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SUNY Buffalo Law School
Ewing, Charles P.

Ewing-Evidence-Fall 2010

I. Introduction to Evidence
A. Intro: Body of rules—some are statutory & some from case law. Each state has it’s own body of evidence rules. FRE—most influential rules of evidence, many states have adopted FRE. 4th, 5th, 6th Amendments are rules of evidence in their own way. In NYS, no rules of evidence, it’s based on case law. Rules are largely exclusionary—what can’t be allowed, but many rules have exceptions. Procedural rules not substantive rules. Rules cover ALL trials in fed. cts. Rules are not self-enforcing. Each side gets to present their evidence to a trier of fact. Role of counsel to present evidence to shed light on triable issues.
1. Why should we have rules of evidence?
a) Don’t want to overload/confuse the jury
b) Keep out evidence that is confusing, misleading/barred by 403.
c) Privilege (marital, attorney-client, clergy)—policy reasons not to admit (relevant) evidence.
2. What is evidence?
a) Testimony, real evidence (can see, touch, feel, hear). Something tangible. Can be something prepared specifically for evidence (ex. a photo). “Into evidence”—getting it before the trier of fact. Not all evidence goes into evidence.
(1) Can also take the form of an experiment (ex. having r try on bloody glove). NEVER do an experiment in ct.
(2) A view—when you can’t get the evidence to the trier of fact.
(3) Writings—have to authenticate (contracts, confession, something on a computer).
b) Direct vs. Circumstantial Evidence:
(1) Direct—if believed supports a certain proposition, no other inferences needed.
(2) Circumstantial evidence—inferences needed, it is good evidence, in some cases it is the only evidence available. Requires 1 or more inferences. It may come up in jury selection, in the charge to the jury by the judge.
(a) Ex. potential juror was a farmer (asked whether he would prosecute based on circumstantial evidence & he said no.
(b) Judges sometimes use an analogy.
c) Positive & Negative Evidence
(1) Positive: we found the gun
(2) Negative: nothing physical to present.
d) How does evidence get “into evidence”—presented by a party part of litigation. Must find & present. Getting evidence to it is only the beginning, it must pass rules: can’t be hearsay (unless falls under exceptions), must be relevant, current, etc. If present inadmissible & opponent doesn’t object, it will be accepted into evidence (can’t object about it later). Judges have no duty to bail you out, the only time a judge will bail you out (a duty) is “plain error.”
(1) Strike from record. As soon as you hear the question—make the objection.
e) If can’t get evidence in—make an offer of proof (witness is allowed to answer the question w/jury removed. It not hearsay, the jury can hear question & answer). If it’s not admitted then it is part of record.
f) Motion in limine: tell the ct that you think there’s a problem w/some evidence before trial ➝ lay out evidence & law ➝ judge makes decision before trial.
B. Rules:
1. Rule 101 (Scope): Rules govern cts of US.
2. Rule 102 (Purpose & Construction): Rules construed to secure fairness in administration, elimination of unjustifiable expense & delay.
C. Purpose of Evidence: Offered at trial to prove a party’s case (party’s claim, cause of action, or defense). Evidence can be offered for the credibility of witnesses (attack truthfulness). Evidence to paint a pic of a prior event.
D. Rules of Evidence
1. History: Effective 1975, states have their own code too. Modifications in 1990s and 2000s (rule 404(b) added—provision permitting evidence of others crimes, wrongs, acts, rules 413-415 added).
2. Purpose of the Rules: Uniformity, fairness, and efficiency. Fed. Rules limit what may be admitted & what jury may consider during deliberations. Uniformity by telling judges what types of convictions can be used to impeach a wit

(f) Direct-eyewitness
(g) Circumstantial-never saw the robbery, Larry could be running to get help.
(h) Circumstantial-assumption
(2) Problem 1-5: Neighbor’s testimony on what she was watching, cable/satellite line-up for the night in question.
II. The Functions of Judge, Jury and Attorneys at Trial
A. Rules
1. Rule 103: Rulings on Evidence (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and (1) objections or (2) offer evidence. (b) Ct may add any other or further statement that shows character of evidence. (c) In jury cases , proceedings will be conducted to prevent inadmissible evidence. (d) Plain error.
a) In fed ct Rule 103 is very important. Must specify why you are objecting.
b) Plain error: can’t rely upon the judge to cut any slack—make proper objection & offers of proof. Plain error can be raised by anybody. Error that is highly prejudicial (ex. allowing a statement by a r that wasn’t Mirandized).
2. Rule 104: Preliminary questions: (a)Questions of admissibility generally—prelim questions about qualifications of a witness, privilege, admissibility of evidence all determine by ct (subject to (b)). (b) Relevancy conditioned on fact. (c) Hearing of jury—hearing on admissibility of confessions conducted out of the hearing of the jury. (d) Testimony of the accused—doesn’t by testifying in prelim matter become subject to cross-examination. (e) Weight & credibility—doesn’t limit right to introduce evidence.