Evidence
Dripps ¨Spring 2008
Introduction. 4
Relevance. 8
Admissibility. 9
Probative Value v. Prejudicial Effect9
Hearsay. 10
Definitions – FRE 801. 11
Non-Hearsay by Definition:12
801(d) Non-Hearsay. 14
Prior inconsistent statement14
Prior Identification of a person. 14
Admission by party-opponent15
Former Testimony – Prior Consistent Statement18
Admissible Hearsay – Exceptions. 18
Former Testimony. 18
Dying Declarations. 19
Family History – FRE 804(b)(4):20
Forfeiture by Wrongdoing FRE 804(b)(6):20
Declarations Against Interest23
State of Mind. 24
Medical Diagnosis or Treatment26
Past Recollection Recorded. 26
Business Records. 27
Public Records. 29
Statements in Ancient Documents. 30
Learned Treatises:31
Judgment of Previous Conviction. 31
Catch-all/Residual Exception. 31
Hearsay v. 6th Amendment rights. 32
Confrontation Clause. 32
Forfeiture by Wrongdoing. 35
Statistical Evidence. 36
Character and Habit Evidence. 37
Character (Reputation/Opinion, Past Acts)37
General Prohibition – FRE 404. 37
Exceptions – When/What Character Evidence may be Used. 37
Rape Shield Law.. 39
Evidence of Past Sex Crimes in Sex Crime cases. 40
Habit….41
Prior Occurances / Similar Happenings. 42
Subsequent Precautions. 43
Offers in Compromise. 44
Impeachment45
Specific Contradiction. 46
Disposition – Character for Untruthfulness. 47
Disposition – Prior Convictions. 49
Prior Inconsistent Statements (self-contradiction)51
Prior Consistent Statements. 52
Bias, Hostility, Interest53
Defect in Mental or Physical Capacity. 53
Privileges. 55
Attorney Client Privilege. 56
Physician Patient Privilege. 60
Privilege Against Self incrimination – 5th Amd.65
Marital Privilege. 66
Testimonial Privilege. 66
Confidential Marital Communications. 67
Opinion Evidence and Expert Witness’s. 67
Opinion Testimony by Non-Expert Witnesses. 67
Opinion Testimony by Expert Witnesses. 68
Requirements for Opinion to be Admissible:69
Bases of Opinion/Sources of Data. 70
Disclosure of Bases for Opinion. 71
Subject Matter of Opinion. 72
Impeachment of Expert Witnesses. 73
Scientific Evidence. 73
Frye Standard:73
Daubert Standard. 73
DNA Evidence. 75
Authentication. 76
Best Evidence Rule. 78
Definitions – FRE 1001. 79
Requirement of Original – FRE 1002. 79
Admissibility of Duplicates – FRE 1003. 79
Admissibility of Other Evidence of Contents – FRE 1004. 79
Right to Present a Defense. 80
Introduction
I Why Evidence Law:
– mistrust of juries
– policies relating to the matter being litigated – i.e. burdens of proof
– extrinsic substantive policies – i.e. protect marriages
– assure accurate fact-finding
– administrative function
II The Record
A. 5 kinds of material included in the official trial record
i. Pleadings:
ii. Field Documents: all papers filed with the court
iii. Record of Proceedings
iv. Exhibits
v. Docket Entries
III
*Dripps: 4 kinds of evidence
1. witness was there and can describe what happened (testimonial)
2. Witness found something that helps understand what happened (testimonial)
3. Document (tangible)
4. Photo (tangible)
Types of Evidence
A. Testimonial Proof
i. Personal Knowledge Requirement: witnesses can only testify about facts of which they have direct personal knowledge – sensory experiences at the time of the events
a. FRE 602: A witness may not testify unless evidence is introduced sufficient to support a finding (to the jury as long as the is some evidence) that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’ own testimony.
b. CEC 702: (a) the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter; (b) A witness’ personal knowledge of a matter may be shown by any otherwise admissible evidence, including his own testimony
*Dripps: The main difference between FRE 602 and CEC 702 has to do with un-sworn witness statements and privileges
c. Policy: Information from a firsthand observer is more accurate; factors that separate what witness testimony from other sources of evidence
(i) Demeanor as an indicator of credibility
(ii) Oath
(iii)Perjury consequences
(iv)Cross examination
*Dripps: the real protection against false testimony)
B. Direct Examination of a Witness
i. Defined: background information on the witness, foundation showing that the witness has knowledge of the matters, must be substantive questions
ii. Restrictions
a. No leading questions
b. No compound/confusing questions
c. No questions that assume unproved facts
C. Cross Examination
i. Defined: opposing counsel’s opportunity to question a witness
ii. Scope of Direct Rule: cross examination is limited to the issues explored in direct examination, trial judge may permit broader cross
iii. Restrictions:
a. Questions must be relevant
b. May do no more than qualify, clarify or supplement the direct testimony
c. Examiner may try to impeach credibility or knowledge or truthfulness
iv. NOTE: leading questions are permitted because the idea is to remain in control of the witness and narrowly focus the answers on specific details;
D. Expert Witnesses
i.
f the ruling is adverse to the introducing party
C. FRE 103:
i. Error not to be predicated on evidentiary ruling unless a substantial right of the party is affected, and
a. Timely and specific objection, or
b. Offer of proof was made
D. Three ways of making an offer of proof
i. Tangible Offer: : hand a tangible piece of evidence to the court reporter, or read a writing into the record
ii. Witness Offer: proceed with examination of the witness, the recorded responses constitute the offer of proof
iii. Lawyer Offer: a statement to the court at the time of its ruling, and on the record, showing what the witness’ answer would have been
V Excluding Evidence
A. Objections: To preserve issues for appeal, keep trial moving on, and draw errors to the party and the court, must be:
i. Timely: must be raised at the earliest possibly opportunity, usually after a question is raised but before the witness answers (if after the witness answers, its an “after objection”)
ii. Specific: should include the grounds for the objection and specifically what the objector seeks to exclude
iii. Substantive: rest on particular exclusionary rules in the FRE; goals is to keep the evidence out altogether
iv. Formal: focus on the manner of questioning, not in FRE but speak to the authority of the judge to regulate the presentation of proof
B. The Motion in Limine: a pretrial motion used when parties expect an objectionable evidence will be introduced to present more elaborate arguments as to why evidence should be excluded; FRE 103(a) provides that motion need not be renewed at trail
VI Trial Process:
A. Jury Selection:
i. Jurors are seated and introduce themselves
ii. Voir Dire: jurors are questioned and challenged “for cause” if they are related to a party, is prejudiced on an issue or against a party, to be excluded upon review of the judge
iii. Peremptory Challenges: each party has a fixed number,, which entitles them to exclude a juror for any unstated reason
B. Opening Statement: presents background info and the argument that each party will make, usually the party with the burden of persuasion will go first