Select Page

Seton Hall Unversity School of Law
McLaughlin, Denis F.

Evidence Outline
Chapter 1: Evidence Law and The System
·         What Happens at Trial
·         Appellate Review
§         Must be after a final judgment or an interlocutory order
§         R. 103: Must preserve the error/plain error:
·         Did you make an offer of proof?
·         Standard of Review = Abuse of Discretion Standard
·         Deferential Standard of Review = Deference to Judge
§         Reversible Error/Harmless Error
·         A substantial right of the party must be affected à Not reversible; it affected the outcome of the case.
·         If it wouldn’t affect the outcome of the case, it doesn’t matter that the judge did or did not let the evidence in.
§         Plain Error—R. 103(d)
·         If not objected or offer of proof made notice may be taken.
·         The Motion in Limine
§         Procedural device which is used to anticipate a serious objection from an adversary against an item of proof.
§         Allows the movant to isolate and emphasize a point.
§         Problems
·         Seeks an advisory opinion
·         Creates procedural ambiguities
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
§         Proponent hands evidence to the clerk to become part of the record regardless whether it is ultimately admitted.
§         R. 103 (b) the court may direct the making of an offer in question and answer form
§         R. 103 (c) to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means.
§         The party wishing to exclude evidence bears the initial burden of raising the objection
·         Judicial Mini-Hearings
§         Rule 104(a) judge determines preliminary questions
·         Witness competency
·         Privilege and admissibility of evidence
§         Rule 104(b) Jury decides whether the condition of fact is satisfied and evidence that is conditionally relevant is admitted upon or subject to the introduction of sufficient other evidence to support a finding by the jury that the condition is satisfied.
§         The task of the judge is to ensure that the evidence is such that a reasonable juror could conclude that the item is what it is claimed to be à Judge does this only in extreme cases
§         R. 104(a) the judge is not bound by the rules of evidence in deciding questions of admissibility (except privilege)
·         May consider matters the jury may not
·         Consequences of Evidential Error
·         Appraising such error on the merits
§         Cumulative Evidence Doctrine
·         Supports affirmance despite errors by the trial court both in admitting and in excluding.
·         The trial judge did err in admitting evidence offered against appellant, so much evidence properly admitted supports that same point, the jury still would have ruled the same.
§         Curative Instruction Doctrine
·         When a judge commits an evidence error, he may be able to avoid reversal by means of an instruction to the jury.
§         Overwhelming Evidence Doctrine
·         If a reviewing court concludes that evidence properly admitted supports the judgment below overwhelmingly, generally it affirms, even in the face of errors admitting or excluding evidence that might otherwise be considered serious.
·         Appellate deference: the discretion of the trial judge
§         R 403: Judge may exclude even competent and relevant evidence if it seems likely to prejudice the jury against one of the parties
§         R 611: The judge may control the manner and sequence of questioning witnesses
·         Procedural Pitfalls and Adversarial Gambits
§         Failing to Object or Offer Proof
·         Failure to object waives the right to claim error in admitting evidence
o       An objection on one particular ground suffices only to preserve that particular error
o       Different from a general error
§         Example
·         Object as hearsay
·         Can only argue on grounds of hearsay, cannot argue on prejudice as well
o       When you make your objection and the judge says no, you only preserve as to that specific objection.
·         Failing to Offer proof waives the right to claim error in excluding evidence
o       An unsuccessful offer of proof resting on a particular ground for admitting evidence suffices only to preserve arguments on that ground for review.
o       If some significant part of the proof in question does not fit the objection or the offer, appellant may limit or lose his right to review.
§         Where a judge sustains an objection or accepts an offer of proof on the wrong ground, a ground later shown erroneous, her ruling will likely be sustained on appeal if some other ground supports her action
·         Appellate court favors affirming judgment.
·         If you want it reversed, requires specific objection
·         If you want it affirmed, they will find grounds to affirm it.
§         Inviting Error
·         Puts questions that produce otherwise excludable answers
·         A party invites error by relying on evidence offered by his opponent that he might otherwise have excluded by raising objection.
§         Opening the Door
·         A party testifying on direct by his own counsel makes an ill-advised and overbroad assertion that he has a blemish-free past.
o       Appeal from Judgment
§         Rulings admitting or excluding evidence, rulings on examination of witnesses and rulings on such evidential devices as presumptions and burden of persuasion are almost always reviewed only after judgment.
o       Interlocutory Appeal
§         Privilege Rulings
·         Approach 1: Whether the person from whom information was sought has been held in contempt.
o       If not, no review may be had
o       If so, some authority would permit reviewing court to consider the merits of the privilege ruling only i

·         Alternative proof must be compared and is an important factor when considering whether to exclude on grounds of unfair prejudice.
·         Limited Admissibility
§         Relevant but competent/admissible on one point and incompetent inadmissible on other point
·         Can exclude the evidence entirely so as not to confuse the jury
·         In some cases, may be able to remove the incompetent part and admit the competent part
·         Give limiting instruction as to how to consider the evidence
·         The interplay between 403 and 105, that you cannot redact, a limiting instruction is not sufficient and you have to exclude for prejudice.
o       More often that not, courts admit evidence and limiting instructions are given
§         R. 801 (d)(2)(A) what a party says is usually admissible against her, under the admissions doctrine
§         R. 411 the fact of insurance cannot be used to prove negligence.
§         Often such statements are admissible against the person who made it, but not against others.
·         Completeness—Proving Context
§         R. 403 authorizes an approach of balance and admitting or excluding the whole accordingly
§         R. 106 authorizes another approach under which the adverse party may require introduction of any other part of the statement that ought in fairness to be considered contemporaneously with the party already offered.
§         R. 106 invites the adverse party to require the proponent to offer another writing at the same time as the writing being offered
·         Clearly authorizes adverse parties to answer an incomplete presentation later in trial, thus also serving as a rebuttal rule.
·         The admissions doctrine does not authorize on to introduce his own statements.
§         R. 106 can sometimes trump hearsay and other objections when necessary to provide context.
§         Normally, when one part of a document is relevant and competent and part of it is not, you can exclude the incompetent part.  
·         However, when the relevant part is unfair without its context (the inadmissible part) you may put it in context under R. 106
·         The Shortness of Life
§         R. 403 speaks of undue delay, waste of time, or needless presentation of cumulative evidence.
·         The Functions of Judge and Jury
§         Under R. 104(a), the judge decides admissibility.