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Seton Hall Unversity School of Law
Freamon, Bernard K.

Evidence relates to all other disciplines and transcends the law. Key phrase is evidence is about proof. For lawyers, it is proof of facts. Think of problems of proof in two ways: 1) methodology – what are the methods that ppl use in seeking to prove some fact. 2) The soundness or the validity of the reasoning used in that methodology. These two aspects come together in the common law trial and other related adjudicative proceedings.
Federal Rules of Evidence have been adopted by Congress and have been revolutionary in U.S. and other parts of the Anglo world. Federal Rules of Evidence applies to federal courts and almost all states have adopted some version Federal Rules of Evidence. Federal Rules of Evidence code book is extremely important in this course. Read Rule, Advisory Committee Note, and Legislative History. Also can look at McCormick references – optional.
Interpreting a rule of evidence has much to do with legislative interpretation.
75% of course – Tradecraft – the practice associated with the common law trial. Practice + rules. 20% is jurisprudence – philosophy behind the law, goodness or badness, policies. 5% Epistemology – the study of knowledge; how do we know what we know. Human aspects. Perception, language, emotion.
Tradecraft as main part of notes. Keep tally of U.S. Supreme Court cases that have an impact (16). Also write down the writing of scholars, today we had Thayer, Morgan, Wigmore. Opinion of U.S. Supreme Court and opinions of scholars make up jurisprudence portion.
Wigmore defines Evidence – any knowable fact or group of facts, not a logical or legal principal, considered with a view of its being offered before a tribunal for the purpose of producing a persuasion, positive or negative on the tribunal as to the truth of the proposition, not of law or logic, on which the determination of the tribunal is asked.
Wigmore’s interpretation includes probative value (that something did or did not exist) and second materiality (the the proposition matters in terms of the determination of the dispute). It is both substantive and serves a methodological rule. It interprets the concept of relevancy, which is divided into two parts probative value and materiality. Evidence is not valid, unless it has both, materiality and probative value.
The person with the burden of persuasion, is the one that goes first. Usually (99%) it is the plaintiff, however it may be the defendant. i.e. if defendant has a release, that he must prove is valid. Another example is with insurance company, and suicide is not covered by the policy. Insurance co (D) , must prove it was a suicide. However, usually P is the one that goes first. After that defendant goes. Then plaintiff rebuts. Then defendant offers surrebuattal. The person who has the burden, opens and closes.
With a witness – direct examination comes first, then cross examination, then redirection examination, then recross.
The obligation to present evidence to and persuade or dissuade is on the parties. This is opposes to Islamic, Inquisitorial, and most Mid East systems, European systems, where the judge plays a central role and lawyers are passive participants.
The judge prompted by the party will examine the evidence at the end of the case, to make sure the party has given sufficient evidence for the jury to find that he satisfied the burden or production, otherwise called the burden going forward. Burden of persuasion – person persuading jury that he is right. Motion for directed verdict – other side asks judge to decide that other side hasn’t’ provided sufficient evidence for the judge to decide for that party. Judgment of acquittal – not enough evidence to go to jury, so judge enters judgment of acquittal. There are generally three burdens – typical civil case has preponderance of evidence. In criminal case – burden is beyond a reasonable doubt. Clear and convincing evidence – middle burden; in b/w preponderance of evidence and beyond a reasonable doubt. Includes cases of termination of parental rights, fraud, and disbarment of a lawyer. Went over motions in class –renewing motions, etc.
Three things that happen in Responsive Case??: 1)Plaintiff can disprove defendant’s fact, 2) put on positive evidence of an affirmative defense, 3) attack the credibility (believability) of the plaintiff’s evidence.
Both sides can make motions….
With affirmative defense – defendant has the burden of production.
These rules developed through trial and error with the common law.
This process is called the ORDER OF PROOF. i.e. who goes first, who does what, who goes when, what the burdens are with respect to these proofs. Burden of production shift back and forth during the course of the trial. Burdens of persuasion NEVER shift. They are set by substantive law and remain that way during that case. Burden of persuasion is always on prosecution. Judge has broad discretion in structuring the order of proof. Rule 611a. – Talks about presentation of proof and the role of the judge in managing it.
Presentation of evidence from each witness works similarly. In the inquisitorial system, a witness takes the stands, and the inquirer says, “tell me what you know about the death of …..?” Nothing like, were you there , do you know her? This is opposed to Anglo system, where the parties generally elicit info , from question and answer. This is called direct examination. We do not elicit narrative from witnesses in Anglo-American system.
Direct examination – examination by the party calling the witness.
Cross examination – examination by anyone else, including the judge. Anything other than direct examination. The rules of evidence are NOT self execution. The judge has no obligation to intervene when other side doesn’t object, and the evidence comes in. Each party has obligation to trigger, or call into question a rule of evidence. Rule 103.
Gives regs with respect to 3 triggers that can use to invoke rule of evidence: 1) Objection 2) Motion to strike. 3) Offer of proof. Rule 103 also sets relationship between appellate court and trial court. Lays out how the advocate brings out the rule.
Relevance – a tendency to prove or disprove a proposition properly provable in the case; and then by logic evidence is irrelevant when it has no tendency to prove or disprove a proposition properly provable in the case. Tendency Rule 401.
Morgan – professor like him b/c he is precise and thought provoking, pg 77.
Proposition to be proved is that Y killed X; Love letter from Y to X’s wife. Here, just the love letter is not enough. Each piece of evidence has a relationship to some proposition.
McCormick – “A brick is not a wall.” Does it make it more or less probable then without the evidence. Does it advance the inquiry. Answer is let love letter in, b/c the love letter tends to show motive, which is a material proposition, or a fact of consequence to the case. In criminal case, it is appropriate to show motive. Love letter tends to prove proposition properly provable in the case.
Relevancy – tendency in logic , reason, and human experience. Reason includes scientific reason as well as others. Reason – logic and human experience. Irrelevant – no tendency in logic, reason , or human experience to prove or disprove a properly provable fact.
Need to determine whether evidence is material or a fact of consequence
3 questions every trial lawyer should ask: 1) For what purpose is the evidence offered. –probative value 2) Is that purpose properly provable in the case – materiality. 3) Does the evidence have any tendency in logic, reason, or human experience to prove or disprove that proposition.
Materiality is determined not by rules of evidence, but from three other sources: 1) substantive law. 2) pleadings in the case, 3) Background facts. Also, credibility of a witness is always material.
McCormick – evidence is offered item by item. This goes along with the saying that a brick is not a wall.

Making the Record; Trial Objections
· Reviewing court can only act on formal record of trial. Three parts of record: 1) the litigation’s paperwork 2) the verbatim transcript of hearings, conferences, and trial testimony, and 3) the tangible exhibits that the parties offered into evidence.
· Judge and lawyers “make” the trial record.
· The parties ‘ right to have a word for word record of everything said cannot be negated by a trial judge.
· A statement for the record which opposing counsel affirmatively accepts as accurate rises to the level of a stipulation.
· A stipulation is simply a voluntary agreement entered into b/w counsel for the parties to a litigation respecting some matter that is before the trial court. Stipulation binds the principals, the clients. Must be in writing, according to Rule 29. An evidentiary stipulation acts to admit or concede specified facts, relieving a party of the burden of making full scale proof.
· Rule 705 provides that an expert can testify to his/her conclusions and explain the reasons for them without prior in-court disclosure of the underlying facts or data, unless the trial judge requires disclosure. Rule 705 does away with the requirement that a hypo question be used.
· Rule 602: “A witness may not testify to a matter unless evid is introduced that the witness has personal knowledge of the matter.
· Cross examination is much more flexible then direct examination.
· Relevance is the principal test in cross examination.
· Reasons for impeachment: inconsistent statements, serious criminal convictions or prior “bad acts” tending to doubt his current reliability.
· Two types of tangible evidence: 1) real evidence 2) demonstrative evidence.
· “Sponsoring” the exhibit is testifying it is a genuine article or the real thing.
· De

resumption is that it should come in. 2) Even where evidence is relevant, the judge should be given some discretion to keep it out.
Relevance – two parts : 1) materiality – proposition that is properly provable in case. 2) probative value – the ability to persuade about the positive or negative proof of a proposition. The persuasive value.
3 questions: 1) Purpose of the offer . 2) 3) Does it in fact prove that proposition?
Rule 401, 402, and 403 should be read together
3 principles: 1)All relevant evidence is admissible. 2) Only relevant evidence is admissible. If it is irrelevant, then it doesn’t get in. 3) Sometimes relevant evidence must be excluded for either policy or efficiency or sometimes some other reason. These rules are codified in Rule 401, 402, and 403
Rule 403 Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste Time. – First two words important, “although relevant,” – assumes relevance. “may be excluded” – discretionary power. Authorizes exclusion, rather then omission. Balance – if its probative value is substantially outweighed by the danger of unfair prejudice, confusion, ….. Rule says not prejudice alone, but UNFAIR prejudice and uses the words SUBSTANTIAL.
Probative value – the degree to which the trier of fact will be persuaded. Sometimes there is a distance b/w the probans (evidence) and the probandum (what you are trying to prove). i.e. love letter. Other situations, such as when found with bloody knife, the probans is stronger.
Confusion of the issues – where the jury assigns the evidence to the wrong issue. Rule 105, pg. 16 Limited Admissibility permits instruction to jury, to assign the evidence to a certain issue.
Misleading the jury – the evidence is admissible, but the jury gives the evidence too much or too little weight. Waste of time – takes too much time.

Knapp v. State, pg. 79
It is enough that the evidence, once proved, may shed some light on a primary issue without necessarily conclusively resolving it. When Knapp (D) was unable to reveal the source of his information, the prosecution was entitled to show the improbability of his story.
Facts: Knapp’s defense to a charge of murder was self defense. He testified that he had been told that the victim had killed another man. The prosecution was allowed to prove the victim had not caused the other death.
Issue: Will the determination of the relevancy of a particular item of evidence depend on whether proof of that evidence would reasonably tend to help resolve a primary issue on trial?
Holding: Yes. Knapp was correct in asserting that the issue was whether or not he had heard the story about the death of the old man at the hands of the victim. But evidence may be relevant that does bear directly on the issue on trial. It is enough that the evidence, once proved, may shed some light on a primary issue without necessarily conclusively resolving it. When Knapp (D) was unable to reveal the source of his information, the prosecution was entitled to show the improbability of his story.
Sherrod v. Berry, pg. 80: The reception of evidence or any info beyond that which Officer Berry had and reas believed at the time he fired his revolver is improper, irrel, and prejudicial to the determination of whether Officer Berry acted reasonably under the circumstances. Think about whether Knapp and Sherrod can be reconciled.

Rule 401. Definition of “Relevant Evidence” – “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 more probable or less probable than it would be without the evidence.
· The standard of probability under the rule is “more… probable than it would be without the evidence.
Probative Value Versus Prejudicial Effect
*Old Chief v. United States, pg. 81 (important, approach of trial judges when 403 objections; Rule 403 Balancing)