Evidence Outline

FRE 401

Evidence is relevant if:

It has any tendency to make a fact more or less probable than it would be without the evidence; and

The fact is of consequence in determining the action

effect of testimonial statement v ongoing emergency

testimonial is admissible, ongoing emergnecy isnt

701 discussion

lay = non expert
keep it in the zone of perception and not opinion

why do we want lay opinions

get their raw perception

problem with lay opinion testimony

sometimes they state whats at issue as their perception

ttest for lay opinion testimony

break down what witness saw so they dont state whats at issue incase
give references

702 discussion

You can go beyond what a lay witness can go if you have specializzed knowledge and it would help and be consistent with daubert

702 application on exam

• Would the testimony help the jury

• If yes, judge will le the witness testify

• Can given an opinion

testimonial latitude 

• The ability and extent of a witness to testify on the stand

• Can go where lay cannot 

• Can give opinion

• Can say when someone died

703 discussion

• Reverse 403

• Uphill battle for the proponent

• They can give the conclusion but cant necessarily disclose the underlying inadmissible stuff

• High threshold

question for judge under 703

do experts in your field reasonably rely on data

704 discussion

• If expert is qualified, we can get the ultimate issue

• Can go there except hinkley amendment

  • Congress made exception for mental state

  • Cant say i think he suffered this mental illness causing him to do this

    • Instead, say in my expert opinion a person with this specific illness would be likely to do this

705 rationale

you decide how you want expert to give opnion

FRE 606(1):

During an inquiry into the validity of a verdict or indictment:

(1) prohibited testimony or other evidence:

A juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters

FRE 606(2)

During an inquiry into the validity of a verdict or indictment:

(2) exceptions:

A juror may testify about whether:

Extraneous prejudicial information was improperly brought to the jury's attention

An outside influence was improperly brought to bear on any juror; or

A mistake was made in entering the verdict on the verdict form

FRE 402

establishes the basic principle that evidence is not admissible if not relevant, but typically admissible if relevant

Relevant evidence is admissible unless any of the following provides otherwise:

Constitution

Federal statutes

The evidence rules

Other rules prescribed by the supreme court

Irrelevant evidence is not admissible

FRE 403

The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

FRE 104: relevance that depends on a fact

In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evience on the condition that the proof be introduced later.

FRE 407:

When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove:

Negligence

Culpable conduct

A defect in a product or design or

A need for a warning or instruction

FRE 408: prohibited used

Prohibited uses. Evidence of the following is not admissible to prove or disprove the validity of a disputed claim or to impeach by a prior inconsistent statement or a contradiction:

Furnishing, promising, or offering-or accepting, promising to accept, or offering to accept-a valuable consideration in order to compromise the claim; and

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

FRE 408 exceptions

Exceptions. The court may admit this evidence for another purpose, such as proving a witnesses' bias or prejudice, negating a contention of undue delay, proving an effort to obstruct a criminal investigation or prosecution

408 discussion

Want people to talk about settling freely so nothing comes back against them

Has to be a disputed claim

Could prove too much and juries could hear

Offers to settle don't always show culpability but juries may not view it that way

FRE 404a: crimes or other acts

Prohibited uses. Evidence of a crime 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 that character

"Other act": nothing criminal about it, very broad term

FRE 404b

Permitted uses; notice. This evidence may be admissible for another purpose such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident

FRE 413

In a criminal case in which a defendant is accused of sexual assault, 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

same as 413 but child molestation

FRE 415

Civil case alleged either child molestation or sexual assault

FRE 404a2A

Exceptions in a criminal case. 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

FRE 404a2B

Subject to limitations in Rule 412, a defendant may offer evidence of an alleged crime 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; and

FRE 404a2C

In a homicide case, the prosecutor may offer evidence of the alleged victim's trait of peacefulness to rebut evidence that the victim was the first aggressor

FRE 404a3

Evidence of a witness's character may be admitted under Rules 607, 608, and 609

Only allows truthfulness or untruthfulness

FRE 405A restyled: methods of proving character

A. by reputation or opinion, when evidence of a person's character or character trait is admissible (404a) it may be proved (on direct) by testimony about the person's reputation or by testimony in the form of an opinion. On cross-examination, the court may allow any inquiry into relevant specific instances of the person's conduct

FRE 405 B: methods of proving character

B. when a person's character or character trait is an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specifc instances of the person's conduct

FRE 406

Evidence of a person's habit or an organization's 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. The court may admit this evidence regardless of whether it is corroborated and whether there was an eye witness.

FRE 608(a): Reputation or Opinion Evidence

A witness's credibility may be attacked or supported by testimony about the witness's reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness's character for truthfulness has been attacked.

FRE 608(b): specific instances of conduct

Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness's conduct in order to attack or support the witness's character for truthfulness. But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:

(1) the witness; or

(2) another witness whose chracter the witness being cross-examine has testified about

609a1

A. In general. The following rules apply to attacking a witness's character for truthfulness by evidence of a criminal conviction;

(1) for a crime that, in the convincing jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:

(A) must be admitted, subject to Rule 403, if the witness is not a defendant in a criminal case; and

(B) must be admitted if the witness is a defendant in a criminal case and the probative value of the evidence outweighs its prejudicial effect;

609a2

2. For any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime require proving - or the witness's admitting - a dishonest act or false statement

609B

Limit on using the evidence after 10 years. This subdivision applies if more than 10 years have passed since the witness's conviction or release from confinement for the conviction, whichever is later. Evidence of the conviction is admissible only if:

Its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and

The proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use

609D

Juvenile adjudications. Evidence of a juvenile adjudication is admissible under this rule only if:

It is offered in a criminal case;

The adjudication was of a witness other than the defendant;

A conviction of an adult for that offense would be admissible to attack the adult's credibility; and

Admitting the evidence is necessary to fairly determine guilt or innocence

412A

A. prohibited uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct:

(1) evidence offered to prove that a victim engaged in other sexual behavior; or

(2) evidence offered to prove a victim's sexual predisposition

412B1

1. Criminal cases; The court may admit the following evidence in a criminal case:

(A) evidence of specific instances of a victim's 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 instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and

(C) evidence whose exclusion would violate the defendant's constitutional rights

412b2

2. Civil cases. In a civil case, the court may admit evidence offered to prove a victim's sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim's reputation only if the victim has placed it in controversy.

801a&b

A. statement.

"Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion.

B. declarant.

"Declarant" means the person who made the statement

801C

"Hearsay means a statement that:

1. The declarant does not make while testifying at the current trial or hearing; and

2. A party offers in evidence to prove the truth of the matter asserted in the statement

801d1a

Statements that are not hearsay. A statement that meets the following conditions is not hearsay:

(1) A declarant-witness's prior statement. The declarant testifies and is subject to cross-examination about a prior statement, and the statement

(A) is inconsistent with the declarant's testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition;

801d1B

(B) is consistent with the declarant's testimony and is offered

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

To rehabilitate the declarant's credibility as a witness when attacked on another ground; or

801d1c

Identifies a person as someone the declarant perceived earlier

801d2A

(2) The statement is offered against an opposing party and:

(A) was made by the party in an individual or representative capacity;

801d2b

(B) is the one the party manifested that it adopted or believed to be true

801d2c

(C) was made by a person whom the party authorized to make a statement on the subject

801d2d

(D) was made by the party's agent or employee on a matter within the scope of that relationship and while it existed; or

801d2E

(E) was made by the party's coconspirator during and in furtherance of the conspiracy

804A (1)

Declarant Unavailable

A. Criteria for being unavailable. A declarant is considered to be unavailable as a witness if the declarant:

(1) is exempted from testifying about the subject matter of the declarant's statement because the court rules that a privilege applies;

804A2 and 3

(2) refuses to testify about the subject matter despite a court order to do so;

(3) testifies to not remembering the subject matter

804a4 and 5

(5) is absent from the trial or hearing and the statement's proponent has not been able, by process or other reasonable means to procure:

(A) the declarant's attendance, in the case of a hearsay exception under Rule 804 (b) (1) or (6); or

(B) the declarant's attendance of testimony, in the case of a hearsay exception under Rule 804 (b)(2), (3), or (4)

804A exception

But that subdivision (a) does not apply if the statement's proponent procured or wrongfully caused the declarant's unavailability as a witness in order to prevent the declarant from attending or testifying

804b1

The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony that:

(A) was given as a witness at 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 a civil case, whose predecessor in interest had - an opportunity and similar motive to develop it, by direct, cross, or redirect examination

804b2

(2) Statement under the belief of imminent death

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

804b3

(3) A statement against interest

A statement that:

A. a reasonable person in the declarant's position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant's propriety or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability. And;

B. is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability

804b6

(6) Statement offered against a party that wrongfully caused the declarant's unavailability

A statement offered against a party that wrongfully caused - or accused in wrongfully causing - the declarant's unavailability as a witness, and did so intending that result

803

Exceptions to Rule Against Hearsay - Regardless of Whether the declarant is available as a witness

The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:

803-1

(1) Present sense impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.

803-2

(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

803-3

(3) Then- Existing Mental, Emotional, or Physical Condition

A statement of the declarant's then-existing state of mind (such as motive, intent, or 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

803-4

(4) A statement made for medical diagnosis or treatment. A statement that:

(A) is made for - and is reasonably pertinent to - medical diagnosis or treatment; and

(B) describes

Medical history

Past or present symptoms or sensations;

Their inception

Their general cause

803-5

(5) Recorded recollection. A record that:

(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's memory; and

(C) accurately reflects the witness's knowledge

If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party

803 6 (A, B, C, D, and E)

Records of regularly conducted activity. A record of an act, event, condition, or opinion, or diagnosis if:

(A) the record was made at or near the time by - or from information transmitted by - someone with knowledge;

(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;

(C) making the record was a regular practice of that activity; and

(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and

(E) the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness

803-7

(7) Absence of a record of a regularly conducted activity. Evidence that a matter is not included in a record described in paragraph (6) if:

(A) the evidence is admitted to prove that the matter did not occur or exist;

(B) a record was regularly kept for a matter of that kind; and

(C) the opponent does not show that the possible source of information or other circumstances indicate a lack of trustworthiness

803-8A

(A) it sets out:

(i) the 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

803-8b

(B) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness

803-10

(10) Absence of a public record

Testimony - or a certification under Rule 902 - that a diligent search failed to disclose a public record or statement if the testimony or certification is admitted to prove that:

(A) the record or statement does not exist; or

(B) a matter did not occur or exist, if a public office regularly kept a record or statement for a matter of that kind

805

Hearsay within Hearsay

Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements confirms with an exception to the rule

806

Attacking and Supporting the Declarant's Credibility

When a hearsay statement - or a statement described in Rules 801d2C,D, oe 3 - has been admitted in evidence, the declarant's credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness

The court may admit evidence of the declarant's inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it

If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination

evidence law

what materials may the finder of fact consider, what materials are properly available to the finder of fact?

what are the problems involved with evidence law

What materials should be admitted at all?

Even if it goes into the pot, what use can the finder of fact make of it?

What should we tell them about the evidence that guides them in using it?

what does the materials being used when determining questions fo fact depend on

substantive law

tanner v united states issue and facts

Issue

What does a litigant have to say post-verdict to authorized or warrant getting inside a jury room?

Facts

Attorney received phone call from former jury member from their recent case

Juror told attorney several jurors were drinking during lunch, smoking pot, and cocaine

what is the goal of juror secrecy and rule 606

burden imposed on citizens when we ask them to adjudicate a case

confidentiality

judges v juries as finders of fact

Judges argument: would be more streamlined if they were main finders of fact

Juries: they are laypersons, their lack of expertise make it necessary to have some of the rules, we protect the parties against the weaknesses of the lay jurors

Against: we don't trust them

tanner v. united states: what the case is about?

Prohibiting the use of juror testimony to undermine a jury verdict

Court is saying we can't have that → once evidence is in, we have no control over what the jury does with it

We dont have a way of fixing a jury doing something wrong

Once we have encroachments in the juror system, the whole thing falls apart

juror secrecy interests

finality of a verdict, juror trust, trust in judicial system as whole

who benefits from finality of a verdict

Court system

Criminal defendants and civil plaintiffs

If they get the verdict they want, theyre at peace and can get on with their life

Civil litigants: cost, they have to pay their lawyers, also they want to receive the monetary damages they're entitled to

juror trust

Jurors dont want to justify themselves

It is already a hassle to be served

Physically and emotionally a burden

Allows them to feel safe

Otherwise they're opening themselves up to scrutiny

trust in judicial system as a whole

Communal trust

We all have to believe the process is fair because otherwise I might not submit my claims to the system and that could lead to lawlessness

hearsay definition

any statement not made from witness stand

hersay broad principles

Used when there's a reliability problem

We do not want statements to reach jury that weren't made on the witness stand

But sometimes we do so there are many exceptions

relevance broad principles

Relevance that supports an inference that someone had

Very broad

Can you tell a story from the testimony you want to give to the conclusion we want to get to?

Supporting inferences that someone COULD have done something

401 restyled notes:

The fact is of consequence in determining the action

Key word

ANY

Can be smallest bit, but as long as it is not 0, it works

Doesn't keep a lot out

probative definition

tending to prove or disprove a fact

Evidence need not prove anything conclusively

Merely must have some tendency to make a fact more or less probable

materiality definition

evidence that bears on a fact "of consequence in determining the action"

Whether the evidence turns on what issues are at stake in the proceeding → substantive law of jurisdiction

three key principles of relevance

401

all irrelevant evidence is inadmissible

all relevant evidence is admissible unless:

some spcific exclusionary rule is applicable, 402

what is the first question in every evidence problem

why is the information relevant

what is relevance always and never

always relation, never absolute

ex. gun will never always be relevant

categories of evidence

if evidence looks like one of these things, it's likely relevant:

evidence of ability or opportunity

evidence of motive

evidence of design or plan

evidence of intent

evidence of ability or opportunity

Supports inference that someone was able to do something

Narrows universe and supports inference that they could do that

evidence of motive

Supports an inference that the person with the motive acted consistent with that motive

About how much weight a jury would put on a specific piece of evidence

evidence of design or plan

Supports inference that they acted in accordance with that plan

evidence of intent

Can be very broad

steps of 401 examination (3)

What is the evidence being used to prove?

What does it "go to"

Is that proposition material?

Is it to be properly proven?

Look to substantive law, list of elements

Does the evidence tend to make that proposition more or less probable that it would be without the evidence?