Evidence - Download as DOC by pGidget

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									Evidence is a series of hurdles. In order for any item of evidence to come in it has to jump over each hurdle down the line. Don’t just stop mid-point.    Logical Relevance – 1st hurdle Evidence is only admissible if it is logically relevant Tends to prove or disprove some fact – (CA is the same) Relevance: Any tendency to make the existence of a fact that is of consequence more probable or less probable then it would be without the evidence All relevant evidence is admissible. To be relevant evidence has to prove or disprove that some fact is of consequence  All it has to have is some logical connection – doesn’t necessarily have to prove something by itself. Doesn’t have to be conclusive – but can be just a link  “Is this something that I would include in my story or not?”  Don’t confuse admissibility with believability – that’s up to the trier of fact Materiality:  The proffered evidence relates to one of the substantive legal issues in the case. Inductive Reasoning: Direct Evidence  It is an inference in an ordinary case – circumstantial evidence (vs. direct evidence – contract itself, video tape, eyewitness). Cases:  Tanner: Rule 606 – A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity.  Worker’s Comp: Logically Relevant tends to prove that Smith was contributorily negligent (direct evidence (eye witness)) - he wasn’t paying attention. BUT not Material because in worker’s comp issue it doesn’t matter – injury just has to be work related.  Half empty Beer Can: Circumstantial evidence of drinking and driving. Direct evidence that there is a ½ empty beer can. Not sufficient on its own to prove. Beer can matters to the outcome. The fact that it was ½ is the most relevant b/c it tends to prove that he was drinking it at the time. Conditional Relevance - evidence is found logically relevant if other evidence is first established to be true.  Rule 104B – when some item that you are trying to introduce is only relevant if some other condition is established – that item can come in subject to that further evidence being introduced.  Federal: When we have an issue where there is a dispute about the connections – we let it all in to allow the jury to decide whether the preliminary fact is established.  Most state courts DO NOT adhere to conditional relevance for the jurors to decide – they say that it is a judicial decision.  “laying a foundation” means that you are introducing evidence of preliminary facts that connect the evidence to the case.

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“motion in limine” done before trial or outside the presence of the jurors (don’t want the jurors to know that there is a controversy and be prejudicial)

Logical Relevance Can be Excluded:  The court has the discretion when its probative value is substantially outweighed by Undue PREJUDICE, confusion of the jurors, undue delay, or waste of Time (Rule 403).  HAVE to look at how probative it is to the case.

Circumstantial Evidence  Where we want the trier of fact to draw some inference from the circumstances  Flight from the police or silence to an accusation  Prior silence when inconsistent with statements made in court are allowed to be probative  No inference can be drawn from Miranda Rights  Destroying evidence makes the destroyer look culpable of the crime at hand  If a series of inferences is required, you have to weigh if they are reasonable Wrap up: identify the item of evidence: tangible, testimonial, document, witness. Then who is offering it, why they are and what does it tend to prove or disprove? Is it direct evidence or is it circumstantial evidence? Is its probative value substantially outweighing its undue prejudice?

Probability and Statistical Proof 1. Introduction of evidence related to mathematical probability statistics require an adequate foundation in evidence and adequate proof of statistical independence 2. Stats and Probability is NOT evidence (but we do allow DNA) – bus line situation

Exclusion of Evidence for Extrinsic Policy Reasons
Statistical Evidence - Probabilities and statistics are not evidence Subsequent remedial measures - Rule 407: When after an injury has occurred, measures taken to correct the problem, that would have prevented the injury had it been done in the first place, the evidence of the correction is not admissible to show culpability, negligence, or defect in the product - Not excluded to show ownership, control, feasibility, or impeachment - Does not say anything about design defect - Subsequent remedial measures are admissible to prove relationships (employer) - Remember that strict liability product defect cases are subject to 407 Rioux v. Daniel International - Conflict between the federal and state rules - Maine modified 407 and essentially reversed it, so the evidence is admissible - Fed courts are required to apply state substantive law unless they are permitted not to by fed gov’t

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Fed rules of evidence must apply Whenever you see a FRE and you are in a diversity action, that rule will apply, even if the state law conflicts

Settlement Offers - Rule 408- Offering to settle or compromise a claim that is disputed as to the validity or the amount is not admissible - Evidence of conduct or statements made during negotiations for settlement, is also not admissible - If there is no dispute as to validity, or the amount of the liability, any settlement discussion isn’t protected - Tangible evidence cannot be excluded - Evidence of offers to settle are not admissible to show the validity of the claim - CA rule- also excludes statements made during mediation - Rule 409- statements made in connection with the furnishing of medical, hospital, or other related expenses is not admissible - Statements made in the course of settling medical expenses can be admissible (claiming blame while offering) - CA rule- everything you say is excluded - Problem 1 on pg 144- look to whether there is only an offer to pay medical expense, or whether there is an offer to settle. If there is an offer to settle then nothing is admissible - If a settlement or proposal to settle is offered for something other than culpability, it will be admissible Pleas and related statements - Rule 410- evidence of a plea of guilty, later withdrawn, cannot be used as evidence - A plea of no lo contendere- it can’t be used against you because you’re not admitting anything - Any statements made in course of making such pleas are not admissible - Any statements made in course of plea bargaining with the prosecutor are not admissible - CA excludes the above in administrative hearings, tribunals, boards, etc - Conversations with law enforcement officers are not covered by 410 - Pay attention to who the D is having the conversation with - If it’s not with the prosecutor, it’s not a plea discussion Proof of Insurance - Rule 411- evidence that a person was or was not insured from liability is not admissible for the purposes of showing culpability or negligence - Is admissible for other purposes, like bias, ownership, etc - CA is the same - Silent on when it is admissible – okay to rebut wrong information (case law)

Competency of Witness
Federal General Approach: Everyone is competent unless otherwise provided.

Federal Law - Four requirements for a witness: 1. Ability to communicate in some way 2. Personal knowledge (sense to what you are testifying in some way – hear, see, feel, etc.) 3. Ability to recollect or remember 4. Ability to tell the truth (have to understand your obligation) Not permissible to impeach a witness who won’t swear to God (can’t bring up religious beliefs regarding your general ability to be a witness – but can come up regarding bias)  Not allowed to call the judge who is presiding over the case to be a witness  Not allowed to call the jurors  Witnesses who’ve committed prior crimes are okay – can bring up the issue to impeach their credibility them but they are still allowed to take the stand  Dead Man’s Act – not recognized under the federal rules nor CA – but it could come up in a diversity action if the state law guiding the case recognizes it (BAR). Generally applies only in civil cases and when one of the parties is a decedent’s executor or heir. If you are claiming against a decedent, since he isn’t around to give testimony – you aren’t allowed to give testimony either.  Hypnotically Induced Testimony: Majority Rule is that it’s excluded. What you knew before hand has to be documented so that you can demonstrate that you had prior knowledge of those facts and those are allowed. Interrogation of Witness  Fed Rule 611 – trial court has authority to say how they are called, examined and power to avoid undue repetition, harassment of witnesses and wasted of time.  Cross Examination is generally limited to the Scope of the direct examination. Not limited to the strict topic – there is a broad umbrella (spider bite and demerol example on page 370). However, you can always ask questions that relate to the witness’ credibility (bias, convictions, etc) (further example on page 370 with regard to the will). If I want to ask you other things – I can just call you as my own witness.  Non-responsive answers or answers that don’t relate can be stricken Limitations on the form of a question (objectionable): 1. Can’t ask compound or multiple things at the same time (trigger: “and” in one question) a. What did the 5 people do? b. Was the car red and did it run the red light? 2. Can’t ask repetitive or duplicate questions (“asked and answered” objection) a. Are allowed to probe and re-word but not if already answered 3. Can’t ask badgering, use a demeaning attitude harassing or argumentative questions 4. Can’t questions that assume facts that aren’t in the evidence a. “When did you stop beating your wife?” Objection would be that the the question is pending or that the attorney is testifying b. D maintains innocence – “what did you your husband do to call you to kill him?’ 5. Can’t ask the witness to speculate or make a guess a. “What was going through the D’s mind?” b. But can be a speculation – “how far away?” “I don’t know for sure – I didn’t measure it” “Can you estimate?” 

6. Can’t ask questions that are overly broad or vague – Can’t call for a narrative: “Why are we here today?” 7. Don’t put in multiple negatives – creates confusion 8. No Leading questions on Direct Examination (of a friendly witness)– one that tells the witness how to answer sometimes permitted a. “You found fingerprints on the weapon, didn’t you?” vs. “did you find fingerprints on the weapon? You can’t include the answer in your question b. Are allowed on Cross-Examination (first say okay and then analyze if it exceeds the scope) or when the witness you called is a hostile witness or with a witness you can’t otherwise testify without leading (children, motion making communication witnesses) or with respect to background info (preliminary matters that aren’t in dispute)

Hearsay Re-Read 405 to 407
  Both CA and Federal have a hearsay rule and pretty similar Hearsay is an out of court statement that is being offered in court for the truth of what is said (Hearsay is an out of court statement that is being offered for the truth of the matter asserted). Most often: A live witness in court testifying of a statement made out of court. Witness can also be talking about him or herself has said outside of the courtroom. Statements include both oral, written and asserted conduct. o Asserted Conduct – pointing, signs, gestures, etc. (black crepe) – look to the intent of the actor o NOT Statements by animals or inadament objects (bells, instrument)  Witness X in court is testifying that Y said out of court that the blue car ran the red light. Only statements that are being offered for the truth (doesn’t matter for when it doesn’t matter WHAT he said - If this were being offered to prove that Y can speak that doesn’t matter )

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Page 409 – 410 – Murder in the Ajax Building 1. Logically Relevant? Conditionally relevant upon #5. Scalpel’s evidence isn’t hearsay 2. Logically Relevant? Yes – this person was able to observe. Hearsay? The scream isn’t being offered as to the truth of the matter so no. Questions for cross examination – test her certainty as to his ID, push?, did he look concerned?, was Claire looking at the pigeon eggs? How long has it been since she had her eyes examined? How far after the scream did you see his face, what is your relationship to these people if at all? 3. Kojak is testifying as to what Agnes said – that David shoved Claire – and the P is offering it to prove – the truth as to what is asserted - that David shoved Claire. Barring any exception – we would have Agnes testify herself if you want to get this evidence in so we can observe her demeanor and cross examine her.

4. Witness is Belle testifying to what she told Kojak – that D shoved C. Still hearsay b/c she’s testifying to what a witness (herself) declared in an out of court statement. To cure this – just ask her to tell the court what she remembered/observed 5. The letter is an out of court statement (in C’s handwriting) that is being offered as to evidence of a motive – it is NOT being offered for it’s truth (that she believed that she was being forced into an abortion and that he is the father – furthermore #1 proves that she wasn’t even pregnant) this is just being proved as a motive – but doesn’t fit within the hearsay doctrine here Categories of out of court statements that aren’t hearsay (evidence NOT being offered for the truth of the matter asserted) 1. Offered as circumstantial evidence of declarent’s state of mind (think of it being as what they believe) a. Example: Witness testified that Mary said “I ran 5 miles today.” If we are trying to prove that Mary did or didn’t run that far than it is hearsay. If it is being offered to prove that Mary is crazy b/c she is a cripple – then it isn’t…it’s being offered to prove that she’s crazy. 2. Offered to show the effect on the listener a. Example: The D is on trial for the murder of a man and a few hours before the murder someone told the D that the victim was sleeping with his wife (doesn’t matter if true or false). Offered not for it’s truth (doesn’t matter if he was or not) – all that really matters is if the D believed it b. Example: You’ve been put on notice of something – the mechanic tells you that your brakes are bad. Doesn’t matter if they are or not – you were put on notice and you continue to operate the vehicle. 3. A verbal act / legally operative statement don’t fit within the hearsay rule a. Contract, assignments, donations, threats, defamatory statements b. You are in negotiations for a contract – it doesn’t matter if the words in the offer are the truth or not 4. A sequence of out of court statements – each statement has to fit into the hearsay category Multiple hearsay When a witness tells us what Tom said that Mary said she saw David push Clair. Each prong of the out of court statement has to fit within the non-hearsay rule or any exception or NONE of it comes in) Business Records Exceptions – Cameron v. Walton March Case – we will discuss this later An exception to the hearsay rule, which allows a business document to be admitted into evidence if a proper foundation is laid to show it is reliable.

Federal Rules which take the statements, which are offered to the truth, remove of the hearsay category  Federal Rule 801 d(2) – Admission by party-opponent: Statements of a party offered against that party at trial. The federal rules treat admissions as not hearsay. (CA does but they fit within the exceptions – so either way they get overruled) o The statement doesn’t have to be an admission necessarily o The statement doesn’t have to be damaging at the time it is made o Only admissible against the party who made the statement (you can’t offer your own out of court statements and claim that they are admissions/statements) o You don’t have to have any personal knowledge of the facts behind that statement  Ex: son gets in an accident and pop is called – pop says…oh that son of mine, he was probably speeding – still can be offered against him as the guardian o Can either be in an individual capacity or as a representative of an entity – can still be offered against you o Statement in which the party has adopted or manifested a belief in the truth of it or agreement or represented it as your own.  Ex: having a fire damage report prepared you and you send it to your insurance company o An admission by silence can be used against you as an adopted admission– in circumstances where a reasonable person would deny it if it was false.  Miranda warnings (always comes up when the D takes the stand): - Pre-Arrest (Jenkins) - Silence can be used against you - Post Arrest and Pre-Miranda - Silence can be used against you - Post- Arrest and Post-Miranda – Can’t be used against you - If they don’t give you Miranda then they interrogate you – thrown out o A statement made by an authorized party – your spokesperson’s statements can be used against you b/c he’s been authorized by you o Vicarious Admission - A statement made by an agent or employee concerning a matter within the scope of the agency or employment and the statement is made during employment. Think Vicarious Liability – but watch out for statements made after they’ve been fired b/c that no longer qualifies as a Vicarious Admission.  An out of court statement can establish the relationship – but it can’t be the only evidence – have to have something else in court  An employer’s statement can’t be used against an employee though  Attorney’s can be considered agents o A statement by a co-conspirator made during or in furtherance of the conspiracy. You have to prove that there is a conspiracy – but you don’t need a conviction – it is a preliminary fact that has to be established by a court – the standard is a preponderance of evidence (can’t be just a statement)

Examples on page 428

Evidence 2/12/08 Out of court statement can't be the only evidence of a conspiracy...it can only be used to assess whether there was a conspiracy Prior Statements of the Witness 1. Prior inconsistent statements under oath- admissible for substantive purposes 2. Prior consistent statements of the witness (not necessarily under oath)rebut a charge of recent fabrication 3. Prior statements of identification Prior inconsistent statements under oath Statements inconsistent not made under oath are always admissible for impeachment purposes BUT if you want it to apply for substantive purposes, then it must be under oath If it did come in for When you say "under oath", it does not mean it has to be subject to cross examination (E.G. depositions) If offering as substantive proof, you must confront the witness with the inconsistency and give him the opportunity to explain the inconsistency before calling a new witness Whitehurst v. Wright Whitehurst was gunned down by officers who mistook him for a robber A gun appears to be planted on the body of the victim, by the police The cop who shot him is denying that he shot the bullet Widow wants to call a witness friend of the cop who will say that the cop told him he shot the vic Court says no because she was trying to use the hearsay for impeachment when it was obvious that she was really trying to get the statements in for substantive purposes Prior consistent statements of the witness - Only come in after the witness has been attacked with an allegation of improper motive or recent fabrication - Does not require the statement be made under oath Tome v. US - Child abuse allegations are believed to be fabrications because they only occurred when the mother had custody - Prior consistent statements must be made before the motive for fabricating occurred - These statements occurred after the motive for fabrication, and therefore it does not rehabilitate the witness Prior statements of identification - Witness must be there to testify - Watch out for situation where there is a witness who testifies about somebody else's identification - These are removed from the definition of hearsay for fed - Under CA, they are exceptions

Exceptions to Hearsay 1. Declarent must be unavailable (can't procure this unavailability yourself) a. Dead; Declarent/witness has a privilege that allows him not to testify (spousal, 5th amendment); they refuse to testify even if they've been ordered to do so; if they lack memory (amnesia); a physical or mental incapacity; absent from the jurisdiction and there attendance by normal process isn't fruitful b. 3 Exceptions: Former testimony, declarations against interest, dying declarations 2. Declarent's unavailability or availability does not matter 3. Documentary exceptions Declarent’s Unavailability or Documentary Exceptions Availability Does Not Matter Note: if you have used a doc to refresh a W’s recollection the other party is allowed to introduce it Former Testimony that W has Excited Utterance – A Past Recollection Recorded – made (usually in this case, statement that is made in when a document that the W they are dead) response to something wrote doesn’t refresh the W’s startling and you don’t have to memory at trial. When the W actually witness something wrote something down when yourself the event was fresh in their mind and it was an accurate recollection of what occurred when it occurred. The document itself doesn’t come in but it is read into the record unless the other side wants to introduce them Statements or Declarations Present Sense Impression – A against Interest at the time that Statement describing or the statement was made and explaining an even while it is you have to have personal unfolding at that moment in knowledge and so contrary to time– while perceiving it your interest that no reasonable person would make it so that it would have to be CA – Contemporaneous true (different than Statement: statement by admissions). One limitation is declarant explaining what the that statements by a person Declarent is doing while he is that exposed himself to doing it criminal liability while at the same time exonerating a criminal defendant if there is corroboration that he committed the crime Declarent must be unavailable – admissible if they fall under these categories:

Dying Declarations Only admissible in homicide or civil cases. Operating under a belief under imminent death (doesn’t matter if he recovers or not). Statements made about what you believe is causing or concerning your death.

Present State of Mind – A statement of the declarent’s then existing state of being – tired, hungry, romantic, (physical, emotional, mental). By contrast – circumstantial state of mind is something that you have to infer (king of England). Also includes current intentions (Hillmon Doctrine) Statements for Diagnosis or Treatment – Past or present symptoms or the general character or cause of the condition. Fed Rules cover medical practioners even when hired for purposes of litigation (like a rape-check)

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Shepard Case: Shepard was married, but was in love with another woman. o Shepard's wife was poisoned. As she lay on her deathbed she told her nurse that she believed that the whisky she had been drinking was poisoned and said, "Dr. Shepard has poisoned me!" o Shepard was arrested in charged with murder. D argued suicide – lost o Fear of death isn’t enough – has to be an actual belief. Also, people don’t usually lie about who killed them when they are about to die.

Sometimes you can get evidence in under multiple hearsay exceptions Problem: dying declarations on pg 473: V’s statement is admissible b/c it qualifies as dying declaration. E’s statement doesn’t b/c it relates to the cause of why V’s death and not his own. 

Mutual Life v. Hillmon: established "the Hillmon Doctrine" which says that, the state of mind of the declarant can be used inferentially to prove other matters that are in issue.
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"When the performance of a particular act by an individual is an issue in a care, his intention to perform that act may be shown. From that intention, the fact finder may draw the inference that the person carried out his intention and performed the act." Basically, if a person says that they are going to do an act, then that statement is relevant evidence that can be used to help prove that they actually did the act. It isn't conclusive proof, but it can help.

Federal Rule 806 – regularly conducted business records can come into evidence. Have to made by a business (profit, hospital, schools, non-profit, etc) and the records are made by someone who is authorized and is done accurately. Fits within the scope – car rental companies writing an accident report won’t fly – their business isn’t accidents. Have to be made by someone with personal knowledge or they are receiving the info from someone who does (prof gives grades to registrar / dr. to nurse) . Police reports don’t usually fit. Have to be made at or near the time of the events. Need Notes from 2/21/08 – Catch-All Exception Circumstantial guarantees that make them comparable to other exceptions Page 516 problem – notes in book US v. Bailey – “Residuary Exception” 1. Offered for evidence of a material fact 2. Out of court statement has to be more probative than any other evidence that they have to ID Bailey a. In the ordinary case if the W is available and can testify then the out of court statement isn’t going to be more probative 3. Sufficient guarantees of trustworthiness (corroboration with other facts) 4. Advance notice has to be given before you rely on this exception (several days for D to respond to it was sufficient)    US v. West – former testimony under oath – the witness has to be on the stand. So the residual catch all is gov’s only option US v. Garner – W is unavailable Confrontation Clause: the 6th amendment guarantees the right to confront and cross examine a W. The SC has said that even those who don’t appear at trial can be witnesses against you and can be confronted. Crawford: not all out of court cases that fit w/in hearsay exceptions don’t fit within the confrontation clause. Have to be testimonial statements (not excited utterance types)

Pages 753 – 789 (February 26, 2008)   

Opinion Testimony
Lay Witnesses are supposed to testify just on facts – not infer or give opinions unless it is within their experience that a lay person would generally know Expert Witnesses are allowed to. Can’t come in and express opinions on a matter of law (that’s the judge’s job!) – rare only in situations like if the law is from another jur’x Federal Rule 701 – lay witnesses are allowed to if the testimony is helpful to the trier of fact and their opinion is based on their opinion is based on something that they actually perceived. Can’t be based on any scientific or expert type of matter. Subject matter is that within falls into what lay people would normally be aware of (speed, temperature, distance, height, weight, drunkenness)

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o Not opinions regarding stuff like counter-surveillance driving, drug dealing practices, opinions expressed on a matter of law Problem: page 758 – could you really see a baby, let alone her baby 300 yards away? How do we make sure that the expert is valid?

Expert Testimony - Rule 702- Experts can testify at trial if qualified through education, training, skill, or experience - Based on sufficient facts or data - Data that reasonable experts in the field would rely on - Doesn’t need to be admissible - Opinion is the product of reliable principles and methods - Followed the Frye test for admissibility- in order for an expert to give an opinion, the method or opinion had to be generally accepted by the scientific community - Daubert case - Most states still use the Frye case - Rule 702- if scientific, complicated, etc information would be helpful to the trier of fact, and the expert is qualified, then the testimony can be used Frye v. US - Lie detector test - The test is not yet widely accepted enough to be admissible - Would have to show that the use of the lie detector test is generally accepted by the scientific community - Expert qualifications will be questioned outside of the presence of the jury US v. Johnson - Expert witness testimony as to where the marijuana originated - His expertise was based on vast experience in use - Defense expert testified that you can’t distinguish origin that way - The court determined that expert testimony can be based on experience alone - Rule 703- expert may base his or her conclusions on data that the expert actually perceived or made known to the expert - This means that the expert can answer hypotheticals - Can be presented at the hearing or prior to the hearing - The material the expert is relying on does not have to admissible - Hearsay is acceptable - Rule 705- experts are subject to cross examination regarding underlying facts and data used to generate the opinion - Rule 704- an expert can give an opinion on an ultimate issue, except they can’t give an opinion on mental state, constituting an element of the crime or defense - An expert can’t give an opinion as to mens rea - That is for the jury to determine - Experts can state their opinions in the courtroom without revealing all of the basis for their opinions - Can be compelled on cross to reveal basis

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Learned treatises are admissible

State v. Saldana - Expert testified to rape of victim - Claimed that she exhibited typical behavior of rape victims - Remember that a D has a 6th amend right to put on a defense, so they may have more leeway with admitting this sort of expert testimony State v. Chapple - Convicted of murder, transporting marijuana, and conspiracy to unlawfully transport weed - Drug deal involving 8 people - 3 people shot and killed - Chapple wants to offer expert testimony as to memory retention and transference - Delay would cause problems and trauma - There was also concern that because they saw chapple’s photo in an array previously they were transferring the image when they saw him again - Most jurors are aware of flaws in memory and problems with identification - This testimony was extremely detailed however, and the average lay juror would not have access to this sort of information State v. Williams - Calls and tells the police dispatcher that there is going to be a bomb explosion at the airport - He later comes to the police station and reads a transcript of the call which was also recorded - A speech spectrograph was used to compare the 911 recording to the transcript reading recording - The court said the expert testimony of the speech spectrograph data was admissible - The testimony was helpful, the expert was qualified - Frye has a degree of reliability that Daubert doesn’t - Only read to 873 next week

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Frye Test doesn’t allow in new theories or not generally excepted theories – but everything has to start somewhere right? Most states still adhere to the Frye Test However….. DAUBERT: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. The text of Rule 702 did not make admissibility of expert testimony depend on general acceptance, and there was no evidence that Congress intended to incorporate a general acceptance standard into Rule 702. o Limitations:

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Has to be scientific evidence. Expert has to be relying on the principles and methodology of science  Must be something that the trier of fact is deciding  Factors to look at: Independent research from the litigation, publication, peer review, rate of error, if theory is capable of being falsifiable Rule 706 allows the court to bring in their own experts Kumho Tire case: The Daubert analysis needs to be applied whether the expert is testifying on scientific as well as technical issues Death Penalty Note for the BAR: actually killed, intended to killed, participated significantly in a felony where a death occurred. Can’t make it a mandatory law b/c it doesn’t allow for the opportunity to allow in mitigating circumstances. Can’t be imposed on retarded, juveniles when crime was committed, or when the person at the time of the DP isn’t cognizant (we want them to be aware)

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Evidence of Character
Basic Fed. Evidence Rule – 404 CA 1101 – pretty similar except a little bit more limited re: Character of the victim and sexual assault cases Even if you get over the Character evidence issue – still subject to rule 403 – child abuse case (Conlogue) where Sustentative – Character Evidence that would tend to show that you did or didn’t do it. 1. Civil a. Basic Rule: Character is not admissible (your rep, what you’ve done on another occasion). What matters is what you did on this occasion. i. Exceptions: 1. When character is itself an issue a. Example: Britney’s child custody dispute – her fitness as a parent is an issue – her drug use, crazy acts. Child Custody big CLUE 2. Negligent Entrustment (lent your car to your drunk uncle) 3. Defamation (should be allowed to put on evidence of why you said what you did – truth is a defense in defamation) 4. specific rules for sexual assault ii. Limited to: Specific Acts, Opinion, Reputation 2. Criminal a. Basic Rule: Character is not admissible to show propensity. You aren’t allowed to put on evidence of D’s other wrongful/criminal conduct to show that they are a bad person and therefore more likely to have done what you’re being accused of i. Exceptions: 1. D can open the door – D can put on evidence that you are a good person – has to be pertinent to the charge (relevant)

Opinion testimony Reputation testimony Can’t give specific acts Prosecution can respond Opinion – can bring own witnesses (no specific acts) Reputation – can bring own witnesses (no specific acts) P can Cross-examine D’s witnesses re: specific acts that relate to the character trait at issue to see if they really know you. 2. Character is admissible if it is independently relevant (doesn’t show propensity) a. Modus Operendi “MIMIC” - Motive, intent, (absence of) mistake, identity, common plane or scheme. Knowledge, Notice. Has to be same prior bad act more or less i. Ex: on trial for murder. Can’t bring in drug dealing rep to show general propensity to commit crimes but it could establish your motive if that’s the situation. ii. Ex: Rat poisoned other people and on trial for wife’s murder (rat poison) so can come into to show it wasn’t a mistake 3. Character of the Victim a. If the Victim is claiming self-defense or was the first aggressor – D can put on character evidence i. Opinion ii. Reputation 4. Character in sexual assault and child molestation cases a. D’s Character – prior sexual misconduct by the D is admissible to show propensity b. Complainant’s Character – sexual history is inadmissible  Exceptions: i. prior consensual sexual conduct with the D, ii. other sexual activity tends helps explain evidence found on the scene, iii. necessary to ensure a fair trial for the D

a. b. c.  d. e. f.

Impeachment 1. Convictions a. Crimes involving dishonesty (misdemeanor or felony) i. Basic Rule: Admissible but can’t be older then 10 years ago – 10 year rule ii. No 403 balancing (court has no discretion to exclude) b. Felonies other than those involving dishonesty i. Basic Rule: Admissible but can’t be older then 10 years ago – 10 year rule

ii. IS subject to 403 balancing (court has no discretion to exclude) EXCEPT to criminal D’s convictions and that balancing is different than 403

2. Other Methods to Impeach a. Opinion b. Reputation (for non-truthfulness) c. Evidence of Bias d. Evidence of Prejudice e. Prior perception / memory f. Prior inconsistent statements (under oath they are substantively and not under oath just for impeachment purposes) g. Prior Bad acts involving dishonesty but no extrinsic evidence can come in

Cases and Problems:  Zackowitz Case: D killed someone. The issue was whether D’s possession of guns and a teargas gun (which were not the murder weapons) should be admissible evidence to show a murderous disposition. Excluded b/c it would tend to be too prejudicial and excess weight.  D is charged with breaking into a safe / stealing: He had broken in a month before. Under MIMIC allowed b/c it isn’t showing he’s a bad guy – it’s showing he had knowledge of how / what was in it  RES GESTAE: UNWRITTEN RULE – you are allowed to enter evidence that paints the full picture. Letting in other evidence in that is part of the crime. Problem of unlawful gun possession – the way they caught him was b/c of his illegal prescription/chase from druggist.  Money or Death - If the perpetrator’s identity is in doubt, proof that D has committed prior crimes that are so similar in method that they constitute his "signature," and thus identify him as the perpetrator of the crime charged, may be proved. This is often described as proof of "modus operandi" or "m.o.".  Trenkler: 2 bombing incidences both with very similar uniquely made bombs, which point to the D’s signature bomb. The harm to the D didn’t outweigh the probative value.  4 wives(illegally married – life insurance) in a row of this guy were found dead in their baths – permissible when independently relevant to show a common plan / scheme. The more unique the less likely that you need many occurrences. The more commonplace activity the more instances you’ll need to show that it’s not a coincidence.  Dead guy found in a guy’s house and had no idea – not charged. Happened again 6 years later and the first dead guy’s story not allowed in. Not enough evidence in the first one. If you were tried and acquitted of the other act that is being offered as evidence – it can still come in strangely. The other act evidence doesn’t have to be established beyond a reasonable doubt or clear and convincing evidence. Can have all this in one fact pattern: 1. Logically relevant 

2. Character issue 3. 403 balance 4. Hearsay

How is Character different than Habit? Habit is viewed as an almost reflexive response to a chronic stimuli. So recurrent and so specific that we will allow it in. It is admissible. Dentist Case: It was his custom/habit to advise patients of potential risks – routinely and uniformly gets him over the character hurdle (vs. if his nurse testified that he was a cautious dr).

IMPEACHEMENT (extended from above) Rule 608 and 609 FIRST STEP in Analysis: Rule that Prohibits Bolstering – not allowed to put on evidence of my witness’ credibility unless that witness’ credibility is attacked. A witness’ truthfulness is assumed. Can’t impeach them until the testify By Opinion or Reputation – 608  Only was it relates to the witness’ trustworthiness ONLY  Prior Bad Acts Involving Dishonesty – only upon cross examination. No extrinsic evidence can be offered (can only be an issue already at hand in initial examination) because we don’t want this to be a trial about the witnesses Convictions – 609 Not admissible if you’ve been pardoned, overturned, annulled Not admissible if you were a juvenile Admissible if in appeal process Crimes involving Dishonesty / False Statement (doesn’t include ordinary petty theft).  Can be a misdemeanor or a felony.  Has to be within the past 10 years o (Exception: If relative enough with advance notice older then ten years can come in if the probative value substantially outweighs undue prejudice)  Can’t be too remote  Not subject to 403 balancing Felonies that don’t involve a false statement/dishonesty  10-year rule (starts at the date of the conviction or the date of release, whichever is later) o (Exception: If relative enough and with advance notice older then ten years can come in if the probative value substantially outweighs undue prejudice)  403 balancing (weight is more towards inclusion )

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o Except: if the witness is the D in a criminal case the court must find the conviction is substantially more probative than prejudicial (presumption is that the conviction doesn’t come in and P has to prove) Two ways to prove conviction: o Record of conviction o Examination of witness

Prior Convictions of criminal D with respect to felonies Not 403 Balancing Test – Put this test is tipped in favor for exclusion. : **Concerning the D being a witness with convictions- when conviction is very close to the crime that he is on the stand for – will be impeached because the jury will view it substantive and it’d be prejudicial. Standard: to be substantially more probative than prejudicial. The more similar the prior is to the crime being charged with the more likely it will be excluded. Policy reasons: we don’t want to detour criminal defendant’s from being impeached when we want them to take the stand. Only applies to them. Page 390 examples Other Misc Ways to Impeach (testimony is unworthy of disbelief) Extrinsic evidence can come in to offer up proof  Prior Inconsistent Statement  Bias  Prejudice  Poor Perception / Memory Impeachment by Direct Contradiction If we have a witness #1 that testifies that a blue car ran the red light and another witness #2 who says that a green car ran the red light. You can have these two inconsistent versions – not calling witness #2 a liar so not allowed to bring in a witness for their truth and veracity / reputation of. This isn’t general trustworthiness – this is just contradictory evidence Using Extrinsic Evidence of Character to Impeach Credibility Collateral Matter: Information not pertinent to the issue. “I saw him run the red light after I left my torts exam.” When it really was contracts exam. Not going to allow a witness to come testify that it was not your torts exam in order to impeach you for not being truthful. Comes up in your direct testimony Impeachment with Bias You can always ask questions that would show some sort of bias of the witness to impeach. If the witness denies it – extrinsic evidence (another witness, etc.) can come in to show the bias Sexual Assault Complainant Rules:  Rape Shield Laws: protecting the complainant from having her sexual past or current activities to be thrown in the court

More now of a trend of letting in the sexual past of the defendant Federal Rules: evidence of the victim’s pre-disposition or sexual conduct is inadmissible. Exceptions and have to give advance notice: o We can put on put on evidence of specific incidences of the complainant’s sexual history to show it’s someone else’s semen, physical injury or other physical evidence (not to show consent!! Like the party van case) o Evidence of specific incidences of sexual behavior between the victim and the accused offered by the accused/prosecution to show consent or that he believed it to be o Evidence which has to be admitted in order to safeguard the D’s constitutional right In Civil Cases: Presumption is that the sexual history is out unless the probative value is substantially outweighs the prejudicial value. Reputation is not admissible unless you put it at issue and then the D gets to respond. Defendant Rules – have to give advance notice: 1. RULE 413 - Allow into evidence D’s prior sexual offenses as long as it is relevant to show propensity (this is totally opposite of normal character evidence) a. It is to be balanced by 403 balancing (recent, timeframe, severity, intervening things, etc) 2. Same but deals with child molestation a. Neither have to be convictions nor even criminal acts legally In a Civil Case: Prior sexual offenses are admissible Cases: 1. Girl cheats on bf and 9 months later cries rape. At trial, court allows in her prior sexual relationship with her bf to establish her consent, bias, and motive to falsify testimony. 2. Williams and Kennedy cases – prior incidences with other women which showed common plan or scheme (MIMIC) were allowed in as character evidence – probative value far outweighs the prejudice

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Authentication
 The process by which we establish that something that we are offering into evidence is what we are claiming it to be – a primary thing before the evidence is offered up. Authentication: have to have evidence sufficient to support a finding that the item we are claiming is it Keep in mind the hearsay is going to be a hurdle sometimes (admissions, business records, etc) Rule 901 – sets forth a variety of ways in which you can authenticate something. Most common way of authenticating is live witness with knowledge. Examples, not exhaustive: o Non-expert opinion from someone who is familiar with one’s handwriting (signature) prior to litigation,

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o Comparison by trier of fact (jury/judge) or expert witness (handwriting comparisons),  The Reply Letter Doctrine o Distinctive characteristics and the like (certain things that are so unique that they are essentially a one of a kind item), o Voice ID – someone who knows your voice o Phone conversations using # to ID or content of conversation were such that o Public records or reports when filed and recorded where they are supposed to be o Ancient documents (20 years or more) are in such condition as to create no suspicion that they’re not authenticate  Rule 902 – lists documents and things that are considered self-authenticated and we don’t have to go through the process of authenticating. Examples not exhaustive: o Domestic public documents under seal o Domestic public documents Not under seal if typically the person charge of the file will sign some avadavat that certifies under seal that it is authenticate o Certified copy of public records (records of some gov. agency)  You can certify the absence of a record (just like in hearsay) o Certain official publications, books, etc. issued by a public authority o Newspapers, periodicals, commercial paper (cancelled checks, IM chats)

Cases:  Check case with avadavat on check progress sheet from the VA. D didn’t get to confront this person who wrote the avadavat which went beyond just saying what it was (he tried to explain the significance of it) – court said it was admissible hearsay but both were harmless beyond a reasonable doubt so it was okay. The progress log would have been a certified public record.  If you seize something (bat, weed) it has to be tagged immediately at seizure and put it in a safe storage locker so that no one messes with it and then it can be authenticated. However – the coke suitcase not tagged at seizure was so unique that it was okay  Photographs: You don’t have to have the photographer authenticate the photo, you just need someone who can verify that the photo accurately depicts the subjects illustrated. Some witness has to give some indication of when, where, and the subject is what it is  Porn case: she has to authenticate the video but she is an accomplice so they need corroboration of the film – but she’s the one to authenticate is so one big circular problem Best Evidence Rule Not the most persuasive. It is very limited. It provides that any time you are trying to prove the contents of writing, recordings and photos you have to introduce the original unless there is a satisfactory explanation as to why the original isn’t available. You shouldn’t be calling on someone who wrote it or saw the contract – produce it! Doesn’t apply to live witnesses or objects like a gun. Federal Rule 1002 Federal Rule 1003 – duplicates are admissible on the same basis as the original unless there is some question as to the authenticity.

1004 – original doesn’t have to be produced when it’s been lost, collateral, possession of opponent, destroyed. Privileges    Reporter privilege: Doesn’t really exist but you can get a subpoena. Clergy – petentant privilege stronger than doctor-patient Attorney – client is highest: VERY BROAD (any info the attorney has gathered). It is an evidentiary privilege that precludes disclosure. Even if I decline to represent someone, the privilege still applies. Also includes the attorney’s representatives (assistants, etc.). Only applies to confidential info where others can’t overhear it (like if you’re at a party and people overhear someone tell you a story). In general, the presence of eavesdroppers doesn’t make the privilege non-applicable. Client is the holder of the privilege and can waive it. If client isn’t present, the attorney has a duty to uphold it. Doesn’t apply when the attorney is representing 2 co-parties who are now in dispute with one another. Doesn’t apply in most jur’x to the Crime/Fraud Exception: seek assistance to commit a crime or perpetrate a fraud Doesn’t apply when there’s a dispute between attorney and client – lost to the extent that it’s necessary for the attorney to protect himself against malpractice, crime, or to collect a fee (like need to show you did do the work) Doesn’t apply to pre-existing documents!!! Unless you make a communication regarding them – but not simply because you turn docs over Doesn’t protect info– it protects your communication (if underlying facts that other sources know aren’t – like a video of you shooting someone) Doesn’t apply to your conversations with a judge b/c a judge isn’t representing you in the matter. Nor if you are seeking assistance that isn’t LEGAL from a lawyer (like a family friend or one who is wearing a different hat like a realtor) If you go to some independent person like an accountant for something for your lawyer – it isn’t protect EXCEPT if your attorney brings in someone to sort info out (like an accountant) then any docs that are prepared by the 3rd party at the direction of the attorney are protected

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Work Product Priviledge isn’t abosolute – if the person seeking the info shows a substantial need and an inability to get it an any other way. But the thoughts and thinking into it of the attorney are priviledged. The thought behind this is that one side shouldn’t get to profit from your attorney’s work Maritial Communication: protected communication made only while married. Still protected if they divorce. Matters only if married at the time of the communication. Neither party can waive the other’s privildege. Only protects communication, not any tangible items,

Spousal incapacity – applies only in criminal cases. A spouse doesn’t have to testify against their spouse in a criminal case. for many years the priviledge belonged to the D spouse )(the D culd prevent his spouse from testifying against him).. now – the witness spouse can testify is she chooses to, but doesn’t have to. Doesn’t apply to spousal communication. If you chose to testify you still can’t tell of any communications while married


								
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