Federal Rules of Evidence - Outline

Evidence 1-9-07 Rule 701(b) “helpful”: what does this mean—it means that the judge is given a lot of discretion Were here to learn the reasons for the rules—not that they are discretionary and the judge can rule any way A trial judge has wide latitude to misapply the rules On appeal, D has to show not only that the trial judge was wrong but they also have to show significant prejudice Ch 2  Preconditions to testify o 601, 602, 701 o Problem, II-1: Wants 8 yr old son to testify—son wants to say that his uncle told him on the phone that his dad was out walking the dog  You would first want to establish the relationship and recognition between the boy and the unlce  Might have problem with actually observing the dad walking the dog  What rule might keep the child from being a witness as to where his father was—602—b/c the child didn’t have actual knowledge as t where he father was actually at o Problem II-2L D is charged w/ bank robber and the teller was asked if he could identify the D in the courtroom  He can have personal knowledge even though he wasn’t absolutely certain 1-11-07  Problem II-2: D is charged w/ robbing a bank and the teller is called to identify the D, even though D’s face was covered w/ a bandana o 701(a)you can make an objection that there isn’t a rational basis for the teller’s perception Proble, II-5 W testifies that he heard shots as he rounded the corner and then saw the D running b/c he had just shot the murder victim  Competecy anFor a witness to be confident when testifiesd Lying/incompetencya pretty lax standard   Federal cts will use state rules under Erie when there is a conflict w/ the competency and privileges Deadman statutelimits or prohibits testimony against someone who is now deceased o KS doesn’t have such a statute anymore—doesn’t come up in KS unless there\s a conflict of laws Direct Exam-611(a)  Suggests that it’s in the discretion of the TC in allowing narrative Q  Why might a judge sustain such Qthey might talk about inadmissible stuff and prejudice the jury  Limitation in 611(c)the party that calls the witness you can’t use suggestive Q Thursday  Timely and specific objections o Excuses for not following the req’ts o 103(a)(1)—don’t have to make specific objection if o 104(d)—nothin in this rule preclude taking notice of plain errors KS Exceptional circumstances—case law o Usually cases involving const errors—not evidence o Death penalty cases o Circumstance of prosecutor introducing evidence that wasn’t allowed (prosecutorial misconduct)  Now criminal D’s are making constant appeals based on this—but hard to prove o Gordon case—KS will relax req\t of timely objection in non-jury trials Point of view of party offering the evidence—what do they have to do to prove that evidence was unlawfully excluded o Prob II-17it was error to exclude the evidence, is the offer of proof adequate to justify an AC’s reversal?  Yes b/c there was a substantial rt at issue  Also there is a plain error  402—unless there’s a rule of exclusion then all evidence is admissible o II-6evidence is not admissible b’c it wasn’t suggested at trial why this evidence was relevant o FR 104(a)(2) you don’t have to make a  If you ask an specific enough explains Motions of Limine objecting before trial possibly protacts the jury from actually hearing the objective evidence o What isf there’s a violation that a motion in limine?  Mistrial but judeege has discretion—the D can move tfo mistrial— but is tisn’t likely that the court will do this  Cts are require to rule 0n the KS the motion in biibty  Viewed as temp rule—not binding or lw of the case     I light of the evidence that will be hell t troa; o Problem 8—motion of Limie  Do you have to do anything if you want to preserve for repeal  FR say that you should bring up the denies mation of limine What’s a definitive ruling  Easier to find if there 1-22-07   Motion in Limine o What approach will KS take considering the case law o Can be made by party wanting to get evidence in Objections o Question of being a 104(a) or (b)—fn 18 on 214 1-23-07 Relevance cont.  Can testimony come in saying that even though the footprint was too smeared for identification, it is highly likely that the print came from the D o It is relevant despite the indirect evidence of the shoe b/c of the rare nature of the shoes that he was wearing o The evidence doesn’t have to prove anything by a certain extent to be relevant o Evidence can be relevant if it puts the D in an isolated group of people smaller than the entire population  “KS laundry list” o When will the evidence mislead the jury—when there is a likelihood that the jury will misread the evidence o 403 o We can only exclude for unfair prejudice 1-25-07  403—you need to be able to articulate why it is unfairly prejudicial 2-26-07 Prior inconsistent statement  Allowed under the general rules of relevance in the FRE  613(b)—adobts a fairness rationale  Witness o Direct—  Silence—can be inconsistent w/ info given at trial  What if D said to the cop initially “none of your business” It’s hers”—more inconsistent b/c at trial he was saying that the $ was his  Could you call a 2nd witness to get the inconsistent statement—you should have the contradictory statement on direct first  See Jacksson in KS supp pg 140 o Cross—can only ask about what came out in Direct Impeachment by defects in perception, memory, and description/difficulty in comm.  Attacks on such are allowed but usually stuff like absent minded or oblivious isn’t allowed b/c it’s more like propensity 10 catagories of impeachment of witness—all are available but religious one—see KS supp (in KS we recognize 8 of them) Rehabilitating the witness  