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Temple University School of Law
Ohlbaum, Edward D.

EVIDENCE Professor Ohlbaum

Evidence-Body of rules, procedures and regulations that govern the way trial lawyers and trial judges conduct the business in a courtroom. Separates lawyers from non-lawyers and goes to the heart of what trial law is. (the most important class you take).

RULE #1: You follow the instructions of the judge : Credibility is most important commodity.
Stages of Trial:
1)       Voir dir (1) For Cause    (2) Preemptory Challenge

3 prong overview:
l          Relevance
»        The Purpose (The “what”)
–        Any tendency
–        Any fact of consequence
–        Ct does not weigh credibility
»        Competent = 1st HK –
»        HS Exceptions
»        Authentication
Social Policy
Unfair Prejudice
i.      Substantially outweighs probative value (403)

Questions to ask:
Criminal or Civil?
Who is on stand?
What’s being done?
Document marked? Offered? Identified? Read?
Purpose of being offered?
When is it being done? (foundation?) (door open?)
Why being done?
Impeach? Impeach + Substantive (801d1a)
How is it being done? (direct/cross)
Specific acts vs. reputation vs opinion.

I. Testimonial Competence
FRE 601 General Rule of Competency- both for judges and jurors.

Presumption of competency is strong but not absolute
601 appears to get rid of all objections to competency except where they are specifically provided for in the rules, or in civil cases, where state law supplies the rule of decision with respect to an element of a claim or a defense and state witness competency rules apply

Some states still have minimum age requirements for witnesses and exclude persons having mental problems (senility & low intelligence)

Judge can have a 104: Judges Rule on Preliminary Questions.
(a) hearing to determine competency – otherwise competency matters become a matter of weight for the jury, not issues of admissibility COMP (Communication, Oath, Memory, Perception)
-Becomes important for hearsay (can person relay another’s statements).
-0-7 (presumed incompetent burden on sponsor); 7-13 (presumed competent, burden on challenger)

(1) Does the witness understand the duty imposed by the OATH to testify truthfully?
(2) Does the witness have sufficient MEMORY to testify to the matter at issue?
(3) Does the witness have the ability to COMMUNICATE what he SAW and HEARD?
Communication-Not a human tape recorder
Oath- took oath to tell the truth
Memory-time past and to communicate this in time present
Perception-Is this something witness knows first hand and something they can perceive

Burden: Once competency challenge made, sponsoring party has both the burden of persuasion and burden of going forward of showing competency. This challenge is now usually reserved for children

Competency of hearsay declarant (mentally ill) – lack of competency is usually not a barrier to admissablity

Child witnesses in criminal cases à case where minor is a victim or physical or mental injury, exploited by child

of the matter  
-Requires that sufficient personal knowledge be introduced – burden on party offering the testimony
-Requirement of firsthand knowledge – includes a witness’s personal observations, experiences & perceptions

TEST FOR JUDGE: IS AN OPINION THAT CAN BE CROSS EXAMINED with enough factual components in testimony?
Judge has to determine whether a reasonable juror would conclude it is more likely than not that the witness’s testimony is based on personal knowledge, experience or observation

Whether a witness possess enough PK is a conditional relevancy question to be determined under 104(b) à have to show enough evidence for a reasonable juror to find that it is more likely than not that the witness’s testimony is based on firsthand knowledge

Relationship to hearsay ruleà PK rule prevents a witness who did not observe an incident from adopting another’s report of the incident and relating it as the witness’s own à even when the witness relates admissible hearsay the witness must have PK that the hearsay statement was made

-However this can be cured/prevented by authentication question (e.g. I recognized his voice).