Questions: 1. modus operandi exception to bar against evidence of character: applicable only to crim cases or also civil.

D only or W as well? Believe no, pg 198, plus 404b nocrim id 2. Do federal rules take bubble bursting or mccormik approach? 3. Foundation for extrinsic evidence of bias: if W denies statement/expression of bias during cross-exam is it still within the discretion of the judge to admit? 4. Where¶s rule requiring µgood faith¶ questioning (ex ± cross exam of W abt µbad acts¶ to impeach) + Must accept answer W on cross gives, cannot offer extrinsic ev. 5. Instances when a party may bring forth specific instances of conduct 6. Evidence of character available in civil, criminal (flow chart) 7. Important cases mentioned 8. If D raises good character evidence under 404(1)«and P wants to rebut by asking questions about specific instances, must she do it by questioning the same W or may she ask other W abt specific instances? 9. 609(a)(1) ± bringing previous convictions of W, when do 403 assessment is judge assessing whether conviction is probative or whether W actually committed the crime in question? 10. Notes: R. 401, parts 1&2 are strategic, 3 is legal«what does that mean!?!? 11. 404(b) ± must judge first do a 104(a) analysis abt legitimacy of admission (where you argue why it should be entered) before jury does 104(b) process of whether event actually occurred? 12. Pg 199 how could prosecution avoid use of extrinsic evidence to bring prior misconduct and instead cross examine D? Why would defense broach topic of past crimes«don¶t have to stay in general scope of direct testimony?

EVIDENCE OUTLINE I. TYPES OF EVIDENCE A. Physical Types of Evidence i. Real Evidence ± gun, paper, etc.; an object that played a role in the events at issue, produced for inspection at trial. Type of demonstrative a) Exception to admittance: if particularly disgusting, like an amputated leg but also depends on how presented. ii. Demonstrative±object that played no role in events at issue but illustrates something abt those events a) Ex ± maps, diagram, model, etc. iii. Documentary (special type) iv. Viva Voche ± from the mouths of witnesses [201] v. Judicial Notice ± a) substitute for other types, when highest ct. takes notice of efficacy of form of evidence (e.g. radar, DNA) b) Must be: 1. Adjudicative fact

Relevancy of Evidence [401. B.n«available at any time.g.n. ³Logically Relevant´ ± evidence that has any tendency in logic to establish a proposition b) R. not judge¶s own experience c) Scope: 1. 402 :ADMISSIBILITY OF RELEVANT EV. Assume for felony. 4. Shaq is 6¶10´) e) Timing ± any time. Prosecution puts on case and rests. Based on general knowledge. dispute that D trained to clean gun quickly)** g) Civil vs.n. Criminal  Jury not required to acceptj. even on appeal. ** «is applicable to the facts in way P stipulates (judicial notice Marines trained in guns. ³subjective´ points (Shaq is tall vs.g. ± relevant evidence is admissible except as otherwise provided by statute or constitution. 403] i. d) Not eligible for j. study that controverts study j.n. If unsure no j.n. c) R. Only before judicial notice ruled on and implemented [201(g)] 3. evidence may be excluded if its probative value is substantially outweighed by considerations of unfair prejudice.n.n. indictment for previous assault. Legislative facts (pre-nuptual agreements deter divorce) 2. 403 :PREJUDICIAL RELEVANT ± even if relevant. [201(e)] 1. 402.: 1. Judge may look at inadmissible ev (e. Only: adjudicative facts 2. 2. Civil  Jury must accept j.Capable of being known to a veritable certainty/ µnot subject to reasonable dispute¶ [³capable of accurate determination thru sources not reasonably questioned´] [201(b)] 3. forgot to show item worth $1k. may take notice of existence of docs in system. waste of time. based on). as conclusive«even if D asks for it  Past criminal conduct: ct. even during appeal f) P may controvert j. 401 :RELEVANT ± if has ³any tendency to make the existence of any fact that is of consequence to the determination of action more probable or less probable than would be without the evidence´ 1. .000. must show item stolen worth $1. but not the facts or allegations contained within) 2. ii. but likely not their contents (e.. If by preponderance of ev permitted 2. Criminal 1. If civil conclusive to jury«so anything to the contrary is inadmissible. as conclusive h) Practice Question 1. confusion of issues. Rules a) R. What can P do? Can request j.

. Logical Relevance a) Question: is the information PROBATIVE?. confusion:p. ³Legally Relevant´ ± Ev. cannot dismiss b/c unreliable W* Applies to:  Criminal + Civil  Both P + D  Exception ±Rule 609(a)(2) impeachment of witness for µdishonesty crime¶ w/o balance test. expense. incidents. cld remove prejudicial portions  Waste of time. Objecting to:  Analyzing (1) §401  what is probative value?  (2) § 403  what is unfairly prejudicial aspect?  (3) How is V substantially outweighed by P? Defending: minimize prejudicial facts/impact + max probative iii. Circumstantial Evidence ± Requires some inference musts show relevance a) Most facts require some level of inference ± even eye-witness¶ testimony. 3. Court Should Consider:  Available substitutes for that evidence (prob value & risk of prejudice) [Old Chief case]. outweighs.1. does it make proposition more or less likely (very low standard) b) But«may be admissible for one purpose but not another (but once in.  Ineffectiveness of limiting instructions: D facing murder of V via poison. 5. y Verbal testimony.  Admissible for one purpose but not another and danger jury won¶t follow limiting instruction. Examples:  Emotional appeal: personal injury plaintiff day in the life video featuring emotional scenes of P w/ fam.requires the inference that the witness is telling the truth b) FACT + INFERENCE = LEGAL PROPOSITION . evidence of defects in bullets at other plants«some probative but time of investigating differences in plants. case for defective bullets at D manufacturing plant 1. pros wants bring ev of V claim before died that D poisoned to show V¶s state of mind not to show D murdered but unlikely jurors wld be able to ignore for that purpose. c) iv. it¶s in. direct W to avoid inflammatory characterizations  *Testimony as accurate and truthful. stipulation. 4.. prejudice or confusion that is involved in considering it.. pre (not post) autopsy photos. 6. whose probative is great enough to justify the delay. so find way to argue its relevance). still illustrations (not computer animation). 2. etc.i.

INTRODUCING EVIDENCE A. may ask leading questions b/c otherwise difficult if µunfriendly witness¶ [only when unfriendly or all?] 2.Ex ± Officer states he saw Joe¶s wet jacket on the floor. Standard for Admissibility i. Removing Relevance: D may stipulate a fact/issue (essentially admitting to it) so the issue is no longer in contention  R. bringextrinsic evidence . in order to block evidence offered to prove admitted facts. relevancy?´ Irrelevant if has no tendency in logic to establish the fact that the proponent asserts the evidence will help prove. must: 1. Generally i. looking only at proponent¶s evidence ³authentication´ b) Jury decided = whether sufficient to be. Ct. Makes the inference is that Joe was outside in the rain around time Leslie was shot ³more likely´. 403 issue then. evidence to show fact is no longer probative and may be unfairly damaging to D = UNFAIRLY PREJUDICIAL a) Stipulation. Direct Evidence ± requires only the inference that the evidence is true vi. leading to idea he cld have been the shooter  Fibers. Leave no µgap¶ in the legal story (if it doesn¶t. P cannot claim that it will suggest to jurors that P doesn¶t have evidence to support the claim) 2. vii. v. Cover issue in its entirety ‡ Old Chief v. although it has logical tendency to establish fact its offered to prove. for appeal) b) Show to opposing attorney c) Witness testimony 1. 403 ³Waste of Time´ b) Evidence is Irrelevant ³Objection. B. 1. Exhibit to W 3. # for record clarity) d) Lay the Foundation (for Authentication if 901) 1. Relevancy Objections a) Evidence is Immaterial ± materiality can be confused with relevance. the fact is not at issue (may have been removed b/c of ADMISSION in the pleading. Types: a) Judge decided = sufficient for item to be admitted into evidence. previous assault conviction. United States ± D charged w/ being felon in possession of firearm. CONCEDED POINT) R. in fact. to approach 2. fluids. II. found evidence no longer held any probative value but details of the assault cld prejudice jurors against the D. Ask Ct. Process: * cannot reveal contents * a) Must be marked (even if not admitted. ³Can you identify?´ (ref. ³authentic´ ³authentic´ ii. D moved to STIPULATE to the offense if P agreed not to mention details of previous crime. P rejected. other physical ev.

Authenticating Documents[R 901. etc. Types requiring authentication: a) Real Evidence ± gen involves action in transaction or occurrence which gave rise to lit (guns. Basic Equation: a) (1. Requirements a) Authentication and identification as condition precedent to admissibility b) Evidence to support finding matter in question is what claims to be c) Standard: reasonable jury cld find item to be what proponent claims iii.e) If permitted. Types a) Production b) Persuasion B. tangible product for jury (make copies. etc.) FOUNDATIONAL FACTS + (2) REBUTTABLE PRESUMPTION = (3) PRESUMABLE FACT 1. proponent must offer evidence sufficient to meet a burden of production at to each foundational fact (trial ct. Presumption i. put on screen. Foundational Facts: from situation before the court (ex -P added stamp and address to a letter) 2. Original Document Rule III. Burden [301] i. Methods  Distinctive characteristics [901(b)]  Chain of Custody (from event -> ct) ± each person who touched exhibit must describe how and from whom received. BURDENS & PRESUMPTIONS A.) 1. CONCLUSIVE EFFECT (unless either presumption or facts challenged/rebutted) . Rebuttable Presumption: general proposition assumed to be true (ex ± letters which contain stamps and addresses and are put in mail are delivered) 3. 902] i. decides if have met) 2. Authentication by Identification [901] D. how handled ii.)«make sure jurors aware of contents now C. Presumable Fact: conclusion due to existence of foundational and rebuttable (ex ± D received the letter) b) Effect: if rebutted they will require a factual finding even if that finding is contrary to reality (assuming not rebutted by opponent of) 1. Must show:  Actual item from transaction or event  Has not undergone significant change 2. jury decision whether facts are true 3. cocaine. Self-Authenticating [902] iv.

facts exist MUST find presumable facts exist.two ways: foundational or presumed a) Nothing ± 1. Resolve issues ± otherwise diff b/c of absence of proof (ex ± title vii case. Permissive inference ± factual conclusion that the factfinder MAY draw from another fact or group of facts but does not have to. Facilitation of litigation process ± by resolving matters in accordance /w high probability. Fairness ± correct imbalance b/c of parties¶ unequal access to proof (ex ± between connecting carriers of goods. rules of substantive law. burden of persuasion then on D to demonstrate lack of unlawful discrimination). instructions to jury: if foundational found true  it MUST find presumed fact is true (P retains burden of persuasion as to underlying facts UNLESS so strong judge directs verdict) 3. If sufficient facts brought jury instructed: yes. child of wife cohabitating w/ a non-sterile husband child assumed to be child of the marriage «and no conflicting evidence may be presented). based on everyday logic (ex ± someone whose usual practice is to fasten seatbelt did so on relevant occasion) 2. 2. Challenging Presumption. If weight of evidence supporting facts so strong. once P proved firms failure to promote was motivated by her gender. ii. Substantive policy ± encourage/discourage certain types of out-of-ct. d) Distinguished from: 1. person is deceased so can settle wills) 3. streamlines process and avoids factual distortions by juries deciding fact is not true. if yes then given conclusive effect. to jury to decide if believes facts presented. damage occurred while the goods were in the possession of the last carrier) 2. behavior (ex ± that after missing for number of years. 3. Irrebuttable presumption± not evidentiary devices. judge may enter directed verdict for element of case or binding jury instruction b) Foundational Fact Challenge 1.c) Reasoning: 1. no. 4. Conclusive presumption ± not presumption at all. facts don¶t exist view facts normally and under normal civil standard 2. No challenge to underlying/ foundational ct. Challenge to foundational facts  jury determination as to existence  If jury says yes  MUST find that the presumed fact exists/is true  If no  view facts normally using civil standard of preponderance c) Presumed Facts Challenge . rule of law that change the nature of the facts needed to be proven (ex ± except otherwise provided by another stat.

Civil standard (even in crim trials) ii. In Criminal Cases a) Two types of presumptions 1.  P meets production and persuasive burden for foundational facts > J. First: whether preliminary fact exists/more likely than not fact exists a) Judge Considers: 1.I. Mandatory ± NOT ALLOWED as jury must make all findings regarding all elements of alleged crime 2. Even when jury will decide same question. Usually jury instruction issued. Why incl judge? B/c if find evidence excludable wld likely be difficult for jury to not incorporate into thinking iii. JUDGE DECIDED [104(a)] a) Test: more probably true than not (civil standard) b) Types of issues governed 1. OBJECTIONS + PROTECTING THE RECORD A.Bursting Bubble Theory ± after proponent puts forth facts to support the presumption. JURY DECIDED B.I. = presumed facts are true unless D convinces you they¶re not. credibility of witnesses . Permissive 1. iii. Preliminary Question ± i. qualifications to be (more likely an expert than not) 2. Voluntariness of confession 5. Expert witness. Preliminary questions ii. the presumption disappears entirely and jury is not informed of (functions as matter of permissive inference/may find either way) 2. Morgan McCormick theory: burden of persuasion shifts to the opponent to show non-existence of the presumed facts. = if foundational facts are true  presumed facts are true unless D persuades that more likely than not presumed facts are untrue. Two ways  P produces sufficient foundational ± D produces sufficient against foundational (neither meets persuasive burden) > J. Applicability of hearsay exception 3. if opponent produces sufficient evidence to meet the burden of production. Concerning: a) Qualifications to be W b) Existence of privilege c) Admissibility of evidence iv. even inadmissible evidence 2. IV. Existence of privilege 4. Standard i.

Exclusion against. evidence of victim¶s peaceful character [404(a)(2)] g) Witnesses ± for truthfulness or untruthfulness (at discretion of the ct. unlessjudge decides µno reasonable jury cld reach such a conclusion¶ iv. not only judge deciding a) Fact finder Considers: 1. Only admissible evidence (otherwise jury cldn¶t hear) 2.)[608] h) Propensity Exceptions ± not being used to show conformity but for some other purpose [404(b)] i) Habit is freely permitted ii.honesty. Civil Trials a) Character of the W for truthfulness or lack of (at ct. Defendants. ii. generally: prohibits reception of evidence illuminating a person¶s (Witnesses. of which jurors assumed to have insufficient knowledge iii. encourages rigorous logic exercise about event. peacefulness (not stroke victim¶s forgetfulness«medical condition) 1. B. when that evidence is offered to show action in conformity with that disposition on a particular occasion. Conditional Relevance i. V. CHARACTER EVIDENCE [404(a)] i. not required to choose between evidence rules.C.´ b) ³Character´ ± generalized descrip of disposition or general trait ex .¶ minus limitations under 412 in sex offense cases d) P bringing positive character evidence of V to rebut D character claims against the victim (Note: objectionable if P raises before D does) e) P bringing negative character evidence against D pertaining to the same trait which D brought against V (Note: objectionable if P raises before D does) f) Homicide case ± D claims victim was original aggressor. temperance. any party on stand) general deposition. a) Reasoning: ³ct. Exceptions to the Exclusion i. when relevance depends upon existence of some other fact. not whether W good/bad person. WITNESSES A. Arising from: one¶s morals ±this is not settled tho²over which one has substantial element of choice and ppl view person more or less favorably as a result. Criminal Trials a) If D raises his own character which he raises and is relevant b) P rebutting D¶s claims of good character ± may use specific instances when questioning same W [404(a)(1)] c) Accused offering evidence of pertinent trait of µvictim. discretion) [608] b) Propensity Exceptions .

) 3.e. acquittal (sometimes) iii. Some claim evidence of modus operandi must be extremely distinct = signature.  Racially motivated past crimes show motive/enmity against group  Previous assaults against same person (show dislike as well as µlack of mistake¶) 2. Standard for admission: to be allowed. ii. Prior Bad Acts404(b) ± (available in both civ and crim).g. and µmisconduct¶ shows that the act need not be a criminal one. etc. D prior imprisonment as evidence selling cocaine to support family) (but another did not allow evidence of alderman¶s gambling to show motive for stealing money from city«said wld be allowed if pressing gambling debt). although both may show anger over interference w/ . i. Motive ± may be the ³ultimate issue´ in a criminal case to show intent or in civil to support award for punitive damages.  Ct. how many times can one dude¶s wives drown in the bath accidentally?)  Defending against: the situations differ in some manner (Joe previously punching guy who hit on girlfriend not same as Leslie being shot. Modus Operandi ± distinctively similar method admitted to show (a) IDENTITY. wife soon found drown in bath tub«P wanted to incl two other similar instances  admitted to go to identity  DOCTRINE OF CHANCES: addresses relevance of similar misconduct and describes mental process of considering the likelihood that an unusual or unexpected element would occur«and the likelihood the unique factor would be coincidentally replicated in linked instances (i. The act may be admitted not to show conformity but may be used to show a) Circumstantial support for ultimate issues 1. judge must determine if a reasonable jury cld believe D committed act by preponderance of the evidence. but significantly undermines 404(a)¶s denunciation of character evidence as distinction is so slight. have allowed in for variety of reasons (nurse addiction as reason replaced patients¶ demerol shots w/ saline. supposedly not being used to show individual in question acted in a consistent manner. Preparation ± uncharged crimes may be used. Uncharged misconduct evidence is the term often used to describe what may be admitted to prove the µpropensity exception¶ b/c µuncharged¶ implies the act is not the crime currently being charged in ct. a) May include: evidence of crimes/misconduct which did not result in conviction. joint wills. often that of the defendant as perpetrator or also (b) LACK OF MISTAKE.  ³Brides in the Bath´ case where man assumed fake name.C. stole car to use as getaway vehible for robbery. e. married wealthier woman. broke into store to take tools used for bank robbery.

etc) &b) the ultimate fact it tends to prove(is it circumstantially showing something or does it go to an ultimate fact/element?) 2. makes additional evidence less probative and more vulnerable to 403 objection  Alternative methods available to prove same point  if in blurry range btwn µgeneral bad character¶ evidence and µpropensity¶  argue it is unlikely jurors cld consider ev only to element of motive. an absence of mistake. murderous temper) 3. Relevance scrutiny: proponent must put forth evidence showing both a) the immediate purpose for the evidence offered(what does it go to prove? Move. Also. bar incident was heat of the moment and Lelsie incident on g. must bring sufficient evidence to show that a reasonable jury could find by a preponderance of the evidence that W did commit the act in question d) New York Rule: the list of exceptions is exhaustive and evidence of µcharacter¶ may be brought in ONLY for those purposes listed.  Defense: if info being used is overly prejudicial (ex ± broke out of prison in area of robbery) should object due to existence of less prejudicial methods b) Ultimate Issues: 1. etc etc. 4. undermines that defense. Commonly through modus operandi.females. If solid case already. Can also be used to disprove D claims (if attributes bank robbery he committed w/ B but next day committed another crime w/ B but was not under duress. must ask if«arouses horror or sympathy? Invoke desire to punish? Remoteness in time of crime or other bad act?  Strength of evidence of case before the court. Intent/Absence of Mistake ± shows existence of a state of mind that is a prerequisite of commission of the crime. opportunity. 2. 403 determination. more directly (ex ± D attempting to bribe juror suggests he is guilty and has something to hide). Also.  Be careful! Close to being simply character evidence²which is barred (if on trial for shooting A. .f. undermines claim). Common plan or scheme ± underlying multiple crimes. not interferer. evidence stood trial for shooting L will only serve to prove the D has a violent. 3. Knowledge± previous warnings abt illegality of certain activity may be used to undermine D claims of ignorance. c) Must also withstand: 1. 5. 104(b) determination. fact stole one missing piece may be used in case following son¶s second theft of gun from collection. showing of D was not acting under false impression. like if son trying to reconstitute father¶s gun collection. Opportunity ± shows that D had chance or ability or means to commit the act in question. Identity ± uncharged misconduct may be offered to show identity of person who committed certain act.

Must include: ³pertinent trait of character´ (specific traits ± honesty. Cross D¶s W ± allows P to ask of specific instances of D conduct re: traits W testified to on direct 2. general statement of µgood character¶ ± not ok) d. 1. P offered evidence that sold stolen/apparently stolen goods before to show guilty knowledge.W on D character for truthfulness/credibility as W source Not w/i scope Crim. Balance: full flavor vs.Crim Case: D offers ev of good character about D (³opens door´) P may offer contradictory ev. attack W character for truthfulness other side may then support W character ÌW may incl : D if takes stand as W. nonviolence. against Victim character  P may attack D characon same attribute 3. Call own W ± in form of reputation or opinion b.prior convictions of D . ‡ Huddleston v. 404(a)(1) 405(b) 405(a) Crim 404(a)(2) Crim 404(a)(2) Civ/Crim 608 .e) Res Gesta/Complete Story± W permitted to tell story in a natural fashion. against may incl. United States (1988) ± D accused of selling stolen goods based on his selling at below the cost of manufacture.Any P. prejudicial f) Quantum of Proof: Uncharged Misconduct ± must show not whether person was guilty of the uncharged offense beyond a reasonable doubt«but whether the uncharged offense demonstrates proof of the charged offense beyond a reasonable doubt. denied knowing they were stolen.(a) Crim: D offers relevant ev. against Victim character  P may support character 2(b) Crim: D offers relevant ev. Must be in form of: Opinion or Reputation by knowledgeable W c. Burden: showing of evidence sufficient to allow a reasonable jury to conclude that D had committed the prior acts  CONDITIONAL RELEVANCY THEORY ([104b] jury obligation to consider evidence only if it decides by a preponderance of the evidence that the fact at issue is true) 2. ex ± Brook¶s racial attitutdes Not Excluded (Character Ev not barred by rule) ‡Direct Conclusion Evidence ± leads directly to  conclusion X more or less likely to have occurred = not banned 1. . Relevant to crime charged with ÌP method of rebuttal: a. ev. 3.ok. admitted for that purpose NOT for saying anything abt character 1. [note: may also act as witness and treated as such] Ì Limits a. Not allowed: specific acts ± minus basic background b.

In Business: to show processes iv. Distinction from character: habit is semi-authomatic/reflex response to particular situations.4. Sexual Assault/Child Molestation: similar conduct of Too narrow and specific to be character trait = TENDENCIES or MODUS OPERANDI (µidentity¶ example) When character is element of cause of action. Habit i. character is not used to speculate D behavior. 414. Procedural i. For Admission: no requirement habit or routine be corroborated by other evidence. Notice P must give if intent to offer uncharged misconduct in crim trial [404(b)] a) Motion in Limine ± D may offer in response to possibility of uncharged misconduct  may influence his decision to take the stand. . iii. 413. Limiting Instruction (uncharged mis) ± inform jury that only purpose of evidence is to shed light on D¶s possible motive/intent/etc and not to show D had a bad character and was likely to commit crimes of they nature charged. Excludes: Excluded (Character bar applies) ‡Two steps of inference: Evidence via W testimony: General Disposition  Conclusion act more or less likely = Barred Evidence used to ³circumstantially´ prove out-of-ct behavior Reputation (way of showing character but may be undeserved) Specific instances of conduct. opportunity. whether is habit is not a question for the jury] a) To argue against: not sufficiently regular « depends on how great the need is for inclusion b) Must meet § 701 test ± Opinion of lay witness E. like motive. do not need eyewitnesses. Prior bad act  if showing something other than character. if offered to show general disposition Source D. Evidence of habit is freely admissible ii. but decided by judge [104(a) ± by a preponderance of the evidence. 415 Civ/crim 404(b) 404 ± not showing conformit iv. but end in itself. ii.

W identifies w/ adverse party ± merely being friends is insufficient.¶ In part to avoid prejudice. On Cross a) May use leading questions b) Content is restricted to matters raised on direct 1. On Direct a) May not use leading questions (which suggest answer in question). it preserves for appeal. common) 3. To refresh recollection (can use not only verbal prompts) 4. To discuss things/facts/matters not controverted b) REFRESHING RECOLLECTION [612] 1. except 1.a) Purpose: even if unlikely to effectively separate in mind of jurors. Defending: not prejudicial and will not involve hearsay or inadmissible evidence (careful. Once W memory sufficiently refreshed 5. request limiting instruction or that information be µneutered. bring as own W c) c iii. must be evasive b) Beyond Scope ± on cross-examination. if wrong anger judge) e) Compound Question ± incl. Take item away ii. iii. Transitional questions (v. Stipulation ± to avoid evidence which may be legally admissible for a purpose. Approach judge to seek permission 3. iv. Partial exclusion/ Redaction/ Limiting Instruction (dual purpose)±when evidence admissible for one purpose but not another. To get in«invite as own W c) Assumes fact not in the record ± can¶t do on direct. just b/c in discovery does not mean in evidence d) Calls for Narrative Response ± witness could reveal inadmissible evidence if prompt not sufficiently narrow. stipulate that point if less damaging than details being offered (P wanting to present evidence of Joe¶s shooting at motorist to show he knows how to operate a gun/´ability or knowledge´«just stipulate knows how to operate gun). W must demonstrate cannot remember facts asked to recall 2. multiple questions in one and cld confuse W or give inaccurate impression. F. 1. Adverse party 3. Hostile witness 2. Preliminary questions 2. Form of Question Objections a) Leading ± on direct not allowed unless« [611(c)] 1. may not as any questions of witness dealing with topic not addressed during direct 1. May bring anything OR use leading questions ± does not need to be admissible into evidence (however may redact irrelevant points and furnish to opposing counsel if so request) 4. . To get in. QUESTIONING WITNESSES i.

Move to strike from record to preserve for appeal G.f) Non-Responsive ± W not answering question asked of him/her 1. ³will assist trier of fact´  To assist. 1999) 2. Carmichael (S. specialized knowledge´ 2. R. 701 ± LAY TESTIMONY a) Basic Elements 1. R. R. Product of reliable principles and methods c. 704 removing ban on Opinions on Ultimate Issue. Kumho Tire v. Facts garnered from own observation . or specialized knowledge´ b) Argument for Excluding 1. ³rationally based´ 2. ³may give opinion´ [703]  Not based on speculation. ³Helpful to´«not helpful if:  too general  too specific  merely concludes element at issue (despite R. Reliably applied principles to facts 3. ³not based on scientific. technical. must be: y Relevant y Reliable: a. generally is not helpful) ii. 3. technical. Ct. Daubert v. Bases of Opinion Testimony (by Experts) [703] a) May not base opinion on speculation. 602 ± Personal Knowledge 2. ³Rationally based´ ± have collected underlying facts but did not reach a logical conclusion. ³W qualified as an expert´ 4. Subject matter: ³scientific. may base on« 1. Inc. may be based on« b) Cases 1. W MAY NOT testify to:  Criminal case + whether D possessed mensrearequrd iii. Merrell Dow Pharmaceuticals. Opinion based on sufficient facts or data b. 704 ±EXPERT TESTIMONY a) Basic Elements 1. ³helpful to´ 3. LAY & EXPERT WITNESSES i. Ex. [704] c) Exclusion 1.

 See text d) Daubert Admissibility of Methodology [702] 1. If opinion based on ev. derived from trial  does not have to be revealed by direct attny using hypos (as was pre-FRE practice) 3. Ex. Gave opinion on substantive issue 3. specialized b. 2. If facts learned out of ct. and are a type reasonably relied upon by experts in the particular field in forming opinions on the subject b) Disclosure of factual basis [705] 1. Facts: lower ct. W qualified to testify to the particular knowledge (on direct) 2.  Lag b/c takes time for group to catch-on to  Field has diff standards than ct. may be lower as not being used to incarcerate or penalize person gen. . not scientists.. is the gatekeeper  encourages thorough logical analysis  Foundation y 104(a) judge preliminary question: subject matter appropriate for expert testimony? see 702 ³reliable principles and methods´ a. ruling overturned for failing to meet general acceptability test b/c manner in which scientists conducted tests to determine if med was carcinogenic was not gen used«reversed Frye. Rule:  Judge. Non-experts: testimony based on SPECIALIZED EXPERIENCE rather than formal scientific training (Kumho tire)  subject to gatekeeping examination and use demonstrably valid 2. Current applicability:  NY 5. Test of methods: general acceptability in field 4. posed to expert usually thru hypothetical question 3. determines probative valuesubstantially outweighs prejudicial effect c) Pre-Daubert: Frye Test Admissibility of Methodology 1. Facts not in evidence but expert learned out of ct.g. technological. Criticism:  Junk science admitted b/c those who use it obvi consider it acceptable even if incorrect (divining rods e.)«often only 55 users and was considered ok. Experts: scientific.Facts presented in evidence at the trial. must NOT reveal those facts/ basis of opinion unless«  Ct.W does not have to reveal basis for opinion on direct but may be questioned abt on cross 2.

(ex ± falsifying academic record on employment application) y Must accept W denial of the misconduct. Using:  Extrinsic evidence b) CHARACTER ± Untruthfulness [608] 1. IMPEACHMENT i. Modes of Impeachment(The Crazy COP Can Pray) a) COMPETENCY 1. Is W qualified to serve as µexpert¶? Has theory/technique been tested Controls and standards established and maintained? Peer review studies published? Known error rate? General acceptance within scientific community?  Considerations y y y y y y H. Process/Method a) Must be a good faith basis for factual validity of matters raised by questions b) Extrinsic Evidence 1.y methodology but not need meet same requirements as scientific«. Attacking ability to perceive. Permitted at discretion of the judge (!!!) [608(b)] iii. Using Character Evidence a) Specific Instances of 1.depends on category. Not permitted:  To impeach on collateral issue for truthfulness (but if relevant for another reason may bring in extrinsic evidence) ii. For truthfulness or untruthfulness 2. recollect or narrate 2. cross examiner must accept the answer  Prior criminal conviction that reflects on truthfulness . Permitted:  Inconsistent statement  Bias  Mental capacity 2. Using:  Generalities about character (bad reputation or opinion of W)[609] y Must pertain only to truthfulness and be extremely general  Cross examine regarding specific misconduct (that did not result in conviction and reflects on truthfulness) w/ permission of ct.

or perception y EXTRINSIC is permitted (make sure not using for heresay excluded purpose!!!!) 3. Methods  Collateral issues: only relevance is fact W prev said something contradictory abt (ie type of food served at work picnic in sex assault case). d) PARTIALITY/ BIAS 1. REHABILITATION . On direct:  May use extrinsic evidence e) CRIME f) PRIOR INCONSISTENT [613] 1. y May question W abt (ct. but common law approach is preferable b/c W may not be available later  Does not apply to party-opponent«extrinsic of prior inconsistent statement admissible whether or not a foundation has been laid by asking p-o abt  Queens Rule minority: if going to question W abt writing or prev statement must first ask foundational questions  If reading from a document  W has right to see and is often most effective if have W read from. a substantive issue of suit. When inconsistence lies in what W originally did not say or left out (admissibility depends on whether it is something wld naturally include) 2. Using:  Cross examination (specific instances)  Use of other previously introduced testimony  Witnesses own prior inconsistent statement  New evidence contradicting W¶s testimony  Extrinsic evidence regardless of whether collateral issue  Note: if it is a collateral issue. 4.  Independently relevant: may be also used to show bias. Foundation [613(b)] for EXTRINSIC ± do not need to confront w/ the prior inconsistent before bringing in the extrinsic evidence. Defending against  Not inconsistent (purpose is to shed light on credibility«does statement offered do that?)  I. c) OPPOSING TESTIMONY 1. On Cross: may impeach in any mode so long as permission of judge [608] + good faith basis 2. Opposing testimony conflicting content of W testimony 2. has wide discretion to bar or allow) but MUST accept W answer. extrinsic evidence used to contradict the W may be kept out by court under 403 waste of time anyway (unless case is close).

No  Not hearsay. C. Certain Documents D. P-O exception rather than exemption to hearsay C. Civil case or homicide prosecution 5. Only partially disserving: c) Forfeiture by wrongdoing d) Dying Declaration 1. in but not substantively EVIDENCE EXCLUSION± NY A. Declarant is Unavailable [804] a) Former Testimony b) Declaration against interest [(b)(3)] 1. ³Speaking agent´ ± must be authorized to speak for the principal (regardless of scope of his employment) D. time. CONFRONTATION CLAUSE i. to whom statement was made) B. not diagnoisi F. HEARSAY A. Types of interests that qualify: 2. Yes  Does it fall into hearsay exception or exemption?  Is it testimonial? 2. Unavailability 2. EXEMPTIONS B. Medical diagnosis ± must be for treatment. i. Dead Man¶s Statute: prohibits an adverse party from testifying a dead person¶s eastate a/b transaction or coversations w/ dead person . place. Statement concerns the cause or circumstances of death 4. Scientific expert ± Frye test rather than daubert E. follows Queens rule (foundation: must tell subject. VII. Personal knowledge required iii.VI. 613(a) ± must give notice of previous inconsistent statement. Consider: a) 1st: Is it Hearsay? 1. EXCEPTIONS i. Belief death is imminent 3. VIII. Residual Exception ii.

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