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.

If so, is the probative value outweighed by the dangers of prejudicing or misleading the jury.

Steps in Evaluating Admissibility - Weighing

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

TThe 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, and2. 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.