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University of Iowa School of Law
Stensvaag, John-Mark

Evidence – Stensvaag Spring 17
How many statements are being offered
How are they offered (written/oral/nonverbal)
Is the declarant available to testify?
Try to be mindful of what the evidence is being offered to prove (witness saying he saw birthmark isn’t proving birthmark, but to prove adultery)
RELEVANCE [401] Test: does it have a tendancy to make a fact more or less probable? (or is it irrelevant?)
AND is the fact of consequence in determining something? (is the fact its trying to help even material?)
Relevance is the connection between evd and the proposition it is trying to prove
Is the proposition a fact of consequence in the case?
Can we get from A to B?
Irrelevant evd is not admissible [402] Evd is ‘irrelevant’ for 2 reasons:
Its not probative of the proposition to which its directed (its irrelevant) OR
The proposition to which it is directed itself is irrelevant (immaterial to the case)
When proponent of evd is trying to get it on record, they have to establish a foundation that its admissible – the court’s ruling on this is a Prelim Q
We need to know what you’re trying to prove with the evd before we can know if the evd is relevant
104(b) when relevance that depends on fact
Yes voir dire
May grant conditional relevance + jury instruction
104(a) court need to decide Prelim Q on competency, priv, or admissible hearsay – NOT bound by FRE in these determination
Use this when the evd is relevant regardless of whether a fact exists
No voir dire – judge has to listen to entire story
Standard = [Bourjaly] preponderance of evd
Proponent must produce evd suff to support a finding
Ie of types of evd that MAY support a finding: direct eyewitness testimony, opinion on  handwriting, expert, distinctive characteristics, evd from a phone call (a number assigned to a business goes to that business) [Korch]  
Daubert – judge is gatekeeper, it’s a 104(a) Prelim Q on junk science
Prelim hearing on whether it meets standard of ‘scientific evd’ (pg 4)
Polygraph – no consensus that polygraph is reliable
Witness can only testify if evd if first introduced that they have personal knowledge
All witnesses are competent
Objections To witnesses (who I think are incompetent)
Relevance 402
Prejudice 403
Credibility (impeach/attack)
Only way to be incompetent witness under FRE
Refuse to testify truthfully under oath 603
Judge 605
Jury 606
Testimonial Capacities
As long as there is evd suff to support a finding that witness had personal knowledge of what they saw, heard, read, or guess, they may testify to it  (could be excluded for other reasons tho)
Personal Knowledge + conditional relevance
Opposing counsel would say it’s a 104(b) question so no voir dire, so they would move to strike it so that the jury will have to decide
Jury instruction: “if you believe the witness had personal knowledge, then consider their testimony w/ the other evd, if you don’t think they had personal knowledge, don’t consider it and it is not evidence”
Only applies to writings but we essentially need an ‘original’ of whatever document is presented, we of course know that an ‘orignal’ can be a copy or duplicate of original
When a written document is presented to a witness ASK on the EXAM if it’s the original
If I’m presenting something to my witness and other side objects sying “BER” here are my responses:
What im presenting is NOT a writing (its audio or something) and BER only applies to written documents
If it is a writing, the contents of the document are not at issue
The document I am presenting is an ‘original’
The document I am presenting is a duplicate, which is sufficient
The original was lost or destroyed and this is the next best thing
HYPO: If I have a witness on the stand testifying that Uncle will leave him everything this will NOT work because its secondary evidence – I need to introduce the ORIGINAL will into evd so that we can prove the contents of the original with the original – then ask witness to read it into evd rather than give opinion
Put in specimen w. witness who says its authentic
D may put on counter evd saying they have no personal knowledge
You’re going to have to give a jury instruction on whether they believe the witness or not and to consider it with the OTHER evd you are putting on to prove its auth
Myers Principle: if you are testifying to an independent fact, and it happens to be recorded in a way that is more accurate than your memory, it doesn’t matter, and you can testify to the independent fact from your memory – DOES NOT violate BER bc you are testifying to a fact, not the contents of a writing
BER on duplicates [1003] Duplicates are admissible the same as originals as long as there is no dispute about the authenticity of the original OR if its unfair to admit the duplicate
When you aren’t using an original [1004] Original not required if: destroyed or lost in good faith, cant be obtained, party who has it fails to produce, not closely related to a controlling issue
Copies of Public Records [1005] **DO NOT be careless in citing to this**
VERY NARROW application that only applies to public documents like deeds
NOT receipts or other non-private documents
PREJUDICE [403] rule excluding prejudicial evd = RAW discretion of judge
Corrollary – before excluding relevant evd under 403, see whether there is OTHER evd that don’t have the same dangers that can prove the same fact
Counterweighs to Relevance
Waste of time (overkill)
Undue prejudice
[Burns] gruesome photos granted new trial bc they had no particular value and inflamed jury
HEARSAY [801] Declarant – a person made the statement
Statement – statement an oral assertion, written, or nonverbal IF it was intended to be an assertion (examples?)
Hearsay – (1) it was made elsewhere (2) it’s being offered by the sponsoring attorney to prove the truth of the matter it asserts
**there’s a bit of a trick here: we are no longer doing the witness->declarant set up, here, we have someone (decl) on the stand who is said something out of court earlier and the prior statement i

g to a fact at issue
[Bridges] little girl told police details of apartment where hurt then later took them there- if she told them facts AFTER their visit, it would be HEARSAY
Can’t have unique knowledge after seeing something
The more detailed, the less its hearsay
NEEDS LIMITING JURY INSTRUCTION: “jury you have heard child make out of court statement about this apartment that she saw BEFORE going with cops, so you may use evd to show she was in apt before making the statement but not to prove that the apt had the things she said were in there”
[Adultery case w/ birthmark] Husband has witness who can testify to wife’s birthmark is NOT hearsay b/c we’re not offering it to show she HAS a birthmark, but to show adultery
HEARSAY EXCEPTIONS- doesn’t guarantee admissibility
[801] Statements are NOT hearsay
prior inconsistent statements under oath in a proceeding
prior inconsistent statements to rehabilitate witness testimony after crossx
[804] Statement ONLY admissible if declarant is unavailable
[803] Statement ONLY admissible if declarant is available
CAVEAT: 801(d), 804, and 803 only allow evd that would be excluded because its hearsay- doesn’t protect it from being excluded for another FRE or constitutional reason
Other reasons to exclude
no personal knowledge
police public record can’t be used against criminal D in trial
1. Opposing Party Statement [801(d)(2)(A-E)] NOT HEARSAY
Personal and Adoptive Statements
Example of OPS: Police officer testifies that D said “my windshield was fogged up” = hearsay exception
Rationale: you said it to someone so, it should be used against you
(1) Opinion rule doesn’t apply: if bystander hears driver say “the crash was my fault” then the OPS is offering an opinion that supports the other side’s theory of injury so the rule excluding opinions doesn’t apply [801(d)(2)(A)] (2) Requirement of personal knowledge doesn’t apply:
IE: A owns flower shop, A’s driver hit someone while delivering and A wants to testify to say my driver wouldn’t have done that = NOT admissible bc lack of pers. know. [602] BUT if a witness heard A say “my driver ran the light” but A wasn’t at the scene (no personal knowledge), then if the witness testifies A’s statement will come in under OPS
Miranda rights = notice of OPS exception
(3) opposing party = anyone in lawsuit opposing any single client
(4) doesn’t require the statement to be against the other party’s interest (DISTINCT FROM statement against interest, which requires it to be against interest at the time uttered)