Evidence (Witness (Opinions (Expert (Consider whether the subject matter…
the document is what the proponent claims it to be.
require a testimonial sponsor to prove the writing was made, signed, or adopted by the particular relevant person
must be identified by a witness as both portrayal of relevant facts and a correct representation of those facts.
Self-authentication documents: (OIL CANS)
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 a notary, sworn to truth, content, and execution (except wills);
Newspapers and periodicals with reasonably wide circulation;
Sealed documents (gov't cert.)
Best evidence rule
Only applies to documents
Requires the "original writing, recording, or photograph,... to prove its content..."
(Keep eye out for contracts, deeds, and wills)
Character evidence not allowed to prove conformity with the party's character, but is allowed for other purposes (motive, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident.
Consider whether the subject matter is appropriate for expert opinion and if the opinion is supported by a proper factual basis.
Things to consider...
Subject matter appropriate for expert opinion
-- Scientific Knowledge
-- Technical Knowledge
-- Other specialized knowledge
Witness qualifies as an expert
Opinion backed with reasonable certainty
Opinion supported by a proper factual finding.
-- 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
Generally inadmissible, will be allowed if no better evidence exists.
to be admissible, the opinion must be... (1) based on the witness's perception; (2) helpful for a clear understanding of a fact at issue; and (3) not based on scientific, technical, or other specialized knowledge.
Purpose is to cast an adverse reflection on a witness's truthfulness.
Prior inconsistent statements
Must, on request, show evidence to adverse party's attorney.
Crimes involving dishonesty
Fraud or perjury, whether a felony or misdemeanor
Court has no discretion to exclude, no statute of limitations
Felonies not involving dishonesty
Court can exclude conviction, ten year time frame.
For accused - gov't must show the probative value as impeachment is not outweighed by it prejudicial effect - Generally favors exclusion
For witness other than accused - probative value is substantially outweighed by the danger of unfair prejudice.
Bias or interest
only admissible if witness has opportunity to explain statement and an adverse party has opportunity to examine witness about it or if justice requires.
Evidence of crime permitted
Prior bad acts
Interrogation is admissible, but within court discretion. The bad act must be probative of truthfulness.
Extrinsic evidence of the act is not permitted, it witness denies act, cross-examiner cannot refute by calling another witness or by providing other evidence.
Witness can be impeached by showing a poor reputation for truthfulness
Achieved by calling another witness from the community where impeached witness lives or from business circle.
No allowed on a collateral matter, but is allowed of a hearsay declarant.
Capacity to obverse, to recollect, to communicate, and to appreciate the obligation to speak truthfully.
must have personal knowledge and must declare he/she will testify truthfully.
FRE 602, 603
Governed by Common Law.
Attorney client privilege;
Physician, psychotherapist, or social worker privilege;
inadmissible w/o an exception.
Declarant must be unavailable
Privilege; Refusing to testify; Lack of memory; death or physical/mental illness; Absent beyond reach of court's subpoena power and proponent of the statement is unable to procure attendance or testimony.
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 corroboration circumstances that clearly indicate its trustworthiness.
Statement made by declarant believing that declarant's death was imminent;
Statement about it cause or circumstance.
Statement of personal or family history
Statement offered against party procuring declarant's unavailability
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.
Declarant does not have to be unavailable
Present sense impressions
Statement describing or explaining and event or condition;
Made while or immediately after the decarant perceived it.
Made at or near the time by someone w/ 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. FRE 803(6)
statement relating to a startling event or condition;
Made while under the stress of excitement that caused it.
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.
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.
Past recollection recorded
A record that:
-- Is in 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; and
-- Accurately reflects the witness's knowledge
May be read into evidence;
May only be received as a n exhibit if offered by an adverse party.
an out-of-court statement offered to prove the truth of the matter.
Must be relevant. Shown either by authentication or chain of of custody
evidence having the tendency to make the existence of any fact of consequence to the action more probable than it would be w/o the evidence.
- admissible if used to prove ownership or control. Not admissible if used to show negligence or ability to pay.
Subsequent Remedial Measures
- admissible if used to prove ownership, control, or destruction of evidence. Not admissible if used to show negligence.
Settlement Offers and Withdrawn guilty pleas
are inadmissible, but in some cases admissible.
FRE 408(a); 410(a)
When the evidence does not relate to the current event, but is of a
prior similar event
. Includes causation; similar accidents or injuries caused by the same event; and similar acts admissible to prove intent, habit, and industrial custom or routine.
FRE 408 -
the court has discretion to exclude relevant evidence if its probative value is
outweighed by the danger of unfair prejudice; confusion of the issue; misleading the jury; or by consideration of undue delay, waste of time, or needless presentation of the cumulative evidence.
Prosecution cannot initiate.
Party: Def. can introduce evid. of good character to help prove innocents.
Party or witness: Impeachment
Generally not admissible.
Only when character directly at issue: child custody, defamation, etc.
Party or witness: Impeachment