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Evidence (Witness (Character (On direct examination in a criminal trial,…
Evidence
Witness
Competency
A witness must have the capacity to observe, to recollect, to communicate, and to appreciate the obligation to speak truthfully.
The FRE requires that the witness have personal knowledge and must declare he will testify truthfully.
Relevance
Opinion
Lay Witness
Generally inadmissible
Must Be Inadmissible
based on the witness’s perception
helpful for a clear understanding of a fact at issue
not based on scientific, technical, or other specialized knowledge
Expert Witness
Subject matter appropriate for expert opinion
Scientific knowledge
Technical knowledge
Other specialized knowledge
Witness qualifies as expert
Opinion backed with reasonable certainty
Opinion supported by a proper factual basis
Personal knowledge
Facts made known at trial
Facts made known outside of court
Facts need not be admissible in court
Of the kind that are reasonably relied upon by experts in the field
Privileges
Attorney-client privilege
Client may refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of rendition of professional legal services to the client
Includes the attorney and its representatives
Only the client can waive the privilege
Physician, psychotherapist, or social worker-patient privilege
Confidential communications made for the purpose of diagnosis or treatment of the patient’s physical, mental, or emotional condition
Spousal privilege
Marital communication privilege: Provides that either spouse has a privilege to refuse to disclose and to prevent her spouse from disclosing a confidential communication made between spouses while they were husband and wife.
Spousal testimony privilege: A spouse may not be called as a witness by the prosecution against his spouse in a criminal case and may not be compelled to testify against his spouse in any criminal proceeding including those where the spouse is not the defendant.
Impeachment
Cross Examination
Extrinsic Evidence
Character
On direct examination in a criminal trial, character evidence is not allowed to prove conformity with the party’s character.
It is allowed for other purposes including motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident.
In a civil trial, character evidence is not allowed unless character is at issue, such as child custody.
Character evidence issues also arise with impeachment.
A party need not show a prior inconsistent statement to a witness.
Crimes
Crimes involving dishonesty such as fraud or perjury, whether a felony or misdemeanor.
Felonies not involving dishonesty
Relevance
Definition
Relevant evidence is evidence having any tendency to make the existence of any fact of consequence to the action more probable than it would be without the evidence.
Legal Relevance
Under FRE 403, a court has the discretion to exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice; confusion of the issues; misleading the jury; or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence.
The requirement is unfair prejudice, not just prejudice.
Exceptions
Evidence may be admitted that does not relate to the particular event, but is a prior similar event.
These exceptions to the relevancy rule include causation; similar accidents or injuries caused by the same event; and similar acts admissible to prove intent, habit, and industrial custom or routine.
Other exceptions are policy-based.
Liability insurance may be admissible to prove ownership or control, although it is not admissible to show negligence or ability to pay.
Subsequent remedial measures are not admissible to prove negligence, but may be admissible to prove ownership or control, or to prove destruction of evidence.
Settlement offers and withdrawn guilty pleas are also inadmissible, although they may be admissible for other purposes.
Character
Considerations include the purpose for the offer of character evidence and the means of proving character.
Direct Examination
Criminal: Prosecution cannot initiate.
Civil: Generally not admissible. Only when character directly at issue: child custody, defamation, etc.
Cross-Examination
Criminal:
Party: Defendant can introduce evidence of good character to help prove innocence.
Party or Witness: Impeachment.
Civil: Party or witness: Only for impeachment.
Hearsay
Definition
Hearsay is another overriding consideration.
CRAC or IRAC
One way to identify hearsay is to picture the witness on the stand and then identify who is making the actual statement.
Double or triple hearsay
Each level of hearsay must be analyzed separately; again, look for documents and individuals.
Admissible?
Non Hearsay
Exceptions
Declarant Unavailability Requried
Former testimony
Given as a witness at a trial, hearing, or lawful deposition
Offered against a party who had an opportunity and similar motive to develop it by direct, cross, or redirect examination
Statements against interest
Reasonable person in the declarant’s position would have made only if the person believed it to be true
Contrary to declarant’s proprietary or pecuniary interest
Supported by corroborating circumstances that clearly indicate its trustworthiness
Dying declarations
Statement made by declarant believing that declarant’s death was imminent
Statement about its cause or circumstances
Statement of personal or family history
Statement offered against party procuring declarant’s unavailability
Declarant Unavailability Immaterial
Present state of mind or physical condition
Must be then-existing state of mind or emotional, sensory, or physical condition
Not including a statement of memory or belief
Excited utterance
Statement relating to a startling event or condition
Made while under the stress of excitement that it caused
Present sense impressions
Statement describing or explaining an event or condition
Made while or immediately after the declarant perceived it
Business records
Made at or near the time by someone with knowledge
Kept in the course of a regularly conducted activity of a business or organization
Making the record was a regular practice of that activity
Shown by a custodian’s testimony or by certification
Neither the source of information nor the method of preparation indicate a lack of trustworthiness
Public records
Record sets out the office’s activities
Of a matter observed while under a legal duty to report
Neither the source of information nor other circumstances indicate a lack of trustworthiness
Past recollection recorded
A record that
is on a matter the witness once knew about but now cannot recall
was made or adopted by the witness when the matter was fresh in the witness’s memory
accurately reflects the witness’s knowledge
May be read into evidence
May only be received as an exhibit if offered by an adverse party
Documents
Relevant?
Authentication
The document is what the proponent claims it to be.
Photographs must be identified by a witness as both a portrayal of relevant facts and a correct representation of those facts. The witness needs to be familiar with the scene or object depicted. Neither the photographer nor an expert is required.
Self-authenticating documents
Official publications issued by public authority
Instruments—negotiable and commercial paper
Label, tag, or trademark affixed on item in regular course of business
Certified public documents (by clerk of agency or court that had custody)
Acknowledged documents signed before notary, sworn to truth, content, and execution (except wills)
Newspapers and periodicals with reasonably wide circulation
Sealed documents (government certified)
Best Evidence Rule
Only applies to documents.
Hearsay?
Real Evidence