Evidence REVIEW

Testimonial or Physical Evidence: 1. Relevancy: threshold inquiry a. This is relevant because… b. May be relevant for more than 1 purpose [discuss relevant purpose and use = one purpose inadmissible and other purpose is admissible] 2. If Witness is testifying: a. Whether basing on personal knowledge b. Triggers whether discussing hearsay 3. Physical Evidence/Document: authentication Essay II Problem: discuss ALL issues that exist [not just objection] 1. Character in issue = negligent entrustment case [M’s character as a driver] a. Relevance—each of these pieces of evidence bears upon M’s character as a driver = which is a matter in dispute b. Personal Knowledge— i. Likely that L will have personal knowledge as to whether M had to repeat driver’s ed. TwiceBasis of Opinion ii. Does NOT have personal knowledge with S’s statementHearsay issue c. Hearsay—inadmissible [S’s statement] d. Character Evidence: i. M repeated driver’s ed. = specific act…permissible under 405 when character is in issue [can offer evidence as to character that includes specific acts, as well as reputation and opinion] ii. L’s opinion = proper in form…pertinent to M’s character as a driver—opinion as to whether too careless to drive, therefore pertinent iii. Would NOT be permissible as propensity evidence at all because CIVIL case [NOT allowed]bears only on negligent entrustment part of case e. SHOULD split into 2 cases: i. Negligence = relevantbut can NOT use because propensity character evidence [inadmissible] ii. Negligent Entrustment = see above f. Expert Witness = not really worth the time… 2. Relevance—bears upon relevant fault in accident [relevant to show who may be more likely to have contributed to accident] a. Authentication: probably NOT properly authenticated, would not be admissible unless properly authenticated i. Public records are self-authenticating [certified] ii. Xeroxed copies are NOTwould NOT be properly authenticated [if have authenticating witness to say this is document, but it is NOT here] b. Hearsay: offered for TOMA [going at particular speeds] i. Public Records Exception—assuming properly authenticated = admissible ii. Problem with ‘UNLESS not trustworthy’ c. Expert Testimony: i. Issue as to reliability of expert opinion contained in public record [only worked 2 weeks, 3 rd accident report prepared, conclusion ONLY based on skid marks = would likely need other factors] ii. Opinion is probably NOT reliable, likely that would not fit within ‘unless not trustworthy’ exception 3. Relevance—relevant because if talking on cell phone, it looks like P could have caused the accident, NOT the a. Personal Knowledge—witness heard what person said, but witness does NOT have personal knowledge with content of person’s statement = HEARSAY b. Hearsay: i. Excited Utterance—don’t know whether declarant had personal knowledge about what they saw [personal knowledge is required]do NOT know who bystander is and why bystander made statement made [reporting or in good position to observe] 1. Probably too unreliable to admit [need foundation to show personal knowledge] 2. Foundational issues will keep it out ii. Present Sense Impression—news reel type descriptionbut still same problem with personal knowledge 4. Relevance—does make it look like he was on cell phone around time of accident, if he was on cell phone makes it looks like he was more likely to cause accident a. Authentication—properly certified copy [self-authenticating] b. Hearsay—Business Records Exception 5. a. Relevance—2 purposes i. Impeachment: Tends to impeach L, relevant as impeachment of one of P’s witnesses ii. Payment to witness in exchange = evidence of P’s consciousness of weakness of own case…from that can infer that if didn’t feel good about his case, then case is less strong b. Personal Knowledge— i. H testifying as to what L told him ii. Doesn’t know what P actually said to L iii. Double Hearsay—P to L, L said to H and H repeats in court c. Hearsay: i. P said to L: 1. Party admissionstatement by party offered against opponent 2. Verbal ActNOT even hearsay, NOT offering for truth of what was said, but that the offer was made ii. L said to H: 1. Statement against interestbut because L testified, he is NOT unavailable!! 2. Impeaching by circumstantial evidence of L’s state of mind = probably NOT going to work d. Privilege: i. P could make H assert the privilege ii. Confidentiality between lawyer and witness when conversation taking place on behalf of client relationship = privilege exists iii. Future Crime/Future Fraud = could be brought…but still have hearsay problem [testimony has NOT occurred yet, which is when fraud would take place] ***Do NOT argue back/forth*** -Analysis = if applying rule to facts…will be able to see that -Do NOT care is IRAC -Conclusion = wants to see!! -Sign-Posting = Relevancy—discuss it; Authenticity—discuss; Personal Knowledge—discuss; Hearsay—discuss -Amendments NOT on teststudying law as it is now!!