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Evidence, Impeaching a witness, What are the 3 principles that govern’…

- - - - Forms of evidence
        
        1) Oral=given by witnesses at trial. Types of witnesses:
        
        Fact witness=testify about facts THEY perceived.
        
        eyewitness=subset of fact witnesses. witnessed the event or issue central to the litigation in real time.
        
        Expert witness= use their specialized knowledge to answer questions regarding particular evidence (only required to have specialized knowledge for which they are utilizing in their capacity as a witness)
        
        Character witness=testify about the character of a party or other witness (only required to have knowledge about the party or witness they are testifying about)
        
        2) real=“any physical evidence that a party claims played a direct role in the controversy.” pg. 8
        
        party offering this type of evidence must authenticate it. authenticate=prove that it is what they say it is.
        
        3) documents=anything that captures information, produced by an array of sources for via an array of mediums, ex. writing or recordings. some documents are real evidence (need to be authenticated UNLESS they are a self authenticating document).
        
        4) demonstrative=evidence created by parties, ex. reenactments or imitations of material objects to the litigation. Subject to abuse (misrepresentation, overly dramatic).
        
        5) Judicial notice=when court makes a factual determination. Applies to adjudicative facts that are "undeniably true that pass FRE 201(b) 2 part test."
        
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  - - - does not apply to SCOTUS
      - Does not apply to administrative agencies BUT they may adopt FRE or Congress may legislate that FRE's apply to an agency (ex. tax court)
      - FRE 1101 "Proceedings in U.S. courts"=U.S. district courts, bankruptcy and magistrate judges, U.S. court of appeals, U.S. courts of federal claims, district courts of Guam, Virgin Islands, and Northern Maina Islands
        
        FRE 1101(b), FRE apply in the following types of disputes regardless of the underlying claim:
        
        1) Civil cases and proceedings, including bankruptcy, admiralty, and maritime cases
        
        3) only contempt proceedings that resemble a trial (if court acts in a summary capacity rules don’t apply “summary contempt”)
        
        2) criminal cases and proceedings
  - - - When D did not have opportunity to cross examine declarant prior and the hearsay is testimonial AND the declarant is unavailable to testify
        
        Unavailability and prior cross examination=“D must NOT have had a similar motive to cross examine the declarant at the prior proceeding...if same motive no 6th amendment issues.” (pg. 755)
        
        In looking at whether statement is testimonial courts look at the primary purpose of the statement (objective test)
        
        Test=Whether a reasonable person would believe their statement would be used to establish or prove past events relevant to a later criminal prosecution or be admitted as testimony? (pg. 739) See flashcard
- - - - 2) Motions to suppress=when you claim evidence was illegally obtained
        
        3) Motion for summary judgement=when you claim your opponent lacks evidence or that their argument lies solely on inadmissible evidence.
  - - - FRE 103(a)(1) MOTIONS: If the ruling ADMITS evidence, a party, on the record:
        
        Must have raised the issue below via 1 of 2 mechanisms and is timely w/ specificity: 1) object or 2) motion to strike
        
        objection=done BEFORE opponent introduces potentially inadmissible/irrelevant evidence
        
        Motion to strike=done AFTER opponent introduces potentially inadmissible/irrelevant evidence. Can be done IMMEDIATELY after evidence is introduced or LATER “timely” when it becomes clear the evidence is inadmissible/ relevant
        
        Timeliness=when the ground for objection or motion to strike is known or should be reasonably known. (If no timeliness waived right to appeal UNLESS plain error)
        
        w/specificity= must state the specific grounds for the motion, UNLESS it was apparent from the context. Must be specific enough to give judge and opposing party notice of the alleged defect to allow them opportunity to remedy it AND must specify what portion of or all of the evidence (includes testimony) you object to or seek to strike. Specific grounds must be for THAT motion (if you raise multiple motions, must state the separate grounds for EACH one in order to persevere for appeal).
        
        apparent from the context=an appellate judge would not need additional information to understand why the objection is being made
        
        FRE 103(a)(2) DEFENDING EVIDENCE “OFFER OF PROOF”: if the ruling excludes evidence, a party informs the court of its 1) substance by an 2) offer of proof, UNLESS the substance was apparent from the context
      - FRE 103(b):No need to renew an objection or offer additional proof to preserve it for appeal, once court rules definitively on the record a motion under FRE 103(a)(1)
        
        Rules definitively=not pending, not deferred
        
        FRE 103(d) Preventing the jury from hearing inadmissible evidence: "To the extent possible, the court must conduct a jury trial so that inadmissible evidence and disputes regarding such evidence is not suggested to the jury by ANY means."
        
        Ex. when motion requires an offer of proof, the judge should ask attorneys to approach the bench vs. having counsel say the proof in open court
        
        FRE 103(e) Taking notice of plain error: An appellate court may take notice of a plain error affecting a substantial right even if the claim of error was not properly preserved below
        
        Plain error affecting a substantial right=”Error that is clear and obvious under current law ... affects a party’s substantial rights...and would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected.” Pg. 53 & Tompkins v. Cyr, 2002 F.3d 770, 779 (5th Cir. 2000); United States v. Olano, 507 U.S. 725 (1993).
        
        FRE 103: ONLY allows appellate judges to reverse a trial decision for evidentiary error IF the error AFFECTED A SUBSTANTIAL RIGHT of one of the parties
        
        Appellate court applies the standard of review (either de novo or abuse of discretion PLUS whether procedurally proper appeal PLUS whether error affects a substantial right)
    - - FRE 105: If the court admits evidence that is admissible against a party OR for a purpose, but not against another party OR for another purpose, the court, on timely request, must (compulsory NOT permissive) restrict the evidence to its proper scope and instruct the jury accordingly
- - - - “As long as a witness appreciates his duty to tell the truth, and is minimally capable of observing, recalling, and communicating events, his testimony should come in for whatever it is worth. It is then up to the opposing party to dispute the witness’ powers of apprehension, which may well be impaired by mental illness or other factors.” Pg. 168, United States v. Phibbs, 999 F. 2d 1053, 1070 (6th Cir. 1993)
        
        opposing party has burden of introducing evidence to show witness is not competent, not enough to say they aren't compotent
      - FRE 605, judge’s competency as a witness: a judge may not be a witness for a matter in which they proceed over. this includes making comments from the bench that amounts to indirect testimony AND cannot offer experiments or experience of a location or fact that is at issue in the litigation. See flashcard
        
        FRE 606, juror’s competency as a witness: GR at trial, a juror MAY NOT testify as a witness before other jurors at the trial BUT If a juror is called to testify, court must give a party an opportunity to object OUTSIDE THE JURY’S PRESENCE. Parties must object to this in order to preserve issue on appeal. Not required to raise the issue in open court.
        
        This rule does not apply to a former juror testifying in a subsequent trial BUT
        
        FRE 606(b), during an inquiry into the validity of a verdict or indictment :
        
        FRE 606(b)(1) a juror MAY NOT TESTIFY nor may a court accept an affidavit ABOUT
        
        1)Any statement made or incident THAT OCCURRED DURING THE JURY’S DELIBERATIONS;
        
        2) The EFFECT OF ANYTHING ON THAT juror’s OR ANOTHER'S juror’s vote (internal influences):
        
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        3) ANY JUROR’S mental processes concerning the verdict or indictment
        
        FRE 606(b)(2) EXCEPTIONS: a juror MAY testify about whether:
        
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        Limits to this rule:
        
        Rule is not triggered UNTIL verdict is entered
        
        Any of (b)(2) exceptions are present
        
        In a criminal case where a D is found guilty, 6th amendment overrides Rule when a juror’s statement indicates they acted out of racial stereotypes or animus. Pg. 965
        
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        Rule does not apply to non-jurors who have personal knowledge about internal or external juror influences
        
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        Jury instructions
        
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    - - FRE 603=a witness must 3) take an oath or affirmation
        
        Witness has choice between taking oath or affirmation (no legal distinction between the two)
        
        Oath=usually involves the word “swear” and references “God.” Pg. 178
        
        Affirmation=usually does not make reference to God, it’s a promise to tell the truth and uses "affirm" instead of "swear"
      - “matters they have seen, heard, or otherwise sensed” pg. 173 requires evidence to be introduced to support a finding that a witness has personal knowledge of the matter which they are to testify about (a witnesses own testimony may establish personal knowledge).
        
        Does NOT preclude witnesses from testifying about circumstantial evidence that they have personal knowledge of—simply cannot require witnesses to speculate
- - - - 1) PROBATIVE VALUE it has ANY tendency to make a fact more or less probable than it would be without the evidence AND
        
        2) MATERIAL The fact is of consequence in deterring the action (or a piece of a fact of consequence) see flashcard
      - All evidence that clears FRE 401 and any other applicable rule governing admissibility may be excluded under FRE 403 (this rule only deals with admissible evidence) IF: see Module 2 case scenario discussion on relevance and 403
        
        FRE 403: A judge finds the probative value of the evidence is SUBSTANTIALLY outweighed by a danger to 1) unfair prejudice, 2) confusing issues, 3) misleading the jury, 4) wasting time, 5) needlessly presenting cumulative evidence. See discussion on excluding relevant evidence
    - - Trying to prove truthfulness or untruthfulness of a witness under FRE 609. FRE 608 governs the methods that can be used to establish this evidence. See flashcard
      - In a criminal case, D can introduce evidence of their pertinent trait and victims pertinent. Prosecutor can rebut Ds offering, or in a homicide rebut Ds assertion that victim was first aggressor with character evidence. FRE 405(a) limits such evidence to be established only by opinion or reputation BUT on cross examination may offer relevant acts of specific conduct. See flashcard
      - Trying to prove an element of a claim, charge or defense where character or character trait is an essential element. FRE 405(b) permits any method to establish such evidence (opinion, testimony, specific acts).
      - Under FRE 404(b), character evidence for non propensity purposes MAY be admissible. Examples of valid non-propensity purposes: intent, purpose, plan, motive, opportunity, preparation, knowledge, identity, absence of mistake, lack of accident and res gestate. See flashcard
    - - Best evidence rule
        
        See https://lawshelf.com/shortvideoscontentview/best-evidence-original-documents-rule
    - - AUTHENTICATING EVIDENCE
        
        FRE 901(a) establishes the standard for authenticating evidence. 2 categories of evidence for authentication purposes See flashcard
        
        FRE 902 Evidence that is self-authenticating
        
        lists 14 categories of evidence that are self-authenticating (list is comprehensive—if evidence doesn’t fall within one of the categories it must be authenticated in accordance with FRE 901)
        
        902(1) Public records
        
        “A party may introduce an ORIGINAL public document from ANY federal, state, or local government unit IF said document bears a signature attesting to the document’s authenticity AND the official seal of the government unit.” pg. 923
        
        902(3) Public documents from foreign countries
        
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        FRE 901(b) Evidence that requires extrinsic evidence to authenticate see module 13 case discussion scenario
        
        FRE 901 (b) lists 10 examples of ways to authenticate evidence via extrinsic information—BUT list is not exhaustive (just jumping off point)
        
        901(b)(1) testimony of a witness with knowledge testifies that the “item is what is claimed to be.” pg. 914
        
        901(b)(2) A nonexpert’s opinion that handwriting is genuine, based on a familiarity with it BUT cannot have become familiar with it for litigation.
        
        901(b)(3) Expert witness or court compare evidence being authenticated with authenticated evidence
        
        Expert can authenticate the identity of a document’s author by testifying about the match between said document and another verified document or sample. Court can do the same as the expert. Proponent offers another document, and the tier of fact (jury) compares that writing with the document that is being authenticated.
        
        901(b)(4) evidence with distinctive features can be authenticated through “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances.” pg. 920
        
        901(b)(5) voice identification “any witness who is familiar with a person’s voice may identify that voice in court REGARDLESS of if they became familiar with that voice in connection to the litigation OR when they became familiar with the voice (became familiar with the voice after the audio being authenticated was recorded)” pg. 919
        
        Specific rules for types evidence authenticated by extrinsic evidence
        
        Photographs and videos: Can be authenticated using any of 901(b)’s examples or other means that satisfy 901(a)’s test BUT “must authenticate the visual aid as a fair and accurate representation of the underlying scene at the relevant time.” pg. 919
        
        Emails, texts, social media: Some judges require more evidence (more linking characteristics) to authenticate social media posts than texts or emails. Can be authenticated using any of 901(b)’s examples BUT when authenticated using 901(b)(4), courts tend to look at the following factors for evaluating CONTENT:
        
        "The author’s known email address or phone number; author’s electronic signature; author’s name, nickname, or screen name; author’s customary use of emoji or emoticons; a writing style similar to the author’s known style of writing; facts that only a small set of individuals (including the author) know; facts or attachments that are uniquely tied to the author, such as personal information, photos of pets or loved ones, or contact information of close friends" pg. 920-21
        
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        FRE 901(a) authentication standard=party must introduce evidence “sufficient to support a finding” of authenticity (COULD SOME reasonably jury find the evidence authentic)
        
        FRE 903, subscribing witness’s testimony to authenticate document
        
        "Subscribing witness=a person who signs a document to indicate that they saw another person execute the document. Their testimony is ONLY necessary to authenticate the writing IF required by the law of the jurisdiction that governs the document’s validity." pg. 913
        
        GR ALL evidence must be capable of being authenticated before doing an admissibility analysis UNLESS court takes judicial notice of a fact. See flashcard
        
        FRE 201, Judicial notice of ADJUDICATIVE facts See flashcard
        
        How can court take notice? FRE 201(c) 1) MAY take notice sua sponte, 2) MUST take notice when request by a party if court proffered necessary info and info passes FRE 201(b) test. Not required to take notice for all facts only facts that do past the test.
- - - - What is the procedure for introducing prior inconsistent statements? FRE 613 see flashcard
        
        1) permits you during cross examination to examine a witness about a prior statement (usually an inconsistent prior statement) show or disclose the prior inconsistent statement
        
        ONLY need to disclose the statement you are asking about during the immediate time prior to asking IF opposing counsel requests (BUT judges may require you to show the statement to the witness and or opposing counsel sua sponte per authority under FRE 611) (applies when attorney shows or discloses the statement via extrinsic or intrinsic evidence)
        
        Prior consistent statements may be admissible in LIMITED circumstances to rehabilitate a witness who was discredited on cross examination "when the prior statement(s) occurred before an event that allegedly changed a witness’s testimony” . Pg. 238
        
        Even if you satisfy 1&2 if the purpose for introducing the extrinsic evidence is to prove a witness’s prior inconsistent statement for collateral purposes ONLY, FRE 403, and 611 most likely won’t let it in.
        
        2) If you want ADMIT “extrinsic evidence” to PROVE a witness’s prior inconsistent statement, ONLY admissible IF
        
        The witness is given an opportunity to explain or deny the statement AND an adverse party is given an opportunity to examine the witness about it OR
        
        Justice so requires (if this exception applies, doing the above is not required)
        
        Via showing witness has untruthful character see flashcard & module 8 quiz & autopsy
        
        1st method: FRE 608(a) Reputation or opinion (via testimony) to support or attack witness’s character for truthfulness
        
        BUT CANNOT call up a character witness to testify about another witness’s truthfulness if that witness has not had their character for truthfulness attacked first
        
        2nd method: FRE 608(b) Asking about specific instances conduct in order to attack or support their character for truthfulness may be allowed on cross examination IF the specific instances of conduct are probative to the truthfulness or untruthfulness of the witness OR other witness before the court
        
        Attorney MUST have a good faith belief that the specific instance of conduct occurred pg. 250-52
        
        Via introducing witness’s prior criminal conviction to show they have a propensity for untruthfulness see flashcard & module 8 quiz & autopsy
        
        FRE 609, builds on FRE 608(b)’s carve out for 609 to its bar on extrinsic evidence to prove character. Attorneys may introduce extrinsic evidence of a witness’s prior criminal conviction pursuant to the below restrictions divided into 3 categories
        
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      - Generally bars ADMISSION of extrinsic evidence for collateral matters b/c FRE 611 grants judges the authority to create an orderly trial (extrinsic evidence for collateral matters generally un orderly) AND FRE 403 requires court to balance probative value with substantial risk of harm
- - - - FRE 706 codifies judges innate power to appoint experts and lays out the procedural process for doing so as follows:
        
        1) A party may petition (motion) the judge to appoint an (not specific) expert witness OR 2) the court may sua sponte appoint an expert and order the parties to show cause why the expert witnesses weren’t appointed and may ask the parties to submit nominations for the expert witnesses
        
        A court may appoint any expert that the parties agree on AND any of own choosing BUT
        
        May not appoint someone who does not consent to be an expert witness AND
        
        All appointees must be neutral
        
        Next, the court must inform the expert of their duties (this may be done in writing but a copy of the writing must be filled with the clerk OR this may be done orally at a conference where each party has an opportunity to participate). The expert:
        
        Must advise the parties of any findings they make AND
        
        May be disposed by any party AND
        
        May be called to testify by the court or any party AND
        
        May be crossed examined by any party, including the party who called the expert.
        
        Court has the power to decide whether to authorize telling the jury that the court appointed the expert
    - - witness must be qualified before offering evidence (judge qualifies). 3 steps for qualifying an expert
        
        1) Attorney lays the foundation for the witness’ expertise (asks witness what their credentials and qualifications are, allowed to be leading qs because it is uncontested info related to establishing pedigree)
        
        Expertise can include experience and informal training or practical skills developed in the field when witness “independently developed knowledge, skills or experience” as opposed to formal education pg. 814
        
        2) Most judges allow opposing counsel to voir dire witness (cross examine the witness on their qualifications or expertise)
        
        3) Attorney asks the judge to certify the witness as an expert
        
        Opposing counsel can object and stipulate (then no voir dire allowed, good strategic move b.c jury won’t get to hear the experts credentials) OR
        
        Opposing counsel can just object (voir dire allowed) OR
        
        Opposing counsel can chose to not object (voir dire allowed if say they don’t object after the voir dire and not before)
      - 1) The expert’s scientific, technical, or specialized knowledge will help the tier of fact to understand the evidence or to determine a fact in issue AND
        
        2) The testimony is based on sufficient facts or data AND
        
        3) The testimony is the product of reliable principles and methods AND
        
        4) The expert has reliably applied the principles and methods to the facts of the case
        
        Daubert’s relevancy test for expert’s application
        
        Party who called the witness must be able to “point to the principles and methods” that under pin the witness’s testimony and these principles and methods must past Daubert’s relevancy test
        
        Daubert's relevancy test: 1) “whether the theory or technique has been tested, 2) whether it has been subject to peer review and publication, 3) the technique’s error rate, 4) the existence of standards controlling the technique’s application, 5) whether the theory or technique has been generally accepted in the relevant scientific community?"
        
        Expert's testimony must “fit the facts of the case” pg. 793
        
        Testimony related to causation OR parties lack enough information to allow the expert to “reach an accurate conclusion" pg. 800 will NOT be admitted.
  - - - Judges can still invoke FRE 701, 702, and 403 to exclude this type of testimony (historically common law bared opinion's on ultimate issues)
      - FRE 704(b) in a criminal case an expert witness may not state an opinion about whether D did or did not have the mental state or condition that constitutes an element of the offense or D’s defense b/c only a trier of fact can make such determinations
        
        Courts "prevent experts from testifying explicitly or explicitly inferring that the D possessed a particular mental state BUT allow them to testify that circumstances were consistent with that mental state” pg. 843 BUT
        
        Most courts permit opinion of a theoretical persons mental state based on theoretical qs that involve identical circumstances to Ds controversy AND
        
        Some court may also permit expert to offer “general observations about whether people with Ds prior symptoms would inevitably impact said people’s ability to understand the wrongfulness of their acts or the nature or quality of their acts.”pg. 844
        
        Evidentiary Privileges, FRE 501
        
        GR common law governs claims of privilege UNLESS constitution, federal rules, or SCOTUS rules say otherwise BUT in civil cases, state law governs privilege for any a claim or defense that “rests on state law.”
        
        What privileges have been developed and applied under federal common law? See flashcard
        
        Attorney-client privilege=”protects all confidential communications between client and lawyer made for the purpose of legal advice or representation.” pg. 863
        
        Work product privilege: “work that either client or attorney does independently of one another in anticipation of litigation.” (pg. 885, codified in FRCP 26(b)(3) and 16(a)(2) in FRs of Criminal Procedure)
        
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        What are the FREs governing privilege determinations?
        
        FRE 104: judge resolves claims of privilege during preliminary determinations AND FRE 1101(c) party can assert a privilege at “all stages of a case or proceeding”
- - - - Evidence of the declarant’s biases, prejudice, or interest in the case
        
        Statements made by the declarant that are inconsistent with the hearsay statements, FRE 613
        
        Evidence that the declarant lacks personal knowledge FRE 602 or the capacity to testify truthfully FRE 603
        
        Reputation or opinion evidence, given by a character witness, the declarant is untruthful FRE 608(a)
        
        Any criminal convictions allowed by FRE 609
        
        If declarant testifies, FRE 608(b) may be used
        
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- - - - First method: FRE 608(a) Reputation or opinion to support or attack witness’s character for truthfulness. Evidence of reputation or opinion is done established via a character witness' testimony
        
        CANNOT call up a character witness to testify about another witness’s truthfulness if that witness has not had their character for truthfulness attacked first
        
        CANNOT attack a person involved in a case that does not testify, rule only applies to witnesses
      - Second method: FRE 608(b) Asking about specific instances conduct in order to attack or support their character for truthfulness may be allowed on cross examination IF the specific instances of conduct are probative to the truthfulness or untruthfulness of:
        
        1) the witness
        
        Allows a party to cross examine the fact witness and ask about a specific instance of conduct by them (either to rehabilitate=suggest witness truthful or attack=suggest witness is untruthful). *Judges tend to exclude this type of evidence under FRE 403
        
        2) other witnesses before the court
        
        Allows a party to cross examine the other party’s character witness by asking about specific instances of conduct regarding the fact witness=the character witness testified about (either to rehabilitate=suggest fact witness is truthful or attack=suggest fact witness is untruthful, in turn may show witness who testified about other witness did or didn’t know witness as well as they said or is untruthful/truthful themselves
        
        AND attorney has a good faith belief that the specific instance of conduct occurred pg. 250-252
- - - - negligence
      - culpable conduct
      - a defect in a product or design
      - a need for a warning or instruction
      - see module 8 quiz & autopsy
    - - Under FRE 408 evidence of 1) compromise offers or acceptance about a claim AND 2) conduct or statements made during negotiations of a compromise about a claim (UNLESS offered in a criminal case or the negotiation is related to a claim by a public office in the exercise of its authority) is not admissible for the purpose of:
        
        proving or disproving the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or contraditiction BUT may be admissible for any other purpose
        
        see module 8 quiz & autopsy
      - evidence of offers to pay medical and related expenses
        
        Under FRE 409 evidence of providing, offering, promising to pay medical and related expenses resulting from an injury is not admissible to prove liability for THAT injury see module 8 quiz & autopsy
        
        evidence of pleas (including discussions and related statements)
        
        Under FRE 410 in both civil and criminal cases, the following evidence is not admissible against a D who made a please or participated in plea discussions WHEN:
        
        1) D withdrew their guilty plea
        
        3) any statement during these when it was done under federal rules of criminal procedure 11 or comparable state procedure
        
        2) D entered a nolo contendere plea=does not deny nor accept responsibility
        
        4) Any statement D made to the prosecutor IF discussions did not result in D pleading guilty OR the plea was later withdrawn
        
        EXCEPTIONS, these two types of evidence MAY be admissible when: 1) a statement from the same proceeding in which the plea occurred is admitted into evidence AND fairness demands to consider one of these types of evidence to be considered in conjunction with the other statement, 2) the proceeding is criminal for perjury or false statement and the D made one of these two types of statements under oath, on the record, and counsel was present.
        
        Evidence of liability insurance
        
        Under FRE 411 evidence of or absence of a person having liability insurance is not admissible for the purpose to prove said individual acted negligently or wrongfully (may be admissible for any other purpose). see module 8 quiz & autopsy
        
        Sexual evidence about the victim in a sexual offense case (criminal and civil case)
        
        Under FRE 412 in a civil or criminal case evidence to prove the victim did the following is inadmissible BUT
        
        1) victim engaged in other sexual behaviors
        
        2) victim's sexual predisposition EXCEPTION
        
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        Court MAY admit the following in a criminal case:
        
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        Evidence of similar crimes when D is accused of sexual assault (only criminal case)
        
        Under FRE 413 GR court may admit evidence that D committed another sexual assault on any matter to which it is relevant BUT
        
        Evidence of similar crimes when D is caused of child molestation (only in criminal case)
        
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- - - - 1) Hearsay that is not hearsay "exemptions" FRE 801
        
        Prior statement(s) by a witness, FRE 801(d)(1)
        
        The following three types of prior witness statements are admissible to prove the truth of the matter asserted if the witness-declarant testifies AND is subject to cross examination about the prior statement
        
        Statements 1) that are inconsistent with the witness’s courtroom testimony, 2) that were made under penalty of perjury 3) at a deposition or during a trial, hearing, grand jury, or other proceeding(=audience + transcript). FRE 801(d)(1)(A)
        
        Statements that are consistent with the witness’s courtroom testimony WHEN OFFERED TO
        
        1) Rebut an express or implied attack that the declarant fabricated the statement OR acted from a recent improper influence or motive in testifying
        
        The statement must have been made prior to the witness’ motive to lie or improper influence arose-SCOTUS
        
        2) To rehabilitate the declarant’s credibility as a witness when attacked on another ground FRE 801(d)(1)(B)
        
        To use these exceptions must show by a preponderance of the evidence that: “1) the witness’s credibility has been attacked; 2) the prior consistent statement has a probative value in rehabilitating credibility.” pg. 494
        
        Declarants pretrial identifications of a person. FRE 801(d)(1)(C)
        
        cross examination requirement is satisfied so long as=”1) witness is place on the stand, 2) under oath, 3) and responds willingly to questions (not being able to remember the prior statement you made OR pretending to have a lack of memory does not make you unavailable for cross examination BUT asserting privilege does) pg. 498
        
        ANY out of court statements made by an opposing party offered against that party to prove the truth of the matter asserted in said statement, FRE 801(d)(2) Statement must have been made by:
        
        the party in its individual or representative capacity OR
        
        by a person whom the party authorized to make a statement on the subject therein OR
        
        by the party’s agent or employee on a matter within the scope of that relationship while it existed OR
        
        by a coconspirator during the course of conspiracy and to further the joint enterprise (the statement is admissible against all members of the conspiracy)
        
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        includes statements an agent or employee made to someone outside of the employment relationship IF it is about matters within the scope of their specific employment
        
        independent contractors qualify as agent or employee
        
        can be express or implied authorization (ex. hiring an attorney vs. asking for a letter of recommendation)
        
        2) Hearsay exceptions based on them tending to be more reliable (Declarant’s unavailability can also be served by these exceptions), FRE 803
        
        Statements in ancient documents, FRE 803(16)
        
        A statement in a document that was originally recorded before January 1, 1998 that's authenticity is established is admissible to prove the truth of the matter the statement asserts
        
        BUT if statement in the document contains hearsay--must find exception for THAT hearsay
        
        Under FRE 803(17) market quotations, lists, directories, or other complications of data that are generally relied on by the public or by persons in particular occupations are admissible to prove the truth of the matter they assert.
        
        Under FRE 803(18) a statement in a learned treatise, periodical or pamphlet is admissible to prove the truth of the matter asserted IF:
        
        The statement is CALLED TO THE ATTENTION of an expert witness on cross examination OR RELIED ON BY the expert during direct examination AND
        
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        Under FRE 803(1) Present sense impressions=statements that describe or explain an event or condition made during or immediately after the declarant observed it are admissible to prove the truth of the matter asserted. See module 11 case scenario discussion
        
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        ALL Qs of fact when setting foundation or attacking opponents foundation are resolved by judge under FRE 104(a) authority. Each element of an exception MUST BE PROVED by a preponderance of the evidence. FREs do not apply to "lay the foundation"
        
        3) Hearsay exceptions based on the declarant being unavailable, FRE 804
        
        A statement by a declarant, offered against a party that intentionally wrongfully caused OR intentionally acquiesced in wrongfully causing said declarant’s unavailability may be admissible if
        
        Declarant is unavailable (5 ways)
        
        1) Declarant is exempted from testifying about the subject matter of their statement because of an evidentiary privilege
        
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        The hearsay sought to be admitted is one of the below
        
        Former testimony, FRE 804(b)(1)
        
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        5) Kitchen sink hearsay exceptions, FRE 805
        
        A judge may admit hearsay not covered by an exception contained in the FREs if the statement has 1) equivalent circumstantial guarantees of trustworthiness as statements in FRE 803 do AND 2) the admission of the statement will best serve the interests of justice AND 3) it is offered as evidence of a material fact AND 4) it is more probative on the point for which it is offered than any other evidence the proponent can obtain through reasonable efforts.
        
        A catch all statement is ONLY admissible IF, before the trial or hearing, the proponent gives an adverse party reasonable notice of their intent to offer the statement and include particulars of the statement, including the declarant’s name and address
- - - - The court may allow inquiry into additional matters as if on direct examination (if granted this exception, inquiry cannot be in the form of leading qs)
    - - Qs are limited to matters raised during cross examination (clarification of a point, “rehabilitating a witness” when defense impeached them), leading qs allowed
      - 4) Recross examination= done by the party(s) who did not call the witness to the stand (optional)
        
        Qs are limited to new “problems that arose on redirect,” scope is limited to matters raised on redirect, leading qs allowed, should be short
        
        Additional rounds of redirect and recross=(optional) and rare
        
        What are the tools for examining a witness?
        
        Refreshing a witness memory under FRE 612 see module 8 quiz & autopsy
        
        GR an attorney can offer any writing (either in or not in the record, created by the witness themselves or someone else) to refresh a witness's memory while they are testifying or before testifying IF
        
        1) the witness 1st states they do not remember the answer to the q being asked pg. 207
        
        2) the attorney asks if having the writing (describe writing) would refresh their memory in order to answer the q
        
        3) witness affirms seeing the writing would refresh their memory
        
        4) attorney gives witness time to review the writing
        
        1 more item...
        
        5) attorney asks if the writing refreshed their memory.
        
        6) give opposing counsel copy of the writing (either before or during qs)
        
        Writing=any object used to refresh a witnesses memory
- - - - Protect the witness from harassment or undue embarrassment
- - - - BUT an expert may only base their opinion on inadmissible evidence (in the form of facts or data) IF experts in their field reasonably rely upon that type of information in forming an opinion on the subject
        
        BUT expert on their own initiative cannot disclose the inadmissible evidence
        
        BUT BUT Crawford Criminal Prosecution Exception
        
        Testimonial hearsay is inadmissible against a criminal D b/c it violates 6th amendment UNLESS
        
        Expert relies on out-of-court statement (hearsay) that is non testimonial OR
        
        Expert bases opinion solely on facts stated in a hypothetical question posed by the prosecution (all facts in the hypothetical must be in evidence/record)
- - - - Courts can use FRE 701 and 702 to exclude opinion as not being helpful to the jury or under 403 for undue confusion or risk of prejudice, etc.