EVIDENCE – ALEXANDER – SPRING 2010
1. Objections
o Trial court’s ruling will not be overturned on appeal unless it affects a substantial right of one of the parties
o Attorney must state the grounds of an objection
o Plain error doctrine will be the only situation where court’s ruling may be overturned without an objection at the trial level.
2. Authentication
o Authentication is the process of proving that an item of evidence is what its proponent claims it to be
o Authentication is a condition precedent to admissibility of the item being offered
o Standard — Proponent must make a showing that is sufficient to support a finding
o Chain of custody
o Self-authentication
· Domestic public docs under seal
· If not under seal can be self-authenticating if the superior certifies under his own seal that the signor has the official capacity and that signers sig is genuine
· Certified docs
· Commercial paper — sigs are self-authenticating
· Notaries
o Demonstrative evidence — item that merely illustrates testimony
· e.g. diagram of the details of the murder scene. Not “real evidence b/c not directly involved in the events at issue
· Can be used only if the testimony it illustrates is admissible and the demonstrative evidence accurately reflects that testimony.
3. Competency of Witnesses
o Generally
· Testimonial qualifications that will allow a W to testify (two):
1. Personal knowledge — testifying to something she saw w/ own eyes, or something heard w/ own ears
2. Oath or affirmation — ability to testify truthfully
· Infancy does not amount to disqualification
· Insanity doesn’t amount to automatic disqualification either
· Interest (i.e. a direct legal stake in the outcome). . . Again no automatic disqualification
o Personal knowledge —
· Hypnosis — The Supreme Court held in Rock v. Arkansas, that a criminal defendant who has been hypnotized cannot be deprived of the right to testify in her own defense so long as a particularized inquiry concerning the reliability of the hypnotic process that produced the recollections was conducted in a reliable manner.
c. Dead Man Statutes
· Can be applied in fed civil case.
· Rules provide that in diversity case where subject matter is based on diversity jurisdiction.
· Gen., in a civil action, an interested witness is incompetent to testify (2) in support of her own interest against the estate of a decedent concerning a (3) transaction or communication w/ the decedent.
§ Why? Common law fear of perjury. One party is dead, and the belief is that the survivor is going to lie through his teeth, and other side is unavailable to give their side of the story
§ i.e. the statute will “seal the lips” of the surviving party
· Hypo: Madonna sues elvis for brach of oral contract. Before trial, Elvis dies. M wants to testify regarding the terms of the contract. Deadman’s statute renders her incompetent.
· Hypo2: Assume friend Brittney was there during the negotiation. Could B testify in support of M’s case? YES, even though she’s biased, it doesn’t give her an interest in the outcome of the case. So, not an interested witness.
· Hypo3: Could M testify as to the profits she lost as the result of Elvis’ breach. YES. She’s testifying to something outside of the transaction or communication
4. Examination of Witnesses
a. Gen
· Use of leading questions.
· Rule:
§ Generally not allowed during the direct examination of the witness.
§ During cross its generally allowed
· 4 exceptions where leading is allowed during direct:
§ For preliminary introductory matters to get testimony started
§ e.g. let’s go to [day], weren’t you at the bank
§ Youthful or forgetful witness
§ A hostile witness
§ To question an adverse party, or someone under the control of the adverse party
b. Use of Writings
· Basic rule is witness cannot come and read from a prepared memorandum
· Two situations where use of writing is allowed:
§ Refreshing witness’ recollection — if witness’ memory fails him, you can show a memo or any tangible item to jog their memory
§ E.g. Homer Simpson is burglarized and several items were stolen. Files an insurance claim, and insurance refuses to pay. Homer is called to the stand and asked to testify which items were stolen. So attorney gets out a list of items. Objections as to: best evidence, hearsay, and no authentication
· All should be overruled b/c the writing isn’t being introduced into evidence. It’s only being used to jog witness’ memory.
· Now witness testifies on the basis of his recollection.
· Applies to tangible stuff too.
§ After witnesses memory has been refreshed you have to set aside the writing, so you can’t let the proponent read from the writing
§ Three protections from misuse of the process:
· Have to show the doc to opposing counsel
· Opposing counsel is allowed to use it during cross-examination
· Opponent is allowed to introduce the writing into evidence if they want to
§ Recorded recollection, 803(5)
§ e.g. Homer looks at the writing and it doesn’t jog his memory. So homer’s attorney seeks to have the list read into evidence. Objection, hearsay. Yes it is hearsay if we’re trying to read it into evidence, BUT here we have the foundation for the hearsay exception for recorded recollection. If you satisfy the five requirements, it acts as substitute.
§ Five requirements:
· Showing writing to W fails to jog his memory
· W has personal knowledge at a former time
· Writing was either made by witness himself or was adopted by the witness.
· W’s writing of the document or his adoption of it occurred while the event was still fresh in his memory.
· Eg. Day after burglary
v. Witness is able to vouch for the accuracy of the writing at the time it was made
§ When the five requirements are met, we’ll allow Homer to read it into evidence. But writing itself cannot be admitted into evidence. [Opponent may introduce it into writing if they want to]
5. Relevance
a. Generally
o In essay answers, always start off w/ a couple of words on relevance
· Rule 401- Ev is relevant if it has any tendency to make a material fact more or less probable
· Rule 403 -All relevant ev is admissible unless you have some specific exclusionary rule, or the court in its discretion may determine that the probative value of the ev is substantially outweighed by more pragmatic
· Six Balancing factors (UCM-DWC):
Factors dealing w/ accuracy of factfinding
a. Danger of unfair prej
b. Confusion of the issues
c. Or misleading the jury
Factors dealing w/ efficiency
4. Undue delay
5. Waste of time
6. Unduly cumulative
b. Similar Occurrences
· Generally, If evidence concerns some other time, some other event, or some other person..
§ INADMISSIBLE
· BUT five areas where we might have admissibility [categories of similar occurrence evidence]
§ Pltffs accident history
· e.g. Batman crashes into lamppost and sues city
· Can city introduce evidence that batman has crashed into other objects and sued the people involved?
· Generally NO. It merely shows that Batman is litigious. But what about showing batman being accident prone?
· Still not admissible, b/c it’s improper character evidence
· BUT may be admissible if the cause of P’s damages is in issue
· e.g. if batman tries to claim the crash injured his back. Now city can use the other accident to show that batman’s back was injured by other accidents
§ Ds accident history
· Generally inadmissible b/c it tends to show Ds carelessness (i.e. improper character evidence)
· BUT other accidents involving the same instrumentality or condition, and occurring under substantially similar circumstances may be admissible for three purposes
· To show existence of a dangerous condition
· Causation
· Prior notice to the defendant
· e.g. Batman hypo
· Can batman show that six other drivers crashed into the same lamppost
· Maybe yes, if we show that the other accidents occurred under substantially similar circumstances
· Would tend to show that the lamppost (1) has created a dangerous condition, (2) would also show causation, and (3) prior notice
§ Intent
· Prior conduct may be used as circumstantial evidence of intent on a particular occasion.
· e.g. Catwoman sues Gotham for gender discrimination. She claims that she was not hired for the job simply because she was a woman. To show gender discriminati
used against a party in a criminal case based on the same facts?
· Beginning Dec. 1, 2006 [this is an old lecture], new rule. D’s offer to settle civil case w/ any party NOT admissible in a related criminal case.
· What about D’s admissions of fact made during the civil settlement discussions. Remember statements of fact are more highly probative.
· If D’s admissions of fact were made during civ settlement discussions w/ a private party (e.g. shareholders), those admissions of fact are NOT admissible in the related criminal case.
· BUT statements of fact made to a government agency in context of civil settlement ARE admissible against D in a related criminal case (e.g. statements of fact to the SEC, FTC)
· Reason why the rule drew a distinction:
· If you talk to govt you can make them sign confi agmnt
4. Rule 409 — Offer to pay hospital or medical expenses
· Evidence that a party has paid or offered to pay hospital or med expenses are inadmissible to prove liability.
· Policy is to encourage charity and benevolence. You don’t have to show that there’s a disputed claim.
· e.g. Immediately after accident b/w penny and dollar, dollar says “don’t worry about a thing, I’ll pay your hospital expenses”
· Would be relevant to suggest to show he’s at fault, but applying the policy exclusion it cannot be admissible
· Rule only applies to the offer for payment of medical expenses
· e.g. If dollar says, “I’m willing to pay your hospial expenses, I’m sorry this is all my fault” The second half of the statement is admissible:
· Statement of fact made in connection w/ an offer to pay hospital or medical expenses is admissible. NOT w/in the policy exclusion.
· Important that statement is made immediately after accident
· If there was a disputed claim and they were talking settlement, then everything would be excluded.
d. Old Chief
· In Old Chief v. United States, the Supreme Court considered whether Rule 403 can have the practical effect of compelling a prosecutor to accept a defendant’s offer to stipulate to disputed facts that are relevant but potentially prejudicial. The argument in such circumstances is that the district court, having been given a choice between admitting the defendant’s concession and the potentially inflammatory evidence, must in fairness accept only the less prejudicial form of evidence.
· The Court held, as a general matter, “that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the government chooses to present it.”The government, in general, should be allowed to prove its case in a way that “tells a colorful story with descriptive richness.” Stipulations or concessions that leave gaps of abstraction in the story can deprive the jury of the will to draw the inferences necessary to reach an honest verdict and frustrate their expectations about proper proof. In Old Chief itself, however, the fact to which the defendant offered to stipulate—his prior conviction for assault as a predicate for the charged crime of illegal possession of a firearm by a felon—was a technical element of the possession crime that required no “evidentiary depth” to convey the prosecution’s continuous and convincing story. In light of the risk of jury misuse of the prior felony as improper propensity evidence, the lower court was held to have abused its discretion in allowing the government to prove the full record of the prior felony when alternative, equally probative evidence—the defendant’s admission—was available.
