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E
VIDENCE
O
UTLINE
Hofstra Law, Professor Biancavilla, Fall 2009
I.
I
NTRODUCTION
a.Why do we need the Rule of Evidence?i.Mistrust of Juries – want to ensure accurate fact-finding1.Control information jury receives, b/c no checks on what occurs during deliberations.a.Hearsay – assume amateur fact-finders cannot properly evaluate statements made outsideof its presence b.Character – assume juries place too much weight on such proof incorrectly. b.What is evidence for purpose of the evidence rules?i.The evidence rules are directed to the words spoken by witnesses and the tangible evidenceshown to the fact-finder. The rules
don’t 
apply to facial expressions, body language, tone of voice, arguments, statements by judge, etc.
T
HE
P
ROCESS
 
OF
P
ROOF
I.
T
HE
S
TAGES
 
OF
 
THE
T
RIAL
a.Pretrial Motions – attys meet with judge to try to settle or agree on various issues. Jude mightresolve outstanding issues by making evidentiary motions. Prevents prejudice to jury via exposure of inadmissible evidence. b.Jury Selection – voir direc.Preliminary jury instructionsd.Opening statementsi.Π/Pros usually goes first. Δ can then go immediately after, or after Π’s entire case-in-chief.
 Not 
an argument, so no advocating. Counsel presents fact-finder w/ brief roadmap of case.e.Presentation o Evidence & Limiting Instructionsi.Several forms of evidence:3.Witness testimony b.Direct – open-ended questions,
no leading 
. Broad or narrow. Usually calls for longnarrative answers.c.Cross – leading question permitted; used to control witness.
 
4.Presentation of docs – includes demonstrative evidence (charts, graphs, re-enactments)ii.Presenting Evidence – throughout trial court may rules on issues. To preventconfusion/prejudice, this is done outside jury’s presence.iii.Limiting/Cautionary Instructions3.After ruling on an evidentiary motion – (1) if court sustains an objection, will instruct jury todisregard questions, (2) if court grants motion to strike witness’s answer, will instruct jury todisregard answer.4.
Rule 105. Limited Admissibility – If evidence is admissible as to one party or for onepurpose but not another, the court shall restrict the evidence to its proper scope &instruct jury accordingly.
iv.Stages of Presentation of Evidence3.Π/Pros’s case-in-shief – assert affirmative argument; establish prima facie case4.Δ’s case-in-chief – if affirmative defense, establish prima facie case. Offer evidenceundermining Π’s case.5.Π/Pros’s rebuttal – Π can rebut Δ’s case-in-chief, but limited to issues raised by Δ. Ct maygrant Δ surrebuttal.v.Motions after Presentation of Evidence –parties may ask court to decide on all or parts of thecase “as a matter of law.”vi.Closing Arguments – use evidence inferences to show jury why they should find in their favor vii.Jury Instructionsviii.Jury Deliberation & Verdict3.2 types of verdict: b.General verdict – declares who wins & remedyc.Special verdict – jury answers specific questions. Court uses answers to determine precise verdict.4.Jury deliberations – in secret; court usually allows jury to examine evidence & if testimony,then jury comes back to courtroom to hear court reporter read from transcriptix.Post trial motions & Entry of judgment - JNOV, etc.II.
A
PPELLATE
R 
EVIEW
 
OF
E
VIDENTIARY
I
SSUES
a.
Rule 103(a)
(1) & (2) – to successfully appeal an evidentiary error i.
Must preserve issue for appeal
by making an objection
or 
offer of proof 1.Objection must be timely & states specific ground, unless obvious. Timely means as soon as basis for objection is clear – right away.2.Offer of proof – record of what excluded evidence would have been, unless apparent.
 
ii.
Must persuade appellate court that trial court committed an error
in admission or exclusionof evidence1.Note: Diff btwn “may” (discretionary) & “must” (no discretion) rules for judges.iii.
The error affected a substantial right
– it was prejudicial
S
OURCES
 
OF
E
VIDENCE
 
AND
 
THE
N
ATURE
 
OF
P
ROOF
I.
W
ITNESS
: C
OMPETENCY
, P
ERSONAL
 
KNOWLEDGE
& O
ATH
/A
FFIRMATION
a.
Witness Competency
i.
Rule 601: General Rule of Competency : Every person is competent to be a witness exceptas otherwise provided in these rules.
1.Children - Even a small child can be a witness, although other issues arise – reliability, etc.a.New York i.To be competent, the court must be satisfied that the witness possesses sufficientintelligence & capacity to justify reception of evidence.ii.A child may not testify unless under oath or affirmation. If child is incapable of understanding an oath, she is equally incapable of testifying. NY law says a witnessunderstands the nature of an oath if he appreciates diff btwn truth/falsehood, thenecessity for telling truth, & that you can be punished if you don’t tell truth.1.However, the NY Fam Ct Act makes an exception giving judge discretion onwhether or not to place minor under oath2.But, in quasi-crim/Crim cases, no finding can be based on unsworn evidence of achild.2.In civil, if state law applies to substantive element of claim/defense, then competency alsodetermined by state law.3.
Rule 610: Religious Beliefs or Opinions
a.Evidence of religious beliefs/opinions of a witness is not admissible for the purposeimpairing or enhancing a witness’s credibility.ii.
Exceptions to Rule 601
1.
Rule 605 – Competency of Judge as Witness
: The judge presiding at the trial may nottestify in that trial as a witness. No objection need be made to preserve the point – mayoffend judge by objecting; also obvious error 2.
Rule 606 – Competency of Juror as Witness
a.At the Trial.
A member of the jury cannot be a witness in the same trial.
If called totestify, opposing side may object out of presence of jury.
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