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Evidence Outline

Evidence Outline

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Published by: Josh Portman on Jul 24, 2012
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The General Requirement of Relevance
Rule 401: Relevant Evidence: evidence having tendency to make the existence of any fact of consequence to the determination of the action more probable or less probable than it would be without the evidence  Evidence must be material and involve a legal issue in the case  Relevancy has a very low threshold: just must believe that a rational fact finder could be influenced by the material in deciding the existence of a fact  strong influence not required; evidence only has to be capable of making determination of the fact more or less probable than it would be without the evidence Rule 403: Unfair Prejudice: evidence can be excluded, even if relevant, if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence  Unfair prejudice  when a factfinder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process that the reaction is considered unfair prejudice  Example: “I’m going to break your arm because I’m in a cult that worships violence!”  unfair prejudice o Juror may believe D adheres to a weird cult; juror develops disgust for D for belonging to cult; juror interest in punishing D for cult status, regardless of juror beliefs about the assault o JUDGE MUST perform a balancing act and see if the prosecution had other evidence that did not entail a reference to violence worship, IF OTHER GOOD EVIDENCE EXISTED then the probative value of the violence reference would be slight  Old Chief: Rule 104(b): Conditional Relevance: when the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition  Judges are supposed to admit evidence of this kind if its proponent has already produced the other material that shows its relevance to the trial OR if the proponent promises to produce that contextual information later o IF not produced later by proponent, judge gives special instruction to jury to ignore it (which they would do anyway – likely) Flight/Destruction of Evidence/Obtaining Perjured Testimony: courts usually reason that fleeing the jur supports an inference the D believed he or she was guilty  Flight usually admitted as relevant to guilt  Destruction of evidence OR obtaining perjured testimony usually admitted as relevant to guilt

II. Specific Exclusions of Relevant Material

or amount of a claim that was disputed as to validity or amount.: if defense witness works for D’s insurance company. this doesn’t require the exclusion of evidence of insurance against liability when offered for another purpose – such as proof of agency. investigative. such as proving ownership. or need for a warning or instruction  HOWEVER. after injury or harm allegedly caused by an event. or impeachment  not applied if evidence of subsequent remedial measures is offered to show something other than the types of finding listed in the Rule o OK TO SHOW that the D owned or controlled the thing or the place that was involved in the accident Rule 408: Compromises and Offers to Compromise: a) Prohibited Uses: Evidence of the following is not admissible on behalf of any party. or control. would have made the injury or harm less likely to occur. or enforcement authority b) Permitted Uses: This rule DOES NOT require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of .e.  DOES NOT prohibit all possible uses of evidence about a party’s insurance coverage o I. information about the witness’s possible financial bias would be permitted to be introduced. evidence of the subsequent measures is NOT admissible to prove negligence. measures are taken that. invalidity of. AND 2) Conduct or statements made in compromise negotiations regarding the claim. when offered to prove liability or. culpable conduct. except when offered in a criminal case and the negotiations are related to a claim offered by a public office or agency in the exercise or regulatory. control. ownership. despite the fact it would inform the jury about the D’s insurance coverage Rule 407: Subsequent Remedial Measures: when. if controverted. however.Generally: certain circumstances REQUIRE judges to keep evidence out despite its logical relevance  these are situations where the likelihood of unfair prejudice from particular evidence is considered so extreme it cannot be risked OR where social goals unrelated to the truth-finding process are more important than the contribution that particular types of evidence could make to the process Rule 411: Insurance: Evidence that person was or was not insured against liability is NOT admissible upon issue of whether person acted negligently or otherwise wrongfully. a defect in product. if previously taken. or to impeach through a prior inconsistent statement or contradiction: 1) Furnishing or offering or promising to furnish – or accepting or offering or promising to accept – a valuable consideration in compromising or attempting to compromise the claim. defect in product’s design. this rule DOES NOT require exclusion of evidence of subsequent measures when offered for another purpose. or bias or prejudice of a witness  Based on fear that jurors who known party has insurance may find that party liable only because they believe liability will be cost-free. etc. etc. or feasibility of precautionary measures.

must have been made to a prosecutor o I. EVEN IF it was opponents disclosures during settlement talks that gave party the idea of obtaining such evidence Rule 409: Payments of Medical Expenses: Evidence of furnishing or offering or promising to pay medical. for pleas of nolo contendere.”  THIS STATEMENT is admissible and can be used to show evidence of responsibility and also evidence of conceding to amount of harm caused  Rule 408’s shield applies only if the conduct or statements occurred during actual compromise negotiations  Purpose for which party seeking to introduce evidence of testimony can become CRUCIAL  if admitted to show that benefits of a previous settlement might have made a person (a WITNESS) biased in favor of party who agreed to settlement. 27  FRE seek to facilitate plea bargaining by providing confidentiality for statements made in plea bargaining.e. and for guilty pleas that are later withdrawn  NOTE: may law enforcement officials avoid rules effects by refusing to negotiate unless individual waives his or her rights under this rule  Details of Rule 410  Guilty Plea that becomes basis for conviction is not protected from other uses  For a statement to be covered.e.: a D who makes statements to detectives or other investigators cannot later characterize them as part of plea bargaining and try to have them excluded from admission  IF plea bargaining leads to nolo contendere plea or a plea of guilty later withdrawn. settlement would be treated as relevant and not be excluded as it is relevant to the truthfulness of the witness BUT NOT as relevant to the merits of the case!!!!!!!  Another Limitation: a party is entitled to bring substance of info during settlement talks if it’s relevant and was obtainable other than in such talks o I. negating a contention of undue delay. or similar expenses occasioned by an injury is not admissible to prove liability for that injury  HOWEVER. and proving an effort to obstruct a criminal investigation or prosecution Rule 408’s Purpose: encourage settlements!  In able to INVOKE RULE 408. hospital.: Rule 408 does not prevent the admission of an offer of payment like. “I know I made a mistake and there’s about $500 worth of damage to your car. but I’ll only pay $200. evidence of those pleas is inadmissible to show criminal liability . unlike 408: Rule 409 offers no protection for statements made in connection with the payments! Rule 410: Nolo Contendere and Withdrawn Guilty Pleas: CHART on P.permissible purposes include proving a witness’s bias or prejudice. one must show that there was a DISPUTED CLAIM o I.e.: can bring info of break failures as long as party doesn’t refer to settlement talks.

However: once done.: defamation case. I. when an issue at trial is a Witness’s truthfulness when testifying. Character evidence to prove a person’s character is allowed: an element of a claim or defense can explicitly involve someone’s character. Evidence of the pleas may not even be admitted to show bias or for any other purpose different from showing crim liability for the charged offenses Plea Bargaining statements ONLY ADMISSIBLE TO (1) complete partial disclosures the D may make and (2) in certain perjury prosecutions o Character Evidence (studied more fully in “Examination of Impeachment”)  Basic Rule: evidence of person’s character may not be introduced to support inference that person acted on a specific occasion in conformity with that character 1. Character evidence to prove a persons’ action in conformity with that character is often allowed: in some situations. First: criminal defendant is allowed to introduce evidence about his or her own good character to support an inference that he or she did not commit a charged crime i. Third: specific provisions of FRE allow proof of D’s sexual propensities in sex offense trials d. Evidence that seems like character evidence allowed IF its relevance does not depend on an inference involving a conclusion about a person’s character: Sometimes evidence that could support conclusion about person’s character may have relevance independent of that type of conclusion  Prosecution could submit evidence of past crimes to show that participation in such crimes gave the D skills that were specially needed in the offense for which the D is charged in the current trial – admissibility here would be possible . Second: criminal defendant may show that victim was aggressor by introducing evidence of victim’s character for violence i. the propensity inference is explicitly allowed a. Character evidence to prove a person’s action in conformity with that character is often prohibited: basic rule is that info about person’s character may not be introduced to suggest the person did something because of a propensity to do such things 2. Fourth: process of impeachment is another circumstance in which the propensity inference is permitted. in such a case evidence intended to show the nature of such person’s character is allowed a. accused of falsely describing plaintiff as evil – D can show that plaintiff is in fact evil 4. evidence about W’s character for truthtelling is permitted to support inference that W acted at trial in conformity with W’s usual respect for truth 3.e. prosecution can introduce rebuttal evidence b. However: prosecution may rebut this with character evidence about the victim or about the defendant’s aggressive nature AND prosecution may show that murder victim had peaceful character to rebut claim made in any way that victim was aggressor c.

provided that upon request by accused. preparation. D claims innocent and conducting science experiments that he didn’t know made drugs o Evidence that he had made drugs on other occasions WOULD BE ADMITTED. prosecution in criminal cases provides reasonable notice in advance of trial. not to show that he likes drugs or has the character trait of disobedience to law. opportunity. Methods allowed for proof of character: The Propensity Inference (Chart on Page 35) Rule 404(a): Evidence of person’s character or a character trait is NOT admissible for purpose of proving action in conformity therewith on a particular occasion  Propensity Rule prohibits introduction of info about D’s reputation or past “robberies” to support inference that D is a thief and therefore robbed liquor store  Applies to CIVIL case with no exceptions and to CRIMINAL cases with a small number of exceptions  Character evidence has weak probative value and there is large risk that jurors will be led to improperly prejudice the D – since it is often evidence of bad character that is introduced  THREE EXCEPTIONS for SEXUAL OFFENSE cases – RULE 413. or absence of mistake or accident. 415 Rule 404(b): Non-Propensity Uses of Character Evidence: proof of character cannot be offered to show action in conformity with character on a specific occasion. or during trial if court excuses pretrial notice  Example: D charged with manufacturing illegal drug. 414. intent. plan. plan  courts generally will require) Character In Issue: Second use of person’s character that avoids the propensity bar . such as proof of motive. identity. intent. however.a. Prosecution would have to argue that they were submitting the information about past conduct to allow the jury to determine that the D possessed a specific skill that made it more likely that he was perpetrator of charged offense 5. it can be admitted if introduced for other purposes (Chart on 37)  MAY BE ADMISSIBLE for other purposes. knowledge. but to show that he knew what he was doing o D’s PAST BAD ACTS could show knowledge. motive. or absence of mistake or accident and wouldn’t be prohibited by Rule 404(a) propensity rule  Rule 404(b)’s list of non-propensity uses of past acts is NOT exclusive  When introducing character evidence for non-propensity use: Judge must determine (1) Whether a belief that the D committed past crimes would or could reasonably support an IDENITY INFERENCE that D is person who committed underlying offense and (2) whether adequate evidence exists that D did really commit past act  AGAIN: court strongly influenced by proponents NEED for past bad acts evidence (if another way to show D had special skills.

AND PRO-PROPENSITY EVIDENCE RULES  Page 57 and 58 – CHART AS WELL!!! III. if one alleged P was thief. or defense. and P sues. past character evidence can be shown Rule 406: Habit: evidence of the habit of a person or routine practice of an organization is relevant to prove that the conduct of the person or org on a particular occasion was in conformity with the habit or routine practice  To be treated as HABIT EVIDENCE: judge be persuaded that conduct in question is automatic – repeated many times in past Form of Proof Related to Character: RULE 404: How character can be proved in a situation where Rule 404 allows any attention at all to topic of person’s character a) Reputation or Opinion: in all cases where evidence of character or a trait of character of a person is admissible.: defamation suit about whether description of P was true. proof may also be made of specific instances of that person’s conduct SUMMARY OF ANTI. HEARSAY Rule 801: Hearsay Terminology a) Statement: a statement is (1) an oral or written assertion or (2) nonverbal conduct of a person. proof may be made by testimony as to reputation or testimony in the form of an opinion.e. I. if intended by the person to be an assertion b) Declarant: a person who makes a statement . claim. inquiry is allowable into relevant specific instances of conduct b) Specific instance of conduct: in cases in which character or a trait of character of a person is an essential element of a charge. ON CROSS.

: Party wants to prove security guards were patrolling at building on certain night. Exceptions to the Hearsay Exclusionary Rule (Analyze by Chart 14 on p. no matter whether what they said was true or false. P not seeking to have jury believe the statements words were accurate – P just needs jury to believe the defamatory words were uttered.: Defamation suit where P must prove D said some defamatory. offered in evidence to prove the truth of the matter asserted General Rule: out-of-court statements are defined as hearsay and are inadmissible if a party seeks to have them admitted to establish that their content is true  Unless Exception Exists: a party can’t have a witness quote what anyone ever said outside of court. not that the words were true!!!  Out of court statement: to show that words were said/don’t care whether trier of fact treats words as true/accurate (not hearsay)  Out of court statement: to show that words were true/asking trier of fact to treat them as “true words” (hearsay)  Effect on hearer exception: where proof that words were said is relevant.e. Is the evidence in an out-of-court statement? 2. without regards to whether the content of the words provides a true account of some past reality. then the hearsay prohibition does not operate and testimony about the statement is allowed  I. janitor could testify that he heard security guards talking and quote their words because o “No matter what guards said. other than one made by a declarant while testifying at the trial or hearing.e. when P has someone testify about D’s out of court statements.c) Hearsay: a statement. and party cannot introduce docs containing words written out of court  Testimony that quotes an out-of-court statements is hearsay only if the “out-of-court words are introduced to prove the truth of what they assert”  Bringing a witness’s knowledge into a trial by having another person quote some of the witness’s words violates rule against hearsay Truth of the Matter Stated: when an out-of-court statement is relevant without regard to whether it conveys accurate information. the fact that they were speaking supports the proposition for which the janitor’s testimony is introduced: That the guards were present in the warehouse”  I. Does the statement need to be true in order for it to be relevant? . a W may quote those words!! o Hearsay rule’s preference for having the actual speaker of words present in court to answer clarifying questions has no application where proponent’s effort is to prove words were said rather than that words were true What constitutes a Statement?  Page 74 IV. 95) Analyzing for admissibility: 1.

Is the statement within the definitions of any of the hearsay exclusions or exceptions? 3 Categories of Exceptions to the Hearsay Exclusion 1. (ii) prior consistent statements. A party’s own past words.100) 1. Coconspirators: statements by coconspirators considered admissions when offered against another coconspirator so long as statement made during and in furtherance of their conspiracy (2) Prior Statements by Witness Rule 801(d)(1): three types of out-of-court statements by witnesses: (i) prior inconsistent statements. Hearsay exceptions that apply without regard to whether the declarant is available as a witness 2. Exemptions from the definition of hearsay for certain out of court statements offered for the truth of what they assert Statements Exempted from FRE Definition of Hearsay (1) Admissions Rule 801(d)(2): anything a party has ever communicated (in speech. relevant at the time of trial to an issue in the trial 2. Hearsay exceptions that apply only if declarant is unavailable as a witness 3.3. must show that declarant is available for cross-examination concerning the out-of-court statement 3 Types of Out-of-Court Statements by a Witness (CHART 15 Pg. Adoptive Admissions: a party’s reaction to a statement or action by another person when its is reasonable to treat party’s reaction as an admission of something stated or implied by the other person a. Requirement: must be made by party’s agent or EE concerning something within the scope of agency or employment during the time of the agency or employment b. writing. or in any other way) introduced against the party at trial  Required to show: (i) the out-of-court statement once made by the opposing party and (ii) it is relevant in the current trial  5 Types of Statements are Admissions 1. Prior Inconsistent Statement: a statement by a witness (1) made out of court (2) before the witness testifies that (3) conflicts with something W says in testimony a. Silence: will sometimes be treated as admission if most people would’ve spoken to contradict something like a statement just made to the party 3. can use as proof of what it asserts if prior statement was made under oath at a proceeding . and (iii) statements identifying a person  for any to qualify for exclusion from hearsay. Statements of a person authorized to speak on behalf of someone who becomes a party to a lawsuit are admissible as admissions when offered against the party a. Can use to impeach.

Does not have to be made under oath in a proceeding to be used as proof of what it asserts (as prior inconsistent stmts require) b. REQUIREMENTS: evidence that prior consistent statement was made. motive. Emotional. Statements of Current Mental. speaker generally will be describing event to someone else (the witness at trial). Statement of a person’s plan or intention = expression of thenexisting mental state iv. Stmt must be made during or immediately after event or condition it describes. but prohibits use of person’s statements of feeling to prove that a remembered fact is true i. This exception covers statements about what a person is feeling at the time he speaks – including both physical and emotional feelings b. sensation. or Physical Condition 803(3): statement of declarant’s then existing state of mind. or the inception or general . usually begin with “Oh my god” or “Oh no” and end with exclamation point. or physical condition (such as intent. Prior Consistent Statement: made out of court before the witness’s testimony that reinforces or supports the testimony a. mental feeling. revocation. or immediately thereafter a. but not including statement of memory or belief to prove the fact remembered or believed unless it relates to execution. Statements are particularly strong/useful in court if out-of-court consistent stmt made before motive to lie arose 3. or shock. or past or present symptoms. identification. and bodily health). or reaction to having been startled. declarant narrating description of event he sees ii. plan. Stmt made out of excitement. Mental state exception allows proof of a person’s statement of fact to show that the person believed the fact to be true. or sensations. or terms of declarant’s will are admissible a.2. Excited Utterances 803(2): a statement relating to a startling event or condition made while declarant was under the stress of excitement caused by event or condition a. Statements for Medical Diagnosis or Treatment 803(4): Statements made for purposes of medical diagnosis or treatment and describing medical history. must be made close in time to event while declarant is under stress or excitement iii. Statements Defined as Hearsay but Admissible Without Regard to the Declarant’s Availability (availability of declarant does not matter) (R. emotion. Present Sense Impressions 803(1): a statement describing or explaining an event or condition made while declarant was perceiving event or condition. pain. pain. proponent must show (1) that witness’s testimony has been attacked as recently fabricated or influenced by a motive to lie and (2) witness made prior stmt before the time of the alleged fabrication or before the time he or she was subject to alleged motive to lie c. 803) i. design. Prior Identification Statements: out-of-court stmts identifying a person is admissible as substantive evidence of the identification EXCEPTIONS TO HEARSAY (28 Exceptions Organized by Two Groups) I.

I.v.e. vi. (ii) W does not have adequate recollection of subject to testify fully and accurately. is not hearsay Miscellaneous Exceptions II. must be shown to have been made or adopted by W when matter fresh in W’s memory. Exception extends to descriptions of what caused patient’s problem as long as descriptions reasonably pertinent to diagnosis or treatment c. (iii) record was made near the time of the occurrence of what it describes b. Statements do NOT need to be made to a doctor – just made for purpose of medical diagnosis or treatment b. second part not coming in Past Recollection Recorded 803(5): a memo or record about a matter a W once had knowledge about but not can’t recall and is unable to testify fully and accurately. can be made on behalf of a sick or injured person d. the authenticity of which is established. vii. (ii) a person with knowledge of what the record says made the record or reported the info to someone who made it. Requirements: (i) W once had knowledge about the subject. Statements Defined as Hearsay but Admissible if the Declarant is Unavailable (availability of declarant matters!) (R. or cannot remember the subject matter. of something’s nonoccurrence or nonexistence if its occurrence or existence would normally have been recorded c. if relevant. refuses to testify about the subject matter of the stmt. viii. Statement do not need to be made by person who needs the medical help. Requirements: (i) made as part of the usual activities of the organization.: “He hit his head diving into pool with no warning signs about shallow end”  first part coming in. character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment are admissible a. Completely different than “Present Recollection Refreshed” (113 +) Business and Public Agency Records 803(6): records of regularly conducted activity a. (iii) W made the record (or adopted record made by someone else) when W had a fresh memory of the information b. 804)  Rule 804 establishes meaning of UNAVAILABILITY: a declarant of out-of-court stmt is unavailable if declarant has privilege that permits declarant to refuse to reveal a communication. Declarant also unavailable if his presence is prevented by death or illness or a showing is made that declarant is absent from . PUBLIC RECORDS: 803(8): PAGE 118 CHART Ancient Documents 803(16): Statements in a doc in existence twenty years or more. Rule 803(7): Lack of entry in a business record is admissible evidence. may be read into evidence but not itself received as exhibit unless offered by adverse party a.

testimony at earlier proceeding or deposition is admissible to prove truth of what stmt asserts if party against whom testimony is offered had opportunity to cross the declarant. Less requirement for civil – don’t need opportunity and motive to cross at earlier proceeding Dying Declarations 804(b)(2): dying declarations protected from hearsay exclusion if about declarant’s belief about cause of what declarant believed to be his impending death – applies in all civil cases and in homicide prosecutions a. had questionable perception or memory of the subject of the testimony. or made factually incorrect statements 1. Examination and Impeachment Impeachment: showing that W lied intentionally. Chart on Page 133 ii. all other situations governed by FRE 601 . also admissible if party’s motive to cross at earlier proceeding was similar to motive the party would have if W testified at current trial a.proceeding and proponent of out-of-court statement cannot obtain declarant’s presence. it had the potential to harm an important interest of the declarant. Declarant can have a reasonable expectation of death and still survive – such counts as dying declaration even if declarant recovers Statements Against Interest 804(b)(3): declarant must be unavailable and proponent must show that when declarant made the stmt. Competency Rules: competency of W controlled by state law when testifying in connection with substantive issues controlled by state law. iii. A “statement against interest” exposing declarant to criminal liability & offered to exculpate the accused is not admissible unless corroborating circumstances indicate the trustworthiness of the stmt b. Residual Exception/Catch-All Exception 807: Page 134 V. declarant need not be a party in the suit (as “Admissions” requires) a.  Declarant will not be treated as unavailable if it is shown that proponent of the hearsay stmt is responsible for creating the condition that would otherwise make the declarant “unavailable” under these rules i. Former Testimony 804(b)(1): in civil and criminal cases.

Rule 610: a W must satisfy an oath or affirmation requirement to testify (doesn’t have to be religious. 4. if not religious can’t impeach with references to lack or religious beliefs) i. testimony is allowed about error (writing guilty instead of not guilty on verdict form) Personal Knowledge Rule 602: W must have personal knowledge of the subject of his testimony (unless W is an expert allowed to base testimony on information obtained in other ways)  Requirement: proponent of the W must introduce evidence that provides basis on which jury or judge could reasonably conclude that W has personal knowledge of the subject matter of his testimony i. opposing party able to object out of the presence of the jury b) Inquiry into the Validity of Verdict or Indictment: No testimony by juror may relate to mental processes. Leading Questions Rule 611(c): a question that suggests its answer . Evidence of personal knowledge can be incorporated into W’s own testimony ii. Rule 601: every person is a competent witness except as otherwise provided by these rules. Evidence of personal knowledge can be provided in other forms  Example: a W who thinks street was slippery because someone else saw it and told him about it does not have personal knowledge of the street’s condition on a certain date (only personal knowledge that someone else thought it was slippery) Children Testifying and Hypnosis: Pages 146-47 Spousal Testimony in Criminal Cases: a defendant’s spouse has a privilege to refuse to testify at the trial of his spouse  Limitation: FRE allow only the prospective witness spouse to exercise the incompetency right (defendant can’t assert privilege for the spouse – the prospective W spouse must assert privilege) Claims Involving Decedents (Dead Man’s Statutes): Page 148  Scope and Style of Examination Rule 611: trial judge controls mode and order of presentation of each party’s case  Direct: party asks its witness questions about relevant issues  Cross: party questions an opponent’s witness after direct  Additionally: trial judge may question witnesses i.2. testimony is allowed about extraneous information or outside influence. 3. if called to testify. 5. Rule 605: Judges shall never testify in trial they’re conducting (no objection necessary to preserve this point)  Rule 606: Jurors testifying a) At the Trial: juror may not testify as W before that jury in trial of case which juror sits.

technical. adverse party. opposing party cannot use cross of W to direct jury attention to other aspects of the case that might be within W’s knowledge if party presenting W has chosen to ignore them!!! b. furthermore. Leading questions permitted when party calls hostile W. the opinion or inference must be based on some perception by the W and not based on scientific. Convictions of Crimes 609(a) and (b): if a W has been convicted of a crime (includes the D if testifying). or other specialized knowledge within scope Rule 702 a. The W is a person who has a propensity to lie. Leading questions permitted on cross c. except as necessary to develop W’s testimony b. or a W identified with an adverse party Cross-Examination Rule 611(b): limited to two areas of inquiry: (1) topics involved in the W’s direct-examination and (2) topics concerning the W’s credibility (however. Form of Cross: leading questions. stmts of opinion or inferences are allowed only if they help provide clear understanding of the testimony or of a fact in issue.ii. The W does not respect out society’s rules of conduct. the W may have lied while testifying . and c. generally. b. evidence of the conviction often admissible to support following inferences: a. Because of that propensity. including the party calling the witness Impeachment by Showing the Witness Lied Intentionally (Chart on 158)  Chart on 183 1. iii. Leading questions shouldn’t be used on direct. Example: W may state that person seemed drunk as long as such stmt has some support in actual perception of the W General Right to Impeach General rule FRE 607: the credibility of a W may be attached by any party. a. cross-examiner able to rephrase Q’s in effort to obtain a Q examiner didn’t get the first time Statements of Opinion Rule 701: unless a W is testifying as an expert. judge has discretion to allow cross-examiner to expand scope of examination beyond the topics covered in direct) a. Thus.

Cannot introduce other proof of alleged past bad acts by testimony from other witnesses or by any other method . judge decides otherwise) 2. juvenile adjudications.: evidence of conviction inadmissible unless subsequently W convicted of a serious crime  Juvenile adjudications: evidence inadmissible (unless. and embezzlement  Crimes that do not involve “dishonesty or false statements”: proof of conviction of crimes that don’t involve “dishonesty/false statement” is admissible subject to two requirements: 1) Crime must’ve been punishable by death or prison in excess of 1-year (not misdemeanors). If witness is anyone other than the defendant in crim trial: evidence excluded only if its probative value is substantially outweighed by its prejudicial effect  Staleness. fraud. Can only ask during CROSS. Questioner must have good faith belief the events occurred ii. Past Bad Acts That Did Not Lead to Criminal Convictions 608(b): a witness may be questioned about past bad acts that didn’t lead to conviction if relevant to the W’s character for truthfulness. and appeals 609(c) and (d): if conviction was pardoned. but proof other than testimony is prohibited a. FRE restrict introducing evidence about it to impeach a witness  Pardon based on finding of innocence: evidence of conviction inadmissible  Pardon based on rehab/etc.d. If witness is a criminal defendant: evidence of past conviction excluded if probative value is outweighed by its prejudicial effect to person b. Three Requirements: i. or was result of a juvenile adjudication. What this does: allows jurors to make inference about witness’s “later conduct as a testifying witness”  This is an exception to the general prohibition against propensity evidence Rule 609(a) and (b) varies whether one can use proof of past convictions to impeach credibility of a witness based on factors such as:  Whether the W sought to be impeached is a criminal defendant  Type of crime committed (its seriousness and its connection with false stmts)  The balance between probative value and prejudice (including time)  Crimes of “dishonesty or false statement”: if a crime’s elements require proof/admission of “dishonesty/false stmts” to support conviction. evidence that any witness (whether or not D) was convicted of such before is admissible to impeach that witness’s credibility at current trial  Only time admission of past conviction where dishonesty/false stmt is an element is not automatic: when ten-years has elapsed since date of conviction or witness’s release from prison (balance test)  Crimes generally are: perjury. never during direct examination iii. pardons. and 2) Evidence must pass a balancing test a.

W who made current and past stmts must be given opportunity to explain past stmt  Extrinsic Evidence 613(b): not admissible w/re to prior inconsistent stmt unless W afforded opportunity to explain or deny AND opposite party afforded opportunity to interrogate W o Exceptions to prior stmts not being able to be used substantively but only to impeach: (1) when made under oath in some proceeding. a witness’s credibility is impaired or enhanced Impeachment by Proof of Poor Perception or Memory: on CROSS. such is a prior inconsistent statement  Rule 613(a): Proof of prior inconsistent stmts is permitted to impeach a witness (can only be relied on to “disbelieve what W said in court” – can’t rely on past stmt for what it says because past statement is hearsay o Cross examiner can ask W about prior stmt without showing to W and without saying in advance what prior stmt was. however. (2) when prior stmt identified someone and was made after seeing that person. Character evidence: any time (but if it supports W’s credibility then only after W’s credibility attacked in some way) c. Timing for Proof of Crimes. Past bad acts: only on cross 5. contents of prior stmt must be disclosed to opposing counsel on request o If extrinsic evidence of past stmt introduced. by any evidence that would be admissible if declarant had . when prior stmt is consistent and opposing party tries to impeach witness’s credibility Impeaching a Hearsay Declarant 806: credibility of declarant may be attacked. Rehabilitating witness’s character for truthfulness: only after it’s been attacked 4. and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise a. NOTHING cross-examiner can do accept ask again 3. and Character: some restrictions are imposed on these kinds of proof by the FRE a.b. Past convictions: can be used at any time if 609 is satisfied b.  IF witness denies them. examiners permitted to ask witness questions about how well they can see or hear Impeachment by Contradiction: 162-63 Prior Statements by a Witness: when W says something in testimony. but subject to two limitations: (1) evidence can only refer to character for truthfulness or untruthfulness. Acts. and if attacked supported. Inquiry into Religious Beliefs Prohibited 610: evidence of religious beliefs or opinions a witness has is not admissible to show that because of such beliefs. but wrote or said something conflicting earlier. Evidence of Character for Truth-Telling: A Permitted Propensity Inference 608(a): credibility of a W may be attacked or supported by evidence from other witnesses in the form of opinion or reputation.

experience. Expert can state an opinion based on facts he believes to be true because of what expert saw or heard at current trial OR facts experts believes true because of observations outside trial (no requirement that this evidence be admissible in evidence otherwise!!) VII. and other attributes a. Daubert: determines admissibility of scientific evidence by looking at: (1) scientific method and (2) application of method to facts b. Qualification as an Expert: based on education. expert may not testify specifically that a D did or didn’t have a mental state that is an element of a crime 1.testified as a witness (methods for impeachment of declarant parallel the methods permitted when a witness testifies in person during trial)  Can use evidence of: o Conviction of crime. or priest and penitent  Actual stmts: only actual stmts made in confidential relationships are kept secret by privileges . husband and wife. Privileges (Page 191) Privileges: give special treatment – a cloak of secrecy – to a variety of confidential communications in relationships like lawyer and client. Courts generally favor admissibility: opponent of party who uses expert is free to then counter it with opinions from rival expert 3. Topics for Expert Testimony Rule 702: can only introduce expert testimony when court is persuaded that jurors will benefit from help on topic which expert will testify about 2. not all of the Daubert factors need be applied in every case 4. restrictions still apply o Declarant’s possible bias o Declarant’s ability to perceive what he spoke about o Character of the declarant for untruthfulness o Character of the declarant for truthfulness if untruthfulness first introduced o Past bad acts that didn’t lead to criminal conviction o Some prior inconsistent statements VI. Kumho: states that Daubert applies to all expert testimony. however. Reliability: expert testimony must have certain degree of reliability a. Type of Data 703: expert testimony must be based on sufficient facts or data a. Expert Testimony Expert Witnesses: give testimony based on their own general experience and knowledge – allowed to apply their expertise to facts of case  Subject appropriate for expert testimony is opinion would assist jury  May state an opinion or conclusion based on facts expert believes to be true or may answer hypothetical asked  In criminal cases.

the party offering such must provide the original (can easily be satisfied by introducing copy or providing an excuse for not having original)  Rule 1003 provides way to avoid introducing the original with duplicate  Rule 1004 provides way to avoid original with an excuse VIIII.o o Privilege protects stmts a person makes privately in the relationship Privilege does not protect against revealing the information a person in the relationship knows regardless of whether it was communicated in a privilege conversion  IF info can be developed in ways that do not involve reliance on a communication made in a confidential relationship. Authentication and the Original Writing Rule Authentication 901(a): proponent of evidence required to provide a basis for the jury to believe the evidence is what the proponent claims it is  Applies to: documents. photo. records. or recording is subject of testimony. Presumptions . also. then privilege doctrine has no effect!!! Spousal Communications Chart on Page 205 VIII. references to human beings as having been seen by a W or spoken to a W  Pages 213-17 Original Writing Rule 1002: if document. or other physical things described in testimony or offered into evidence.

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