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A Great Evidence Outline for Law School

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Lecture Topic: During the lecture, take notes here. o EVIDENCE o Judicial Notice Judge can accept a fact as true even though no evidence to prove it has been  offered.  Way to substitute for evidence; nice device if you are caught without proof If the other side objects to judicial notice, most litigators view judicial notice  with caution:  If on appeal, notice is found to have been wrongly taken, a reversal can occur On the other hand:   In a civil case a proper judicial notice is binding on the jury as to the facts noticed  In a criminal case the jury is instructed that it may conclude the noticed facts Innocent until proven guilty  Safest Tactic   Prove up the facts, if you can AND ask for judicial notice Adjudicative Facts (Rule 201)   The facts which relate to the particular event under litigation The "who, what, why, when and where" of a particular lawsuit   Fact will only fall under either of these if it is virtually indisputable  Two types of adjudicative facts Two types of adjudicative facts which may be judicially noticed  Generally known - facts that are just known  Mission Street in San Francisco is a business  district If judge knows a fact to be so, this does not  entitle him to take judicial notice if it is not common knowledge Capable of immediate and accurate verification  History, geography, scientific principles   Jury's right to disregard Civil case - Judicial notice is normally conclusive on the issue.  The jury must treat the fact at being so Criminal - Judicial notice is not conclusive on the jury  If prosecution has failed at trial to ask for judicial notice  of a fact, the appeals court may not take notice of that fact Evaluative Facts   Facts so basic that they inform how we think about the world or about particular evidence Someone testifies that it's raining, no one need say that rain  makes roads slippery or hampers visibility Legislative Facts   A fact that does not pertain to the particular parties, but is more general

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Standard - Even if a fact is indisputable, most jurisdictions allow the judge to take notice of a legislative fact so long as the judge believes it to be true Example - Fetus does not generally become viable until 28  weeks after conception  Binding on the jury Notice of Law   Judges may take judicial notice of some types of law. When taken, parties do not need to plead the provisions of the  law, and need not make a showing that the law is such-and-such Burdens of Proof and Presumptions: Civil Cases Two types of burdens   Production and Persuasion Burden of Production  If P bears the burden of production with respect to an  issue, P has the obligation to come forward with some evidence that the issue exists. Also called the burden of "going forward" If a party does not satisfy this burden of production, the  court will decide the issue against him as a matter of law and will not permit the jury to decide it Satisfying the burden of production  Party bearing the production burden must  come forward with enough evidence so that a reasonable jury could conclude, by a preponderance of the evidence, that the fact exists Burden of Persuasion  If P has the burden of persuasion on issue A, this means  that if at the close of the evidence the jury cannot decide whether A has been established with the relevant level of certainty, the jury must find against P on issue A. If neither P nor D have persuaded the jury about whether A exists, to say that P bears the burden of persuasion means that he is the one who will lose when the jury decides on the issue Satisfying the burden of persuasion  The burden of persuasion must be satisfied by a  showing that A exists "by a preponderance of the evidence." That is, the party bearing the burden must show that the existence of A is "more probable than not." Party must come up with some  evidence that will lead the jury to have an actual belief One shifts, the other does not  Burden of production can and often does switch during  a trial. The burden of persuasion always remains on the party on whom it first rests.  Allocating Burdens in Civil Cases In most civil cases, both the burden of production and  persuasion fall on the plaintiff  Prima facie case

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Collection of issues on which a civil plaintiff has the burden of production Establish a prima facie case if P has produced enough  evidence of D's negligence, P's own harm, and a causal link between the two to permit the case to go to the jury Presumptions  Presumption refers to a relationship between a "basic" fact and a "presumed" fact Fact P can be presumed from fact B, once B is established, P is  established or at least rendered more likely  Presumptions have one of two types of effects Bursting bubble effect or Morgan Effect  Bursting Bubble Effect (majority view)  Once opponent discharges his production  burden by coming up with some evidence that the presumed fact does not exist, the presumption disappears from the case and the jury decides the issue as if the presumption had never existed Federal Rules of Evidence 301 adopts this view  Morgan view  Presumption should not only shift the burden of  production, but also the burden of persuasion to the presumption's opponent Burdens of Proof and Presumptions: Criminal Cases In criminal cases, the Due Process Clause of the United States Constitution places limits on the extent to which the burdens of proof may be placed on the defendant:  State is normally more inclined to allocate burdens as to an "element" of the crime as to an "affirmative defense." Allocation  State is constitutionally required to bear both the burdens of production and persuasion with respect to all elements of the crime  Defendant though may be required to bear both burdens with regard to affirmative defenses  If insanity, self-defense, and extreme emotional disturbance is used, the D bears both burdens Burden of Production  Prosecution, to satisfy its burden of production on all elements of the case, must come forward with enough evidence on each element that a reasonable jury could find that the element was proved beyond a reasonable doubt Presumption  Permissive presumptions Permissive presumption  Judge merely instructs that the jury that it "may" infer  the presumed fact if it finds the basic fact will almost always be constitutional so long as the fact finder rationally have inferred the presumed fact from the basic fact, the presumption will be upheld

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Mandatory presumption - presumption is subjected to much more stringent constitutional scrutiny Shift of persuasion burden - If the presumption shifts  the burden of persuasion to D, and the presumed fact is an element of the crime, the presumption will normally be unconstitutional . Such a presumption runs afoul of the rule that the prosecution must prove each element of the crime beyond a reasonable doubt  Choice of law In federal diversity cases, the court must apply the  presumptions law of the state whose substantive law applies Best Evidence Rule Best Evidence Rule provides "in proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent Three main elements of best evidence rule  Original document Original document must be produced rather than using a copy   Prove terms Rule applies only where what is to be proved is the terms of a  writing (modern approach, need the recording of an audio tape conversation)  Excuse Rule doesn't apply if the original is unavailable (destroyed, in  third party's possession, can't be conveniently obtained) Federal Rule 1002  To prove the content of a writing, recording or photograph, the original writing, recording, or photograph is required" Broadened coverage - doesn't include just writings, but also  recordings/photographs Duplicates - Federal rules allow duplicates unless opponent  raised a genuine question about authenticity FRE 1003  What is a writing or other recorded communication?  United States v. Duffy Facts: Duffy transported stolen vehicles cross country. Found  guilty, contests that certain evidence should not be admitted (a t-shirt stating D.U.F). Lower court allows the shirt and FBI can testify on the contents of the shirt. Issue: Is the shirt stating D.U.F admissible without producing it  or does it fall under the "Best Evidence Rule" which means the original must be produced? Holding: Does not have to be produced. Court wants to follow  the Best Evidence Rule for precision, the possibility of a substantial hazard of inaccuracy, or worries over giving testimony from memory of a writing. Here though, the shirt was collateral evidence (serving to support) and wasn't a major part of the case. The shirt also said "D.U.F" and nothing more in-depth.

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Depending on the surrounding circumstances (how important its precise, rather than approximate, content is to the litigation) will show if the writing is under the best evidence rule  Photographic evidence Photographs or X-rays will be covered by the rule  To prove someone has been injured and the X-ray  shows the injury, the X-rays themselves must be used if available rather than a radiologist's testimony about what the X-rays show Sound recording  Wants to prove a sound recording, must do so by  presenting the actual recording  Proving the contents of writing If all that is proved is that a writing exists, was executed, or was  delivered, the best evidence rule does not apply Incidental record  The fact that there happens to be a writing  memorializing a transaction does not mean the transaction can only be proved by the introduction of the writing. Persons testimony can generally be proved by  an oral account of a witness who heard the testimony, even if a transcript exists Photograph, X-ray, audio recording, etc. about  an event, live testimony will generally be allowable instead of introducing the photograph, etc.  Collateral writings Document which has only a tangential connection to the  litigation need not be produced, even though its contents are being proved  Reproductions Common law - no reproduction can be used for Best Evidence  Rule Modern Statutes - most states allow reproductions to replace  originals Federal - Duplicates are admissible unless the opponent raises a  "genuine question as to the authenticity of the original"  Excuses for non-production Loss or destruction, inconvenience, possession by third person,  original in opponent's possession  Summaries If originals are so voluminous that they cannot conveniently be  introduced into evidence and examined in court, most courts permit a summary to be introduced instead (FRE 1006) Summary usually sponsored by a witness (normally an  expert) that reviewed the underlying writings Originals have to be made available  Authentication Types of evidence in court   Real evidence - Evidence in a tangible form that played some role in the matter that gave rise to the litigation

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Knife used in a fatal stabbing Demonstrative evidence - Tangible evidence that merely illustrates a matter of importance in the litigation Maps, diagrams, models and other materials created just for the  litigation. If the prosecution cannot find the exact knife used in  the crime, can get a knife believe to be similar Definition of Authentication  The evidence must be shown to be genuine. Object must be established to be what its proponent claims it to be. Real evidence - Must show that this is the object used in the  underlying event Demonstrative - must show the object fairly represents or  illustrates what its claimed to represent or illustrate Methods of authentication  Real evidence Readily or uniquely identifiable - "I found the knife and marked  it with my initials. The knife you have shown me has my initials marked, so it must be the knife found at the scene of the crime."  Chain of custody Must show everyone who handled the evidence   Demonstrative Must merely show the object fairly represents some aspect of  the case Federal Rule 901(a) - Must come up with evidence "sufficient to support a finding that the matter in question is what its proponent claims."  901(b) gives illustrations of proper authentication Authentication of writings and recordings  Normally, authentication of a writing consists of showing who the author is  No presumption of authenticity. Proponent bears the burden of making an affirmative showing that the writing/communication appears to be what it is  Ability to identify a signature belonging to a particular person  Phone calls, parties must authenticate the conversation by establishing who is on the other end Numbers of ways. Show the number dialed, caller id, recording  More difficult for incoming calls. Self-authentication by  the caller is not enough.  Ancient documents - FRE 908(b)(8) If it at least 20 years old, unsuspicious in appearance and has been found in a place of custody natural for such a document, it is automatically authenticated Self-authentication  Some things are so likely to be what they say, that no testimony needs to be used  FRE 902 Public documents under seal/not under seal  Government publications  Newspapers and periodicals 
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Examples Documents with private signatures, but acknowledges before a notary. Business records with declaration

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Relevance Rule 402 - Only relevant evidence may be admitted Rule 401 - Evidence is "relevant" if it has "any tendency to make the existence of *a material+ fact…more probable or less probable than it would be without the evidence  Doesn't have to make the material fact more probably than not, must merely increase the probability that the material fact is so Rule 403 - But relevance may be excluded if its probative value is substantially outweighed by the danger of the following  Unfair prejudice  Confusion of the issues  Misleading of the jury  Considerations of undue delay, waste of time, or needless presentation of cumulative evidence Steps in determining relevance, etc.  Relevant - Make some more likely or not Yes or no  Determined by the judge   Probative Value - Weight of establishing that fact/evidence Question of degree  Determined by jury in weighing the evidence   Sufficient Determined by judge (if deciding directed verdict motion)  Determined by jury when deciding whether or not a fact is true  For the most part, pretty much anything is relevant. Very difficult not to permit something from going in. Hearsay A statement or assertive conduct which was made or occurred out of court and is offered in court to prove the truth of the matter asserted  Two major parts: (1) out of court statement and (2) offered for the truth of the matter asserted Hearsay statements are less reliable because:  Absence of cross-examination of comments  Person speaking is not facing the trier of fact  Absence of oath - No legal obligation to speak the truth  Really, this all boils down to lack of cross examination Four dangers of out of court statements  Ambiguity, insincerity, incorrect memory and inaccurate perception First hearsay "Trick"  If we are only trying to prove that the statement was made, and we are NOT trying to prove the truth of the contents of the statement, the statement is NOT HEARSAY. (NOT offered "for the truth of the matter asserted.") Second hearsay "Trick"

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If there is no express or implied statement of fact in the declarants speech, the statement CANNOT be hearsay - there is no possible "truth of the matter asserted" because there is no fact being asserted Examples - Orders, questions, threats, exclamations, statements  of consent or permission But beware of IMPLIED statements of fact within the speech. Look at what the speaker intends to convey. "I'll kill you for sleeping with my wife!" - This is hearsay because  there is an implied statement of fact "Did you know that Fred dropped out of school?" - This is  hearsay because there is an implied statement of fact Secrets of the Hearsay Rule If you are not concerned about the SINCERITY of the declarant, the statement is almost certainly not hearsay Non assertive conduct  Legally operative language  Statements which prove declarant's knowledge, insanity, ability  to speak, etc. If you care about the EFFECT the statement had on others, the statement is almost certainly not hearsay. Statements which prove listener had notice  Statements which caused the listener to take a certain action  Threats to the listener to prove listener was fearful  Relevance has NOTHING to do with the Hearsay Rule. The Rule is about RELIABILITY If an out-of-court statement is hearsay when offered for one purpose, but not if offered for another, it is ADMISSIBLE with a limiting instruction Statements to prove defendant had knowledge of a negligent  condition Warning statements to prove plaintiff had knowledge of a  dangerous situation UNLESS hearsay relevance is SO unfairly prejudicial (and the  non-hearsay relevance is so minimal), that the judge determines that a limiting instruction is not sufficient and applies to Rule 403 to bar the evidence. Common themes Showing the effect on someone - not hearsay Impeachment - not hearsay Statements creating a gift - traditionally have been not hearsay Conduct that is assertive to an issue is hearsay Direct assertion of a state of mind - not hearsay? Verbal acts - what was said and those statements constitute the commission of the offense charged and have independent legal significance regardless of their credibility Special Issues "Out of court" statement Any statement except one made "by a witness during the trial  while testifying before the trier of fact."

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Any oral or written statement by someone other than the at-trial witness Statement wasn't made before the trier of fact.  Deposition, at an earlier trial, or even in the judge's chambers "Truth of the matter asserted" Statements which do not go toward the truth of the matter asserted and are admissible in court Verbal act - Operative fact that gives rise to legal  consequences Legally operative language is language that  itself establishes a new legal relationship, or that establishes a new legal relationship if uttered with a certain intent. It is deemed not to be an assertion offered to show the truth of what it asserts. It is not offered for what it says, but for what it does. What it does is create a right, duty, power, privilege, or other legal relationship. An utterance of legally operative language is often characterized as a "verbal act," or a "verbal part of an act," though these terms have been avoided in this lesson because they have been given a broad and indeterminate meaning by some courts. (CALI) Verbal parts of an act - Words that accompany an  ambiguous physical act Effect on hearer/reader/listener - Statement offered to  show its effect on the listener will generally not be hearsay If a statement is offered to show that the  listener or reader was put on notice, had certain knowledge, had certain emotion, or behaved reasonably or unreasonably, this will not be hearsay Verbal object - logo example****  Verbal marker - words that mark time****  Declarant's state of mind - statements introduced to  show that the state of mind of the declarant are not offered for the "truth of the matter asserted" and thus are not hearsay Showing the declarant's knowledge, sanity or  emotion are not hearsay Reputation - statements about a person's reputation is  not hearsay Impeachment - If X makes a statement at trial, use of a  prior inconsistent statement made out of court by W will not be hearsay when used to impeach X's present testimony What is being shown is not that the prior out of-court statement was truthful, but that the conflict between the two statements raises questions about W's credibility "Statement" and conduct Applies only to "statements." An oral or written assertion is also a statement, as well as certain types of conduct. Assertive conduct - treated as if it were a "statement,"  so it is hearsay

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Silence - can be treated as hearsay only if it is intended by the person to be an assertion Non assertive conduct - if a statement is not assertive, it  will never be hearsay  Multiple Hearsay If one out-of-court declaration quotes or paraphrases another  out-of-court statement, the evidence is inadmissible if any of the statements are hearsay and do not fall under an exception Hearsay Exceptions Admissions (801(d)(2)) - admissions receive an exception from the hearsay rule.   A party's words or acts may be offered as evidence against him, even though these would be inadmissible hearsay if said or done by someone other than a party  Personal Admissions - party's own statement offered against him Admissions in things like pleadings and conduct as an admission  are admissible and fall under this exception.  Adoptive Admissions - if the party adopts another person's statement, then it cam be admissible against the defendant Did the person knowingly agree with the other person's  statement? Silence in the face of another's statement/writing will indicate  the party agrees/disagrees with the statement But if it is a criminal case and the person is silent while  in custody, it cannot be admitted under Miranda  Representative Admission - Even if a party did not make a statement, it may still be admissible against the other person Explicit authorization - company allows others to make  statements in certain cases Vicarious - statement made while in the transaction within the  person's authority while working for someone else 801(d)(2)(D) - admitting a statement offered against a  party if made "but the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship." Proponent of the admission may use the statement  itself as one item of evidence to show that the agent was acting within the scope of his agency or employment relationship when the declaration was made. But the statement cannot be the sole item of evidence  Co-conspirator - statement by one co-conspirator is admissible against other members of the same conspiracy so long as the statement is made (1) during the course of the conspiracy and (2) in furtherance of the conspiracy 801(d)(2)(E) "During course of"  Statements made after the conspiracy has ended are  admissible only against the declarant, not against the other members

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Conspirator leaves - if conspirator leaves during the conspiracy, the conspirators who remain will not have their statements admissible against the conspirator who left Statements before - Conspirator joins later, statements  made earlier are admissible "In furtherance"  Statement should be admitted against a co-conspirator  only if it was made for the purpose of advancing the conspiracy's objectives - normally weakly applied Hearsay Exceptions; Availability of Declarant Immaterial - 803 Present sense impression - 803(1) Gives an exception for a statement "describing or explaining an  event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. Immediacy - applies only if virtually no time passes between the  event being perceived and the declarant's statement about it Must describe or explain the event that the declarant has  perceived Excited utterance - 803(2) Hearsay exception for certain statements made under the  influence of a startling event Two requirements - (1) Statement must relate to a  startling event or condition and (2) the statement must have been made while the declarant was still under the stress of excitement caused by the event or condition Time factor - Normally right near the time of the event  or a half hour at most. When person doesn't have time to reflect usually  means the statement is reliable Statement of declarant's then existing state of mind, emotion, sensation, or physical condition - 803(3) State of mind does not apply to statements of memory or belief  about past actions or events, when offered to prove that the past action or event took place Execution of will - Declarant's statement relating to his will is  covered by the "state of mind" exception, even though the statement may be one of memory or belief offered to prove the fact remembered or believed Statements made for purposes of medical diagnosis or treatment 803(4) (1) Must be made for the purpose of diagnosis or treatment  Need NOT be made to a doctor or medical professional  as long as the PURPOSE was to obtain medical treatment or diagnosis "Purpose of diagnosis" can be abused - some lawyers  use "special" doctors to diagnose tort victims (2) Content of statement must be pertinent (relevant) to  diagnosis or treatment

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"I was hit in the head and I fell" - admissible Donald hit me in the head with a baseball bat and pushed me down the stairs - The Donald part is NOT admissible, but the other part is admissible Statement may be about past pain or past symptoms Statement made by a third person (friend/relative of the patient) is also covered, if made to help the patient get treatment Statements made to get medical treatment to a nurse, ambulance driver, hospital admitting clerk or other third person involved in the health-care process are covered by the exception Do not discount 803(4) prejudice, but that is an extreme case Past Recollection Recorded - 803(5) Declarant (witness) must now be unable to testify from memory Record must have been made or adopted at the time the matter was fresh in declarant's memory Record may be read to the jury and considered for truth of the matter but is not admitted into evidence Business Records - 803(6) Record was made in the routine of the business. Record was made by, or from information supplied by, a person with personal knowledge of the matter recorded and who is working in the business, and the entry was made "at or near the time" of the matter recorded Business is broad, applies to schools, churches, and hospitals. Person who supplies the information must satisfy two requirements Must have first-hand knowledge of the fact he reports  Must do his reporting while working in the business  (1) Kept in the course of a regularly conducted business activity Can be any type of activity. Even the mafia can be used  as an activity. (2) Regular practice of business to make the record (3) Authenticated by a "custodian" of the records for the company (need not be the person who made the record) "custodian" = someone who can testify as to (1) and (2)  Caveat: "Unless source of information or method or  circumstances indicate a lack of trustworthiness" Business Records - Rule 803(8) (A) Activities of office or agency (B) Matter observed pursuant to duty as to which there was a duty to report BUT NOT police reports against a criminal defendant (C) Factual findings as a result of an investigation Watch out for Hearsay within the record! Straight reporting of a third party's statement is hearsay  and will not be admissible unless it falls under an exception During the course of the investigation, I  interviewed fireman Harry Danforth. Mr. Danforth was covered in ashes and appeared exhausted. He told me that the

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fire began in the kitchen and then caught the gas line (hearsay, need separate exception). Other exceptions 803(7), 803(10) - omissions in business/public record  803(16) - ancient documents  801(17) - market reports, commercial publications  803(18) - learned treatises  807 - "residual exception"  Hearsay Exceptions; Declarant Unavailable FRE 804 - Exceptions Testimony given in a prior proceeding  Statements made while declarant believed his death was  impending ("dying declaration") Statements against the declarant's interest when made  Statements concerning either the declarant's or his relatives'  personal or family history Meaning of "unavailability" - FRE 804(a) Five instances where a declarant will be deemed to be  unavailable Privileged against testifying about the subject matter of  his out-of-court statement Refuses to testify despite a court order  Cannot remember the statement's subject matter  Cannot be present to testify because of death, or  physical or mental illness Absent and unable to procure his attendance by  reasonable means Testimony given in a prior proceeding - FRE 804(b)(1) In order to have prior testimony permitted, you must do three  things The testimony was given at a hearing or in a deposition  Party against whom the testimony is now offered was  present at the earlier testimony Party had the opportunity to be cross examined  Dying Declarations - FRE 804(b)(2) A declarant's statement, while believing that his death is  imminent, concerning the cause or circumstances of his impending death, is admissible in a subsequent homicide prosecution concerning that death Declarant must truly believe that death is imminent, but  doesn't have to actually die Declarations Against Interest - FRE 804(b)(3) Declarations which at the time they were made are so against  the declarant's interest that it is unlikely that they would have been made if they were not true Must have been against the declarant's interest at the  time it was made If a statement has a self-serving part and a disserving  part, the court will excise the self-serving part.

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Statements of Pedigree - FRE 804(b)(4) Exception for statements regarding a person's birth, death, marriage, genealogy, or other fact of personal of family history is admissible. Declarant must be unavailable to testify  Declarant must be either the person whose history the  statement concerns or a relative of the person whom the statement concerns. Can also be intimately associated with the family of the person the statement concerns. Statement must have been made before the present  controversy arose Declarant must not have had any apparent motive to  falsify  Forfeiture by Wrongdoing - FRE 804(b)(6) Gives an exception for "a statement offered against a party that  has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness Pretty much if someone says "I will kill you if you  testify," this can be admitted. Confrontation Clause Guarantees a criminal defendant the right "to be confronted with the witnesses  against him." This clause gives a criminal D the right to keep out of evidence certain out-of-court declarations, where the declarant is not available to be cross-examined in court. Steps to determine if Confrontation Clause applies   1. Determine if the statement at issue is "testimonial." If an out-of-court testimonial statement is offered in a criminal  case, W must be made available for cross if the statement is to be admitted If an out-of-court non-testimonial statement is made, it can be  admitted against D without any Confrontation Clause problem  2. To determine if a statement is testimonial Essentially, it's the idea that the declarant has some idea that  the statement will be or may be used in a serious legal proceeding Testimonial Statements  Statements made during the course of police  interrogations, including interviews by police at crime scenes Prior testimony at a preliminary hearing/grand jury  Testimony at a former trial  Affidavit issued as part of law-enforcement proceeding  Non-testimonial Statements  Statements by a co-conspirator during conspiracy or in  furtherance of it Excited utterances  Present sense impressions  State-of-mind statements  Dying declarations 
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4. But if the statement is testimonial, the prosecution may try one of these things Calls the declarant as a witness; or  Establishes that the declarant is unavailable AND that the D had  an adequate opportunity to cross-examine the declarant’s “testimonial” statement; or Demonstrates that the D has wrongfully procured the  declarant’s unavailability, and has therefore “forfeited” his Confrontation Clause objection Demonstrates that the statement is the D’s. Anything the  defendant said directly is admissible against him as a party admission, FRE 801(d)(2)(A), even if the statement was “testimonial” Demonstrates that the defendant has adopted someone else’s  statement, per FRE 801(d)(2)(B) – even if the declarant’s statement was “testimonial”  If the prosecution does do one of these things, the statement must still meet a hearsay exception!  3. If it's testimonial, the person must be able to be cross examined; if not, the statement can be admissible without bringing the person in. Character Evidence FRE 404 bars only one thing – the forbidden inference of action on a particular occasion in conformity with a character trait Rule 404 reflects the judgment of Congress that the probative value of propensity evidence is, as a matter of law, substantially outweighed by the risk it poses of unfair prejudice, juror confusion, and waste of time. FRE 404(a) - Evidence of person's character is, in general, not admissible to prove that he "acted in conformity therewith on a particular occasion."  Person's general character is admissible if it is an essential element of the case Four times when character evidence can be brought in  Character is an element of the crime, defense, or cause of action which is the subject of the litigation  Character evidence is relevant to prove/disprove credibility If person is testifying, look at rule 608/609 as well as rules 404 406. If not, ONLY look at 404  Character evidence is relevant to prove/disprove PROPENSITY Propensity - to prove that the party has a certain character trait,  and acted in conformance with that trait on this occasion. This evidence of propensity is relevant BUT is barred by Rule 404 unless special circumstances apply  Character evidence is relevant to prove something OTHER THAN character Purpose of Rule 404  Specific instance of R 401/403 balancing "Character (propensity) evidence is of slight probative value and  may be very prejudicial. It tends to distract the trier of fact from the main question of what happened on the particular occasion. It subtly permits the trier of fact to reward the good (person) and punish the bad (person)

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because of their respective characters despite what the evidence in the case shows actually happened. Rule 404(a) Cheat Sheet  (1) Applies ONLY to criminal cases, not to civil cases  (2) D must always go first in defending his character or attacking victim's character EXCEPT if it's a homicide case and D is pleading self-defense;  then P can bring in evidence of peacefulness of victim  (3) P can do whatever D did, AND attack D's character if D attacked victim's character  Really, once D opens the door to character under (a)(2), then it opens the door for the prosecution to rebut that Rule 404(b)  To Prove Motive, Intent, or Similar Specific Points. Evidence of prior bad acts to prove intent and similar narrow points is allowed by FRE 404(b) subject to a 403 analysis. How do you prove character under 405?  (a) Reputation or opinion  (b) Specific instances of conduct  Cheat Sheet If character is allowed under 404(a) as propensity evidence  Reputation and opinion evidence are admissible to  prove character directly Evidence of specific instances of conduct (prior bad  acts) are only admissible on cross-examination of the opposing party's character witness to test "expertise." If character is allowed as "directly relevant" to prove an element  or a claim or a defense Reputation, opinion, AND SPECIFIC ACT EVIDENCE are  admissible to prove character PROPENSITY - IS EVIDENCE BEING OFFERED THAT MORE LIKELY THAN NOT SOMEONE DID SOMETHING OR IS IT BEING OFFERED FOR SOMETHING ELSE? Rape Shield/Habit/Routine Rape Shield  FRE 412 - Completely disallows reputation or opinion evidence concerning the victim's past sexual behavior. Also prohibits evidence of specific acts concerning the victim's past sexual behavior in most situations.  FRE 413 - Evidence of Similar Crimes in Sexual Assault Cases If D is charged with sexual assault, evidence of the D prior  commission of sexual assault is admissible on any matter which it is relevant Rationale - Propensity evidence is far more probative in sexual  assault cases. Story of a rape victim may seem far fetched without corroboration that D is capable of such actions. Voters don't like rapists and child molesters. Executive summary - Any evidence that you committed a sexual  assault or molested a child in the past, and you are charged with it again, you are guilty.

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FRE 414-415 - Child molestations; civil suits Proof that D previously molested a child to be introduced in his present molestation trial and proof of D's prior sexual assaults or child molestations to be introduced in civil proceedings where P claims D sexually assaulted or molested P Habit/Routine   Evidence of a person's habit is admissible in most courts to show that he followed this habit on a particular occasions  Three factors More specific the behavior, the more likely it is to be deemed a  habit More regular the behavior, the more likely to be a habit.  So something that X does 95% of the time is more likely  to be a habit than something X does 55% of the time Unreflective behavior - More "unreflective" or "semi-automatic"  the behavior, the more likely it is to be a habit Competency of a Witness Lay witness (order)   1. W must take an oath (FRE 603)  2. W must testify from personal knowledge (FRE 602)  3. W must state facts rather than opinions. (FRE 701) W may give an opinion if it is :(1) rationally based on his own perceptions; (2) helpful to the factfinder; and (3) not based on scientific, technical or other specialized knowledge  4. W must be competent. Everyone is competent, FRE 601, (except for judges/jurors made incompetent by Rules 605/606). But 601 is subject to state law.  5. Evidence of witnesses' religious beliefs may never be permissible in court (FRE 610)
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Direct and Cross Examination Direct Examination  Three parts Background of witness  Lay the foundation (explain how witness knows about the case)  Substantive questions regarding the case  Leading Questions   A question which suggested a SPECIFIC ANSWER - essentially "coach the witness into an answer" NOT to be confused with a CLOSED QUESTION, which gives the  witness limited options but allows the witness to freely choose between those options  When is a leading question permissible on direct? Introductory pedigree information (establishing uncontested  matters) - if someone objects, they look silly To focus the next series of questions into a certain time frame  or context - "Now witness, I am going to move to the events that occurred on November 6"
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When a witness is hesitant or confused - i.e., child witnesses Refreshing witness' recollection - FRE 612 Witness who is "hostile" or identified with adverse party - so if other side calls for a witness, you may ask leading questions What is a "hostile witness?"  Not necessarily a witness that is surly and  rude… But a witness that is "so evasive or  uncooperative that her testimony is impeded" Cross Examination  Three purposes Eliciting positive information  Limiting damage  Impeachment  1st - conceptually, what are the four ways you can  attack someone's credibility? Capacity - lacks memory or perception  Credibility - By imputing proper motive, you call  into doubt everything about the testimony Rule 612 - Writing Used to Refresh Memory  (1) ANYTHING can be used to refresh a witness' recollection while testifying Party refreshing recollection CANNOT admit the writing into  evidence BUT (2) The opposing party must be given a copy of the writing and  can admit it into evidence if she wants  Magic Words Witness - "I don't remember"  Attorney - "Would seeing ____ help you remember?"  Witness - "Yes", then you're off to 612  Difference between 803(5) (past recollection recorded) and 612 (present recollection refreshed)  803(5) - Past Recollection Recorded Declarant (witness) must now be unable to testify from memory  Record must have been made or adopted at the time the matter  was fresh in declarant's memory Record may be read to the jury and considered for the truth of  the matter but is not admitted into evidence Person who made the item (wrote something on paper) is the  one who needs this  612 - Present Recollection Refreshed Declarant must now be unable to testify from memory  Document/item may be ANYTHING as long as witness says it will  refresh recollection Witness may look at document/item and then testify from  "recollection;" document/item may not be admitted into evidence* In 612, the document is not being offered for the truth of the  matter asserted

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Impeachment of a Witness Rule 607 - The credibility of a witness may be attacked by any party, including the party calling the witness (any witness) Bias, prejudice, interest, corruption Show that the witness' version of the events is improbable Character for truthfulness (Rule 608) Through reputation or opinion evidence  Through "prior bad acts" which show propensity to lie - including prior  convictions (Rule 609) Prior inconsistent statements about this case (Rule 613) Contradiction (common law rule) Special rules restricting impeachment (608, 609, 6013) ONLY apply to  (3), (4), (5). Prior Convictions (609(a)) If the crime included as an element dishonesty or false statement, it  may always be used to impeach the Witness, regardless of whether it was a misdemeanor or a felony and regardless of degree of prejudice to W. Examples - Perjury, false statement, criminal fraud,  embezzlement, taking property by false pretenses, counterfeiting, forgery, filing false tax returns. Specific Impeachment Nine modes of discrediting a witness:  First four types of impeachment (group I) 1. Oath (note that one may not question a person about his  religion in order to impeach - FRE 610) 2. Perception - Try to show that the witness did not perceive  what he or she claims to have perceived 3. Recollection - try to show that the witness cannot recall the  event 4. Communications - recognize that the witness is giving  testimony he received from someone else and point this out to the jury (seldom used).  Second Four types of impeachment (questions asked having nothing directly to do with the subject matter of the witness's direct testimony) (group II) 1. Bias is an irrational predisposition in favor of a witness  2. Prejudice is an irrational predisposition against witness  3. Interest is having a "stake" in the outcome  4. Corruption is bribing a witness to testify a certain way  Be certain to have a good faith basis for asking cross examination questions in this area  Prior criminal conviction  Prior bad acts  Prior inconsistent statement 613(a) - Can go right at the witness…opposing counsel may ask  to see the statement 613(b) - Prior statement by extrinsic evidence, witness can  explain or deny it

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 Reputation for truthfulness Opinion and Expert Testimony; Scientific Evidence 1. When can lay witnesses testify as to opinions?   Lay witnesses testify as to "opinions" all the time It was sunny outside; she looked tired; he smelled like liquor   BUT the witnesses must actually perceive what they testify on  Rule 701 - …based on the perception of witness…  Rule 602 - the witness has personal knowledge of the matter  When can lay witnesses testify as to opinions? Inferences creating opinion must be drawn from witness' own  experiences This will sometimes require particularized knowledge that must  be demonstrated before the opinion is admissible It looked like blood; it smelled like marijuana; sounded  like a gun shot  When can a lay witness testify as to opinions? Are the opinions based on observations common enough to  require only a "limited amount of expertise" OR do the opinions require specialized training or unusual experiences? 2. What subjects are appropriate for expert testimony?   Rule 702 - Testimony by Experts A science or technique must be sufficiently established to have  gained general acceptance (down) in the particular field in which it belongs 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 of otherwise  Is the science/technique "reliable"  Pre-1923 - Every judge decided for himself whether or not a science or technique was reliable enough for experts  Frye v. United States - Lie detector showed person was telling the truth; D wanted to admit the evidence. But a science/technique must be 'sufficiently established to have gained general acceptance in the particular field in which it belongs." 2 stages  Experimental stage  Demonstrable stage - general agreement among  scientists in the field that the technique is valid Justifications for the Frye rule  Those most qualified to assess the validity of a  technique will get to decide - lay judges are relying on the community of scientists that know best Promotes uniformity of decisions; judges are bound by  scientific community's decision Prevents new untested sciences from coming before a  jury Promotes general acceptance of court's decisions by the  populace; creates more "acceptable" verdicts

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3. How does someone qualify as an "expert?" Rule 702 - Must be "qualified" by the court as an expert by "knowledge, skill, experience, training or education." (A) Lay a proper foundation by reviewing the witness' credentials Ask leading questions  DO NOT agree to a stipulation on expert status 


				
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