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University of Baltimore School of Law
Jaros, David M.

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


· 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

vent people from testifying because of competency (felony, mental health, age) now go to credibility only

· Not competent to testify

o Judges – Rule 605 – plain error (danger that they will have more influence than they should, reluctance to cross examine, removes impartiality) – can testify in a case presided over by another judge

o Jury members – Rule 606 – May not testify in front of their other jury members

§ Exception: May testify during an inquiry into validity of verdict/indictment regarding:

· Extraneous prejudicial information brought to the jury’s attention

· Outside influence

· Mistake was made in entering into the verdict (i.e. extra 0 in dollar amount)

§ Exception to exception: May not testify regarding:

· Statements made or incidents occurring during deliberation

· Effect of anything on any juror’s vote (theirs included)

· Any juror’s mental processes regarding the verdict/indictment

· (No affidavits either)

§ Tanner v. United States – Use of alcohol or drugs by jury during proceeding =/= outside influence

§ United States v. Benally – Racial bias not an outside influence – purpose of voir dire

Personal Knowledge

· Someone who testifies must have personal knowledge (does not apply to expert witnesses)

· Person’s testimony alone is sufficient to prove they have personal knowledge (no need for outside confirmation)

· Standard is whether a reasonable juror could conclude that the witness has PK

· To have personal knowledge, must be able to:

o Perceive

o Comprehend

o Remember

o Communicate

· Require personal knowledge, because without it:

o Want to shield jurors from unreliable testimony

o Want to give the opposing side the ability to confront/dispute the credibility of the ORIGINAL perception as much as possible

Oath or Affirmation – before testifying, a witness must take an oath or make an affirmation that they are telling the truth – Rule 603