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.