Evidence rules

Ruling on admitting evidence

Error may not be claimed after a ruling is made for the mere reason that the judge admitted/excluded the evidence unless a substantial right of a party is affected, and

The following must be seen on the record: 

1. A timely objection or a motion to admonish the jury, 

2. The specific grounds for objection are stated, and 

3. Along with the substantial right that is effected, 

ruling on excluding evidence

Error may not be claimed after a ruling is made for the mere reason that the judge admitted/excluded the evidence unless a substantial right of a party is affected, and

• 1) the substance of the evidence must be made known to the court by counsel, i.e., proffered for the record; and

• 2) a substantial right of the party must be affected.

ruling on the evidence and record or ruling

Error may not be claimed after a ruling is made for the mere reason that the judge admitted/excluded the evidence unless a substantial right of a party is affected, and

The court may add: 

1. Further statements which shows the character of the evidence, 

2. The form in which it was offered, 

3. The objection made, and 

4. The ruling thereon.

Preliminary Questions

Questions regarding witness qualification, privilege, or evidence admissibility are determined by the court by a preponderance of the evidence, unbound by rules of evidence except privilege^[12][13]. When relevancy depends upon a condition of fact, the court admits it upon introduction of evidence sufficient for a reasonable juror to find fulfillment of the condition^[12]

Limited Admissibility

When evidence is admissible for one party/purpose but not another, the court upon request must restrict the evidence and instruct the jury accordingly; failure to restrict is not error absent a timely request.

relevant evidence

 Evidence having any tendency to make the existence of (1)any fact consequential(material)to the determination of the action(including credibility and background facts), 2) more probable or less probable than it would be without the evidence. All relevant evidence is admissible except as restricted by constitution, statute, or Code; irrelevant evidence is strictly inadmissible

403 Balancing test for exclusion

Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issue, waste of time or misleading the jury. The most common types of unfairly prejudicial evidence are gruesome photos(option to limit the amount that comes in et if in color) and evidence of other crimes, wrongs, or bad acts.

General Competency to testify

Every person, including children,  of proper understanding (the capacity to appreciate truth versus falsity and understand the proceedings) is competent to be a witness. Objections to competency must be made before the witness is sworn.

Challenge of Competency intrinsically

Except as otherwise provided, to challenge a witness’s credibility, a party can ask about anything that could make the witness seem less honest or make their testimony seem less accurate.

child’s competency challenged

When a child's competency is challenged, the court will typically ask the child questions to determine the child's competency. The court considers not only the child's answers to questions, but also the child's overall demeanor, including whether it appears as though the child has been coached. 

Attacking Credibility Extrinsically 

1. Extrinsic evidence is admissible to attack credibility to prove the witness’s: Bias, Interest, Corruption, or Defect of capacity

2. Other evidence, like statements made that contradicts the testimony, can be used to challenge the witness’s credibility. The judge can keep it out if the probative value may substantially cause time delays, unfair prejudice, or confuse the issue.

Personal Knowledge requirement to testify

A witness may not testify unless evidence is introduced sufficient to support that the person has personal knowledge of the matter. Evidence to prove personal knowledge can, but does not have to, consist of the testimony of the witness himself. Lack of Personal knowledge is subject to the provisions of the article concerning expert witnesses.

Disqualification of Judges

 A presiding judge may not testify in that trial^[19].  A judge may not testify in a trial over which he or she is presiding, which includes informal statements from the bench that amount to testimony. If a party anticipates that the judge is to testify, he may file a motion to have the judge recused.  No objection need be made to preserve the issue for appeal.

Disqualification of Jurors

A juror may not testify before the jury in the trial^[19]. Under the Jury Shield Law, a juror cannot testify regarding jury deliberations or mental processes, except as to whether outside influence was improperly brought to bear or (in criminal cases) extraneous prejudicial information was introduced^[19].

Mode of Examination

• the parties to a proceeding have the primary responsibility of presenting the evidence and examining the witnesses. The court, however, shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to:

  • (1) Make the interrogation and presentation effective for the ascertainment of the truth;

  • (2) Avoid needless consumption of time; and

  • (3) Protect witnesses from harassment or undue embarrassment.

cross examination

Louisiana follows a "wide open cross" rule permitting examination on any matter relevant to any issue in the case, including credibility

leading questions

 Generally prohibited on direct examination except to develop testimony, examine experts, or interrogate hostile witnesses, adverse parties, or witnesses identified with an adverse party^[19]. Permitted on cross-examination

Redirect/Recross

 Redirect is limited to matters covered on cross-examination; recross is allowed if new matters are brought out on redirect

refreshing Memory

A writing/object may be used to refresh memory; if memory is restored, the witness must testify independently, and opposing counsel is entitled to inspect and introduce relevant portions^[2

Refreshing Memory Procedure

1. Ask the witness if anything would refresh his memory of the incident.

2. Counsel hands witness writing, recording, or other object, and asks the witness to review it silently to himself.

3. After the witness has reviewed the item, the attorney should ask the witness if his memory has been sufficiently refreshed to testify from his own memory.

4. If the witness asserts that his memory has been refreshed, then the attorney should take the item away, and the witness should then testify from his own memory.

5. If the witness asserts that his independent memory has not been refreshed, and he still cannot testify independently, counsel can seek to admit the document as a recorded recollection or move on to another topic.

Record of Recollection

If a witness lacks present recollection, a record made or adopted when the matter was fresh in memory that correctly reflects prior knowledge may be read into evidence and received as an exhibit (but not taken into the jury room)^[20].

what is required to use the record recollection

1. Witness once had personal knowledge of the matter^[25].

2. Witness now has insufficient recollection to testify fully and accurately (despite attempt to refresh under Art. 612)^[25].

3. Record was made or adopted by the witness^[25].

4. Record was made/adopted when the matter was fresh in memory^[25].

5. Record correctly reflects the witness’s prior knowledge^[25].

6. Evidentiary Effect: May be read into evidence and received as an exhibit, but may not be taken into the jury room^[25

Sequestration of Witnesses

Upon request or court motion, witnesses are excluded from the courtroom and ordered not to discuss the case. Exceptions: Natural parties, designated representatives of non-natural parties, persons essential to the presentation of the cause (e.g., expert witnesses), and victims/their families

lay opinion testimony

 Non-expert opinions are limited to those (1)rationally based on the perception of the witness(first-hand sense observations) and (2) helpful to a clear understanding of the testimony or determination of a fact in issue

hearsay definition

is an (1)out-of-court statement(oral/written assertion or intentional nonverbal assertive conduct)(2)  made by a declarant(human person) (3) offered in evidence to prove the truth of the matter asserted^]. Hearsay is inadmissible unless an exception or exemption applies

To Prove the Truth of the Matter Asserted:

When determining what the statement is being offered to prove, do not be confused by what the statement will ultimately help to prove in the case (such as motive, guilt, or innocence). Rather, the question must prove what was asserted in the question and does the truth of the statement actually affect the outcome of the overarching matter asserted.

Multiple Hearsay

Hearsay included within hearsay is inadmissible unless each part of the combined statements satisfies an exception or exemption

NON-Hearsay Statement

Statements are subject to the hearsay rule only if they are being offered in evidence to prove the truth of the matter asserted. A statement is not hearsay and is not subject to exclusion if it is being offered for some other reason. The statement must be determined to be relevant for other reasons than its assertive value, which includes verbal acts/operative facts, verbal parts of acts, effect on the hearer/receiver, or declarant notice/knowledge

Verbal Acts / Operative Facts include

Words creating legal rights/duties (threats, contracts, permissions)

Verbal Part of an Act includes

a statement made that accompanies an act that characterizes and gives meaning to the act.  The words are needed to explain the action and unambiguously explain the conduct.

Effect on Hearer / Receiver

A statement that is offered to prove things such as good/bad faith, fear, bias, reasonableness, unreasonableness of a person’s conduct, or why a person took the action he took

Notice / Knowledge of either the hearer or declarant

These are statements typically offered to show that the person was aware or should have been aware of a certain condition; this is not offered to prove that the condition actually existed.

Non-Assertive Conduct:

When a person does not intend to convey a message through his actions. (it does not matter if the other person inadvertently “received” a message).

Prior inconsistent/consistent Statements:

a prior statement of a witness that is inconsistent with his current testimony offered to impeach the witness (to attack credibility). IE. If the witness said that the light was green while on the stand, then the police report may be offered to show that he originally said that the light was red at the time of the accident.

Hearsay Exemptions

are statements that would be consider hearsay, but the legislature has exempted them from the hearsay exclusion rule. this includes Prior statements(inconsistent, consistent statements, and identifications), Admissions( personal adoptive, authorized statement; statement of an agent/employee in course in scope; or statement of co-conspirators in furtherance of conspiracy, and things said or done.

however, the statement is not excluded by the hearsay rule, under Present sense impression

 1) the statement describes or explains (an event or condition); and 2) is made while perceiving (or immediately after) perceiving the event or condition.

however, the statement is not excluded by the hearsay rule, under Excited Utterance

 1) startling event or condition; 2) statement “relating to” a startling event or condition; and 3) made while “still under stress” of a startling event or condition.

however, the statement is not excluded by the hearsay rule, under the Then Existing State of Mind / Physical Condition

• Element 1 (Present State): Statement of declarant’s then-existing state of mind (intent, plan, motive) or physical sensation (pain, health)^[38][39].

• Element 2 (Proper Purpose): Offered to prove then-existing condition or declarant’s future action^[38][39].

• Exclusion / Testament Exception: Statements of past memory/belief are excluded unless relating to the execution, revocation, identification, or terms of declarant’s testament

however, the statement is not excluded by the hearsay rule, under Medical treatment & Diagnosis

• 1. describing a person's medical history, past or present symptoms, pain, or sensations and/or statements regarding the cause and circumstances of injury (if reasonably pertinent to treatment/diagnosis in connection with treatment);

• 2. made to a healthcare provider; and

• 3. made for purposes of medical diagnosis and treatment in connection with treatment.

however, the statement is not excluded by the hearsay rule, under Business Records

Records of regularly conducted business activity made at or near the time by a person with knowledge in the regular practice of business^[38]. (Excludes law enforcement investigative reports) 

what must be established for Business records to be admitted under the hearsay exception

• Record made at or near the time of the event^[41].

• Made by or transmitted from a person with personal knowledge^[41].

• Information furnished by someone routinely acting for the business (or under a hearsay exception)^[41].

• Kept in the course of regularly conducted business activity^[41].

• It was the regular practice of the business to make and keep the record^[41].

however, the statement is not excluded by the hearsay rule, under Public Records

Public records setting forth (1) regularly conducted agency activities, (2) matters observed pursuant to duty imposed by law with a duty to report, or (3) factual findings from authorized investigations

what is excluded from the public records expectation

1. Police/law enforcement investigative reports^[42].

2. Agency investigative reports when offered by the agency as a party^[42].

3. Factual findings offered by the prosecution in criminal cases^[42].

4. Factual findings resulting from an investigation of a particular complaint/incident^[42]

Other Hearsay Exceptions that Apply Whether or Not the Declarant Is Available includes family records

Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like.

Other Hearsay Exceptions that Apply Whether or Not the Declarant Is Available includes learned treaties

To the extent called to the attention of an expert witness upon cross-examination or, in a civil case, relied upon by him in direct examination, statements contained in published treatises, periodicals, or pamphlets on a subject of history, medicine, or other science or art, established as a reliable authority by the testimony or admission of the witness or by other expert testimony or by judicial notice. If admitted, such a statement may be read into evidence and received as an exhibit but may not be taken into the jury room.

Other Hearsay Exceptions that Apply Whether or Not the Declarant Is Available includes reputation concerning personal or family history

Reputation of a person's character among his associates or in the community.

Motion to admonish

A request by counsel that the court instruct the jury to disregard or limit inadmissible evidence that might have been inadvertently stated and heard by the jury. This preserves the issue for appeal.

Proffer

When a judge makes a ruling excluding evidence, counsel must make known in the record the substance of the evidence so that it may be reviewed on appeal. A proffer of evidence may be an informal statement by counsel or he may call a witness and question them regarding the full nature of the excluded testimony.

motion in Limine

 A motion for a pre-trial ruling admitting or excluding evidence. May be based on any grounds. Gives parties an opportunity for a more in-depth opportunity to argue substance of objections. In criminal proceedings, rulings on written motions preserve the issue for appeal.

 Substantial right of party affected. “Whether the alleged error as compared to the entire record had a substantial effect on the outcome on the case.” Court considers:

1. whether erroneously admitted evidence was the primary evidence relied upon;

2. whether the aggrieved party was nonetheless able to present the substance of its claim;

3. the existence and usefulness of curative jury instructions;

4. the extent of jury argument based on tainted evidence;

5. whether erroneously admitted evidence was merely cumulative; and

6. whether other evidence was overwhelming.

 When leading is okay on direct exam

1) when necessary to develop witness's testimony; 2) in examining an expert witness on his opinions and inferences; 3) when a party calls a hostile witness; 4) is a witness who is unable or unwilling to respond to proper questioning; 5) is an adverse party; or 6) is a witness identified with an adverse party.

Definition of Unavailability

 Declarant is unavailable if exempted by privilege, refusing to testify under court order, testifying to lack of memory, unable due to death or physical/mental illness, or absent despite reasonable process^[41][42]. Unavailability cannot be procured by the proponent^[42].

Former testimony Exceptions Requiring Unavailability

• Element 1: Declarant is unavailable^[46].

• Element 2: Prior testimony under oath at another hearing^[46].

• Element 3 (Opportunity & Motive):

  • Criminal Case: The party against whom offered had a prior opportunity and similar motive to develop testimony^[46].

  • Civil Case: The party or a party with similar interest had an opportunity and similar motive^[46].

• Exclusion: Expert opinion testimony from prior proceedings is excluded^[46].

dying declaration Exceptions Requiring Unavailability

1. declarant is unavailable;

 

2. the declarant believes his death is imminent (whether or not he actually dies); and

• may consider all facts and circumstances surrounding the making of the statement, including:

  • the declarant's own words, the nature of wounds, others present, the time between the wound and injury, the opinion of a physician, or any other factors that suggest that the declarant “has abandoned all hope or expectation of recovery.

 

3. the statement concerns the cause or circumstances of what he believed to be his impending death.

Statement Against interest Exceptions Requiring Unavailability

• Element 1: Declarant is unavailable^[48].

• Element 2 (Against Interest): Contrary to pecuniary, proprietary, civil, or criminal interest when made^[48].

• Element 3 (Corroboration for Exculpatory Statements): Criminal statements exculpating the accused require corroborating circumstances clearly indicating trustworthiness

family history Exceptions Requiring Unavailability

1. The declarant is unavailable 

2. A statement made before the controversy arose concerning the declarant’s own birth, adoption, marriage, divorce, (etc.) or other similar fact of family history, even though the declarant had no means of personally acquiring the matters stated. Or 

3. A statement made before the controversy, that either concerns the foregoing matters or death of another person, if the declarant was related to the other by blood/adoption/marriage or was so intimately associated with the other's family that the statement is likely accurate information.

Residual Catchall Exceptions Requiring Unavailability

• Element 1: Declarant is unavailable^[51].

• Element 2: Circumstantial guarantees of trustworthiness^[51].

• Element 3: Reasonable effort to adduce other admissible evidence^[51].

• Element 4: Written advance notice to adverse party and court detailing particulars and declarant info^[51].

Forfeiture by wrongdoing Unavailability expectation

• Element 1: Declarant is unavailable^[52].

• Element 2: Proponent proves by a preponderance of the evidence that the opposing party engaged/acquiesced in wrongdoing intended to, and did, procure unavailability to prevent testimony^[52].

prior statement

1. the declarant testifies at the trial or hearing; and

 

2. the declarant is subject to cross-examination concerning the prior statement.

Prior Consistent statement

pre:  the declarant testifies at trial/hearing and is subject to cross-examination concerning the statement, AND the statement is one of the following:  

If a witness is being accused of lying or making up their story recently, you can use a previous statement that matches their court testimony to show they’ve been saying the same thing all along.

Prior inconsistent statement

Pre:  the declarant testifies at trial/hearing and is subject to cross-examination concerning the statement, AND the statement is one of the following:  

In a Criminal Case, If a witness says something in court that’s different from what they said earlier, you can use their earlier statement to show the inconsistent inconsistency, but only if:

1. You first remind them of what they said before and give them a chance to explain, and

2. There’s other evidence backing up that earlier statement.

Identification

pre: the declarant testifies at trial/hearing and is subject to cross-examination concerning the statement, AND the statement is one of the following:  

C. One of Identification of a person made after perceiving the person.

two very important requirements that apply to all admissions:

 

1. it is a statement by a party to the action or is attributed to him; and

   • Could be own personal statement; adopted and authorized statement; statement of an agent/employee in course in scope; or statement of co-conspirators in furtherance of conspiracy

2. the statement is being offered against the party by his opponent.

 

Agent/Employee in course/scope of agency/employment admission

1. The statement must be made by an employee or agent of the party;

 

2. concerning a matter within the scope of his agency or employment;

 

3. during the existence of the relationship; and

 

4. offered against the principal/employee who is a party to the action.

co-conspirators admissions

1. Prima face case of conspiracy between declarant and party-litigant;

2. Statement made during the conspiracy;

3. Statement in furtherance of the conspiracy; and

4. Offered against a co-conspirator who is a party to the action.

Other privity admissions.

 are based on the principle that one who under substantive law stands in another's shoes for the purposes of a lawsuit should generally be made to take the bad with the good. which include designated relational/privity/wrongful death/minor child statements

Other privity admissions of minor child

1. against someone being sued for hurting the child (“the babysitter beat me), or

2. against the person responsible for the child if the child caused damages to another. (“I threw a rock and broke the window”)

Things said or done

1. applies in criminal cases;

2. made by participants of the crime( and, in limited circumstances, some victims or witnesses, or police officers) ;

3. made during the crime, both before and after the crime that forms a continuous transaction with it; and

4. statements are instructive, impulsive and spontaneous words and acts that are necessary incidents of the criminal act, or immediate concomitants of it.