Steps in Evaluating the

Admissibility of Evidence
Steps in Evaluating Admissibility –
Relevance

Does the evidence have a tendency to

make the existence of a fact more or
less probable.
Steps in Evaluating Admissibility –
Relevance

If so, is that fact material to the case.

Steps in Evaluating
Admissibility - Weighing

If so, is the probative value

outweighed by the dangers of
prejudicing or misleading the jury.
 Steps in Evaluating
Admissibility - Dangers

Does the evidence arouse passion or

prejudice out of proportion to the
probative value of the evidence
Steps in Evaluating
Admissibility – Danger Examples

Does the evidence create an

undue tendency for the jury to
decide on an improper basis,
such as hostility or sympathy.
Steps in Evaluating Admissibility –
Danger Examples

Is the evidence likely to

confuse or mislead the jury.
Steps in Evaluating Admissibility –
Danger Examples

Does the evidence create a

collateral issue which requires a
mini-trial in itself to prove
Steps in Evaluating
Admissibility – Limiting Instruction

If the evidence does arouse passion or

prejudice, can the court give a limiting
instruction to eliminate the problem
created by the evidence
 Courtroom Procedure

Once exhibits are admitted by the court,

they may be reviewed by the jury,
although the court may postpone the
viewing for a more convenient time in
the trial
 Courtroom Procedure

Trial counsel cannot testify as to facts in a

case, or placed his own credibility on the
side of his client.
 Courtroom Procedure – Making
the Record

The court reporter cannot accurately record

overlapped argument, or gestures. Names
must be spelled, and evidence referred to
by exhibit numbers.
Courtroom Procedure – Making the
Record

Off the record, sidebar and chambers

conferences will not be part of the
record, so if a judicial decision is going
to be made, it must be on the record
to be appealable.
Courtroom Procedure – Making the
Record

Stipulations as the evidence should be

put on the record.
 Courtroom Procedure -
Objections

Evidence admitted without objection may

be considered by the jury
 Courtroom Procedure -
Objections

Objections must give the court sufficient

information as to why the evidence is
inadmissible.
Courtroom Procedure -
Objections

Objections to questions calling for

inadmissible information must be raised
before the question is answered.
Courtroom Procedure - Objections

A general objection can be error only

if there is no grounds for the courts
decision.
Courtroom Procedure - Objections

A specific objection on the wrong

ground waives objections on other
grounds
Courtroom Procedure - Objections

If the question was proper, but the

answer provided improper inadmissible
information, a motion to strike and
instruction to disregard must be
requested
 Courtroom Procedure -
Objections

Specific objections to a class of evidence do

not need to be repeated.
Courtroom Procedure - Rulings

Rulings on evidence in a jury case should

be made when raised. Admissibility on
condition that subsequent facts are
established may be made.
Courtroom Procedure - Rulings

If the fact is not later shown, the

objection must be renewed or it is
waived.
Courtroom Procedure - Rulings

An error by the judge is harmless unless

there is a significant probability the jury
would reach a different result had the
error not occurred.
Courtroom Procedure - Rulings

Evidence admitted over objection may

be rebutted.
Courtroom Procedure - Rulings

The court may cure improperly

admitted evidence by admitting other
irrelevant evidence.
Courtroom Procedure - Rulings

Improper evidence elicited by the party

harmed by it is invited error and not
grounds for reversal.
Courtroom Procedure – Offer of
Proof

For a judge's evidentiary ruling to be

appealable, there must be an offer of
proof as to what the evidence would be
and why it would be relevant.
Courtroom Procedure - Offer of
Proof

Unless the court explicitly permits a

summary of a witness’s testimony by the
attorney, the witness should be placed
on the stand to constitute a proper offer
of proof.
Courtroom Procedure - Offer of
Proof

Documentary evidence should be

marked for identification, even if the
judge intends to exclude it.
 Courtroom Procedure – Offer of
Proof

Each ground for admission of the evidence

must be articulated by the proponent.
 Courtroom Procedure – Laying
a Foundation

Laying a foundation means providing the

court with the factual basis to make a ruling
on admissibility.

Leading questions can be used to establish

foundation facts, since they are preliminary in
nature.
 Courtroom Procedure –

If the court foresees excluded or

excludable evidence being heard by the
jury, it may foreclose any testimony
along that line.
 Real Evidence

Real evidence should not be seen by the

jury until it is admitted.
 Real Evidence – Viewing Location
A jury may view a location if it would be
helpful to determine a material factual
issue.

The jury must be supervised by a court person, be

kept together, and no discussion or argumentation
by counsel is permitted at the view.
 Real Evidence – Foundation

If it is identified as being connected with an

issue in the case, the condition must be
substantially unchanged.
 Real Evidence - Foundation

If an object is unique, it can be identified

by a witness familiar with it.
 Real Evidence - Foundation

If an item is not unique, a chain of custody

must be established by having all those who
handled the item identified it and testify it is
unchanged.
 Real Evidence - Foundation

A strict proof of chain of custody is required

only when the article is fungible.

Reasonable limits are placed on the need to

produce each link in a chain of custody of
fungible items.
 Real Evidence - Foundation

Reasonable assurances, based on the

circumstances, that the item's identity and
unchanged condition are established, is
sufficient.
 Tape Recordings - Foundation

A participant testifies that it accurately and

fairly reproduces the conversation.
 Photograph - Foundation

A person familiar with the subject of the

photograph testifies that the photograph is
a fair and accurate depiction of the subject.
 Videotapes, Illustrations -
Foundation

Videotapes, illustrations, and other

depictions are admitted with the same
foundation.
 Scientific Tests - Foundation

The results of scientific tests are admissible

only if the procedure is generally accepted
as reliable in the scientific community.
 Scientific Tests - Foundation

The test is not whether the procedure or

technique is unanimously accepted, but
whether it is generally accepted as reliable.
 Scientific Tests - Foundation

If the test is generally accepted as reliable,

a foundation for the admission of the
particular results of that test must still be
established.
 Documentary Evidence –
Business Records - Foundation
A witness testifies that:
1. the record was made in the regular course
of business, and
2. is the regular course of business to make
the record, and
3. the record was made at or about the time
of the event being recorded.
4. the document offered is the original writing,
or an accurate photocopy of the original.
 Documentary Evidence –
Business Records - Digital

Faxes and computer printouts may be

admissible under the business record rule.
 Documentary Evidence –
Business Records - Unavailable

If a document is unavailable, it's absence

must be explained, and then oral testimony
may establish the contents of the writing,
as long as the witness can recite with
reasonable accuracy the contents of the
document.
 Documentary Evidence –
Business Records – Accident Report

An accident report prepared by an

employee is admissible if:

it is established to be a business record.

There is a split in the Appellate Division's as to

whether self-serving statements in an employee's
accident report are admissible as business
records.
 Documentary Evidence – Motor
Vehicle Accident Report - MV104

must be certified, and

can be admitted only by the opponent,

not by the party who prepared it
 Documentary Evidence – Police
Accident Reports

Admissible as business records to the extent of

the police officers own physical observations,

admissions by any party, or

prior inconsistent statements by a non-party

witness.
 Documentary Evidence – Police
Accident Reports – Statements in
For a statement in the police report to be
admitted:

The source of the information in the report

must be specifically stated, either in the report
or by the police officer on the stand.

Vague identification of the source is not sufficient.

Exculpatory statements by a party are not admissible.
 Documentary Evidence – Police
Accident Reports - Diagrams

Diagrams in a police report are admissible

if:

based on the officer's personal

observations, as long as the observations
were made prior to the movement of
items (vehicles) in the scene.
 Documentary Evidence – Police
Accident Reports – Conclusions/Opinions

Conclusions or opinions of the police

officer are not admissible.

Evaluations of credibility by the police

officer are not admissible.
 Documentary Evidence – Police
Accident Reports – Conclusions/Opinions

Opinions as to how an accident occurred

are not admissible, and

opinions as to contributing factors

causing an accident are not admissible,

unless based on the police officers

personal observations.
 Documentary Evidence – Police
Accident Reports – Opinion

Opinions of the officer may be admissible

if based on expert analysis of observable

physical evidence.
 Documentary Evidence –
Hospital records

A hospital record is admissible if:

It is subpoenaed

The original, or a certified copy is sent to

the medical records clerk of the court in
a sealed envelope.
 Documentary Evidence –
Hospital Records – Statements in

Statements in the record as to the cause

of an injury are not admissible unless

needed by the medical provider to

diagnosis or treat the patient.
 Documentary Evidence –
Hospital Records – Statements in

A statement in the hospital record must

be

specifically attributed to a party,

either in the record or

by a witness to the statement.

 Documentary Evidence –
Hospital Bill

A hospital bill is admissible and prima

facie evidence of the facts contained if:

it is certified by the hospital's billing

department as correct, and

it states that each of the items was

necessarily supplied, and the amount
charged is reasonable.
 Documentary Evidence –
Doctor’s Office Records

A doctor's office records are admissible

if:

It is established they are business

records.
 Documentary Evidence –
Doctor’s Office Records

Medical opinions and conclusions in the

office records are admissible

if germane to diagnosis and treatment of

the patient.
 Documentary Evidence –
Doctor’s Office Records

Illegible or cryptic notations are not

admissible, absent explanation by the
creator or his staff.

For an admission in such medical

records to be admissible, the source
must be clearly attributable to a party.