Evidence Outline
Professor Alexander
Fall 2014
I. Appellate Review
v Preserving a Claim
Ø FRE 103(a): party may claim error in a ruling to admit or exclude evidence if the error affects a substantial right of the party and:
§ (1): if the ruling admits evidence, a party, on the record:
· (A): timely objects or moves to strike; and
· (B): states the specific ground unless it was apparent from the context; or
§ (2): if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.
Ø Apparent from context: if the previous objection was specific, and the disputed objection is for the same reason
Ø Application of Rule:
§ Must object to make the record in order to preserve ability to appeal evidentiary error. Otherwise, objection is waived.
· Appellate court must be able to determine if there was error
§ Objecting a ruling admitting evidence:
· “substantial right”: cannot appeal trivial errors
· Motion to strike: evidence deleted from record and jury instructed to disregard evidence
¨ There is a presumption that jurors will listen to judge; and
¨ Safety valve as the lawyer does not know whether a witness will give inadmissible evidence
§ Objecting a ruling excluding evidence:
· Offer of proof can be done either by
¨ Summarizing to judge what witness would say if permitted to answer; or
¨ Have jury excused and let witness answer before the judge
· Offer of proof must be made so that appellate court can know what would have been said
v Failure to Preserve a Claim: The Plain Error Doctrine
Ø FRE 103(e): a court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved
§ The error must be so obvious that a formal objection should not be necessary to alert the trial court to the problem
§ However, harmless error may occur that would not change the jury’s verdict
· Fair but not perfect trials are promised
v Standard of Review
Ø Any error is subject to an abuse of discretion standard
§ A deferential standard b/c the judge has first hand knowledge of what transpires in the court room
Ø Some FRE are w/o discretion for the judge and then the appellate court must overturn the judge’s decision
v Objections Before Trial
Ø Motion in limine: pretrial motion to exclude/ admit certain evidence
§ Used after discovery w/ knowledge of what witness will say on the stand
§ FRE 105: if the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly.
II. Source of Evidence and the Nature of Proof
v The Big Three Requirements
Ø A witness must be competent (601), have personal knowledge (602) and take an oath or affirmation (603)
v Competency
Ø FRE 601: every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.
§ FRE 610: evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility
§ State law is applicable in
· (1) civil actions
· (2) where it concerns an element of a claim or defense; and
· (3) the claim or defense is one as to which the state law supplies the applicable substantive rule
¨ Erie Doctrine
¨ Dead Man’s Statutes and Per Se Bans on Children
§ NY Law: 3 forms of incompetency:
· Dead Man’s Statutes:
¨ Deem incompetent an interested party testifying against the dead man’s estate
· Hypnotism
¨ Dangers:
Ø Suggestibility by hypnotist
Ø Confabulation to please
Ø Overconfidence that what is remembered is real
¨ Courts take different stances
Ø Some say per se competent
Ø NY – per se incompetent
§ People v. Hughes
Ø NJ/ Federal – witness is competent if certain safeguards are in place
¨ Rock v. Arkansas: state cannot arbitrarily make a per se rule against a criminal D from hypnosis testimony
Ø D has constitutional right to testify on her own behalf and must balance this w/ whether particular hypnosis is reliable
Ø Prosecution witnesses do not fall under this
§ 5 Requirements:
· Qualified professional conducting hypnosis that is not regularly employed by defense/ law enforcement
· Session recorded to check suggestive questions not used
· Detailed recollection of what witness remembers before hypnosis
· Only hypnotist and subject may be present
· Judge makes determination whether overly suggestive
· Criminal Cases: Children under 9 are presumed in competent
¨ Judge may conduct voir dire to ascertain if the child has sufficient personal knowledge and understands the duty to testify truthfully
v Personal Knowledge
Ø FRE 602: a witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of a witness’s own testimony. Does not apply to expert testimony under 703.
§ Perceive: perception must be reasonably accurate, but firsthand
· Ex: testifying about a convo that took place in a language you do not understand – you perceive it is in a different language but unable to tell what language
§ Remember: must have current memory of the event
§ Communicate: the person needs to be able to communicate
· People unable to communicate may be pu
usiness and the call related to business reasonably transacted over the telephone
· Evidence about Public Records: evidence that:
¨ (A) a document was recorded or filed in a public office as authorized by law; or
¨ (B) a purported public record or statement is from the office where items of this kind are kept
· Evidence about ancient documents or data compilations: for a document or data compilation, evidence that it:
¨ (A) is in a condition that creates no suspicion about its authenticity;
¨ (B) was in a place where, if authentic, it would likely be; and
¨ (C) Is at least 20 years old when offered
· Evidence about a process or system: evidence describing a process or system and showing that it produces an accurate result
· Methods provided by a statute or rule: any method of authentication or ID allowed by a federal statute or a rule prescribe by the Supreme Court
§ Ex: In a breach of K case, P introduces signed letter from D that says “I accept your offer.”
· P must claim letter is from D
· To authenticate letter, P must produce sufficient evidence to support finding that this is D’s letter
· Ways to authenticate the signature:
¨ 901(b)(1) – testimony from witness who saw D sign or D himself
¨ 901(b)(2) – non expert who’s familiar w/ D’s handwriting
¨ 901(b)(3) – take a genuine sample and the disputed document and let jury decide or an expert employing forensic handwriting analysis
¨ Typed letters under (b)(1) or (b)(4)
¨ Solicited Reply Doctrine: where a reply is requested and it is returned in a reasonably expected manner there is sufficient evidence to find it is authentic
Ø P drafted K and mailed to D, got reply 5 days later. Can infer it was addressed correctly and person responding was D
¨ 901(b)(8): if more than 20 years old
§ Chain of Custody
· Fungible Items: must establish chain of custody b/c it is indistinguishable from other items w/ a similar appearance
· Unique Items: may not have to establish a chain of custody if sufficiently unique
¨ Depends on context:
Ø Fungible item can be made unique by a marker, i.e. initials on gun
Ø A unique item can be fungible if specific neighborhood has a lot of them
Ø Unique item susceptible to alteration
