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Evidence Outline 061122

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									EVIDENCE OUTLINE STRATEGY: (1) Is there a statement? (2) Is it made by a declarent? (3) Is it outside of sworn testimony? (4) Is it offered to prove the truth of the matter asserted? (5) Identify all possible exceptions that would admit the statement. DETERMINING THE ADMISSIBILITY OF EVIDENCE RELEVANCE (1) Only Relevant evidence may be admitted. (2) Relevance Defined: Evidence is relevant if it: (1) Makes more of less likely (“Probative”) (2) a fact of consequence to the determination of the action. a. Probative = Any tendency to make fact more or less likely. (Low threshold, can make even just a little bit more or less likely). b. A fact of consequence = a material fact = facts that relate to elements of a claim, defense, credibility of a witness, or helpful background info (emotive state of mind or motivation for crime or action taken). i. Analysis: 1. What are you trying to prove / disprove (and why does it matter to the case) 2. How does your evidence prove disprove it 3. Therefore, is it material? (3) Jurisdictional Split: a. Subjective vs. Objective Perspective i. A defendant’s past my be relevant in a juris that looks to his subjective belief of endangerment. ii. The same past may not be relevant in an objective juris that asks, was the belief objectively reasonable? (4) Conditional relevance: a. Defined: When the relevance of evidence depends on the existence of a separate fact. A judge will admit the evidence subject to the condition of it being “linked up” later in the trial i. Judge will admit evidence if there is sufficient grounds for a reasonable jury to find it more likely than not that the fact in question exists.

ii. Some Judges will allow jury to determine if fact exists which would allow conditional relevance, Some will determine themselves. If condition not met judge may opt to tell jury to disregard evidence in making decision. (5) Relevant but inadmissible evidence: Fed. R. § 403 a. Balancing Test i. Probative value vs. prejudicial value 1. `Unfair Prejudice 2. Confusing Issues 3. Misleading Jury 4. Undue Delay 5. Wastes Time 6. Cumulative Evidence ii. Examples: 1. Probability Evidence 2. Physically Revolting Evidence 3. Novel Scientific Evidence 4. Similar events, happenings or occurrences § 400 STATUTORY RELEVANCY PROVISIONS (THAT LIMIT JUDICIAL DISCRETION) Analysis: (a) Focus on purpose for which the evidence is offered (b) Evidence may not be used to prove fault or liability The following types of evidence are never admissible to prove liability But may be admissible to impeach to show ownership or control. (1) §407 – Evidence of Subsequent Remedial Measures a. May not be used to show admission of fault. b. May be used for impeachment, ownership, control, or feasibility. (2) § 408 – Evidence from Settlement Negotiations (3) § 409 – Evidence of offering to pay or paying Medical and related expenses. a. Collateral statements admissible. (4) § 410 – Pleas, Pleas Discussions and related Statements a. Guilty plea that is withdrawn b. Nolo Contendere Plea c. Plea Discussions where plea fails. d. Can be used in subsequent criminal case if meets one of the following Exceptions i. If defendant introduced the evidence then opens door for prosecution. ii. If there are subsequent proceedings for perjury or fraud. (5) § 411Evidence of Liability Insurance a. Not admissible to show negligence

b. Not probative and problematic for damage awards. CHARACTER EVIDENCE (6) § 412 Character Evidence a. General Rule: Character evidence is inadmissible to prove action in conformity with the character of the evidence. b. 4 General Exceptions that admit character evidence: i. Propensity Evidence: (404a + 405) 1. in a criminal case; 2. If the evidence is relevant, then: 3. the defendant can offer his own character evidence as well as evidence of the character of the victim. 4. Accused must open the door first. a. In homicide case, prosecution may evidence of victim peacefulness after accused offers evidence victim first aggressor.. 5. 404(a) Only relevant character traits may be offered. 6. 405(a) Such evidence may only be offered in the form of opinions from a character witness. No discussion of specific acts. a. prosecution may cross examine, and b. rebut using any evidence c. May only offer evidence of the opposite character trait. d. If trait of character is an essential element to the claim, then specific instances of conduct are admissible. ii. Character in issue (465) 1. Defendants Reputation, Opinion iii. Other Crimes, Wrongs or Acts (404(b)) iv. .Impeachment (608 + 609) 1. See below c. Second General Exception that admits character evidence i. When Character is an issue at Trial 1. When character must be proved to prove the cause of action. ii. Usually a civil trial. 1. Defamation of Character a. Must prove that what was said did actual damage to good character. b. Can show specific events, reputation and opinion. 2. Negligent Entrustment 3. Child Custody / Parental fitness 4. Only two chances in criminal cases:

a. Crime of seduction b. Defense of entrapment. i. Split: 1. Maj: Would objectively rx person have succumbed to entrapment? 2. Min: Did defendant have previous disposition to commit the offense? (7) Habit Evidence a. Something that has been done so much in response to the stimulus that it is invariable and chances are you did it again. i. Organizational Habit 1. “Routine Practice” 2. Business record keeping 3. Habit evidence is narrow and specific therefore highly reliable. ii. Individual Habit 1. The more complex the habit the less it meets this criteria. 2. Specific response to particular stimulus 3. Requires: a. Sufficiency of sampling i. How many times has the behavior been observed our of the total times the habit has been performed? b. Uniformity of response (more key that above) i. If variance, it means conscience thought and not habit. (8) Impeachment a. Impeaching a witness is the process of discrediting their credibility. b. 404: Character evidence is not admissible except: i. Can attack testimonial capacity 1. Perception 2. Recall 3. Communication ability ii. Can attack motives 1. Bias 2. Prejudice 3. Interest 4. Corruption iii. Can attack character. 1. Prior Convictions 2. Prior Acts

HEARSAY: Definition: (a) A statement by a (b) declarent made (c) outside of sworn testimony, (d) offered to prove the truth of a matter asserted.

Statement: (a) An oral or written assertion, or (b) non-verbal act or omission, (c) by a human, (d) intended as an assertion of fact. Declarent: A human

Not Hearsay: (1) § 801(d)(1) Admissible Prior Statements by a Declarant. 1. Declarant must be testifying as to the prior statement at the trial, and: 2. Declarant must always be subject to cross examination. a. Inconsistent Prior Statements 3. Prior Statement made under Oath 4. That is contrary to a more recent Statement 5. Admissible to: Impeach and as Substantive Proof. b. Prior Statement to rebut charge against Declarant of fabrication or improper influence or motive. 6. Statements prior to controversy admissible. c. ID of a person made after perceiving them (2) § 801(d)(2) Admissible Statements made by one Party against Another. (aka Party Admissions) (A larger exception that § 804(b)(3). a. Statement by a Party Declarent or an authorized representative that is at the time of the statement or later against the Declarant’s interest, or. 1. Does not need to be based on personal knowledge. b. Statement offered against a Party that a Party has adopted belief in, or 1. Acceptance By Silence, if 2. Was present when statement made 3. Had mental and physically capacity to deny 4. Did not deny c. Statement of a co-conspirator during the course of the conspiracy. 1. Statement shall be considered but shall not be definitive proof of any of the facts. Hearsay Exceptions: (3) § 803 Availability of Declarant to Testify is Immaterial – These Statements are admissible: 1. Present Sense Impression i. A Statement made while Declarant was perceiving an event or condition or immediately thereafter. 2. Excited Utterance







i. A Statement relating to a startling event made by Declarant while under the excitement caused by the event. Then Existing Mental, Emotional or Physical condition i. A Statement of the Declarant’s then existing: 1. State of Mind a. Includes Intent b. Hillman View Split: i. First party statements inherently unreliable as to third party intentions. 2. Physical Condition ii. So long as the Statement is not for the purpose of proving the fact remembered, unless 1. It relates to a will. Statement for purposes of medical diagnosis or treatment i. Statements Pertinent to diagnosis or treatment: 1. Diagnosis a. Symptoms b. External Source 2. Treatment 3. Describing Medical History 4. Only portion of statement pertinent to diagnosis or treatment admissible. Recorded recollection i. A memo or record concerning a matter a Declarant once had knowledge of but now has insufficient recollection. ii. May only be read into evidence iii. Records of regularly conducted business activity i. Memos, records and data, unless ii. Reason to believe untrustworthy iii. “business” means for profit and non-profit occupation or calling of every kind. Absence of entry in records kept in the course of regularly conducted activity. i. Statements that evidence a matter is not included in records of regularly conducted business activity even though it normally would have been, unless ii. This Statement is untrustworthy for some reason. Public Records and Reports i. Activities of any agency ii. Matters recorded pursuant to law iii. Specifically: 1. Not admissible in criminal cases: a. Matters observed by police officers 2. In civil actions & proceedings against gov’t.

a. Factual findings resulting from an investigation made pursuant to authority granted at law b. Unless circumstances indicate a lack of trustworthiness. 9. Records of Vital Statistics i. Records of: 1. Birth 2. Death 3. Marriage 4. Made pursuant to requirement of law 10. Absence of Public Record or Entry i. Testimony that diligent search failed to disclose the record. ii. Certification to the same effect. 11. Records of Religious Organizations i. Regularly Kept Statement of: 1. Births 2. Marriages 3. Divorce 4. Death, 5. Ancestry 6. Relationship 12. Marriage, Baptismal and Similar Certificates i. Marriage, Baptismal and similar certificates made by church of state officials issued at the time of the act or within a reasonable time thereafter. 13. Family Records i. Statements concerning personal or family history. ii. Family Bibles iii. Genealogies iv. Inscriptions v. Portraits vi. Tombstones 14. Records of Documents affecting an interest in property i. Copy’s of recorded documents. 15. Statement in documents affecting an interest in property i. Statements made inside documents affecting an interest in property, so long as: ii. The matter stated is relevant to the document, and iii. Dealing with the property since the document have not been inconsistent with the document. 16. Statements in ancient documents i. Statement in documents existing 20 years or more the authenticity of which is established. ii. Newspapers and Periodicals are deemed self authenticating. 17. Market reports, Commercial publications.

i. Reports and publications generally relied on by the public or people of certain occupations. 18. Learned Treatises i. To the extent relied upon by an expert witness ii. Subjects: History, Medicine, Science or Art. iii. Must be read into evidence 19. Reputation concerning personal or family history i. Reputation among members of a persons family, associates, or in the community concerning: ii. Birth, Adoption, Marriage, Ancestry, death, Divorce or similar type facts. 20. Reputation concerning boundaries or general history i. Reputation in a community, ii. Arising before the controversy, iii. As to boundaries affecting lands 21. Reputation as to character i. Reputation as to a persons character in the community 22. Judgment of previous conviction i. Evidence of a final judgment or guilty plea, ii. With a penalty exceeding imprisonment in excess of one year iii. Only to prove a fact essential to sustain the judgment. 23. Judgment as to personal, family or generally history or boundaries. i. Judgments as proof of matters of personal, family or general history. 24. Rule § 807 Blanket Exceptions (4) § 804 Hearsay Exceptions: Declarant Unavailable a. Unavailable = Declarent : 1. Privilege 1. Exempted By Court: a. 5th Amendment against Self Incrimination i. Witness must be called and the question must be asked so they can invoke the privilege. ii. In a criminal prosecution: No need to invoke the 5th on stand because of the prejudicial effect. iii. A criminal defendant who chooses not ot testify has proclaimed his own unavailability. 2. Refusal: 1. refuses to testify despite court order 3. Lack of memory 1. Witness gets on stand and forgets 2. Must be cross examined

3. Judge must determine if really has no memory 4. If determines yes then unavailability satisfied. 5. If determines no then considered a refusal. (unavailability satisfied too, but declarent in contempt. 4. Death or Serious Illness 1. Is unable to be present because of death or physical or mental illness 5. Absence 1. Is absent from the hearing, no deposition, and reasonable means has not been able to procure attendance. 6. NOT UNAVAILABLE: if due to acts or wrongdoing of a party. b. Statement Admissible if Declarent unavailable and there is: 1. Former Testimony 1. Testimony given as a witness at another hearing (same or different proceeding) or in a deposition. a. If from another hearing, motivation to give the formal testimony must be the same. i. Does not translate between civil and criminal cases and vice versa. 1. Testimony of a criminal defendant in front of a grand jury is not allowed. ii. If civil case can be used against a predecessor in interest so long as Declarent’s motivation is the same. b. Prior Testimony or Deposition must have had opportunity to be cross examined. 2. Dying Declaration (Homicide and Civil Cases only) 1. Declarent must be unavailable (i.e. coma, out of country). 2. Declarent believed death was imminent (loss of hope) 3. Statement must concern the circumstances surrounding the death he believes to be imminent 3. Statement Against Interest 1. Statement must be against a pecuniary or property interest, or subject declarent to civil or criminal liability, and a. Look to context 2. A reasonable person would not make the statement unless it was true, and 3. Circumstances must corroborate the trustworthiness of the statement. 4. Williamson Case: Only so much of the statement as is actually against the declarent’s interest is admissible. 4. Statement of Personal or Family History 1. Includes statement regarding close associate.

2. Facts only 5. § 807 6. Forfeiture by Wrongdoing 1. Opponent forfeits the right to object. (5) § 807 Residual Exception (Catch all) a. No other exception works b. Circumstantial guarantees of trustworthiness that is required for the enumerated exceptions 1. Evidence to be used for a Material issue 2. More Probative than other evidence 3. Justice is served 4. Notice 1. Proponent must make known to adverse part with sufficient advance notice to allow them to prepare to meet it. Generally in advance of trial. 2. Must give name and address of person who made the statement. (6) Confrontation Clause a. Provides for a constitutional right, in a criminal trial, for an accused to confront those accusing them. b. Testimony from a Non-confronted Declarent, absent an exception, is hearsay and inadmissible. 1. Testimonial Heresy is not: 1. Business Records c. General Definition of Testimonial Hearsay: A Testimonial Statement offered by Prosecution against a Defendant when there is no opportunity to cross examine the Declarent. 1. Testimonial is: 1. Prior Trial Testimony (noted as Testimonial Heresy?? On email) 2. Deposition Testimony 3. Preliminary Hearing Testimony 4. Statements made pursuant to formal police interrogations 5. Crime Scene Statements elicited for the purpose of investigating past acts 2. Testimonial is not: 1. Business Records 2. 911 Calls for purpose of providing emergency aid 3. Efforts to Respond to an emergency 3. Analysis to determine if a Statement is Testimonial Hearsay: 1. Do we have a testimonial statement? 2. Is there another hearsay exception on point? 3. If yes, admit Statement under exception. 4. If no,

5. Is this a criminal case, if yes 6. Is it being offered against the defendant, If yes, 7. Is it Testimonial Heresy a. If Yes, i. Exclude unless ii. Declarent Unavailable and Prior Opportunity to Cross Examine b. If No, i. Admit it. Confrontation Clause Analysis A. Is this a criminal case, if yes B. Is a Statement offered by the Prosecution against the defendant? If yes, C. Determine if Statement is Testimonial: Testimonial is: 1. Oral Only (??) 2. Prior Trial Testimony 3. Deposition Testimony 4. Preliminary Hearing Testimony 5. Statements made pursuant to formal police interrogations 6. Crime Scene Statements elicited for the purpose of investigating past acts Testimonial is not: 7. Business Records 8. 911 Calls for purpose of providing emergency aid 9. Efforts to Respond to an emergency a. If Yes, D. Determine if a Testimonial Statement is Hearsay: 1. Is there another hearsay exception on point? 2. If yes, admit Statement under exception. 3. If no, has there been an opportunity to cross examine the declarant? 4. If no, it is Testimonial Heresy i. Exclude unless 1. Declarent Unavailable and Prior Opportunity to Cross Examine

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