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SUNY Buffalo Law School
Bartholomew, Christine P.


Preliminary Issues

NY State does not have a Code of Evidence
Federal Rules of Evidence and the US Constitution dictate the Rules for this Class
Evidence—is testimony, writings, material objects, or other things presented to the senses to prove the existence or non-existence of a fact.

Direct Evidence—actual statements, writings, etc. where no inference needs to be made; a fact taken as a fact.
Circumstantial Evidence—Jury must infer one or more things; where the Court determines how far of a jump the jury may make.

Example: You go to sleep and the next morning there is snow everywhere when you wake up. The jury can infer based on the circumstantial evidence of snow on the ground, that it actually snowed last night.

Positive Evidence—somehow the evidence is there (you can see it/touch it/smell it/etc.)
Negative Evidence—something that is not found can allow one to draw an inference (searching an entire house and not finding one fingerprint)
Real evidence: bullet, semen, real evidence, tangible piece of reality; also things prepared for the trial like a chart, xray, diagram
Demonstrative evidence: so a demonstration – have the defendant try on the bloody glove – these usually don’t work
sometimes you can’t bring something into the courthouse – stairs, semiautomatic – you take photographs, but they are not good sometimes, so you can bring the jury to the evidence
checks, contracts, notebooks, appt. books, contents of hard drive (writings have their own rules)

Voir Dire: the opportunity to examine the jurors before their appointment as regards to their integrity and balanced approach; if prosecution’s entire case was circumstantial, and prosecutor wanted to know if they were willing to convict based on circumstantial evidence
FRE are not self-enforcing: Evidence has to be admissible under the rules or it is not admissible and the other party does not object to the proof, then the purported proof will become evidence under the rules. However, there are instances where the judge can intervene because of plain error.

Plain Error: when admitting the proof into evidence is so egregious that the Judge must intervene and exclude it even though the other party did not object to the proof.

Typically, happens in situations where admitting it would violate a constitutional right or the right to a fair trial.

Objection is…

SUSTAINED: this means that the objection is ALLOWED, and that the piece of proof may not be admitted into evidence.

One must object, to preserve an issue for appeal. So you must object and state a rule(s) as to why you are objecting. If you don’t get the offer of proof on the record, then there will be no matter preserved for appeal (you waive you right to object forever).

OVERRULED: this means that the objection was wrong, and the proof is allowed to be admitted into evidence.
Note: Remember that the objection can be sustained in part, and overruled in part!
Limiting Instructions: A judge can tell a jury that they may consider X, only for the purposes of Y (competency of a witness not whether he committed the crime).

Motions in Limine: These are how evidentiary issues are handled before trial. This is when the judge rules on whether the something will be admissible or not at the trial before the trial begins
Why we need the FRE: to restrict the amount, things that are irrelevant shouldn’t’ apply, make for fairer more consistent trials, prejudice – we don’t trust jurors to exercise caution; implement social policy – marital privilege: you can’t be compelled to give testimony against your spouse.

The Rules of Evidence, Cases, and Problems:

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) Objection. – In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; or

(2) Offer of proof. – In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked.

Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

(b) Record of offer and ruling

The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form.

(c) Hearing of jury

In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.

(d) Plain error

Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court.

Rule 606. Competency of Juror as Witness

(a) At the trial.

A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury.

(b) Inquiry into validity of verdict or indictment.

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith. But a juror may testify about (1) whether extraneous prejudicial information was improperly brought to the jury’s attention, (2) whether any outside influence was improperly brought to bear upon any juror, or (3) whether there was a mistake in entering the verdict onto the verdict form. A juror’s affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying.

Tanner v. US: Tanner and Connover were convicted of mail fraud. After they were convicted, Tanner’s attorney found out that certain jurors were doing drugs and sleeping. Asked for an evidentiary hearing. The trial court refused to allow juror testimony about intoxication or sleeping that might have occurred while the people who decided the case served on the jury under FRE 606(b).

Held: The US Supreme Court held that jurors cannot testify as to what occurred in the Jury room under FRE 606. Being on drugs is the same thing as being sick, so jurors may not testify to such states of mind.

Rule: Sleeping or Drugs is not “extraneous prejudicial information” or an “outside influence” that could be brought to a jury’s attention improperly.

Article IV Rules Deal With: Relevancy and Its Limits

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 probable or less probable than it would be without the evidence.

Rule 402. Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible

All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible.

Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

People v. Scarola: NY state’s general rule on relevance

NY Rule: All relevant evidence is admissible unless there is some exclusionary rule.

Ewing’s Summary of Rule 401: The “smidgen test”: Does the evidence make any fact even a smidgen more probable. If it does, then the proof will be considered relevant.

Ewing’s Summary of Rule 403: Confusion or misleading a jury can lead to a valid 403 objection. Also, it can be excluded if the “probative value is substantially outweighed by the danger of unfair prejudice.” Judges have substantial latitude on making 403 determinations.

Note on 403 Appeals: On appeal, trial judge’s decisions on 403 are given substantial deference because they were there at the time of the argument. Unless there is some abuse of discretion, a judge’s 403 decision will be sustained and not overturned.

Supplementary Evidence Problem:

After withdrawing $300 from an ATM at her neighborhood bank at 2:00 a.m. Violet is knocked to the ground and her purse is snatched. All Violet sees is what looks to her like two men running away wit

er of unfair prejudice. This is very probative, but also very prejudicial. When it is a close call under 403, the evidence will most likely come in.

20. Testimony of Cracker, a nearly blind, notorious cocaine abuser and convicted perjurer, that he witnessed the crime from across the street and saw two tall teenage boys rob Violet.


Problem: King Solomon’s Judgment: He listens to the two women in a dispute over a baby. He then orders it cut in half. One woman says, don’t do it and give it to the other. The other woman says for him to cut the baby in half since that is what he has decided to do. Are these statements relevant?

Answer: Statements are only relevant as to the issue being sought to be decided. His judgment reflected who was the better mother not who was the real mother.

Problem: The Pizza: In a proceeding under the state Worker’s Compensation Act, claimant George Smith alleges and introduces evidence that as he was operating a lathe his shirt sleeve caught in the machinery and his hand was severely injured. In defense, the employer’s insurance carrier offers the testimony of a co-worker, White, that at the time of the accident Smith was eating a pizza and had looked away from his work momentarily to reach for a napkin. Smith’s counsel objects to White’s testimony. How should the judge rule? Why?

Answer: The testimony of White is not relevant because it doesn’t matter what a worker is doing at the time during a worker’s compensation case. What George was doing prior to the accident is not relevant because it has no tendency to make any fact more or less probable. Facts must be “of consequence to the determination of an action.” (Rule 401) Thus, one must know the legal issues of a case, before one can tell if something is material and thus relevant to that issue to be decided.

Problem: The Burned Butt: Auto accident tort action. D, by cross-examination, unsuccessfully sought to force from P the admissions that he was driving under the influence of liquor and at the time of the accident was attempting to light a cigarette. D also sought to testify that two days after the accident and after P’s demolished vehicle had been removed ten miles from the scene of the accident, she found a slightly burned cigarette on the floorboard of P’s vehicle. Should D’s testimony be admitted? Why?

Answer: The burned butt is relevant under the smidgen test of 401, but probably inadmissible because it is too remote and its admittance into evidence would probably be extremely prejudicial.

Problem: Beer Cans in the Car: Charge: driving while intoxicated. At trial, the arresting officer testifies that she stopped D for speeding. While writing out a speeding citation she observed a beer can on the seat next to D. The prosecution offers the beer can as evidence. Should the beer can be admitted? Does it make any difference whether (1) the beer can is half empty, (2) the beer can is open and completely empty, or (3) the beer can is full and unopened?

Answer: (3) The Full unopened can of beer passes the smidgen test of relevance, but might be considered highly prejudicial. (2) If this was the only piece of evidence, then it would not come in because it is just not enough to sustain a verdict. (1) This definitely passes the smidgen test even without a sobriety test conducted. It might be unfairly prejudicial, but who actually knows the correct answer to this. Bottom Line: All 3 cans are relevant, so one would then have to assess the probative value of any of them to determine whether the cans could actually be admitted.

Main Point: Judges cannot take one piece of evidence (like the beer cans) in a vacuum because some pieces of evidence are conditionally relevant on something else being admitted first.