Evidence Outline

Evidence – Jaros – Spring 2014

For evidence to be admissible:

· Personal Knowledge for Witness Testimony / Authenticated for Tangible Evidence

· Relevant

· Pass Hearsay Test

· Pass Character Evidence Test

· Pass Policy Test

· Pass Expert Witness Requirements

· Not violate privileges

Basics

· Purposes:

o Prevent bias, keep things fair

o Keep proceedings relevant and on track

o Policy reasons – promote settlement, keep justice system moving

· Based on statutes, FRE/State codes, first and common law/cases only to understand or where rules are silent

· May be used as both a shield and a sword & are intertwined with strategy

· Rule 102 – Rules are to be construed to administer every proceeding fairly, eliminate unjustifiable expense and delay, and promote the development of evidence law, to the end of ascertaining the truth and securing a just determination.

· State rules of evidence apply when Erie says they should

o Civil proceeding

o Concerns an element of a claim or defense

o State law provides applicable substantive rule

· Evidence consists of

o Witness testimony

o Tangible evidence

§ Real – the evidence itself was actually involved in the events case

§ Demonstrative – something that helps to illustrate or explain evidence

§ Jury takes real evidence to the deliberation room, demonstrative is for explanation only

o Must be authenticated – Rule 901

§ Proponent must produce evidence sufficient to support finding that the item is what the proponent claims it is

§ Ways to authenticate (not exclusive list):

· Testimony of a witness with knowledge

· Non-expert opinion about handwriting (based on familiarity)

· Comparison by an expert or the trier of fact

· Distinctive characteristics of an item

· Opinion about a voice (non-expert is fine)

· Evidence about a telephone conversation

o Call was made to a number AND

o Person assigned to that number is identified as answering (by self-identification or other circumstances) OR

o If a business, the call was related to business reasonably transacted over the phone

· Evidence about public records

o Record is from the public office where items of its kind are kept OR

o Document was lawfully recorded or filed in a public office

· Evidence about ancient documents or data compilations

o Must be in condition that creates no suspicion about authenticity

o Was in a place that makes sense for it to be if it were authentic

o Is at least 20 years old

· Evidence about a process or system that describes and shows it produces an accurate result

· Any other method prescribed by statute or SCOTUS

§ Authenticating photos

· Depends on if it is real evidence (photo of crime in progress) or demonstrative evidence (photo of crime scene later)

· Demonstrative – anyone who has personal knowledge of what the photo is demonstrating can testify as to whether it is a “fair and accurate depiction” but the witness must have perceived the subject of the photo AT THE RELEVANT TIME

· Real – Witness must have personal knowledge that the photo was taken at the relevant moment – photographer testimony usually sufficient

§ Authenticating Chain of Custody

· For real evidence – to prove that the item is the specific item, not a similar one or general example

· Also important for items that can be altered (photo, etc.)

· Must show it was in continuous safe-keeping from the moment it was connected to the case to the moment it is identified for the record in court

o Self-Authenticating Evidence – no need for extrinsic evidence to admit

§ Domestic Public Documents Signed and Sealed

§ Domestic Public Documents Signed w/o Seal – IF another public officer who has a seal and official duties within the same entity certifies that the signature is genuine and signer has official capacity to sign

§ Foreign Public Documents – signed by someone with purported authority to do so and certification that it is genuine and authorized

§ Certified Copies of Public Records

§ Official Publications – issued by a public authority

§ Newspapers and Periodicals

§ Trade inscriptions and the like

§ Acknowledged documents (signed by notary public)

§ Commercial Paper

§ Anything considered presumptively genuine or authentic by any federal statute

§ Certified domestic records of regularly conducted activity

§ Certified foreign records of regularly conducted activity

o Process of admission:

§ “submit this as Exhibit A”

§ Identified for record

§ Give explanation to authenticate

§ Move that court find it is authenticated and admit as evidence

o Evidence should be admitted unless it is so weak that no reasonable juror could find that it is what it is said to be

o Best Evidence Rule – Rule 1002 – an original writing, r