3. Limited to the correction of judicial error—direct attack
III. Making the Record
A. Description
1. Includes all litigation, paperwork, pleadings, written motions, and briefs, and proposed jury instructions
2. Contains verbatim transcript of what happened at trial
a) Arguments, testimony, instructions, and any other spoken words
3. Includes exhibits offered into evidence
B. Gearing a Record for Appeal
1. Must make specific, timely objections, based on a valid grounds
2. Large number of appeals are based on evidentiary rulings, so the effective trial counsel must be able to use the rules of evidence in constructing a favorable record
IV. Admission / Exclusion of Evidence
A. Direct Examination of Witnesses
1. No leading questions, except:
a) Preliminary matters.
i. Can be used to establish the basic background of the witness, su

of the objection
b) Must specify grounds for the objection
i. Objecting on grounds of irrelevancy will not cover all possible grounds
2. Types of Objections
a) Substantive objections
i. Rest on particular exclusionary principles in the Rules
ii. Include hearsay, best evidence, attorney-client and martial privilege
b) Formal objections
i. Focus on the manner of questioning
ii. Tactical weapon used to obstruct, delay, or break the cadence of the opposition
3. Types of Formal Objections
a) Asked and answered
i. Objector accuses questioner of drumming away too hard on the witness, putting the same question time and again in hopes of coercing desired response
b) Assumes facts not in evidence
i. If questioner imparts important info in his query, it should be supported by proof already admitted

c) Argumentative
i. Questioner attempts to contradict the witness or wants more to confront him/her with disbelief to get a response (via sarcasm)
d) Compound
i. Risks obscure responses by apparently seeking more than one answer, while being framed in a way that invites a yes or no response
e) Leading the witness
i. Counsel is telling the witness what to say
f) Misleading
i. Question misstates the evidence
g) Speculation or conjecture
i. Raises the point that witnesses are expected to say what they “know”, not what they “guess” or “suppose”
h) Ambiguous, uncertain, and unintelligible
i. Points out the flaw in questions that simply cannot be understood or whose meaning depends entirely on inflection that the record cannot capture
i) Nonresponsive to the question
i. Premised on the fact that lawyers who ask proper questions on specific points are entitled to answers addressing and limited to those points.
G. Motion in Limine
1. Party anticipates that particular evidence will be offered to which he will object
2. Counsel seeks to obtain a ruling in advance
3. If a judge makes a definitive ruling on a pretrial motion, and objection need not be renewed at trial. [FRE 103(a)] H. Offer of Proof
When the proponent of evidence is unable to overcome an objection, he can make an offer of proof to show the trial court what the evidence would