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Evidence, Whether a document/evidence/testimony should be admitted in…
Evidence
Documents
Temm 196-197
FRE 901(a)
Authentication
whether document is what proponent claims it to be
FRE 902
Self-authenticating docs
(OIL CANS)
Certified public docs (by clerk of agency or court that had custody)
Acknowledged documents signed before notary, sworn to truth, content, and execution (except wills)
Label, tag, or trademark affixed on item in regular course of business
Newspapers & periodicals w/ reasonably wide circulation
Instruments--negotiable & commercial paper
Sealed docs (govt. certified)
Official publications issued by public authority
FRE 1002
Best evidence rule
only docs
requires original writing, recording, or photo to prove its content
operative or dispositive instruments (Ks, deeds, wills)
Relevant?
Hearsay?
Hearsay
Temm 191-94
FRE 802
Rule
: inadmissible w/out exception
FRE 801(c)(1)-(2)
Definition
: out-of-court stmt. offered to prove the truth of the matter
FRE 801(d)(2)(a)
Party?
Yes = admission of party-opponent
No = analyze both parts of rule: out-of-court stmt. & offered for the truth of the matter
Conclude if hearsay
declarant can be person or document
Check for double hearsay
(same analysis each level)
Exception?
FRE 804(a)
Declarant unavailability d/t
Privilege
Refusal to testify
Lack of memory
Death or physical/mental illness
Absent beyond reach of court's subpoena power & proponent of stmt unable to procure attendance or testimony
FRE 804(b)(2)
Dying declarations
FRE 804(b)(6)
Stmt offered against party procuring declarant's unavailability
FRE 804(b)(3)
Stmts against interest
FRE 804(b)(4)
Stmt of personal / family history
FRE 804(b)(3)
Former testimony
Declarant unavailability immaterial?
(most frequently tested)
FRE 803(1)
Present sense impressions
FRE 803(6)
Business records
FRE 803(2)
Excited utterance
FRE 803(5)
Past recollection recorded
FRE 803(3)
Present state of mind or physical condition
FRE 803(8)
Public records
Witness
Temm 197-99
Privileges
governed by common law
,
FRE 501
Spousal
Physician / psychotherapist / social worker-patient
Attorney-client
Impeachment
to cast adverse reflection on witness's truthfulness
Cross-examination
Criminal convictions
Crimes involving dishonesty
Felonies not involving dishonesty
FRE 403
balancing test
Bias or interest
Prior inconsistent stmts
Extrinsic evidence
FRE 608
Prior bad acts
Reputation
FRE 701, 702
Opinion
Lay opinion
Expert opinon
Character
Criminal trial
Not to prove conformity w/ party's character
Other purposes incl. motive, opportunity, intent, preparation, common scheme or plan, knowledge, identity, absence of mistake or accident
Civil trial
Only if character at issue
Ex. child custody
Relevance
Hearsay
FRE 602, 603
Competency
must have personal knowledge & must declare will testify truthfully
Capacity to:
Communicate
Recollect
Observe
Appreciate obligation to speak truthfully
Real Evidence
Temm 199
Must be:
relevant
authenticated
by witness recognition (significant features make identifiable upon inspection testimony)
otherwise by chain of custody
Relevance
Temm 190
FRE 403
(Legal relevance)
May be excluded for public policy reasons if probative value outweighed by:
danger of unfair prejudice
confusion of the issues
misleading the jury
undue delay, waste of time, or needless presentation of cumulative evidence
Court's discretion whether to exclude
Exceptions
FRE 407
Subsequent remedial measures
to prove ownership or control or destruction of evidence (but NOT to show negligence)
FRE 408(a)
Settlement offers
may be admissible for other purposes
FRE 411
Liability insurance
to prove ownership or control (but NOT to show negligence or ability to pay)
FRE 410(a)
Withdrawn guilty pleas
Prior similar event
Causation
Similar accidents / injuries cause by same event
Similar acts admissible to prove:
intent
habit
industry custom / routine
FRE 401
(Definition)
Evidence w/ any tendency to make existence of any fact of consequence to the action more probable than would be w/out it
Character evidence
See chart, Temm 19
1
depends on:
what purpose introducing, and means of proving
civil or criminal
direct or cross exam
Whether a document/evidence/testimony should be admitted in court
Applies to civil suits only
Fed. Rules of Evidence (FRE)
Ask:
Who are the parties?
Who is the witness?
Direct or cross examination?
Who is questioning them?
What is the evidence?
For what purpose being offered?
Extrinsic evidence?