EVIDENCE OUTLINE I. CHAPTER ONE: PHILOSOPHY AND HISTORY OF AMERICAN EVIDENCE LAW a.

Evidence rules developed out of: i. Adversary system- trial, hearing in court, etc. ii. Public perception that disputes be solved fairly b. Steps: i. Determine cause of action- pleading function ii. Exchange information between parties- discovery function iii. Determine what sort of information the jury will get to consider in coming to a good decision c. Think of FRE as filter of information i. Exclusionary rule- cannot violate 4th, 5th, 6th Amendment ii. Violation of privilege- will be excluded iii. Juries can only consider evidence for particularized purposed CHAPTER TWO: EVIDENCE TYPES, SOURCES, & SUBSTITUTES a. Evidence: testimony, writings, material objects, or other things presented to the senses to prove the existence or non-existence of a fact i. Can use objects as demonstrative or to organize other evidence- i.e. charts, recreations, computer generated images, etc. b. Physical evidence must be authenticated by witnesss oral testimony c. Statutory Interpretation i. FRE drafted based on vast collection of common law ii. SCOTUS leans towards a textualist view of the FRE- view everything this way d. Three Categories of Evidence i. Rules governing content of evidence 1. Issues of relevance, etc. ii. Rules governing witnesses 1. Who can be a witness, types of witnesses, lay witness v. expert, etc. iii. Substitutes for evidence 1. Facts that arise outside FRE e. What methods used to establish facts without testimony or exhibits? i. Stipulation 1. Agreement between parties not to contest the existence of a fact 2. Ex: stipulate that piece of evidence has not been tampered with, etc. 3. Cons: cant expand on anything that was already stipulated to 4. Dont stipulate if its a point you can make hay on ii. Judicial Admission 1. Lawyer makes concession in pleadings/brief thats binding 2. Mechanism a. Before one trial, one party can formally request that opposing party admit a fact

II.

III.

b. Deemed admitted unless other party files an answer admitting, denying, or saying whether they cant truthfully admit/deny 3. Common in commercial litigation, ex: party is a Delaware Corp. 4. If party makes statement against interest under oath, its binding iii. Judicial Notice 1. FRE 201 only applies to adjudicative facts, not legislative 2. Requirements for adjudicated facts to be judicially noticed: a. Indisputable (reasonable person would not doubt fact) i. Ex: KKK not kind to minorities b. Generally known within trial courts territorial jx. c. Can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned 3. Taking notice a. Court may take judicial notice on its own or b. Must take if party requests and court is supplied with necessary information 4. Timing- any time during proceedings 5. Instructing the Jury a. Civil cases- If you find X, you must find Y b. Criminal- If you find X, you may find Y, but are not required to do so iv. Difference between Adjudicative and Legislative Facts 1. Adjudicative: fact concerning immediate parties to the lawsuit a. Who did what, where, how, etc.- actions along a timeline b. Usually established through evidence 2. Legislative: where a court develops law or policy a. Court uses evidence to determine it b. Usually general, dont necessarily concern immediate parties 3. Ex: Someone has download porn. a. Bringing up what modems do on computers- legislative b. Court wants to take notice that this particular computer had a modem- adjudicative CHAPTER THREE: THE CHRONOLOGY OF A TRIAL a. Pretrial motions/motions in limine i. Discovery and admissibility issues, exclusion of witnesses, what the court will take notice of, limit inappropriate defenses ii. JURIES LOVE THE JUDGE- never fight with judge in front of the jury b. Jury selection i. Federal court- submit questions to ask; State court- attorneys get to ask questions themselves to eliminate those with bias ii. Legal indoctrination

IV.

1. How would you vote if you had to rule today? response should be not guilty iii. Chemistry interactions- if not reacting to you well, may remove for cause or use peremptory strike c. Opening Statement i. Preview your care and admissible evidence to jury d. Prosecution/Ps Case-in-Chief i. Jeopardy attaches once jury is sworn in criminal case ii. First opportunity to present evidence, discretion as to which witnesses they will call, may even be able to call adverse parties iii. Cant call D in a criminal case- 5th Amd. e. Cross-examination i. Not always necessary to cross if you can leave what someone said on the stand and say it doesnt affect your theory of the case f. Defense can make a motion for nonsuit in civil case, directed verdict (acquittal) in criminal case i. P or prosecution has not met burden g. Defendants case-in-chief i. Can either reserve opening statement until P is done or do it at the same time h. In civil case, may make motion for directed verdict i. Criminal case, prosecution must prove every element beyond a reasonable doubt i. Ps rebuttal i. Can only rebut new theories presented in Ds case-in-chief j. Ds surrebuttal i. Court has discretion to cut these off k. In some cases, at this point judge can call his own witnesses- rarely happens l. Closing argument or summation i. Evidence closed at this point m. Judges Instruction or Charge to the jury i. Admissibility, corroboration instructions, cautionary instructions, curative, burden of proof, sufficiency instructions CHAPTER FOUR: EXAMINATION OF A WITNESS a. Sequestration or Exclusion of a Witness i. FRE 615: At a partys request, the court must order witnesses excluded so that they cannot hear other witnesses testimony. Or the court may do so on its own. But this rule does not authorize excluding: 1. Party who is a natural person 2. Officer or employee of a party that is not a natural person, after being designated as a representative by its atty. 3. A person whose presence a party shows to be essential to presenting the partys claim or defense, or

4. Person authorized by statute to be present ii. If witness violates this order, can be disqualified as a witness and court can determine appropriate sanction. Could also lead to mistrial 1. Was violation inadvertent? Willful? How important is that witnesss testimony? b. Direct, Cross, Redirect, and Recross Examination i. Questions by trial judge 1. Judge does not need to be a mere umpire, can question actively to clarify testimony 2. Hickman- judge cannot interject unnecessarily or excessively, cannot rehabilitate the witness 3. Pickar- Judge can ask clarifying questions, sometimes you skip small but important details when so focused on what you need to prove ii. Questions by jurors 1. Only way this is permissible is if juror submits questions in writing, approved by both parties and judge 2. Never let a juror speak from jury box c. Scope of Examination i. Direct ii. Cross 1. Under Federal Rules, have to be matters (historical merits of the case) raised on direct PLUS a. Character of witness 2. Judge can restrict cross a. Topic may be within proper scope, but court can say horse has been beaten enough, move on b. If witness/judge restricts extent of cross, may be able to strike part or all of direct 3. If witness pleads 5th, or claims to be ill/incapacitated after direct and before cross, may also be able to strike part/all of direct a. If witness dies before cross, left to courts discretion 4. WISCONSIN uses British rule- cross can cover anything, court can limit if they think you are getting into something irrelevant iii. Redirect 1. Cant be matters raised on direct iv. Recross d. Rule of Completeness i. Remainder of or Related Writings or Recorded Statements 1. FRE 106: If a party introduces all of part of a writing or recorded statement, an adverse party may require the introduction, at that time, or any other part- or any other writing or recorded statement- that in fairness ought to be considered at the same time

V.

2. Ex: one party introduces one paragraph out of a letter containing four paragraphs a. Opposing party can get in other paragraphs as evidence 3. What if its not the same letter? a. Has to be related information and has to be considered contemporaneously with it b. Ex: A has deed to property from 2002 say he owns Sensenbrenner, B has deed saying he has clear title to Sensenbrenner dated 2009--- both get in 4. Common law- goes for oral, written, recorded, sign language, etc.- just have to be related and dont have to satisfy contemporaneous requirement 5. Under FRE, cant elicit oral testimony to contradict writing or recorded statement a. Only way to get it in is through common law rule of completeness or call as a witness during case-in-chief e. Form of the Question i. FRE 611: Mode and Order of Examining Witnesses and Presenting Evidence ii. Trial court has much more discretion under 611(a) as to the form of the question iii. Court can admit a question that calls for a narrative response iv. Can only ask one question at a time- no compound questions v. Leading questions- cant ask a question that suggests an answer f. Questioning the Witness i. Usually have to ask yes or no questions- if you can get away with witness answering in a narrative form, thats good, but opens the door for hearsay and objections ii. Argumentative questions 1. Not designed to illicit information or evidence 2. Designed to intimidate a witness and make a statement 3. Big issue is the tone of the question a. Difficulty- Appellate Court cant see or hear tone and mannerisms, will be very deferential to trial court iii. Questions that have been asked and answered 1. Usually okay for defense counsel, prosecution has burden of proving every element, allowed to test and see if person is wavering on their story. At a certain point, just object and say asked and answered CHAPTER FIVE: ROLES OF JUDGE, JURY, AND ATTORNEYS a. Proponents of Evidence i. Pretrial 1. Attorneys are primary actors and movers regarding admissibility of evidence

2. Can make motions in limine to exclude evidence, get an advance ruling on obtaining evidence, etc. 3. Pretrial motions are really importantthis is where you win as a litigator a. If you can limit the evidence that gets in, can push other side to settle 4. Court has discretion on motions in limine that have non-constitutional basis a. Motions to suppress: Const. basis, necessary to have meetings before trial ii. During Trial 1. Have evidence come through witness, not the question- dont suggest an answer 2. Cant reveal contents of an exhibit before its admitted 3. Foundation predicate a. Testimony that proponent has to introduce before admitting evidence b. Goes to substantive evidentiary doctrine- authentication- is this piece of evidence what we say it is? 4. Formal tender for admission a. Ask court to put exhibit into evidence and accept exhibit b. If court does that, permitted to publish it to the jury (show to them) c. If court decides not to admit, next step is crucial i. FRE 103 1. Have to make offer of proof a. If you fail to make this, any error in keeping evidence out is deemed waived b. Made outside presence of jury b. Opponent of an Item of Evidence i. Pretrial 1. Questions of admissibility have to be raised before trial 2. Judge decides 4th Amendment issues 3. Motion to suppress Constitutional issues (same as proponent) 4. Try to prevent certain testimony, keep out prior convictions that dont affect credibility, witness political affiliation, etc.- keeps people from deciding on wrong issues ii. Trial 1. Objection attacks the question 2. Motion to strike attacks the answer a. Can use when witness says hearsay

b. Witness has given some testimony, realize it has been based on inadmissible hearsay i. Can move to strike everything witness has said based on this inadmissible conversation c. Can ask for a curative instruction when witness is too quick to get an objection out 3. Timing a. Objections or motions to strike have to be made timely, have to begin before witness begins to answer if objecting, and before examiner poses next question if MTS b. Difficulty with narrative answers- if witness starts giving a narrative and flowing into hearsay, have to be so polite to interject, dont want to alienate the jury c. Objection may not be timely until question itself is objectionable 4. Specificity a. Have to specify the part of the question/answer to which the opponent objects b. In most jx., sufficient to state general grounds for objection i. Ex: hearsay, violates spousal privilege, etc. 5. Moving party must testify as trial to preserve the issue for appeal after losing a motion in limine iii. Role of Trial Judge 1. FRE 104 (NEED TO KNOW) a. In general: The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege (THE JUDGE DECIDES THESE!!!) i. Judge decides 90% of admissibility issues b. Relevance that depends on a fact: When relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later (THE JURY DECIDES THESE!!!!) i. Jury decides authentication and first-hand knowledge issues 2. Judge a. Decides questions of law, gatekeeper of evidence b. Has to decide issues of competency of witnesses, etc. c. Distinction between ultimate and preliminary facts:

VI.

i. Ultimate facts: facts in issue under the substantive law and pleadings 1. What are the elements of the crime? ii. Preliminary facts: facts that permit or forbid admissibility of evidence/exhibits strung together in a causal chain proffered to prove ultimate facts 1. Ex: P wants to bring up a statement where D said, I need to fix these steps a. D objects on grounds that this statement is protected by spousal privilege b. P has to prove that privilege doesnt apply in this circumstance c. Under 104(a), judge decides whether this can get in under evidentiary rules d. 104(b) deals with conditional relevance i. Authentication- is this piece of evidence really what I say it is? ii. Does this witness know what hes talking about? Was he there? (1st hand knowledge) iii. Judge plays limited screening role- jury decides actual factual question 1. Screening- logically possible? Reasonable juror could believe? Low threshold e. 104(a): judge listens to both sides of a factual issue i. Can consider things that would otherwise be hearsay ii. How convinced does judge have to be? 1. Bourjaily- conspiracy. Judge only has to show preponderance of the evidence, are these facts true more likely than not? CHAPTER SEVEN: WITNESS COMPETENCY a. FRE 601: Every person is competent to be a witness except as otherwise provided in these rules b. FRE 602: All lay witnesses have to testify from personal knowledge c. FRE 603: All lay witnesses must be sworn or affirmed that they will tell the truth under penalty of perjury d. Who is legally eligible to testify? i. Human beings (no animals) e. FOUR QUESTIONS i. Moral competence 1. Can the person tell the difference between lying and telling the truth

2. 603- as long as someone is willing to take an oath in court or to say they will testify under penalty of perjury, this rule is satisfied ii. Perceptual Competence (capacity to observe) 1. Were they in a position to see/hear that which they propose to testify 2. Ability to use one or more of the five senses- what is hearing, eyesight like? iii. Capacity to remember what they witnesses iv. Capacity to narrate what they witnessed f. Under 104(a), judge has final say in whether someone is competent to testify i. Everyone who testifies is subject to impeachment- i.e. everyone who testifies can be attacked on cross-examination as to their truthfulness, ability to perceive, ability to remember, etc. g. Hypnotically refreshed testimony i. Moore- majority opinion in most courts is that hypnotically refreshed testimony is inadmissible ii. Rock- criminal D has right to testify- if Ds memory has been hypnotically refreshed, cannot deny right to testify, jury has to decide credibility h. Children may testify if otherwise competent i. Judge may conduct voir dire to see if child has capacity to understand the need to tell the truth ii. FRE 611(a)- court controls mode of testimony for children 1. Could sit in moms lap, bring teddy bear, etc. iii. Critical time for capacity 1. Memory and ability to narrate- time of trial 2. Ability to perceive- time of the event i. Mentally disordered persons i. No reason to keep them off the stand just because they are mentally disabled ii. Has to be minimum capacity here j. Dead Mans Acts i. KNOW THAT WISCONSIN HAS A DEAD MANS STATUTE ii. In general, witness in a civil action DQed to testify about a transaction/communication with a dead or insane person when the witness has an interest in the outcome of the decision 1. WI takes narrow view- interest cannot be contingent or remote k. Competency of Judges, Jurors, and Attorneys i. Judges 1. Can take stand if they arent trying that case 2. Judges cannot do their own independent investigation of their cases ii. Jurors 1. Should not step into witness stand 2. Conflicts should be eliminated during voir dire 3. Jurors not to go do own invesgiation

VII.

4. 606(a)- No juror can testify as to what went on in jury room except where extraneous or prejudicial information brought in from outside or improper outside influences a. Threat to injure jurors family, etc. b. Cant testify to impact on other jurors 5. 606(b)- Jurors usually prohibited from attacking a verdict or indictment by testifying indirectly or directly- keeps jurors from being harassed by defeated parties iii. Attorneys 1. MRPC 3.7(a)- Attorney generally cannot testify in a case in which he is acting as an advocate unless a. Testimony is to an uncontested issue b. Relates to nature and value of legal services in the case- trying to figure out billing or fee shifting c. DQ of attorney would work substantial hardship on clientdoesnt happen often LOGICAL RELEVANCE: PROBATIVE VALUE a. Main Distinctions i. Logical relevance v. materiality ii. Direct v. circumstantial evidence iii. Facial v. underlying relevance b. Relevancy i. FRE 401: Evidence is relevant if: 1. It has any tendency to make a fact more or less probable than it would be without the evidence, and 2. The fact is of consequence in determining the action ii. Judge decides relevancy issues iii. Has to be relevant to one of two questions: 1. To ultimate facts in the case- what were trying to prove OR 2. To the witness credibility iv. Relevance determined less by what it is and more by how its used 1. What do I want to prove and how can I show it? v. Ordinary ideas of reason, nothing to do with law per se c. Materiality i. Is it something of consequences? ii. Look at the idea of fit between the propositions that the evidence is offered to prove and the issues in the case iii. Under FRE, issues of relevance and materiality are joined 1. If you object for relevance, also preserve the objection under materiality iv. Curative admissibility

VIII.

1. If one party injects inappropriate evidence into a case, you can allow other evidence to cure the prejudice caused by inadmissible evidence 2. Ex: if someone says, Im a very careful driver, can bring in every accident theyve ever been in d. Direct evidence i. Evidence which, if believed, resolves a matter in the case ii. If offered to establish a material issue, never irrelevant iii. What would be direct evidence that Ms. Hill was in pain? Her testimony, yes, I was in pain e. Circumstantial evidence i. Evidence which, if believed, does not resolve the matter at issue unless additional reasoning is used to reach the proposition to which the evidence is directed ii. What would be circumstantial evidence that Ms. Hill was in pain? 1. Someone else witnesses her bending over and screaming, walking gingerly, etc. 2. Inference would be that she did that because she was in pain iii. Better than direct evidence- logical inference from what happened iv. Will be irrelevant if the evidence has no probative value f. Facial Logical Relevancy i. 104(a) decided by judge ii. Is it enough to go to the jury? Does the judge think that the jury will follow the attorney down the necessary chain of inferences to make this relevant under 104? g. Underlying Logical Relevancy i. 104(b)- addressed by lay persons- did this witness have personal knowledge and may he give lay witness opinion that were asking for ii. 602- if jury could choose to believe one person or another as to whether they really had personal knowledge, you let it in and let them decided h. Authentication i. Wilson- notebooks found at site of drug house- one person not mentioned in it but has already been identified as being part of group. Evidence of dealing int his group can be introduced against him even if his name wasnt there IDENTIFICATION OF PHYSICAL EVIDENCE a. Real or Physical Evidence i. Has historical connection with facts of the case ii. This is the gun that was used, this is the jacket that was worn, etc. iii. Still substantially as it was when recovered or underwent no substantial changes before being submitted to lab for testing iv. Has to be authenticated one of two ways: 1. Chain of custody a. Can prove this circumstantially

IX.

b. Doesnt have to complete if reasonable juror could believegoes to weight, not admissibility 2. Distinctive Appearance a. VIN number, serial number that nothing else has, etc. b. Demonstrative Evidence i. Crafted after the incident for explanatory purposes ii. This is the way a car would handle, this is what the trigger pull is on a similar gun, here is a picture of the crime scene (not taken at time of offense but gives sense of what situation looks like), etc. iii. Charts, diagrams, digital images, etc. c. Circumstantial Identification of Physical Evidence i. Peden- informant disappeared after handing over marked money, court still holds chain of custody sufficient IDENTIFICATION OF SPEAKERS AND VERIFICATION OF PHOTOS AND CHARTS a. Identification of a Speaker i. 901(b)(5): Opinion identifying persons voice based on hearing the voice at any time under circumstances that connect it with alleged speaker will satisfy requirement 1. weight, not admissibility ii. Can rely on direct evidence- he was in m presence when he said it iii. I called someone and they identified themselves as being a certain business this will work iv. Take into account content of whats spoken of 1. If facts established would only be known by a certain person v. Skilled lay observer 1. I know this voice because Ive talked with this person many times face to face and on the phone b. Verification of Photos i. Two theories (In WI- can get in through either theory) 1. Pictorial testimony- demonstrative/illustrative a. Have to authenticate content 2. Silent witness a. Real, historical evidence- film taken at time of event b. Security cameras- no live person seeing it when it happened c. Rather than authenticating the content, authenticate the process i. Is camera in working order? Is someone maintaining regularly? ii. Foundation for photos 1. Witness familiar with object or scene 2. Witness explains basis for familiarity with object or scene 3. Witness recognizes the object or scene in the photo

X.

4. Witness testifies that photo is fair or accurate or good depictions of the object or the scene iii. Can convey a lot with a photo that others cant get through verbally iv. If opponent of evidence wants to undermine it try to find things that dont fit in the picture 1. Digital editing something to keep in mind c. Verification of Motion Pictures, Videotapes, and Electronic Imagery i. Generally treated like photos, foundation laid so that there is reason to believe that the motion picture accurately portrays what it purports to portray ii. Great at getting the attention of the jury iii. Often an issue of damages when using these techniques iv. Consider possibility of computer-generated images v. If foundation isnt tremendously detailed, court will not admit it and you will have wasted a lot of money generating images d. Good to layer exhibits at trial i. Even when evidence is relevant, may still be kept out if over the top ii. Have possibly less extreme or extravagant backups e. Whos going to be sponsoring witness for authentication? i. Sometimes you dont need one ii. Certain number of days before hearing/trial, sides must exchange witness/exhibit lists 1. 10 days to object to authentication iii. If opposing counsel fails to object, exhibit is authenticated iv. Hospital records- dont actually have to have nurse there, as long as notice given and filed with court VALIDATION OF SCIENTIFIC EVIDENCE a. Two tests i. Frye ii. Daubert (WISCONSIN adopted this test 1/1/11) b. FRE 702: A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise, if: i. Experts scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue ii. Testimony based on sufficient facts or data iii. Testimony is product of reliable principles and methos and iv. The expert has reliably applied the principles and methods to the facts of the case c. 104(a): Judge decides whether they can testify under 104(a)- cant take this kind of knowledge away from jury after theyve heard it d. Three Categories: i. Educating/teaching witness 1. Called to elicit opinions that theory is valid, instrumentation is reliable

2. Court may take judicial notice as to underlying reliability of machinedifficulty will focus on whether or not machine is operating properly 3. Witness attempts to explain why test being used is believable 4. Want someone with buffed up credentials, lots of degrees, etc. 5. Qualify witness on question by question approach a. Doctor may be qualified to talk about some medical things, but not others ii. Reporting witness 1. Have to show they are qualified and trained to run tests 2. Prove that report actually received object to be tested, show chain of custody, etc. iii. Interpreting or evaluating witness 1. FRE 703- can give an opinion based on his expertise 2. Can rely on anything that a reasonable expert or scientist in the field would rely on in coming to his opinion e. Validity of Underlying Theory and Reliability of Instrument Implementing the Theory i. FRE 901(b)(9): evidence describing a process or system and showing that it products an accurate result- where Frye and Daubert come in ii. Frye 1. D offered results from something like a polygraph test, witness vouched for theory and validity of polygraph test 2. Court decides that foundation was incomplete because the witness did not show that it was generally accepted in the field of psychology 3. TWO PARTS: a. Identify the pertinent or relevant scientific community b. Identify that theory is generally accepted by the community 4. Was majority, now only used in a few places 5. Often results in prevention of the admission of relevant evidence 6. Problem- to say its generally accepted means you cant get at new techniques because those, by definition, are never generally accepted iii. Daubert 1. Evidence must be relevant and reliable 2. FRE overruled Frye. Case kills Frye. 3. General acceptance can be a factor, but not the only one 4. MAIN FACTORS: a. Has theory been tested? b. Is it reliable/subject to error? c. Has it been subjected to peer review? d. Is it generally accepted in the relevant scientific community? e. Does it fit what party is attempting to show/prove?

XI.

i. Fit scientific validity for one purpose is not necessarily scientific validity for other, unrelated purposes ii. May be perfectly good way to show scientific evidence, but might not be tied to what they are ultimately trying to prove 5. Criticism- asks judge to do more than they had to under Frye, assumes certain level of judicial competence 6. Even though different from Frye, may not always get different results f. Commentary to FRE 702 on Expert Witnesses i. Whether experts are proposing to testify out of research growing naturally and conducted independent of litigation ii. Whether expert has unjustifiably extrapolated from what test says to an unjust conclusion iii. Whether expert has adequately accounted for obvious alternative explanations iv. Whether expert is being as careful as he would be in his regular professional work, outside of paid litigation consultant LEGAL IRRELEVANCE: THE DISCRETION OF THE COURT TO EXCLUDE a. FRE 403 (KNOW BY NUMBER!): The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. b. Whenever you hear something that sounds irrelevant, say: objection, relevance, 403 c. Three Steps: i. Determine probative value of evidence ii. Identify countervailing evidentiary factors iii. Weighing process 1. Balance probative value against identified dangers, only exclude where dangers substantially outweigh probative value d. 403 biased in favor of admitting evidence e. Wording in Statute i. Confusing the issues 1. Dont want a trial within a trial ii. Unfair prejudice 1. Is the prejudicial nature such that the jury cannot fairly evaluate it? Will it tempt jury to decide case on an improper basis 2. Visceral or inflammatory? 3. Ex: kid killed in car accident, find marijuana pipe in his backpack. On issue of damages, D wants to bring it in to show kids life wasnt worth much. A court would likely find this unfairly prejudicial. iii. Misleading the Jury 1. Objections to junk science- objections to something not well founded

XII.

2. Misleading statistical evidence iv. Wasting Time 1. Misuse of judicial resources 2. Trial court judges have steep calendars f. Ask: is there a risk that the jury will make its call based on something which isnt really good evidence? g. Judge can consider number of intermediate inferences the jury must draw to link evidence to what is attempted to be proved h. Is there an alternative means to prove the same fact with less dangerous evidence? i. Experiments and Tests i. Testimony about out-of-court experiments are frequently objected to on the grounds of misleading the jury 1. Have to show test conditions were substantially similar to those at the time of the event causing the trial 2. Courts are lax in enforcing substantial similarity requirement ii. Reconstruction of incidents 1. Held to much higher standards j. Exhibitions i. Jury views 1. Taking them to a crime scene or accident scene- taking jury to an object if it cant be brought to the jury 2. Difficulties- unexpected factors (helicopter flies over, etc.) 3. Greater time lapse since incident in question, greater chance that scene has changed and lesser chance judge will grant view 4. If geography of scene blows a key witnesss statement out of the water, might be key k. Displays of a Person or Parts of the Body i. Victim may remove a prosthesis to show amputated stump to jury ii. Overall permissible if there is not a better way of demonstrating to the jury l. Demonstrations i. For physical demonstration, maybe bring in expert to increase validity of the demonstration (range of motion example- bring in physical therapist, etc.) CHARACTER, HABIT, OTHER ACTS AND TRANSACTIONS a. 404(a) and 404(b) do not interact in any important way, have to keep separate b. FRE 404(a)(1): Evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait c. No specific definition of character- look at traits d. Courts generally view character evidence with a certain amount of disfavor- probative value of character evidence usually outweighed by the prejudicial effect, danger of unfair prejudice e. Three Exceptions (in criminal cases)- 404(a)(2)

i. D may offer evidence of the Ds pertinent trait, and if evidence is admitted, prosecutor may offer evidence to rebut it ii. Subject to limitations in FRE 412, D may offer evidence of an alleged victims pertinent trait, and if the evidence is admitted, prosecutor may: 1. Offer evidence to rebut it and 2. Offer evidence of the Ds same trait and iii. In a homicide case, prosecutor may offer evidence of alleged victims trait of peacefulness to rebut evidence that victim was the first aggressor f. Doesnt apply if character is a material fact under substantive law i. Not being used in that case to prove conformity ii. Might be an issue in cases of negligent hiring, negligent supervision, damages in a wrongful death suit (decedent was a bad seed, damages shouldnt be high, nobody really misses him), child custody disputes (what is someones fitness as a parent?) iii. In this case, can use all three methods of proof 1. Reputation 2. Opinion 3. Specific instances of conduct g. Majority of time- use character to prove things circumstantially- severe restrictions apply in that case i. Prosecution not permitted to bring up character evidence in first instance h. Pertinent traits- traits that are relevant to the alleged crime i. Character trait for peacefulness to prove he didnt commit battery- cant bring in prior convictions for theft- irrelevant ii. If offering character trait of general goodness- then any prior convictions could theoretically be brought in, or any other bad thing he has done in his life i. Item of evidencedesired inferencedesired conclusion (EXAM FORMAT) i. Bar fight at Victims ii. Joel has reputation for being peaceful- bringing in as proof that he didnt start the fight iii. Desired inference-Joel has character trait of peacefulness iv. Desired conclusion- on evening in question, Joel acted in conformity with his peaceful character and did not start fight j. FRE 405 Methods of Proving Character: Reputation, Opinion, and Specific Instances of Conduct i. Methods of Proof- when can you use opinion, reputation, and specific instances of conduct evidence? 1. Certain sorts of evidence under 404(a)- generally limited on direct exam to reputation and opinion 2. Cross-examination- allowed to go into specific instances ii. 404(a)- D wants to put in evidence of reputation

1. Gossip- really just asking what the gossip is about a person when asking about their reputation 2. Four Sorts of Questions: a. Where do you live? What is your social, residential community? How long have you been affiliated with this community? b. Does the accused have a reputation for a specific character trait within that community? c. Are you familiar with his reputation? d. What is that reputation/gossip? iii. Prosecution Rebuttal 1. If prosecution wants to introduce testimony in rebuttal, if they have a good faith basis for asking questions about specific instances that involve the D, they can do that 2. Before defense puts on a reputation or opinion witness, defense counsel should ask outside the presence of the jury if the prosecution is aware of any specific instances they would be introducing to contradict the opinion of the witness they put up a. Want to know those and what their good faith basis is before you bring up a reputation witness b. Want judge to do a 403 weighing on each of those, even if they are true, might be a 403 objection to these other crimes iv. Character as Circumstantial Evidence of the Conduct of a Non-Party 1. FRE 404(a)(2)(B): Subject to the limitations in Rule 412, a D may offer evidence of an alleged victims pertinent trait, and if the evidence is admitted, the prosecutor may: a. Offer evidence to rebut it and b. Offer evidence of the Ds same trait 2. D can offer the trait, how can prosecution rebut? a. Offer evidence that victim does not have that trait, and CAN offer evidence that D has the same reputation for the same character trait that the D has accused victim or having k. Habit Evidence i. FRE 406: evidence of a persons habit or an organizations routine practice may be admitted to prove that, on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. ii. Can be really convincing iii. Different footing from character evidence- admissible to prove conforming conduct in every case 1. Much narrower than character 2. Habit is ones regular to repeated, specific situation

l.

3. Some case law prohibits anything that seems volitional iv. On all or substantially all occasions, when ac actor finds himself in a certain situation, he or she reacts in a certain particular way 1. Ex: dentist always gives instructions to brush and floss to patients, mechanic always approaches a car with a particular process v. If you cant get habit, could maybe use expert testimony 1. Ex: woman who emptied garbage in a particular office did this for ten years and every time she went into this particular office, garbage was filled with paper. Wanted testimony that garbage way always full to overflowing- not HER habit, but something she observes everyday. Want her testimony bc on one day when cops were all there and things were shady, it was empty. vi. Prove habit by opinion and specific instance- no reputation vii. Congress deleted portion of statute that outlined how you prove it- use case law viii. Item of evidencedesired inferencedesired conclusion 1. Item of evidence-person regularly does this 2. Desired inference- person has a habit 3. Desired conclusion- person acted in conformity with that habit on the day in question Other Acts Evidence i. FRE 404(b) Crimes, Wrongs, or Other Acts 1. Prohibited Uses: Evidence of a crime, wrong, or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character 2. Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a D in a criminal case, prosecutor must: a. Provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and b. Do so before trial- or during trial if the court, for good cause, excuses lack of pretrial notice ii. Problem- permitting introduction of other crimes evidence poses a danger that the jury will conclude that accused is a bad person deserving of punishment iii. Four ways to protect: 1. Has to be introduced for non-character purpose 2. Has to be relevant under 401, 402 3. Even if relevant, has to run though 403 weighing process to make sure prejudicial effect does not substantially outweigh probative effect 4. Use limiting instructions iv. Other crime, wrong, act does not have to be criminal 1. Doesnt have to result in arrest or conviction

XIII.

2. Other acts that someone had been acquitted of in criminal trial may be admissible v. Woods- handy workers signature exception- nine children dying in foster care from some condition vi. Procedure: in determining the admissibility of other crimes evidence, proponent has to do their homework 1. Have to say precisely how other acts and crimes fit into chain of logical inferences that proponent wants jury to draw 2. Have to through in trial brief and court balancing test for determining admissibility 3. Consider: a. Prosecutions need for evidence b. Substantial relevance c. Proximity in time to other crime d. Degree of similarity to other crime e. Be able to direct the jury- how any sort of prejudice could be outweighed with limiting instruction vii. Other Acts Evidence in Civil Cases 1. Cant offer evidence under 404(b) simply to increase probability that party committed act in pleading or general inference in fault. Have to introduce for sharply defined purposes. 2. Courts look less favorably on contracts between third parties 3. If question of fraud, easier to get evidence in. Lots more latitude when alleging civil fraud 4. Evidence of accidents in same place or using same equipment found admissible existence of dangerous/defective condition, if D knew/should have known of dangerous or defective condition of the automobile CREDIBILITY EVIDENCE: BOLSTERING AND IMPEACHING a. Primary form of evidence in any case is testimony by witnesses b. Once evidence is admitted, then what? i. What makes the difference is the weight that juries give to a particular piece of evidence ii. Credibility of the witness is a big portion of that- Do I believe this guy? iii. Evidence introduced under a credibility theory is admissible only on the issue of that piece of evidence c. Four factors to determine credibility i. Witnesss sincerity ii. Ability to perceive iii. Ability to remember iv. Ability to tell story in a coherent narrative d. Three Issues to Deal with broadly:

XIV.

i. How do you bolster the evidence of a witness? ii. How do you impeach a witness? iii. How do you rehabilitate a witness after theyve been impeached? e. Five Basic Modes of Impeachment i. Attack testimonial capacity ii. Prior inconsistent statements (FRE 613) iii. Specific contradiction iv. Bias or interest (we love this) 1. Personal stake 2. Bias in favor of the parties 3. Is prejudiced against one of the parties 4. Other motive to fabricate- have been paid to testify in a certain way, etc. v. Character for truthfulness (608 and 609) f. Bolstering credibility of witness before impeachment i. Direct examination 1. What can proponent do before cross-examination to show that witness has character for truthfulness and there are reasons to believe him? a. Bolstering forbidden except for TWO EXCEPTIONS: i. Fresh complaints doctrine for rape victims- if after a woman has been sexually assaulted, if she calls cops right away or goes to hospital quickly, then can get in ii. Some jx. permit evidence of witness pretrial ID to bolster in-court identification g. Whom May You Impeach i. You can impeach any witness called by opposing party ii. Can also impeach your own witness 1. No longer vouch for the credibility of a witness who you call iii. FRE 607- any witness you call, even someone who testifies in a way you didnt anticipate- you are allowed to attack iv. A lot easier case to make to accuse someone of being mistaken rather than being a liar CREDIBILITY: IMPEACHMENT TECHNIQUES a. Attacks on Competency i. Testimonial Capacity 1. Different from competency of a witness 2. Describes a witnesss ability to perceive events through five senses and accurately narrate while testifying 3. Attacks on testimonial capacity are offered as circumstantial evidence that a witnesss testimony about certain events is wrong- physical or psychological reason not to believe this person

4. As long as someone take oath, person cant be attacked on religious basis ii. Scheffer- dont reach a Constitutional issue unless necessary. Polygraphs generally not admissible iii. Testimonial Qualities of Perception, Memory, and Narration 1. You can ask anything on cross that suggests a defect in perception, memory, or narration 2. Can subpoena someones record from eye doctor to show sight problems, etc. 3. What happens when experts disagree with one another? 4. IF there is extrinsic evidence on that stuff and you have it, can turn to opposing counsel and say, do you really want to put that witness on? b. Prior Inconsistent Statements i. Steps: 1. Get witness committed to testimony in court 2. Bring up prior statement a. Bring up time of statement, place, other people present, etc. 3. Statement was on certain tenor and essentially contradicts trial testimony ii. Most often used way of impeaching a witness iii. Dont need to get witness to admit theyre lying- asking them if they are lying now or then doesnt really get you anywhere iv. Who determines if the prior statement is inconsistent? 1. Judge under 104(a) 2. Juror dont like nit picking, need material variance in statements that really changes what the witness is saying c. Surprise Attacks i. FRE 613: perfectly permissible on cross-examination, dont have to disclose contents of inconsistent statement beforehand d. Extrinsic Evidence i. Two different ideas 1. Extrinsic evidence 2. Evidence thats collateral ii. When can you use extrinsic evidence of a prior inconsistent statement? 1. Instances of testimonial capacity, prior inconsistent statements that are non-collateral, non-collateral specific contradictions, bias, interest, motive to testify falsely 2. Ex: witness testifies and is then excused from the stand, then a second witness testifies to the existence of a prior inconsistent statement from the first witness (heard it or authenticated document that contains it) 3. To introduce extrinsic evidence, have to satisfy four conditions a. Lay foundation during initial witnesss cross-examination

i. Did you say or declare X? Or show witness writing that constitutes material variance b. Have to give witness a chance or opportunity to explain or deny i. Witness explanation has to be either a denial or an evasion- flat denial present most compelling case for extrinsic evidence, but modern courts are pretty lax ii. If witness admits prior inconsistent statement, no need to present cumulative extrinsic evidence c. Subject matter of extrinsic evidence cannot be collateral, has to go to heart of case d. Extrinsic witness or evidence may be put in if above three are satisfied e. Specific Contradiction i. Like a prior inconsistent statement, but comes through mouths of two different witnesses ii. Ex: one guy says he thinks car was going 50 MPH, another guy says he thinks it was going 80 MPH f. Collateral Fact Rule i. Collateral: not collateral if it deals with historical merits of the case or if it provides lynchpin evidence-evidence so fundamental that it subverts witness testimony in the case ii. An attorney may not use extrinsic evidence to impeach a witness on a collateral matter iii. For all practical purposes, the only time we need to worry about this rule occurs when presenting extrinsic evidence after excusing witness youre attacking. Even then, may be inapplicable 1. When asking about bias, always independently provable by collateral evidence iv. Only applies to three impeachment techniques 1. Prior inconsistent statements 2. Specific contradiction 3. Specific instances of misconduct g. Two Stages of Bias Impeachment i. Cross-examine witness and expose bias through cross 1. Get them to admit it ii. Bring in somebody else to illustrate it (extrinsic evidence) iii. Can use bias impeachment to get around other evidentiary rules iv. Bias impeachment allows you to sidestep other rules- can get in other crimes that wouldnt be acceptable under 404(a) v. Bias is subject to 403 analysis- at some point, enough is enough h. Impeachment on the Basis of Truthfulness (608(a) and 608(b))

i. 608(a) goes to any witness and we can call character witnesses only after credibility has been attacked- through specific contradiction, prior inconsistent statement, etc. ii. Once a statement is introduced, as an exception to the hearsay rule, becomes relevant whether or not they have a character trait for truthfulness 1. Can impeach credibility even of someone who doesnt take stand iii. Every witness has a character trait for truthfulness- way to understand is 404(a) 1. Under 404, character evidence largely disfavored 2. By contrast, under 608, its routinely admissible, including in civil cases 3. Strictly limited to character for truthfulness 4. Cant go to general law-abiding character 5. Can be raised by proponent or opponent- whether someone has a bad character for truthfulness iv. Framework 1. Limit on specific instances of a witness conduct a. Cannot be proved by extrinsic evidence for purpose of attacking or supporting a witnesss character for truthfulness except for prior convictions under 609 2. Specific instances of conduct probative of truthfulness a. Can always go into it on cross if probative value of truthfulness or untruthfulness concerning either their character or going to character witness v. How do you prove character circumstantially? 1. If character is in issue, cant use specific instances upfront, only on cross- can use reputation or opinion upfront 2. When character is used as circumstantial evidence of the historical merits of the case- someone is a violent person or reputation is not good, can only happen in a criminal case handled under 404(a) a. Only one who can raise it is a D in a criminal case- only if D opens the door to his own reputation can it be attacked by prosecution 3. Character as circumstantial evidence of credibility a. Item of evidencedesired inferencedesired conclusion i. Item: D is a liar ii. Inference: D has character trait of being untruthful iii. Conclusion: D is acting in accordance with his character and lying at trial b. All dealing with character for truthfulness vi. Difference between 608 analysis and 404 1. 608 routinely admissible, in contrast to 404 2. Rube 608(a)(1) strictly limits this testimony to character trait for untruthfulness or untruthfulness- not violence, etc.

3. Testimony cannot relate to witnesss general law-abiding character 4. Cant go to peacefulness 5. If you focus solely and only on trait of truthfulness, character witnesses can be offered not only by the proponent of the witness but also by the opponent vii. Once a witness testifies, credibility comes into question 1. Opponent has right to impeach credibility 2. Can call a reputation witness 3. Opinion witness 4. Cross about specific untruthful acts a. What target witness himself is on stand, or when reputation or opinion witness have testified about that target witness, opponent can illicit testimony of specific untruthful acts committed by the target witness i. If that untruthful act has not resulted in a criminal conviction, then you cant prove by extrinsic evidence viii. FRE 608 1. Permit propensity inferences based on a witnesss character trait for truthfulness 2. Jury may infer that witness testimony is or is not truthful 3. Ex: a. Item of evidence: Bills reputation for truthfulness is bad b. Desired inference: Bill has character trait of dishonesty c. Desired conclusion: Bill is acting in conformity with character trait as he testifies today 4. On cross or its equivalent, may inquire into specific instances in witnesss past that undermines claim of truthful or untruthfulness a. Cross-examiner has to take witnesss answer 5. Distinguish attacks on witnesss truthfulness from other lines of impeachment such as bias a. Not all attacks on a witness open the door to rehab evidence such as specific instances of witnesss truthfulness b. Proof of prior inconsistent statement may merely be an attack on witnesss memory rather than character for untruthfulnesssimilarly with specific contradiction c. Character evinced by repeated actions over a course of timeallegations of a single instance of falsehood cannot imply a character for untruthfulness d. Only where someone is generally accused of being a liar will rehab evidence of truthfulness specific acts be permitted

XV.

XVI.

e. When, over a long period of time, witness has claimed a number of things that are fake, then we start talking about a character trait for untruthfulness under 608 i. WI RULE for impeachment by evidence of a criminal conviction (instead of FRE 609) i. Someone takes stand in case-in-chiefcross examiner is permitted to ask, have you ever been convicted of a crime before? 1. If yes, you can ask how many times? If witness gives right number, you can go no further ii. To figure out how many crimes someone is convicted of, look at their record on CCAP, etc. 1. Pre-trial hearing- need to determine how many crimes witness has been convicted of (some older ones dont count) 2. Pre-trial ruling 3. Have to let your witness know that court has made a ruling that X number of convictions, answer correctly or every conviction they have can be proven out by extrinsic evidence on the other side CREDIBILITY: REHABILTATION a. Cant do propensity evidence- relevant but you have to give the theory of why it would get in- under 404(b), other acts that show motive, intent, reason to testify falsely b. By contrast, if you say he beat someone up and this just shows that he would beat someone else up later, not close enough to show modus operandi and cant be propensity- dont want under 404(a) c. Prior Consistent Statement i. Hearsay rules trigger admissibilitiy 1. 801(d)(1)(B) ii. Ordinarily, you cant consider a prior out-of-court statement made by a witness iii. Prior consistent statements, when made before an inconsistent statement, can go to credibility of a witness 1. B testifies in case-in-chief to A, B, C 2. Cross-examiner brings up that on given day, B had said not A and not Cprior inconsistent statement can proven even extrinsically as long as non-collateral 3. Say that on a date way before the above day, B again said A, B, C 4. On rebuttal, you want to get in Bs prior consistent statement a. Generally you can- but does the prior consistent statement disprove the claim that hes testifying from an improper motive or explain the origin of the prior inconsistent statement? iv. Tome- if prior consistent statement was made AFTER motive to testify falsely, shouldnt get in Rule Against Hearsay a. FRE 801(c)- Out of court statement offered to prove the truth of the matter asserted b. Need the statement and WHY they want to introduce it

i. How do you figure out what someone is trying to prove when they introduce a statement? Ask counsel c. Why is hearsay barred? i. Perception, memory, sincerity, etc.- seen as necessary when someone testifies ii. Out of court statements made by people outside courtroom are not subject to cross-examination, that is why its banned in most instances d. Three Things on Exam i. Recognize Hearsay 1. If said out of court, immediately suspect hearsay ii. Be able to apply certain exceptions and exemptions iii. Compare and contrast different exceptions and exemptions e. Source of hearsay is human declarant under 801(b) i. Not a scanner, machine, animal, etc. f. Statement under 801(a) i. Persons oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion 1. Nonverbal- thump up or down, etc. ii. Usually you need a declarative sentence- but some sentences functionally act as a declaration 1. Ex: are you too dumb to get out of the rain? offered to prove it was raining at the time iii. g.