EVIDENCE

Steven J. Goode. 2008. 9 copies Law Koren KF 8935 .G66 2008 8.8 hours, quick reference indexing Disc 1:

What is the Law of Evidence Basic Areas of Evidence Law Role of Lawyer Jury and Judge Objections Timeliness and Specificity Requirements Motions in Limine Preserving Error for Appeal Origin of the Federal Rules of Evidence Relevancy Definition of Relevancy Direct and Circumstantial Evidence Conditional Relevancy Discretionary Exclusion Reasons for Excluding Relevant Evidence Legal vs. Logical Relevancy Similar Happening Evidence Statistical Evidence Photographs, Reenactments and Demonstrations Standard of Care
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Disc 3:

Disc 6:

Identity Absence of Mistake or Accident Intent Common Plan or Scheme Opportunity Preparation Procedural Issues Habit Hearsay Defined
Disc 4:

Rehabilitation Prior Consistent Statements Opinion and Expert Testimony Lay Opinions Expert Witness Ultimate Issue Rule
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Hearsay Exceptions Mnemonic Admission By Party Opponent Declaration Against Interest Dying Declarations Former Testimony Forfeiture Definition of Unavailability Excited Utterance Present Sense Impression State of Mind Statements for Medical Diagnosis or Treatment
Disc 5:

Authentication Best Evidence Rule Privileges Elements of Communication Privileges Attorney-Client Privilege
Disc 8:

Doctor-Patient and Psychotherapist Patient Privilege Privilege for the Clergy Marital Communication Privilege Marital Testimony Privilege Judicial Notice Presumptions

Subsequent Remedial Measures Offers to Compromise and Compromises Offers to Pay Medical Expenses Liability Insurance Character Evidence Character: An Essential Element of Claim or Defense Character: To Prove Conforming Conduct Other Crimes Evidence Motive

Business Records Public Records Learned Treatises Identification Residual Confrontation Clause Witness Competency Direct and Cross Examination Impeachment

Think of evidence as an obstacle course. The evidence must pass several hurdles to be admissible. HEAR PA BROWN 8 basis areas. HEAR- HEARSAY P- PRIVILEGES A- AUTHENTICATION B- BEST EVIDENCE RULE R- RELEVANCE O- OPINION TESTIMONY W- WITNESSES N- NOTICE (JUDICIAL NOTICE) Run through this EVERY TIME. These are the 8 basic areas, but there are two separate ones. -PRESUMPTIONS (you will notice it) -PROCEDURAL MATTERS (the rules on when and how to object, limiting instructions, who decides judge or jury, etc.) PROPONENT- person trying to bring the evidence FACT FINDER- mostly the jury, sometimes can be the judge if he serves both roles. (Bench trials) JUDGE- judge determines the relevant law, instructs jury on substantive law. He is like an umpire. PARTIES- decides what evidence to bring, and THE PARTIES ARE IN CHARGE OF OBJECTING EVIDENCE, NOT THE JUDGES.

I.

HEARSAY

Hearsay exceptions Rule- Hearsay is ordinarily inadmissible. Since we often depend on it, exceptions have been carved out because some statements are inheritably reliable.

Hearsay exceptions: BAD SPLITS PEPPI F

BADSPLITSPEPPIF-

Business records Admission by party opponent Dying declaration Spontaneous statements Public Records Learned treatise Interest, declaration against Testimony, former State of mind or condition Past recollection recorded Equivalent (residual, catchall) Prior inconsistent statements Prior consistent statements Identification Forfeiture.

Note, the last three are not technically hearsay (defined by the code as non hearsay). Note, a few are only available when declarant is not available at trial: DECLARANT NOT AVAILABLE: DIFF DIFFDying declaration Interest, declaration against Former testimony Forfeiture Admission by party opponent- **most important look for first (unavailable) *** party may not object on hearsay grounds, when his opponent offers a statement made by that party. Goes both ways. THREE POINTS TO REMEMBER: 1. Technically, admissions are not an exception to the rules, the drafters of the rules defined this as non hearsay. But who really cares. 2. This exception is not based on the grounds that such statements are reliable (like most exceptions). They are admitted as a theory of estoppel, a party cannot be able to deny his own statements. You said it, deal with it. a. Limited admissibility- admissible only against the party who made the statement. (consider multiple party suits.)

b. Abandon personal knowledge requirement. Usually we require personal knowledge of what he is testifying of. But this is admissible even if he had no first hand knowledge. D made the statement we are not going to object on hearsay grounds. He can explain why, but not object. 3. **Admission by party opponent does not have to be an admission. Any statement of a party opponent falls within this exception. The statement may have been a self-service one at the time. a. Ex/ suspect is being questioned on a robbery that happened in Detroit. He tells police; I was in Chicago on that date and I can prove it. Later he is arrested and tried on a robbery in Chicago. The prosecution can use that admission against him even though it was self serving at that time. THREE TYPES OF ADMISSIONS UNDER THIS EXCEPTION: 1. A partys own statement. (P offers Ds statement and vice versa) 2. Adoptive admissions A party can adopt a statement of another as if he was her own statement. Ex/ party may explicitly adopt another statement. A party can read a statement of another and agree with it (nod, or say so). They may also do so without speaking. A walks in to Bs room and says who were you with last night. C, Bs spouse is there. B remains silent. C is going to think that B was with A. Here a statement is made and a reasonable person would deny if its not true, it is accepted as you adopted it. (implied admission) MUST BE REASONABLE to assert adoption of statement. Does not apply during arrest. People have a right to remain silent. The question is would a reasonable person deny the charge if not true? If so, and they fail to deny, they constructively adopted it. 3. Vicarious admissions We hold a party responsible for admissions someone else makes even if a party does nothing to adopt the statements. Special relationship required agent, employee, etc.

Note, the party is not the declarant. Because of the relationship it is fair to preclude the party to keep it out.

Federal rule- statement by a partys agent / employee falls under this exception it two requirements are met: 1. Statement must concern a matter within the scope of the agency or employment 2. Statement must be made while the speaker is still an agent or employee, no authority to speak is required!! Just have to show these two things ^ Co- conspirators admission

Statement made by a partys co conspirator is admissible against that party as a vicarious admission. Proponent must show three things for this: 1. That declarant and party were conspirators 2. That the statement was made during the conspiracy 3. That it was made in furtherance of the conspiracy Here, they are partners in crime, so the party should be responsible for their partners admissions. What does it take to prove conspiracy? The court / judge decides whether the declarant and defendant are conspirators and whether it was made in furtherance of the conspiracy. This is called a preliminary questions of admissibility (just like they decide whether privilege exists or witness is an expert.) What is the standard of proof? Requirements need only be established by a preponderance of the evidence. (more likely than not). What kind of evidence can be used to prove these three things? Can the court use the hearsay statements themselves? Yes, those statements may be used to determine whether the exception applies. Statement can be evidence of the conspiracy. BUT they cannot be used alone, some other evidence is REQUIRED. Declaration Against Interest Exception (unavailable) People ordinarily dont say things adverse to their own interest unless they are true.

So, when they say something adversely at the time, it is most likely reliable. There are several requirements: 1. Declarant must be unavailable. 2. Has to cut against some financial or property interest of defendant. a. I owe her $5 b. It was all my fault c. The property is hers. d. CRIMINAL LIABILITY NOT INCLUDED unless USED TO EXONERATE and corroborating evidence supports. i. Suspect is being interrogated and admits to selling drugs. Snitches on A. A is on trial and prosecution wants to admit confession by suspect. Problem is although suspect incriminated himself, the snitching on A may not be against his interest. ii. Entire confession cannot be viewed as one big statement. The part implicating A is not disserving, therefore they are not reliable. You must look at each individual remark. Dying Declaration Requires showing that declarant is unavailable 1. Requires showing that declarant is unavailable, But need not be dead. 2. Admissible in all civil cases and criminal homicide cases. a. Not for cases where Elements: 1. Declarant must believe his death is IMMINENT a. Im going fast its being nice knowing you get a doctor does not count. b. Dont have to really die 2. Statement must surround the circumstances of what the declarant believed to be his death. a. Declarant dying of cancer and says A killed B does not fall within this element. Former Testimony exception (unavailable) When out of court statement being offered was offered in another trial or deposition. These statements are deemed sufficiently reliable.

Requirements: 1. Declarant, witness in earlier hearing must be now unavailable. 2. Party against whom the testimony is not being offered must have had: a. The opportunity b. And motive to cross in the prior form. (did they have incentive to ask same questions they would now) Ex/ eyewitness testifies against D in murder trial. I saw D shoot victim. Hung jury. Before D is retired, eyewitness dies. In retrial prosecutor wants to admit testimony form first trial. Admissible? 1. Unavailable. 2. Opportunity / motive Yes, it is admissible. In civil cases, even if D did not have the opportunity / motive, the testimony is admissible if the predecessor in interest had the opportunity / motive. This allows a substitute to cross. Ex/ A and B are in train and are injured in same accident. They bring separate actions. In As trial witness testifies for D and against A. Witness dies, but it may be admissible in Bs trial even though Bs counsel did not have opp / motive. This can be substituted. Forfeiture (unavailable) This is simple. If a party engages in wrong doing aimed at making a witness unavailable, the hearsay will be used against him. ***WHAT MAKES A DECLARANT UNAVAILABLE?*** Five different ways to be unavailable: PRIMA 1. Privilege a. 5th amendment b. other privileges 2. Refuses to testify a. Despite being ordered 3. Ill a. Too ill to come, dead. 4. Memory a. Lack of memory 5. Absent a. Declarant is absent

***THE REST OF THE EXCEPTIONS APPLY WHETHER THE DECLARANT IS AVAILABLE OR NOT*** Excited Utterances (Based on spontaneity) Covers the statements made while the declarant is under the stress and excitement caused by of a startling event or condition and where the statement relates to that startling event or condition. Why? Excitement and stress ensures spontaneity and precludes the possibility of fabrication. NOTE: statement must be made before actor had time to react. Which is usually right after the startling event. NOTE: there is not time limit. Could be after a person wakes up from unconsciousness. Present Sense Impression (Based on spontaneity) Covers statements that describe or explain an event or condition and that are made while the declarant perceives the event or condition OR immediately after the person perceives the event or condition. Why? Spontaneity ensures that the person did not have time to think about it and is reliable. Unlike the excited utterance, the time factor here is crucial. The statement MUST be made while event or condition is being made or immediately after. that car is going fast.--- Describing the event while it is happening that car went fast when it went by here. ---- not presence sense impression State of mind exception Covers statements that relate to declarants then existing mental, physical or emotional condition. Declarants state of mind when the state of mind is at issue: I think my breaks are bad.- Declarants belief about brakes are at issue. I dont like Ethel.- When declarants feelings towards Ethel are at issue. I am feeling crazy. Where your mental state is at issue. My back hurts. Why? A statement that relates to presence sense, there is no worry about memory.

Also cover presently held intention to do something in the future: Statement of present intent to do something in the future can be used to prove that the event actually took place. Ex/ issue as to As whereabouts on June 13. Evidence that on June 5th, declarant said he was going to Vegas and stay there for a week can be used to prove he was in Vegas. ** Hilman Case ** Body found at Crooked Creak. Wife said it was her husband and brought suit to collect no life insurance. D, insurance companies say its not Hillman. They claim its Walters, not Hillman. They offered letters that say Walters would go to Crooked Creek with Hilman. SC let them in. It was his present sense at the time he wrote the letters and could go to the fact that he went through. NOTE- state of mind exception can not be used for past events. **Shepherd Case ** Prosecution used Deceased statement that the Dr. poisoned me. This was rejected. Statements of memory of believe cannot be used to prove the fact remembered or believed. FORWARD LOOKING, NOT BACKWARDS!! QUALIFICATION***In once circumstance memory may be used. *** Execution, revocation, or terms of a declarant will it will be admissible under the state of mind exception. I disinherited my son will be allowed to prove that the son was disinherited. Statements for Medical Diagnosis or Treatment Statements made to physicians are admissible. The exception is extended to a persons past symptoms, pain or physical condition. my back hurts all last month. *If statements are made in furtherance of medical diagnosis or treatment.

So, its for present and past. Made to both treating and not treating (consulting) physicians. *Also covers medical history which is discussed!!* My neck pain began after I was hit by the car last week. This is cool. My neck pain began after I was hit by a blue Cadillac after the driver ran a red light. All that is not covered. NOTE- statement of cause must be pertinent to the diagnosis or condition. The part about being hit is admissible, but not about the car or the red light. Business Records exception If a business creates and relies upon certain records from day to day, it is reasonably reliable. Requirements: KEEP REGULAR AT PERSONAL (KRAP) 1. 2. 3. 4. Regular practice of the business to keep such records. Record must be made in the regular course of business Record must be made at or near the time of the event or condition recorded. Must be made by an employee of personal knowledge of the event or made upon information by someone with a business duty to report the information.

It will not qualify if the source of information indicates a lack of trustworthiness. *When is there a lack of trustworthiness? Records made with an eye towards litigation look fishy o Post accident report that shows company is not at fault. o It may be a regular practice but it was made with an eye towards litigation.

*What is personal knowledge? Ex/ officer files an accident report that says, I saw the motorcycle run the red light and crash into the truck. This qualifies. But if personal knowledge is missing, it may be still admissible. Ex/ officer files an accident report that says, Officer Jones told me that she saw the motorcycle run the red light and crash into the truck. This qualifies.

Note, double hearsay. Report is a Business record and the statement of officer jones is made under a business duty to report the information. Ex/ officer files an accident report that says, several observers told me that they saw the motorcycle run the red light and crash into the truck. This is not cool because the observers do not have a business duty to report the information. Note- if the officer gets to the scene and the observer runs up and is frantic and is agitated screaming, HE ran the red light! Double hearsay- business record and excited utterance. Laying the foundation- burden falls upon the proponent of the hearsay to qualify it as the exception (meet KRAP). Anyone may sponsor these. Public records exception The records or reports of a government reports are admissible if they fall in to any of 3 categories: 1. Records setting forth public agencys own activities a. Treasury departments receipts and disbursements 2. Matters that law requires public agency to observe and report a. Rain fall records of the weather bureau b. Own first hand observations c. Does not apply in criminal cases if it pertains to a matter observed by law enforcements i. No investigated reports 3. Factual findings that result from authorized governmental investigation. a. Admissible in civil and against government only in criminal cases b. It includes conclusions as to fault i. Report investigation of plane crash concluding with who is at fault. Learned Treatises Statements contained in published treaties, periodicals and pamphlets. Two Requirements: 1. Can be used only to the extent that they are called to the attention on cross / direct with expert witness a. Let evidence in only in conjunction with an expert 2. Must be established as reliable authority

a. By witness, expert, or judicial notice ***Note: statements may ONLY be read, they cannot be introduce as exhibits and taken back in to the jury room. Statements of prior identification Victim picks out of lineup. Since this is out of court there is an exception. This is a category defined as non hearsay. Residual exception (catch all) Even if hearsay is not admissible under the rules it will be admissible if it has equivalent guarantees of trustworthiness. Requirements: 1. Necessity a. Statement must be more probative on the point to which it is offered than any other evidence that the proponent is reasonably expected to come up with. 2. Notice a. Proponent must give his opponent notice of his intention to offer hearsay under the exception b. Must give name and address of person c. Must be given in advance to give a person fair ability to gain information. **CONFRONTATION CLAUSE** 6th amendment restricts the ability to introduce hearsay against the accused. This applies ONLY IN CRIMINAL CASES There is no problem if the hearsay declarant is in court and can be crossexamined. May arise when declarant does not testify. Introduction of hearsay is admissible if realiable. o Reliable if

If falls within an exception Special guarantees of credibility equivalent to the guarantee to that of cross examination Particularized guarantees of reliability. Circumstantial guarantees of reliabilities when D is not available.

TWO MORE AFTER WITNESSES!!!!!!

II.

PRIVILEGES

PRIVILEGES (P) The existence of privileges shows the its not always most important to find right facts. Social benefits weigh more than having all relevant evidence. 2 Groups: 1. Confidential communications a. Certain relationships are strengthen by guaranteed confidentiality. b. Atty / client- utmost trust in lawyer c. Physical / patient , husband / wife, clergy / person, etc. 2. Often constitutional backing a. Not to incriminate your self b. Important to protect certain information i. Classified, military / government secrets ii. Trade secrets privilege. iii. Marital testimonial 1. Vs another spouse in CRIMINAL case. Elements of Communication Privileges The holder of the privilege, has POWER TO REFUSE TO DISCLOSE PROTECTED COMMUNICATIONS AND MAY PREVENT OTHERS FROM DISCLOSING. -Note, it protects communications and not the information. Ex/ Did you tell your lawyer that you ran the stop sign? NO GOOD DID you run the stop sign? GOOD

COMMUNICATIONS- what the client and lawyers talked about is protected, not what the client knew independent of lawyer. Think about it. If this were not the case clients would just tell all to the lawyer and then zip it up. Types or communication 1. 2. 3. 4. Atty / Client Husband Wife Psychotherapist Clergy member

HOW TO ANALYZE: 6 QUESTIONS!! 1. 2. 3. 4. 5. 6. Is there a privileged relationship? (Atty AND client) Was communication relating to the legal advice sought? Was the communication confidential? Is holder of the privilege asserting it? Has holder waived the privilege? Is there an exception?

ATTY / CLIENT PRIV- every state recognizes Permits client to: Refuse to disclose or refuse for others to disclose Confidential Communications Made btwn the atty or client (or represented) For the purposes of facilitating the rendition of legal services.

Question 1: privileged relationship What if he is not really a lawyer? Common law said tough luck, no relationship. Now you can get privilege if you reasonably believe he was a lawyer. Also, you can get it for a rep from lawyers office. What is a client? As long as you talk to a lawyer for the purpose of obtaining legal advice. What if client is a company? Control Group test- only those who control the workings of the company. (officers, executives)

UPJOHN Court rejected the Control test SC said that if employee spoke at the order of employer, based on what happened and within the scope of his duties Courts typically look at his now.

Q2 communication Germaine to case What is communication? Words, writing, nods, inferences. Note, that observations made are not communications (lawyer noticed she is bleeding, or screaming). Does not encompass old forms handed over to lawyer. Was it Germain? Only if it is made for the purpose of obtaining legal services. So, if a lawyer and client are business partners, their business convos are not privileges.

Q3 Confidential? As long as it is personal and alone. Presence of a person other than paralegal breaks it. Eavesdropper? At Common law it breaks it, but the modern view looks at the intent of the CLIENT. Q4 Holder receiving it? Q5 waive it? Client is the holder. Lawyer can assert / waive it but only at the direction of the client. What if client dies, who holds it then? Privilege survives clients death. Can be asserted by executor. Must be asserted in timely fashion, otherwise it is wavied. Another way to waive is to voluntarily disclose the information. (telling a friend what he told his lawyer). However, if client discloses privileged information with whom the client has a privilege relationship its still good. ( client tells his wife) Q6 Is there an exception?

1. Crime / Fraud exception- priv does not attach to client who is seeking lawyers advice to commit what client knows or should have known was crime or fraud. 2. Information which is relevant to a breach of duty of lawyer 3. Joint client- if 2 or more clients consult lawyer and then they fall out. There was no expectation of confidentiality. 4. Communications relating to dead parties. (about information regarded who gets money from unclear will) Doctor Patient / Psychotherapist Patient You need a relationship like who is a doctor? Who is a patient? There is some discrepancy as who is a psychotherapist. You then need some germane communication. This protects statements made, as well as medical records and exams and tests. For example, a blood alcohol test may be privileged. The PATIENT has the privilege. The doctor exercises it on behalf of the patient. Waiving the privilege: A failure to assert in a timely fashion or by voluntary disclosure. Exceptions- there are a lot of variations. Criminal cases Patient medical records relevant to case. Member of Clergy Most jurisdictions, the privilege covers all spiritual advising. And BOTH parties own the privilege. Generally, no exceptions. Husband and Wife There are two types 1. Communication- Confidential communications made during marriage Communication has to be made during marriage. Communications made before or after marriage do not apply. But, It does continue after divorce. But what is a Communication- It varies, some say words, and non verbal.

Courts are split on what is a observation and what is a communications. 2. Testimonial- refusal to testify against spouse in criminal proceeding. Applies only in criminal cases. Gives criminal defendant the right to prevent the spouse to testify against him. It is traditionally held by the accused. BUT most states give the other (not accused) the right to not testify. Why? Law should not force a wife to testify against the husband. But, they can if they do not want to enforce the privilege. This TERMINATES at the end of the marriage. ONLY operates during the marriage. Ex/ husband on trial for bank robbery. In trial prosecutor wants her to testify that on the night of the robbery her husband told her he robbed the bank. She may invoke this and refuse to testify. But, even if she does want to testify, the husband may invoke his right to not allow her to tell what he said to her during the marriage. Note the difference between confidential communications and testimonial. TWO EXCEPTIONS1. Where the spouse is charged with spouse abuse, NEITHER APPLY. 2. Where the spouse is charged with child abuse, NEITHER APPLY.

III. AUTHENTICATION IV. BEST EVIDENCE RULE V. RELEVANCE

RELEVANCE (R) Only relevant evidence will be admitted. What is relevant? RELEVANT EVIDENCE- evidence that tends to prove or disprove a fact that is of consequence to the outcome of the case. There are TWO COMPONENTS TO THIS RULE: 1. Evidence must TEND TO PROVE OR DISPROVE A FACT

a. Must be a logical link btwn the evidence and the fact the party is trying to prove with it 2. Fact MUST BE OF CONSEQUENCE TO THE OUTCOME OF THE CASE. a. Something that relates to the legal issues of the case. HYPO 1D is on trial for common law rape. D wishes to testify that the victim invited him to her bedroom. 1. First ask whether this evidence tends to establish consent. Well, yes, a juror can rationally conclude that the odds the victim consented are higher now than before the jury heard the evidence. So, this evidence tends to prove consent. 2. Second, ask whether this fact is of consequence to the outcome of the case. If the victim consented, would that have a bearing on the outcome of the case? Note, the evidence may be rebutted, but it is relevant. HYPO 2D is on trial for common law statutory rape. D wishes to testify that the victim invited him to her bedroom. 1. First ask whether this evidence tends to establish consent. Yes. It does. 2. Second, ask whether this fact is of consequence to the outcome of the case. Well, no. with statutory rape, this evidence is irrelevant. Consent is not of consequence and is not a defense to statutory rape. There is no LOGICAL LINK BTWN THE EVIDENCE AND FACT PARTY IS TRYING TO PROVE. ** DO NOT CONFUSE RELEVANCE WITH WHETHER SOMETHING PROVES THE CASE** RELEVANCY VS. SUFFICIENCY. The federal rules defines relevancy as evidence that tends to make the existence of any fact that that is of consequence to the determination of the action more or less probable than it would be without the evidence. This language DOES NOT means that evidence MUST establish that the defendant is guilty. It requires that only that evidence must RATIONALLY LEAD a juror to think d is more or less guilty than he was before the evidence was offered.

If juror thought before evidence was offered that there was a 25% chance D was guilty of murder and after evidence was offered juror thought there was a 26% chance, the evidence is relevant. The evidence is more probable than before, even though its still not overwhelming. Conversely, if a juror goes from 65% to 64%, the evidence is relevant. Think of football. There are many ways to move the ball in football. 70 yard touchdown pass, 3 yard run. Anytime you move the ball its like relevancy. You dont have to score a touchdown with every play. a brick is not a wall evidence only has to be a brick, not the entire wall. So, to be admissible, it must be relevant. To be relevant, it must have a tendency to prove or disprove a fact of consequence. HYPO 3 Car accident. P says D was speeding and caused accident on interstate 70 outside of KC. P was injured and car was totaled. P wants to bring a witness 1 who says he saw D going 85 mph a mile from where the accident occurred. Witness 2 will testify that 30 min before accident occurred, he saw the D say, I gotta go, Im in a rush Witness 3 will testify that he say D drink 3 beers before he left. All of these are relevant. Even though none of them prove the case, each one tends to make a fact (that D was speeding) more likely. D may argue that it is all circumstantial evidence. What is the difference between CIRCUMSTANTIAL AND DIRECT EVIDENCE? Direct evidence- evidence that proves a consequential fact directly. (eye witness that testified that he say D shoot the victim) Direct is not necessarily better. Jury may decide that witness is not credible. Circumstantial evidence- requires fact finder to draw inferences from evidence to conclude some consequential fact is true. (Example above, fact finder may infer that because he was drinking then he was driving recklessly and speeding, same with him saying in a rush and driving fast a mile away.) Now, lets suppose P wants to offer the evidence that D was an avid fan of the KC Chiefs. P is theory is that the accident happened 40 miles from Arrowhead where the Chiefs where playing and that he was rushing to get to the game. Here we have CONDITIONAL RELEVANCE. Why is it conditional relevancy? Because the relevance of one fact (D being a KC Chief fan) depends on the existence of another fact that is not yet be proved (that game time is 30 min away and 40 miles away)

In this situation the court would ask the lawyer, how does this relate to the case The lawyer would explain and the judge would say OK let it in or no. Judge may so no, you have to offer the other evidence first. Well, how much is required to support the conditional relevancy. ONLY SO MUCH EVIDENCE NECESSARY FOR A REASONABLE JURY TO FIND THAT THE OTHER FACT EXISTS (that the game was 40 miles away and 30 min). NOT ALL RELEVANT EVIDENCE ARE ADMISSIBLE 2 general reasons why evidence is not admissible: 1. ACCURACY We may exclude evidence may be MORE LIKELY TO CONFUSE ISSUES, MISLEAD JURY OR UNFAIRLY PREJUDICE THE JURY. Or maybe its just not worth the time. Specific Rules have been made to address many of these concerns. Courts have discretionary authority to dismiss evidence on an ad hoc basis. Basically, court decides that probative evidence is substantially outweighed by the same concerns above. (It may interfere with jurys fact finding mission) 2. EXTRINSIC POLICY CONCERNS Sometimes we exclude relevant evidence because of our desire to further some other policy. An example would be the attorney client privilege (this can keep relevant evidence here to promote openness to lawyers.) NOTE: there are two types of relevance. 1. Legal relevance Evidence that is not only relevant, but not rendered inadmissible due to the concerns above. So, evidence that is relevant but privileged lacks legal relevance. Most codes dont use legal relevance as a term. 2. Logical relevance Evidence that meets the definition of relevance (tends to prove or disprove a fact that is of consequence in the case) (what we been talking about)

RULE 403Rule that authorizes the judge to exclude relevant evidence because its probative value is substantially outweighed by the danger of unfair prejudice. Note, most evidence that is offered is designed to help its own and hurt the oppositions case. So, all evidence is somewhat prejudicial to opponents case. But this rule focuses on UNFAIR PREJUDICIAL evidence. You have to BALANCE. UNFAIRLY PREJUDICIAL EVIDENCE tends to appeal to the jurys sympathy or otherwise lead it to decide case on EMOTIONAL bases. o Ex/ evidence that driver was drinking scotch before he got into the car. This is not unfairly prejudicial. However, evidence that the driver was a child abuser or that he was a member of the KKK is unfairly prejudicial. It would turn the jury against him even though its not logically related to the case. How to weigh the probative value of the evidence with the danger of unfair prejudice. SC addressed this in OLD CHIEF o Gov had to prove he was a convicted felon and that he possessed a gun. o Prosecution could not introduce previous assault to prove assault claim. Prosecution claimed that they wanted to bring it up to prove that he was a felon. o Court held that Old Chief could stipulate that he was a felon without the details in order to not prejudice the jury. o Court emphasizes importance of evidence. It is the means of proving the story. It gives context to his story. o Normally you cant stipulate. But this was the exception. All the jury needed to know was the status as a felon. The fact that it was assault did nothing for that, but it did have a high probative value because he was on trial for assault. o NOTE, NORMALLY YOU CANNOT STIPULATE.

Track 17 when you get a chance

VI. OPINION TESTIMONY VII. WITNESSES

Three main issues: 1. Competency (who can be a witness) 2. Examination (what questions can you ask) 3. Impeachment (how can you attach credibility) Competency Two things can bear on the witness ability to testify: 1) personal attributes of witness and the 2) witness status. Personal attributes? Things that affect the witness ability to see, hear, remember etc. Federal rules say that none of this can make a witness not incompetent. All of these things can be used to attach the credibility of the testimony. The juror can discount these factors, all the rules require is that the witness be able to 1) take the oath and the witness have 2) personal knowledge of the facts (waived for experts.) Status? Ex/ where the presiding judges is called as a witness. A judge is deemed incompetent to be a witness in his own trial. Its so bad that a party need not object when the judge testifies in order to preserve it for appeal. Same thing for jurors where they are sitting. But, this objection must be made to preserve error. Examination Stages of interrogation: Direct examination- conducted by the calling party. The calling party is asking all the questions it wants and there is no limit. Cross examination- after direct, opposing party is allowed to ask all the questions it wants. Redirect- limited to areas brought up on cross-examination Re cross- limited to areas brought up on redirect.

Object to question the way its asked: Leading question- one that suggest the answer a witness is supposed to give. It tends to suggest the answer. If an ordinary person would get the impression that it expects one answer. isnt it true that Didnt you Leading questions are okay on cross but not okay on direct. (we dont want lawyers giving the testimony) EXCEPT! o Leading questions can be used on direct for preliminary facts not at issue: name, occupation, address o Or where it is necessary where witness is having trouble answering. A child, language issues, stupid. o Or to refresh the memory did he say anything else no he didnt say anything no did he say anything about a gun? ohhh, yea. o Or when you are questioning a witness unlikely to follow your lead. You are P and you call the D. Sometimes NOT allowed on cross o When opponent calls party and then his own lawyer is crossing him. Judge may not allow this.

*More on refreshing the memory* Witness just forgets and lawyer wants to get him to remember. Note difference between: Present recollection refreshed / past recollection recorded. Present recollection refreshed Ex/ You rep P who was injured in an accident 4 years ago. The case is now coming to trial. You call eye witness but she cant remember. You try to jog her memory with leading questions. do you remember a green Chevy? no. Typically want to show them a DOCUMENT. You can hand them anything in an attempt to job their memory (document prepared by her or anyone). BUT, the witness is only remembering what she just read. So there are procedures when a document is used to refresh their memory.

You cannot enter the document into evidence because its only used to refresh. Opposing counsel must be allowed to inspect the document and may also admit other relevant parts.

Remember there was 4 years ago. So what if you use a document to refresh the memory the day before trial? If the judge believes it is in the best interest, they MAY get the same ability to look at it. Now, she is testifying what she remembers. Past Recollection Recorded Same facts. Ex/ You rep P who was injured in an accident 4 years ago. The case is now coming to trial. You call eye witness but she cant remember. You try to jog her memory with leading questions. do you remember a green Chevy? no. You give her the letter and she STILL does not remember and you are stuck. So Try to get the letter she wrote describing the accident as evidence. But its hearsay. There is an exception, the Past recollection Recorded exception. Four requirements: 1. Witness must testify that she once had personal knowledge of what happened 2. Witness must testify that she has insufficient recollection of what happened. 3. Witness must testify that she made the statement of the even when it was fresh in her mind. 4. Witness must testify that it accurately reflected her personal knowledge. LIMITATIONA writing that qualifies as a past recollection recorded CANNOT be introduced as an exhibit. It can ONLY BE READ. Whats the difference? Present recollection refreshed the technique to job a forgetful witness memory. Past Recollection Recorded- hearsay exception using a previously written document.

Impeachment

This is about attacking the credibility of the witness, but there are rules. Normally you want to impeach the opposing partys witness. BUT you can impeach your own in rare cases. FRE 607 any party can attack the credibility of a witness. FIVE BASIC WAYS OF ATTACKING CREDIBILITY - BICCC (each have their own rules) 1. Bias Some reason to give testimony for one side over the other. Extrinsic evidence is allowed. Witness being paid, interest in the outcome, etc. Foundation must be laid out. 2. Inconsistent Statements When a witness makes prior inconsistent statements that are different from the in court statements. Ex/ D is on trial for murder. Ps Witness, on the day of the murder said that he saw D shoot victim. Without Witness the P does not have anything else. When P calls him, he states that he say Ds brother shoot victim. To prove that it was D, P tries to offer the prior statement. It is not admissible; it is hearsay since offered for the truth of the matter asserted. But, P can impeach him on this. It could be allowed for impeachment purposes but not for the truth of the matter. D would be entitled to a limited instruction to the jury (should be allowed to be only to the credibility and not the truth) But here, there is no other evidence, so the judge may throw it out before it gets to the jury. **A party can impeach their witness, but cannot use this to use impeach to allow otherwise inadmissible hearsay.

Some prior inconsistent statements are deemed to be non hearsay and can be admitted for their truth and as well as impeachment purposes. To qualify: The witness must be available for cross about the statement Prior inconsistent statement must have been made under oath, subject to penalty to perjury and at an early trial or dep. IF these are met, they can be used for their truth and to impeach. This is key for a TURN COAT WITNESS. *FOUNDATIONCommon law Foundation must be laid to impeach for prior inconsistent statements Need to get all of the following: Identity to whom the statement was made Time and place it was made Substance of the statement Basically you want to inform the witness of the context so he can remember. When it is in writing you also BUT FEDERAL LAW DID AWAY WITH THIS REQUIREMENT!! *EXTRINSIC EVIDENCE TO SUPPORTWhen can you use extrinsic evidence to prove prior inconsistent statements? ------------------3. Capacity Trying to show a defect in the witness ability to see, hear, relate or recount the facts. You can show that they are crazy. dont you have trouble recounting reality? Show they dont have a good memory. what time was it how many people where there Show there had drug problems. isnt it true that you were on crack? Extrinsic evidence is allowed. 4. Character

Jury can infer that witness is acting like their character and being dishonest. Remember we cant do this for a party. But there is an exception. Character evidence can be used to impeach a witness. Three ways to prove untruthful character: Prove it through opinion or reputation testimony o Rules: Impeaching party may call reputation witness to talk about his reputation in the community. Or to their opinion to the witness untruthfulness. They can only talk about reputation or opinion and not cite specific instances What about good character? This can only come out when opponent attacks his character. Note, the good reputation can be crossed and use HAVE YOU HEARD QUESTIONS o Have you heard this guy stole a million dollars? o This shows how knowledgeable he is. YOU MUST TAKE THE ANSWERS AS IS. NO EVIDENCE CAN BE USED. Specific acts of witness that did not result in a conviction o Witness may be asked about (on cross) what he did in the past. Isnt it true you stole 1Milli (it must go to dishonest character, not violent character) o BOUND BY THE ANSWER Show that witness was convicted by certain crimes o Two factors that can influence whether the conviction can be used to impeach Nature of crime Crimes involving dishonesty or false statement (doesnt matter if its a felony). If so court has no authority to rule against it. Classic crimes, perjury, embezzlement, false pretenses. What if its not involving dishonesty, like assault? o First thing we need to do is ask if its a felony (punishable by death or imprisonment by more the year) it can be used if it passes the 403balancing test. Whether witness is criminal Defendant or someone else. It its the accursed and there is a felony then you weigh the probative value with risk of unfair prejudice.

If its anybody other than the accused it can be used unless the risk of unfair prejudicial substantially outweighs the probative value.

What if it was 30 years ago??? Federal rules include a special balancing test for remote convictions. Remote (10 years measured from the date he was released from confinement if any) convictions; Probative value substantially outweighs its risk of unfair prejudice. **How to prove the previous conviction? Either asks him or prove it by means public record. This is limited to the BASIC FACT of the conviction and the other information is not necessary** REMEMBER THIS IS ONLY FOR IMPEACHMENT BY UNTRUTHFUL CHARACTER 5. Contradiction Trying to get witness to contradict something he previously said. When will impeaching party be allowed to offer extrinsic evidence for the purpose of contradicting? -Extrinsic evidence will not be allowed to contradict if the contradiction goes to a COLLATERAL MATTER. What is a Collateral Matter? -if it relates to a tangential issue and is only used to contradict this point is because it makes it more likely that someone is lying about something important in the case. BOLSTERING / REHABILITATION BOLSTERINGBuilding up the witness credibility before it has been attacked Ex/ you rep P in a crash case, you have a witness that is going to say that she say D was driving crazy. You want jury to believe you so you establish she is respectable (where do you live, family etc.). But, unless credibility has been attacked you can not introduce evidence of good character or that their testimony was already made before. You can do this after it has been attached though during rehab.

REHABILITATIONRe building the credibility after it has been attacked. This must match the impeachment technique. If the attach goes to bias, you must show good bias. Character? Get opinion / reputation witness. Prior inconsistent statement? Have them explain. (I was just kidding) or show prior consistent statements. CD 6 TRACK 3

VIII. NOTICE (JUDICIAL NOTICE)

JUDICIAL NOTICE (N) Some things are not within disupute. This date was a Monday. The Chicago Cubs play their games at Wrigley Fiend. If one of these things becomes relevant, a party could prove it. But we dont want to wast time. This is the basis for Judicial Notice. This allows courts to accept things as true, without being proven. When we have adjudicative facts- facts that relate to the immediate party and events. Judicial notice can be taken for these facts if well informed people in the community generally know and accept that fact. It is not enough for the judge to be familiar, the parties must show the facts are generally known in the community. Other facts are undisputable without the general community acceptance if it is easily verifiable by recourses that are reasonably reliable. What time did sunset on March 23, 1985? Just look at an almanac and take it as true. Court may take judicial notice on its own motion or that of a party. A party making the motion must supply the court with the necessary information. In a civil case, once the court takes notice, the fact is established. The facts are UNDISPUTABLE.

In a criminal case, the court is allowed to tell the jury that it MAY and is NOT REQUIRED TO accept the truth of a judicially noticed fact. Courts may also take judicial notice of THE LAW. Courts are not restricted to accept what parties present. Only exception is foreign law and municipal law. Legislative facts- facts that courts consider in making policy considerations. Courts take these into account (anything) when dealing with legislative facts.

TWO SEPARATE ONES YOU WILL NOTICE: PRESUMPTIONS

Note two concepts: 1. Burden of persuasion AKA risk of non persuasion In a typical civil case, the P has the burden of persuasion. They have to persuade the fact finder to some level of certainty on each element of the claim. Most of the time its a preponderance of the evidence (more likely than not). If fact finder thinks, it is more likely than not that facts do not exist, then P has failed to meet his burden of persuasion. If jury is right on the fence (50-50) P has also failed to meet this burden. In criminal cases, the prosecution has this burden of persuasion, but the jury has a higher one. Each element must be proven beyond a reasonable doubt. DEFENSESWith defenses, the D bears the burden of persuasion. Ex/ In criminal cases, D may assert insanity. P may force D to prove he was insane. 2. Burden of production AKA- burden of going forward with the evidence. Who loses without getting to the jury? A party who loses without getting to the jury who fails to provide the production is the party with the burden of production.

Judge will grant a directed verdict in this instance. The burden of persuasion does not shift. BUT THE BURDEN OF PRODUCTION does shift. Ex/ auto accident case. Only issue is driving negligence. P had burden of persuasion If P fails to show that it is more likely than not that D drove negligently, P is going to lose. Suppose only evidence is that the cars collided. No evidence of fault. D would be entitled to directed verdict bc no reasonable jury would decide in matter of P. P has failed to meet his burden of production. Suppose now that P provides SOME but not a lot evidence. Now judge will let case go to jury, because a reasonable jury COULD find for P, burden of production is met. NOTE: the burden of production is met, so we move on (no directed verdict) however this does not mean that the burden of persuasion is met, this is still TBD. Suppose P give a great deal of evidence. IF D does not counter, judge would have to conclude that no reasonable juror could conclude for D and grant a directed verdict for P. At this point, the burden of production has shifted to the D. D has to meet his burden of production by introducing enough evidence so that a reasonable juror can find for their side. PRESUMPTION is an evidentiary shortcut. Jurors decide what inferences they want to draw from the evidence. Presumption requires jury to draw particular inferences from those facts. In other words, jurors will be told that if the party wants to take advantage of a presumption persuades them of a basic or triggering fact then they must conclude some other fact (presumed fact) is also true. Basic fact- fact that party must prove in order to take advantage of the presumption, or to trigger the presumption. Presumed fact- prescribed conclusion. Ex/ Law presumes that a letter properly addressed and mailed it is received. Therefore if a juror believes letter was property addressed and mailed (basic facts) then they must find the letter was received. Presumptions come in to play only if the proponent proves the basic facts. If there is a dispute, then it only comes into play if the juror believes the basic facts and the presumption is triggered. NOTE: REBUTTABLE PRESUMPTION VS. IRREBUTTABLE PRESUMPTION

Irrebuttable presumption? Presumed fact is established and its over. Opponent must not attempt to disprove. Ex/ if basic facts are shown to exist the presumed fact is established. Child born to a married woman is presumed to be legitimate as long as the woman and man were fucking at time of conception. If basic facts required are established (woman was married and fucker her husband) the presumed fact that the child is legitimate is irrefutably is established. Other evidence like blood test will not be received. No evidence to contrary may be considered. These are not that common. Rebuttable presumption? Presumed facts can be refuted. Even if basic facts are proven, other side may rebut the presumed facts. How much is required to rebut a presumption? Two concepts: 1. Shift the burden or persuasion (Morgan McCormick) a. Juror must take presumed fact as true unless the other side persuades you to believe that the presumed fact does not exist. b. The opponent then has the burden or persuasion. c. Ex/ P is trying to prove that D received letter. P testified that she mailed and stamped it. D testified that he did not receive it. Instructions: must believe it is received unless the D persuades you by a preponderance of the evidence that it is not true. 2. Bursting bubble approach- weaker form of presumption. (Thayer - Wigmore) a. Presumption merely shifts burden of PRODUCTION. b. Opponent meets his burden by producing evidence that would allow a reasonable juror to find that the presumed fact does not exist. i. At this point the bubble bursts ii. The presumption only exists when the opponent fails to present evidence refuting it. c. Ex/ P wants to prove D received letter. P testifies. D testifies that he never received letter. Under bursting bubble the judge should not give jury an instruction. The testimony is sufficient to meet production burden and eliminated presumption from the case. d. THIS IS FAVORED.

PROCEDURAL MATTERS