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Evidence, Past Stmts of Witnesses & Past Testimony Chart (pg 454),…
Evidence
Hearsay Admissibility Flow
FRE 802
Hearsay is not admissible unless any of the following provides otherwise:
a federal statute;
these rules; or
other rules prescribed by the Supreme Court.
Out of Court Stmt?
Yes
To Prove Truth of Matter Asserted?
Yes
Applicable "Exemption"?
FRE 801d1
- Past Stmts of a Testifying Witness
FRE 801d2
- Opposing Party Stmts
1 more item...
FRE 801(d)(1)
Past statements of a testifying witness
Exceptions that are not called exceptions
3 more items...
No
Applicable "Exception(s)"?
3 more items...
Yes
ADMISSIBLE
No
What does that mean?
FRE 801(c)(2)
(2) a party offers in evidence to prove the truth of the matter asserted in the statement.
No
Check Other Rules
401 - 411 & 413 - Relevance
600s - Character of Witness
FRE 801(c)(1)
(c) Hearsay. “Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
Past Stmts of Witnesses
& Past Testimony Chart
(pg 454)
FRE 613
Past Inconsistent Stmts Offered to Impeach
Declarant Must Testify at Current Proceeding
Questioning Lawyer Must Have Good-Faith Belief that Witness made Past Stmt
FRE 801(d)(1)(A)
Past Inconsistent Stmts [of a current witness] Offered Substantively
Declarant Must Testify at Current Proceeding and be "Subject to Cross-Examination About the Prior Stmt"
Past Stmt is Inconsistent and Was Given under Oath at a "Proceeding" or Deposition
FRE 801(d)(1)(B)
Past Consistent Stmts [of a witness]
Declarant Must Testify at Current Proceeding and Be "Subject to Cross-Examination About the Prior Stmt"
Past Stmt is Consistent and is Offered (i) to Rebut Charge or Recent Fabrication or Improper Motive and Meets
Tome
Rule or (ii) to Rehabilitate Declarant's Credibility When Attacked on Another Ground
Tome Rule
Under Federal Rule of Evidence 801(d), a consistent, out-of-court statement made by a witness is admissible to rebut a charge of a fabrication or improper motive, but only if made before the motive to fabricate arose.
(Quimbee Rule, Bk pg 476)
FRE 801(d)(1)(C)
Stmts of Identification
Declarant Must Testify at Current Proceeding and Be "Subject to Cross-Examination About the Prior Stmt" SPECIFICALLY ABOUT IDENTIFYING SOMEBODY
Past Stmt Identifies a Person Declarant Perceived Earlier
Example of woman unable to ID Defendant much later and so reference the lineup and whether she felt confident, get that lineup ID in through officer testimony
FRE 804(b)(1)
Past Testimony
Declarant Must Be Unavailable as Defined by
FRE 804(a)
Past Stmt was "Testimony" and was
A. "at a trial, hrg, or lawful deposition" AND
B. Subject to Examination by Party Against Whom Now Offered
FRE 612
Refreshing Witness's Memory
Witness must be on stand; Memory must be exhausted
No Conditions Re Past Stmt (Memory May Be Refreshed w/Many Things; If a Writing is Used, follow conditions imposed in
FRE 612
FRE 803(5)
Recorded Recollection
Witness Must Be on Stand; Must Be Unable to "Recall well enough to testify fully and accurately"
Record was made or adopted when witness's memory was fresh and accurately reflects witness's past knowledge
Impeachment: Discrediting the Witness (Usually on Cross Examination)
Bias
Family Member
Monetary Incentive
Grudge
Impairment - FRE 602
Drunk
Old
Character
FRE 608
FRE 404
FRE 609
Changes Story
FRE 801(d) Prior Inconsistent Statements
Must be inconsistent. 180 degree turn from previous stmt.
Important (Day or night, not 6:52 or 6:53)
Clean mechanics.
Details
WHAT: Discredit
WHO: Anyone (Even your own witness but only as a last resort)
WHEN: Cross Examination
(WHERE)
HOW:
Bias
Friend
Outcome
Prior Stmts
Witness testifies differently
Direct Witness to Testimony
Show document
Read it out loud
Witness Agrees he said it differently before today
Document
Character
FRE 609 - Criminal Convictions (Felonies, not misdemeanors)
FRE 608 Truthfulness
Refreshing Recollection
(Usually on Direct Examination)
Witness Testimony
FRE 612 Refreshing Recollection
Helping the witness remember so he can keep on testifying
Document offered for recollection is hearsay until an exception is offered - approach and have witness read doc to remind himself and then withdraw the doc for remainder of the testimony.
General Order of Refreshing
1) Earlier you said something different...you don't remember/know?
2) Would this help? (Name the document you're providing.)
3) Read to Self (give them page & paragraph/line)
4) NOW what do you recall?
Side Note: Don't have witnesses read exhibits out loud, they may be uncomfortable or poor reader.
Documents
Things
FRE 803(5) Recorded Recollection
(Something different, not the point rn.)
Circumstance
Witness forgot
Ask would something help refresh
Show Witness the document - instruct them to read it to themselves silently (otherwise hearsay)
Resume testimony
OPINION TESTIMONY
FRE 702 - Expert Opinions
Must be QUALIFIED, meaning you have "specialized knowledge, skill, experience, training, or education"
After establishing the expert's qualifications, tell the judge "I would like to qualify this witness in the area/field of SUBJECT."
SOME judges don't like to qualify experts b/c they feel it lends more weight to his or her testimony - check with your judge ahead of time to know how to proceed.
Can Voir Dire Experts on qualifications
[Chk Echo for tips on line of questions to establish specialized knowledge on the stand for the jury.
If expert talks a lot, just let them. It's not harmful.
Experts are HIRED to testify - $$$
In civil cases, after deposing an expert, the attorney may file a pre-trial motion to disqualify the purported expert.
The testimony helps jury understand
CANNOT invoke "the rule" with expert testimonies. FRE 615.
The testimony is based on facts in this case
Based on Reliable Principles
Applied Principles in this case
Principles can be challeneged w/Daubert Motions
Example: Expert said employee who needed to sit while working [might have been wheelchair bound?] "just couldn't work" a desk job.
FRE 701 - Lay Witness
Perception
Can object for speculation b/c different people have different perceptions
To overcome the perception, go over the facts that support the witness's opnion/perception.
Helps the jury
Not Scientific
OBJECTION Notes