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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:


2. the record was made in the regular
course of business, and
3. is the regular course of business to
make the record, and
4. the record was made at or about the
time of the event being recorded.
5. 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
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

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