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New York Yankees fans will recall that awful second game of the 1998 American League championship series, when Chuck Knoblauch decided to engage the umpire in argument over a perceived bad call in the 12th inning. While he did, the Indians scored the go-ahead runs, costing the Yanks the game. Knoblauch later apologized to the fans and to the team. He had ignored or was unable to muster the import of Rule 5.02 of the Official Rules of Major League Baseball, which provides that the ball is “alive and remains in play” under such circumstances. Court proceedings are likewise governed by rules, including rules of evidence, and there are plentiful episodes where lawyers and, at times, even the judge will drop the ball. The spontaneity of every trial creates situations where unanticipated attempts to introduce evidence or objections thereto arise at a moment’s notice. This is where the lawyer’s knowledge and conversancy with the rules of evidence count for a lot. A trial lawyer should obviously strive for complete and total familiarity with all the rules, but the reality is that a select handful of them come up more often than others. A working knowledge of these oft-arising rules will help level the playing field for the somewhat-occasional trial attorney. Experience suggests that 15 of the 87 New Jersey Rules of Evidence will arise in virtually every case, making an absolute grasp of them critical: (1) N.J.R.E. 101 This basic rule is a good starting point, as one should know at the outset to what extent the rules of evidence are even applicable to a particular proceeding. While the N.J.R.E. govern all civil or criminal proceedings conducted by or under the supervision of a court, they do not necessarily apply to proceedings before administrative agencies except as to privilege issues. SSI Medical Services v. State Department of Union Services, 146 N.J. 614 (1996). In five other types of proceedings, the rules, though applicable, may be relaxed subject to the admission of “relevant and trustworthy evidence in the interest of justice”: (1) small claims cases; (2) where permitted pursuant to a specific statute; (3) criminal or juvenile delinquency sentencing, bail, pretrial intervention or other diversionary proceedings; (4) probable cause and grand jury proceedings; (5) proceedings to determine the admissibility of evidence under the N.J.R.E. or other law. The next time you are representing your client at sentencing, an objection to a victim’s letter on hearsay grounds would probably not be very well received. Williams v. New York, 337 U.S. 241 (1949); State v. Roth, 95 N.J. 334 (1984). (2) N.J.R.E. 104 This rule provides that preliminary questions or issues involving admissibility of evidence, qualification to be a witness, or the existence of privilege be determined by the court outside of the presence of the jury, hence, the request “for a rule 104 hearing” Consistent with N.J.R.E. 101, supra., the rules of evidence are not applicable to such proceedings except as to privilege or where the probative value of the evidence is substantially outweighed by risk of prejudice, confusion, or the other downsides contained in N.J.R.E. 403. While this rule seems quite basic, it has somewhat latent repercussions. For example, a common practice in municipal courts is to stipulate that the testimony at the N.J.R.E. 104 evidentiary hearing would be essentially the same testimony at trial. However, hearsay is clearly not excludable at the 104 hearing, but would, of course, be at trial. Therefore, any such stipulation could conceivably result in the court considering damaging hearsay testimony that would otherwise not have come in. These issues require some thought, since the findings of the trial court in an admissibility hearing under N.J.R.E. 104 will not be disturbed on appeal if they could reasonably have been reached based upon the credible evidence in the record. State v. Cusmano, 274 N.J. Super 496 (App. Div. 1994). (3) N.J.R.E. 106 This rule provides that when a written or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part of the statement or recording which in fairness ought to be considered contemporaneously. This is sometimes referred to as the “doctrine of completeness.” See U.S. v. Soures, 736 F. 2d. 87 (3d Cir. 1984); State v. Lozada, 257 N.J. Super 260 (App. Div.), certif. den. 130 N.J. 595 (1992). It guards against a particular statement being portrayed out of context, and allows the adversary immediate relief as opposed to having to wait until a later time to get the remaining portion heard by the trier of fact, whose attention span may by then have been substantially reduced. (4) N.J.R.E. 201 This rule governs judicial notice of law and adjudicative facts. If a party intends to seek such a ruling at trial, research based upon the specifics involved and, perhaps, an appropriate motion should be readied in advance. The court may judicially notice decisional, constitutional and statutory law, including rules of court and a number of other enactments. The court’s judicial notice of facts must fall within the parameters of N.J.R.E. 201(b). Knowledge of when the court may or may not properly invoke this rule is critical to a successful motion or objection. (5) N.J.R.E. 403 This often-utilized rule serves as the basis for many objections. N.J.R.E. 403 provides that except as otherwise provided by the N.J.R.E. or other law, even relevant evidence may be excluded if its probative value is substantially outweighed by other negative factors, generally prejudice or confusion. It also precludes the introduction of evidence that is needlessly cumulative and will result in delay or waste of time. A classic example would be grossly graphic photographs. See Burd v. Vercruyssen, 142 N.J. Super 344 (App. Div.), certif. den. 72 N.J. 459 (1976). State v. Lockett, 249 N.J. Super 428 (App. Div. 1991). Of course, since all evidence is to some degree prejudicial to the other party (or else it wouldn’t be offered in the first instance), only “unduly” prejudicial evidence may be excluded under this rule. State v. Frost, 242 N.J. Super 601 (App. Div. 1990), certif. den. 127 N.J. 321 (1992). (6) N.J.R.E. 404 This most important and often misunderstood rule provides that evidence of a person’s character or trait or lack thereof is not admissible for the purpose of proving that they acted in conformity therewith on a particular occasion, and is sometimes referred to as the “propensity rule.” (Note, however, that N.J.R.E. 404(a) 1 and 2 provide certain exceptions as to a victim or accused in a criminal proceeding.) Additionally, evidence of the character of a witness as provided in N.J.R.E. 608 is generally admissible. Perhaps the most frequently utilized mechanism to seek admission of this type of evidence is found at N.J.R.E. 404(b), which provides that evidence of other crimes, wrongs, or acts, while inadmissible to prove the propensities of the individual, may be admitted for other purposes, such as motive, opportunity, intent, preparation, plan, knowledge, identity or absence of mistake. In criminal cases, this section is often relied upon where there has been prior evidence of another crime committed by the defendant based upon the similarity of the modus operandi, such as the utilization of similar disguises. State v. Porambo, 226 N.J. Super 416 (App. Div. 1988). In a civil context, evidence of other acts of discrimination may be relevant to prove motive or intent to discriminate. Redine v. Pantzer, 276 N.J. Super 398 (App. Div. 1994). A final permissible exception is where evidence of a person’s character or trait is an element of a claim for defense, such as a defamation case. Ward v. Zelikovsky, 136 N.J. 516 (1984). Of course, this rule goes hand in hand with N.J.R.E. 405, which states that in those cases where character is in fact admissible, it may not generally be proven by specific instances of conduct not the subject of a criminal conviction but rather must be demonstrated by evidence of reputation in the form of opinion. In dealing with this rule, both the bench and the bar must be vigilant to insure that the exception truly applies and is not a thinly veiled attempt to “backdoor” in inadmissible and highly prejudicial evidence. (7) N.J.R.E. 602 As to nonexpert testimony, a witness may only testify if he or she has personal knowledge of the matter. This seemingly elemental rule may subject a witness to examination at a N.J.R.E. 104 hearing to determine whether he or she in fact possesses such knowledge, an often overlooked and potentially viable option when seeking to exclude such testimony. See Nero v. Clinton, 167 N.J. 573 (2001); State v. Vasky, 218 N.J. Super 487 (App. Div. 1987). (8) N.J.R.E. 608 This rule provides that the credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation that is limited to the witness’ character for truthfulness or untruthfulness, and may only be utilized to prove truthful character after character of the witness for truthfulness has been attacked by opinion or reputation evidence. Again, a trait of character cannot be proven by specific instances of conduct except for specific evidence of a conviction of a crime under N.J.R.E. 609. See State v. Hutchins, 241 N.J. Super 353 (App. Div. 1990). (9) N.J.R.E. 611 This rule establishes generally the Court’s authority to control trial proceedings, including the interrogation of witnesses and presentation of evidence. See Horn v. Village Supermarkets, Inc., 260 N.J. Super 165 (App. Div. 1992). N.J.R.E. 611(b) provides that “cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness.” A court may in its discretion permit inquiry into additional matters as if on direct examination. A “beyond the scope” objection as to cross-examination will likely be met with the response that “it goes to credibility,” but then again there is little which occurs during cross that does not in some way relate to the issue of the witnesses credibility. (10) N.J.R.E. 613 This is a significant rule governing the examination of witnesses concerning prior statements. Subsection (a) provides that in examining a witness concerning a prior statement made by that witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time. However, upon request, the statement shall be shown or disclosed to opposing counsel. Subsection (b) provides that extrinsic evidence of a prior inconsistent statement made by a witness may in the judge’s discretion be excluded unless the witness is afforded an opportunity to explain or deny this statement and the opposing party is afforded an opportunity to interrogate relative to the statement. This rule is specifically inapplicable to admissions of a party opponent under N.J.R.E. 803(b). (11) N.J.R.E. 801 Without a doubt, Article 8 of the N.J.R.E. governing hearsay and its exceptions is probably the most significant and least understood body of evidence law. The law school definition in N.J.R.E. 801 defines hearsay as an oral or written statement (or nonverbal assertive conduct), other than one made by the declarant while testifying at the trial or hearing, offered to prove the truth of the matter asserted. Hearsay is inadmissible under N.J.R.E. 802 except as provided by the following provisions of the Article. The classic response to a hearsay objection is that the statement is not being offered for its truth (which often really means that it is in fact being offered for its truth), or that it fits into one of the numerous exceptions or exclusions, infra. (12) N.J.R.E. 803 A trial attorney cannot survive without an absolute command of N.J.R.E. 803 and 804. The statements referred to in N.J.R.E. 803 are not excluded by the hearsay rule and are not dependent upon the declarant’s unavailability: prior statements of witnesses (subject to the provisions of 803(a)); statements by a party opponent (including adoptive admissions); present sense impressions; excited utterances; then existing emotional and physical conditions; statements for the purposes of medical diagnosis or treatment; recorded recollections; records of regularly conducted activity; absence of an entry in records of regularly conducted activity; public records; records of vital statistics; absence of public records or entries; records of religious organizations; marriage, baptismal and similar certificates; family records; records of documents affecting an interest in property; statements in ancient documents; market reports and commercial publication; learned treatises; reputation concerning personal or family history; reputation concerning boundaries or general history; reputation as to character; judgments of previous conviction of a crime; judgment as to personal family or general history or boundaries; declarations against interest; judgments against persons entitled to indemnity; and statements made by a child relating to a sexual offense. These exceptions each contain nuances that must be thoroughly absorbed and understood in order to effectively make or oppose a hearsay objection. (13) N.J.R.E. 804 This is another must-know rule. It governs hearsay exceptions predicated upon the declarant’s unavailability. It defines “unavailable” as (1) exempt from testifying due to privilege; (2) refusing to testify despite a court order; (3) a declarant’s lack of memory; or (4) absence due to physical or mental illness and an inability of the proponent of the statement by process or other reasonable means to secure the declarant’s attendance at trial. The exceptions are: testimony in prior proceedings; pursuant to N.J.R.E. 804(b)(1); statements under belief of impending death in a criminal proceeding; statements of personal or family history on certain issues; trustworthy statements by deceased declarants; and statements concerning voting qualifications or the content of a vote. Simply stated, the significance of N.J.R.E. 803 and 804 cannot be sufficiently underscored, and every trial attorney should spend sufficient time to virtually commit their provisions to memory. (14) N.J.R.E. 901 This rule requires authentication or identification as a condition precedent to admissibility. This is generally established by stipulation (see State v. Thomas, 132 N.J. 377 (1993); although in cases where the attorneys may not have great affection for each other, it may require production of the custodian or similar witness to testify as to what a particular item or document actually is. The real import of this article is found at R. 902, infra, governing self-authentication, and it is generally a somewhat weak argument when used as an objection. See In re: Blau’s Estate, 4 N.J. Super 343 (App. Div. 1949); State v. Mays, 321 N.J. Super 619 (App. Div.), certif. den. 162 N.J. 132 (1999). (15) N.J.R.E. 902 This rule provides that the following are “self authenticating” and do not require extrinsic evidence of authenticity as a condition precedent to admissibility: New Jersey public documents; other domestic public documents; foreign public documents; certified copies of public records; official publications; newspapers and periodicals; trade inscriptions and the like; acknowledged documents; and commercial paper and related documents. The provisions governing public documents have various sub-sections requiring seals or certifications and should obviously be referred to in advance of trial depending upon the nature of the particular document at issue, if a stipulation as to authentication cannot be worked out. PREPARATION AND ANTICIPATION If knowledge is power, your power as a trial advocate can only be enhanced by the immediate inclusion of at least these 15 rules into your repertoire, and eventually, the other 72. Nevertheless, it should be emphasized that anticipation and preparation still go a long way. Both state and federal pretrial procedures generally require articulation of potential evidence issues and problems. If pretrial discovery reveals that your adversary appears to be relying heavily upon the damaging statement of a third party contained in a document, one would be well served by the research and briefing of an appropriate motion in limine to attempt to preclude introduction of such evidence at trial. If you perceive a possible problem regarding the admissibility or limitation of an expert’s opinion, a comprehensive advance study of N.J.R.E. 702 through 705 is mandatory. This preliminary effort affords both sides as well as the court a sufficient opportunity to become familiar with the applicable law and facilitates consideration of well-prepared and cogent arguments as to admissibility. In contrast, a hastily made oral trial motion or objection, if unanticipated, may cause the adversary to make a correspondingly hasty response and the court to make a ruling that may not be grounded in controlling case law. Matters which may not properly be the subject of in limine motions but are obviously foreseeable mine fields should be also thoroughly researched and prepared prior to trial. Even an oral motion, if supported by controlling case citations, has tremendous potential to compel the correct ruling, not to mention the appreciation of the court. Edward J. Kologi, a solo practitioner in Linden, N.J., is a certified civil trial attorney.

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