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I. Article I - General Provisions A. Rule 101 – Scope 1. These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrates judges, to the extent and with the exceptions stated in rule 1101 a. Rule 1101 – Applicability of Rules i. Courts and judges ii. Proceedings generally iii. Rule of Privilege iv. Rules Inapplicable – The rules (other than with respect to privileges) do not apply in the following situations: - Preliminary Questions of Fact – the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104 • Fact that has to be determined by the judge o Rules to evidence don’t apply - Grand Jury – proceedings before grand juries • Can hear hearsay evidence o Rules of evidence don’t apply - Miscellaneous proceedings – proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses • US v. Monsanto – forfeiture proceeding – Monsanto wanted money back to get an attorney and wanted to know who the informants were against him o Court allowed affidavits – which are hearsay o Rules do not apply to forfeiture proceeding B. Rule 102 – Purpose and Construction a. Apply these rules so they make sense to get to ultimate goal – that justice is established – justice is overriding desire to get everyone his “due” i. US v. Opager – D raised defense of entrapment – P
calls guy who worked with D and guy says D was predisposed – D wants to show that W didn’t even work at hair salon - Rule 608b – if you are attacking W character using specific instances of misconduct – only done so on cross examine • Extrinsic – comes from something other than mouth - Reversed because it was not fair - Rule is meant to promote fairness and achievement of justice C. Rule 103 – Rulings of evidence 1. (A) Effect of erroneous ruling – Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and a. (1) Objection – a timely objection or motion to strike appears of record, stating the specific ground or objection, if the specific ground was not apparent from the context; or i. People v. Dunham – Child makes statement using machine – there was no objection made to the hearsay - Specific grounds must be stated for objection - If objection is sustained – what is the evidence that we are talking about • Need to state with specificity what the testimony would deal b. (2) Offer of Proof – in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked i. (B) Record of offer and ruling – the court may add any other or further statement which shows the character of evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form - Must make offer of proof if evidence is not allowed in • Fox v. Dannerberg – Can’t determine who was driving the car – objection to expert testifying o P says what experts would say ii. (D) Plain Error – nothing in this rule precludes taking notice of plain errors affecting substantial
If effects a judicial proceeding .Excluded evidence must have someone tendency to effect outcome of case o If 3 are met – court MAY notice forfeited error . clerk died – clerk told medical tech about it before he died and judge had to make call if it was admissible i.Issue must be well settled o Error must effect substantial rights . Rule 104 – Preliminary Questions 1. the question was whether the attorney could testify against him – there was a letter from the trustee to the lawyer i. Ricketts v. Issue is hearsay complaints ii. (B) Relevancy conditioned on fact – Judge makes determination of fact a. Judge had to decide if AC privilege applied ii.United States v. Maliszewski • Requirements of plain error o Mistakes must be an error contrary to law o Must be plain . States – Green robbed and shot clerk. Campbell – D wrote fraudulent checks from corp. Green wanted to keep out V’s statements about who shot him and what happened iii. Richardson – closing statement error calling him an immigrant • Court dealt with plain error rule o Very high bar D. Rule 802 says hearsay is not allowed unless there is an exception iv. City of Hartford – constitutional violation by . Green v.rights although they were not brought to the attention of the court .Rojas v. Determination of whether privilege applies – judge had to consider hearsay to make determination – rules of evidence do not apply 2. US v. Procedural device that allows preliminary questions of fact – rules don’t apply b. (A) Questions of admissibility generally – Judge makes call on admissibility decisions – Judge is not bound by rules of evidence a.
Mujahdid – Rape case – the co-D pleaded guilty and testified against D • Plea shows bias • Problem with showing deal – her guilt can be imputed to D F.Judge can say: • It was him speaking and it is relevant • It wasn’t him speaking and it is not relevant iii. Dual purposes a. Fact of relationship is factual question – and admissibility turns upon fulfillment of that condition E. Plattero – Rape that occurred on Indian reservation – D wanted to prove V had past sexual relationship – under rape shield law – evidence attacking character of rape V is barred (exception – evidence that tends to establish specific defense) i.Using past felonies are allowed to impeach. Writing or recorded statement is introduced a. Those determinations go to jury – admitted subject to fulfillment of condition .Gov’t of the Virgin Islands v. US v. but not prove character b. Because of determination of relevancy depends on fact of who was speaking .Standard is whether any rationale juror could find b. Contains assumptions i. Can be admissible for one purpose but not admissible for another . A limiting instruction is a not self executing rule . First let in and give limiting instruction ii. Prevents ability to things out of context . Rule 105 – Limited admissibility 1.someone acting under color of state law – Ricketts got beat up – the evidence item in dispute was an audio tape between dispatcher and pursing officer i. When there is dual purpose evidence i. Rule 106 – Remainder of or Related Writings or Recorded (rule of completeness) 1. Evidence of past relationship comes in and jury decides if past relationship was there ii. Based on fairness i. Jury makes determination – question of fact ii. Adverse party can require more to the writing or recorded b.
Using this rule in collision with another rule – find features that promote fairness ii. Sets a low bar b.Statement must be offered by party opponent . Judge has to take a look at writing – see if admitting a portion will be misleading – make a determination if there needs to be more in order to give a true meaning to the evidence i. Rule 401 – Definition of “Relevant Evidence” 1. Relevancy contains 2 concepts . Allows idea of incremental proof – sufficiency of evidence .evidence must be sufficient and actually proves a point c. US v. Article IV – Relevancy and its limits A.Even though out of court statement – if that admission is made to another person – it can be admissible when it should be excluded .Collision of rule of completeness and rule against hearsay . Sutton – Sutton sold crude oil and DOE of employee were convicted of bribery – issue was additional portions of the tape admitted recorded by government employee .Only introduced part of the tape in which Sucher admitted guilt • Can we have hearsay evidence for one party but not for another? o Hearsay: statement made out of court offered to prove asserted in statement o Certain statements are excluded – admission of party opponent . Adverse party may require the introduction AT THAT TIME – D can stop government case and insist that government put in the balance of the statement so the jury hears it all at once II.c. “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 a.
State v. Boughton – insurance company defends against fire with arson • Evidence – P’s want to introduce . Knapp – guy killed cop • Have to know what inquiry is o Rebutting claim of defense .D must show that he had honest and reasonable belief that he was in danger of death or serious injury – focuses on state of mind • Has to have honest belief that this cop will kill him – he offers evidence • Component is what he believed about how old man died o Only applies to his state of mind . Inc v.i.To determine if evidence bears consequential fact . Brewer – DUI – D says he was drunk but he wasn’t driving and there was an accident and D was in car and said roommate was driving • Didn’t call roommate at trial – is it logical to infer that if he didn’t call his roommate at trial he was driving o Court says that isn’t fair o Doesn’t prove consequential fact . Logical persuasion – can contribute to proof of a fact – need not be sufficient – only advance inquiry a little bit .Kelly’s Auto Parts.What does it matter of how man actually died – irrelevant evidence – makes it less probably that he actually heard it • Proof of cause of old man’s death doesn’t undermine D’s story – makes it a little less likely that he heard it (low relevancy threshold) .State v.
fire chief said it was arson and that P’s husband was a few miles • Arson + fact that insurance owners were the ones who committed arson • P offered to take lie detector and wanted to put that in evidence • Helps logically advance inquiry – if someone is guilty more likely they would NOT take lie detector test . Know what evidence is ii.Murphy v.US v. Co. machine takes off hand. What consequential fact is .Evidence does not to be sufficient to be relevant • i.evidence they were never tried for criminal arson • Standard for relevancy – tends to prove or disprove a consequential fact more or less likely • Court says it doesn’t advance inquiry – because other people determination . Cinnicnati Ins. reaches in to take part.Proof that he was drunk proves whose fault it is (comparative negligence) d. Dillon – infer that act of flight – from flight to conscience of guilt – conscience of guilt concerning case – actual guilt ii. Relevancy has to do with drawing logical inferences i. brings lawsuit against manufacturer of machine – what if he went to the bar o Fact that he went to the bar makes it more likely he was drunk – gives us incremental proof o Can be persuasive and is persuasive on a consequential point .e. Materiality – to determine relevancy analyze elements of claim – fact must be consequential and must advance inquiry . – P’s home burned down before they were going to move. worked in a plant working on a press machine.
or misleading the jury. Chain of inferences B. Joy Manufacturing – mine worked was injured by machines o Evidence was lack of claims . mechanism of injury. irrelevant evident in admissible 1. confusion of the issues. Warren Tool – used tool to inflate tire and tire exploded injuring P o Court didn’t allow evidence of prior accidents of bead seater o Court says if dangerousness is issue – events have to be similar to a high degree . evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. or by consideration of undue delay. Unfair prejudice must substantially outweigh probative value . waste of time.Consequential fact – notice that there was a problem. Balance – probative value (purpose.If jury gives weight to evidence that is out of proportion to its logical force (jury believes that evidence proves TOO much) b. confusion. Although relevant. or needless presentation of cumulative evidence a.Lack of claims shows there is no design defect iii. Rule 402 – Relevant evidence generally admissible..hotly contested point) v. company had a sufficient data base to commence recall • Ponder v.Evidence might be considered by jury for improper use . or waste of time 1.If precise failure – high level of similarity • Hines v. Prejudice has to be unfair – . Rule 403 – Exclusion of relevant evidence on grounds of prejudice.If question of notice – a certain level of dissimilarity is tolerated . All relevant evidence is admissible C. prejudice evidence will have i.
Proved D was convicted of felony.Old Chief v.i. US – bar fight and a shot was fired – D was charged with felon in possession • Possession is generally contested point • What is purpose for which evidence being offered? o To show he is a felon o Propensity – act in conformity with character trait • Balance probative value with prejudicial value o Can attack probative value side was as well as showing prejudicial side .If all you have – probative value is high ii. Improper purpose of evidence must take over proper purpose . but he has many other felonies o Consider alternative sources of proof .People v. Product rule of probability . Collins – couple committed robbery – prosecution brought in expert to testify to statistics of couple • Operative rule – product rule of probability o Multiply all factors together to come up with probability all factors occur • Unfair prejudice comes from: probability can represent at best that a random couple could fit into characteristics not the characteristics of guilty couple • Problem – distorted jury – unfair prejudice comes from allowing evidence to carry more weight than it was supposed to o This evidence claims .
Character Evidence generally –not admissible for the purpose of proving action in conformity therewith on a particular occasion. US v. Anderson – D was fighting officers and the officers shot him – excessive force case i. Analytical Process i. Self defense – honest and reasonable belief of fear b. Determine if there is another purpose (illegitimate?) iii. First identify purpose ii. Government of Virgin Islands v. If D opens door for either purposes – the pros may introduce character evidence to rebut that a. Bright – D is charged with mail fraud i. If 105 is insufficient 403 – evaluate both sides of the scale – discuss probative value and unfair prejudice D. except: 1. Inference is that he is more likely the first aggressor – because he has acted that way in the past 3. Criminal D may introduce evidence of V’s inference of violence to show V was aggressor a. Rule 404(a) .Evidence MUST be relevant • Evidence of a religion is TOO remote b. D called W to give character testimony . Gilliand – convicted of stealing a car – son says he didn’t do it i. Person may not act in accordance with professed belief ii.Using reputation . Criminal D may show his own good character to show inference he didn’t do crime charged a.Must be offered by accused 2.certainty – but has no right to claim that o Any probative force was substantially outweighed by prejudice c. Son was there to show car wasn’t stolen ii. Perrin v. Turn to 105 – dual purpose iv. Rule must be complied with literally . Peterson – D said he did not commit murder – that he was not the kind of guy that would kill someone because he was a Rastafarian i. US v. He can prove a trait of character of circumstantial evidence of what he did or didn’t do . Proving victim had a character for violence – likely victim acted in a violent way c.
i. etc… Must determine purpose of character evidence – offered to prove because part of claim or defense or circumstantial for state of mind . Harakis – negligent hiring case – for security guard abusing discretion i. negligent entrustment – entrusting a dangerous instrumentality to a irresponsible person – proof of persons irresponsibility is element of claim If main purpose is not to show propensity a. 5. ii. i. absence of mistake.Allowed specific instances of conduct • Not show character for violence Specific instances are admissible to prove character a. 10.e.not allowed if circumstantial of what person did or thought = propensity evidence to show they were acting in conformity a. Government asked during cross – asked about reprimanding . scheme.i. Motive. By showing specific instances of conduct . Panas v. or child molestation – can show propensity – pros can show D’s sexual propensity to show he committed charged offense Evidence of W’s character of untruthfulness to show that W was lying while testifying a. Purpose was to show subjective mind set of D . 9.e. P had to show guards bad character which should be kmart on notice on a risk .e. 6. 7. If you want to show character of honesty: (means – not allowed in all cases) i. plan.Requirements before asking about specific instances on cross • Good faith basis • Pertinent character trait In sexual assault. State v. Evidence – specific instances of violence ii. Carlson – D shot bar guest i.Element of P’s claim Proving character as a concept and methods a. defamation – prove what type of character was damaged b. By proof of means of opinion – view of someone that can be offered to show what character is iii. individual was arrested and ripped the door off and gave rise to fact that person was violent . 8. Proof of W’s character for untruthfulness is allowed Character may be prove when element of claim or defense a.4. By evidence of reputation – how a person is known in the community ii.
Herring – woman was boarding a trolley car – in process of getting she fell back – dispute deals with whether or not the trolley stopped i. Lexington Railroad v. Ex-wife denied knowledge of drug paraphernalia ii. If D open door to past criminal evidence – doesn’t apply 4. Garfole – sex with a minor – evidence – indicted on 5 similar counts i. People v. To be admissible – must bear same “high degree of similarity” ii. Tried to tie together that where there is drug paraphernalia there are guns iii. Oliphant – D was convicted of raping college girl in his backseat – evidence – manner of how he raped other girls i. State v.State brings in other “raped” victims . If purpose is plan. Evidence – tending to show general reputation of her sobriety – properly excluded because it was not relevant ii. Defense is consensual sex . Evidence – wanted to prove officer was reckless and dangerous ii. US v. Fuller – convicted of 2 federal firearm violations – evidence – drug paraphernalia found in apartment (wrongful bad act) i. Bazan – D was charged with assault and intent to commit a violent felony i. Method was invalid – specific instances E. Other purposes where it allowable – not exclusive list 2. Purpose – impeachment 3. Purpose was to infer from character trait specific conduct on this occasion iii. D said that she had on prior occasions that she was carelessness c. Evidence of specific acts of carelessness is inadmissible ii.11. State v. Hatt v. or absence of mistake – not as high relation has identify a. Prohibited Uses – to show propensity a. If identity is purpose – must be a high relation a. Evidence must have a bearing on a material point in the case a. scheme or method. Rule 404 (b) – Character evidence can admitted for another purpose 1. Servant may have been guilty on certain occasions – not ordinarily be a careful person b. Nay – whether P could introduce specific instances of foreman i.
Also hearsay – reputation requires gathering of information 2. Merryweather – attempting to use taped conversation of other indictment – evidence – was tapes of conspiracy that he was not indicted for i.5 W’s saw him numerous times walk a certain way . scheme. Rule 406 – Habit. Must be material proper purpose and that must be in play F. Specific instances can only be used to undermine witness – not prove bad character G.Evidence can be admissible but not . or system ii. Allowed a. Syarano – Guy found money in the back of car . Purpose – identify and intent ii. Routine Practice 1. Rule 405 – Methods of Proving Character 1. Evidence was offered in rebuttal – once he testifies and argues consent – evidence has MORE value b. US v. Prosecutor can undermine the credibility of the witness b. Testimony towards opinion – subjective of what witness thinks about person b. Charmely v.• Purpose is plan. Regular practice of responding to a repeated situation with specific conduct a. In a criminal case – opens door to relevant specific instances of conduct a. Rebut with opposite character trait same way defendant attempted to do so ii. Not a specific number of conduct i. Lewis – P always walked a certain way in a cross walk . Must state a specific reason iii. Specific instances are NOT allowed a. Testimony about reputation – collective hearsay of opinion of the community of a person’s character trait i. Except on CROSS 3. French v. Size of community matters ii. If purpose is not to show propensity (to infer what someone did) – list is non-exclusive iii. Prosecutor can undermine bad characteristics i.Evidence – widow wanted to show husband had habit of stashing none .Testimony of supporting a habit – tends to support the fact he does it multiple times ii.
Must directly contradict not if only . Remington Arms Co. Allowed to introduce evidence of changes that Boeing made after crash ii. Customs i. Subsequent – after (harm. Impeachment a. Inc. Rule 407 – Subsequent Remedial Measures 1. Defendant offering evidence of remedial measure a. lawsuit started.Company wanted to show that the form was sent • Using evidence that it was there routine policy . Remedy was made after lawsuit iii. – defective bolt lock safety – Remington changed their design – took stance as safest i. Must directly contradict W’s testimony i. Progressive v. Must identify reason it is fair or why policy still needs to be vindicated 4. Must be controverted a. 407 does not apply for non-party iii. or need for warning ii. Mere puffery a. Brown – Product liability where Brown sued on behalf of his dad when his plane exploded after a faulty part i. Robinson Property – premise liability – area after fall was taped off – only marginally touched and could not offered as impeachment evidence . discovery of fall) b. Remedial c. Reddin v. defect. v. Measure – action taken by someone to achieve goal 2. Boeing Airplane Co. Hartman v. Evidence not showed to show fault – doesn’t fit pattern of 407 5. Muzyka v. Not offered to prove: negligence. Must look at purpose – policy is to fix mistakes and not take a hit in court – encourage repair defective products and promote development 3. design.sufficient to establish the claim b. Kurtz – insured motorist with policy . culpability. Terms a. Extravagant statements of how safe iii.habit H. Opelika Machine and Welding – OMW made the device – worker is injured – exclusive tort = workers compensation i. Evidence of redesign was allowed ii.
Ruach is trying to offer in evidence of what Goldsmith found – purpose was damages . Oakcrest Dental center (480 F. or amount of a claim that was disputed as to validity or amount. invalidity of.3d 791) – case . negating a contention of undue delay. Ramada Development v. when offered to prove liability for.Evidence that is offered to mitigate damages b. (a) Prohibited Uses – Evidence of the following is not admissible on behalf of any party.Dentist Stockman sold to dental center (oakcrest) – worked out side deal where he could continue working – supposed to making a certain amount and he was . Furnishing or offering or promising to furnish – or accepting or offering or promising to accept – a valuable consideration in compromising or attempting to compromise the claim.marginally contradicts I. Stockman v. Rule 408 – Compromise and Offers to Compromise 1. and b. investigative. Bhandari v. Must be a dispute (not just offer to pay) and dispute must deal with damage or relate to amount of damage being claimed ii. and proving an effort to obstruct a criminal investigation or prosecution a. When there is a mitigation argument that deals directly – rule does not prohibit – until last year… i.Must have contested point (dispute) – based on fault or amount of damages . Offer to mitigate damages i. Conduct or statements made in compromise negotiations regarding the claim. or enforcement authority i. Examples of permissible purposes include proving a witness’s bias or prejudice. First National . except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory. (b) Permitted Uses – This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a).Report can’t come into evidence 2. or to impeach through a prior inconsistent statement or contradiction: a. Ruach – Ruach refused to pay because he wasn’t happy with work .Excluded is the report • Report says what the damages are • Ruach offered report into evidence • Ramada hired Goldsmith .
plea discussions. 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 (negotiations that deal with prosecutor) a. Rule 410 – Inadmissibility of pleas.terminated – filed age discrimination case – oakcrest made offer of reinstatement • Jury finds for stockman – awards damages • Trial judge held offer of reinstatement would not be admissible • Goes to mitigation o Offered evidence of reinstatement talk • Appeals said evidence was not properly admitted – issue of mitigation deal with amount of claim – reversed • Offered occurred during litigation o Might not have much of bearing of whether there was an attempt of mitigation J. or similar expenses occasioned by an injury is not admissible to prove liability for the injury K. Robertson – Robertson told DEA he will cooperate L. or (statements made in connection with plea proceedings) 4. hospital. Any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas. Chelreborad – charter sued for malpractice – P brings in expert – D calls in attorney and attorney testified that expert had a bad rap . and related statements 1.Evidence show bias – Alder is on approved list for insurance company – looking for . A plea of guilty which was later withdrawn. Rule 409 – Payment of medical and similar expenses 1. Evidence of furnishing or offering or promising to pay medical. Evidence is not allowed to prove to negligence or wrongful act a. A plea of nolo contender. Charter v. Only applies to prosecutor i. US v. (no contest) 3. Allowed to come in to show bias i. Rule 411 – Liability insurance 1. 2.
Morrissey v.First look at prohibited reasons • If does not fit within prohibited reason – most likely will come in . Ties into rule relating to oaths (603) – if W can tell the truth – the person is old enough to testify iii. D said child was not competent ii. Rule 601 – General Rule of Competency 1. Who is competent? – just about everyone a. US v. Dobbins v. Roman – D sexually assaulted a child – W was child who testified i. Allowed to show ownership i. If not on prohibited list i. Welch Co – Wall fell on P because of negligence . Civil actions when using state law for claim or defense – diversity cases . Children are competent and so is everyone else . En Clave offense – state law claims committed on federal property – become federal because of where they are committed ii. Rule 415 – deals with child molestation/sexual assault in civil case – generally comes up in employment cases where there is contact III. Article VI . Trumps rule 404a and 404b c. Rule 414 – Child molestation of cases 1. Same rule as sexual assault – evidence of admission of other child molestation cases is admissible to any matter as long as its relevant P. Evidence of admission of other sexual assaults is admissible to any matter in which it is relevant a.Not an exclusive list . Rule 413 – sexual assault 1. Rule 412 – Rape shield law – evidence of victim’s past sexual conduct 1. Crain Brothers. In a civil case – admissible if probative value outweighs unfair prejudice N. Wanted to admit evidence of 2 other sexual assault complaints O. Any evidence can be considered as long as its relevant b. Inc – P slipped on snow and ice . Guardia – D is charged with 2 counts of sexual abuse i.Unless there is showing there isn’t 2. State v.more work from insurance and more money b.Witnesses A.Alternate purpose – proper purpose under rule 411 • Proof of ownership or bias c.Show purpose to fit within the rule M.
US v. US v. He wasn’t allowed to testify regardless D. Fowler – Fowler is tax protestor – he didn’t wasn’t the kind of guy would lie i. Believability was up to jury 3. Peyro – D was charged with conspiracy to distribute cocaine – gf testified (memory issues and emotionally unbalanced) i. State v. Evidence wants in testimony of guy in next cell who could see through a crack in the wall . Confabulation – process of mixing facts that might be suggested to W while under influence of hypnosiss i. Must accurately must translate a. Shaw – Person in prison serving time – got into a fight with correction officer – McCrary-El wants damages i. Oath doesn’t have to resort to God or have an religion reference 2. W may not testify to a matter unless evidence is introduced to support a finding that W has personal knowledge a. Pre-requisite is proof that W has personal knowledge 2. Competency of state rules apply in fed court i. Foundation – that evidence that is necessary to establish the required facts to satisfy procedural requirement a. Rule 603 – Oath or Affirmation 1. Any word that W will utter that will impress the obligation of truth a. Hypnosis a. Brand – P and D were brothers – and D lived with F – F transferred all or most of assets to D – note that said assets would to be split between brothers .Jury decides W’s credibility c. Evidence – V could not testify without a facilitator .Standard – whether reasonable juror could conclude that W could see what W saw • Low threshold . US v. Rule 604 – Interpreters 1. Rule 602 – Lack of personal knowledge 1.a.Dead man statute says parties can’t testify about talks with deceased • Attacks competency about only in state law B. Certain facts that expert must testify to b. Warden – D was charged with inappropriate touching i. Brand v. Valdez C. Judge made finding that W had sufficient knowledge ii. McCrary-El v.
Two basis types of impeachment a. Rule 607 – the credibility of witness may be attacked by any party 1. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. Swinton – D was misrepresenting and a juror found and told the other jurors about a past criminal activity that was inadmissible . Rule 606 – Competency of juror as Witness 1. Challenge to witness himself WHILE witness is testifying on stand b. If the juror is called so to testify. Use of extrinsic evidence i.Jurors can talk about trial once it was over ii. Use of intrinsic evidence i. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth. Limits on use of extrinsic evidence when impeaching witness: . Straach – D was selling guns to nonresidents of Texas – jurors who sat in and contacted attorney saying he was innocent and they had compromised on their verdict . V could not utter any words iii. the opposing party shall be afforded an opportunity to object out of the presence of the jury a. Danger is that facilitator could change testimony E. and (3) protect witnesses from harassment or undue embarrassment i.When involves collateral matter – generally will not allow extrinsic evidence to be used to impeach G. (2) avoid needless consumption of time. Hertz – P had wisdom teeth pulled and wound didn’t heal right . Member of the jury may not testify as a W i. Rule 611 – Mode and Order of Interrogation and Presentation 1. Proof other than from witnesses own mouth ii. Court has a lot of power and reviewed under an abuse of discretion standard .Info was gained from outside sources .ii. US v. US v.Berroyer v.No less extraneous simply because it comes from a juror – juror brought from outside the court room • Extraneous info can come from different sources F. Rule 611(a) – Control by the court a.
Before testifying. if the court in its discretion determines it is necessary in the interests of justice. Rule 611b – Scope of cross-examination a. Direct should be take one small part at a time c. Rule 612 – Writing used to refresh memory 1. or 2. While testifying. Children who has trouble communicating e. Court may permit inquiry as if on direct – scenario of pathologist of W stand i. 3 different rules of scope i. Exceptions: i.Order of proof with respect to experts • D wanted an expert to testify during P’s case • P wanted to bring in rebuttal W right after D’s W • 611a says judge has discretion – fairness 2. Allowed on cross – leading questions help challenge the W to get the truth out (used to challenge testimony) d. Leading question – questions that suggest an answer b. Hostile W – a W who demonstrates a reluctance or refusal to testify iii. Not allowed on direct i. to inspect it. Biased W iv. Generally restricted to scope of direct . Leading questions shouldn’t be used on direct i. Federal rule embraces the restrictive scope of cross i. Rule 611c – Leading questions a. W’s credibility is included in direct c. Wide-open – on cross you can ask about anything relevant ii. cross the witness. Rule is not self-executing H. Develop testimony and get to point (through uncontested point to contested point) ii. Restrictive – limited to scope of direct iii. and introduce in evidence those portions which relate to the testimony • . the adverse party is entitled to have the writing produced at the hearing. Modified wide-open – scope is very liberal and not limited to the subject matter of direct – may deal with other things that may have an affect b.Always ask credibility questions d. On cross: i. Must do it as if on direct (no leading questions) 3.
Statement came from W’s own mouth9 b. You can use anything to refresh their memory i. What happens with item that is used to refresh? i. Ohio – drug bust dealing with plea bargain and who sold the drugs to who i. General rule – attempts to support credibility are not allowed until witness has been attacked 3. Done in front of jury – jury can take into account the process it took to remember f. Jury does not consider item c. Not read allowed in court room i. Jacbos v. Anderson – silence occurred before Miranda was given – i.a. Difference was that there was a silence before Miranda 4. What if W reads privileged document to refresh memory i. 613a – examining W with prior statement – statement need not be shown or disclosed to W but on request it shall be shown to opposing counsel – deals with intrinsic impeachment – don’t have to tell W of evidence a. As long as it jogs memory b. Statements. If W uses an item while testifying then otherwise has absolutely right to see ii. Doyle v. reports. Challenge to witness’s willingness to tell the truth and witnesses ability to do so b. W admitting he made prior inconsistent statement – intrinsic i. If I uses an item before testifying other side can see it g. Call into question accuracy of witness perception and witnesses sincerity 2. D remained silent and pros wants to introduce silence as evidence c. etc… ii. 613b – deals with extrinsic evidence – W is given opportunity to explain and opposite party is afforded an interrogation a. Privilege is trumped – requires production I. Contested buying drugs ii. Must be the product of refreshed memory e. Must first lay foundation by confronting W on DIRECT . Impeachment – attacking credibility of witness statement – any effort to undermine juries to put stock in what a witness says – process by which advocate persuades jury that witness is not worthy of belief a. Rule 613 – Using prior inconsistent statement 1. Must lay foundational facts d.
Attack on W’s character in order to undermine credibility a.There does have to happen a specific order of events b. US v. or shave testimony in favor/against ii. Pecuniary interest in the case . Peterson told Conolly of dynamite iii. Peterson – Dynamite was discovered after a conversation about D in connection with dynamite i. Interest in outcome iii.examination i. McClaughlin – tax fraud evasion – . Must afford W oppurunity to explain or deny ii. People v. Relationship with party iv. Court allowed testimony – introduced to prove Connolly was lying – used it impeach .Purpose not to prove underlying fact .Gave advice that he had to withhold the funds . Only trait is character for truthfulness or untruthfulness . Didn’t remember about dynamite iv. Can result from: i.Another W iii.Legit or corrupt 7. sway. Hostility vi. Issue – was who owned dynamite ii. In order to lay a foundation: I don’t remember is sufficient to lay foundation and then confront the W about it and give W opportunity to deny or explain 5. Can be evidence: . Prior inconsistent statement – some words written or oral that W made BEFORE the time the W was testifying i. Different that what W says on stand c. Any reason that W might lie. Inducement to testify v. Demonstration of bias a.D wanted to testify that Wietz had conservation • Not allowed because Weitz was not allowed to explain or deny .W’s own written statement . Impeachment is DUAL PURPOSE evidence – it can’t be used as substantive evidence 6.Only can offered to impeach Connolly’s statement d.Tape recording of W talking . Exception to 404 – 404a3 b.
Rule 615 – Exclusion of witnesses 1. or ability to communicate 9. and it may make the order of its own motion. Deals with opinion testimony with fact Ws’ b. Rule 701c i. Rationally based on perception of the W ii. or other specialized knowledge within the scope of rule 702 a. Limited testimony to: i.8. If W testifies that house on corner was blue – might bring in other W’s to prove house was red – to show that W was incapable or unwilling to impeach b. Helpful to jury to understand a fact or W testimony c. At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. At request of party – rule is NOT self-executing b. Exceptions: i. Parties to the case . Anthony – opinion that W was unstable was not allowed . If the witness is not testifying as an expert.Opinion testimony by lay witnesses 1. Counterproof or specific contradiction a. the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness. Essential parties to the presentation of the party’s case . Rule 701 .If party is a business – a rep gets to stay • More can stay if you can show they are essential ii. Demonstration of defect in perception. and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue. technical. W is being removed from court to eliminate collaboration of testimony i. Always be definition – involves extrinsic evidence – other 4 can use both types of impeachment J. Article VII – Opinions and Expert Testimony A. Person authorized by statute iii. a. US v. memory. and (c) not based on scientific.Expert witness • Doesn’t have person knowledge – sequestration order does not affect their ability to say what happened o Second hand and not a fact witness • Necessary IV.
Attempted to have expert W give lay testimony that they said was based up on rationale inferences rule introduced 2.Person who gave opinion was not able to establish rationale inferences . ..