Elward Evidence Outline
Elward Evidence Outline
Elward Evidence Outline
Megan OKeefe
A. THREE OVERARCHING CONCEPTS
1.
2.
3.
4.
5.
6.
FRAMEWORK OF ANALYSIS
Is the evidence relevant? PDC? yes, what type of evidence?
a. character evidence accused, victim, other witness?
* competency and impeachment of witness
b. Sex hx or offense victim vs. accused 412 & 413
c. Habit person or institution
d. Subsequent Remedial Measure
e. offer to pay med expenses
f. Settlement offer, plea bargain, liability insurance
Is the relevant evidence prejudicial? 403 DAB balancing test
Is the relevant evidence hearsay?
a. No just not hearsay
b. By definition, NOT hearsay 801
c. Yes, it is hearsay but meets a hearsay exception
d. Yes, but it is reliable preliminary fact for other evidence 104(b)
e. Any constitutional limits of letting it in?
Is it Privileged? Atty-Client, Psycho-therapist, Spousal
Proper Foundation? Best Evidence?
Has party satisfied their burden do they get the benefit of a
presumption or judicial notice?
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Jury may misuse this evidence risk that jury may not understand or comply w/ instructions
e. Ex: 30 people have slipped and fallen in the same spot at a funeral home. falls and seeks to offer in
evidence of the complaints of these 30 people. objects as hearsay. Ct admits evidence for the limited nonhearsay purpose to show that business should have been on notice (effect on the listener) and did not do
anything about it. The actual complaints of the 30 people do not come in to show the truth of the matter.
5. The Rule of Completeness 106
a. If a party extracts a part of a written or recorded statement, that would be misleading and unfair
b. Therefore, opposing party is entitled at the time the doc is offered, that remainder is read to the trier or fact.
B. RELEVANCE RULE 401
1. Definition of Relevant Evidence
a. Evidence having any tendency to make the existence of any fact that is a matter of consequence more or less
probable that it would be without that evidence
b. Rule of admissibility!! very slight standard (402)
Just a part of the case that does not need to decide the whole case just a brick in the wall. (PINK
FLOYD DOCTRINE)
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5.
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Machines issue of authentication, not hearsay. Ex: if cop catches you speeding w/ a radar gun, that
speed limit offered into evidence is NOT hearsay
Animals evidence from bloodhounds and drug dogs is NOT hearsay.
aa Offered for impeachment purpose only
Prior inconsistent statement that is NOT sworn Bystander in a car collision switched is story to
prove he is not a credible witness
aa Offered for the LIE of the matter asserted
Wife says, my husband was in Denver she was lying b/c he was not in Denver
Man who is importing marijuana - offer in that he said to his friends that he was storing a plane not
true
aa Verbal Act
words with an independent legal significance The statement itself is an operative fact that gives rise to
legal consequences.
Examples: Words of a contract I will buy your car for $100, defamation, solicitation at a massage
parlor, offer to marry I will marry you
aa Verbal Part of an Act
Words that accompany an otherwise ambiguous physical act these words give this act some definition
Examples:
Handing cars keys to someone and saying will you park my car
Saying that you are own a piece of land adverse possession if you have been there for 20 years
aa Statement offered for the effect on the Listener or Reader did they act reasonably??
Statement not offered for the truth of the matter asserted, but offered to prove the effect the statement had
or should have had on the listener/reader
Ex: to show that the party assumed some risk, was put on notice, had a certain emotion/reaction, behaved
reasonably or unreasonably, acted under duress, coercion or harassment, to show lack of companionship
aa Verbal Object (label)
Words as labels or markers (logos) being used to ID a person/agent/thing
Ex: license plate is not hearsay or the back of the car that says buick
Eagles Restaurant Bar & Grill on matchbook offered to show that went to that restaurant
aa Verbal Marker
Testimony of 2 or more people talking outside of court - used to mark a time, event or identify a person
Ex: 1st witness says I saw this man with Nichols. 2nd witness identifies that the person the bar maid
pointed to was the defendant.
aa Circumstantial evidence offered for persons state of mind (evidence of memory/belief)
Ex: Anna Sofers will as proof (saying that her husband was no good) that her husband could not prove
damages for a loss of companionship action
Offered for persons state of mind - NOT for the truth of the matter asserted
Circumstantially indicates state of mind regardless of their truth (not because of their truth)
aa Circumstantial Evidence of Special Knowledge by a person
Circumstantial evidence offered in to show the declarants special knowledge not for truth of the matter
Declarants knowledge of unique facts (w/ no other readily apparent source) to show that that
declarant was at a certain event/place.
Ex: Paper Mache Man girl had personal knowledge of a unique figure in a particular room offered to
show that she was in this room before.
la Non-Assertive Mix Statements & Conduct: person did not intend the assertion
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Police go to a certain house to search for gambling the phone rings and a person says, Taylor, I bet
$500 on Georgetown inference that a person would not call and say this unless he had a gambling
ring
CASE: US v. Singer landlord sent letter to s address starting the eviction process. When landlord
wrote the letter, the intention was to end the tenancy, not to say that lived at that address.
Nonassertive conduct not hearsay admissible: 2 stop process
Prove the actors belief in a fact, hence the fact itself is not hearsay
Assertion = picking someone out of a line-up to prove that he is guilty that conduct is an assertion and
is hearsay not admissible.
ma Implied assertions not intended to say anything not hearsay
First determine what the evidence is being offered for and then look to the intent of the declarant.
If the declarant did not intend to express the belief for which the evidence is offered for not
hearsay
If declarant had the intention hearsay risk, particularly in a criminal case see below
CASE: US v. Pacelli (borderline case) (Pre-804(b)(6) Rule) - family gather and talk about getting rid
of one the witnesses to prevent him for testifying against . Was gathering of family intended to show
that Pacelli was guilty?
Ct held that this gathering of family and talking about getting rid of witness was an assertion and
therefore, hearsay and inadmissible.
Argue both ways on this!! When it doubt the 6th Amend trumps the fed rules.
New Rule after this case if you make a formerly available declarant unavailable whatever that
declarant said will auto admitted against you.
4. What is BY DEFINITION NOT hearsay 801 (2 categories of this)
aa WHEN DECLARANT IS ON THE STAND AND TESTIFIES- 801(d)(1) 3 exceptions
Prior INCONSISTENT Statement made under OATH in a prior proceeding 801(d)(1)(A)
Witness is on the stand now and cross-examinable concerning prior statement
Prior statement is inconsistent with his present testimony
o Direct contradiction, omission or addition of a detail, or failure to recall what you should
remember
Under oath in a prior proceeding or deposition
o Formal setting, with the penalty of perjury under oath needs to be reliable!!
o CASE: State v. Smith prior proceeding does NOT mean a jail house confession
o Ex: Grand jury testimony, pre-trial testimony, previous trial, hearing, motion
Prior CONSISTENT Statement 801(d)(1)(B)
Witness is on the stand now and cross-examinable concerning prior statement
Statement is consistent with present testimony prior statement does NOT have to be sworn and
does NOT have to be recent to the trial
Offered to rebut an allegation of improper motive or undue influence (when other side is trying to
impeach your declarant witness, you show a prior consistent statement to rehabilitate your witness)
o Limitation prior consistent statement needs to be BEFORE the time of the undue influence
Analysis
o Fix the time in which the improper motive or undue influence occurred
o Did the prior consistent statement occur BEFORE this time of improper motive?
o If prior consistent statement made before the undue influence that it is admissible
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CASE: Tome v. United States declarant says sexually assaulted her BEFORE her mothers
influence not hearsay and is admissible.
Prior statement of IDENTIFICATION made upon perceiving 801(d)(1)(C)
Prior statement does NOT have to be sworn or made close in time to the trial
o CASE: US v. Owens prior statement is admissible even if declarant on the stand cannot
remember making the ID before or the underlying events of his statement.
Statement has to be made AFTER perceiving the person identified
o Perceiving = seeing or hearing or police artist sketch
o CASE: State v. Motta police artist sketch is admissible b/c it is a representation of what the
declarant told the police to draw prior statement of identification
Policy: In court ID is inherently suspect, therefore, pre-trial, out of court identification may be far
more reliable comes in as substantive evidence
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5. Hearsay EXCEPTIONS Rules 803 & 804 All fit into the defn of hearsay but are exceptions to the rule
aa DOESNT MATTER IF DECLARANT IS AVAILABLE TO TESTIFY OR NOT 803 23 of them
Present Sense Impression - 803(1)
Play by play
If declarant is making the statement as the event transpires, cts will let it in b/c very reliable, declarant
doesnt have chance to make it up
Time element is impt, virtually simultaneous
CASE: Nuttal v. Reading Co offer in husbands side of phone call I guess Ill have to go
Excited utterance - 803(2)
oh my God! statement made while declarant still is under impression of startling event no
time to reflect
time element is a bit more relaxed than under present sense impression
If you renew the startling event (see a picture of assaulter), what you say after that is admissible
The statement itself can be sufficient to proof of the startling event (dont need independence
corroborating evidence) based on circumstances of the event
CASE: US v. Iron Shell questioning of 9yr old victim an hour after she was attacked
Then existing state of mind to prove future conduct 803(3)
BIG need to get this evidence if declarant is unavailable!!
Then existing physical condition owie exception how you feel when poked
Then existing mental/emotional condition
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o
In a murder case, victim (declarants) statement on its own cannot prove what someone beside the
declarant did. (cannot show what the assaulter did to the victim)
o In a coercion case, victim (declarants) statement is admissible to show what did.
Hillmon doctrine declarants statements (Walters letters) of his intention to do something w/
another person (go to Kansas) the trier of fact should infer from his state of mind the probability of
the particular act, not only by the declarant, but also about the other person
GENERAL RULE TODAY: Dont look back, but where there is a will, there is a way!!
o Shepard v. US statements of intent by a declarant is admissible only to prove HIS future
conduct, NOT the future conduct of another person (unless you have other independent
corroborating evidence to prove the conduct of the other person)
o Exceptions:
Wills - Can look back at someones will to show their intention at the time they wrote it
US v. Annunziato there is a limited rear view mirror to look back when you have a
declarants statement that predominately describes future acts and MAY also refer to
something in the immediate past to put the declarants actions in context.
Corp president said to son Annunziato called and requested some $ on the project
1. comes in to prove his future conduct of sending $$ to Annunziato even though it talks
about the past (that Annunziato had called him)
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business = any calling (construed liberally). It need not generate a profit (church, charity)
regularly = regularly conducted activity that is regular to that particular business (Rule 406
allows you to include business habits
o personal knowledge of the source
creator of record is someone w/ knowledge of events described and the declarant works for
the business organization
CASE: Petrocelli v. Gallison Ct does not admit Drs postoperative report b/c dont know
source of this report and whether Dr. has personal knowledge when writing it.
CASE: Norcon v. Kotowski liberal interpretation of employee a security subcontractors
record was admitted as a business record (regarding sex harrasment of a corp)
o contemporaneity
record made at or about the time of the events occurred
o Foundation testimony
Must be testimony by the custodian of the records or other qualified witness and they must
testify the manner in which the records are prepared and kept
Exception: if author of business record can anticipate that she may be hailed into court as a , than
the reliability of the record is not good inherently suspect
Policy business have motivation to keep accurate business records and rule of convenience
Absence of Regularly Kept Business Record to prove nonoccurrence of an event 803(7)
Lack of regularly kept business record (referred to in 803(6)) to prove the nonexistence or
nonoccurrence of a matter. Unless the source of info or other circ indicate lack of trustworthiness.
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o
o
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Statement was made upon belief that death was imminent
Regarding the cause or circumstances of death
Declarant must have PERSONAL knowledge
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Then, anything the declarant said automatically becomes admissible against the when the was the
one who made the declarant unavailable
Easy way to remember these 5 exceptions:
Take out the Fire by calling the San Fran Fire Dept
Prior opp to
cross-exam if
declarant is
unavailable
now?
Yes
Yes
Admit
No
Not allowed
(Crawford)
No
Firmly rooted
exception?
Yes
Admit
No
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aa Definition of character evidence persons disposition or propensity to engage or not engage in a certain
type of conduct
aa Character evidence relevant BUT is not admissible for the purpose of propensity (proving action in
conformity therewith on a particular occasion)
Character evidence, when offered to prove specific behavior is NEVER admissible in CIVIL cases except
under 415 when claimant is seeking damages for sexual assault or child molestation.
aa The exceptions to this rule are 404(a)(1-3) and 404(b) below!!
Can let in propensity evidence (you did it before, you will do it once more)
Accused offers in evidence of himself
Accused offers evidence of victim (reputation/opinion only) but govt can rebut this against
4. Character of Accused (Criminal setting) 404(a)(1)
aa Mercy Rule: accused offers character evidence about herself (peacefulness, law abiding, truthful) (pertinent
trait) through opinion, reputation or examples in which case the prosecution can rebut it by impeaching s
credibility (609(a)(1)) using specific prior acts!!
Usually when exerting a defense defense of entrapment.
says I did the crime b/c my will was overwhelmed by the cop, but I lack predisposition
when puts his propensity/pre-disposition directly at issue, the prosecution may rebut with evidence of
bad character
HYPO: on trial for dishonesty charge. brings in a character witness to testify that he is an honest
person. The govt can rebut that testimony by asking the character witness, did you know that the
used to write bad checks 27 years ago? whatever that character witness answers, the govt has to
accept cant prove it up.
Cost of the Mercy Rule: If accused offers propensity evidence of bad character of a victim, that trait is
auto admissible against the without the doing anything else rule favors the prosecution
aa reputation or opinion witness called on behalf of accused
aa limitation only pertinent character traits evidence is admissible
if charged w/ crime of violence known for being non-violent
if charged w/ crime of dishonesty known for honesty
in any criminal case known as being law-abiding
aa Policy = propensity evidence is improper as a basis for conviction. The inferences are too strong and the jury
may misuse the information.
5. Character of Alleged Victim (Criminal setting) 404(a)(2)
aa Pertinent character trait can be proven by reputation/opinion ONLY
Must be a criminal trial
is entitled to prove a pertinent character trait of victim through character witness that are familiar w/
victims reputation or have an opinion
aa Accused can offer in propensity evidence (reputation/opinion only) of alleged victim as part of his selfdefense defense
Accused offers in evidence that alleged victim is violent to show that the alleged victim was the first
aggressor
BUT whatever trait accused offers against victim, automatically can be used against accused (victim is
rubber and is glue)
aa Use of specific instances of misconduct of victim for s self defense case:
Can NOT be used
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But if the knew of specific instances of aggression, they can be admissible as they tend to show the s
state of mind why he acted the way he did - non hearsay use of effect on the listener
need not know about the specific instances of aggression for this to be admissible.
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Knowledge knows what marijuana is
Opportunity
Preparation
Plan
Scheme
aa Standard of Proof of prior acts
US v. Huddleston evidence sufficient that a reasonable jury could find this person committed this act
(less than preponderance of the evidence). Lots of states have a higher standard though
8. Rape Shield Victims Sexual History - Rule of Exclusion 412
aa Prior sex history of alleged victim in a sex assault case (criminal or civil) is NOT admissible as matter of
public policy (regardless if relevant or not)
aa Exceptions sex history of alleged victim CAN be offered in if:
In Criminal case:
To show consent in the sexual activity in camera hearing
To show the source of semen or injury was someone other than the accused in camera hearing
Exclusion would violate the constitutional rights of the - in camera hearing
In a civil case do 403 balancing test
aa What constitutes sexual history?
Prior false accusations of sexual abuse (victim lied) is NOT considered sexual history and can be
admissible
9. Prior Sex Offenses by Accused in Sexual Assault Cases Rule of Admissibility 413
aa In a criminal case, if is accused of an sexual assault offense evidence of s commission of prior sexual
assault offense is admissible
aa RAIN COAT RULE anything you have done in the past can be shown for propensity
10. Habit Routine Practice Rule of Admissibility 406
aa Proof of habit of a person is freely admitted whether it is corroborated or not and regardless of presence of an
eyewitness. The same liberality extends to proof of the routine of an organization.
aa Habit = automatic, systematic, do it w/o thinking about it, routine/ritual
Ex: safe driving is NOT a habit need to show specific habitual evidence to show his is safe
Wears his seatbelt
Drive 5mph under speed limit all the time
More than 2 and less than 20 times is good enough to be a habit
Habit of an org sends out mail at 5pm everyday
11. Subsequent Remedial Measures Rule of Exclusion 407
aa Dont let in the fact that fixed something after the injury occurred to prove that was negligent or that
product was improperly designed
Cant come in to show fault
May come in to show ownership, impeach, control, or contradict feasibility (FICO)
aa Remedial = fixed it voluntarily
aa Subsequent = fixed it after s complaint of injury
aa Measure = any step to make a product or place safe. Ex: firing an employee, creating an employee manual,
changing a design of a product
aa Public Policy = dont want to penalize for making something safer
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aa CASE: Tuer v. McDonald (narrowly construed) 407 favors - evidence not admissible on the issue of
feasibility EXCEPT:
When the s expert/witness speaks in absolutes (there was no safer or better way to do this) issue of
feasibility is raised and subsequent remedial measure is used to impeach a witness why did you fix it if
it was the safest?
12. Offers for settlement Rule of Exclusion 408
aa Evidence of settlement negotiations is NOT admissible to prove liability or invalidity of claim or amount
as long as you can show there was a genuine dispute as to the validity of claim or amount parties were
negotiating those negotiations and anything said in the negotiations are NOT admissible
aa Exception:
the fact that negotiation settlements have occurred can be let in to show to negate a claim of undue delay
can admit proof for the purpose of showing bias or prejudice of a witness
aa Policy = promote candor btw parties to settle claim
13. Offer to pay med expenses Rule of Exclusion 409
aa Good Samaritan rule the actual offer to pay med expenses is NOT admissible to prove liability for the injury
aa BUT any accompanying statements of admissions of fault IS admissible
14. Plea negotiations in a criminal setting Rule of Exclusion 410
aa Plea negotiations btw prosecution and are NOT admissible to prove guilt (includes plea negotiations with
police)
aa EXCEPT you have a meza note agreement with defendant if anything said was a lie during the plea
negotiations, it will come in as evidence at trial
15. Evidence of Liability Insurance Rule of Exclusion 411
aa Evidence that a person was or was not insured against liability is NOT admissible to prove whether the person
acted negligently or otherwise wrongfully
aa BUT can be offered for the purpose of showing ownership or control, or bias/prejudice of a witness (the fact
that witness works for the s insurance co.)
F. COMPETENCY OF WITNESSES (600 series)
1. General Rule 601 - Witness presumed to be competent except otherwise provided in the rules
aa CASE: US v. Lightly rules favor competence (big break from common law)
aa Competent if : has personal knowledge, understands the seriousness of an oath, and has the ability to
communicate
2. Lack of Personal Knowledge 602
aa Witness may not testify to matter unless evidence is introduced sufficient to support a finding that witness has
personal knowledge on the matter. (this can include witnesss own testimony). Subject to Rule 703 opinion
testimony
3. Ability to Take Oath and Understand it 603
aa CASE: US v. Fowler oath requirement is a 2 prong rule
Solemnity of the oath seriousness of it guarantees of reliability
Understand the consequences can be prosecuted for perjury
aa Can testify only after taking an oath can do it in your own culture
4. Different Types of Witnesses:
aa Child Witness to qualify a child witness
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aa
aa
aa
aa
Can child understand the difference btw right and wrong and a truth and a lie
Child has personal knowledge
Child can communicate
Can ask child leading questions in direct exam danger is that child has tendency to want to please adult
Previously Hypnotized Witness
CASE: Rock v. Arkansas AR cts has a per se rule prohibiting hypnotically refreshed testimony by
Lawyer as Witness
If you are representing a party in the case, generally not allowed to be a witness and testify in front of the
same jury. There are exceptions in the book pg 467 (ABA Model Rules)
Jurors as Witness 606
Pre-verdict testimony - Jury cannot give testimony before the jury panel on which he serves 606(a)
Post verdict testimony of juror
CASE: Tanner v. US cannot examine what is going on in jury room, jurors cant testify about it
Exception: jurors can testify on the question of whether extraneous prejudicial info or outside
influence was improperly brought to the jurys attention
Public policy want to free and open candor in the jury deliberation room
Judges as Witness 607
No judge presiding at the trial can testify in that trial as a witness
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aa Exception: if the testifying witness is the party or an expert witness
H. IMPEACHMENT OF WITNESS
1. Non-Specific Methods of Impeachment
aa Bias or Interest 608(a)
Bias is ALWAYS relevant, never collateral, can prove up w/ extrinsic evidence
Criminal CASE: US v. Abel if a witness b/c of association (Aryan Brotherhood) or friendship will lie,
the jury is entitled to hear about the relationship
Even w/o proof that witness adopted the tenets of that association there mere membership is
probative of bias
Civil Case show that an expert is paid ask him what % of his salary comes from testifying in this
case show interest in outcome of case.
aa Lack of Sensory or Mental Capacity
Must link witnesss capacity to their ability to perceive (hear or see), recall, or communicate
If witness is drunk or insane is it affecting their ability to perceive, recall, or communicate
Limitation cant harass or embarrass the witness
aa Character for Truth or Veracity 3 ways
Cross-exam on non-conviction misconduct 608(b)
Specific instances of misconduct relating to dishonesty of witness
If evidence comes in solely to discredit witness must take answer
If evidence comes in for any other purpose can prove it up
Cross-exam on conviction 609(a) (see above at Character of Witness)
If prior crime is (a) felony or (b) a misdemeanor involving dishonesty, it is admissible to
impeach.
Who is the witness
What type of conviction
Timing of conviction
Use other character witnesses
2. Specific Methods of Impeachment
aa Prior Inconsistent Statement (UNSWORN statements) - 613
It has to be inconsistent and it does NOT come in for the truth of the matter asserted (different from
801(d)(1)(A) NOT hearsay defn this is when you have a prior inconsistent SWORN statement)
Extrinsic evidence of a prior inconsistent statement is NOT admissible UNLESS the witness is afforded
an opportunity to explain, deny. But dont need to show witness the evidence before you impeach.
Can impeach by using a statement that is in violation of 5th amend
CASE: Harris v. NY generally, if police violated s 5th amend right by questioning after custody
but before he was given his Miranda rights (not coercive statement though) - s statements cannot be
used in prosecution s case in chief. EXCEPT if testifies inconsistently with this otherwise
inadmissible evidence, that his prior inconsistent statements can be used by prosecution to IMPEACH
ONLY.
CASE: Jenkins v. Anderson can use s pre-arrest silence is ok to impeach the witness
CASE: Weir v. Fletcher s post arrest, but pre-Miranda silence is admissible to impeach the
witness if had an opportunity to explain to the police as to why he was acting in self-defense (a
reasonable person would have said something at that time)
Can impeach by using a statement that is in violation of 4th amend
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CASE: United State v. Haven suppressed evidence found as a fruit of an unlawful search and
seizure may be used to impeach s false inconsistent trial testimony, given in response to crossexam. (cannot be used by prosecutor as substantive evidence in its case-in-chief)
aa Contradiction
When you have outside (extrinsic) evidence (not the witnesss prior statements) that contradicts the
witnesss statements on the stand
That outside (extrinsic) evidence must come in for another purpose than just contradiction in order to be
used for impeachment purposes
Other purposes other than just contradiction: bias, ability to perceive, recall, for merits of case
Rule of judicial economy dont want to let in extrinsic evidence just for one purpose of showing
contradiction
Must be an impt inconsistency must go to something material to the case
This is an area of advocacy produce arguments for either side.
3. Appellate Remedies for Criminal
aa Scenario 1: if trial ct allows the prosecution to impeach your client w/ a prior garden variety felony
conviction then you decide NOT to call your client testify
This issue is NOT appeallable if the does NOT testify
aa Scenario 2: lawyer decides to take the sting and allows the to testify, loses the motion in limine about s
prior conviction, atty brings in during direct exam that his client was a prior convict (fronting bad
evidence)
can NOT appeal evidence he introduced himself
aa Scenario 3: lose motion in limine to keep out prior conviction evidence, elects to testify (does NOT front
evidence of prior conviction). On cross, prosecution brings out s prior conviction
CAN appeal trial courts motion in limine if loses the case ONLY appellate remedy
4. Rehab Credibility of a Witness (repair)
aa Rebut impeaching attacks
Bring evidence out on direct if anticipating impeachment chance to present it in a better light
BUT cant repair your witness UNTIL the attack occurs
Exception: Mercy Rule only the witness can have witnesses tell the jury that he is a good person
BEFORE he takes the stand
aa Evidence of good character
Opinion or reputation testimony allowed to support that the character of the witness is truthful
CASE: US v. Medical Therapy Services can bring behavioral syndrome evidence to prove truthfulness
aa Prior Consistent statements
801(d)(1)(B) hearsay exception offered to refute claims of improper motive or undue influence if made
BEFORE the undue influence/motive arose.
Hearsay that does not come in for the truth of the matter asserted just comes in to show witnesss
ability to recall or proof that witness is telling the truth
aa Procedure for rehabilitating
Can only rehab if been impeached
If impeached w/ prior inconsistent statement rehab w/ prior consistent statement
5. Forbidden Method of Impeachment 610
aa Cannot impeach on the basis of belief or opinionson the matter of religion
I. OPINION AND EXPERT TESTIMONY (700 series)
1. Lay Opinion Testimony 701 (see of 54 of notes for hypo)
aa Lay witness can testify in the form of opinions or inferences that
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aa Old Test: Frye whether methodology of expert is generally accepted by others in scientific community
(very conservative test not good for novel ideas)
aa New Test: Daubert factors test that judge must consider
Whether theory/ method has been tested
Has it been subjected to peer review and published
Whether methodology has a high error rate
Known standards controlling its operation
Is it generally accepted by scientific community
Novel ideas can come in but limited
aa CASE: Kumho Tires Daubert test applies to any expert testimony not just scientific expert
J. BURDENS OF PROOF AND PRESUMPTIONS
1. Burdens:
aa Production - burden of going forward
State or has the burden of production SOME positive proof (direct or circumstantial) of each
essential element prima facie evidence
can make motion for directed verdict if state does not meet their burden of production no reasonable
jury viewing the evidence in the light most favorable to the non-moving party, could find for the state.
Policy cts dont act on their own need or state to bring them evidence
aa Proof/Persuasion 3 levels
Beyond a reasonable doubt (highest burden)
Criminal cases loss of life, liberty
In IL beyond a reasonable doubt NOT defined
Clear and Convincing evidence
Child custody cases, immigration/naturalization deportation, fraud, involuntary commitment
Preponderance of the evidence more likely than not
Civil cases where the issue is $$
2. Presumptions
aa If you demonstrate a basic fact state/ is entitled to a presumption which lessens their burden of
production (policy decision at law for something we attach a value to)
aa Common Law Presumptions
Presumption of innocence
Presumption that bd of directors have a legitimate business reason for their decisions
Mailbox Rule when you place something in the mailbox w/ appropriate postage, presume that it will be
delivered
Presumed that when you gave something to a bailee and it was returned damage the last bailee who
had the it is one who is liable for the damages (now in the UCC)
Presumption that if your spouse is missing for 7 years they are dead
When a person dies b/c of an accident presumption AGAINST suicide
Criminal case presumed to be sane
Child that is born to married person both are his parents
aa Statutory Presumptions: (legislatively created dont disappear even if counterproof offered)
If work in a coal mine and Dr. takes x-ray of lung and finds black lung disease presumed that the lung
disease was a result of working in the coal mines
Discriminatory presumption McDonnell Douglass Test
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aa What is the effect of counterproof?
Scenario 1: Common law presumption
Is the moving party entitled to the presumption?
Is there any counterproof?
Yes 2 theories
o Lenient approach favor - gets the permissive presumption anyways
o Hard-line approach presumption disappears, no instruction give to jury and now solely a
question of fact
Scenario 2: Statutory presumption
Look to language of statute to determine what happens if there is counterproof
CASE: Burdine
o Gender discrimination case
must demonstrate a prime facie case
has burden of showing legitimate business reason for not promoting her that was not
discriminatory
can show pretense of discrimination
o Use McDonnell Douglass burden shifting test to determine how to deal w/ counterproof
K. JUDICIAL NOTICE
1. shorthand way of proving something that you dont need to prove with evidence not subject to dispute. The
judge takes judicial notice and instructs the jury
2. for determining a preliminary matter, the rule of evidence do NOT apply 104(a) so can take judicial notice
of hearsay, such as the weather report for a given day
3. 2 types of judicial notice
aa Adjudicated Facts - Rule 201 applies
Adjudicated facts = fact-finder/jury usually decides in a case
201(b) = judicial notice of facts that are not subject to reasonable dispute
o generally known within the territorial jurisdiction of trial ct
o capable of accurate and ready determination by resort to sources whose accuracy cannot
reasonably be questioned
o Usually a readily ascertainable fact:
April 6th 2005 was a Wednesday
Weather on a given day
Location of a particular building
That patella is the knee cap judicial notice of Greys Anatomy
Discretionary - court may take judicial notice whether requested or not 201(c)
Mandatory - court SHALL take judicial notice if requested by a party and supplied w/ necessary info
201(d)
When can judge take judicial notice? 201(f)
General Rule: judge can take judicial notice at any stage of the proceeding: trial or appellate level
Exception: in a criminal case, judge cant judicial notice of an element of a case on appeal
prevents the jury from having the opportunity to disregard the judicial notice. Also, cant relieve
prosecution of its burden
Instructing jury 201(g)
Civil action instruct the jury to accept as conclusive any fact judicially noticed
Criminal action instruct the jury that it MAY, but it is not required to, accept as conclusive fact
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CASE: Govt of the Virgin Islands v. Gereau judicial notice can NOT be based on judges personal
knowledge must be a fact readily known in the community that is a matter not in dispute
aa Legislative facts no FRE
Legislative facts findings which assist the court in determining the law can look outside the legal
realm to find assistance
Facts does NOT have to be UNdisputed for judge to judicial notice of it
Examples:
Muller v. Oregon judge took judicial notice of the Brandeis brief arguing that women cant work
certain hours because of the physical make-up judge took judicial notice of a legal argument based
on social sciences
Brown v. Board of Ed Sup Ct considered the affects of segregation on education on Af.Am
Houser v. State ct looked to facts of whether underage drinking is dangerous for road safety
L. FOUNDATIONAL EVIDENCE & AUTHENTICATION Rule 901
1. Generally 901(a)
aa Requirement of authentication or identification is a condition precedent to admissibility
Authentication is a subset of relevance exhibit must be relevant
Cant use exhibit unless it fairly and accurately represent how it was when it was found
aa This is satisfied by offering evidence sufficient to support a finding that the matter in question is what its
proponents claim
2. Methods of authentication/identification 901(b) and see notes pgs 70-73 for hypo
aa Testimony of witness w/ personal knowledge
witness identifies exhibit and relates to it
it is in the substantially same condition has not been altered or tampered with
chain of custody continuous care, custody and control
aa nonexpert opinion on handwriting (signature) based upon familiarity of this handwriting before
aa comparison by trier of fact or an expert with specimens that have been authenticated
aa distinctive characteristics in conjunction w/ circumstances
aa voice identification (in person or tape recorded) based upon hearing the voice before in circumstances
connecting the voice with the allege speaker
aa telephone conversations
evidence that a call was made to the number assigned to a particular person/business AND
if person circumstances, including self-identification, show the person answering to be the one
called OR
if business the calls was made to a place of business and the conversation related to business
reasonably transacted over the telephone
aa public records or reports
evidence that a writing authorized by law to be recorded or filed in a public office, public record, report,
statement it is from the public office where items of this nature are kept
aa ancient documents - evidence in any form
is in such condition as to create NO suspicion concerning authenticity
was in a place where, if authentic, would likely be AND
has been in existence 20 years or more at the time it is offered
aa Process or System
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3.
4.
5.
6.
7.
8.
Evidence describing a process system used (DNA matching system) showing that the process produces an
accurate system
aa Methods provided by other statute or rule
aa Authentication can be accomplished by stipulation of parties
Tangible Objects as Exhibits
aa 2 types of tangible exhibits
fungible lots of it that dont make it unique (cocaine, widgets)
unique need to mark the fungible object to make it unique
aa US v. Johnson even when witness gives testimony that he was pretty sure this was the ax that was used,
enough authentication to let the jury weigh reasonable fact-finder could find it authentic
aa US v. Howard Anis dont need every single person in the chain of custody to testify as a witness if it is
fairly reasonable that the evidence was not tampered with.
Writings as Exhibits
aa Follow RAH
Relevance
Authenticity
Hearsay exception
aa Can authenticate who wrote the writing w/ circumstantial evidence who signed it and where it was found
(US v. Bagaric)
aa Authenticating signatures
Compel opposing partys signature and have an expert analyze it (50% error rate)
Have a lay witness who if familiar w/ the signature testify about it
Show it to the trier of fact and let them compare the signatures
Bring in an eyewitness who saw sign the document
Admission by party opponent
aa Business record exhibits
Mark the exhibit
Show opposing counsel the exhibit
Approach the judge
Examine the witness: is it relevant, is it in same/similar condition/is it kept in ordinary course of business
Photographs as exhibits
aa Fair and accurate depiction of what is being shown
Has it been altered? Does it accurately show the condition on the date in question?
aa Generally, it does NOT matter who took the picture unless you have evidence that it was altered
aa Any witness can identify a phone if they have personal knowledge of what it displays
Emails as exhibits
aa Who is the email from? Look at header
aa Establish whose it account it is
aa Show method of how email generated machine accurately calibrated and it was not altered by the time it
was sent call the internet provide who services the email acct as a witness
Computer Generated Record as Exhibit (print out)
aa Call witness from IT dept can testify as to how computer maintained and whether computer was working
fine when record was generated
Tape Recordings as Exhibit
aa Show instruments were working correctly
aa Make sure recording itself is accurate cant have MATERIAL omissions
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aa Would it be unfair or misleading to play this tap to the jury
aa Call witness who can testify to who was speaking like one of the speakers themselves
9. Telephone Conversations as Exhibit
aa See above under 901(b)
aa Reply Doctrine if someone replies to a communication you made (called and left a voicemail at a certain
#), that makes the original phone call authentic
10. Self-Authentication Exhibits Rule 902
aa Exhibits that do NOT require extrinsic evidence of authenticity as a condition precedent to admissibility
aa BUT self-authentication does NOT bar counterproof by opponents
aa Examples of Self-Authentication
Domestic public documents under seal
Official marking certification by public agent
Ex: birth certificate, recorded deed, death record, felony conviction from clerks office, certified copy
of transcript from court reporter
Official publications issued by public author
Newspapers and periodicals
Trade inscriptions indicates ownership tags, labels
M. BEST EVIDENCE RULE REQUIREMENT OF AN ORIGINAL
1. When Best Evidence Doctrine applies
aa Writing/picture/ recording is legally operative or dispositive controls terms btw parties
aa A lay witness on the stand who has no personal knowledge only basis for his knowledge is a doc need to
produce that doc
aa DOES NOT APPLY when:
the fact can be proven independent of the writing (dont need weather report)
writing is collateral
summaries of voluminous records are ok
do not need records of public docs
carbon copies are considered originals
duplicates are admissible in fed court unless authenticity is challenged or unfair
2. Requirement of an original exhibit 1002
aa writing/ recording/ photograph / x-ray and there is genuine dispute as to authenticity
aa are the contents material to this case
central issue in this case get original
ex: to prove defamation need original defamatory letter
if sued for violation of lease original of lease
suit about whether stole my music (intellectual property) need to be original recording of music
if not central can prove w/o original
Duplicates admissible unless there is a genuine issue as to content
aa Produce the original or explain its absence
How do you prove the letter put the original in to evidence
Original from a computer just print it out
Original = what the parties are fighting over (document at dispute) depends on purpose of party
offering the doc/circumstance. The original could be a photocopy of the adoption records
If excuse of its absence is accepted than can prove with secondary evidence
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Oral testimony or photocopy are all secondary proof want to use the most persuasive evidence
3. Admissibility of Duplicate 1003
aa Generally, you can admit a duplicate
aa Exception: when you need the original doc
There is a genuine dispute as to the content of the original letter/photo/recording
It would be unfair to admit the duplicate in lieu of the original
4. When original is NOT required and other evidence of contents of the writing/recording etc is admissible:
aa Original is lost/destroyed
CAN NOT be a BAD FAITH destruction!!
If document was shredded, need to show the document destruction protocol at your business
aa Original not obtainable through judicial process (service of subpeona etc)
aa Original in possession of opponent
aa Writing/recording/photo is collateral not central issue
US v. Duffy writing on the t-shirt was not material to case prove it by admission of police officers
testimony of what he saw on the t-shirt. Writing on t-shirt = inscribed chattel
5. Factors to consider when providing secondary proof
aa Relative importance of communicative content
aa Simplicity or complexity of the content
aa Strength of the proffered evidence
aa Breadth of the margin of error
aa Present/absence of a dispute as to content
aa Ease/difficulty of producing the object itself
aa Reasons why the proponent of other evidence of content does not have or offer the object itself
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Hearsay - Quick Reference: WHAT IS IT COMING IN FOR?!?! (TOMA or something else?!?!)
Hearsay defn. - 801 out of court statement (verbal, written, conduct) offered for the truth of the matter asserted
NOT Hearsay b/c of non-hearsay purpose, inherently trustworthy, etc.
1. Absence of a complaint to prove the non-occurrence of an event
2. Declarant = person, not machine/animals
3. Offered for impeachment purpose only
4. Offered for the LIE of the matter asserted (LOMA)
5. Effect on the Listener or Reader why did they act?? Put on notice??? act reasonably??
6. Verbal Act or Verbal Part of an Act (ambiguous statement and act give it context)
7. Verbal Object (label, marquee [sometimes], license plate) used mainly for identification purposes
8. Verbal Marker in-court testimony of 2 or more declarants (or 1 declarant an a exhibit) marking a time,
place, event, identify a person
9. Circumstantial evidence offered for Declarants State of Mind (evidence of memory/belief) Sofers will
10. Circumstantial Evidence of declarants Special Knowledge to prove she was somewhere paper mache man
11. Non-Assertive Mix Statements &Conduct: declarant did not intend the assertion gambling ring call
12. Implied assertions (assertive conduct) action or actions with assertion nurses wearing biohazard suits
NOT Hearsay (801) When declarant is AVAILABLE ONLY
1. Prior INCONSISTENT Statement made under OATH in a prior proceeding 801(d)(1)(A)
2. Prior CONSISTENT Statement offered to rebut improper motive/undue influence 801 (d)(1)(B)
3. Prior statement of IDENTIFICATION made upon perceiving 801(d)(1)(C)
NOT Hearsay (801) Admissions by party opponent (this does NOT mean just CONFESSIONS!!)
1. Personal 801(d)(2)(A)
2. Adoptive 801(d)(2)(B)
3. Authorized spokesperson 801(d)(2)(C)
4. Employee or agent 801(d)(2)(D)
5. Co-conspirator 801(d)(2)(E)
Hearsay EXCEPTION - Doesnt matter if declarant available or not non-exclusive list!!
1. Present Sense Impression play by play calmly and quietly 803(1)
2. Excited utterance Startling Event Oh my God!!! 803(2)
3. Then existing state of mind to prove future conduct, but where there is a WILL there is a way 803(3)
4. Statement for Purposes of Medical Diagnosis or Treatment by patient to dr for medical purposes 803(4)
5. Past Recollection Recorded 803(5)
6. Business Record kept in ordinary course of business 803(6)
7. Absence of Regularly Kept Business Record to prove nonoccurrence of an event 803(7)
8. Public Records and Reports 803(8) [absence of public record/entry 803(10)]
9. Learned Treatises 803(18)
10. Reputation as to Character statements 803(21)
11. Certified cpys previous felony convictions not against criminal unless for impeachment purpose 803(22)
Hearsay EXCEPTION Declarant UNAVAILABLE (PRISM) - 804
1. Former Testimony 804(b)(1)
2. Dying declaration about cause of imminent death 804(b)(2)
3. Statement Against Financial/Criminal Interests (not firmly rooted) 804(b)(3)
4. Family History 803(b)(4)
5. Forfeiture by wrongdoing made the declarant unavailable 803(b)(6)
Constitutional Limits 6th Amend (criminal cases)
1. Is it testimonial? Yes prior opp to cross-exam unavailable declarant? Yes admit
2. NOT testimonial firmly rooted ? yes admit
3. NOT firmly rooted ct can only consider circumstances surrounding the making of the statement itself
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Evidence: Let it In or Keep it Out?
LET IT IN (ADMISSIBLE)
Relevant under 401 and passes 403
- tendency to make the existence of a fact that is a matter
of consequence more or less probable
- PDC pleadings, defense, credibility (bias) is ALWAYS
relevant
Not hearsay or meets hearsay exception
- Statement used for other purposes not hearsay
- not hearsay under defn = (prior inconsistent statement,
consistent statement, identification) or (admissions by a
party opponent)
- meets a hearsay exception under 803 (unrestricted) and
804 (declarant unavailable)
Reputation and opinion evidence to show propensity in
criminal cases
Specific instances of conduct allowed:
- MIAMI KOPPS purpose
- put character directly at issue
- character trait is essential element of the charge
- habit or routine practice
- used to impeach any witness under 608(b)
Impeachment by prior conviction - 609
- garden variety felony for any witness (not accused)
allowed in subject to 403 (but favors admissibility)
- Evidence of prior conviction for crime of dishonesty
does not need to be felony. No balancing TEST!! For
accused and for any other witness
- Accused Prior Sex offenses and hx allowed - 413
- Victims sex offenses allowed (in camera) to show
consent, source of semen, if violates Const rights, or if
victim has made prior false accusations of sex abuse.
Habits and Routine practice - 406
When s expert speaks in absolutes (no safer way) -> issue
of feasibility is raised and subsequent remedial measure can
be used to impeach a witness why did you fix it if it was
the safest?
Can admit for proof to show bias or prejudice of witness or
that fact that negotiations occurred to negate a claim of
undue delay
Accompanying statements of admissions are admissible
Except when have an agreement w/ that if they lied
during plea negotiations will come in as evidence
Can be used for purpose of showing ownership or control,
bias prejudice of witness
Methods of impeachment allowed:
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LET IT IN (ADMISSIBLE)
- bias or interest or association prove it up
- lack of sensory/mental capacity
- character for truth
- prior inconsistent unsworn statement can even impeach
with statements that would be otherwise be inadmissible
(5th amend or 4th amend bar on these statements), pre-arrest
silence
- extrinsic evidence that contradicts the witnesss
statements must come in for some other purpose other
than just to contradict
Methods of Rehab allowed:
- repair only after attack occurred (but can tell the jury he
is a good person BEFORE he is attacked- Mercy Rule)
- opinion and reputation testimony of good character as
truthful
- prior consistent statements that are hearsay (doesnt fit
into the 801(d)(1)(B) exception) just come in to prove that
witness is telling the truth (not for truth of assertion)
Lay opinion testimony allowed - 701
- personal knowledge w/ experience of observing it before
- helpful to trier of fact
Expert Testimony allowed when 702-706 (GRREAT!!)
- reliable passes Daubert test tested, peer review,
published, error rate, known standards, generally accepted
- relevant
-evidence that will assist the trier of fact
- basis of testimony can be on what they learned before
trial, during trial (hypos), and outside data
- can go to ultimate issues in the case generally
Presumption allowed:
- common law presumption w/ no counterproof
- statutory presumption unless otherwise specified in statute
Judicial Notice allowed:
- adjudicated facts when it is a readily ascertainable fact
and not subject to reasonable dispute (201). Conclusive in
civil but jury gets to decide in criminal
- legislative fact and matter not be undisputed
Privileges NOT allowed: let evidence in (privileges
construed narrowly)
- atty-client physical evidence unless last link, crimefraud btw atty-client, not primarily legal advice,
communication made in front of known 3rd party
- psychotherapist Tarasoff (imminent threat but only that
info), patient puts mental state at issue
- spousal for action/communication AFTER marriage,
common criminal enterprise, child victim/spouse , sham
marriage, either spouse victim, divorce proceeding
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