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St. Johns University School of Law
Alexander, Vincent C.


Prof Alexander

Fall 2014


Closed book

2/3rd t/f multiple choice 1/3rd essay

1. Introduction; Objections; Competency of Witnesses

Stages of the Trial pg 7

· Pretrial Motions

· Jury Selection

· Preliminary Jury Instructions

· Opening Statements

· Presentation of Evidence and Limiting Instructions

· Motions after the Presentation of Evidence

· Closing Arguments

· Jury Instructions

· Jury Deliberation and Verdict

· Post-trial Motions and Entry of Judgment

Pg 5 Evolution of the Federal Rules of Evidence

· Fed Rules of Evidence are the basis of the course

· Adopted 1975 by Congress

· Common law, cases and solutions to evidence problems

Rule 101. Scope; Definitions

(a) Scope. These rules apply to proceedings in US cts. The specific cts and proceedings to which the rules apply, along with exceptions, are set out in Rule 1101.

(b) Definitions. In these rules:

(1) “civil case” means a civil action or proceedings;

(2) “criminal case” includes a criminal proceeding;

(3) “public office” includes a public agency;

(4) “record” includes a memorandum, report, or data compilation;

(5) a “rule prescribed by the S Ct” means a rule adopted by the S Ct under statutory authority; and

(6) a reference to any kind of written material or any other medium includes electronically stored info

Exceptions- 1) competency 2) Diversity Actions (Attorney-client privilege, husband wife privileges etc)

NYS Evidence law

· Fed Rules of Ev have been quite influential in all of the states so that most states have adopted the Fed Rules of Ev


NY is a common law jurisdiction (not codified)

· It is augmented by a few statutes

Rule 102 Purpose

These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

Important Features of Our Legal System

1) Trial by Jury (which is why so much of the law is used to prevent juries from hearing something they shouldn’t during trial)

2) The Adversary System (the obligation on the lawyers to make the question; ct stenographer records that which is spoken)

3) System of Appellate Review or Limitations of the Appellate Process (can only look at record from trial ct)

2 ways in which a judge might err:

1) allowing evidence that should have been excluded

2) not allowing evidence that should have been allowed

Rule 103 Rulings on Evidence

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and:

(1) if the ruling admits evidence, a party on the record:

(A) timely objects or moves to strike; and

(B) states the specific ground, unless it was apparent from the context; or

(2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

(b) Not Needing to Renew an Objection or Offer of Proof. Once the ct rules definitively on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(c) Ct’s Statement About the Ruling; Directing an Offer of Proof. The ct may make any statement about the character or form of the evidence, the objection made, and the ruling. The Ct may direct that an offer of proof be made in question-and-answer form.

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the ct must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

(e) Taking Notice of Plain Error. A ct may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

Rule 105 Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes

If the ct admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the ct, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.

Questions for Classroom Discussion pg 24

1) Objection waived- he did not state a specific ground (overrule upheld)

· Objections should be timely and specific so they can be fixed right now (Fix It Now Rule)

2) For D, objection should have been sustained…D didn’t state ground by it was apparent from the context (The Context Exception – don’t depend on it)

· In a perfect world, objections are timely

3) Move to Strike- have it removed from the record and tell the jury to not pay attention to it

· Rule 105

4) To preserve the issue for appeals, P’s counsel must make an offer of proof (approach the bench and show that the evidence is valid and important)

In Limine- (at the threshold) motion made by paper before the trial begins asking the judge to make an evidentiary ruling before the trial begins. (judge doesn’t have context as basis for ruling) Generally reserved for dry technical points of evidence

· Judges discretion to make decisions; can be an abuse of discretion

5) Yes “abuse of discretion”

· De novo review or error of law pg 23

6) Plain Error 103(e)

7) No, the error has to affect the substantial right of the party. Could be deemed harmless error.

Why does a case go to trial?

· To resolve disputed fact issues

· What happened?

· Through evidence we ascertain what happened

2 forms of evidence:

1) Testimonial- characterized by the live testimony of the witness giving testimony from the witness stand telling us what she heard or saw

2) Real- physical evidence that played a role in a given event

What qualifies as testimonial evidence?

Need 3 things:

1) Oath (Rule 603)

2) Competency (Rule 601- capable of perceiving, remembering and communicating)

3) Personal Knowledge (Rule 602)

· Common law prevented certain people from testifying (mental-defects, substance abusers, children, parties and their spouses, convicted felons, and people who follow unconventional religious beliefs) abolished by Rule 601

Rule 601Competency to Testify in General

Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. (Erie Doctrine)

In NY FRE 601 Competency of Witnesses

· Under CPLR 4519 (“Dead Man’s Statute”), a witness is incompetent to testify during the trial of a civil action of: (1) the witness is a party or person “interested in the event”; (2) the testimony is offered against a person who claims her interest in the action directly from a decedent or mentally ill person; and (3) the testimony concerns a personal transaction or communication b/w the interested witness and the decedent or mentally ill person. An exception in automobile-accident cases permits an interested witness to testify to the facts of the accident but not to the statements of the decedent.

· A witness who had no memory of an event until after undergoing hypnosis is incompetent to testify to her post-hypnotic recollections.

Questions for Classroom Discussion Pg 27

1) The child is competent

2) Not credible


(4) Distinctive Characteristics and the Like. The appearance, contents, substances, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.

(5) Opinion About a Voice. An opinion identifying a person’s voice – whether heard firsthand or through mechanical or electronic transmission or recording – based on hearing the voice at any time under circumstances that connect it with the alleged speaker.

(6) Evidence About a Telephone Conversation. For a telephone conversation, evidence that a call was made to the number assigned at the time to:

(A) a particular person, if the circumstances, including self-identification, show that the person answering was the one called; or

(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.

(7) Evidence About Public Records. Evidence that:

(A) a document was recorded or filed in a public office as authorized by law; or

(B) a purported public record or statement is from the office where items of this kind are kept

(8) Evidence About Ancient Documents or Data Compilations. For a document or data compilation, evidence that it:

(A) is in a condition that creates no suspicion about its authenticity;

(B) was in a place where, if authentic, it would likely be; and

(C) is at least 20 years old when offered. (30 in NY)

(9) Evidence About a Process or System. Evidence describing a process or system and showing that it produces an accurate result.

(10) Methods Provided by a Statute or Rule. Any method of authentication or identification allowed by a fed statute or a rule prescribed by the S Ct.

Questions for Classroom Discussion pg 50

1) The D’s acceptance of an offer

2) Must produce sufficient evidence to prove this

3) Testimony of a Witness with Knowledge 901(b)(1), Nonexpert Opinion About Handwriting 901(b)(2), Comparison by an Expert Witness or the Trier of Fact 901(b)(3)

· Hypo: you can’t afford an expert but you ask a guy you know from the courthouse if he can distinguish handwriting examples ( doesn’t qualify, not an expert and didn’t acquire familiarity for the current litigation)

4) Yes, let the jury figure out who they believe

5) No

Questions for Classroom Discussion pg 54

1) Ct sustaining was correct; this is an example of fungible evidence

2) Trying to establish a chain of custody; Sufficiently received in evidence

3) Chain of Custody broken – too long a gap

4) Chain of custody not needed because of the uniqueness of the object

· Before showing evidence on the stand it must be marked for identification

· Context matters

5) authenticated based on uniqueness

· Hypo: Auto accident case

· Car going south ran a red light and crashed into a car going west

· Lawyer pulls out magnetic board to use as diagram

· That evidence is demonstrative evidence- depiction or illustration of the witnesses testimony

· Must be “fair and accurate”