Evidence Final

FRE 401 - Relevance

Means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence

Concepts for Relevance

Materiality and Probative Value

FRE 402 - Relevance Matters

Relevant evidence will generally be admitted, unless prohibited by Constitution, statute, or FRE

FRE 403 - Balancing Test

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 evidenceM

May exclude relevant evidence for

unfair prejudice, confusing, misleading jury, undue delay, wasting time, presenting cumulative evdiene

601

Everyone can testify unles something says they cant

Four aspects of testimony

Perception, memory, veracity, communication

601 - Personal Knowledge

unless an expert, all witnesses have to have firsthand knowledge

603 - Oath

to testify you have to give an oath or affirmation before testimony

604 - Interpreters

they also must be sworn in and qualify as an expert, normally with certification

605 - judge as witness

the presiding judge may not testify as a witness

606(a) - juror as witness

a juror may not testify infront of out jurors in trial

606(b) - post verdict testimony by jurors

A juror may not testify about things in deliberation, anything that affected their decision, or a juror’s mental process unless extra prejudicial info was wrongly given, an outside influence was wrongly brought, or a mistake was made entering the verdict

607

any party may impeach no matter if they called the witness or not

Impeachment

attacking credibility either relating to testimony or believability

Rehabilitation

repairing the credibility of a witness whose testimony has been impeached

Proponent (call witness)

can also impeach own witness

jury expects

some impeachment

Dont ask questions if

you dont know the answer

Dont impeach without

a good basis for belief in impeachment

Intrinsic evidence

admissions on cross

Extrinsic evidence

meants outside

methods of impeachment

Showing bias, sympathy, or some other ulterior motive

Bias is

an ulterior motive that could skew testimony or induce witness to falsify testimony

Bias

is never a collateral issue

Showing defects in perception or memory

o Showing bad character for truthfulnessCommon ex of sensory defects includes sight problems, hearing problems, intoxication at time of observations

Showing bad character for truthfulness

Can be shown with prior unconvicted acts indicating dishonesty (FRE 608(b)), prior convictions (FRE 609), or reputation/opinion evidence (FRE 608(a))

610 - Impeachment with religious beliefs or opinions

o 611 – InterrogationEvidence of witness religious beliefs or opinions cannot be used to attack or support credibility

611 – Interrogation

The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to:
• make those procedures effective for determining the truth.
• avoid wasting time.
• and protect witnesses from harassment or undue embarrassment

Scope of cross-examination is

limited by scope of preceding direct examination, but court may enlarge scope.

612 – Present Recollection Refreshed

- Establish that the witness has trouble recalling a particular matter
- Ask the witness if it would be helpful for him to see a specific document or other item
- Show the document or other item to opposing counsel (that’s what FRE 612 requires)
- Ask the court for permission to approach the witness
- Show the document or item to the witness
- Through very brief questioning, establish that the document or item has refreshed the witness’s memory
- Take the document or item away from the witness
- Proceed with the examination of the witness now that his memory has been refreshed

613 – Prior Statements of Witnesses

When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney

Extrinsic evidence of a witness’s prior inconsistent statement is

admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2)

614 – Court Calls Witness

the judge may call a witness, either on the judge’s own initiative or at the suggestion of a party.

if a judge calls a witness

all parties may cross-examine the witness

The judge may interrogate any witness

whether or not the judge was the one who called the witness.

615 - Sequestering

means a witness means requiring the witness to wait outside the courtroom while other witnesses testify

Sequestering is NOT authorized for the following witnesses

• a party who is a natural person
• an officer or employee of a party which is not a natural person designated as its representative by its attorney
• a person whose presence is shown by a party to be essential to the presentation of the party’s cause
• or a person authorized by statute to be present.

FRE 401 or 611b

Showing bias, sympathy, or some other ulterior motive

FRE 401 or 601

showing defects in perception and memory

FRE 608b

prior unconvicted acts indivating dishonesty

Components of showing prior bad acts

o Confront the witness with bad acts
o Confront the witness with the bad or good acts of other people whose character they discussed
o Respect the witnesses right against self-incrimination

Can you bring extrinsic evidence to show prior unconvicted acts?

Nope - must take the witnesses answer

FRE 609 – prior convictions

Conviction qualifies if it was punishable by death or more than 1 year in prison or if it involved dishonestly

Do nolo pleas and convictions on appeal qualify under 609?

yes

What qualifies under 609?

Felonies - acts punishable by at least a year and a day in jail
Misdemeanors - has to include dishonesty as a part of it
Nolo contendrai - no contest pleas

609 Balancing Test

If dishonesty is an element - no balance needed
Tough test if any other sort of crime is offered against accused
Normal FRE 403 tests for all other convictions

Time limit for 609

10-year limit - either day of conviction or last day in jail
If older than tough balancing test and notice are required

FRE 608a

Reputation may be attacked/supported by testimony about it relating to truthfulness of in the form of an opinion about the character

FRE 613, 801c, and 801d1

demonstrating that the witness has made prior inconsistent statements

FRE 801

out of court inconsistent statements can only be used for impeachment

FRE 613a

requires opposing counsel must be given any written copy of statement

FRE 613b

requires that witness be given opportunity to explain inconsistency

What is rehabilitation?

repairing the credibility of a witness

How to rehabilitate

Allow witness explanation, offer evidence of character for truthfulness, offer prior consistent statements, other ways

FRE 608 allows

proponent of witness to show the witness has a good character

FRE 801d1B

once the cross has implied that the witness has a motive to fabricate, the proponent may offer prior consistent statements

FRE 701 - Lay Opinions

if a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is
a - rationally based on the witness's perception
b - helpful to clearly understanding the witness's testimony or to determining a fact in issue
c - not based on scientific, technical, or other specialized knowledge within the scope of 702

702 - Expert 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:
(a) the 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
(b) the testimony is based on sufficient facts or data
(c) the testimony is the product of reliable principles and methods
and (d) the expert has reliably applied the principles and methods to the facts of the case

To get expert testimony it must be reliable and

reliable input, methods (ex-DNA testing), and reliable application

Who can be an expert

Someone that 1) has particular knowledge, skill, experience, training, education, etc., 2) is relying on valid principles or techniques that have been applied appropriately in this case, and 3) has something to offer that is useful for the jury

Once designated as an expert

a witness is only an expert when testifying on things in that expertise

FRE 703

An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed

FRE 704a

an opinion is not objectionable just because it embraces an ultimate issue

FRE 704b

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.

FRE 705

unless the court orders otherwise, an expert may state an opinion and the reasons for it without first testifying those facts or data on cross (they may have to disclose them)

FRE 706

in both civil and criminal cases, the court may appoint experts on its own motion or on the motion of a party.

Daubert Factors

- Whether the expert’s technique or theory can be or has been tested
- Whether the technique or theory has been subject to peer review and publication.
- The known or potential rate of error of the technique or theory when applied.
- The existence and maintenance of standards and controls.
- Whether the technique or theory has been generally accepted in the scientific community (this prong borrows from the old Frye test).

FRE 802

Hearsay is not admissible unless any of the following provides otherwise: a federal statute; these rules; or other rules prescribed by the supreme court

Hearsay Components

- Out of Court
- Statement
- Qualifying Declarant
- Truth of the Matter Asserted

Out of Court

Outside of this specific court proceeding/jury

Statement

basically and verbal utterance of words, basically every writing, sometime non-verbal conduct (conduct is subjectively intent as an assertion)

Qualifying Declarant

humans

Animals are

never qualifying declarants

Machines are

generally not qualifying declarants

Truth of the Matter Asserted

When the proponent is trying to prove the proposition that the statement supports

801d1

Can you cross the declarant

801d2

Outside APO

Exceptions for Admissability

Spontaneous, Self-Referential, Documents/Recording, Unavailable

Non-TOMA Purposes

Impeachment, Verbal Act, Effect on listener/reader, Circumstantial evidence of state of mind or knowledge, memory, or belief

Non-TOMA - Impeachment

Showing the inconsistency of the two statements

Non- TOMA - Verbal Act

Sometimes words have legal significance independent of (not wholly dependent upon) their truth. Sometimes a legally significant act is completed simply upon utterance, dissemination, or possession of words.

Non-TOMA - Effect on Listener or Reader

May be legally significant independent of their truth because the point is to show how another person reacted to those words

Non-TOMA - Verbal Object/Marker

Purpose of introducing words may be to show the origin or owner of an item bearing those words

Non-TOMA - Circumstantial evidence of state of mind

Purpose of offering a statement may be to show, indirectly, the mental state of the person who may the statement

If using Circumstantial evidence of state of mind

make sure its evidence of the declarant’s state of mind

Non-TOMA - Circumstantial evidence of knowledge, memory, or belief

An utterance may be significant because of its truth but because it indicates that the declarant has unique knowledge that is significant for some reason in a specific case

FRE 801d1

Exclusions for certain prior statements by witnesses who are testifying and are available for cross-examinations

FRE 801(d)2

Exclusions for admissions by party opponents (APO)

AOP

Admissions by Party Opponents

801d2e

Coconspirator statements

Coconspirator statements

at time of statement they are a coconspirator, during the conspiracy period, the conspiracy was furthered by the statement

803(1) Present Sense Impression

allows the admission of a statement describing or explaining an event or condition made while or immediately after the declarant perceived it

803(2) Excited Utterance

allows the admission of a statement relating to a starting event or condition, made while the declarant was under the stress of excitement that it caused

803(3) Statement concerning the state of mine or body

Allows the admission of a stamen of the declarants then existing state of mind or emotional, sensory, or physical condition, 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 declarants will

803(4) Statements in aid of medical diagnosis or treatment

Allows the admission of a statement that is made for medical diagnosis or treatment; and describes medical history; past or present symptoms or sensations; their inception; or their general cause

Hillmon Doctrine

In some cases may be offered to show the intent of the declarant at the time he spoke, because that evidence helps the proponent to show that the declarant later acted in accordance with his intent

Statements in aid of medical diagnosis or treatment

• Must relate to condition or symptoms
• Must be made for medical purpose
• Must be pertinent to treatment/diagnosis
• Must be made in a conversation involving medical personnel
• Must be made by person who has some relationship to “doctors’ team” or “patients’ team”

803(5) Past Recollection Recorded

Allows the admission of a record that is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; was made or adopted by the witness when the matter was fresh in the witness’s memory; and accurately reflects the witness’s knowledge

Past recollection recorded - Parts

- Must prove insufficient memory
- Statement must correctly reflect witness' memory
- Statement must have been made or adopted by witness
- Statement must have been made while memory was fresh
- Statement can only be read to jury, except by adverse party