EVIDENCE OUTLINE (Andrea Curcio, Fall 2002) I. BEST EVIDENCE (Original Writings Rule) A. Steps 1. Are you trying to prove the contents of the writing? 2. If so, do you have the original? 3. If not look to the rules for admissibility of duplicate or other medium B. Federal Rules of Evidence 1. 1001: Definitions 2. 1002: In order to prove the content of a writing, recording or photograph, the original is required except as otherwise provided in the rules. (THE BEST EVIDENCE RULE) 3. 1003: Duplicate is OK unless authenticity is questioned or it would be unfair to admit in lieu of original. 4. 1004: Excusing need for original – Any other form of secondary evidence is OK. 5. 1006: Admissibility of Summaries – Admissible if what you are basing it on is admissible and if documents are available to the other side. 6. 1007: If the opposing party admitted the contents of a writing in testimony or deposition, the original document does not have to be excused to offer the proof of the contents. C. General Best Evidence Considerations 1. Normally trying to prove the contents of the writing in the following situations: o Where the substantive law makes the content of the writing controlling on a particular issue (Ks or deeds) o Where party as a matter of strategy relies on the content to try to prove something (receipt to prove how much spent) 2. Duplicate is presumptively admissible. II. AUTHENTICATION A. Steps 1. What is the evidence being offered to prove? 2. Is the evidence relevant? 3. What form is the evidence in? B. Federal Rules of Evidence 1. 901: Requires authentication and identification before evidence is admissible; gives some methods of authentication o Testimony of witness with knowledge: where the document is unique or has distinctive characteristics. o Non-expert opinion on handwriting: o Comparison by trier or expert witness o Distinctive characteristics and the like o Voice Identification o Telephone Conversations o Public records or Reports o Ancient documents or data compilation o Process or system o Methods provided by statute or rule C. Generally 1. Determine that it was actually the object you say it is. o REAL EVIDENCE: Show it was the object (chain of custody) o DEMONSTRATIVE EVIDENCE: Show it is a fair and accurate representation of whatever you say it is. 2. Authenticity questions go to the jury. D. Specific Type of Authentication 1. Surveillance Camera Photos o If demonstrative, show fair and accurate and ID. o If real, you have to show it was working, how tape was made, chain of custody, etc. 2. Authenticating voices o You could have heard it at any point (not necessary to have known it prior) o Business number answered with the name of the person whose business it is is enough. AUTHENTICATION BY CONTEXT 3. Tape Recording o Must show tape is authentic, recorder was working and operative and the voice was correct. 4. Handwritings o Lay Witness: familiar prior to litigation o Jury: Jury comparison o Handwriting Expert o AUTHENTICATION BY CONTEXT E. Self-Authentication 1. Birth certificates, newspapers, periodicals, certified copies of documents 2. Certification by custodian of records is amended rule on this matter (902) III. RELEVANCE A. The Basics 1. The key is what the evidence is offered to prove. 2. Fact of consequence: that which proves or disproves something that is claimed 3. Look at the jury instructions (substantive law) to determine if it goes to something necessary 4. Conditional Relevance: Relevancy is based on a condition B. Probative vs. Prejudicial (RULE 403 Balancing Test) 1. All evidence is pretty much relevant, but then we have to determine if it is relevant under Rule 403 Balancing test. o PROBATIVE VALUE: Tending to prove or disprove o UNFAIR PREJUDICE: Leads the jury to make an emotional or irrational decision or use the evidence impermissibly (inflaming the jury’s emotions) o CONFUSION OF THE ISSUES o MISLEADING THE JURY o WASTING TIME 2. Rule 403 is weighted towards the admission of the evidence. If the probative value equals the others, it comes in. C. CIVIL CASES 1. Evidence of Subsequent Remedial Measures (Rule 407) o The evidence would confuse the jury o Policy: if you fix something, it shouldn’t come back to haunt you. o You can get in evidence of remedial measures that occurred prior to the accident but only by that defendant not other third parties. 2. Evidence of Payment of Medical Expenses (Rule 409) o Exclude offer to pay o Policy: encourage benevolence o Accompanying statements with offer to pay are not excluded 3. Settlements/Pleas (Rule 408) o There is a total exclusion of evidence of compromise or settlement offers as long as there was a dispute as to liability or amount. o Policy: encourage settlement to free up court docket o You can use settlement offer to show bias of witness Request limiting instruction from judge o If it was already discoverable, it is not excluded just because it was brought up in plea negotiations. D. CRIMINAL CASES 1. Withdrawn plea of guilty: not admissible o Only when they are with prosecutor or his agent o Policy: encouraging open communication to clear up dockets o Can waive the protections 2. Plea of nolo contendere: not admissible except for impeachment of credibility because it is so prejudicial 3. Statements made in plea negotiations with attorney that don’t result in guilty plea: not admissible IV. PRIVILEGE A. Attorney-Client 1. Applies to: o Confidential communications o Between attorney and client, o Necessary for giving legal advice, o On a matter for which legal advice was sought. 2. Corporations o Upjohn Test: The information was not available from upper level personnel needed to supply basis for legal advice. Communications concerned matters which were in the scope of employee’s corporate duties. Employees need to be aware that their questioning was for obtaining legal advice. Communications were considered highly confidential when made Communications were kept confidential by company. 3. Incriminating Physical Evidence o Ethical obligation to turn them over o If from third person, attorney has to disclose the source. o If from client, attorney gets to protect the source (prosecution has to connect defendant and evidence independently). o As long as attorney doesn’t remove, touch or alter evidence that his client has told him the location of, the attorney does not have to disclose its location. 4. Crime-Fraud Exception o Client’s intent at the time of meeting with attorney (if getting advice to help with crime, the exception applies) 5. Death of Client o Privilege remains at death with the exceptions to get testamentary intent unless there is a balancing reason for allowing the privilege to be rejected. 6. Derivative Suits o May overcome attorney client privilege B. Spousal Privilege 1. Confidential Communication o Confidences told to spouse o Must have been married at time of confidence o Either party may invoke o Criminal or civil cases 2. Testimonial Privilege o Covers all testimony o Must only be married at time of trial testimony o Invocation by either spouse (Trammel jurisdictions: testifying spouse only) o Criminal cases only 3. Joint Participant Exception o When spouses discussed ongoing and future crimes in which they are joint participants, the spouse may testify about those confidential communications. C. Doctor Patient privilege 1. Communications between MD and patient made for the purpose of diagnosis and treatment 2. Waived if the condition is what is in issue. 3. Psychiatrist-Patient Privilege: new privilege/may be waived if it is in issue 4. Child abuse must be reported even if information is based on confidential communications. D. Priest Penitent Privilege 1. Communications made with spiritual advisor in their capacity as such and that it is a tenet of the church to keep it confidential E. WAIVER OF PRIVILEGES 1. Express waiver 2. Disclosure to third-party (purposeful or in situation where privacy was not expected) 3. Inadvertent disclosure in attorney-client privilege o Courts split about waiver Some say that it is waived if not zealously guarded Some hold that privilege remains if reasonable precautions were used and attempts were made to rectify. V. HEARSAY A. Generally 1. Hearsay is an out of court statement used in order to prove the truth of the matter asserted. 2. NOT HEARSAY o Things with independent legal significance (just the fact that it is said is significant) Legally operative fact (words of perjury, creation of K, words of threat, slander/defamation, words of gift, offer and acceptance, words accompanying the act) o Statements which put someone on notice (only offered to prove notice) o Evidence offered to show effect on the listener or on state of mind (not for the truth of the statement) 3. Questions o Who is declarant? o Is this out of court? o What is the assertion? o What is it being offered to prove? o Is it being offered to prove the truth of what is asserted? 4. Synthesis Hearsay -If you put together different pieces of hearsay to come to conclusion, the conclusion is hearsay (unless expert because expert can use inadmissible evidence) B. Assertions -May be verbal or asserted by conduct 1. CONDUCT: Common signals, physical response to a question, conduct as code/No implied! 2. VERBAL: Express and Implied (reasonable person would have to understand what the implication is) C. EXEMPTIONS (801(d)(1) and (d)(2)) 1. Prior Statements Made by Witness o Prior Inconsistent Statements ii. Declarant must be testifying and subject to cross-examination about it iii. Statement has to be inconsistent to trial testimony iv. Statement has to be given under oath at prior trial, deposition or other proceeding o Prior Consistent Statement v. Witness has fabricated testimony or has improper motive vi. Prior Consistent statement was made before motive to fabricate vii. Can come in to rebut the charge that he made it up o Prior ID viii. Declarant must be available at trial and subject to cross-examination ix. Declarant must have perceived the person they ID 2. Admission by a Party-Opponent o Party’s own statements as individual o Adoptive Admissions: Defendant adopts statement though his actions making admission by party opponent x. Did party hear statement they are allegedly adopting? xi. Was it within party’s knowledge? xii. Was it the kind of situation where he was likely to respond in a particular way? o Admission by Authorized Agent: What an attorney says may be an agency admission against his client. o Admission by Employee/Agent xiii. Was person an employee? xiv. Was he speaking while still employed? xv. Was it within course and scope of employment? o Co-Conspirator Admission One conspirator can speak for whole group but must prove: • Existence of the conspiracy • Statement was made during the conspiracy • Statement was made in furtherance of the conspiracy D. Hearsay Exceptions where Declarant is Unavailable 1. Unavailable declarant – a. Claiming privilege, b. Refusing despite court order, c. Lack memory about subject matter, d. Dead or physical or mental infirmity preventing testimony, e. Capable of testifying you must make reasonable efforts to take deposition. 2. Exceptions o FORMER TESTIMONY Unavailable declarant Witness testimony from prior or same hearing, trial or deposition Party against whom the evidence is offered must have had an opportunity to direct, cross or redirect (either opponent or predecessor in interest) o DYING DECLARATIONS Unavailable declarant Only for homicide or a civil action Statement has to be about the cause of impending death o STATEMENTS AGAINST INTERESTS Unavailable declarant Usually non-party, has to be against the declarant’s interest (financial, liberty, property) at the time the statement was made o STATEMENTS OF FAMILY HISTORY You’ve been told the story a lot and the person who told you is unavailable. E. Hearsay Exceptions, where availability doesn’t matter 1. PRESENT SENSE IMPRESSION Declarant is speaking at virtually the same time she perceives something Statement is trustworthy because the declarant doesn’t have time to make it up because it is contemporaneous. 2. EXCITED UTTERANCE Declarant was under the stress of the excitement of the event at the time she made the statement. Statement is trustworthy because the declarant doesn’t have time to make something up due to stress of excitement. 3. THEN EXISTING MENTAL, EMOTIONAL, OR PHYSICAL CONDITION Not in the past, only takes future intent or present intent 4. STATEMENTS FOR MEDICAL DIAGNOSIS AND TREATMENT Describing medical history and past or present symptoms or describing general character of the cause of the injury as long as that is reasonably related to diagnosis and treatment Statement is trustworthy because the patient would want correct treatment. 5. RECORDED RECOLLECTION Must have: o Exhausted witness’ memory o Writing/memo adopted or made by witness o When matter was fresh in memory o Accurately reflects knowledge once had o Not an exhibit 6. RECORDS OF REGULARLY CONDUCTED ACTIVITY o Testimony from someone at the business about how the records are kept. o Can be done through affidavit o Must have: Made at or near the time of the information it records Made from a person with personal knowledge of the information (their job to make the record) Kept in the regular course of business activity Practiced regularly in the business to make the record 7. PUBLIC RECORDS AND REPORTS o No need for foundation witness o Must have: Set forth the activities of the office or agency Set forth matters observed pursuant to a duty imposed by law as to which matters there was a duty to report. o Allows opinions and conclusions as well as factual findings o Un-trustworthy? Method used and qualification of reporter Suspect motivation Preliminary report Superceding report Case by case 8. LEARNED TREATISES o Must be: Authoritative Foundation set F. RESIDUAL EXCEPTION 1. Strong Reason to believe its trustworthiness 2. Notice given to opponent 3. Relates to material fact 4. More probative than any other evidence obtained through reasonable means 5. In the interest of justice to admit VI. CHARACTER EVIDENCE A. Rule 405 1. Propensity Inference: only comes in by reputation or opinion on direct (you may, however, cross on specific acts) – NOT IN CIVIL CASES ii. Because a person possesses the trait, he likely acted in accordance with such trait. iii. It makes what they did more or less likely based upon that character attribute 2. Non-Propensity Inference: may come in by reputation, opinion or specific acts on direct a. Can use specific acts in both civil or criminal acts b. State of mind and intent 3. Character in Issue B. Generally 1. Describing someone 2. When can you use it? a. Limited where you use as propensity evidence b. You can use it to help explain something (motive or knowledge) c. You can use it where character is an element of the claim or defense. 3. Character evidence must relate to the character trait pertinent to the charge/claim. 4. 404(b) Test: ii. Evidence must be relevant to an issue other than the defendant’s character; iii. Sufficient proof for jury to find that defendant committed the extrinsic act; iv. Probative value of evidence cannot be outweighed by undue prejudice. 5. NOTEWORTHY: a. Evidence being for a non-character purpose b. Relevancy requirement c. Evidence must bear on an issue in the case d. May be used to illustrate MO theory where crime/perpetrator share distinctive characteristics that evince a signature quality i. Only if ID is an issue 6. CRIMINAL CASES 1. In a criminal case, prosecutor cannot use character evidence for propensity purposes in its case-in-chief. 2. Defendant in criminal case may use evidence of good character for propensity purposes, but it opens the door for prosecutor. b. Can only bring it up through reputation or opinion and not by specific acts. c. You can cross-examine on specific acts. 1. Nicknames only where it is necessary for identification and not where it is more prejudicial than probative. 7. CIVIL CASES 1. Propensity character evidence may not be introduced in civil cases. Some courts allow it where the central issue is really criminal in nature. 2. Character evidence is admissible where it is an essential element of the claim, i.e. libel or defamation. 3. Examples b. Civil Case based on negligence: Prior speeding tickets and reckless driving charge would be excluded. c. Negligent entrustment: It is admissible because it is an element of the claim. 8. Habit (Rule 412) 1. The way someone deals with a situation (the more specific and automatic the more likely it is to be habit) 2. Most often in business practice cases 9. Character Witnesses 1. Must show sufficient acquaintance with person about whom he is testifying 2. Must show he is in the community in which the person about whom he is testifying/Circles in which he moved VII. LAY OR EXPERT TESTIMONY A. Lay Witness 1. Opinion Testimony ii. Must be rationally based on the witness’s perception (one of the five senses) iii. Must have specialized knowledge iv. Must be helpful to the trier of fact in determining a fact in issue or understanding the witness’s testimony o Ultimate Issue: An issue that has to be decided to determine the outcome of the case. o You can give opinion if it is useful for the jury o What is not helpful: Legal conclusion based on improper understanding of the law is not helpful. An opinion that tries to instruct the jury on the law Choosing sides Jury able to draw conclusion without opinion. 2.Lay Witnesses Giving Expert Testimony o You would still have to qualify on that once they start giving opinions 3.Expert Opinion Testimony o Expert: Someone with scientific, technical or other specialized knowledge that will help the trier of fact in determining an issue in the case. Must qualify them in something that is not common knowledge Must be reliable and relevant opinion Must be something the jury couldn’t figure out on its own • Experts can testify on the ultimate issue unless it is mental state in a criminal case. MUST be general with mental illness and not specific • Tests for Reliability of the Expert Testimony o General Acceptance Test: Generally accepted in the scientific community o Daubert Test: Relevant Scientific/Specialized Reliable: Published, methodology is appropriate to the facts, generally accepted, error rate, ability for falsification of test results, etc. o Kumho Test: All expert testimony has to be relevant and reliable. Experts can use inadmissible evidence to base their opinions. B. Ways to Exclude an Expert i. Opinion is irrelevant ii. Challenge qualifications iii. Unfairly prejudicial iv. Unreliable or invalid methodology v. Unwarranted conclusion vi. Matter of common knowledge VII. IMPEACHMENT AND REHABILITATION A. Definition B. Extrinsic Evidence b. Something other than what the witness will testify on the stand c. Come from other sources than the witness 1. Intrinsic Evidence d. Comes from the witness himself 1. Collateral Matters: e. Something that is not important to the case f. Methods of Impeachment 1. Perception 2. Recall 3. Lack of Knowledge 4. Oath g. Character impeachment for truthfulness 1. Prior Convictions h. Crimes punishable by death or imprisonment for more than 1 year i. Balancing test may be used and judge has some discretion (weighted against admissibility with criminal defendant) – 10 year rule i. Crimes that involve dishonesty or false statement i. No judge discretion – 10 year rule 1. Prior Bad Acts j. No extrinsic evidence k. Jury has to figure out what they think 1. Character Witnesses l. See character witness m. Rehabilitation 1. Character witnesses 2. Prior Consistent Statements n. Rule of Completeness 10. If someone introduces a portion of a witness’s statement (or a portion of what they have said before) and the portion is misleading because of incompleteness, then you have a right to ask the judge and let you tell the jury the rest of what they said. a. Impeachment of Hearsay Declarants 11. Same way as if the declarant was testifying a. Certified copy of perjury conviction can be introduced, etc. b. Can’t have testimony of prior bad acts VIII. OBJECTIONS AND QUESTIONING A. Objections 1. General Objections B. Objection to the way the question is phrased (Rule 611: The court has the power to control the mode and manner of questions) C. Objection misstatement of the evidence/Objection assumes a fact not in evidence D. Objection leading question E. Objection, unresponsive F. Objecting: i. To question if it is clear that question calls for inadmissible evidence ii. If answer is inadmissible you object and move to strike iii. Must make an offer of proof if error is excluding evidence 1. Motions in Limine G. Some evidence you either want to keep out or dicey evidence that you want to get in. H. Court may rule at the time of the motion or reserve for trial to see how it comes out in court. I. RULES i. If defendant does not take the stand, he cannot appeal the ruling on motion in limine. ii. A party introducing evidence cannot complain on appeal that the evidence was erroneously admitted (i.e. if you bring it up on direct, then you can’t appeal its admission) 1. Timeliness of Objections or Motions J. Before answer is given if answer might be incriminating, but generally, just as soon as possible K. Questions should not be objected to because it is not evidence 1. Specificity L. Why? Because of appeal process and to give judges opportunity to correct M. Harmless Error N. Plain Error Doctrine: So bad that it would be legal malpractice (plain error) 1. Offers of Proof O. Once the evidence is found inadmissible, you offer what it would show (importance and what it was) in order to preserve for appeal and possibly change the judge’s mind. P. Must be specific enough so that the court knows what the evidence was (sometimes it is obvious from the questioning but try to preserve for record). i. Why is evidence relevant? ii. What is the evidence exactly? (put it into record) Q. Methods i. Statement of lawyer ii. Statement of witness iii. Q&A off the record iv. Lawyer writes out what the lawyer thinks the witness might say R. Questions 1. Leading Questions: Not on direct; Expected on cross 2. Objectionable line of questioning: Standing/Continuing Objection (preserves objection for appeal) 3. Federal Court: Although there is generally a broad interpretation (raising by inference or implication), you cannot cross on subjects that were not brought up on direct. 4. GA: You may cross on any subject. IX. COMPETENCY A. Criteria 1. Taken oath or appropriate substitute and understand it a. Just enough 2. Perceived something important to the case a. Non-Experts need to have actually perceived through 1 of the 5 senses 3. Able to recollect what is perceived 4. Able to communicate what is perceived to the jury 5. Personal Knowledge (FRE 602) B. Credibility i. Jury question not like competency and not up to judge C. Judge and Jury testimony i. Judge may not testify. ii. Jurors may testify if it is about another juror bringing something into the deliberations, threats or other illegal jury activity, but jurors may not testify as to the deliberations of the jury or the thought process of the jury. D. Challenging Competency i. Object, request competency hearing and question to try to show incompetency