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Evidence (Witness (Opinions (Expert (Consider whether the subject matter…
Evidence
Documents
Authentication
the document is what the proponent claims it to be.
FRE 901(a)
Writings
require a testimonial sponsor to prove the writing was made, signed, or adopted by the particular relevant person
Photographs
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.)
FRE 902
Best evidence rule
Only applies to documents
Requires the "original writing, recording, or photograph,... to prove its content..."
FRE 1002
(Keep eye out for contracts, deeds, and wills)
Witness
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.
Opinions
Expert
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.
FRE 702
-- 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
Lay
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.
FRE 701
Impeachment
Purpose is to cast an adverse reflection on a witness's truthfulness.
Cross-Examination
Prior inconsistent statements
Must, on request, show evidence to adverse party's attorney.
Criminal Convictions
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.
Balancing tests
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.
FRE 403
Bias or interest
Extrinsic Evidence
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.
Reputation
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.
Competency
Four attributes
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
Privileges
Governed by Common Law.
FRE 501
Includes:
Attorney client privilege;
Physician, psychotherapist, or social worker privilege;
Spousal privilege
Hearsay
Rule:
inadmissible w/o an exception.
FRE 802
Exceptions
Declarant must be unavailable
Results from...
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.
FRE 804(a)
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.
FRE 804(b)(3)
Dying declarations
Statement made by declarant believing that declarant's death was imminent;
Statement about it cause or circumstance.
FRE 804(b)(2)
Statement of personal or family history
FRE 804(b)(4)
Statement offered against party procuring declarant's unavailability
FRE 804(b)(6)
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.
FRE 804(b)(3)
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.
FRE 803(1)
Business Records
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)
Excited utterance
statement relating to a startling event or condition;
Made while under the stress of excitement that caused it.
FRE 803(2)
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.
FRE 803(8)
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.
FRE 803(3)
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.
FRE 803(5)
Definition:
an out-of-court statement offered to prove the truth of the matter.
FRE 802(c)(1)-(2)
Real Evidence
Must be relevant. Shown either by authentication or chain of of custody
Relevance
Definition -
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.
Legal Relevance
Exceptions
Policy-based
Liability Insurance
- admissible if used to prove ownership or control. Not admissible if used to show negligence or ability to pay.
FRE 411
Subsequent Remedial Measures
- admissible if used to prove ownership, control, or destruction of evidence. Not admissible if used to show negligence.
FRE 407
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
substantially
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.
Character Evidence
Criminal?
Direct Examination
Prosecution cannot initiate.
Cross-Examination
Party: Def. can introduce evid. of good character to help prove innocents.
Party or witness: Impeachment
Civil?
Direct Examination
Generally not admissible.
Only when character directly at issue: child custody, defamation, etc.
Cross-Examination
Party or witness: Impeachment