Select Page

SUNY Buffalo Law School
Ewing, Charles Patrick

EvidenceEwing – Summer ‘09
Chapter 1 – Intro to Evidence
·         Evidence is given special meaning, what qualifies as “admissible proof”
·         Evidence used to paint a picture of a prior event, person, or thing and to persuade the trier that the picture is an accurate one.
·         Federal Rules of Evidence (FRE) did not take effect until July 1, 1975
Ewing’s Take
·         4th, 5th, 6th Amendments and FRE
·         Not just in statutes, states like NY, embodied in case law
·         FRE are model rules, similar to CA and NY
·         Largely exclusionary, what cannot be admitted à exceptions
·         X is inadmissible except under Y circumstances.
·         Procedural
·         Not self-enforcing
The Purposes of the Rules
·         Promotes uniformity, fairness, and efficiency
·         Limit what may be admitted and what a jury may consider
·         Context is important and the judge has a lot of discretion
The Different Meanings of the Term “Evidence”
1.    Proof of a cause of action, claim, or defense
2.    The rules governing the admissibility and exclusion of proof at trial
3.    The things that jurors can take back with them to the jury room for the process of deliberations that have been admitted in evidence.
Ewing’s definition – testimony, writings, material objects, or other things presented to the senses offered to prove the existence or nonexistence of the fact
·      Proof is offered through marked tangible material called “exhibits” and oral testimony by witnesses
·      Rules contain numerous evidentiary “foundations” – procedures and judicial findings that are prereq.’s to the admissibility of evidence at trial.
·      Demonstrative evidence (aids to illustrate the testimony of a witness)is generally not subject to the same rigorous admissions req.’s as other evidence and often is not permitted to be taken by the jury.
Types of evidence
·         Real, Representative, and Testimonial Evidence
o       Real is physical and tangible, includes writings. Ex. Gun used in an armed robbery
o       Representative (demonstrative) – diagram, chart, photo, powerpoint, view (take the jurors to the actual scene, ex. Door example), experiment (never do a demonstration in court, you don’t know what’s going to happen)
o       Testimonial – oral testimony from a witness, dialogue with an attorney
·         Direct and Circumstantial Evidence
o       In many cases, there will be no direct evidence
o       Direct – proves an important fact without inferences
§         Ex. Eyewitness testimony of someone stabbing the decedent
o       Circumstantial – does not prove a fact, but an inference from it can be drawn that bears on the fact at issue à good evidence, we would want to know that Smith said he would shoot Jones
§         Ex. Bloody knife found at the scene of the crime or suspect fleeing the scene or statement that A would hurt/kill B, then it does happen
Circumstantial Evidence Nuisances
Voir Dire (jury questioning about circumstantial evidence)
·         Farmer was called to jury duty for a prosecutor’s case based solely off circumstantial evidence, farmer replied, “No way in hell that I would do that”
o       Prosecutor was curious as to why he was so adamant, he got caught supposedly banging the cow by his wife b/c of a series of stupid events
Jury instructions – snowfall analogy, you didn’t see it snow, no direct evidence, but there’s snow on the ground when you wake up so you can reasonably conclude it snowed last night.
Positive vs. negative evidence
·         Positive – appeals to the senses
·         Negative – police go to a home to search for a gun and ammunition and nothing is found, can be just as good as finding the gun à serves to negate the charge
o       Ex. Hillside stranglers – no fingerprints found anywhere in the house, Ds or others. It was used as circumstantial evidence that they committed the crimes.
How does the evidence get to the trier of fact?
·         Get it to court
·         Blood, sweat, and tears of lawyers presenting the evidence à admissibility
·         Just having the evidence is insufficient, have to get it over the hurdles of the rules of evidence to present it
o       Overcome objections
o       Offers of proof
o       Motion in limine
Chapter 2 – The Functions of Judge, Jury, & Attorneys at Trial
Judge – responsibility of admitting or excluding evidence, manage the trial à case proceeds orderly and in a predictable fashion
·         Whether: evidence is hearsay (an out of court statement, made in court, to prove the truth of the matter asserted), witness is qualified, a sufficient foundation was laid for an exhibit, or a privilege applies to certain evidence
·         Cannot

made by a party when simply the mention of the evidence would prejudice the jury against that party, even if the judge later instructed the jury to disregard the evidence.
·         Even where the court’s ruling is definitive, nothing in the amendment prohibits the court from revisiting its decision when the evidence is offered.
·         A definitive advanced ruling is reviewed in light of the facts and circumstances before the trial court at the time of the ruling.
·         Nondispositive magistrate orders – if the party neglects to file a written objection within 10 days of receiving a copy of the order, cannot then assign as error a defect
·         An objection or offer of proof need not be renewed to preserve a claim of error with respect to a definitive pretrial ruling.
·         Subdivision (b). Its purpose is to reproduce for an appellate court, insofar as possible, a true reflection of what occurred in the trial court. When judge doesn’t allow in evidence, proffer for court exhibit or to answer question for preserving the record for appeal.
·         Subdivision (c).FRCP 43(c) “The Court may require the offer (of prejudicial evidence) to be made out of the hearing of the jury.”
·         Subdivision (d). Deals mostly with admission of evidence rather than exclusion since failure to comply with normal req.’s of offers of proof is likely to produce a record which simply does not disclose the error.
 FRE 104 Preliminary Q’s
·         Questions of admissibility generally à qualification of a person to be witness, the existence of privilege
·         Relevancy conditioned on fact à When the relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition
·         Hearing of the jury à if confession, out of the jury’s earshot