Evidence Outline

EVIDENCE NOTES

8/23/05

Evidence – Rules of law which determine what data is admissible and what is excluded in a trial
We study the NY Rules of Evidence and the FRE

Note: If you do not object, it is deemed a waiver

FRE – enacted in 1975
– prior to 1975, the rules of evidence were gotten from prior decisions
– we will cover the FRE as an adjunct to the NY Rules of Evidence
o There is no code of evidence for the state of NY (legislature never adopted it)
o A lot of the evidence rules are from case law and statutes

Richardson on NY Evidence (in the library)
Evidence in NY State and Federal Courts – 1 volume (in the library) – published by West
– it’s a side by side comparison of NY Evidence Rules and the FRE
– Shea recommends we buy it

Many federal court cases apply NY law (in cases of diversity jurisdiction)

Casebook is divided into 2 sections
– We start with a rule of evidence that dispenses with the need for evidence
– You can win a case on this rule without producing a thing
o Complete dispensing is Judicial Notice – don’t have to prove a thing
o Partial dispensing is Presumption

Kinds of Evidence:
– (1) Testimonial Evidence
o Getting the information from the witness’ own senses (what he saw/heard, etc.)
o Jury decides the facts and the judge will tell you the law
§ Then apply the law to the facts and come to a decision
– (2) Real Evidence
o It is really there/physically present – it is brought into court and the jury gets to see it and apply its own senses
o Divided into 2 categories:
§ (i) Documentary Evidence – something on paper or an exhibit that the jury can read and utilize in making its decision, letter or contract.
§ (ii) Other Things or Persons – someone who shows his injuries to the jury, the murder weapon, stolen painting, photos of dead body
· There is no closed class of real evidence – almost anything can be brought in if the proper foundation is laid for admitting it into evidence

Another way of looking at evidence:
– From its relationship to the issues of the case
– “Let the record show that the witness has identified the defendant Joe Jones”
o The witness is a form of real evidence
o A witness sees the murder
§ This is Direct Evidence – directly establishes a fact in an issue if it is believed
o A witness sees a man running with a bloody knife who says “I finally got XYZ”
§ This is not Direct Evidence – the witness never saw him stab the victim
§ This is Circumstantial Evidence – doesn’t establish any facts directly, but establishes other facts from which inferences can be made
· These are facts standing around the facts to be established that are kind of pointing to it – indicating that this fact probably occurred
o There is nothing wrong with Circumstantial Evidence
o It can be convincing enough to meet the burden of proof

Irrelevant, Immaterial and Incompetent Evidence:
– Irrelevant Evidence– it does not relate to a fact at issue
o Ex. D is charged with murder and the V has 10 minor children – Prosecutor brings this out – D counsel will say that this is irrelevant (judge will strike this)
§ Prosecutor is trying to play to the emotions of the jury/affect the jury
§ Sometimes the irrelevant evidence is so damaging that there is a mistrial
– Immaterial Evidence – not provable in this case
o Ex. Worker’s Comp case – boss shows that employee was contributorily negligent, but that is immaterial in a worker’s comp case – whether employee was negligent or note, the boss has to pay
– Incompetent Evidence – must be objecting to the person of the witness
o Ex. A rule of law says that we cannot get this evidence from that person – because he received it under a privilege (catholic priest in confession)
§ You would say that this witness is incompetent as a matter of law to testify b/c NY recognizes a clergyman/penitent privilege (the information is confidential and recognized as such)
o Ex. Wife is incompetent to testify against her husband (husband/wife privilege)
§ But there is no privilege between friends – your friend has to tell on you
o Evidence that is not receivable in this court (Inadmissible)
§ Ex. Hearsay

Evidence Admissible for a Particular Purpose – But Not Another Purpose:
– Sometimes a jury cannot “not use” it for the other purpose and they won’t get it at all
– Ex. A witness sees a light turn red for a red car and green for the green car – both cars go – case goes to trial and witness is called to testify
o Witness says he saw the green car go through the red light – although his statement at the scene was that the red car went through the red light
§ P would offer the written statement to establish that the driver of the red car went through the red light
§ D Objection: It may not be used for that purpose – only a statement given in court und