Evidence Rules PDF

When looking at an evidence fact pattern you have to determine if the evidence is admissible. To do so you must determine if the evidence is relevant. Propensity: prior actions make it more likely to have same actions now HOW TO APPROACH FACT PATTERN Determining i...

When looking at an evidence fact pattern you have to determine if the evidence is admissible. To do so you must determine if the evidence is relevant. Propensity: prior actions make it more likely to have same actions now HOW TO APPROACH FACT PATTERN Determining if the Evidence is Admissible. First determine if the evidence is coming in as one of the following: 1) Relevance a. Then look for the following i. Logical Relevance, Legal Relevance, Exclusions for PPR, Character Evidence 2) Testimonial Evidence a. Then look for the following: i. Impeachment, Opinion Testimony, Testimonial Privileges b. Testimonial Evidence Is: i. Assertive Conduct ii. Nodding to indicate yes iii. Raising hand to indicate yes iv. Keeping hand down to indicate no v. Pointing at picture to identify assailant vi. Non- Assertive Conduct vii. Taking off sweater 3) Tangible Evidence a. Then look for the following: i. Authentication, Best Evidence Rule 4) Hearsay a. Requirements, Nonhearsay, Exceptions, Const. Limitations FRE 401 – Logical Relevance - Evidence is relevant if it has ANY probative AND material - Material: fact is of consequence (credibility of witness, elements of crime, damages) FRE 402: Irrelevant Evidence is not Admissible FRE 403 – Excluding Relevant Evidence for Prejudice - If the evidence is relevant if it is unduly prejudice against the defendant then it could be excluded FRE 404: Character Evidence (Propensity Purposes) - Must be raised immediately Essay Analysis: 1) Civil vs criminal 2) Propensity purposes 3) specific instance vs character trait - Specific instances are generally inadmissible unless being brought in under 404(b) for nonpropensity purposes and speaks to motive, intent, identiy, etc. Civil Cases(neither party can introduce): character evidence only come is not admissible UNLESS: 1) Character is an essential element of the claim/defense OR 2) The case involves a claim for relief based on the defendants alleged sexual assault or child molestation Criminal Cases (only def. can introduce): IF there is no propsensity – must come in for motice, intent, identity, preparation, etc. RULE 404(b) IF there is propensity – must look at if defendant opened the door? 1) Is it pertinent to the crime charged 2) Is it through reputation/ opinion testimony? Prosecution can rebut by: 1) Calling own character witness OR 2) Cross examining the defendants character witness (no cross can introduce specific instances of conduct FRE 608: Character for Truthfulness or Untruthfulness 608(a) Reputation or Opinion - General testimony to the witness’s character for truthfulness or untruthfulness - Can also be done to rehabilitate character - NO extrinsic evidence 608(b) Specific Instance - During cross examination about specific conduct related to truthfulness - No extrinisic evidence FRE 609: Impeachment by Evidence of Criminal Convictions - Impeachment is attacking a witness’s credibility - Only for crimes punishable by death or up to 1 year imprisonment OR for perjury or fraud (crimes of dishonesty) 609(a)(1) – Felony Convictions - Weigh probative and prejudicial value - If conviction over 10 years old it won’t be admitted. Under 10 will o Applies to witnesses for impeachment purposes as well 609(a)(2) – Crimes of Dishonesty - Crimes of perjury, fraud, etc. are always admissible regardless of length of sentence 609(b) – Crimes over 10 years - Crimes over 10 years are generally not admissible unless:  o Considered highly probative of witness o Prosecution must give notice 10 days before trial if they plan on using Civil Cases: allowed but stricter must be based on dishonesty or fraud Criminal Cases: a prior conviction may be admitted to impeach the credibility if it is relevant FRE 613: Prior Inconsistent Statements 613(a): Use of Prior Statements - Party can ask about prior inconsistent statements of the witness for purposes of impeachment - Must notify opposing party of statement prior to it’s use and they must be given a record (recording or written) - Witness will be given opportunity to clarify or deny statement (IF DENIES GO TO B) 613(b): Introducing Inconsistent Prior Statements - Party can bring forth extrinsic evidence of the prior inconsistent statement - No requirement to introduce/raise immediately FRE 412: Victim’s Prior Sexual History Criminal cases: not allowed and protects sexual assault victims by limiting the use of evidence about their past sexual behavior. Civil cases: a victim’s sexual behavior may be admitted only if the evidence is directly related to the issue of consent and is deemed relevant by the court. FRE 413: Evidence of Similar Sexual Assault Crimes - Only in criminal cases. Allows for evidence of prior sex crimes to be admitted - IF FOR SEXUAL CRIME IN A CIVIL MATTER USE 404 FRE 410: Plea Criminal Cases: Statements made by a defendant during plea negotiations are not admissible against them in a subsequent criminal trial. Civil Cases: these statements are admissible Witnesses & Testimonial Evidence FRE 601: Competency to Testify in General - Unless a statute states otherwise, everyone is presumed to testify. Below are reasons where there are special accommodations that are made. where the weight of the testimony would have to be weighed for the jury. o Mental/Moral Competency (this is where you can place bias – ie. Mother testifying) ▪ Speaks to the weight of the testimony. Not the admissibility of the testimony. This does not preclude the person from testifying  ▪ Issues for the juror to consider when weighing the testimony o Ability to Communicate o Child Competency ▪ Special accommodations sometimes. FRE 602: Need for Personal Knowledge - In order for a witness to testify they must testify to their own personal knowledge FRE 603: Oath or affirmation to testify Truthfully - A witness must testify or give some oath to solidify their honesty/consciousness before the juror prior to testifying FRE 604: Interpreters - Translators must also take an oath prior to translating to show they with be honest in translation FRE 605: Judge’s Competency as a Witness - A presiding judge may not testify during a trial. No party has to object for this rule FRE 606: Juror’s Competency As a Witness - (a)At trial o Juror may not testify at trial. If so the opposing party can request to speak to judge outside the others jurors presence - (b)During an Inquire into the Validity of the verdict or indictment: o (1)Jurors are to not speak about deliberations processes, the state of mind of other jurors, how they voted, etc. No affidavits can be made to the court. o (2)EXCEPTIONS: prejudicial information brought to jurors improperly, outside influences, or mistake was made on the verdict form Impeachment FRE 607: Who May Impeach Witness’ - Any party, including the party that called the witness, may attack the witness’s credibility. o THis is the best rule ot use for impeaching on bias of a witness FRE 611: Mode & Order of Presenting Evidence - The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as Determining Admissibility FRE 401 / Test For Evidence  1) Evidence must be probative 2) Evidence must be material a. Does it prove a fact of consequence? FRE 402 - Relevant evidence is admissible as long as it is not deemed inadmissible by FRE FRE 403: Balancing Test - Must determine probative value is substantially outweighed by other factors such as o unfair prejudice, confusing or distracting evidence, undue delay/wasiting time, cumulative evidence FRE 105: Jury Instructions - Rule 105 allows evidence to be restricted and to limit the jury to take in evidence for what it needs to be taken in as for a particular purpose. Thus, it would limit the prejudicial value HEARSAY Def: out of court statement used to prove truth of matter asserted Confrontation Clause: LAST STEP BEFORE SAYING HEARSAY EXCEPTION/EXEMPTION WORKS Exemptions That Allow Hearsay: 801(D) are admissible hearsay that are considered non-hearsay - Offered against the party who made the statement (801(d)) o D(1): declarant witness, remembers making statement, and is a: ▪ (a) Prior inconsistent statement: Statement is inconsistent with present testimony Given under the penalty of perjury ▪ (b) Prior Consistent Statement - REHABILITATE Consistent with present testimony Prior statement is offered to rebut charge of recent fabrication/motive ▪ (c) Prior Statement of Identification Identifies a person Perceived by declarant-witness - Party Opponent Exemptions (801(d) _ NOT INCLUDED IN DEF. OF HEARSAY o (2): Admissions by opposing party or party opponent. Does not need to be against interest ▪ (A) Express Admission Made in individual or representative capacity ▪ (B) Implied or adoptive admission Party agreed, adopted, or remained silent when a normal person would have denied  ▪ THE FOLLOWING: DECLARANT ADMISSIONS MUST PROVE RELATIONSHIPS SEPERATELY AND NOT IMPLIED ▪ (C) Authorized Admission Statement by lawyer, or other representative that is allowed to speak on their behalf ▪ (D) Agent’s Admission Agent or employee within scope of existing working relationship CANT USE PRINCIPAL STATEMENT AGAINST THE EMPLOYEE ▪ (E) Coconspirator’s Admission During and in furtherance of conspiracy MUST HAVE 104(a) Preliminary Determination that there was a conspiracy Exceptions That Allow Hearsay: - 803: Present Sense/Excited Utterance o (1) Present Sense ▪ During or immediately made after the declarant perceived it o (2) Excited Utterance ▪ Relates a startling event or condition ▪ While under stress of excitement o (3): State of Mind ▪ Mental State ▪ Emotional or physical state ▪ Memory of belief may only be admitted for actions when it’s a dying declaration ▪ HILLMON DOCTRINE A mans state of mind or feelings can only be manifested to others by countenance attitude or gesture of by sounds, words, etc. o (4) Medical Diagnosis or Treatment/Reports ▪ For and pertinent to diagnosis/treatment ▪ Describes medical history or symptoms o (5): Past Recorded Recollection ▪ Regarding a matter once known ▪ Created with fresh memory ▪ Accurately reflects knowledge CAN NOT BE ADMITTED AS AN EXHIBIT UNLESS BY AN ADVERSE PARTY May be admitted for substantive evidence Witness no longer recalls fully, read record into evidence ▪ SIMILAR RULE: 612: Writing to refresh recollection May not be admitted as substantive evidence, Witness recalls but needs refreshing, Testify to recalled fact o (6) Business Records ▪ Personal or transmitted knowledge at or near time  ▪ Kept by regularly conducted business ▪ Regular practice to record ▪ Qualified testifying witness (person who made record or holder of the records) ▪ No lack of trustworthiness o (7) Absence of Record ▪ Offered to prove a matter did not occur or record did not exist ▪ Can be used as long as nothing gives a reason to believe an issue of trustworthiness o (8) Public Record ▪ Office’s activities (court record, trustee records) ▪ Legal duty to report observed matter Records including outside of legally required are not admissible (THINK: Child Protection taking records of animal cruelty would not be admissible) Police report is not admissible ▪ Factual findings from legally authorized investigation Civil case Against government in criminal case - 804: Declarant Unavailable – Statement can not be offered due to: o (A) – Privilege ▪ Usually for against self incrimination o (B) – Refusal to testify ▪ Usually for being in contempt of court o (C) – Lack of Memory o (D) – Death or Illness to prevent testifying o (E) – Absent ▪ Party must have reasonably tried to get them to attend via subpoena or to attend o UNAVAILABILITY AND WRONGDOING ▪ If the party makes declarant unavailable and then offers they’re testimony this exception does not apply o (B) 5 EXCEPTIONS REQUIRING UNAVIALBILITY – STATEMENT CAN BE OFFERED ▪ (1) Former testimony Given during trial, hearing, or deposition Offered against same or similar party ▪ (2) Dying declaration In homicide prosecution or civil case Made under belief of imminent death About cause or circumstances ▪ (3) Statement Against Interest Against declarants interest o Can be against property or financial interest o Invalidates claim  o Exposes to civil or criminal liability Corroborated circumstances (criminal cases) ▪ (4) State of person/family history Address either declarants own or personal family history if declarant is related or associated with family can be admitted (birth, adoption, marriage, divorce) ▪ (5) Forfeiture by Wrongdoing Party gets declarant to be unavailable, opposing party offers statement, then it is admissible o Party of wrongdoing is not allowed to cross-examine ▪ (6) - 807: Residual Exception - - Equivalent guarantees of trustworthiness - Evidence of material fact - Most probative of reasonable obtainable evidence - Serves Fre and interests of justice - Reasonable notice is given to adverse party - 805: Hearsay within hearsay o Requires both statements to be an exemptions or exception of hearsay o LOOK FOR CONFRONTATION CLAUSE - 806: Declarant Impeachment o Allows for declarant to be impeached by the hearsay statement as if they made the statement in court. Impeachment for normal reasons (bias, sensory, etc. )  THEMIS NOTES Jury & Judge Rules (100 Rules) FRE 104 – Preliminary Questions - (a) Court decides whether privilege exists, witness is able to testify, etc. This rule is for matters of law. Determines preliminary questions of whether something is admissible. At this point the court is not bound to the rules of evidence at the preliminary questions that are based on admissibility. - (b) Jury is to decide matters of fact. Whether the evidence is persuasive or not. FRE 105: Limited Admissibility - If court admits evidence that is admissible against a party for a particular purpose, but not against another party or for another purpose, the court (upon timely request) must restrict the evidence to its proper scope and instruct the jury accordingly o NOTE: The evidence has potential for inappropriate uses by the jury. This is when you ask the court to instruct the jury give limited use of the evidence. FRE 106: Doctrine of Completeness - An adverse party may require the introduction of the remainder of a writing or recorded statement that the opposing party has introduced into evidence. It is brought in for fairness. MUST be brought forth in the moment. No need to wait to introduce later on Relevance Rules (400 Rules) FRE 401 – Relevance - (a) Evidence is relevant if it has ANY tendency to make a fact more or less probable than it would be without the evidence AND - (b) is a fact of consequence in determining the action FRE 402: Irrelevant Evidence Not Admissible FRE 403: Excluding Relevant Evidence/ Balancing Test - Court may exclude relevant evidence if its probative value is substantially outweighed by unduly prejudice, undue delay, confusing the issues, etc. o Note that even gruesome pictures may still be admitted despite it riling the jury up Character Evidence (400’s) FRE 404: Character Evidence - (a): Character or character trait is not admissible to prove that on a particular occasion person acted in accordance with the character or trait. THIS EVIDENCE WOULD BE EXCLUDED BUT FOR THE EXCEPTIONS  o Propensity Inference Bar: Arguing that the person has a particular trait ▪ ANALYSIS FOR 404 ▪ Something other than propensity? ▪ Does it pass 403? Does probative outweigh? ▪ Also include 803(21) - (a)(2)(a) Exceptions for Defendant in Criminal Case o A defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted the prosecutor may offer evidence to rebut it ▪ NOTE: A defendant would bring in evidence of honesty or peacefulness when charged for crimes with an underlying notion of violence or dishonesty - (a)(2)(b): Exceptions for Victim in Criminal Case o A defendant may offer evidence of an alleged victim’s pertinent trait and if the evidence is admitted the prosecutor may: ▪ Offer evidence to rebut it; and ▪ Offer evidence of the defendant’s same trait o NOTE: This rule is generally for assault cases and to show violence of the victim. NOT FOR RAPE OR OTHER SEXUAL ASSAULT. IN Homicide for victim dead… prosecutor can make argument that the victim was peaceful. BUT can not argue same trait of the defendant FRE 404(b): Crimes Wrongs or Other Acts - (1) Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character - (2) Notice in Criminal Case o Evidence may be admissible for proving motive opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, lack of accident. On request by a defendant in a criminal case, prosecutor must: ▪ Provide reasonable notice of general nature of evidence to be offered ▪ Do so before trial, or during trial if the court for good cause excuses lack of pretrial notice o UNDER EKIYOR UNDER 404(b) Evidence is Inadmissible when it is for the acts of a 3rd party FRE 405: Methods of Proving Character - (a) By Reputation or Opinion o When evidence of a person’s character or trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in form of an opinion. This testimony CAN NOT be about specific instances of person’s conduct ▪ Cross examination of witness court may allow an inquiry into relevant specific instances. Must take the witness answer is. - (b) Specifics Instances of Conduct  o When a person’s character or trait is an essential element of a charge, claim, or defense the character or trait may also be proved by relevant specific instances of the person’s conduct ▪ THINK: CPS case of violent parent. Evidence of character trait of violence is an issue then it would come in under 405(b). Defamation case where they are said to be a violent person. Evidence of character trait of violence is being admitted. Non-Propensity Uses of Character Evidence - 404(b)(2) – Crimes Used for Intent, Motive, Etc. - 405 (b) – Specific Instances of Conduct to Prove Charge Sex Offense Cases FRE 412: Victim’s Sexual Behavior or Predisposition - (a) The following evidence is prohibited and not admissible in civil or criminal proceeding involving alleged sexual misconduct o Evidence offered to prove that a victim engaged in other sexual behavior o Evidence offered to prove a victim’s sexual predisposition - (b)EXCEPTIONS o (1) Criminal Cases Court may admit the following ▪ (A)Evidence of specific instances of victims sexual behavior if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence ▪ (B) evidence of specific instance of victims sexual behavior with respect to the person accused of sexual misconduct, If offered by the defendant to prove consent or if offered by prosecutor; or ▪ (C) evidence whose exclusion would violate def. constitutional rights This would be under the Due Process Right. Arguments would be such as o Def. alleging the victim is lying because they don’t want their boyfriend to find out THINK CONFRONTATION CLAUSE Give notice to other party o (2) Civil Cases Court may admit the following ▪ Evidence offered to prove victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unpair prejudice to any part. Court may admit evidence of victim’s reputation only if the victim has placed it in controversy ▪ 403 TEST FRE 413: Similar Crimes in Sexual Assault Cases  - (a) IN a Criminal Case the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant FRE 414: Sexual Molestation of Children - (a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. o NO TIME LIMIT FRE 415: Sexual Crimes in Civil Cases - In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414. FRE 406: Habit Evidence - Evidence of a persons habit or routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. Court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness o NOTE: Generally refers to routines, more regular, or automatic. Specific things that someone/organization they do. ▪ Bring a certain route everyday, always checking valves, bringing a sandwich, etc. FRE 407: Subsequent Remedial Measures - When measures are taken that would have prevented earlier harm, evidence of the subsequent measure is not admissible to prove: o Negligence, culpable conduct, defect in a product/design, or need for a warning or instruction - But court may admit the evidence for another purpose such as impeachment or proving ownership, control, or feasibility of precautionary measures o WOULD WANT TO PUT A LIMITING INSTRUCTION (FRE 105) FRE 408: Compromise Offers & Negotiations - Prohibited Uses: Evidence of or behalf of any party to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction o Furnishing promise, or offering or accepting, promise to accept, or offer to accept, a valuable consideration in compromising or attempting to compromise the claim AND  o Conduct or a statement made during compromise negotiations about the claim – except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory investigative or enforcement authority - Exceptions: the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution FRE 410 : Plea Bargain Discussions - (a) Prohibited Uses: In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in plea discussions o Guilty plea that was later withdrawn o A nolo contendere plea ▪ Plea that is designed to not create evidence. Pleading guilty without guilty. No contest plea (THIS PLEA IS IN THE DESCRETION OF THE COURT) o A statement made during a proceeding on either of those pleas under Federal Rule of Crim Pro or comparable state procedure; or o A statement made during plea discussions with an attorney for the prosecuting authority if the discussion did not result in a guilty plea or they resulted in a alater withdrawn guilty plea ▪ NOTE: This rule basically protects anything that is said during plea negotiations. The government will not be able to admit these discussion later on - (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): o (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or o (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present. FRE 409: Offer to Pay Medical or Similar - Evidence promising to pay or offering to pay medical hospital, or other expenses resulting from an injury is not admissible to prove liability for the injury FRE 411: Liability Insurance - Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. - But court may admit this evidence for another purpose such as proving a witness bias, prejudice, or proving agency, ownership, or control WITNESS TESIMONY FRE 601: Competency to Testify in General  - Every person is competent to be a witness unless rules provide otherwise. Civil cases state law governs competency FRE 602: Need for Personal Knowledge - A witness may testify only if evidence shows that the witness has personal knowledge of the matter. To prove personal knowledge it may consist of witness’s own testimony. o DOES NOT APPLY TO EXPERT TESTIMONY ▪ THINK OF THE RULE AS THRESHOLD FOR TESTIFYING AND AS AN INTIAL SCREEN TO DETERMINE IF THERE WILL BE HEARSAY ▪ MUST HAVE FOUNDATION (SHOWING THEY HAVE PERSONAL KNOWLEDGE …. BEING PRESENT? DID YOU SEE THE ACCIDENT? ETC. ) FRE 603: Oath or Affirmation Testify Truthfully - Before testifying a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience FRE 611: Mode & Order of Examining Witnesses/Evidence - (a): Court should exercise reasonable control over the mode of examining so as to: o Make procedures effective for determining trurth o Avoid wasting time o Protect witnesses from harassment or undue embarrassment - (b) Scope of Cross Examination o Court should not go beyond subject matter of the direct examination and matters affecting witness credibility. Court may allow inquiry into additional matterss as if on direct examination ▪ Opposing party may recall a witness if they need to ask questions that are outside of the initial examination - (c) Leading Questions o Should not be used on direct examination except as necessary to develop the witness’ testimony. Court should allow on following times: ▪ Cross examination ▪ Party calls a hostile witness, adverse party, or a witness identified with an adverse party FRE 614: Court’s Calling or Examining a Witness - (a) Calling. The court may call a witness on its own or at a party’s request. Each party is entitled to cross-examine the witness. - (b) Examining. The court may examine a witness regardless of who calls the witness. - (c) Objections. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present. FRE 615: Excluding Witnesses (a) Excluding Witnesses. At a party’s request, the court must order witnesses excluded from the courtroom so that they cannot hear other witnesses’ testimony. Or the court may do so on its own. But this rule does not authorize excluding: (1) a party who is a natural person; (2) one officer or employee of a party that is not a natural person, if that officer or employee has been designated as the party’s representative by its attorney; (3) any person whose presence a party shows to be essential to presenting the party’s claim or defense; or (4) a person authorized by statute to be present. OTHER TESTIMONY FRE 701: Opinion Testimony by Lay Witness - Testimony in the form of an opinion is limited to one that is: o Rationally based on witness’s perception o Helpful to clearly understanding the witness or determining a fact in issue; and o Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 FRE 702: Expert Witness Testimony - A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: o (a) expert’s scientific, technical, or other specialized knowledge, will help the trier of fact to understand the evidence or to determine a fact in issue o (b) testimony is based on sufficient facts or data o (c) the testimony is the product of reliable principles and methods; and o (d) expert has reliably applied the principles and methods to the facts of the case ▪ NOTE: Qualifications for the expert must be founded. Usually done before trial however best practice is to establish their qualifications and then ask for them to be recognized as a witness by the court. - Frye Test (OLD) o Only allow expert testimony when science is generally accepted by the field - Daubert Rule (NEW) o IF testimony is helpful and based on sufficient science, and facts of the case then it would be allowed to be used as expert witness testimony. Must have a basis upon which their testimony is based ▪ Used as a screening process FRE 704: Opinion on Ultimate Issue o (a) IN General – Not Automatically Objectionable  ▪ An opinion is not objectionable just because it embraces as an ultimate issue o (b) Exception ▪ In a criminal case an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are of the trier of fact alone WITNESS IMPEACHMENT Overview - You would want to discredit the witness and put in perspective the evidence a witness has provided - You need to do this during your argument and during cross examination - Bias or perception can be brought in through leading questions on cross examination or through extrinsic evidence Bias - Impeaching for common reasons: o Being paid o Accepting plea bargain for testimony o Grudges against defendant o Hoping to get a job o Prior dealings with the defendant - Note: There is no rule for impeachment for bias however you are still able to impeach by bias Perception - Impeaching the witness for the circumstances revolving their view/perception of the witnesses recollection of the events o Being drunk o Having no glasses o Being a far away FRE 613: Prior Inconsistent Statements - If witness has said in the past a statement that contradicts the current statement you can bring forth the past statement. You can bringing it forth the statement to show the inconsistent statement NOT forth the truth of the statement. It would be brought forth the statement to show impeachment and lack of truthfulness on the witness - CANT USE EXTRINSIC EVIDENCE UNLESS THE WITNESS HAS THE CHANCE TO EXPLAIN. o Use this during cross examination. Use statement to prove that the statements are not consistent. To impeach the witness FRE 608: Character for Truthfulness (Reputation or Witness)  - Suggesting that the witness has a bad character for truthfulness and that they are dishonest - Reputation or Opinion o Introducing this witness to discredit the other witnesses testimony and show that they are not an honest person o 608 (a) They would give reputation or opinion testimony ▪ Essentially states that the witness is known as a liar. Only states to the reputation. Can not speak to specific times/circumstances of their dishonesty. Only for their reputation - Specific Instances 608 (b) o Extrinsic evidence is not allowed but the court may allow for specific instances to be inquired about to the current witness whose character may be in question ▪ COLLATERAL EVIDENCE IS BELOW: o Essentially extrinsic evidence not truly related to the rule ▪ If you believe that the witness was a liar you could ask about specific instances in which you know that they have lied. ▪ You can not prove through extrinsic evidence. So if they lie or deny the specific instance you have to just take the answer as is. ▪ There will not be a whole trial due to the side issue of the persons character of lying FRE 609: Impeachment of Prior Convictions - Can introduce evidence of prior crimes the witness has committed that are related to the current testimony they are giving - 609(a)(1) o For a crime that in the convicting jurisdiction, was punishable by death or imprisonment for over a year the evidence (Serious crimes): ▪ (A) must be admitted subject to 403, in a civil case or in a criminal case in which the witness is not a defendant AND ▪ (B) must be admitted in a criminal case is which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to the defendant and - 609 (a)(2) o For any crime regardless of punishment the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving – of the witness’s admitting – a dishonest act or false statement ▪ Perjury, fraud, or crime by nature shows dishonest crime Hearsay Some Non-hearsay Uses of Out-of-Court Statements 1. Declarants state of mind a. Mistake, knowledge, belief  b. Lyons v. Morris Costumes 2. Effect on Listener a. Fear, Duress, Knowledge 3. Verbal Acts "Operative Conduct" a. Fraud, Oral transaction, demand, commands IMPLIED ACTIONS Assertive Conduct Nodding to indicate yes Raising hand to indicate yes Keeping hand down to indicate no Pointing at picture to identify assailant Non- Assertive Conduct Taking off sweater FRE 801 - (A) Statement: an oral or written assertion, or nonverbal conduct if the person intended it as an assertion - (B) Declarant: person who made the statement - (C) Hearsay: statement that: o (1) declarant does not make while testifying at the current trial/hearing; and o (2) A party offers in evidence to prove the truth of the matter asserted in the statement - (D) Statements that are NOT HEARSAY o (1) Declarant’s Witness’s Prior Statement ▪ Declarant testifies and is subject to cross examination about a prior statement, and the statement. (these statements generally can not be brought in for the truth, but for the purpose of impeachment. However can be used as proof of matter asserted if stated under oath previously): (A)INCONSISTENT STATEMENTS: is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition o NOTE: This rule reiterates this testimony is not hearsay and would be used as a prior inconsistent statement for impeachment purposes under FRE 613 (B) CONSISTENT STATEMENT: is consistent with the declarants testimony and is offered: o (i) to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying; or o (ii) to rehabilitate the declarants credibility as a witness when attacked on another ground  ▪ This is generally for rehabilitation of the witness (C) Identification: identifies a person as someone the declarant perceived earlier o Person making ID out of court and then comes to trial to identify allows the prior identification to be admitted. NOT TO BE USED IF THE WITNESS DOES NOT SHOW UP TO TRIAL o (2): Statements of Party Opponents (if def. said it then it can come in, hearsay included) ▪ (A): was made by the party in an individual or representative capacity ▪ (B): is one the party manifested that it adopted or believed to be true Adopted Statement Rule. This is when someone must deny the statement if it would’ve been reasonably expected to. If not then silence is fine. ▪ (C): was made by a person whom the party authorized to make a statement ▪ (D): was made by the party’s agent or employee on a matter within the scope of that relationship ▪ (E): was made by the party’s co-conspirator during and in furtherance of the conspiracy Elements: coconspirator, statement while conspiracy is going on, and in furtherance of conducting the conspiracy o NOTE: statements made to police after arrest do not count under this exception FRE 803: Exclusions/Exceptions Against Hearsay - The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness o (1): Present Sense Impression ▪ A Statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. o (2): Excited Utterance ▪ A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused o (3): Then Existing Mental, Emotional, Physical Condition ▪ A statement of the declarant’s then existing state of mind (motive, intent, plan) or emotional, sensory, or physical condition (such as mental feeling: pain, or bodily health) but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will Hillmon Doctrine o Statement of intent can be used not just to prove that a person had the mental state of intent but they acted in accordance with that intent o (4) Statement Made for Medical Diagnosis or Treatment  ▪ (A) is made for – and is reasonable pertinent to- medical diagnosis or treatment; and ▪ (B) describes medical history, past or present symptoms or sensation; their inception or their general cause NOTE: causation information is not pertinent to diagnosis or treatment does not come in (hurt my lef when I fell out of a tree(relevant), because my brother-in law pushed me out (not relevant) This also applies to expert testimony from doctors who do examinations for testifying o (5) Recorded Recollection ▪ (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately ▪ (B) was made or adopted by the witness when the matter was fresh in the witness memory; and ▪ (C) accurately reflects the witness’s knowledge NOTE: Can only be introduced into evidence if offered by an adverse party. PARTY MUST COME IN TO TESTIFY ▪ DISTINGUISHED FROM 612: RECOLLECTION REFRESHED You can use anything to refresh and remind the witnesses memory The other side must be shown and aware of what is being used to refreshed the witness’s memory o (6) Business Records ▪ (A) record was made at or near time by or from information transmitted by someone with knowledge; ▪ (B) the record was kept in the course of a regularly conducted activity in a business, organization, occupation, or calling whether or not for profit ▪ (C) making the record was a regular practice of that activity ▪ (D) all conditions are shown by the testimony of the custodian or another qualified witness, or by certification that complies with rule 902(1) or (12) or with a statute permitting the certification and ▪ (E) the opponent does not show the source of information or the method/circumstances of preparation indicate a lack of trustworthiness o (7) Absence of A Record ▪ Evidence that matter is not included in a record under 803(6) ▪ (A) evidence is admitted to prove that matter did not occur/exist ▪ (B) a regular of that kind was regularly kept ▪ (C) no showing of lack of trustworthiness o (8) Public Records – records of a public office ▪ (A) set out (i) office’s activities  (ii) a matter observed while under a legal duty to report, but not including in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation and ▪ (B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness NOTE: against criminal def. police reports can only talk about what they did. NOT what they observed or concluded FRE 804: Declarant Unavailable - (a) Declarant is considered unavailable as a witness if the declarant: o (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies o (2) refuses to testify o (3) testifies to not remembering the subject matter o (4) cannot be present or testify at the trial or hearing because of death or a then- existing infirmity, physical illness, or mental illness o (5) is absent from the trial or hearing and the statements proponent has not been able, by process or reasonable means to procure: ▪ (A) the declarants attendance, in the case of a hearsay exception under 804(b)(1) or (6) Have to show you couldn’t get them to present ▪ (B) the declarants attendance or testimony in the case of a hearsay exception under Rule 804(b)(2,3, or 4) Have to show you couldn’t get them there OR a deposition under these rules - (b) Following are not excluded by the rule against hearsay if the declarant is unavailable as a witness o (1) Former Testimony… Testimony that ▪ (a) was given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and ▪ (b) is now offered against a party who had (or in civil case whose predecessor in interest had) an opportunity and similar motive to develop it by direct cross, or redirect examination o (2) Dying Declarations ▪ In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances THESE DO NOT OFFEND THE CONFRONTATION CLAUSE o (3) Statement Against Interest ▪ (A) A reasonable person in the declarants position would have made only if the person belied it to be true because when made, ti was so contrary to the declarants interest or had so great a tendency to invalidate the declarants  claim against someone else or to expose the declarant to civil or criminal liability; and ▪ (B) is supported by corroborating circumstances that clearly indicate is trustworthiness if it is offered in a criminal case as one that tends to expose the declarant to criminal liability o (4) Statement of Personal or Family History ▪ (A) declarant’s own birth, adoption, legitimacy, ancestry, marriage, etc. or similar facts of personal or family history, even though the declarant had no way of acquiring personal knowledge about that fact; or ▪ (B) another person covering any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarants information is likely to be accurate o (6) Wrongfully Caused Declarants Unavailability/ Forfeiture by Misconduct ▪ Statement offered against a party that wrongfully caused, or acquired in a wrongfully causing, the declarants unavailability as a witness, and did so intending that result IF YOU CAUSED THEM TO BE GONE THEN YOU CANT PREVENT THEIR PRIOR TESTIMONY CONFRONTATION CLAUSE - In criminal prosecutions, the accused had the right to be confronted with the witnesses against him o Means: witnesses have to give testimony face-to-face with the defendant\ - Testimonial statements do offend the confrontation clause o 911 calls generally do not offend the confrontation clause. They are usually trying to get help. However, if they are calling for the purposes of criminal prosecution. o THINK ABOUT THE PURPOSE OF THE STATEMENT: ▪ If for future prosecution: need to confront the confrontation clause THE STATEMENT/DECLARANT TESTIFIES AT TRIAL THEN CONFRONTATION CLAUSE IS SATISFIED. Or if they were cross-examined then confrontation clause is satisfied ▪ If not for future prosecution: don’t need to confront the confrontation clause AUTHENTICATION FRE 901 – Authentication or Identifying Evidence - (a) General: To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce sufficient evidence to support a finding that the item is what the proponent claims it is - (B) Examples  BEST EVIDENCE RULE - Essentially you must show the document if available instead of someone describing the document. And in turn limiting testimony - Can not testify to the contents of documents, videos, recordings, etc. - Coincidentally Recorded Material o Witness can testify. But can not describe the video, or contract, or the evidence in question. BURDEN OF PROOF - Pleadings o Must have enough legal basis to get the case to trial. Bearing the burden of having enough legal basis to make a plea o Filing the right papers and plead the right things… burden of pleadings - Production o You must produce enough evidence to support a finding - Persuasion o Person has to persuade a jury by the burden of persuasion PRESUMPTIONS - Presumptions shifts the burden of production on some particular issue - Mailed Letter Presumption o Hard to prove directly that they received something. However, if there is evidence that it was mailed then it is presumed to have been received. Unless there is additional evidence that it was not received then it is presumed to have been received. NOW The burden of production is shifted to the opposing side to provide evidence otherwise ▪ Showing it was mailed correctly with stamps, addressed, and mailed it then it is more than likely that they received it (circumstantial evidence) however overwhelmingly it shows that it was mailed. - Bursting Bubble o When the opposing side provides evidence that something was not received, or contrary to the initial presumption then the presumption goes away and it is no longer presumed. This “bursts the bubble” of the presumption  CASES Zenni Case - Implied Insertions Crawford - Right to Confrontation for Testimonial Statements Ohio v. Clark - Primary Purpose Test Lyons Partnership/ Barney Case - State of Mind - Effect on Listener or Viewer Brutton, etc. F Fisher, Beech Aircraft, Bullcoming, Lady Posion Case, Hillmon