Evidence Outline

EVIDENCE OUTLINE SUMMER 2008- CRIBARI
Possible Exam Questions: 3 HOUR EXAM. 9am!
If you were the lawyers for Her what would you do after the Giles Decision?
MN Sup Ct didn’t find intent and just said that regardless of whether the statements are testimonial that he forfeited his rights by murdering her. This is WRONG!!!
No forfeiture after Giles, so go back to trial court to try to get intent and/or go back to try to get the hearsay is testimonial.
But all 7 justices agreed on the result, they just disagreed on how to get there.
Does Giles provide for a domestic violence exception to the confrontation clause?
Breyer and Stevens are potentially pushing for a purpose requirement, more stringent than intention.
If you can infer an intent from the murder to keep the witness from testifying
Gingsberg and Souter were sounding that you shouldn’t start inferring the intent aspect. Even if no witness there may be a case coming, domestic violence case you would not have this.
4 of the majority are holding that the 6th Amend. Means what it meant in 1791 at the founding.
Exam Overview- Hints/TipsSuggestions:
He will check email Thursday and Friday Morning, after that he will not be available
Short answer, multiple choise, true/false, 150 word answers, short answer and tell why (briefly explain, 25-50 words),
The ultimate question is relevance
If hearsay and inadmissible it is not relevant to this trial because it is dangerous as…(unfair, ects)
Rules of General Relevance:
401- evidence that has ANY tendency to prove or disprove a fact of consequence
It has something to offer to help you find or not find a fact provided you are allowed to prove that fact
402 if evidence is relevant, then it is admissible (unless some other rule says it isn’t admissible)
403- if the evidence creates the danger that whatever it might prove might do it in an unfairly prejudicial way it is kept out- inadmissible (danger of misleading, confusing, ect must substantially outweigh the probative value of the fact to be proven by the evidence)
Rules of Limited Relevance (for a particular thing): Almost always a limiting instruction will be given! (105):
404-405- Character- 404a- can’t offer proof of character to prove that D acted in conformity with that character, but you are allowed to do it in three instances: 1. When D puts her character in issue, 2. When D puts the victim’s character in issue, 3. Whenever the witness takes the stand- but the only character that is admissible is character for truthfulness. See 607-609.
405- tells you how to do 404, just like 608.
For the exceptions you can only prove character with opinion and reputation evidence
Mickleson case
When character is an element of the crime then you can prove character with specific instances of conduct
406
407-410- offers of compromise, subsequent remedial measures, plea agreements, ect. (encourage these and give them protection to avoid court)
Hearsay- Article 8
801a-c- out of court statement recounted in court to prove the matter of the fact asserted- general definition
801d- limited definition, 801d1a- inconsistent statements, 801d2- prior consistent statements and motive to prior statement (Thome case)if they look sound and feel like hearsay
802- if it is not hearsay it is admissible, and if hearsay is not admissible unless 803, 804 (1-3, 6)(available and unavailable declarants
803(1-6, 8, 22-23)- present sense, excited utterances, prior convictions, business records, ect,even if it is false, as long as it meets the requirements it comes in
805-805- multiple hearsay, you must address each chain, you can impeach the declarant
807- not an answer on this exam!!!
Article 2, 3, and 7- Not on this exam
Article 9 and 10- Authentication and Best Evidence
You must demonstrate that it is relevant- sufficient to establish that the evidence is what it says it is.
Writing, recordings, data compilations, ect (what ever article 10 covers)- you must offer an original or a duplicate of the original and not a copy.