Evidence Presentation Rules PDF

evidence Presentation of Evidence – Roles of the Judge and Jury The judges decides whether evidence is admissible as that is a question of law. ○ This includes whether there is privilege and whether witnesses are qualified to testify. ○ This also includes preliminary fact questions...

evidence Presentation of Evidence – Roles of the Judge and Jury The judges decides whether evidence is admissible as that is a question of law. ○ This includes whether there is privilege and whether witnesses are qualified to testify. ○ This also includes preliminary fact questions that go to the admissibility of evidence. For such decisions, FRE does NOT apply. The jury decides the weight and credibility of the evidence. Presentation of Evidence – Challenge to Evidence Ruling Evidentiary ruling CAN be reversed on appeal, only if: ○ A substantial right of a party has been affected (not harmless error); and ○ The judge was notified of the mistake at trial and was given a chance to correct it. Notified – wither by objection or offer of proof. Objection ○ If the court has admitted evidence that should have been excluded, the attorney must object and explain why the evidence should have been excluded. Offer of proof ○ If the court refuses to admit evidence that should have been admitted, the attorney must make an offer of proof on the record, explaining to the court what the evidence would have been and why it should have been submitted. → this is unless the substance and logic of the evidence is straightforward and clear on the face. Plain error rule ○ Occasionally, the Appellate Court will reverse the case to prevent a carriage of justice, even if no objection or offer of proof was made at trial. Error that was so obvious on its face. Presentation of Evidence – FRE 105, 106 and Judicial Notice Limited Admissibility (FRE 105) ○ Evidence may be admissible for one purpose but not for another. ○ And so, upon request of the objecting party, the court will give the jury limiting instruction. Rule of Completeness (FRE 106) ○ If a party introduces part of a written statement, the opposing party may introduce other portions of that statement that are necessary to put the admitted portion into perspective. This can be introduced immediately, without waiting for the party to present their case. Judicial Notice ○ If the question of fact is not subject to reasonable dispute, the court will not require evidence and instruct the jury to accept that fact as proven. This includes facts – that are generally known within the territorial jurisdiction of the court; or accurately and readily determined by sources whose witnesses cannot reasonably questioned. Civil case: jury instructed that it MUST accept the fact as proved. Criminal case: jury instructed that it may but need not find that fact. Presentation of Evidence – Questions Leading questions ○ Questions which suggest an answer within themselves are generally not permitted on direct examination. Exceptions: providing preliminary information; helping witnesses who have trouble communicating (age/infirmity); and when you call a hostile witness or adverse party. ○ Leading questions SHOULD be used in cross-examination. Present recollection refreshed ○ Allowed to help a witness by showing them typically a note to help them remember if they have trouble doing so. The witness then proceeds to testify from present memory (does NOT read from the note). The note does not become part of evidence. Opposing party is permitted to see and inspect the note, and show it to the jury. Other improper questions ○ Compound questions – questions that ask for several answers. ○ Facts not in evidence – a question that assumes… ○ Argumentative questions – intended to bother or harass the witness. ○ Questions calling for inappropriate conclusions – calls for answers witness is not qualified to make. ○ Repetitive questions – however, an attorney may continue to ask the question if witness has not answered it. Presentation of Evidence – Exclusion of Witnesses If a party requests exclusion or the court deems it necessary, the witness must be excluded. Exceptions: ○ Witness is essential to the presentation of the case; ○ A person, such as a crime victim, who is permitted by state rule to remain in the courtroom; or ○ A party in the case. Presentation of Evidence – Burdens and Presumptions Burden of proof ○ A party must produce enough evidence to get the issue to the jury (burden of production); and a party must convince the jury to decide the case in its favor (burden of persuasion). Civil cases – preponderance of the evidence is sufficient. Criminal cases – evidence must be proved beyond a reasonable doubt (every element of the crime). Presumptions ○ Rebuttable presumption: is a device that shifts the burden of production on a particular fact, but not the burden of persuasion. If the counter-proof is introduced, the presumption is eliminated (the bubble bursts) and there is sufficient evidence for the jury to decide the issue. ○ Destruction of evidence If e.g. spoliation occurs, there is a presumption that it would have been adverse to that party. ○ Conclusive presumption Rules of law that happen to use the language of presumption. Relevance – FRE 401, 402, 403, and 104(b) Test for relevant evidence (401) ○ Evidence must be relevant. Relevance makes the fact in issue more likely than it would be without the evidence. Must be both material (must be related to some issue in the case) land probative (must have tendency to prove or disprove some fact). ○ Direct evidence is equivalent to what it is offered to prove (e.g. eyewitness testimony). ○ Circumstantial evidence is evidence from which a fact can be inferred. Admissibility of relevant evidence (402) ○ If evidence is irrelevant, it is inadmissible. Exclusion of relevant evidence (403) ○ The court has discretion to exclude relevant evidence if certain risks substantially outweigh its probative value. Risks – confusion of the issues, unfair prejudice, misleading the jury, or waste of time. Relevance conditioned on the fact (104(b)) ○ When the relevance of evidence depends on the existence of another fact, courts will admit the evidence on the condition that the jury will decide that preliminary fact later. Relevance – Character Evidence Rule: the propensity argument is generally prohibited. ○ The argument that a person acted in conformity with a particular character trait. Proving character ○ When admissible, it can only be proved through reputation or opinion testimony. NOT bad acts. Other relevant uses ○ Character evidence is relevant when character is at issue. It is generally only at issue in civil cases (negligence and defamation); but even so, the propensity argument can almost never be made (except cases involving child molestation or sexual assault whereby P is allowed to introduce evidence of D’s prior acts of that sort). Can be used to impeach witnesses. Relevance – Character Evidence Criminal cases ○ D is permitted to introduce a pertinent trait of good character, however is limited to opinion or reputation testimony. This “opens the door”, allowing the prosecutor to rebut by attacking D’s character, using specific prior acts. On cross-examination, the prosecutor is allowed to inquire about specific acts, but they may not prove the incident by introducing evidence about the earlier incident. ○ In homicide or assault cases, D is permitted to introduce a pertinent trait of the victim’s character, if D is arguing that the victim started the altercation (self defense argument). This “opens the door”, allowing the prosecution to rebut that the victim is not violent, using reputation or opinion testimony, but NOT specific acts. The prosecution can then bring evidence that D is violent. ○ However, D in a sexual assault case may NOT introduce evidence of the alleged victim’s promiscuity. Prior bad acts ○ Can be introduced if used for MIMIC and not for a propensity argument. Motive Intention Mistake (therelackof → too many to be a coincidence) Identity/modus operandi Common plan or scheme Habit evidence ○ Evidence can prove action in conformity with habit that is routine, regular, or automatic. Can apply to organisations. Can be admitted without corroboration or eyewitness. Witness – Competence Who can testify? ○ Someone who – has personal knowledge of the matter about which they are going to testify; ○ Can appreciate the obligation to tell the truth; and ○ Swears to tell the truth (i.e. takes an oath). Judge as a witness ○ A judge is barred from being a witness in a trial over which she is sitting. Juror as a witness ○ A juror may not testify as a witness ina trial in front of a jury in which he sits. ○ Jurors cannot testify after trial as to what was said in the jury room, what happened in the jury room, or what impacted their deliberations. They may HOWEVER, testify about: extraneous prejudicial information or improper outside influence; A clerical or technical error made in entering the verdict onto the verdict form; and If a juror has made a clear statement that a conviction was based on racial stereotype or animus. Witness – Impeachment Adversaries may question the witness’ credibility (impeach) by showing that: ○ The witness has a bad character for truthfulness (dishonest); ○ The witness is biased; or ○ The witness lacks sensory competence. Bias ○ Showing that the witness has some reason to lie or shade the facts. Sensory competence ○ Showing that the witness is mistaken in some way; or ○ The witness did not see or hear things as well as she thinks. Bad character for truthfulness or untruthfulness ○ Can be introduced by reputation and opinion testimony, not on prior acts. Prior acts may only be inquired on cross-examination, with a reasonable basis for asking the question. ○ Criminal convictions Crimes involving dishonesty or false statements (perjury, fraud, or embezzlement). Felonies (crimes punishable by death or more than a year in prison) – evidence can be used unless the risk of prejudice substantially outweighs the probative value. However, if evidence is of D, who is a witness in their own case, evidence is only admissible if the probative value substantially outweighs the prejudicial effect. Old convictions (more than ten years) – evidence is only admissible if the probative value substantially outweighs its prejudicial effect; and the adverse party is given reasonable advanced notice. Pardon – if witness has been pardoned for his conviction or received a certificate of rehabilitation, the conviction cannot be used as evidence. ○ Prior inconsistent statements Can be proved by extrinsic evidence, but only if the witness is given the opportunity to explain or deny. Witness – Rehabilitation of the Impeached Rehabilitation can be accomplished by: ○ Giving the witness a chance to clarify and explain; ○ Introducing a prior consistent statement the witness made; or ○ If the witness’ character was attacked as having bad character for truthfulness, introduce evidence of the witness’ good character for truthfulness through reputation or opinion testimony. Witness – Testimony Lay witnesses ○ To be admissible, the opinion must be based on the perception of the witness; and helpful to a clear understanding of the witness’s testimony or the determination of a fact in the case. Admissible with respect to common sense impressions. Cannot offer opinions or conclusions. Cannot offer opinions based on purported scientific, technical or specialised knowledge. Expert witnesses ○ May offer opinions or conclusions on a subject matter that is scientific, technical, or specialised; and if it helps the trier of fact understand the evidence and determine a fact in issue. NOT applicable to witness testimony – this is the province of the jury. ○ Courts require the expert to satisfy the Daubert test, in which the expert must: Be qualified; Base his testimony on sufficient facts or data; Base his testimony on reliable principles or methods; and Apply the principles and methods reliably to the facts of the case. ○ Experts may express an opinion on the ultimate issue in most types of cases. Does NOT apply to finding requisite mens rea → this is for the jury to find beyond a reasonable doubt. ○ Experts may base their opinions on: Personal observation; Evidence presented at trial; Information reasonably relied upon by experts in that particular field. ○ HOWEVER, the opinion may not be necessarily admissible unless the probative value of the information in evaluating expert testimony substantially outweighs any prejudice. Tangible Evidence – Authentication Courts must find that there is evidence sufficient to support a finding that it is what the party claims. Methods of authentication for real evidence: ○ Personal knowledge – witness testimony that recognises/identifies the item through distinctive features/markings. ○ Chain of custody – accounting for the whereabouts of the item. Documentary evidence – by request of the parties; eyewitness testimony + distinctive features. ○ Ancient documents – at least be 20 years old; in a condition unlikely to create suspicion; and found in a place where such documents would be if they were authentic. ○ Reply letter (doctrine) – authenticated by evidence that it was written in response to another letter. ○ Handwriting – expert or jury compares to known sample; or lay witness with personal knowledge of the handwriting. ○ Self-authenticating documents (FRE 902) Public documents with government seal; Certified copies of public records; Official publications issued by public authority; Trade inscriptions; Notarized documents; and Commercial paper. Oral statements: ○ Voice identification – authenticated by any person who has heard the voice at any time. ○ Telephone identification – caller recognized the speaker’s voice; speaker knew facts only a particular person would know; caller dialed the number believing to be the speaker’s and speaker identified himself upon answering; the caller dialed a business and spoke with a person who answered questions about business regularly over the phone. Tangible Evidence – Best Evidence Rule Best evidence rule ○ Rule: Where the contents of the document are at issue, the actual document must be produced and not witness testimony about it. Contents at issue – where the document is used as proof of an event; or if the document has actual legal effect (e.g. contract or will). Duplicates are admissible, unless there is a genuine question about the authenticity of the original; or in fairness, the original should be required (e.g. some parts of the duplicate are redacted). Summaries or charts are appropriate if the originals are too voluminous. ○ Exceptions: If the original is lost or destroyed. A certified copy is used. The document is a collateral matter. Tangible Evidence – Parol Evidence Rule Parol Evidence Rule ○ Rule: excludes extrinsic evidence, if introduced, would change the (completely integrated) terms of a written contract. Partial integration – excludes extrinsic evidence that would contradict the terms of the agreement; however, allows evidence that might add to the terms. ○ Clarifications – extrinsic evidence about a contract CAN be admitted to: Clarify an ambiguity; Prove a custom of trade or course of dealing; Show fraud, duress, mistake, or illegal purpose; or Show whether consideration has or has not been paid. Privileges – Attorney-client Rule: confidential communication between a client and a lawyer for the purpose of obtaining legal advice. ○ Confidential – client must have made reasonable efforts to keep the communication confidential as failure to do so waives the privilege. ○ If unnecessary third parties are involved, communication will not be privileged. However, if the third parties are necessary to the communication (e.g. translator or lawyer’s assistant), then the privilege will be upheld. If the third party’s presence is unknown, privilege will not be destroyed. ○ The client holds the privilege and thus has the right to decide whether to disclose the communication (i.e. waive the privilege). Corporate client ○ Some courts recognise the “control group” as the client (i.e. the CEO, BoD). ○ However, in federal law, privilege is extended to non-control group employees if the communication (1) is about matters within the scope of employment (2) for purposes of seeking legal advice for the corporation. Exceptions ○ Communication for the purposes of getting help with what the client knows or should know is a crime or fraud. ○ Communication relevant to dispute between the lawyer and the client/former client; or between former co-clients who are now adverse to each other. Privileges – Work Product Doctrine Documents prepared or compiled in anticipation of litigation are protected unless the party seeking disclosure (i) demonstrates substantial need, and (ii) cannot obtain the information by any other means without undue hardship. ○ However, the mental impression work product which reveals the attorney’s trial tactics, conclusions, theories of the case, etc. cannot be obtained. Privileges Physician-patient ○ Communication for the purpose of obtaining medical treatment. ○ Patient holds the privilege. ○ Does NOT apply if: Information was for some other purpose; Privilege is waived; Communication was made for an illegal purpose; Patient’s physical condition is at issue; or Dispute exists between patient and doctor. Psychotherapist-patient ○ Patient holds the privilege. ○ Does NOT apply if: Patient’s mental condition is at issue; Statement was result of state ordered exam; or Case is a commitment proceeding against patient. Fifth Amendment protection against self-incrimination ○ Allows witness to refuse to give testimony that may tend to incriminate him. Only applies to current statements; Does not apply to physical characteristics or mannerisms; Does not apply to blood samples, voice samples, breathalyzers; Does not apply to corporations. Also, if there is no risk of criminal trouble (i.e. immunity), there is no privilege. Privileges – Spousal Privileges Confidential Marital Communications ○ Communications made between spouses in confidence of reliance on the sanctity of the marriage. Communications must be made within the duration of the marriage. ○ Held by both spouses. Spouse can refuse to reveal the communication. Spouse can also prevent the other from revealing. ○ Survives after the marriage. Spousal Immunity ○ Gives a spouse the right to refuse to testify in a criminal case against the other spouse. ○ The witness spouse holds the privilege. D cannot prevent the spouse from waiving their privilege if they choose to testify against them. ○ Applies to currently married spouses. Covers testimony about anything, whether said before or during the marriage, but only applies while married to the person. Public policy exclusions Liability insurance ○ Evidence that a person was or was not insured against liability is not admissible to prove negligence or wrongdoing. Unless, such evidence is relevant for some other purpose e.g. asset control. Subsequent remedial measures ○ Evidence of repairs or changes made after an accident is not admissible to prove negligence, culpable conduct, defective product/design, or an inadequate warning. Unless, such evidence is relevant for some other purpose e.g. ownership, control, feasibility. Settlement offers or negotiations ○ A settlement offer (conduct and statements) made by any party is not admissible to prove the validity or amount of a disputed claim. It also may not be used as a prior inconsistent statement to impeach. Unless, such evidence is used to prove some other purpose e.g. bias. Cannot be unilaterally waived by either party. Offers to pay medical expenses ○ Not admissible to prove liability for injuries; however, statements made or conduct accompanying the offer may be admissible. Plea negotiations ○ Not admissible in a civil or criminal case. Public policy exclusions – Past Sexual Conduct Victim’s conduct (rape shield laws) ○ In general, evidence of a victim’s past sexual behaviour or sexual predisposition is not admissible in a criminal proceeding involving sexual misconduct. ○ Exceptions in a criminal case: To show that D was or was not the source of physical evidence (e.g. semen or bruises) – i.e. the victim may have engaged in sexual relations with someone else in the same night. To show the victim’s past sexual conduct with D to show consent. Where exclusion would be unconstitutional; too unfair to D. – i.e. victim is lying. ○ Exceptions in a civil case: Evidence is only admissible if its probative value outweighs the danger of harm to the victim and unfair prejudice to any party. Evidence of reputation is admissible only is the victim brings it up. Defendant’s conduct ○ In a case in which D is accused of committing an act of sexual assault or child molestation, evidence that D committed any other sexual assualt or child molestation is admissible to prove any relevant matter. Propensity argument is appropriate here. This is an exception to the prior bad acts/general character evidence rules. Hearsay An out of court statement offered to prove the truth of the matter asserted. ○ Spoken or written by a declarant. Can also be assertive nonverbal conduct (e.g. pointing). ○ If the statement is used for some other purpose, other than the truth of the matter asserted, it is NOT hearsay. Verbal acts or legally operative facts – statement offered to prove that the verbal conduct was made. Effect in the listener/hearer – statement offered to show the effect on the person who heard it. State of mind – statement offered as circumstantial evidence of the declarant’s mental state; or to show knowledge. Multiple hearsay? ○ If there are multiple levels of hearsay, an exception or exclusion for each level of hearsay is required for the statement to be admissible. Hearsay – definitional exclusions Statements that meet the definition of hearsay but are excluded from the rule. ❖ Certain prior statements of testifying witnesses - Declarant must testify as a witness and be subject to cross-examination for these exclusions to apply. Prior inconsistent statements Must have been made under oath at a trial, hearing or deposition; to be admissible as substantive evidence. Prior consistent statements Can be used to rehabilitate a witness when accused of recent fabrication or improper motive. Can also be used as proof of the truth of the matter asserted. Prior statements of identification A previous out-of-court id (after perceiving that person) is admissible (e.g. line up at a police station). Does not apply if the witness died (or is unavailable at trial). Hearsay – definitional exclusions ❖ Admissions of a party opponent - Statement being intro’d again against an opposing party is the (opposing) party’s own prior statement. Adoptive admissions Statement made by someone else, which is then expressly or impliedly adopted. Can sometimes adopt by silence given that the party heard and understood the statement; the party had the ability to respond; and a reasonable person similarly situated would have denied the statement. Vicarious admissions Statements made by persons authorised to speak on the party’s behalf – speaking agents, if made within the scope of employment. Co-conspirators Statements made by co-conspirators during and in furtherance of a conspiracy are admissible against other conspirators. ★ Bootstrapping is not permitted. ○ In finding whether there was a conspiracy or an agency r/s, the court cannot base its finding solely on the contents of the statement itself. There must be some other evidence to support the finding. Hearsay – Exceptions when Declarant is Unavailable (*R1+R2) Rule 1: must show that the declarant is unavailable to testify as a witness. ○ Unavailable – Is exempted from testifying on the grounds of privilege; Refuses to testify; Lacks memory of the subject matter; Is dead or too ill; or is absent and cannot be subpoenaed. Not if a party wrongfully renders the declarant unavailable for the purpose of preventing testimony. If declarant is made unavailable in such a manner, the door is open to use anything the declarant said against the party. Rule 2a: Former testimony ○ Given by an unavailable witness under oath at a prior hearing or deposition, is admissible in a subsequent trial if the party against whom the testimony is being offered had an opportunity and similar motive to develop the testimony by direct or cross-examination at the prior trial, deposition, or hearing. (**does not apply to grand jury testimonies). Rule 2b: Dying declarations ○ Individual believes she is dying; believes death is imminent; and statement relates to the cause or circumstances of the death. Statement is admissible in a homicide case or a civil case (e.g. insurance). Declarant doesn't actually have to die. Rule 2c: Statements against interest ○ At the time made, statement was against the declarant’s penciunary, proprietary, civil, or penal interest, such that a reasonable person would not have made the statement unless it were true. Exonerating statements (would subject declarant to criminal liability) are not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. Rule 2d: Statements of personal or family history ○ Statements concerning the unavailable declarant’s own brith, adoption, marriage, familial r/s, etc. are admissible. Hearsay – Exceptions when Declarant’s Availability is Immaterial These exceptions do not require the declarant to be unavailable to apply. ❖ Present sense impression Statement (describing or explaining) made while declarant was perceiving said event or immediately thereafter. ❖ Excited utterance Statement of the startling event or condition while declarant is still under the stress or excitement caused by it. ❖ State of mind Statement of declarant’s then existing physical, mental, or emotional condition; for the purpose of proving the existence of that condition. Statement of intent can be used to prove action in conformity with that intent. ❖ Medical diagnosis or treatment Statement describing declarant’s medical history; past/present symptoms; or cause of an injury, if pertinent to treatment or diagnosis. Need not be made directly to the doctor, nor does it necessarily need to be made by the patient. ❖ Past recollection recorded When a witness has inadequate memory to testify about a matter for which a record exists, the witness may read the record to the jury if the record concerns a matter about which the witness once had knowledge of; the record was prepared or adopted by the witness when the matter was fresh; the record accurately reflects the witness’ knowledge; and the witness testifies he has insufficient memory of the event to testify fully and accurately. It is not provided to the jury nor is it intro’d to evidence; however, the adversary may introduce it to the jury. Hearsay – Exceptions when Declarant’s Availability is Immaterial ❖ Business records Any record or writing of an act or event made in the course of a regularly conducted business activity. (1) Must have been made at/near the time of recorded event; (2) by person with knowledge of the event, who was under a duty to report it; (3) and recording of that kind was regular practice. Courts have discretion to exclude, if source, method or circumstances indicate lack of trustworthiness. Applies to medical records, but not legal documents made in anticipation of litigation. ❖ Public records Activities; observation; and factual findings of records by public agencies and admins may be admissible. May be excluded if circumstances indicate a lack of trustworthiness. Law enforcement report against a criminal defendant can only introduce the activities. The observations and conclusions must be testified by an officer who is subject to cross-examination. ❖ Learned treatises (scientific, historical, or medical) May be used to impeach expert witnesses. May be used as substantive evidence once it is established as a reliable authority, an expert relied on it, or it was used to cross-examine an expert. ❖ Judgment of previous conviction Admissible to prove any fact that was essential to the judgment. ❖ Other exceptions Records of vital statistics; – of religious orgs; – of family; statements in ancient docs; market reports and commercial publications. ❖ Reputation or character of a person Available in the narrow circumstances when reputation/character evidence is admissible. Constitutional limitations to the hearsay rule The confrontation clause (6th amend.) ○ Face-to-face confrontation Criminal defendants have the right to be confronted with the witnesses against them. Witnesses must testify in front of the accused. However, particular accommodations are sometimes necessary to protect the interest of a vulnerable witness (e.g. child). ○ Out-of-court statements (Crawford – NOT hearsay analysis) OOC statements that are testimonial (made with the primary purpose of ascertaining past criminal conduct give rise to CC issues. Can only be admitted against a criminal defendant if the declarant is now unavailable; and the defendant had a prior opportunity to cross examine that declarant. Emergency doctrine – statements made for the purpose of getting help should not be considered testimonial. The due process clause (14th amend.) ○ If evidence rules restrict a criminal defendant’s ability to mount a defense, the rules might violate the due process clause. FRE 404, character evidence rules. Rape shield laws.