Evidence Reading PDF

Reading Image result for NBA Rules Sunday, January 5, 2025 10:28 PM   - **What is Evidence Law?** - Focuses on this central question: Can this material be heard by or shown to the trier of fact? → [is this evidence admissible]? - FRE (Fed Rules of Evidence): typi...

Reading Image result for NBA Rules Sunday, January 5, 2025 10:28 PM   - **What is Evidence Law?** - Focuses on this central question: Can this material be heard by or shown to the trier of fact? → [is this evidence admissible]? - FRE (Fed Rules of Evidence): typically grants the trial judge with broad discretion with a bias towards admissibility → the theory that the more evidence admitted= inc the truth will be revealed - **How do the FRE Work?** - Each rule provides an independent basis for objecting to the admissibility of evidence - Every objection (obstacle) has to be defeated before evidence can be admissible. Several objections can be overruled [but if even one] is sustained than it could be admitted/unadmitted into evidence - **Ex:** P: The witness testimony is not hearsay, not irrelevant, nor is does the witness personal knowledge. The evidence should be admitted - **The Trial** - Factual findings are not subject to appeal - Our adversary system goal is not to get the truth but to [win ] - FRE 102: These rules should be construed so as to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the dev of evidence law, to the end of ascertaining the truth and securing a just determination - **Stages of the Trial** \*note\* a judge has discretion on the exact order but generally trials follow as such:  Each evidence rule is like a hurdle, a different basis for objecting to admissibility. The runner, is the item of evidence in question. It must cross the finish line to be admitted.   Image result for taekwondo first place podium olympics **Pretrial Motions** - **Motions in Limine**(often made verbally): If the attorneys cannot resolve the evidence issues by agreement they can make a motion to the judge to resolve the issue - Happens [outside the jury] as to not prejudice a case by hearing questionable evidence - Admissibility rulings during this phase might get s[ettlement negotiations restarted] b/c an attorney can recalculate their chances of winning at     ↓ **Jury Selection** - **Sixth Amend** guarantees a [criminal defendants] a right to a trial by jury - **Seventh Amend** guarantees a [civil party] the right to a jury trial in \"suits at common law where the val in controversy exceeds twenty dollars\" - In either case, a jury can be waived = **bench trial,** where the judge sist as the trier of fact - **Voir dire:** jury selection process - **Challenges:** when a lawyer decides on whether to contest the inclusion of juror - **For cause:** a type of challenge that signals that a jurors answer to a question reveals disqualifying information (i.e familiarity of the case, bias in favor or against a party) - **Peremptory challenges**: a number of challenges each defendant and prosecutor receives to excuse a jury w/o showing cause    ↓ **Preliminary Jury Instructions** ↓  **Opening Statements** - Plaintiff (civ)/ Prosecutor (crim) [prese nt first] since they have the burden of proof - **Case-in-chief**: the presentation of evidence \**the opposing party can wait until the prosecutor/plaintiff has presented their opening statement **[and]** case in chief to present their opening statement **[or]** present their opening statement before the plaintiff/prosecutors case-in-chief* - Typically includes: nature of the case, name of the witness, explanation of the witness testimony that he/she is expected to give, and describe what she believes it will prove   ↓  **Presentation of Evidence and Limiting Instructions** - Before the presentation, counsel will notice the fact finder of any stipulations (an agreement btw the parties usually as to material facts of the case but which there is no dispute) - Ex: murder def claims he acted in self-defense. Both parties agree that there is no dispute that the def shot victim in the head. Still a dispute over whether it was self defense - **Sidebar**: a conversation at the bench regarding objections or motions to strike. This is done to prevent the jury from hearing faulty evidence - [Witness Testimony Sequence ] - +-----------------------------------+-----------------------------------+ | **Direct examination** | Begins with party who called | | | witness | +===================================+===================================+ | **Cross examination** | Opposing parties opportunity to | | | question witness. *Goal: to cast | | | doubt on credibility of the | | | witness. The lawyer wants to tell | | | the story and to do so they ask- | | | leading questions.* | | | | | | - | +-----------------------------------+-----------------------------------+ | **Redirect examination** \*most | reply to the cross examiner | | courts allow | | +-----------------------------------+-----------------------------------+ | **Recross examination** | Reply to the redirect examiner | +-----------------------------------+-----------------------------------+ - [Evidence Types ] a. **Exhibits:** physical items that have a bearing on the case b. **Demonstrative evidence:** charts, diagrams, reenactment c. **Real evidence**: tangible items i.e., murder weapon - **Preliminary facts:** facts that must be proven to make evidence admissible/inadmissible a. Ex: [proving that defendant is married to the witness] and therefor spousal privilege would make the testimony inadmissible b. **Establishing the foundation for admissibility:** when evidence law makes admissibility dependent on proving certain preliminary facts or following a specific procedure  **Plaintiff/Prosecution\'s Case-in-Chief**  **Defendants Case-in-Chief** - If the defendant has asserted an **affirmative defense** \[an assertion of facts and arguments that, if true, will defeat the plaintiffs claim, even if all the allegations in P\'s complaint are true\] - Ex: insanity - If the defendant fails to offer sufficient evidence for the affirmative defense, the court may refuse to instruct the jury to consider that defense - Defense will also aim to offer evidence that [undermines] the prima facia case - Especially the case in civil cases where the burden of persuasion (preponderance of the evidence) [slightly favors the defendant ] ↓  **Plaintiff/Prosecutor\'s Rebuttal Case & Defendants Surrebuttal** - **Rebuttal Rule**: in most instances, unless a court states otherwise, the rebuttal is [ limited to the issues raised by the defendant\'s case-in-chief ] - Instance where there is an exception to the rule: in the interest of justice - **Surrebuttal:** at the discretion of the court, but this is when a defendant has an opportunity to respond to P\'s rebuttal  **Motions after the Presentation of Evidence** - After the evidence is presented, either party can ask the court to decide on all or part of their case as a \"**matter of law**\" - Civ case= directed verdict - Crim case= dismissed charges  **Closing Arguments** - Includes how all of the evidence fits together in a way that = win - May also explain why certain evidence (already on the record) should be viewed more favorably than other evidence - [May not]: state facts or suggest inferences that are unsupported by evidence on the record - Party with the burden of proof will usually go first  **Jury Instructions** - Court must instruct the jury about the law it should apply to the facts it finds to exist - Although the parties often differ about how the court should instruct the jury, [it is the courts job to determine the applicable legal standards ]  **Jury deliberations and Verdict** - **General Verdict:** simply declares who and wins and what the applicable remedy is - **Special Verdict:** answers a series of specific questions posed by the court on a special form. The jury\'s written responses helps to decide the verdict  **Post-Trial Motions and Entry of Judgement** - During [civ cases only], a losing party may ask the judge to grant a new trial or enter judgement notwithstanding the verdict (JNOV) - **JNOV:** can happen when the court believes there was no factual basis for the verdict or it was contrary to the law - Motions for a new trial can be made during [criminal and civ cases] during one of the following: - The jury was exposed to prejudicial info not presented at trial or - The jury was subjected to improper outside influences - A court that has made a ruling on a post-trial motion may enter a judgement (made by the court) on the verdict (made by the jury). The judgement, not the verdict, is appealable. - Exception: gov party in criminal cases [may not] appeal   - **Appellate Review of Evidentiary Issues** - FRE 103. Rulings on Evidence - \(a) **Preserving a Claim of Error:** a party may claim error in a ruling on evidence [only] **if the error affects a substantial right of the part [and]** - \(1) the ruling admits evidence, a party on the record: - \(A) *timely objects or moves to strike and* - [Ideal time to object:] after the question and before the jury has heard the answer b/c it - [Ideal time to move to strike:] if a timely objection is not made, the court will allow a motion to strike if it is made immediately after the answer is given - \(B) *states the specific ground, unless apparent from the context;* **or** - Ex: P: \*witness on stand makes an evident hearsay comment - \(2) *if the ruling [excludes evidence], a party informs the court of its substance by an offer of proof unless it was apparent from the context* - Ex: P: Your honor this evidence is admissible as a present sense impression - The offer of proof gives appellate court basis of review and to access whether a substantial right has been effected - **(b) Not Needing to Renew an Objection or Offer of Proof:** once the *court rules definitively on the record,* either before or at trial, a party need not renew an objection or offer proof to preserve a claim of error for appeal - **(c) Court\'s Statement about the Ruling; Directing an Offer of Proof:** *courts may make any statement about the character or form of the evidence, the objection made, and the ruling*. The court may direct that an offer of proof be made in question-and-answer form - **(d) Preventing the jury from Hearing Inadmissible Evidence:** to the extent practicable, the court must conduct a jury trial so that *inadmissible evidence is not suggested to the jury by any mean*s. - **(e) Taking Notice if Plain Error:** a court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved - \"Plain error\"= if it is so obvious that a formal objection should not be necessary to alert the trial court to the problem - **3 Things required to successfully appeal a trial court\'s error in applying evidence law** - The appealing party must have preserved the issue for appeal - Must persuade the appellate court that the trial court erred in either admitting/excluding the evidence - The error must be shown to \"effect a substantial right of that party\" - **Why is does there have to be a record?** - It gives the trial court an opportunity to assess its own ruling and correct their own mistake - Gives the appellate court an effective way to determine whether the trial court committed an error - **How much deference does an appellate give to the trial court\'s evidentiary ruling?** - Errors reviewed under an **abuse of discretion standard** meaning they give strong deference to the trial court b/c they so frequently have to make on the fly decisions with little time to reflect. - [Line drawn between deference and abuse of discretion? ] - It is difficult to draw because a trial judge is in a better position to determine the specific jury and trial along with it effects - FRE 403: a trial court \"may\" exclude relevant evidence if the court finds that the probative value of the evidence is substantially outweighed by concerns such as unfair prejudice , confusion, delay, and waste of time. - Finding errors ≠ the appellate court will reverse. Reversal is only required when the **error is prejudicial** - Prejudicial standard: something that can cause harm or unfairness Image result for mr reed i object meme    1. **My Answer (MA**): I believe the court should first assess whether or not the admission of the evidence creates an effect on a substantial right of the party. In making this assessment, the court should do several things beforehand. First, they should confirm that the objection was preserved properly. A preserved issue should be clear on record and should include on the record the objection or motion to strike and the specific grounds that it is found on. An exception to the later component, specific grounds, is if it is clear through the context what the grounds are. Once confirmed, the appeals court should apply an abuse of discretion standard when viewing the case. If the court finds there is an effect on a substantial right on the party through the abuse of discretion standard, it should then move to redress that error. 2. **MA:** The defendant can cite FRE 103(e) plain error. This rule states that a court can take notice of a plain error on a substantial right even if the issue is not preserved properly. 3. He could ask make a motion to strike the testimony as evidence. Its not too late, although not ideal 4. The plaintiff should still try to offer proof of the excluded evidence and inform that the court that he/she is doing so record the issue for appeal 5. There is an argument that it could be for abuse of discretion since it is a clear that it violates a rule and the court admitted evidence. FRE 403 grants the court discretionary power to dismiss or exclude relevant evidence not to admit it. 6. D can argue that it was not only a plain error under FRE 103(e) and a prejudicial one 7. No, an error does not equal a reversal. A trial court is almost certain to make an error, there is only a reversal when the error is prejudicial 1. This was not an egregious error. Simple hearsay does not qualify as being a plain error and therefor the attorney did a bad job and the case cannot be appealed. 2. This is adequately preserved because they already objected on the record on the grounds. It is sufficiently preserved but not ideally preserved. 3. Correct! 4. Correct! But you should make an approach to the bench to do so. 5. The court cannot use FRE discretionary. The appellate court will look to see if the court made an error which it will do de no vo. They will then look to see if the error effected a substantial right. FRE 403 is not at all relevant 6. Correct, plain error b/c it was so egregious. 7. Correct.   - **Sources of Evidence** 1. **Witness**: a person who provides evidence in the form of a court room testimony or out of court statement 2. **Real evidence:** i.e. murder weapon 1. In rare circumstances, some facts may be proved without evidence - **Judicial notice:** when the law permits courts to assume the existence of facts when those facts are well known and indisputable - **Witness Competency** 1. FRE 601: every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness\'s competency regarding a claim or defense for which state law supplies the rule of decision - Competency ≠ credibility - Requires the application of state competency law when *three conditions are satisfied* 1. The issue arises in a civil action or proceeding 2. It concerns an element of a claim or defense and 3. The claim/defense is one as to which state law supplies the applicable substantive rule - **People unable to testify (Exceptions to the Competency Rule):** 1. [Jury ] - FRE 606: 1. \(a) **at the trial:** a juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury\'s presence 2. \(b) **During an Inquiry into the validity of a verdict or Indictment** - \(1) ***Prohibited testimony or other evidence***. During an inquiry into the validity of a verdict or indictment, a juror may not - testify about any statement made or incident that occurred during the jury\'s deliberations; - the effect of anything in that juror\'s or another jurors vote - Or any juror\'s mental process concerning the verdict or indictment - \(2) ***Exceptions***: A jury may testify about whether 1. \(A) extraneous prejudicial info was improperly brought to the jury\'s attention 2. \(B) an outside influence was improperly brought to bear on any juror or 3. \(C) a mistake was made in entering the verdict on the verdict form - *Tanner v. U.S* 1. **F:** D was convicted of fraud. D brought a motion for a new trial on the ground that after the trial was over, one juror informed the defense that a few jurors were under the influence during their lunch break and used coke. 2. **H:** D\'s motion for a new trial was denied. The court concluded that under FRE 606 (b) jurors are prohibited from testifying as to the alleged misconduct. They are not competent to testify. SCOTUS affirmed stating, \"voluntarily ingesting drugs/alcohol no matter how improper \"seems no more than a virus, poorly prepared food, or a lack of sleep\" 3. [Limits to Tanner] - ***Warger:*** 1. **F**: a negligence action brought to recover injuries from a motor accident. During voir dire one of the selected juror\'s lied about being effected by a car accident which was revealed during jury deliberation. P secured an affidavit from one of the jurors as evidence to submit to the court. The court denied P\'s motion for a new trial under FRE 606(b). 2. **H:** information can be deemed \"extraneous\" only if it derives from a source external to the jury. - **Ex**: publicity and info specifically related to the case, this does not include general body of life experiences that juror bring into the jury room 4. Excluding evidence that a juror lied during voir dire does not render FRE 606(b) unconstitutional. In both cases, the right to a fair jury trial was sufficiently protected under the facts of those cases because FRE 606(b) precludes one type of evidence concerning jury misconduct: jury testimony attacking the validity of verdict. 606(b) does not preclude testimony from juror before a verdict is rendered or testimony from non-jurors after a verdict. - ***Pena-Rodriguez v. Colorado*** 1. **F**: D filed a motion for a new trial supported by affidavits from 2 jurors who described various racists statements made by a juror during deliberations. Trial court denied motion 2. **H:** SCOTUS reversed and remanded noting that FRE 606(b) gives assurances that a juror will not be summoned once they have deliberated. However, the 14th amendment is supposed to \"eliminate racial discrimination emanating from official sources of the sates\". Additionally, \"where a juror makes a clear statement that indicated he or she relied on racial discrimination or animus to convict a criminal defendant, the Sixth Amendment (right to an impartial jury) requires that the no-impeachment rule give way in order to permit the trial court to consider evidence of the juror\'s statement and any resulting denial of the jury trial guarantee. - [Trial judge ] 1. FRE 605: a presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. - Allowing a judge to testify would place uneven balance of weight towards their credibility than other witness\'s. This subsequently would prejudice the trial - Would affect impartiality - [Dead man\'s Act:] some states make incompetent a party proposing to testify about a convo or other transaction with a person who is deceased when the testimony is offered against the estate of the deceased The Jury Room is Vegas:          Image result for being drunk memes     \*\*no-impeachment rule\" in this context typically refers to the common law principle that a jury\'s verdict should not be impeached by their statements or deliberations once a verdict has been reached.    **QCD Pg 29** 1. yes, the witness is competent if the state law does not place an age restriction on ge 2. No it does not. I would argue that her lack of experience and inability to process situations by taking into account its context could make for a less credible witness 3. Yes, the witness is competent 4. No it does not. Religious belief do not diminish one\'s truthful character. a. FRE 610: evidence of a witness\'s religious beliefs or opinions is not admissible to attack or support the witness\'s credibility 5. The court must apply Ohio state law 1. Correct 2. Correct 3. Correct 4. Correct 5. Correct   1. Correct 2. Correct 3. Correct 4. The juror testimony is barred under 606(b) 5. Incorrect on the verdict form means a mistake on the decimal. Not a mistake on the comprehension/substance of the case. **QCD: pg 35** 1. No, 606(b) bars a juror not an external witness 2. Yes 3. Yes, but there is an exception citing the case Pena-Rodriguez. In a criminal trial, the 6th Amendment guarantees defendant\'s the right to an impartial jury and thus the no-impeachment rule must yield in the interest of the 14th amendment\'s protection against racial discrimination from sources of the state 4. The juror is competent. Juror can bring their personal experiences to the table. The test for whether the information is external is if its specific to the case. 5. The court should permit it because under FRE 606(b)(C) a juror is permitted to testify if they are correcting a mistake on the juror form   - **The Personal Knowledge Requirement** - **FRE 602: Need for Personal Knowledge:** - A witness may testify to a matter only if evidence introduced is sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness\'s own testimony. This rule does not apply to a witness\'s expert testimony under 703 - Standard: could a reasonable juror - **FP** (Facts perceived)=**FT** (facts which the witness is permitted to testify) - Personal knowledge is established when the witness perceives the fact with one or more of her senses - If facts the witness intends to testify on are not perceived by her senses the evidence is inadmissible - A witness established personal knowledge in addition to perceiving the facts with her senses when is able to comprehend, remember, and communicate what she perceived. All 3 must be satisfied - **Ways to show that the witness has personal knowledge:** - Sometimes the best objection to a witness testimony is not always personal knowledge but hearsay - You should first lay an adequate foundation to permit the jury to consider the wit testimony - 602 does not require you to establish personal knowledge before a witness\'s testifies to the crucial facts of the case. Instead, it says there must be evidence sufficient to support a finding of personal knowledge. -    **QCD pg 44-45** 1. I don't think the witness has established PK because he was not able to comprehend the facts with their senses due to the obstruction from the sun and trees. 2. I think they could admit the evidence for purposes of establishing the witness ast the scene but using the evidence of the police officer\'s statement to prove D\'s guilt would be hearsay 3. No, hearsay. We don\'t want to value a statement from a third party that is not the witness on the scene. Bc a he said she said issue and if anyone has ever played telephone they can attest to the difficulty of keeping information accurate through 4. No 5. Yes but I don\'t think the testimony is relevant b/c a dream is done in a state of subconsciousness and hence, does not create a foundation of relevance 6. Yes it is relevant. In the end the person can communicate what they experience and the jury can decide how to weigh that testimony 7. No, because they have not perceived through their senses. If she reads it and her memory is refreshed and she can recite what she perceived then I believe the evidence would be admitted 8. The witness is not competent. They don't have any purpose in the trial other than being a bystander. 1. Incorrect. Yes, they do have PK. The lack of obstruction is a credibility issue. The standard: a reasonable juror could find that the person could perceive, communicate, and remember. 2. No PK. 3. No Pk. 4. Correct 5. It is not PK but it is relevant b/c a dream is not reliable. 6. Incorrect. It not relevant or PK. Bc you don\'t comprehend. 7. Correct 8. The are an exhibit, tangible evidence. We arent using as a witness but as evidence itself   - **The Oath Requirement** - FRE 603: **Oath or Affirmation to Testify Truthfully** - The second reason other than impressing on one\'s conscience, that a witness must take an oath is to also establish the basis for a perjury prosecution. - Oath: includes God - Affirmation: does not invoke God but still meant to stimulate truthfulness - Yes if she takes the affirmation - The court should sustain - **Real Evidence:** Authentication and the Best Evidence Rule - Tangible Evidence - **Real evidence:** item that was directly involved in the very events that are an issue in the case - Can usually be taken back to the jury room during deliberation - **Demonstrative Evidence:** items that demonstrate/illustrate testimony. Can only be used if the testimony it illustrates is admissible and accurate - **Authentication** - **FRE 901: Authentication or Identifying Evidence** - **(a)** Generally. **To satisfy the req of authenticating/identifying, the proponent must produce evidence sufficient to support a finding that the item is what the person claims it to be** - **(b) Examples** of evidence sufficient to support a finding (but not exhaustive) - **Testimony of witness w knowledge:** testimony that an item is what it is claimed to be - **Nonexpert opinion on handwriting:** a nonexpert\'s opinion that handwriting is genuine, based on a familiarity with it that was not acquired for the current litigation - **Comparison by an expert witness or by the trier or fac**t: a comparison with an authenticated specimen by an expert witness or the trier of fact - **Opinion about a voice:** An opinion identifying a person\'s voice whether heard firsthand or through mechanical or electronic transmission or recording based on hearing the voice at any time under circumstances that connect it with the alleged speaker - **Distinctive Characteristics and the like:** appearance, contents, substances, or other distinct characteristics taken together with all the circumstances - **Evidence about a telephone conversation:** for a cell convo, evidence that a call was made to the number assigned at the time to: A. A particular person, if circumstances, including self-identification, show that the person answering was the one called or; B. A particular business if the call was made to a business and the call related to business reasonable transacted over the telephone - **Evidence about Public Records** A. A document was recorded or filed in a public office as authorized by law or B. A purported public rec or statement is from the office where items of this kind are kept - **Evidence about Ancient Documents or Data Compilations** A. Is in a condition that creates no suspicion about its authenticity B. Was in a place where if authentic, it would likely be and C. Is at least 20 yrs old when offered - **Evidence about a process or system:** evidence describing a process or system and showing that it produces an accurate result - **Methods provided by a statute or rule:** any method of authentication or indemnification allowed by a federal statute or a rule prescribed by the Supreme Court - Authentication req by FRE 901 is similar to the knowledge req in 602; both are basic req needed to est evidence is worth considering - **Three general principles:** - Evidence must be authenticated \"in order to have it admitted\" - Authentication is given when the \"item is what the proponent claims it is\" A. **Note\" even after the court determines that a an item is authenticated and admissible, evidence contesting authenticity also remains admissible. This is b/c a jury has the power to determine what weight to give evidence in light of questions concerning authenticity** - **[Ex]: jury can conclude the evidence is not what the proponent claims it to be and choose to disregard it even though it was admitted** - The showing must be \"sufficient to support a finding\" A. **This means a judge should admit the evidence unless the proof of authenticity is so weak that no reasonable juror could consider the evidence to be what its proponent claims** - **In other words to meet the \"it is sufficient to support a finding\" standard you must affirmatively answer, yes, a reasonable jury could find this to be what the proponent claims it to be** - **More on the \"proponent claims it to be\" piece** - The **key question is**: what does the party offering the evidence intend to prove? A. [Ex]: prosecution wants to enter a gun into evidence. This can be under two theories. - The gun is offered as evidence that it is the very weapon that was used in the crime or - It looks like the gun that was used in the homicide - \"2\" can be used in instances where the party offering the evidence can only authenticate based on a witness testimony stating that the \"gun looks like\" the gun she saw at the crime scene. The testimony is still relevant even if the witness says it \"looks like\" the weapon used in the crime scene - **Relevance:** evidence is relevant if it can logically tell us something about the issues of a in the case A. A party\'s claim about an item of evidence must be consistent with establishing that the item is relevant. - Ex: if the prosecution only shows that the item is a gun w/o also showing some connection to the crime, the evidence should probably be excluded on the grounds that it is irrelevant B. A witness can authenticate the object if she perceived it under any circumstances that permit the witness to establish relevance. - **More on Authentication** - In the case of a document, a witness can authenticate if it she wrote it, signed, used, or saw others do any number of the aforementioned activities - [Authentication of Photographs ] A. The PK required to authenticate a photograph varies depending on what the party offering the photo is trying to prove - **Ex:** Pros is using a photo taken by a police investigator at the scene of art theft crime. Any witness who observed the gallery at the time of the robbery could authenticate the photo by testifying that it is a fair and accurate depiction of the gallery at the time. The photographer who took the pic after the crime cannot provide authenticating testimony b/c they were not there during the relevant time of the crime. - Once the witness who saw the crime itself take place, authenticate that the phot taken by the officer after the event is fair and accurate depiction, the photo becomes an example of **demonstrative evidence** - **Demonstrative Evidence:** when offering demonstrative evidence you must ask \"is this a fair and accurate depiction of what you?\" \\ - **Ex.** Pros want to instead use the photo that the witness took on his phone while the crime was in progress to show that, the photo looks like the robbery. *Who could authenticate this witness\'s photo?* - Any separate witness, who also witness\'s the crime, can testify that the photographer\'s content of the photo, which is supposed to be of the crime in progress is, a fair and accurate depiction of the event. In other words, is exactly what it is claimed to be. - The actual photographer can also testify that he was the photographer of that photo of the crime scene b/c he was in fact a witness to the crime. He is not limited to testifying to the content of the photo being a \"fair and accurate depiction of the scene\" like the other separate witness mentioned, but since he has personal knowledge, he can testify to actually being at the scene and taking the photo himself. This photo then becomes **Real Evidence.** - **Real Evidence:** evidence offered of the actual events in question and not merely as an illustration of a witness\'s testimony concerning those events. - **Authentication by Chain of Custody (sometimes called a chain of perception)** A. When an item of evidence has a unique appearance or character, often a single witness can authenticate that item based on seeing it at some time before testifying - Unique evidence is typically easier to admit B. When an item is generic, there must be a show of a chain of custody to est that that generic item is what the witness previously perceived. - Can also be needed for unique items when it still might be susceptible to alterations in way that makes it difficult to detect. I.e. digital recordings, photos C. [How do you prove this chain of custody? ] - By showing the evidence has been in continuous safekeeping beginning with the event that connects the evidence to the case and until the evidence is brought to the court and marked for identification. All witnesses in the chain testify to: - circumstances under which they took the evidence - Effort they made to safeguard it - What if any changes appear on the item - Circumstances in which they surrendered the item - Laying the foundation for a COC through testifying witness permits the inference that the evidence offered is the very item associated with the event at issue in the case    Question:     1. The plaintiff must either claim 1. the signed letter is in fact the contract at issue or 2. it looks like the signed letter at issue. Although, I should note that I am bit reluctant to confirm that 2. is a valid. 2. P has to prove the connection to the issue and the evidence. In doing so, they also have to ensure that the evidence is strong enough to support a reasonable finding from the fact finder that the evidence is what its purports to. This can be done by having a FRE 901(b)(2) a nonexpert witness attest to the handwriting based off of familiarity or even an expert in handwriting analysis in accordance with FRE 901(b)(3) 3. You can authenticate a signature by having the a nonexpert opinion attesting to the handwriting being genuine based on familiarity with it that was not acquired for current litigation 4. Yes, because it is still authenticated and its sufficient to support a finding. The juror should make the determination on how to weigh the differing testimonies. 5. No they are not. Incorrect, bc a reasonable juror could find either testimony credible Question:   The sta    1. The court should overrule it because a witness who was at the scene can have personal knowledge of what the intersection looks like since they were there. 2. The court should sustain b/c the witness has no PK of the photo. There could be other duplicate photos. This should come in as demonstrative evidence and not come in as real evidence because the witness did not take the actual picture herself. Question: If the witness saw the photographer take the photo at the time of the event, could her testimony authenticate that the photo is in fact a \"photo of the intersection\"?   **QCD 53** 1. Yes, this is the right ruling 2. No, the chain of custody is broken. Too long of a time 3. Yes. All you need to ask if a reasonable jury can find the evidence to be what it is supposed to be 4. The dagger has been authenticated b/c its unique of. 5. Engraving make it as unique is fine as a means of establishing   - **Self-Authentication, Best Evidence Rule, and Judicial Notice** - **FRE 902:** Evidence that is Self-Authenticating - The following items are self-authenticating; they req no extrinsic evidence in order to be admitted: 1. **Domestic Public Docs that are Sealed and Signed** a. A seal purporting to be that of the U.S, any state, district, commonwealth, territory, or insular possession of the U.S, formal Panama Canal Zone, the Trust Territory of the Pacific Islands, a political subdivision of any of these entities, or a dept, agency, or officer of any entity names above, and b. A signature purporting to be an execution or attestation 1. **Domestic Public Docs that are not Sealed but are Signed and Certified:** a doc bears no seal if a. It bears the signature of an officer or employee of an entity names in FRE 902(1)(a) and b. Another public officer who has a seal and official duties within that same entity certifies under seal- its equivalent- that the signer has the official capacity and that the signature is genuine 2. **Foreign Public Docs:** a doc that purports to be signed or attested by a person who is authorized by a foreign country\'s law to do so. The doc must be accompanies by a finale certification that certifies the genuineness of the signature and official position of the signer must be certified..... 3. **Certified Copies of Public Recs:** a copy of an official record or a copy of a doc that was recorded/filed in a public office as authorized by law if the copy is certified as correct by: a. The custodian or another person authorized to make the cert or b. A cert that complies with Rule 902 (1),(2), or (3), a fed statute, or a rule prescribed by the Sup Ct 4. **Official Publications:** a book, pamphlet, or other publication purposing to be issued by a public authority 5. **Newspaper and Periodicals:** printed material purporting to be a newspaper or periodical 6. **Trade Inscription and the Like**: an inscription sign, tag, or label purporting to have been affixed in the course of business and indicating origin, ownership, or control 7. **Acknowledged Documents:** a doc accompanies by a certificate of acknowledgement that is lawfully executed by a notary public or another office who is authorized to take acknowledgement 8. **Commercial Paper and Related Docs:** commercial paper, a signature on it, and related docs, to the extent allowed by gen commercial law 9. **Presumptions Under a Federal Statute:** a signature, doc, or anything else that a fed statute declares to be presumptively or prima facie genuine/authentic 10. **Certified Domestic Recs of Regularly Conducted Activity**: The OG or a copy of a domestic record that meets the reqs of Rule 803(6)(A)-(C), as shown by a certification of the custodian or the like. Before the trial heating the proponent must give an adverse party reasonable written notice of the intent to offer the record and must make the record and certification available for inspection so that the party has a fair opportunity to challenge it. 11. **Certified Foreign Records of a Regularly Conducted Activity:** in a civil case, the og or a copy of a foreign record that meets the reqs in Rule 902(11), rather than complying with a fed statute or Supreme Court, must be signed in a manner that if falsely made, would subject the maker to a criminal penalty in that country. Notice req in Rule 902(11) must be met 12. **Certified Records Generated by an Electronic Process or System:** a rec generated by an electronic process or system that produces an accurate result, as shown by a certification of a qualifies person that complies with the certification reqs of Rule 902(11) or (12), the proponent must also meet the notice req in Rule 902(11) 13. **Certified Data Copies from an Electronic Device, Storage Medium, or File:** Data copies from an electronic device, etc, if authenticated by a process of digital identification, as shown by a certification of a qualifies person that complies with the cert requirements of Rule 902(11) or (12) must meet 902(11) notice req. - If an item is not self-authenticating under FRE Rule 902, it may still be authenticated by FRE 901(b). If neither authenticated by those two rules then the evidence is inadmissible - Not all evidence that is self-authenticating by FRE 902 is admissible 1. Ex: Hearsay    1. Correct, we need a witness. 2. Correct 3. Correct :)) Yay, go Star, Go Star **QCD pg 62** 1. The court should ask for the will to be authenticated by FRE 901(b) because a domestic document without a seal or sign must still be authenticated see, FRE 902(2). If there is no notary or other official who acknowledge the doc as prescribed in FRE 902(8) then the evidence should be inadmissible 2. No, FRE 902(7) prevails 3. The prosecutor does not need to call a witness to authenticate the evidence under FRE 902 (6), however, there is a problem with the evidence because it is hearsay.   - **The Best Evidence Rule** - **FRE 1001: Definitions that Apply to this Article:** a. A \"writing\" consist of letters, words, numbers, or their equivalents set down in any form b. A \"recording\" consist of ,, ,, ,, ,, ,, recorded in any manner c. A \"photograph\" means a photographic image or its equivalent stored in any form d. An \"original\" of a writing/recording means the writing or recording itself of any counterpart intended to have the same effect by the person who executed/issued it. For [electronically] stored info, an original, means any printout of other output readable by sight if it accurately reflects the info. An original of a [photo] includes the negatives or a print from it e. A \"duplicate\" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original - **FRE 1002:** an original writing, recording, or photograph is required in order to prove its content unless these rules or a fed statute provide otherwise a. This is the \"[Best Evidence Doctrine]\" and is intended to create a safeguard against unreliable evidence concerning the contents of a writing, photo, or recording. b. [Limits:] it does not apply to anything other than writing, photos, or recordings and only for the purpose of proving its content. c. FRE 1002 creates no problem for a party trying to show that a document was written or a photo was taken or when the contents of a legal doc are in dispute. - Ex: a civil case, using a document to show when the delivery date of a good is supposed to be based on the contract\'s content is also acceptable by FRE 1002 d. FRE 1002 applies whenever a fact at issue in the case is revealed by the contents of a writing/photo. - Ex: in a prosecution got bank robbery, testimony that a photo was taken by a bank security camera shows D committing a robbery raises an issue under FRE 1002 The logic: we want the most reliable piece of evidence. We care about the actual words. Its only applicable to the actual existence You have to bring in the doc itself if you want to use rule for the contents   \*\*\* This rule should really be called the \"no describing the contents of a doc/pic/video, instead, show it to us unless you really need to describe it b/c there is no way to get the actual doc/video/pic. - The purpose of the rule is to limit the testimony of the witness by preventing them from describing the contents of a contract for example and alternatively, forcing them to bring the actual contract   Coincidence of recorded material: ex: there is a video of an event. You also have a witness who was there of the event. Just because there is a video of the event does not prevent the witness from testifying about their own account of the event, However, a witness cannot watch the video and then go on the stand and testify to what the event that they saw via video. That is barred by the best evidence rule.   1. Correct 2. Correct. The only way the business card is relevant is that its her name. The best evidence rule applies. We need to bring in the card, we cannot just use the testimony of the card 3. Correct 4. Correct 5. Incorrect. The rule doesn't apply, she is relying the picture to make her conclusion then the rule doesn't kick in. However, if she is describing the picture then the objection should be sustained and the Best Evidence Rule should kick in 6. Correct 7. Correct. The fact that it is recorded somewhere else is not relevant to the best evidence rule 8. Correct b/c she is testifying to the contents of the writing 9. Lack of personal knowledge. Since she did not say it came explicitly from the transcript, then its not implicating the Best Evidence Rule **QCD pg 65** 1. The court should overrule under FRE 1002 because the brief case it not an original writing, recording, or photograph. 2. The court should overrule because the business card is a writing and under FRE 1002 can be used to prove it content that it existed 3. The court should sustain because the testimony is hearsay and is not the actual photo itself. 4. The court should overrule, the x-ray is a photo who contents prove a legal document that is in dispute 5. The court should sustain because testimony about the photo is hearsay and not under the coverage of FRE 1002 6. The court should overrule, electronic writing is permissible under FRE 1002 7. No it is not. 8. Yes, bc it would be hearsay 9. Hearsay ? Or maybe no objection     - **Exceptions to the Best Evidence Rule** - **FRE 1003: Admissibility of Duplicates:** a duplicate is admissible to the same extent as the original unless a genuine question is raised about the original\'s authenticity or the circumstances make it unfair to admit the duplicate - **FRE 1004: Admissibility of Other Evidence of Content**: an original is not req and other evidence of the content of a writing, recording, or photo is admissible if: a. All the og\'s are lost or destroyed and not by the proponent acting in bad faith b. An og cannot be obtained by any available judicial process c. The party against whom the og would be offered had control of the original; was at the time put on notice, by pleading or otherwise, that the original would be a subject of proof at the trial/hearing; and fails to produce it at the trial/ hearing d. The writing, recording, photo is not closely related to a controlling issue - FRE 1006: Summaries: the proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photos that cannot be conveniently examined in court. The proponent must make the og or duplicated available for examination or copying, or both by other parties at a reasonable time or place. The court may order the proponent to produce them in court.   q: what is a controlling issue? If its not that important to the case, if its tangetial point    **QCD pg 67** 1. Not an og but a duplicate and admissible unless questionable 2. No 3. No b/c there is a question regarding authenticity 4. Yes under FRE 1004 (d) 5. No   Counterpart (when both parties get copies of the signature of a doc) qualifies as original under the rule. 1. Correct 2. Correct 3. Correct 4. Overruled, the teller can testify about the contents of the list 5. No because he destroyed the evidence in bad faith   - Illustrating the best evidence rule: - **Ex:** - Since the invoice is a writing and P was seeking to prove its contents, the best evidence rule applies. It is also necessary to show it was a business record! - Exam tip: When asked if writing is admissible there are at least three issues to consider: 1. Authentication: b/c a writing is an item of physical evidence 2. Best Evidence Rule: b/c the evidence is probably being offered to prove contents of a writing 3. Hearsay - **Judicial Notice** - +-----------------------------------+-----------------------------------+ | **FRE 201:** | **Judicial Notice of Adjudicate | | | Fact** | +===================================+===================================+ | a. |   | +-----------------------------------+-----------------------------------+ 1. **Scope:** this rule governs judicial notice of an adjudicative fact only, not a legislative fact 2. **Kinds of Facts that may be Judicially Noticed:** the court may judicially notice a fact that is not subject to reasonable dispute b/c it: a. Is generally known within the court\'s territorial jurisdiction or; b. Can be accurately and readily determined from sources whose accuracy cannot be reasonably questioned 3. **Taking notice:** the court: a. May take judicial notice on its own or; b. Must take judicial notice if a party requests it and the court is supplies with the necessary information - This can happen at any point in the case, even on appeal. It gives a party who failed to prove an essential fact at trial a chance to est that fact on appeal. It is still 4. **Opportunity to be Heard:** on timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be notice. If the court takes judicial notice before notifying a party, the party on request is still entitled to be heard 5. **Instructing the Jury:** in a *civil case* the court must instruct the jury to accept the notice fact as conclusive. In a *criminal case* the court must instruct the jury that it may or may not accept the noticed facts as conclusive - **Adjudicative Facts** *(facts concerning the event that gave rise to the lawsuit):* Some facts that are indisputable can be established quickly and easily w/o the need for the presentation of evidence. 1. Saves time and eliminates the possibility that a party will offer testimony to distort those facts 2. Usually must be the subject of formal proof, whether by the witness testimony, real evidence, documentary evidence or some combo 3. [Example] of evidence capable of being determined by consulting authoritative sources a. Witness testifies that D hit the P while driving a 2000 Thunderbird. After the testimony, D ask the court to take judicial notice that there is no 2000 Thunderbird. D provides an official publication of a Ford Motor which shows no 2000 Thunderbird exist. 4. [Example] of a fact that is not subject to reasonable dispute b/c it is generally known by the jurisdiction a. D ask court to take judicial notice that all aircraft was grounded for several days after 9/11 5. Some facts can be est with general ease but is still does not receive the privileges of judicial notice a. [Ex:] a traffic light in a certain intersection does not work. Although easy to prove, not generally known in the trial courts juris or in an undisputable source. - **Judicial Notice of Law** 1. Since the \"law\" is not an adjudicative fact, the rule does not regulate the courts power to take judicial notice of the law. 2. If a party produces a certified copy of a city ordinance at issue, why shouldn't the court take judicial notice? a. Cities are notoriously bad at keeping accurate and up to date codification of their ordinance. b. The precise meaning of the ordinance might not be as clear as its wording suggests 3. **Several Conventions Courts Regularly Take Judicial Notice of:** a. [Law of same state (domestic law)] b. [Federal law ] c. [Law of other states]*:* many states have adopted the *Uniform Judicial Notice of Foreign Law Act*, which requires every court in adopting state to take notice of the statutory and common law of every other state, at least when certain procedural reqs are satisfied. The *Uniform Interstate and International Procedure Act* now broadens the provisions of the earlier law d. [Law of foreign nations] e. [Municipal law:] although there is generally a reluctancy to take judicial notice, the normal means of pleading and proof are usually still required - **Judicial Notice of Legislative Facts** 1. [Legislative facts:] facts that are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body. In other words, it is the process in which we make certain assumptions about the world in which the law operates a. [Ex:] Brown vs. Board: racially segregated schools are inherently unequal even when provided with equal resources, the Court was making a determination of a legislative facts 2. ----------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------- Standards for taking judicial notice of legislative facts are different from those in adjudicative facts. Why? Bc legislative facts by their nature are not indisputable ----------------------------------------------------------------------------------------------------------- ---------------------------------------------------------------- - \`It is not uncommon to see an appellate court reversal based on a finding of the lower court\'s err in identifying and applying matters of policy based on legislative facts. Therefore, the law of evidence plays no special role in regulating legislative facts, they are treated the same as any other evidence attempting to be admitted. Question: How is this different from parole evidence   You can take judicial notice of legislative facts!   1. Correct 2. Correct 3. The court should take the notice 4. Correct 5. The judge personal knowledge is not acceptable. 6. Yes, because this is a legislative facts and courts can do so. It is uneffected. Legislative facts are about the world. 1. Yes 2. The court should sustain the objection b.c in a criminal case, jury does not have to accept the notice as conclusive 3. The court should not take judicial notice b/c it's a city ordinance 4. The court should take judicial notice based off of FRE 201(b)(2) 5. Yes if other judges also know within the territorial jurisdiction of the accident. But generally no b/c one specific judge having the knowledge does not mean that an entire territorial juris does 6. No b/c the court can\'t take judicial notice of law. - **Burdens of Proof and Presumptions**: procedural devices that establish preferences for or against particular parties - [Burden of Proof:] est the preferences in favor of or against particular parties depending on the evidence that has been or can be produced. - **Two types of Proof:** 1. [Burden of Persuasion:] est by substantive law. a. ------------------------------------------------------------------------------ ------------------------------- Described the amount of proof that must exist for a fact to be deemed proven Ex: Beyond a reasonable doubt ------------------------------------------------------------------------------ ------------------------------- b. Identifies who must lose if the burden is no satisfied 2. [Burden of Production:] the party who bears the responsibility to produce evidence in support of its position - [Presumptions]: requires the fact-finder to accept that certain facts are true if it finds that other facts are true - It is conclusive rather than permissive like in the case of an inference. - Ex: if a letter has been stamped and place in a proper mailbox, it should be presumed that the letter was received  1.         - ***Sublet vs. State*** - **F:** Arises out of an assault case - **I:** admissibility of a screenshot from Facebook postings in the comments. They tried to get Parker (the person who posted) the threats. From and the its application to the authentication of such screenshot. - **H:** In order to authenticate evidence derived from a social networking cite, the trial judge must determine that there is proof from which a reasonable juror could find that the evidence is what the proponent claims it to be. Also no evidence by an expert. - Sometimes we care not just about the content of the social media post but the validity of who said it - Griffin - F: myspace post of a gf posting about the killing - I: how do you authenticate electronic data? - MD vs. Harris - F: murder case with young men and they had twitter dm\'s and public messages - I: could they authenticate the messages? - H: a lot of things that corroborate. It came of the phone of the D. - Monge-Martinez vs. MD - H: The messages on FB corroborate. They match up in such a way that a reasonable jury that there is evidence sufficient to support a finding - BIG TAKEAWAY: How do you handle the new technology, authenticating who sent the letter is no different than who sent an email. We do not have a different rule for electronic info in the way that we do for other tools. Question to ask: is this evidence sufficient to support a finding that a reasonable juror could decide. T Sufficient to support a finding= preponderance of the evidence but its lower so use \"sufficient to support a finding\"   - **Relevance** - **FRE 401: Test for Relevant Evidence:** evidence is relevant if: - \(a) it has any tendency to make a fact more or less probable than it would be w/o the evidence and - \(b) the fact is of consequence in determining the action - To establish this portion, you have to know the substantive law applicable to the case (the same is true in a civ case too) - **FRE 402: General Admnissibility of Relevant Evidence:** Relevant evidence is admissible unless any of the following provides otherwise: - The US Constitution - A Fed Statute - These rules or, - Other rules prescribed by the Supreme Ct - Should be thought of as the first \"hurdle\" for all evidence. If the evidence is relevant it might be admissible, if it is irrelevant, it is inadmissible. - **[Test for Relevance]** - R401: \"if it has any tendency to make a fact more or less probable then it would be w/o the evidence and the fact is of consequence in determining the action. - **Two Parts:** - To be relevant, evidence must be offered to prove a fact of consequence i. What makes a fact \"of consequence?\" - If they are necessary elements under the applicable substantive law or other facts from which a necessary element may be inferred. - The evidence makes that fact more or less probable than it would be w/o the evidence i. When does evidence make a fact more or less probable? - So long as the assumption underlying an inference is reasonable, the logic essential to relevance is established. - Relevance analysis requires that we consider the assumption connecting the evidence to the fact it is offered to prove - **[Similar Events ]** - Sometimes similarities between the event at issue and evidence of another event are strong ernough to make evidence relevant, even though there may be some difference. - EX: imagine that P who allegedly fell b/c of a slippery floor was an elderly man. He offers evidence of the teenager\'s fall as evidence to prove the floor was slippery. The fact they fell in the same spot only one hour apart seems to establish that the teenagers fall is relevant to show a slippery floor caused the elderly man\'s fall. - **[Relevancy vs. Sufficiency ]** - Guilt requires proof beyond a reasonable doubt, while R401 says that evidence is relevant if it has any tendency (even just a little) to affect the existence of a fact of consequence. Not all relevant evidence is sufficient to meet that threshold. - EX: \"a brick is not a wall\" parties build a case brick by brick (one piece of evidence at a time) - If the assumption supporting an inference linking evidence to a fact of consequence is invalid, then the evidence has no effect on the probabilities of the fact of consequence and is irrelevant. - *State v. Jager* - F: D was convicted of murder in the shooting of his 19 yr old gf - I: Did the lower court er in excluding evidence that his gf may have attempted suicide years later? - H: yes, the evidence was relevant and should not have been excluded\   - **Balancing Probative Value Against Unfair Prejudice and Other Dangers** - +-----------------------------------+-----------------------------------+ | **FRE 403:** | **Excluding Relevant Evidence for | | | Prejudice, Confusion, Waste of | | | Time, or Other Reasons** | +===================================+===================================+ | - | The court may exclude relevant | | | evidence if its probative value | | | is substantially outweighed by a | | | danger of one or more of the | | | following: | | | | | | - - - - - - | +-----------------------------------+-----------------------------------+ - **Probative Value** - *Evidence* is relevant if has any tendency to affect a fact or consequence, it is not a matter of degree - *Probative value* is assessment of the degree to which an item of evidence effects the likelihood of a fact of consequence - [Two factors that influence the assessment ] i. **The logical force of the evidence** - How do you do that? - You look at the number of inference one must take to logically connect the evidence to the fact of the consequence - You look at the strength of each inference by asking \"how convinced are we of the validity of the assumption underlying an inference? i. **The context in which it is offered** - [Difference between relevance and prob val ] - Relevance of the evidence depends only on whether the assumptions underlying each inference are reasonable - Prob val of the evidence depends on the strength of each inference and the number of instances i. **Product rule:** the prob value is a product of the probabilities of each link in the chain ii. In weighing the prob val of testimony, the trial judge should assume the testimony is accurate and not discount probative val because of concerns regarding the witness\'s credibility. The jury not the judge has the power to determine witness credibility - **Unfair Prejudice and other dangers** - **Prejudice:** evidence that will influence the fact-finder - **Unfair prejudice:** an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one - [Inferential Error Prejudice ] - When the jury misunderstands the logical import of the evidence, either by deciding that the evidence is probative of a fact when it is not or deciding that it is more or less probative of a fact that it is - EX of cases: i. *State vs, Jones* - F: infanticide - I: child of the deceased baby buried in the ground be shown the jury to support showing that D did the crime with a callous and malicious heart? - H: no, the photo would cause prejudice. ii. Bank v. State - F: D caught up in a buy and bust but the dealer gets away, undercover cop got photo of the dealer - I: offering the photo of the dealer with a gun to show that's how they caught him? - H: the prejudice substantially outweighs the probative val so the photo of a guy of a media drug dealer, off limits iii. Lucas v. State - F: a drug dealing case where D was convicted of coke charges. Defense is that he was not distributing the coke even though they found it at his stash house. Pro show photo of lucas with money in the backdrop and fancy photos. Expert witness on narc testifies they are trophy photos, - I: can the photos be used? - H: yes, the prejudice does not substantially outweigh the probative val - [Nullification Prejudice ] - This occurs when evidence might incline the jury to disregard the law (the aforementioned cases above can fit in this cat) i. Ex: the State v. Jones case - 401 is satisfied if evidence has \"any tendency\" to make a fact more or less probable. This means evidence is still relevant even if it does not increase the probability of a fact of the level of certainty. So longs as it is a fact of consequence     Brick is not a wall. One piece of evidence doesn't make the case. Admitting a piece of evidence has to show that the consequence is less or more likely does not mean that it makes the case.    King of all rules   Rmb we keep out relevant evidence b/c we don't want the jury to mis weigh the evidence     When evaluating probative evidence, you need to also ask what are the other alternatives to show x? \\ Strong evidence doesn't make it prejudicial evidence   **QCD pg 97**   1. I think the appeal court should overrule because the jury should make the determination on whether or not to give the witness credibility 2. The trial judge should have assumed that the testimony would be unfair prejudice or mislead the jury. 3. That they should determine the credibility by assessing whether or not the facts are sufficient to support a finding and when assessed with the other evidence establish beyond a reasonable doubt that the def is guilty or innocent   - **Undisputed Facts** - If a party concedes to some the facts that constitutes some elements of the crime or claim but dispute other elements of the case is any evidence that would tend to establish that claim/crime inadmissible? - No, Rule 401 only requires that the evidence tend to prove a fact of consequence, not a fact in controversy - *Old Chief vs. US*   **QCD pg 101**   1. The court should overrule because it doesn't go to any prior convictions and its not prejudicial. In chief, you don't get to decide to who gets to stipulate in their alternatives to present their case. An adverse party can present their case however they please. Just because evidence is prejudicial does not mean the court will always rule its inadmissible.   - **Preliminary Questions of Facts** - +-----------------------+-----------------------+-----------------------+ | **FRE 104** | **: Preliminary | **Standard** | | | Questions** | | +=======================+=======================+=======================+ | **(a)** | **In General:** The | The judge applies a | | | court must decide any | preponderance of the | | | preliminary questions | evidence \"49 to 51, | | | about whether a | more likely than | | | witness is qualified, | not\" | | | a privilege exists or | | | | evidence is | | | | admissible. In so | | | | deciding, the court | | | | is not bound by | | | | evidence rules, | | | | except those on | | | | privilege. | | | | | | | | Every fact but | | | | conditional | | | | relevance. Ex: is the | | | | expert qualified | | +-----------------------+-----------------------+-----------------------+ | a. | **Relevancy that | Sufficient to support | | | Depends on the | a finding which is a | | | Facts:** when the | much lower bar. \"can | | | relevancy of evidence | the jury find this | | | depends on fulfilling | | | | a factual condition, | | | | the court may admit | | | | it on, or subject to | | | | the introduction of | | | | evidence sufficient | | | | to support a finding | | | | that the condition is | | | | fulfilled | | +-----------------------+-----------------------+-----------------------+ | **(c)** | **Matters that the |   | | | Jury Must not Hear**: | | |   | a hearing on a | | | | preliminary question | | | | must be conducted | | | | outside the jury\'s | | | | hearing if: | | | | | | | | - - - | | +-----------------------+-----------------------+-----------------------+ | a. | **Testimony by a D in |   | | | a crim case**: by | | | | testifying on a | | | | preliminary question, | | | | a d in a certain case | | | | does not become | | | | siubject to | | | | cross-examination on | | | | other issues in a | | | | case | | +-----------------------+-----------------------+-----------------------+ | **(e)** | Evidence Relevant to |   | | | Weight and | | | | Credibility: this | | | | rule does not limit a | | | | party\'s right to | | | | introduce before the | | | | jury evidence that is | | | | relevant to the | | | | weight or credibility | | | | of other evidence | | +-----------------------+-----------------------+-----------------------+ - The purpose of R104 is to tell us who decides admissibility and how those decisions are made. Admissibility is made to depend on whether a certain fact exist. - [Who decides Preliminary Facts: ] a. A trial judge, at least initially - Ex: applying 104(a) a judge decided that the victim made the statement while believing his death was imminent, is not established the judge concludes the evidence is inadmissible and the jury never hears the evidence nor gets to reconsider the preliminary fact. - When a judge decides a preliminary fact has been proves and then admits the evidence, a jury gets a chance to reconsider the preliminary fact to the extent it bears on the weight of the evidence b. Rule 104(b) applies where \"relevancy depends on fulfilling a factual condition\" this is called conditional relevancy. - **Conditional relevancy:** where the question of admissibility is dependent on whether or not the evidence is relevant and the relevancy depends on proof a preliminary fact. The judge and the jury can share responsibility in determining if a prelim fact raises issues of conditional relevancy - How Preliminary Facts are decided: burden of proof a. The judge admits the evidence if a reasonable juror could conclude the preliminary facts exist b. 104(b) also gives the judge the option of letting the jury hear evidence even before this standard is satisfied c. 104(a) there is no standard for how much evidence is enough to prove preliminary facts, a court must decide - What evidence can be considered: a. No limit for judges so long as there is no privilege - How do you know if its Rule 104(a) or 104(b) that should be applies: a. **Two step approach:** - Identify the preliminary fact on which admissibility of the evidence depends (rmb it has to be relevant before you get to this step) - Ask whether the evidence would still be relevant even if the preliminary fact was not established. i. If yes→104(a) ii. If no→104(b)    **QCD pg 114-115** 1. That an oral contract exist. 104(a) bc this is a question of law first 2. That the witness told P about the wallet being stolen. 104(b)? 3. That D was sleep. 104(b) 4. Idk 5. 103(b) jury should be there 1. Incorrect. Did the phone call occur. 104(b) is there evidence sufficient to support a finding that that jury could find that call was made 2. Correct on first part since they are trying to admit the evidence as a present sense impression. But the standard is 104(a) its not a conditional relevance question     - **The Hearsay Rule** - Is is concerned with twice removed evidence - Even if the witness and the person who made the out-of court statement are the same person, the twice removes issue makes It more difficiult to assess the veracity of the statement - Ex: Q: on that day, did you have a convo with JAY concerning Lisa and Eric: - A: Yes I did - Q: what did Jay say - A: jay told me that he saw lisa give eric back the key -   - If parties were permitted to prove facts by offering testimony about statement made out of court concerning those events, the fact finder would be forced to decide what actually happened without the benefit of observing cross-examination of the out of court speaker - The problem with hearsay isnt that its unreliable, its that the reliability of the hearsay cannot be tested at the most appropriate time: just as the statement is made - In criminal cases, the analysis of admissibility of hearsay against the D does not end with the determination that the evidence meets the requirements of a hearsay exception. It must also consider whether the admitting the hearsay violates the D\'s 6th amend - +-----------------------------------+-----------------------------------+ | **FRE 801** | **Definitions that Apply to this | | | article** | +===================================+===================================+ | - | **Statement:** means a person\'s | | | oral assertion, written | | | assertion, or nonverbal conduct | | | if the person intended is as an | | | assertion | +-----------------------------------+-----------------------------------+ | - | **Declarant:** a person who made | | | the statement | +-----------------------------------+-----------------------------------+ | **(c)** | **Hearsay:** a statement that | | | | |   | - - | +-----------------------------------+-----------------------------------+ | **Break Down** | - - - - - | | | | | | - - - - - | | | | | | - - | | | | | | - - | | | | | | - - - | | | | | | - - - - - | | | | | | - - - - | | | | | | | | | | | | - | +-----------------------------------+-----------------------------------+ |   |   | +-----------------------------------+-----------------------------------+ | **FRE 802** | **The rule against hearsay** | +-----------------------------------+-----------------------------------+ |   | Hearsay is not admissible unless | | | any of the following provide | | | otherwise | | | | | | - - - | +-----------------------------------+-----------------------------------+ 1. Statements are assertions 2. Declarants are only people 3. The statement is made \"other than while testifying at the trial or hearing\" a. Ex: there is a deposition in the case and you want to offer the contents of that in the current trial = out of court statement b. Ex: there is an appeal and you want to use the material from the previous trial in the appeal= out of court statement 4. Statement is offered for the \"truth of the matter asserted\" a. The most tricky. First determine what is the statement being offered to **prove**?   q: is 403 only applied for exclusion?    1. Yes if that statement deals with a preliminary question because under that standard of review, they are not bound by the rules of evidence. However, Rule 403 does allow for a judge to exclude relevant evidence if the probative value weighs more, I also believe this does not apply to hearsay though especially where there is no exception in the rules. 2. Yes because it is offered to assert something/ relay a fact 3. No 4. No 5. Yes 6. It is a statement it not hearsay though 7. It is not hearsay because the person is not testifying 8. Yes, it is still hearsay because it is out of court ?? But maybe not hearsay because a deposition is a testifying statement 9. \^\^ but also, best evidence rule...we wanna see the doc 10. It hearsay but there seems to be an exception.. But the court can also refer to the court transcript?? But the statement was made in a prior court so hearsay? But wouldn't an affidavit be hearsay too? 1. No.403 cannot be reversed, where the probative value is more, the judge cant admit evidence it only can decide to exclude prejudicial evidence. Cannot disregard rules 2. Correct 3. Correct, the animal is not a declarant must be a person. 4. Correct just because we can infer behavior doesn't mean they are conveying something explicitly 5. Correct because there is a conveyance that an offer is present by actions and words 6. Correct because the point was made at the trial. 7. Correct. The courtroom but its not in the court b/c not testifying 8. Correct, Its not admissible unless you have a hearsay exemption 9. Yes hearsay! 10. It is hearsay, the prior trial is out of court for this trial.