Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

2015

Principles of Evidence (PPT May 2015)

Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/379/

Principles of Evidence
Qatar International Court
Doha, Qatar

Hon. Gerald Lebovits

Justice, New York State Supreme Court
Adjunct Law Professor, Columbia, Fordham & NYU
May 2015
 Admissibility Issues

● General rule: Evidence is admissible if it is relevant and

competent.
○ Relevant = having any tendency to make a material fact
more or less probable than it would be without the
evidence.
○ Competent = not subject to a specific exclusionary rule
or a judicial balancing exception.
 Relevance

Evidence must relate to the time, person, or event

involved in the litigation.
 Court’s Discretion

● A trial judge has broad discretion whether to admit evidence after

balancing its probative value with pragmatic considerations.
● On appeal, a judgment will be reversed if the trial judge committed
an (1) abuse of discretion in admitting the evidence and (2) if the
error constitutes reversible error, and not merely harmless error.
● Harmless error occurs when the verdict would have been the same
regardless whether the trial judge erred in admitting the evidence.
● Key considerations:
○ Promote accuracy of fact finding
○ Promote efficacy of trial
 Grounds Not to
Admit Evidence

● Unfair prejudice
○ Prejudice must
substantially
outweigh
probative value
● Confusing
● Waste of time
● Unduly cumulative
 Judicial Notice
Judge’s acceptance of a fact as part of the facts in the record.
 Judicial Notice

● This doctrine enables a court to recognize a fact as true

without requiring a party to present evidence of that fact.
● Appropriate facts for judicial notice:
○ Indisputable facts that are either:
■ Common knowledge within the court’s jurisdiction; or
■ Capable of verification by resort to easily accessible
resources of unquestionable accuracy
 Judicial Notice

● Discretionary: A court may take judicial notice whether or

not a party requests it.
● Mandatory: A court shall take judicial notice upon a party’s
request.
● Timing: A court may take judicial notice of a fact at any time
or any stage of the proceeding.
 Stipulation

● A stipulation is an agreement between the parties.

● Parties may enter into a stipulation to admit, exclude, or
withdraw evidence.
● Once a fact is stipulated, it is no longer at issue.
○ Example: Parties agree to allow copies of papers to be
admitted instead of originals.
● Purpose:
○ Stipulations of fact simplify and expedite proof of
uncontested factual issues.
 Admissibility v. Weight

● Admissibility
○ Whether evidence should be included in the record
● Weight
○ How strongly does the evidence tend to prove the issue in
dispute?
● When in doubt, judges admit evidence but do not give it much
weight.
○ Example: A witness might be competent but not credible, or
the testimony might not be sufficiently relevant to affect the
judge’s decision.
 Burden of Proof in Civil and Criminal Cases

Civil Cases: Criminal Cases:

● The burden of proof is a ● The burden of proof is beyond a
preponderance of the credible reasonable doubt.
evidence. ● The pleading party has the burden
● Exception: To prove fraud, the of producing evidence.
burden of proof is clear and
convincing evidence.
● The pleading party (claim, counter-
claim, affirmative defense) has the
burden of producing evidence. The
burden shifts to the other side to
produce evidence that rebuts the
pleading party’s evidence.
 Presumptions

● An “irrebuttable presumption” is a rule that requires that a

particular inference to be drawn from a set of facts.
● Common irrebuttable presumptions:
○ Presumption of innocence
○ Presumption of legitimacy
○ Presumption of sanity
 Presumptions

● Effect:
○ Presumptions shift the burden of production to the party
against which they operate.
● A “rebuttable presumption” operates only until rebutted.
● Once the adversary produces evidence contradicting the
presumed fact, the presumption has no effect.
 Presumptions and Inferences

● A rebuttable presumption (permissible inferences) can be

rebutted.
○ Example: Destroyed evidence was unfavorable to the
spoliator.
● Irrebuttable presumptions (conclusive inferences) cannot be
rebutted.
○ Example: A child under the age of seven cannot commit a
crime.
 Direct v. Circumstantial Evidence

● Direct: if believed, directly proves a fact.

○ Examples: Witness testimony based on
personal knowledge, photographs, video, audio
recordings.
● Circumstantial: allows a fact to be inferred.
○ Examples: Witness saw defendant entering the
house with a knife. Witness heard a scream.
Witness did not see the stabbing. Proof of
crime?
 Real Evidence

● Physical evidence presented directly to the trier of fact.

● Conditions of admissibility:
○ Relevant
■ Balancing test:
● Inconvenience, impropriety, or undue prejudice
○ Authenticated
■ Testimony of a witness that evidence actually is what
proponent claims it is
■ Evidence of substantially unbroken chain of possession
 Documentary Evidence

● Authentication:
○ Proof that the writing is what the proponent claims it is.
● Evidence of Authenticity:
○ Admission by the party against whom it is offered
○ Eyewitness testimony
○ Handwriting verification
■ Non-expert with personal knowledge of writer’s
handwriting
■ Expert who compares handwritings
■ Trier of fact through comparison of handwriting
samples
 How Do You Offer Exhibits Into Evidence?

● First, offer exhibit to the court for identification.

○ Example: “Claimant’s 1” or “Defendant’s A”
● Lay the foundation—the basis for admission.
● Then, the other side may conduct a “voir dire,” asking questions
of the witness to show why the evidence should not be admitted.
● The judge decides whether to admit the evidence.
 Best Evidence Rule

● Better understood as the “original document rule”

● Rule:
○ If a party seeks to prove the contents of a writing, the party
must either:
1. Produce the original of the writing, or
2. Provide an acceptable excuse for its absence.
● If the court finds the excuse acceptable, the party may then
use secondary evidence (a copy or oral testimony) to prove
the contents.
 Best Evidence Rule, Cont.

The rule applies only when the party “seeks to prove the
contents of a writing.”

This issue arises in two principal situations:

1. The writing is a legally operative document (i.e., the
writing itself creates rights and obligations).
2. The witness is testifying to facts learned solely from
reading about them in a writing.
 Best Evidence Rule, Cont.

● What qualifies as the “original writing”?

○ Original or duplicate
● Excuses for non-production of the original:
○ Lost or cannot be found with due diligence
○ Destroyed without bad faith (fire, flood, etc.)
○ Beyond court’s subpoena power
● Work-arounds:
○ Voluminous records; summary or chart
○ Certified copies of public records
○ Collateral documents
 Certified Documents

● Certified document are admitted into evidence directly.

● Who may certify a document?
○ Government, medical, or educational institutions
○ Business entities
● How do you prove that a document is certified?
○ A custodian of records certifies that the document is an
accurate and complete copy of the records.
 Testimonial Evidence—Witnesses
● Who is a competent witness?
○ Witness must have personal knowledge; and
○ Witness must take an oath or affirmation demonstrating
an understanding of the obligation to tell the truth and then
promise to tell the truth.
 Testimonial
Evidence—Lay
Witnesses
Lay opinion testimony is
admissible if it is:

● Rationally based on the

witness’s personal
knowledge or observations
○ What the witness
saw, smelled, heard,
tasted, touched; and
○ Helpful to the court
 Testimonial Evidence—Lay Witnesses, Cont.

● Lay witnesses may not testify about their opinions.

● They may testify only about what they saw, smelled, heard,
tasted, or touched.
● Exceptions:
○ General appearance of a person
■ “He was tall with short black hair.”
○ Weather conditions
■ “It was windy and cold.”
○ Speed
■ “The car was going 50 MPH.”
 Expert Testimony

● An expert witness may testify to an opinion only if:

○ Scientific, technical, or specialized knowledge will help the
court understand the evidence
○ The opinion has a proper basis
○ The witness is qualified by education and/or experience
○ The opinion is reliable
 Expert Testimony

● Proper basis of opinion testimony:

○ Opinion based upon a reasonable degree of probability or
reasonable certainty and
○ The expert’s personal knowledge, or
○ Evidence already in the trial record; or
○ Facts from outside the record, but only if those facts are of
a type that experts in the particular field reasonably rely on.
 Hearsay

● Definition:
○ An out-of-court oral or written statement offered to prove
the truth of the matter asserted.
● Key question:
○ For what purpose is the evidence being offered?
● Statement admissible if:
○ Non-hearsay; or
○ Hearsay exception
 Non-Hearsay

● Prior inconsistent statement made by the declarant under

penalty of perjury
● Prior consistent statement offered to rebut a recent fabrication
● Party admission
● Prior statement of identification
● Statement not offered for its truth
 Hearsay Exceptions

● Present sense impression

● Excited utterance
● Mental, emotional, or physical condition
● Statement made for medical treatment
● Dying declaration
● Statement against interest
● Public records
● Recorded recollection
 Objections to
Evidence

“If you do not raise an objection,

you do not have an objection.

● Timing:
○ Objections are raised
before the evidence is
presented to the trier of
fact.
○ Motions to strike are
made after evidence has
been presented.
 Ruling on Objections

● Objection overruled Evidence

Admissible
● Objection sustained Evidence
Inadmissible
Types of Objection

● Objections to the form of the question

● Substantive objections
 Objections to the Question’s Form

● Leading questions
● Argumentative
● Assumes facts not in evidence
● Ambiguous, misleading question
● Compound questions
● Narrative
● Badgering
● Admitted
 Leading Questions

● Questions that suggest the answer.

● Leading:
○ “Was the victim screaming during the fight?”
● Non-leading:
○ “Was the victim doing anything during the fight?”
 Leading Questions, Cont.

● Not proper on direct examination, except for:

○ Hostile witnesses
○ Child witnesses
○ Matters not in dispute
○ Foundations on exhibits
● Proper on cross-examination
 Leading Questions, Cont.

Objection:
● “My Lord, counsel is leading the witness.”
Response:
● “My Lord, this is just a preliminary question to set a basis of
facts.”
● “The witness is hostile.”
 Argumentative

● An argumentative question makes a statement rather than asks

a question.
● Examiner asks the witness to agree or disagree with a
conclusion drawn by the examiner based on facts of the case.
● Argumentative questions may be proper when directed to an
adverse party or when the witness has already expressed an
opinion.
● Allowance is within the judge’s discretion.
 Argumentative, Cont.

● Objection:
○ “My Lord, counsel is arguing with the witness instead of
asking a question.”
● Response:
○ “My Lord, I am inquiring into the witness’s testimony.”
 Assumes Facts Not in Evidence

● Facts not in evidence may not be the basis of a question.

● A court may allow the question “subject to later connecting
up.”

● Objection:
○ “My Lord, the question assumes as true facts not in
evidence.”
● Response:
○ “My Lord, we will offer those facts in evidence later in the
case.”
 Ambiguous, Confusing, Vague, Etc.

● Pose questions in a clear and precise manner.

● Clarify the information you are seeking.

● Objection:
○ “My Lord, the question is misleading. The witness might
not understand what is being asked.”
● Response:
○ “My Lord, please let me restate the question.”
 Compound Questions

If the witness replies “yes” or “no” in response to a compound

question, there will be confusion about which part of the question
was answered.

● Objection:
○ “My Lord, counsel is asking multiple questions at the same
time. The witness is confused about what to answer.”
● Response:
○ “My Lord, I will ask the questions separately.
 Calls for Narrative

● The question asks the witness to relay a story rather than state
specific facts.
○ “Tell us everything about this case.”

● Objection:
○ “My Lord, the question calls for a long narrative. The
answer may include irrelevant or inadmissible facts.”
● Response:
○ “My Lord, this simply asks for a short description of
preliminary facts. The answer will be helpful for the court.”
 Badgering

● Counsel asks questions

without letting the witness
respond or harasses the
witness.

● Objection:
○ “My Lord, counsel is
antagonizing the
witness to provoke a
response.”
● Response:
○ “My Lord, please let
me rephrase the
question.”
 Admitted

● Basis of objection:
○ Objecting party has already admitted the facts to which the
evidence is relevant.

● Limited scope:
○ Claiming that your client has admitted the evidence is not
enough.
○ Counsel must argue that the testimony sought is cumulative
and thus a waste of time.
 Admitted, Cont.

● Objection:
○ “My Lord, defendant’s admission is part of the record.”
● Response:
○ “We have the right to present relevant evidence even if
undisputed.”
 Best Evidence Rule

When arguing that this rule should not bar evidence, the
proponent must make the original documents available for
examination, if possible.

● Objection:
○ “My Lord, this is not the best evidence. The original
document is the best evidence.”
● Response:
○ “My Lord, this is admissible as a copy or as a summary of
a lengthy document.”
○ “My Lord, the original document was destroyed in a fire.”
 Beyond the Scope

● Generally, cross-examination and redirect examination may

not exceed the scope of the direct examination.
● Scope: The subject matter covered.

● Objection:
○ “My Lord, this question is beyond the scope of the direct
examination.”
● Response:
○ “My Lord, it is within the scope of the direct examination
because….”
 Foundation

“Foundation” means that the examiner asked the witness for

information without establishing:
● Relevance
● Present memory or earlier observation
● Authentication of documents
 Foundation, Cont.

A vague objection about lack of foundation is insufficient.

● Objection:
○ “My Lord, we object to the lack of foundation. The
evidence lacks testimony about its source or authenticity.”
● Response:
○ “My Lord, may counsel be requested to specify what is
necessary to cure the problem?”
 Laying a Foundation

● Photograph

● Ask a “foundation witness”:

○ “Do you recognize the object depicted?”
○ “Would you tell us what it is?”
○ “Is the photograph a fair representation of what it purports
to portray?”
● The witness qualifying a photograph need not be the
photographer or have seen the picture taken.
 Laying a
Foundation, Cont.
● Document / Letter

● Establish that letter is in the

same condition as when it
was received.
● Demonstrate knowledge of
the other party’s
handwriting or signature.
● Show witness the exhibit
and ask:
○ “Do you recognize
this?”
○ “Do you recognize the
signature at the
bottom?”
○ “Have you seen that
signature before?”
 Laying a Foundation, Cont.

● Opinion witness

● Ask the witness:

○ “Do you have personal knowledge of the facts in this
case?”
○ “What is your relationship with the party?”
 Laying a Foundation, Cont.

● Business Records

● Establish that:
○ The witness is familiar with the business and the manner in
which the record was prepared
○ The business requires accurate records
○ The records were made when the event happened or within
a reasonable time following the event
○ The record was kept in the normal course of business
 Hearsay

● An out-of-court oral or written statement offered to prove the

truth of the matter asserted.
● One of the most common objections

● Objection:
○ “My Lord, this calls for hearsay.”
● Response:
○ “My Lord, this is an exception to the hearsay rule” or
○ “My Lord, this is not offered for the truth of the matter
asserted.”
 Improper Impeachment

● Impeachment:
○ Demonstration that a witness is not credible.

● Objection:
○ “My Lord, this in not a proper method of impeachment.”
● Response:
○ “My Lord, I am asking things that touch upon the witness’s
credibility.”
 Improper Impeachment, Cont.

● Authorized methods of impeachment:

○ Point out contradictory evidence
○ Show bias or prejudice
○ Show bad reputation for truthfulness
○ Show sensory deficiencies
○ Prove criminal convictions
○ Prove prior bad acts
 Irrelevant or Immaterial

● Remember: All evidence must be relevant—probative value.

● Objection:
○ “My Lord, what the question asks for is irrelevant to this
dispute.”
● Response:
○ “My Lord, I am trying to make a point that relates to the
issues at trial.”
 Privilege

● Privilege: A right of an individual not to testify, or not to

testify about specified matters.

● Objection:
○ “My Lord, the witness is protected by law from answering
this question. The attorney-client privilege applies.”
● Response:
○ “My Lord, the privilege does not cover the communication
in question.”
 Privilege, Cont.

● Common privileges:
○ Fifth Amendment to the U.S. Constitution
■ Privilege against self-incrimination
○ Attorney-Client
○ Accountant-Client
○ Husband-Wife
○ Physician-Patient
○ Psychotherapist-Patient
○ Priest-Penitent
○ Joint Defense or Common Legal Interest
○ Trade Secret