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Evidence Outline

Evidence Outline

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Published by: Dara Duncan on Apr 16, 2011
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Evidence Outline

I. Introduction:
Def of Evidence: Information that is relevant to the case to prove or disprove someone s guilt or liability. Purpose of the Rules: (Rule 102) There are rules of evidence in order to make things more efficient, and protect civil rights. Rule 102:These rules shall be construed to secure fairness in administration, elimination of unjustifiable expense and delay, and promotion of growth and development of the law of evidence to the end that the truth may be ascertained and proceedings justly determined. Types of Evidence: y Testimony (i.e. a witness) y Physical Evidence: ex. gun, documents, photos etc. Testimony: The first question to ask is who can testify? General Requirements: Each can be refuted! Look at the rules to test! y Everyone is initially regarded as competent until proven otherwise (601). y Each witness must have personal knowledge (602) y Each witness must take an oath of honest (603)

II. Relevancy
This is the first question that you should ask in the flow chart. Def: Federal: "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence (Rule 401). Florida: Relevant evidence is evidence tending to prove or disprove a material fact. (90.401) -Florida and Federal are the same here. y Be aware that the rule does not require a preponderance of the evidence as more probable than not but instead just says the material fact would be more probable wihtthe evidence than without the evidence. y The standard is very low! y Keep in mind that every the evidence as a whole has to be relevant, think of the a brick is not a wall, think of it as you can only call one witness at a time, and each witness doesn t need to hit a homerun but 3 singles can score just as well. y Relevance is normally at issue with circumstantial evidence, not direct evidence. Rule 402: All relevant information is admissible except as stated by the Const. Congress Etc. (FRE 402) y All relevant information is admissible except as provided by law (90.402) Steps to determine if something is relevant: Relevancy has two concepts: relevancy and materiality. y Relevance describes the relationship between an item of evidence and the proposition it is offered to prove. y Materiality describes the relationship between that proposition and the issues in the case ie the consequential or material facts. o Consequential or material facts are substantive law questions, so thinks like the elements of a crime etc. So does the relevant information s proposition have a relationship to the elements of the crime or some other substantive issue? y Florida and Federal are the same. Relevancy Conditioned on Fact: 104(b): There must first be sufficient proof of the fact relied upon before or subject to the admittance of the evidence.



Actions can also be relevant and have probative value. Things like flight, alias s, bribing witnesses s etc, have probative value because inferences of guilt can be drawn from these actions. But with flight make sure there is sufficient evidence for inferences of guilt in this particular case (can t be flight from another crime like in the ex. case). Refusal to do something can also be probative (ex. was breathalyzer), refusal is probative of the issue of consciousness of guilt

Rule 403 Balancing Test: 1) Determine the probative value of the proffered evidence (is it a big brick or small brick?) 2) Identify the presence of any of the enumerated dangers (unfair prejudice, confusion of issues, misleading the jury) or considerations (undue delay, waste of time, or needless presentation of cumulative evidence).Make sure you know the difference between unfavorable (ex. confession) and unfairly prejudicial evidence (ex. emotionally arousing gruesome crime scene photos). 3) Balance the probative value against the identified dangers or considerations. If the dangers or considerations SUBSTANTIALLY outweigh the probative value of the evidence, exclusion is discretionary (so biased in favor of admissibility). What to consider when doing a 403 balancing test: The need for the evidence; The tendency of the evidence to suggest an improper basis for deciding the case; The emotional impact of the evidence; The chain of inference necessary to establish the material fact; The effectiveness of a limiting instruction * If something is just wrong, as in the math in the ex. case, then it is clearly prejudicial. Comparing Federal and Florida: i) Both rules are weighted heavily in favor of admitting relevant evidence, permitting it to be excluded only if its probative worth is substantially outweighed by the identified dangers ii) Under both federal and Florida, great deference is given to the trial court s balancing of probative worth against unfair prejudice and other dangers, with reviewing courts finding error only if it can be said that the trial court abused its discretion. iii) Both rules define the phrase unfair prejudice in the same way, namely, as an undue tendency to suggest decision on tan improper basis, commonly an emotional one iv) Under both the availability of other means of proof is a pertinentconsideration; to the extent that t party can prove its point with equally probative but less prejudicial evidence, the trial court can apply this rule to exclude evidence that has greater prejudicial effect. v) With both, the probable effectiveness of a limiting instruction should be considered as an alternative to outright exclusion vi) Both, Rule 403 must be applied to all evidence, even if it survives scrutiny under other exclusionary rules (it is the umbrella rule). Diff: Federal rule includes undue dealay and waste of time while Florida does not. Florida also says that this rule doesn t mean 3rd party benefits are inadmissible (insurance). Public Policy Limitations on Admittance of Relevant Evidence Sometimes we don t allow certain evidence because thought it may be probative, for public policy reasons we want people to keep acting this way and have it not held against them. The ex. are paying medical bills, having insurance etc. y Subsequent Remedial Measures (R. 407): If someone fixes something after P has been injured, you can t use them fixing this as evidence against them in the trial

So the Florida has a higher standard of proof. the federal rules just require the trial court to determine that there is sufficient evidence that the jury could find by a preponderance of the evidence that the incident occurred. Character Evidence Generally Character evidence is inadmissible as proof of conduct aka propensity evidence. for efficiency reasons and not be harmed by this.  If a person unilaterally confesses evidence or guilt then that does not count as plea discussions. or absence of mistake or accident. .  This also includes: Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. o Normally only opinion and reputation evidence (not specific acts) may be used to prove character when a Rule 404(a) exception applies. and proving an effort to obstruct a criminal investigation or prosecution. opportunity. o When character is an element in a cause of action. o Policy: We want people to take plea bargains etc. o Offers of Payments of Medical Expenses (R. but also character evidence of the accused after the accused introduces character evidence of the victim (but only of the same trait as that introduced about the victim). Offers & Acceptances etc. 409): The payment of medical expenses cannot be entered to prove liability. during negotiations of a settlement against a party. Inadmissibility of Plea Discussions. o We want people to pay medical expenses so it is done in a timely manner and just to be nice etc. o Policy: We want people to speak freely during negotiations and make reasonable offers and not have it held against them later at trial to do so. even if a plea bargain was accepted.of permissible purposes include proving a witness's bias or prejudice . knowledge. preparation. plan. 411): We don t let in whether someone does or does not have liability insurance o Policy: This is because juries tend to award more or be more partial to the victim if someone is insured because they don t see the person as paying but the big company. negating a contention of undue delay. Offers to Compromise (R. Florida only allows character evidence if the accused first introduces evidence about themselves y In terms of evidence admitted for other purposes. This is because we want people to speak freely. intent. y y y III. offers etc. o If admitted you must first ask if the evidence is a pertinent trait to the crimes charged.  Exception: Perjury cases and if another statement from the same discussions was let in and for fairness another statement should be let in.408): Can t use statements. o Other acts are not admissible under character but may be admissible to prove motive. she then opens the door to character evidence. But the accused can admit his own character evidence freely without restrictions. Exceptions: When accused offers evidence of her own character or that of victim (in self-defense cases). Federal: y Federal lets not only character evidence of the accused after the accused introduces character evidence about themselves. 410): This can t be entered to prove guilt in a criminal or civil case.  There are some admissible purposes though: Ex. (R. aka only in slander or libel cases can character come in because that is an element of the crime. Florida says that there must be clear and convincing evidence that the person committed the prior act. Florida v. Think of the letter sent to the judge admitting guilt for religion.y Policy: We want people to prevent future harm and not fear that the damages or assertion of guilt/liability will be more if they do so. Liability Insurance (R. identity.

y Florida rule doesn t expressly say that you can bring in specific instances on cross examination like the federal rule. person within a close circle thoughts on their honest 3) Specific Acts (normally prohibited!). under Florida practice some authority holds that one can offer evidence of a person s reptutation in a non-residential community only if no character witnesses from the person s residential communit are available. only reputation or opinion (In FL only reputation) and defendant can t get in specific conduct about themselves (only though cross-x is specific conduct ever allowed). So specific acts normally not prohibited. should be reputation in community 2) Opinion.y Florida says you have to give 10 days advance notice if using character evidence other than for impeachment or on rebuttal. Rebuttal of Character Evidence: Must be regarding the same pertinent trait (ex. o Hierarchy is because of numerous specific acts. do you still feel the same way? o Must take witness answer at face value aka extrinsic evidence of the specific act or their knowledge of the specific act is not admissible. D says honest. not at the time of the trial. not just the person s reputation. found money in library and returned to owner. y While both rules do not limit reputation in the community to just be a residential community. 3. 2. But the federal court requires notice whether or not you are using it for impeachment. Policy behind prohibiting Character Evidence We don t want people being found guilty of a certain crime just because they are a bad person or have committed crimes in the past. How to get in Character Evidence: In a criminal case the accused must introduce character evidence himself and then they have opened the door to character evidence and the prosecution may cross examine the defense s character witness on the D s character and offer rebuttal character evidence. o The D s character at the time of the charged offense is what is relevant o Rule 405(a) limits how we can get in character evidence. Florida never allows opinion evidence. Opinion Evidence: This is an expansion of the common law which only allowed reputation evidence (Florida still only allows reputation evidence!). Specific Acts: Normally can t be raised because we don t want a trial within a trial. and collective opinions become reputation. but be careful because while law-abiding citizen is allowed as character evidence this then opens the door for any type of conviction the defendant may have (drugs. Must also limit to opinion or reputation Cross Examination: Here you can bring up specific instances of conduct on cross examination to character witnesses. reputation for honesty in law school. ex. Foundation. rebuttal or the case-in-chief. We also require notice for any character evidence that may be admitted. Federal: y Federal always allows opinion evidence as well. ask about the person s conduct ex. Methods of Proof: 3 methods of how to get in character evidence described in FRE 405 1) Reputation. o In Sex Offense cases rule 412-415 preempt rule 404. but they can be raised during cross examination. other people form opinions. In other words you can cross examine as to . Limitations: o Must be a pertinent trait to the crime charged. 1. P can show dishonest). must prove that the person is sufficiently acquainted with the accused or victim to form an opinion about their character. Reputation Evidence: You must first establish a foundation for why this witness can testify to this person s reputation in the community at the time of the charged offense. but the courts have ruled that you can ask character witness s if they have heard that the defendant committed certain acts. assault whatever) where other character evidence is limited to that type ie honesty can only do dishonesty etc. o Witness s character is limited to impeachment Florida v. but federal requires notice but with no time limit. must say have you heard or do you know that they did this. rape.

o Special Rule in Homicide Cases: Any evidence that the victim was the first aggressor in a homicide case (only homicide not assault/battery etc. incest etc. court has shut them down. there are different exceptions to character evidence because of the nature of the crime. injury. if on trial for fraud can bring up past assault charges. to admit it in Florida it has to show motive. for opinion say did you know. Sex Offense Cases: When sex offenders are on trial. if the D brings up the victim s violent character then the state can bring in the D s violent character or rebut the victim s character. not calling the woman a . not just preponderance of the evidence. opinion) and instead just relevancy. ex. Rape Shield Law (412) Can t let in victim s character or reputation. Child Molestation Cases To meet this rule (414) the child must be under 14 yrs at the time of the offense. it needs ot be clear and convincing evidence. if the accused brings up the victim s character. y Method of Proof: Unlike character evidence. o Act must be dealing with a similar pertinent trait to the current charge. including reputation or specific acts of violence. Make sure you catch this distinction. 30 year old arrest. The general gist is that you can bring in past incidents etc.) case triggers the prosecution s right to introduce rebuttal evidence of the victim s peaceful character. to do them. or other physical evidence (pregnancy. This must still be the same pertinent trait though. Victim s Character: y In self defense cases. o Must relate to the character trait that the witness is speaking of o Acts must not be too remote. (other acts exceptions). o Evidence of the victim s character to prove the effect on the accused s state of mind is not subject to character evidence rules (reputation.specific instances but if they lie that is it and you can t bring in extrinsic evidence to show they are lying. This applies to criminal and civil cases. These acts are seen as in particularly bad acts and it takes a certain type of person lacking morals etc. Florida says 16yrs of age or younger (DIFFERENCE!) y Florida Rule also says you can let in past child molestation charges (exception to propensity exclusion) Florida v. those aren t related. o The form of the question matters. or past sexual acts to prove consent in rape cases. disease). proof is not limited to opinion or reputation but can also admit specific instances and convictions are not required. plan etc. Ex. if it is a sexual abuse case of a child. then this opens the door for the accused character to be criticized. Florida v. y The burden of proof for letting in other acts. This is not showing that the victim acted in conformity with their reputation. not convictions is higher in Florida. o Prosecutor must have a good faith basis for any specific acts. it rests solely on whether the accused had knowledge of the victim s character. Federal y Federal says a child is under 14. This is not to show character as proof of conduct. This is because the victim isn t available to contradict the D s version of the homicide. Federal: y Florida does not have an equivalent rule to the federal one that allows other sexual acts to be admitted. For reputation say have you heard. Exceptions: y Evidence to show another person was the source of the semen. y There are equal protection and substantive due process issues constantly brought up here. Florida says under 16. don t need hard evidence but good faith basis. which would be subject to character limitations.

y Past Sexual Activity with the Accused. but must be relevant and can t be dispositive itself of consent. Florida y Federal applies to any criminal or civil proceeding alleging sexual misconduct. It can be let in to prove: y Motive y Opportunity y Intent y Preparation y Plan: y Knowledge y Identity y Absence of Mistake or Accident Common Misconceptions: . This is to establish the relationship between the accused and the accuser. y With Florida. some say sex offense exception then do the balancing test (which usually excludes the evidence) other say stop at the exception that is why there is an exception and it is also an exception to 403 (this is why it s so controversial and unheard of in evidence rules.. Application of Rule 403 Balancing Test: Courts are torn on whether the Rule 403 balancing test applies in these sex offense exceptions. y The Federal rule requires written notice of an exception 14 days in advance and the Florida rule does not but say that all hearings on this evidence must be in camera (in the judge s chambers). this is used to rebut the idea that the [normally child] victim would not know of the acts unless the defendant had committed the alleged acts. this is the mistake of consent defense and it is very controversial because every rape requires the mensrea to rape (just like any other crime requires mensrea) so here the defendant tries to admit the victim s sexual history to prove that he thought she was consenting. Evidence under this exceptions is not automatically admissible. is at the core of the defendant s case aka why she had the motive to falsely accuse him. while the Florida rule only applies to sexual battery cases. y Past False Accusations. knowing or voluntary y The Florida rule says the victim s testimony doesn t have to be corroborated. Other Acts Evidence Past Crimes or Wrongs (doesn t have to be a crime) can be admitted to prove something other than a propensity to commit a crime. y Disproving Mens Rea. supposed to be let in on a bias theory but must prove that those accusations were actually false. Procedure: Determining admissibility in Rape Shield cases is done with a 14-day notice in a separate hearing with the alleged victim s right to participate. y The Florida rule has an exception that allows past sexual conduct with the victim and someone other than the defendant to be admitted if it proves a behavioral pattern that is so similar to that between the victim and the defendant that the defendant would have believed that the victim was consenting. typically limited to the issue of consent. when consent is an issue the victims mental incapacity or deficiency is admissible to prove that consent was not intelligent. and not federal. y Constitutionally-Required evidence: Ex. a defendant can then admit some past sexual acts of the victim to show there were other sources of knowledge. so the victim s testimony alone can convict the defendant y Florida says that the use of a condom can be admitted to the trier of fact.) Federal v. when a past relationship etc. Very controversial. this is again not automatically admissible. y In Florida evidence of chastity of the victim and her lack of participating in sexual behavior is admissible while in the Federal Rules all sexual behavior whether to prove virginity or promiscuity is excluded. can t just be that the charges were dropped etc. y Alternate Source of Knowledge.whore because she had someone else s semen in her. Federal doesn t have this exception.

it was accidental. 2) Do a 403 test. to show mental state. it is always a material fact (relevant) and there are many acts which can prove it. Accused Participation in Other Acts: The prosecution must offer some evidence tending to show that the defendant committed the other act. so even broader). For mistake thing of drugs where someone thought they were getting powdered sugar but it was cocaine. this gives him a motive the kill the husband and motive is probative of identity.)If someone says they accidentally shot someone because there were unfamiliar with guns or it accidentally went off then you bring in a past homicide where they shot someone then that would rebut lack of mistake or accident. they may want to offer evidence that another person committed the crime they are charged for o This rule is not limited to criminal cases like the first part of the rule. Opportunity: In a murder case the last victim (other act) was killed with a bomb. its the same act. Actus Reus Category This is normally where absence of mistake etc. ex. Similarity between other act and crime charged is so striking that the same person probably committed both offenses. same if something has already been stipulated to be true.It isn t limited to just criminal conduct it can be other wrongs can include dissimilar acts. can let in adultery to prove motive to commit homicide. How to analyze: 1) Identify the material issue you are trying to prove. often they can t be admitted because it s not another act. typical used to prove identity. if intent or motive has already been established we don t need to bring in extrinsic evidence. this may be admissible to establish the defendant s technical know-how with explosives and this is probative of identity Preparation: A banker robber stole a car that was later identified as the robbery getaway car may show that the robber was preparing for the bank robbery (stealing the get away car is common practice). ex. could the jury reasonably find the conditional fact by a preponderance of the evidence (actually less than preponderance of the evidence because if its reasonable for the jury to find that. will go again to prove that the crime was actually committed. or to show the crime has been committed. 3) Is there prima facie evidence that the accused was involved in these other acts? o o o Proof of Identity Category Identity: This is the one that will most likely work. Mens Rea Category: Intent: If you have a motive you most likely have intent??? Knowledge: Motive Preparation Lack of Mistake or Accident: (These are typically done on rebuttal. Res Gestea: This is when two crimes were committed together but for some reason you can t put them in the same trial. the same type of gun is not enough to prove this. Can include subsequent acts. There must be a prima facie evidence standard which is very lax. identity. Habit Evidence: . Note*: Knowing all of this is important because you have to be letting in the evidence to prove a disputed point. it needs to be a behavioral fingerprint Motive: the defendant is having an affair with the victim s wife.. it includes civil cases. then you can bring up their past cocaine charges to prove they knew what cocaine was. mensrea etc. so if you threaten a witness after the burglary or use credit cards after the theft those can still be other acts to prove the crime you are on trial for o The accused can offer the evidence.

but character is almost always a matter of opinion. but it could be an implied admission by conduct even if the defendant didn t make the repair (only Federal. Key Elements in Determining Whether Conduct Is Habit: 1) Specificity: a person s disposition as careful or careless should be classified as character but that person always stops at a particular stoplight can be designated habit because of its specificity 2) Repetition: How often does the habit occur. admissible if used to prove the following: .Evidence of the habit of a person or the routine practice of an organization when offered to prove that a person or organization acted in conformity with that habit or routine practice on a particular occasion is admissible. Remedial Measures This is when remedial measures can t be admitted if used to prove negligent or culpable conduct. changes in company rules. Character: Habit has a greater probative value. Habit is the regular response to a repeated specific situation. Habit comes in through opinion testimony or evidence of specific instances of conduct to prove a habit. A habit is the person s regular practice of meeting a particular kind of situation with a specific type of conduct. Habit v. and the federal rule explicitly says this is not needed. the doing of the habitual acts become semi-automatic. ex. then the policy considerations are gone and it is not protected. not Florida!). it can also be installation of safety devices. once a day is more probable than once a month. One could reasonably testified they observed habitual behavior. Federal v. can be admitted for other purposes. This is things like standard operating procedures. Remedial measures doesn t have to just be repairing the dangerous situation. There is an invariable regularity of action. *Make sure that the routine is coming in to prove they acted in conformity with that routine. Florida Rules: y Florida only applies to routine practice of an organization. not to establish a standard of care in a negligence case. y Florida does not provide that introducing evidence of an organization s routine practice creates a presumption that the organization acted in conformity with that routine practice but only supports the inference that the practice was followed. it is behavior regularly repeated in like circumstances. y If the remedial measure is made by a third party. or habit of an individual as well as an organization. and discharge of employees as well as disciplinary action against the employee who caused the injury. It is usually readily admitted because it doesn t pose the risk of smuggling in character evidence. y The rule only applies to measure taken after the accident. Federal applies to evidence of the routine practice. But post accident reviews or studies are generally not considered subsequent remedial measures. 3) Duration: have they been doing the behavior for years or weeks? Think someone s route home from work for years 4) Semi-Automatic Nature of the Conduct: This is stuff like braking the car with your right foot or locking the door on your way out. giving a hand signal for a left turn. However Florida does not exclude evidence from the habit of an individual. Exceptions. and thus the trial court can admit such evidence so long as it determines to be probative and not otherwise excludable. Observing the Sabbath is not habit Routine Business Practices This permits the routine practice of an organization to prove that the organization acted in conformity with that practice on a particular occasion. going down stairs two at a time. But this is only admissible if independently corroborated (harder to prove therefore harder to admit). it takes no thought. not for example after the purchase of the item and before the accident.

y The federal rule bars the use of statements made during negotiations to impeach a witness. Federal: y Federal Rules do not extend this rule to actions taken by a third party. jointly controlled by contractor and state highway department. This takes away the policy reasons for the rule and it is not a good faith settlement offer and it is trying to get a creditor to settle for a lesser sum. any evidence that someone paid your medical bills is inadmissible. but contractor erected warning sings. contradicting this. Hard to get in because it undermines the principles of the rule. it shows a bias toward me. no warning signs on a highway. It can t be admitted by any party including the defendants. not in criminal cases. oh that s my fault. However if it is offered by a party to the action in an effort to shift the blame to someone not a party to the action. this shows control/ownership. A s attorney can impeach B by bringing in the settlement by saying my settling was a tradeoff for the favorable testimony. There is an accident with me and A & B. You can t let in the settlement with B. In Federal Rules the ban refers to both criminal and civil cases (a bit counterintuitive). I admit I owe X $5000 but I say that it will cost him $2000 in litigation to collect this amount so I ll pay him $3000 and call it even. Florida v. to prove liability for a claim or its amount. Ex. Federal: y For federal there doesn t have to already be litigation initiated or threatened for statements to be excluded regarding offers (presence of a dispute). y Federal law says if the statement is admitted for something like showing bias of the witness (something other than the reasons prohibited) then it is OK. culpable conduct. If it is offered to prove negligence. Florida does not allow these statements event to show a bias etc. y Offers to compromise can be barred only in civil cases in Florida. Florida v. then B testifies at A s trial. y Obstruction of Justice: You can t give the civil suit defendant more than the damages to pay them off to not prosecute you criminally. aka a person that is not a party to the suit. or the like on the part of the party to the action. I settle with B out of court but decide to go to trial with A. y Prior Inconsistent Statements: This is a form of impeachment if you made inconsistent statements during settlement negotiations. but once again difficult to get in. it is inadmissible. but think of feasibility of alternative designs. Federal: . Feasibility of Precautionary Measures: This one is very similar to negligence so hard to prove. Florida v. Make sure you don t say. or show prior inconsistent statements. warning letters etc. Ex. This rule does not cover statements accompanying the payment and it doesn t have to be a need for dispute as in the offers rule. but in Florida it is undetermined if litigation must have already begun. Compromises and Offers This rule doesn t allow any evidence of offers to compromise in the course of compromise negotiations. You can t let in a third party settlement. while the Florida rule does not bar the use of these statements to impeach a witness. it is not subject to exclusion. Impeachment: When a witness testifies to safety or something like that then there are statements. the exclusion of action taken by a person not a party to the suit is dependent on the purpose for which the evidence is offered. In Florida. Exception: y Bias: If I am in an accident with A & B and I settled with B.Ownership or Control: A party s subsequent corrective action tends to show that they are the correct defendant. Medical Payments If offered to prove the liability of the person paying. y Discovery: If evidence would already be allowed in discovery just because it was presented during negotiations doesn t exclude it from the actual trial. I ll pay for everything because then it is no longer disputed. This rule also excludes statements made during these negotiations The claim or amount must be disputed.

) or someone has insurance because they own that thing. in fairness. y The federal rule differs from the Florida rule in that it does not appear to exclude unilateral offers to pleader guilty or nolocontendere. It is pretty much a prior consistent statement. y Bias: If an insurance adjustor is called as a witness they have a bias because they work for the insurance company. and it appears only to exclude statements made in the course of a plea discussion with an attorney for the prosecuting authority (federal is more liberal). Federal vs. ex. y Can include third party plea agreements. Impeachment III. Show Ups. Criminal Pleas Excludes admissibility for: 1. . Federal y The federal rule applies only when the evidence is offered against the defendant who made the plea. Florida v. Photo Displays: An in-court identification by a witness can be bolstered by corroborating evidence of a prior out of court statement y Fresh Complaints: This is used often used for rape trials. be considered contemporaneously with it. Exceptions: y Perjury and false statements prosecutions y Rule of Completeness: Any statement made in the course of the same pela or plea discussions has been introduced and the statement should. you can say this. while the Florida rule bans the evidence when offered by the prosecution against the defendant or by the defendant to show he rejected a plea offer. Witness Credibility Stages of Credibility: I. Withdrawn pleas of guilty (if brought in against the defendant) 2) nolo contendere 3) statements made during proceedings to determine the voluntariness of the please and 4) certain statements made during the plea bargaining process. Exceptions: y Line-ups. y If another part of the statement is admitted and in fairness you admit the other part of the statement this is only allowed in federal courts. Florida only allows this rule for civil cases. while the federal rule does not allow these other expenses.y y The Florida rule is broader and includes medical or hospital expenses or other damages which could include things like lost wages and damage to property. Rehabilitation Bolstering Generally you can t bolster a witness until their credibility has been attacked. Florida: y Florida does NOT have this provision. Insurance Excludes evidence of liability insurance if offered to prove that a person carrying or failing to carry liability insurance acted negligently or otherwise wrongfully. Exclusions: y Ownership & Agency: If someone carried another person on their insurance it can be entered in to prove an agency relationship (vicarious liability etc. but probably because Florida doesn t let in any plea discussion statements. and the federal courts are split on whether it can be applied to both criminal and civil cases. Bolstering II. her in court testimony can be bolstered if she made a complaint soon after the incident. witnesses etc.

This applies in both civil and criminal cases. prior convictions. y Normally these can be illustrated in cross-x so the use of extrinsic evidence should be regulated Untruthful Character Impeachment:Here you can bring in character evidence to prove that the witness is untruthful. Limitations: y The types of convictions that are admissible are 1) Crimes punishable by death or imprisonment in excess of one year (felonies) and 2) crimes of dishonesty and false statement regardless of punishment. whichever one is later.y Cooperation (Plea) Agreements: Prosecution can bring up on direct X that their witness did sign a plea agreement and part of that was to testify and it has a section about perjury etc. Sensory and Mental Defects: this is when the any sensory or mental defect might affect a witness s capacity to observe. Relationship between witness and litigation like a financial interest or an immunity agreement for testifying. annulled or there is a finding of rehabilitation you can t include the evidence y Juvenile Adjudications: Can t let the juvi record in. this is to take the sting out when it comes out in cross x which is surely will. Prior Convictions of Witnesses: Can let in prior convictions offered for impeachment to show untruthful character. y Pendency of Appeal: doesn t affect admissibility of evidence but can bring in that an appeal is pending. and applies to any witness even the defendant. Impeachment Types of Impeachment (Examiner must always have a good faith basis for question): y Bias or Interest y Sensory or Mental Defects y Character for Untruthfulness. Conviction means: Arrest and indictments without convictions are not admissible. There are still the same 3 methods of proof for other character evidence: i) Reputation ii) opinion iii) specific acts (treated differently here than normal character evidence). can also include fear. Ex. opinion. y Keep in mind the right of confrontation and the reason we can show bias y There must be a foundational laid to bring in extrinsic evidence aka ask about the bias before bringing in extrinsic evidence (there may be no need for the extrinsic evidence). but no contest please and the conduct that was the basis of the arrest even if there wasn t a conviction is admissible if it reflects untruthful character. maybe couldn t identify the defendant correctly since it was at night etc. in there. which includes impeachment by reputation. recall or relate the events about which the witness has testified. The prosecution has the BOP to show the probative value of the evidence outweighs the prejudicial impact Relevant Factors regarding the accused (defendant s) impeachment: . y Another example is if the person was under the influence of alcohol either at the time of the event or trial. I. y Generally Inadmissible if more than 10 years has elapsed since the date of the conviction or the release from confinement. and prior untruthful acts (cannot admit extrinsic evidence) y Specific contradiction y Prior Inconsistent statements (self contradiction) Bias: (extrinsic evidence always allowed): relationship between a witness and one of the parties. o Exceptions: 1)there is sufficient advance written notice 2) based upon the facts the probative value of the evidence substantially outweighs the prejudicial effect (biased toward exclusion) y Pardon & Annulment: If the witness s crime has been pardoned. person has bad vision.

but if it is the accused. Federal v. Florida: y Federal allows opinion and reputation while Florida only allows reputations y The federal rule s foundation requirements are less stringent. The witness should have the opportunity to explain or deny before extrinsic evidence is admitted or at lease at some point in the trial. I killed him at the time of the arrest and at trial said I killed him in self defense. y Prior Lack of Knowledge: Prior statements that witness had no knowledge about matters the witness is now testifying to are admissible under some circumstances. Federal rule is much stricter and only includes things like perjury. y Current Lack of Memory: Witnesses often forget and such a memory lapse would not be an inconsistency but in some circumstances a claim of lack of memory is not credible. Similarity of Crimes: Look at probative (similar) vs. If the crime involves dishonesty or false statements then the court must admit it regardless of rule 403 or if it is the accused. Ex. the statement is inconsistent. subject to penalty of perjury and made at certain proceedings. y Under federal if there is a pardon etc. y Witness can still claim 5th amendment if it will incriminate them Federal v. Out of court inconsistent statements are hearsay and fall under those rules. Florida y Both allow two types of convictions to be let in: 1) Those punishable by imprisonment of more than one year or death and 2) those crimes that involve dishonesty or false statements regardless of punishment. Prior Inconsistent Statements Under the impeachment provision the statements must have been taken under oath. Federal v. embezzlement etc. Florida does not have any time limits and says that the court has discretion to determine if it is remote. he has to testify and it must be more probative than prejudicial so hard to get in. y With federal if the witness is someone other than the accused then it most likely gets in if it meets the crime standard.y y y y y Nature of Prior Crime: false statements or crimes of dishonesty are automatically let in while others depend upon the probative value of that crime for reflecting untruthful character. y Florida takes a much broader approach to the crimes involving dishonesty and includes things like stealing (robbery) cheating. Witness aid. defrauding or even joy-riding. Prior Acts By Witness to Prove Untruthful Character Specific instances are admissible only if 1) The conduct reflects the untruthful character 2) It s probative value outweighs the danger of unfair prejudice 3) a good faith basis for inquiry exists and 4) the evidence is introduced on cross x and not through other witnesses. only if its an element of the offense. y In Federal. Centrality of credibility at trial: If it comes down to a swearing match wear you are just basing the case off of two witnesses separate stories and therefore their credibility there is a stronger need to let in these prior convictions. Examples of Inconsistent Statements: y Prior Omission: If present testimony contains material facts that were omitted in the prior statement. prejudicial (just saying they are bad) Need for Accused Testimony: If the defendant s testimony is all the defense has then the need to testify is greater and therefore the argument for the exclusion of the prior testimony is stronger. that conviction can t be used to impeach the witness but in Florida it still can. y In Federal if more than 10 years old you must provide written notice and the probative use must substantially outweigh the prejudicial effect. Remoteness (age of prior conviction): Convictions of more than 10 years have special limitations. Florida y Florida says that the witness gets to observe the statements prior while federal just says you have to give it to opposing counsel .

mechanic tells driver breaks are worn. . y Statements Offered for their truth: Only hearsay if it is offered for the truth of the matter asserted. In Florida. Hearsay Def: Hearsay is an out of court statement used to prove the truth of the matter asserted. y Presently Existing State of Mind:This may establish circumstantially how someone felt at the time ex.y y Florida says you have to let the witness explain or deny the statement before you an interrogate the witness on it. Ex. What Is a Statement in Hearsay? A statement is 1)an oral or written assertion or 2) nonverbal conduct of a person. that is assertive conduct. y Prior Inconsistent Statement on Impeachment: You are not trying to show the truth of what the witness said. or the phones are working etc. if it is intended by the person as an assertion. if it is offered to prove the breaks are worn it is hearsay. you intend to communicate what is being proven. To make this not hearsay. Federal is the reverse. What is Assertive Conduct: When someone has the intent to communicate something. you have to give context to the behavior. cannot be a device or animal y Out of Court: This does not mean that a declarant that later becomes a witness can bring in any statements they made out of court. I am the King of America is not admitted to prove the person is the King of Africa but that they are inane if they actually believe this. For example the intent to make something a gift etc. y Declarant: This is the person making the statement. This is when we care that the words were said. not that they were true. her state of mind was not one of companionship. memory. If the witness admits to making the statement then you can t offer extrinsic evidence. narration and perception. just the inconsistency in what they said to disprove credibility. send more money. Son called and told his mom I am broke. Someone asks you a question and you nod. y Operative Legal Acts: Uttering certain words has an independent legal significance besides the offer of truth. they can also review the witness s sincerity. equivocal. Examples of this are to accept an offer. o The Most common example is to prove insanity. o To prove good or bad faith: ex. they can say what they remember but any statements they made are still hearsay. This is rare though. ex. love letters admitted to show the defendant actually thought these presents were gifts and not income. The important thing with this is what is court is it the grand jury. and contemporaneous with the statements. say something is a gift etc. constantly used is the child molestation victim s description of the inside of her accusers bedroom. The ex. then it is not hearsay. If a statement can show that someone has knowledge (if evidence is offered that proves she has no other way of knowing it). y To Prove Personal Knowledge: When statements aren t offered for their truth but rather as circumstantial evidence of knowledge. if it is offered to prove that the son is alive. Situations where the statements are not offered for truth: y To Show effect on the listener: o To prove reasonableness: reasonable fear leads to self defense o To prove notice. Ex. o To Explain Behavior: sometimes a statement is admitted so you can explain the person s conduct in response to the statement. Most importantly the conduct must have independent legal significance. hearings etc. o This is related to verbal parts of acts. the conduct to be explained should be relevant. if it is offered to show the driver was aware her breaks were worn it is not hearsay. If it is offered to prove that the son is broke then it is hearsay. used was when husband sued for loss of companionship and they let in a week prior to wife s death wife s statement that her husband was the cruelest man in the world. Rationale: We want people to be able to cross-examine a witness so that the jury has the opportunity to observe the demeanor of the witness while testifying.

This type of assertion is easier to get in past the hearsay rules. o Cross Examination Defined: The witness must just be subject to cross examination. even though they may not meet the requirements of the 4 conditions. subject to cross-examination. the other side Hearsay Exemptions: Certain Prior Statement By a Witness Four Conditions must be satisfied: 1) the declarant must testify.Non Assertive Conduct:This is when the declarant does not intend to make an assertion. if someone pleads the fifth then they weren t subject to cross examination. if they don t remember they were still subject to cross examination. . You can impeach a hearsay declarant as you would a witness. he isn t out making this statement but by his actions he has implied that it is. this is why it is admitted as substantive evidence. y Prior Consistent Statements: These statements are substantively admissible.-this would count as verbal/written) o Silence-normally silence is not an assertion unless it is something that someone would normally feel compelled to respond to. Double Hearsay: If there is hearsay within hearsay then each element of hearsay must either meet an exception or exclusion to the hearsay rule. some think nonverbal is more reliable but the rules commentators have said that letters written for a different purpose are not hearsay because there was no intended assertion (think of the letters written to the old man which were admitted to show that the writer didn t think he was incompetent. hearing or other proceeding. Calling a hearsay declarant: If that party that the hearsay is against calls the declarant to testify then they can examine the witness as if under cross examination. y Nonassertive conduct may be verbal as well as nonverbal. o Keep in mind they must be subject to cross examination. if they can t still remember the identity that is OK. bring up specific instances etc. o Questions are kind of on the line. or in a deposition: o Other Proceeding Defined: grand jury statements testify. this is because you cant cross examine them like you would normally do but you ca still bring up specific instances and extrinsic evidence. as long as they are there and can be cross-examined o For 6th amendment purposes. impeach. there must be counsel at some of the identification procedures and the identification evidence must be reliable. aka leading questions. but the witness must be subject to cross examination at trial (aka 5th amendment not admissible) o If there is a motive to fabricate the consistent statements must have been made before the alleged influence o Rehabilitation: this is when consistent statements are allowed to support credibility. He is not intending to say the ship is seaworthy. The best example is when a sea captain checks a ship for safety then takes his whole family out on the ship. if it is intended by the person to be an assertion). Normally it must be a formalized proceeding with a transcript. the writer didn t intend to make the assertion that the old man was competent. Because it is out of the hearsay definition (nonverbal conduct of a person. but they must still be subject to cross examination (can t let in an out of court identification if the person is not serving as a witness). sometimes it is called an implied assertion. Impeachment of a witness: Prior inconsistent or as rebuttal consistent statements can be admitted. at the current trial 2) The prior statement must be inconsistent with the witness s trial testimony 3) the prior statements must have been given under oath subject to penalty of perjury and 4) the prior statement must have been made at a trial. but stationhouse statements and affidavits to government officials do not. y The witness does not have to make an in court identification to have the prior identification admitted. Statements of Identification: A prior identification out of court after perceiving the person is more credible than the in court pointing to the defendant type of identification. do the intent test.

. If I am trying to get myself off on something else and I accidently say something that puts me at the scene of another crime. Rationale:If the person on trial. it doesn t matter if it is a third party or principle party y Agent Admissions: These are people without speaking authority. the agents must have speaking authority. Keep in mind Miranda Rights though. it can be let in. if you said it. y Adoptive Admissions o Adoption by Use: if you use documents to train your employees these papers can be used against you as a party admission. The idea is the elimination or reduction of one of the hearsay dangers (perception. such as employees etc.Admission by a Party-Opponent: An admission is any statement made by a party that is inconsistent with that party s position at trial. y Time Requirement: The statement must have been while the declarant was perceiving the event or condition or immediately thereafter. First Hand Knowledge is Required for most of the exceptions Present Sense Impressions: The reliability rests upon the declarant s lack of time to fabricate which reduces the risk of insincerity. and sincerity). 2) admissions don t have to be against the interest of the declarant when made. but does for declerations against interest. There are 5 types of party admissions: 1) Individual Admissions 2) Adoptive Admissions 3) Authorized Admissions 4) Agent Admissions 5) Coconspirator admissions. memory. o Adoption by Silence: If it would be natural to deny or correct the truth of the statement of a third party your silence can be an adoption. and guilty verdicts from other cases is an admission o Confessoins are admissible o Privity admissions is allowed o Declarations Against Interest Distinguished: These are different! 1) Firstahand knowledge doesn t apply for admissions. y Authorized Admission Statements made by a person authorized by a party to speak for it are admissible as substantive evidence if offered against that party. so the statements need to be made nearly contemporaneous with the perception of the event (within minutes). narration. makes an admission the policy behind hearsay rules aren t present because you don t need to cross examine yourself. ex. Firsthand Knowledge and Opinion Rules Don t apply here: Even if your statement lacks first firsthand knowledge to the events and is completely opinion. y Individual Admissions: o Guilty pleas (if not withdrawn!). 3) The declarant doesn t need to be unavailable for an admission to be introduced. Hearsay Exceptions (Whether or Not Declarant is Available): The exceptions are based on the justifications for letting them in. o If the agency relationship is established the person doesn t have to be identified. But to be admissible the person speaking must be speaking 1) concerning a matter within the scope of their agency or employment and 2) made during the existence of the agency or employment relationship are admissible as substantive evidence if offered against the party. parent is sued after kid is in accident case. that is fine to be a party admission. o The statement can be among employees if the declarant is the one being supervised  Admission by Police: this provision is not applied to police statements  Admission by Experts: this doesn t count because they are supposed to be independent y Admission by a Co-Conspirator: A conspirator s statement made during and in furtherance of the conspiracy is admissible as substantive evidence if offered against another conspirator y The government must just prove the conspiracy by a preponderance of the evidence standard.

you can admit a statement to a physician that a car hit you but not that a car ran a read light then hit you. Ex. Rationale: the spontaneity of the statement and it being contemporaneous with the feeling and the fact that a mental state is completely subjective so really it s the only way you would know. design. Types of Statements:1) statements of present state of mind offered to prove that state of mind 2) statements of present state of mind offered to prove future conduct. this is where if you re statements of present state of mind are also admissible to prove that the declarant subsequently acted in accordance with the state of mind. while the federal rule say it can apply to a third person. Hillman was the fake death case where the guy wrote the letters saying he was leaving with the guy that was supposedly dead/probably killed declarant.Subject Matter Requirement: the statement must be describing or explaining the event or condition. pain. past or present symptoms. though corroborating evidence may be needed. someone was sexually attacked. it is still admissible. just that it has to be while the declarant is still under the stress of the event y Subject Matter Requirement: The statement must relate to the startling event. a bystander. y Present Mental Condition There is a hearsay exception for present physical or mental condition including statement of intent. Federal: y In federal you can admit child telling physician if a person in the household abused them but this has been rejected by Florida y The Florida rule limits the admittance of evidence to the declarant being the person seeking the medical treatment or a legal family member. but not they were assaulted by blank (identifying the person). o The exception to this child abuse cases that are done by family members. y Time Requirement: There is no time limit. *Be careful here though because when you are stating another person s future intentions with your present state of mind normally it is less reliable etc. Florida v. Also they are usually not offered for the truth of the statement but just the feeling surrounding it. Keep in mind though it also includes purposes of diagnosis so even if the symptoms are for the purpose of an expert to testify at trial. To Prove Future Conduct: Hillmon Doctrine. Rationale: people want to be treated correctly. ex. friend etc. This provides spontaneity and more reliability than what the same statement would make in court (because it would be a past condition). emotion. Rule Requires 1) a startling event 2)a statement relating to that event 3) made by a declarant with firsthand knowledge and 4) made while the declarant was under the stress of the excitement caused by the event. plan. y Statements of Fault: You can admit what happened to you but not the fault. motive. Present Physical Condition: The statement must be made contemporaneously with the physical condition. Ex. y Statements to nonphysicians: statements don t have to be made to physician. sensations and the inception or general character of the cause or external source if reasonably pertinent to diagnosis or treatment. if a statement goes beyond description or explanations it signifies that the declarant had sufficient time to think about the event. not a third party. Federal Florida says that any admittance only applies to the declarant s future conduct. and 3) statements reflecting belief about past events. my back hurts (it hurts now) not it hurt yesterday. This doesn t apply to past conduct (That would defeat hearsay purpose) with the exception of wills. a family member. they can be hospital attendants even family members Florida v. The federal rule says it can be anyone providing the information for the medical treatment. Excited Utterances: It is based on the declarant s lack of capacity to fabricate. because if they are talking about something else then the shock has worn off. Medical Treatment-Diagnosis If for the purpose of medical diagnosis or treatment including a description of medical history. . ore mental feeling. children aren t going to return to the abuse etc.

association. if they don t then the recorder must testify to its truthfulness. The person with knowledge doesn t have to be produced or identified at trial and the custodian doesn t have to have first hand knowledge.and calling of every kind . This also incorporates double hearsay component of telling the recorder the event. Public Records . occupation . If the person admitting the info establishes a foundation then the burden shift to the other party to show it is not trustworthy. Federal: y Under Florida if it the record is a diagnosis or opinion. or from information transmitted by. a person with knowledge 4)which was kept in the course of a regularly conducted business activity 5) if it was the regular practice to make such a record 6)as shown by the testimony of the custodian or other qualified witness 7)unless the source of information or the method or circumstances or preparation indicate a lack of trustworthiness. y Preparation Requirement: The record must have been created by the witness or if they make a statement to a third person.Recorded Recollection This is when for ex. this bystander had no duty to transmit the info to the police officer. Business: any institution. you see a fleeing car and write down the license plate number then months later at trial can t remember the number but do know you wrote it down properly. police officer s record of what a bystander told him. is satisfactory evidence of its nonexistence. the person who made the record must be qualified to testify at trial. reports. the failure to mention something in business records which would normally be mentioned. y Trustworthiness Clause: This is when there is a possible lack of trustworthiness because the record was probably made with an eye toward litigation. y Memory Lapse Requirement: recollection of the matter recorded must be insufficient for the witness to testify fully and accurately at trial. the federal rules are silent on this issue. y Business Duty Requirement: If the supplier is o tuner a duty to transmit the information the record is inadmissible. Federal: y In Florida the adopted part doesn t apply. or data compilations in any form qualify. it only counts if it was made by the witness. Rule requires a witness: 1)made or adopted a record 3)based on firsthand knowledge 3)when the matter recorded was fresh in the witness s memory and 4) the record correctly reflected the witness knowledge and 5) the witness at trial must have insufficient recollection to testify fully and accurately y Time Requirement: Record must be prepared at or near the time of the event or when it is fresh in the witness s memory. to ensure the reliability of the records. y Can t let it in as substantive evidence unless offered by an adverse party. This is actually mainly used to prevent abuse of the rule where people would create records with litigation in mind. o Sometimes an absence of business records is important. y Foundation Requirements: I the custodian or other qualified witness testifies this will make the business records self-authenticating (they pretty much sign a certificate saying it has all of the requirements). records. Computer records are routinely admitted y Time Requirement: Record must have been made at or near the time of the event. event or condition 2) made at or near that time 3)by. Business Records 1)A record of an act. profession. this will be admitted under this exception. About the matter recorded. Florida v. Ex. Florida v. y First Hand Knowledge: The record must have been made 1) by a person with knowledge of the matter recorded or 2) from information transmitted by a person with such knowledge. and that person creates the record the witness has to verify it as accurate or adopt it. Sometimes it will still be admissible though if someone has the duty to verify the record. whether or not it is conducted for profit Records: Memoranda. y Accuracy Requirement:must reflect the witness s knowledge correctly.

These are allowed because they are normally done by nonpartisan experts who are just trying to get the facts. refuses to testify. o Here it is usually required that the testimony and the attendance of the witness is unavailable. but it doesn t apply to depositions . not the unavailability of the declarant. y Ancient Documents: Statements in documents in existence 20 years or more with authenticity of which is established. Types of Public Records:1)those setting forth the activities of the officer or agency 2) those recording matters observed pursuant to a legal duty and 3) investigative reports. We are concerned about the unavailability of the declarant s testimony. or suffers a lack of memory. like fingerprints. the burden of establishing unavailability is on the party offering the evidence. y If there is death or a current physical or mental illness than the witness is unavailable (be careful about confrontation clause stricter unavailability standards) y Unable to Procure Testimony: if the proponent is unable to procure the declarant s attendance or the whereabouts are unknown or the declarant is beyond subpoena power then they are unavailable. so easy to admit. y In terms of the lack of memory excuse. y Diff. o There is debate if you can get police records in under the business records exception other than public records. In criminal cases it is only allowed on impeachment. y y Hearsay Exceptions with an Unavailable Declarant: Unavailability: There are 5 ways a witness can be unavailable: 1)Claim of Privilege 2)Refusal to Testify 3)Lack of Memory 4) Death or Illness 5) Unable to Procure Testimony. This is important because if the declarant is in court but claims privilege. y Police Records: Most records are not admitted unless there is a nonadversarial quality to the records and it is just facts being written down. not merely credibility. o Treatises can only be used substantively onlywhen an expert is on the stand o Treatises can be read to the jury but not admitted as an exhibit so it s not misused in the jury room. and they do not always need to be open to public. pictures of stolen car license plates etc. this only applies to criminal judgments. If there is an objection. Activities of the agency: same type of knowledge requirement as business records Matters Observed Per Legal Duty: This is matters observed pursuant to a duty imposed by law as to which matters there was a duty to report. Federal v. the judge determines if this is true or not. Most public records are self-authenticating and don t need a witness. Florida: y Florida while exempting most police records allows results from alcohol or controlled substance tests. The exception to this is when wrongdoing is the reason for their unavailability. the courts that allow it say the declarant (normally police officer) must testify and be subject to cross examination y Investigative Reports: This is stuff like FAA reports for plane crashes and Fire Marshal s reports calling something arson. excluding criminal case matters observed by police officers and other law enforcement personnel. then their testimony is unavailable. The limitations are: 1) public records that are otherwise admissible may be excluded if the sources of information or other circumstances indicate a lack of trustworthiness and 2) certain types of police records are inadmissible in criminal cases. not civil judgments. just governmental. the public record doesn t need to be regular or routine. A plea of no contest or of the equivalent is inadmissible. y Judgment of Previous Convictions is also Admissible.This term refers to government records. y Learned Treatises: Admissible for substantive evidence. Authoritativeness can be established by another expert or by judicial notice. Between Public Records and Business Records: Public records doesn t need the record to be prepared at or near the time of the event recorded.

not actual examination. y Similar Motive Requirement: a similar motive is determined by these factors: 1) the type of proceeding in which the testimony was give 2) trial strategy 3) the potential penalties or financial stakes and 4) the number of issues and the parties. o Grand Jury Testimony is not admitted under this rule. cross examination is not required. not discovery depositions are admissible under this exception. Federal: y In Florida only regular depositions. but most cases so far say it shouldn t be because the prosecution has a much lower burden of proof and there isn t the same motive in grand jury hearings. so their attorney had the opportunity to cross-examine them. Ex. o Florida v. as long as they have the same motives to develop the testimony about the same material facts and in the final analysis then it can still be admitted. these can be admitted but must have some corroborating evidence because we don t want people confessing to get others off and disappearing then coming back and refuting the confession and then we can get the real person because of double jeopardy. but not if the dispute is that they owe $1000. y Type of Proceeding: another hearing. though Congress calls for a legal relationship between the two parties to exist. Be careful though because for example they could say I owe $500 which would seem against their interest. Subject Matter Requirement: Only statements concerning the cause or circumstances of what the declarant believed to be his or her impending death are admissible. It must be offered against the same party pretty much. deposition. ie the object of hatred. this is judged by a reasonable person standard. Type of Case: Dying declarations are only allowed in homicide cases (for criminal) and admissible in civil cases. y This clause also covers against social interest. so only allowed if witness is unavailable. y Opportunity to Examine: the rule requires only the opportunity to examine. Unavailability: the person doesn t have to actually die. it is just if the person thinks they are about to die. Former Testimony:Former testimony is allowed only if the witness is unavailable because even though they are under oath and subject to cross etc. Statements Against Interest: Statements against the declarant s interest are admitted because the idea is you don t want to incriminate yourself or make yourself subject to civil liability unless it is true. y Against Whom Requirement: this just means that the party that the testimony was offered against in the first case must be a party in the current case. Federal: y The federal rule can only be invoked in a prosecution for homicide or in a civil action or proceeding while Florida allows it in any type of case. y Predecessor in Interest: if the party that the testimony was against is different. y The belief that death was imminent is required. Against Penal Interest: this is if someone confesses to a crime someone is on trial for then disappears. Dying Declarations: We let in dying declarations because 1) necessity and 2) a circumstantial guarantee of trustworthiness. Florida v.(depends on the state) Against Interest Requirement: must focus on the declarant s situation and motives at the time the statement was made. Bob shot me. Some say it can be admitted against the prosecution. any other reason that they are unavailable is fine (ex. 2) the declarant s motive in . not bob shot me and cheated on that test in 7th grade.. ridicule or disgrace. The opportunity for direct or redirect: examination suffices. all hope of recovery must be gone. preliminary hearing testimony (in criminal cases). the jury can t observe them which is critical. administrative proceeding and sometimes testimony as a motion to suppress. prior trial. they are in France and refuse to return). y When is corroboration satisfied? 1)whether the declarant had at the time of making the statement pled guilty or was still exposed to prosecution for making the statement.Other reasonable means means that you should try other ways to obtain the witness for example paying for travel expenses etc.

This allows a judge to ad hoc admit an item if it is deemed reliable and trustworthy. They are under oath. First we must divide the statements into either testimonial or nontestimonial. The Florida courts have held that this determination is limited to an assessment o the declarant s trustworthiness not the trustworthiness of the witness that is testifying to what the declarant allegedly said. are subject to cross examination and the jury can observe their demeanor. Right to Cross Examination: this is the greatest legal engine invented for the discovery of the truth. The confrontation clause guarantees an opportunity for effective cross examination not cross examination is effective. so if a police man is undercover is all the information they gather testimonial? I think it s the objective witness but different things I read seam to be saying different things. . doesn t violate the confrontation clause. if the statement is in any way self serving and not self-incriminating then it is not admissible. it cannot be used unless corroborating evidence shows the trustworthiness of the statement. But the courts often reject this. Before exceptions are admissible the trial judge must make 3 determinations: 1) the statement must be offered as evidence of a material fact 2) the statement must be more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts and 3) the federal purposes of the Federal Rules and the interest of justice must be served by admittance. statements can get in. if nontestimonial states have flexibility to develop their own hearsay law. Florida v.making the statement and whether there was a reason for the declarant to lie. Unavailable Declarant s: So when we are determining if something is testimonial do we look at the witness s point of view or the police s. Right of Confrontation This is the 6th amendment confrontation clause that says in all criminal prosecutions the accused shall enjoy the right to be confronted with the witnesses against him. you forfeit your confrontation right and therefore their unavailability is waived and any prior testimony. Residual Exception: This is the kind of catch-all exception. Forfeiture by Wrongdoing: If you kill or scare a witness for the purpose of preventing them from testifying against you. Confrontation and Hearsay Available Declarant: Cross Examination at Trial: Normally the opportunity to cross examine the hearsay declarant at trial usually satisfied the Confrontation Clause. Think of the Dallas County insurance case. Collateral Statements: If you throw yourself and someone else under the bus. Grand Jury Testimony: grand jury testimony is often admitted under this rule because it has reliability despite its lack of cross-examination. y y Near Miss Issue: the statement cannot be specifically covered by another hearsay exception. so lack of memory etc. and 6) the nature and strength of independent evidence relevant to the conduct in question. the federal courts haven t decided on this issue. Scalia said circumstances objectively indicate. this if for reliable hearsay that doesn t fit into another exception. Federal: When the statement may expose the declarant to criminal liability is offered to exculpate (clear/free from blame) the accused. The confrontation clause gives criminal defendants a right to cross examine witnesses but this has it s limitations. 3) whether the declarant repeated the statement and did so consistently 4) the party or parties to whom the statement was made 5) the relationship of the declarant with the accused.

y This includes at a minimum prior testimony at a preliminary hearing. y You also can t just write delete in a nonconfessing defendant s name because the jury can infer who the other defendant is talking about at a joint trial. Lay Witnesses There are two rules relating to lay witnesses 1)firsthand knowledge and 2) the opinion rule. Firsthand Knowledge: the witness must have personal knowledge about the subject which the witness testifies.If the statement is testimonial. where the people helping the victim trying to help with an ongoing emergency or are they trying to gain information for future prosecution. the more important it is to supply the facts. When are 911 or police questioning at the scene testimonial? We look at mainly the intent of the police officers. y A witness s use of common terms that have a legal meaning should be avoided. rape. or at a former trial and to police interrogations. even if the jury is instructed to consider that confession only against the codefendant. There is an assist the jury standard. and statements that an objective witness would reasonable believe the statement would be available for use at a later trial. insanity. Burton Doctrine: A defendant is deprived of his rights under the Confrontation Clause when his codefendant s incriminating confession is introduced at their joint trial. and 3) not based on scientific technical or other specialized knowledge. not opinion. or it would be reasonable for the witness to think that their statements might be used in litigation. the less need for an opinion y The importance to which the opinion relates. If a statement is testimonial then the 6th amendment demands the 1) unavailability and 2) a prior opportunity for cross-examination. does this expert assist the jury in their determination? Subject Matter Question. y Where a nontestifying codefendant s confession incriminating the defendant is not directly admissible against the defendant the Confrontation Clause bars its admission at their joint trial. y Keep in mind here to be careful about domestic abuse cases because if the witness has been intimidated then the confrontation clause may be forfeited and their testimony will be admitted. but if we do we ask if it is helpful in determining the facts. o Can t really let in hearsay opinions or out of court opinion statements. before a grand jury. is Expert Needed: . ex. even with jury instructions and even If the defendant s own confession is admitted against him. Opinion Rule: We want lay people to provide facts. It is there knowledge at the time of the trial. Rule 701 provides that the opinion of a nonexpert is admissible if: 1) rationally based on the perception of the witness (firsthand knowledge) 2) helpful to a clear understanding of the witness testimony or the determination of a fact in issue. y Establishing Firsthand Knowledge: usually this is done by the witness s own testimony. y The more articulate a witness. not necessarily at the time of the event that is determinative. so the person could have gained knowledge after the event. y Prima Facie Standard of Proof: to establish first hand knowledge there must just be sufficient evidence to support a possible finding of first hand knowledge by the jury. Overlap between Lay & Expert: both may testify as to handwriting and insanity. Expert Testimony: Must determine if this is an issue where an expert should be testifying and then is this specific expert qualified to testify on this subject. instances where opinion is necessary. then it is more likely to be admissible.

but make sure they aren t testifying beyond their qualifications i. Child Sex Abuse Cases: Experts are often needed here to explain the child s behavior after the incident and why they may recant their statements or take a long time to explain what happened to them.Normally police experts are allowed to testify on how the crimes are normally carried out etc. 3 Different Approaches: 1) the Frye general acceptance test 2) a relevancy approach and 3) the SC s reliability approach set forth in Daubert Frye General Acceptance Test (This is followed by Florida!!):The scientific technique must have gained general acceptance in the particular field in which it belongs. Rape Trauma Syndrome: This is again to explain how there was a lack of consent and to explain post incident conduct. y Many Criticisms: Even accepted tests can be flawed. experience counts too (think drug expert).e. polygraph technicians accept the validity of a polygraph test but scientist do not). drug trafficking. Court Appointed Experts: Some give more weight to a court appointed expert. including but not limited to expert testimony. This is why most states don t still apply it though Florida does. and publication is refereed scientific journals. who has to accept it (ex. 2) Peer Review & Publication: though not dispositive has the method been published and subject to peer review? It s a safeguard. past that they are given when there is proof shown that they are needed up to $1000. Relevancy Approach: This pretty much says if you qualify someone as an expert then you are applying there techniques to be qualified. fraud. This is rejected by SC and only Wisconsin uses it. or education The person doesn t have to be classically trained or educated. all of this may be hard for the lay person to know how it works. what relevant evidence is being overlooked while waiting for acceptance. a cop can take a breathalyzer but not analyze the results as well. Evidentiary Foundation: the validity of a particular scientific technique may be established by introducing evidence. Daubert Reliability Test:SC rejected Frye test. Depends on the jurisdiction Hypnotic Evidence: Most hypnotic statements are not allowed because it isn t really an accepted science. experience. So the focus is really on the methodology not the conclusion they bring. The new ones are things like battered wife syndrome. counterfeiting. Then you look at the probative value of the evidence as the qualified expert testifies it to be. gang crimes. skill. but now it is up to the discretion of the judge. Very lax standard. the new test is the judge has a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid an of whether that reasoning or methodology properly can be applied to the facts in issue. Polygraph Evidence: Before they didn t allow it per se. Practical experience counts as well. In a capital murder case experts are given upon request. rape trauma. 3) Error Rate: What is the potential rate of error and how is this rate determined? 4) Standards: are there standards for controlling the techniques in operation? 5) General Acceptance: widespread acceptance is an important factor 6) Other Factors: i) was the underlying research conducted independently of litigation ii)whether the expert unjustifiably extrapolated from an accepted premise to an unfounded conclusion iii) whether the expert has adequately accounted for obvious alternative explanations iv) whether the expert was as careful as she would be in her professional work outside of paid litigation and v) whether the field of expertise claimed by the expert is known to reach reliable results. not as an excuse for the action. and DNA evidence. for ex. The trend is more in allowing experts testify on its unreliability but depends on the jurisdiction. but that is not deserved. . some let eye witness experts come in and say eye witness testimony while others don t allow it and say the jury should know and determine this. Eye Witness Testimony: It depends on the jurisdiction. Battered Woman Syndrome: Becoming more popular for experts to testify on this syndrome but it is more to explain why they acted. training. or it will be admitted and the jury can determine if it is reliable. The Court said to determine the trial court should consider 5 factors: 1) Testability: Can or has the scientific theory or technique be/been tested must be capable of empirical test. Qualification Requirement:An witness can be qualified as an expert by specialized knowledge.

Proof by Chain of Custody: a common authentication technique. Opinion Based on Nonrecord Facts:Reasonable Reliance Requirement: This is when the expert bases an opinion on information given to him/her outside of the record.Proper identification demands that the proponent produce sufficient evidence that the jury could reasonably find by preponderance of the evidence that eh exhibit is what the proponent claims. to make their opinion. it just has to be what the proponent says it is Proof by a Witness with Knowledge: a witness with personal knowledge can authenticate a document. or this person is insane or this person was raped. Opinion Based on Admitted Evidence (Record Fats): After evidence has been admitted into the record the expert can base an opinion off of that evidence that was admitted into the record. y A nonexpert opinion on handwriting is fine to authenticate but the offering party must establish that the witness is sufficiently familiar with the handwriting to offer a valid opinion concerning its authenticity. Florida doesn t allow any normally inadmissible evidence through an expert. in other words a cop who saw a defendant sign a confession can authenticate that it was the defendant that signed the confession. The chain of custody is normally enough to support a finding that the item in question is the same item and is in substantially the same condition. must have an expert! y Comparison by a Trier of Fact: if there are two known specimens of a writing either the trier of fact or an expert witness can authenticate the documents. Federal: y Federal says that otherwise inadmissible facts or data underlying an opinion may be disclosed to the jury by the proponent of the opinion as a means of helping the jury to evaluate the experts opinion. it doesn t violate self incrimination. y To determine reasonableness: Judges can make an independent assessment of the reasonableness of the expert s reliance (restrictive). y The document must not be accurate. it is all based on conditional relevance. The other. is to limit the judge s role to determining what experts in the field consider reasonable. But make sure the specimen you are comparing to is authentic. but it has to be reliable facts. o This is NOT the case with Florida law. but the court determines if the probative value in assisting the jury substantially outweighs their prejudicial effect (even stricter than 403). A perfect chain of custody requires testimony by each person who had custody of the item from the moment it was seized from the defendant until its delivery to the courtroom. y You can compel a defendant to give a handwriting sample. This is done through a hypothetical question. But you can t acquire familiarity for the purpose of litigation. Federal: y Florida follows the Frye test and federal follows the Daubert Test y Federal does not allow the expert to determine if the defendant had the mental capacity to commit the crime while Florida does allow this determination by experts that are testifying. they don t need to be the author. it can have errors in information. the absence of one or more of the exhibit s custodians will not always-or even usually-keep out the evidence. Bases of Expert Testimony: Opinion Based on Personal Knowledge: this is for example the doctor that performed the surgery can see that it was a compound fracture. y It is a prima facie standard of proof. more liberal approach. for example if these are the facts what would be your opinion but you must include all of the material facts. . Florida v. Authentication: In General: the requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims. o The chain of custody need not be perfect but just good enough to support a finding that he matter in question is what the proponent claims. like this person is guilty or responsible.Ultimate Issue: Courts don t like experts to make an opinion about the ultimate legal issue. for example a toxicology report. Florida v.

Ex. y The Florida law just requires the signature of the public officer. * Certified Copies of Public Records: copies of official records. which may be signed by US diplomatic personnel serving in the foreign country or by diplomatic personnel of the foreign country assigned or accredited to the US. rather the contents of the conversation.Distinctive Characteristics: the appearance contents. this is a not commonly used method. or the circumstances of the call must render it improbable that the caller could be anyone other than the person the proponent claims to be. The mere fact that a caller identifies themselves as the defendant is not enough. and security of the equipment used to produce the photographic product. The witness who thus lays the foundation need not be the photographer nor need the witness know anything of the time or conditions of the taking. expert witness) is necessary. taken in conjunction with circumstances may satisfy the authentication requirement. Ancient Documents: Authentication is accomplished by showing that the document A)is in such condition as to create no suspicion concerning its authenticity B) was in a place where it.think x-rays. y Evidence that t call was made to the number the telephone company assigned at the time to a particular person can satisfy the authentication requirement if the circumstances. would likely be and C) has been in existence 20 years or more at the time it is offered. and verified by such a witness on personal knowledge as a correct representation of these facts. internal patterns or other distinctive characteristics. Reply Rule: If you send a letter and it is replied back addressing the contents of your letter then the reply letter is authenticated. Photographs: The prime condition on admissibility is that the photograph be identified by a witness as a portrayal of certain facts relevant to the issue. It is the facts represented. show the person answering to be the one called. Domestic Public Documents without a Seal: Self Authenticating if purportedly signed by an official if accompanied by an authentication certificate: 1)signed under seal by a public officer having a seal and 2) certifying that the first officer has the official capacity claimed and that the signature is genuine. the scene or object that he must know about and when this knowledge is shown he can say whether the photograph correctly portrays these facts. official reports. surveillance cameras Self-Authenticating Documents Some documents are viewed as self-authenticating and are presumed to be genuine so no extrinsic proof of authenticity (ex. if authentic. authorized by the laws of a foreign country to make the execution or attestation a foreign official. 1) the copy must be certified as correct by the custodian or other authorized person 2) the copy must be accompanied by an authentication certificate complying with the rules . and recorded documents are self authenticating under two conditions. testing. Silent Witness Photographs: may be admitted when the trial judge determines it to be reliable after considering the following: 1) evidence establishing the time and date of the photographic evidence 2) any evidence of editing or tempering 3) the operating condition and capability of the equipment producing the photographic evidence as it relates to the accuracy and reliability of the photographic product 4) the procedure employed as it relates to the preparation. Foreign Public Documents: self authenticating under two conditions: 1) the document must purport to have been executed or attested by a person. including selfidentification. the characteristics of the speech itself. operation. Normally certified copies are used though and many public records are self authenticating. including the security of the product itself 5) testimony identifying the relevant participants depicted in the photographic evidence. Public Records and Reports: These may be authenticated by showing they were retrieved from the correct place of custody. computer generated documents. Process or System (computer generated documents): evidence describing a process or system used to produce an accurate result suffices to authenticate evidence derived from that process or system eg. 2) It must be accompanied by a final certificate of authentication. For good cause you can waive the final certification. There must be distinctive characteristics and contemplates that a caller may be identified because only he could utter the speech under the circumstances. Domestic Public Documents with a Seal: A document bearing 1) the seal of a governmental entity or agency and 2) signature purporting to be an attestation or execution is self authenticating. in an official capacity. not that they too need a seal. substance. Voice Identification: Several methods exist for authenticating telephone conversations or voices.

in them. This is because public records don t leave their place of custody. then those copies were used as originals so they count as originals in court. the best evidence rule requires the original not a copy to be submitted to the court unless there is an exception. I killed him. y Ought in fairness Standard: a second document or recording may be required to 1)explain the admitted portion 2) place the admitted portion in context 3) avoid misleading the trier of fact 4) insure a fair and impartial understanding. Ex. deeds etc. act of Congress. You can t just admit I killed him. Only applies to writing. Newspaper and Periodicals: self-authenticating including ads etc. y The Florida law has this requirement for both domestic and foreign business records (doesn t differentiate). y This does not apply to oral statements unless they are recorded.) Acknowledged Documents: documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments are self authenticating. y This is stuff like wills. Official Publications: Books pamphlets or other publications purporting to be issued by pubic authorities are self authenticating. This happens with marriage. it is an independent event. ex. contracts. not heard it orally. or prescribed by the SC. recordings or photographs (and only when proving their contents). Trade Inscription & the Like: This is stuff like trademarks and brands are self-authenticating (don t want to do trademark infringement so most people don t want to forge these. The Best Evidence Rule In regard to writing. Commercial Paper and Related Documents: ex. Exceptions: . document. if someone copies an original receipt to commit fraud. *Certified Domestic Business Records: An original or duplicate is admissible under the hearsay exception for business records is self authenticating if accompanied by a certification prepared by its custodian or other qualified person.regarding those documents. the only time that is an issue I stuff like copyright cases. invasion of privacy cases etc. Independent Events: Even if a confession is recorded or reduced to writing this rule doesn t apply because you are not trying to prove the recording. y Written Events v. Proving Contents: This typically occurs 1) the event to proved is a written transaction or 2) aparty chooses a written method of proof. o With photographs normally original is not needed because it s not trying to prove the content of the photo. UCC Presumption Created by Law: Any signature. o If the police chose for the person to write their confession then the original would be needed and only those who read the confession. conversations etc. or other matter declared by Congress be presumptively genuine is self authenticating. must be signed in a way that would subject the signer to criminal penalty if false. The Rule of Completeness: This means you have to give the complete statement so things aren t taken out of context. but I did it in self defense. o Pay attention to the intention of the person using the evidence. could testify regarding the contents of that confession. The certification must state that the record: 1) Was made at or near the time of the event recorded 2) Based on firsthand knowledge (or from information transmitted by such a person) 3) Was kept in the course of the regularly conducted activity 4) Was made as a regular practice Certified Foreign Business Records: authenticated if accompanied by a written certification by its custodian or other qualified witness. you are trying to prove the oral confession that was captured by the recording.

summary or calculation (can t be verbal statements). Collateral Matters: These are documents not closely related to a controlling issue. you don t have to produce an original document every time you reference it. Thus duplicates are allowed unless 1) a genuine question of the authenticity of the original is raised or 2) the fairness requires production of the original. Requirements: i) Voluminous. Or 2) if it is only a partial copy where the most critical part of the original is not completely reproduced in the duplicate. must be qualified) Opponent Admission: if the party against whom the writings is offered admits the contents the original does not need to be produced . y Handwritten copies aren t duplicates y Exception to this exception: Duplicates are not allowed when 1) the authenticity of the original is in question for examples it s barely legible etc. iii) Production of Originals-if judge orders at his discretion. ii) right of inspection (of the original). Original Unobtainable: if it is out of the reach of a subpoena Original is in Opponent s Possession: If the opponent has the evidence and won t give it up for evidence after they have notice of it s need then secondary evidence is OK. The summary must be distinguished from the originals. Public Records: These can have certified copies as long as authenticated. Summaries: if there are too many records it can be presented in the form of a chart. iv) Admissibility of Underlying Documents (originals can t be inadmissible evidence). Original Lost or Destroyed: As long as the offering party acts in good faith.v) accuracy requirement vi)experts (if expert needed. because we don t want to remove them.Xerox Rule: the original is not needed because of modern technology has made reliability of the secondary is less of an issue. because you want to be able to judge that original then.

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