2011 Evidence Fre Notes

Front 1

Rule 608: Extrinsic evidence to impeach -- when not admissible?

Back 1

►when convictions of dishonesty or false statement less than 10 yrs ago, are involved, NO DISCRETION -- extrinsic evidence MUST be admitted.

►extrinsic evidence is not admissible to impeach on collateral matters

►►traditional test for whether a fact is "collateral" is whether it could be shown in evidence for any purpose other than contradicting the witness.

Front 2

When is evidence of character and conduct of a witness admissible for impeachment purposes?

Back 2

►608a: opinion or reputation ONLY on character for truthfulness

►608(b)Specific instances of conduct only for purpose of attacking/supporting witness' character for truthfulness (other than 609 crime conviction) are NOT ADMISSIBLE

Front 3

What is considered a collateral matter for purposes of extrinsic evidence towards impeachment?

Back 3

►traditional test for whether a fact is "collateral" is whether it could be shown in evidence for any purpose other than contradicting the witness.
►called "independent relevance" test

Front 4

Can you impeach a witness on collateral matters?

Back 4

►Yes, but the right to even approach the particular facts/circumstances is still subject to 403 prejudice/waste of time/confusion vs. probative value test

Front 5

Judge has discretion to permit cross-examination about specific instances of conduct of witness if:

Back 5

►608(b), if probative of truthfulness.

--What about of the accused?

Front 6

If a witness denies an act (not conviction) indicative of untruthfullness on cross examination, may judge allow extrinsic proof of the act?

Back 6

►No. Rule 608(b) has prohibits extrinsic evidence of specific instances of conduct, not resulting in conviction, offered to show bad character for truthfulness. (Even without Rule 608(b), the evidence would have to be excluded under the "independent relevance" test.)

Front 7

Under Rule 609, when is evidence that a witness has been convicted of a crime is admissible?

Back 7

►unless the crime was punishable by more than one year or unless it "involved dishonesty or false statement, regardless of the punishment."

Front 8

WHAT ARE THE REQUIREMENTS/ALLOWANCES FOR IMPEACHMENT BY CONVICTION OF A CRIME OF DISHONESTY/FALSE STATEMENT?
DISCRETION?

Back 8

Rule 609(a)(2) provides that "evidence that any witness has been convicted of a crime of dishonesty or false statement shall be admitted if
► if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness.
► Regardless of the maximum punishment (doesn't have to be > 1yr1day)
► NO judicial discretion, MUST be admitted.

►Note: If more than 10 years ago, then admissible only if
403 balancing is passed.

Front 9

in order to give the witness a fair "opportunity to explain or deny" within the meaning of Rule 613(b).

Back 9

in order to give the witness a fair "opportunity to explain or deny" within the meaning of Rule 613(b).

Front 10

CAN A SWORN PRIOR INCONSISTENT STATEMENT BE ADMITTED FOR TRUTH OF THE MATTER OR FOR IMPEACHMENT PURPOSES ONLY?

Back 10

Rule 801(d)(1)(A) was designed to eliminate the limiting instruction and allow inconsistent statements from a prior "trial, hearing, or other proceeding" to be used as substantive evidence. The House-Senate Conference Report on Rule 801 states that grand jury testimony is considered to have been given in a "proceeding" within the meaning of the rule, even though it is not subject to cross-examination.

Front 11

What question topics are considered to be within the scope of direct examination?

Back 11

►Subject that was EXPLICITLY RAISED
►Subject IMPLIEDLY RAISED by something that was a subject of direct.
►Questions that go towards the CREDIBILITY of the WITNESS.

Front 12

►What are the six reasons to argue for inadmissibility under 403?

Back 12

►unfair prejudice,
►confusing the issues,
►misleading the jury,
►undue delay,
►wasting time,
►or needlessly presenting cumulative evidence.

Hint 12

FRE 403: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing
the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
Amended version effective December 1, 2011

Front 13

►Requirements to be "unavailable" for Hearsay exceptions under FRE 804

Back 13

The declarant:
(1) is exempted from testifying about the subject matter
(2) refuses to testify about the subject matter despite a court order
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness;
(5) is absent from the trial or hearing and the statement’s proponent has not been able to procure the declarants attendance (for all), or testimony (for 804(b)(2), (3), or (4))

Hint 13

Rule 804:
The declarant:
(1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies;
(2) refuses to testify about the subject matter despite a court order to do so;
(3) testifies to not remembering the subject matter;
(4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness;
(5) is absent from the trial or hearing and the statement’s proponent has not been able, by process or other reasonable means, to procure:
(A) the declarant’s attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or
(B) the declarant’s attendance or testimony, in the case of
a hearsay exception under Rule 804(b)(2), (3), or (4).

Front 14

►What are the 804 hearsay exceptions?

(REMEMBER: declarant must be unavailable)

Back 14

►former testimony
►statement under beleif of imminent death
►statement against interest
►statement of personal or family history
►Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability.

Front 15

WHAT ARE THE REQUIREMENTS FOR 804(B) EXCEPTION

► "STATEMENT OF PERSONAL OR FAMILY HISTORY"

Back 15

►(A) the declarant’s own birth, adoption, legitimacy, ancestry, marriage, divorce, relationship by blood, adoption, or marriage, or similar facts of personal or family history,
►(B) another person concerning any of these facts, as well as death, if the declarant was related to the person by blood, adoption, or marriage or was so intimately associated with the person’s family that the declarant’s information is likely to be accurate.

Front 16

WHAT ARE THE REQUIREMENTS FOR 804(B) EXCEPTION

►"STATEMENT AGAINST INTEREST"

Back 16

A statement that:
►(A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because, when made, it was so contrary to the declarant’s proprietary or pecuniary interest or had so great a tendency to invalidate the declarant’s claim against some one else or to expose he declarant to civil or criminal liability;
AND THAT
(B) is supported by corroborating circumstances that clearly
indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability.

Front 17

What does the Best Evidence rule do?

Back 17

requires the production of the original when proving the contents of a "writing, recording, or photograph."

Hint 17

1002

Front 18

WHAT ARE THE SITUATIONS WHERE A DUPLICATE OF A WRITING, RECORDING OR PHOTOGRAPH ARE ADMISSIBLE INSTEAD OF THE ORIGINAL?

Back 18

(a) all the originals are lost or destroyed, & not by the proponent acting in bad faith;

(b) an original cannot be obtained by any available judicial process;

(c) the party against whom the original would be offered had control of the original, was put on notice that the original would be and fails to produce it at the trial or hearing

OR

(d) the writing, recording, or photograph is not closely related to a controlling issue.

Hint 18

1004

Front 19

Immediately following the collision, plaintiff photographed the intersection. Plaintiff offers to describe the intersection from memory, but defendant objects to the testimony on the grounds that the photograph is required under the best evidence rule.

EXPLAIN HOW THE RULE FUNCTIONS IN THIS INSTANCE

Back 19

The judge should OVERRULE the objection. Even though the photograph may be better evidence, it is not REQUIRED by the "best evidence" rule unless the party is PROVING THE CONTENTS of the photograph. Here plaintiff is testifying to her recollection of the intersection, not to her knowledge of the contents of the photograph.

Even though it may be more persuasive for her to introduce the photograph, the photo is not required under the rule.

Front 20

3 PURPOSES FOR CHARACTER EVIDENCE

Back 20

1) Prove character when it's the ultimate issue (defamation, etc)

2) Serve as circumstantial evidence of how a person probably acted

3) impeach credibility of a witness

Front 21

3 MEANS OF PROVING CHARACTER

Back 21

1) Evidence of specific acts as demonstrating character

2) Opinion testimony

3) Reputation testimony

Front 22

DESCRIBE THE USE AND MEANS OF CHARACTER EVIDENCE IN A CIVIL TRIAL

Back 22

► Generally not admissible because a person's general behavioral patterns (as distinguished from habits and business routines) are irrelevant and inadmissible.

• e.g. circumstantial use of prior behavior patterns to draw inference that in this case the actor acted in accord with past behavior is not permitted.

►EXCEPTION: when character is DIRECTLY In Issue (then all 3 means may be used)

Hint 22

405(b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person’s conduct [by either side].

Front 23

DESCRIBE USE AND ISSUE OF CHARACTER OF THE ACCUSED IN A CRIMINAL CASE

Back 23

► USE: Prosecution cannot initiate, Defense can initiate

► ISSUE: Defendant testifying does NOT put defendants character at issue; it puts their CREDIBILITY at issue

Front 24

WHICH MEANS CAN A DEFENDANT IN A CRIMINAL CASE USE TO PROVE THEIR CHARACTER?

Back 24

1) Reputation and personal opinion testimony FOR THE TRAIT INVOLVED IN THE CASE

2) WITNESS MAY NOT TESTIFY TO SPECIFIC ACTS OF CONDUCT TO PROVE THE TRAIT IN ISSUE

Hint 24

FRE 405. Methods of Proving Character

405(a) Reputation or opinion. In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion.
On cross-examination, inquiry is allowable into relevant specifc instances of conduct.

Front 25

IN LAYMANS TERMS, WHAT IS THE JUDGE RULING ON UNDER 104(b)

Back 25

104(b), the only question the judge decides is whether the proponent has "introduced evidence sufficient to support a finding of the fulfillment of the condition" for the evidence to be introduced. (i.e. foundation)

Front 26

Who has/what is the burden on the foundational facts for evidence?

Back 26

The proponent of the item of evidence has the burden of proof on the question of the existence of the foundational fact, and the burden is preponderance of the evidence.

(i.e. did they meet Rule 602 requirements for testimony, for example)

Front 27

WHAT IS THE BURDEN ON 104(a) and 104(b)?

Back 27

under Rule 104(b), it is sufficient for the proponent to present "a prima facie case." All the proponent needs to do is introduce evidence sufficient to permit a rational juror to find that the lay witness had firsthand knowledge or that the writing is authentic. However, under 104(a), the judge actually makes a finding of fact as to whether the foundational fact has been established. When the proponent relies on 803(2), the judge must make a finding as to whether the declarant was in a state of nervous excitement. As proponent, the plaintiff has the burden of proof on that issue. The measure of the plaintiff's burden is a preponderance of the evidence. Bourjaily v. United States, 483 U.S. 171 (1987).

Front 28

What does judge look at under 104(a) [foundational/conditional] to make his decision as far as testimony?

Back 28

before ruling on a 104(a) issue, the judge has to hear the foundational evidence on both sides. It would be nonsensical to compel the judge to listen to the evidence on both sides but require the judge to accept the proponent's foundational testimony at face value. The judge can factor credibility, including demeanor, into his or her ruling; and on the basis of that factor, the judge can choose to disbelieve the proponent's foundational testimony.

Front 29

Why is evidence of a person's character for negligence not allowed in a Negligence claim?

Back 29

The ultimate issue is not whether defendant has a general character for negligence or for negligent driving, but whether he drove negligently on a PARTICULAR OCCASION. Evidence that defendant had a negligent character (or a prudent and careful character) would merely be an evidentiary fact leading to an inference that defendant was negligent (or careful) on that particular occasion.

►Under the Federal Rules of Evidence, character evidence may not be used as an evidentiary fact in civil cases.

Front 30

In a negligent driving case, D takes the stand and testifies. What will judge consider in allowing prior wreckless driving conviction from being allowed on cross examination?

Back 30

1) how this acts on character for truthfulness since he testified as a witness
2) unfair prejudice, (plus delay, confusion of issues, etc)
3) how much this specific instance of conduct plays into char for truthfulness as the admission would be intended
4) whether a jury instruction would help jury understand the evidence's purpose

s3 = Cali

Hint 30

Rule 609(a) allows impeachment of witnesses by prior convictions punishable by imprisonment in excess of one year, unless the court determines that prejudice substantially outweighs probative value. One could argue that the testimony is probative because if a person is reckless with his car he may be reckless with the truth. Irresponsible people probably commit perjury more often than responsible people. On the other hand, the crime does not reveal extreme moral turpitude and its relationship to truthfulness is speculative. Moreover, there is a good chance that the jury will use it for an improper purpose. The jury may believe that because the defendant was reckless on a prior occasion he was reckless on this occasion. If I were the judge, I would rule that prejudicial effect outweighs probative value and exclude the testimony.

Front 31

In a criminal case, can P offer evidence of D's character for violence during their case in chief?

Back 31

The testimony is inadmissible because the prosecution is not allowed to introduce evidence about the character of the accused except in rebuttal of character evidence offered by the accused. See Fed. R. Evid. 404(a)(1).

Hint 31

404(a)(1)
1) Character of accused. In a criminal case, evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404(a)(2), evidence of the same trait of character of the accused offered by the prosecution;

Front 32

Should D be allowed to bring up P witness' expulsion for cheating on an exam in high school?

Back 32

Under rule 608(b), the trial judge has discretion to permit questions on cross-examination about specific instances of misconduct by a witness if the misconduct bears upon the witness's character for truthfulness. Cheating on an examination has some relevance to the witness's truthfulness. In my opinion, the trial judge would have discretion either to permit the question or to strike it.

Front 33

When is extrinsic evidence not allowed?

Back 33

Under 608(b), extrinsic evidence of ACTS of MISCONDUCT for purposes of attacking a witness' credibility.
►(Note that this hypothetical deals with misconduct that did not result in conviction. Rule 609 PERMITS extrinsic evidence about certain CONVICTIONS.)

Front 34

they found a corpse buried in the cellar with a hatchet imbedded in its skull. Lizzie's fingerprints were on the hatchet and on the corpse's clothing. The identity of the person found in the cellar is unknown and Lizzie has not yet been charged with murdering him. The prosecution concedes that the hatchet found in the corpse's skull is not the same hatchet used to murder the Bordens.

Should the testimony about the hatchet and the corpse be admitted?

Back 34

In my opinion, this is the best answer. Hatchet murders are uncommon, so this evidence might be admitted as a similar crime by the accused "so nearly identical in method as to earmark [the present crime] as the handiwork of the accused." See McCormick on Evidence § 190; People v. Peete, 28 Cal 2d. 306, 169 P.2d. 924 (1946) (prior murder conviction of defendant who severed spinal cord from behind with bullet admissible in case where defendant was accused of attempting to sever victim's spinal cord with bullet.) Although the evidence would not be admissible to show Lizzie's general propensity for murder, it might be admissible to identify her as the murderer because of the distinctive method used. See Fed. R. Evid. 404(b).

Front 35

For crime of murder, Defense argues that under Rule 405(b), testimony about specific conduct of Lizzie showing peaceable character is admissible now that Lizzie has put her character in issue. Is the testimony that Lizzie never had any fights or quarrels with her neighbors admissible?

Back 35

Testimony about Lizzie's peaceful conduct is not admissible. Rule 405(b) provides that character may be proven by testimony about specific instances of conduct when character is "an essential element of a charge, claim, or defense." Character is not an essential element (ultimate issue) here. It is merely an evidentiary fact that sheds light upon whether Lizzie committed murder.

Front 36

As its fourth witness the defense offers the testimony of Emma, Lizzie's sister. If permitted, Emma will testify that Lizzie never had any quarrels or fights with her parents. Should the testimony be admitted?

Back 36

►The testimony would be inadmissible if offered to show Lizzie's general character for peacefulness, because it would then be testimony about specific conduct offered to show character.

►However, this testimony is admissible because it tends to show that Lizzie's relationship with her parents was good. If Lizzie loved her parents, she would be unlikely to murder them. When offered for this purpose, the evidence is not character evidence at all.

Front 37

In its case in chief, the prosecution offers testimony that the bank robber escaped in a blue late-model Chevrolet. It also offers testimony that (a) a blue late-model Chevrolet was stolen 10 blocks from defendant's house on the morning before the robbery, and (b) it is common for bank robbers to use a stolen car as a getaway car so that they cannot be traced through identification of the car. Is the testimony admissible?

Back 37

If the prosecution had better evidence that defendant stole the car, then the testimony might be admissible to identify the defendant as the robber. It would show plan and preparation, see McCormick on Evidence § 190, and would also serve to link the defendant with the crime because the getaway car was similar. However, because the evidence that defendant stole the car is extremely weak, I would exclude it.

Front 38

The defense called an alibi witness. On cross-examination, the prosecutor asked the witness to admit that he was convicted of aggravated assault 9 years previously. (Assume that aggravated assault is punishable by five years in prison, and that the witness actually was sentenced to probation with no confinement.) Should the judge sustain an objection to the question about the prior conviction? Arguments?

Back 38

This is a matter within the trial judge's discretion, and one would expect different rulings from different judges. Rule 609(a) permits impeachment of a witness by evidence that he has been convicted of a crime punishable by imprisonment in excess of one year, subject to Rule 403. Under Rule 403, the evidence should be admitted unless prejudice or other counterweights substantially outweigh probative value. Here, the defense could argue that prejudice predominates because (1) the crime is somewhat remote, occurring nine years ago, (2) the crime shows a disposition toward violence but not necessarily a disposition to lie, and (3) in addition to giving the conviction too much weight in assessing the witness's testimony, the jury might be prejudiced against the defendant because he associates with criminals.

Front 39

The defendant rested after presenting the testimony of the alibi witness and the character witness stating that D was honest and law-abiding. In its rebuttal case, the prosecution offered a certified copy of defendant's two previous convictions for bank robbery. Is this evidence admissible?

Back 39

The evidence is inadmissible. (1) It is not admissible to show that the defendant had a propensity to rob banks. Although defendant has opened the door to character evidence, the evidence must take the form of reputation or opinion, not specific crimes. Although cross-examination of defendant's character witnesses about specific acts of misconduct is permissible under Rule 405(a), extrinsic evidence of specific acts is not. (2) It is not admissible under Rule 609 to attack defendant's credibility as a witness because the defendant did not testify.

Front 40

Defense counsel argues that if the only relevance of this testimony is to show propensity to sell heroin, it is not admissible because it is evidence of specific conduct offered to show a trait of character. The character evidence should be in the form of opinion or reputation testimony, not in the form of testimony about specific conduct.

Is this argument against admission of the testimony correct?

Back 40

The argument is not correct. It is true that normally character evidence must be cast in the form of opinion or reputation testimony. However, Rule 405(b) permits proof of specific instances of conduct when a trait of character is an essential element of a charge, claim, or defense. Here, a trait of the defendant's character (his propensity to sell heroin) is an essential element of the defense of entrapment. If defendant had a propensity to sell heroin, he was not entrapped. This trait of character is an "ultimate issue" or "essential element." (In the usual case, character is merely an evidentiary fact, not an ultimate issue.)

Since character is an essential element of the entrapment defense, the prosecution may prove propensity to sell heroin by either reputation, opinion, or testimony about specific conduct.

Front 41

Assume that the witness Snow was permitted to testify about prior heroin sale. On cross-examination of Snow, defense counsel seeks to elicit from Snow an admission that three months before the trial, Snow was arrested for possession of heroin with intent to sell. Snow has been charged with the crime but has not yet been tried.

What is the strongest argument for permitting the question?

Back 41

► Cross-examination of this nature is routinely permitted in criminal cases because it indicates that the witness may be cooperating with the prosecution in hopes of receiving leniency. Because it is offered to show the witness's motive instead of a general trait of character, it is not considered to be character evidence at all.
► NOT impeachment
One could reasonably argue that a drug crime does not throw sufficient light upon the witness's truthfulness to outweigh its possible prejudicial impact. At any rate, the question concerns Snow's arrest, not the conduct causing the arrest.

Front 42

WHAT IS EXTRINSIC EVIDENCE?

Back 42

PROOF IN ANY STYLE OTHER THAN STATEMENTS BY THE WITNESS BEING QUESTIONED.

Front 43

Suppose that the witness answered "Black" when asked for the color of the car parked on the side opposite the Thunderbird. For purposes of impeaching this witness, should defense counsel be permitted to elicit testimony from another witness that the other car was in fact white?

Back 43

Since the car in question is not the getaway car, its color is only relevant to impeachment of the witness by attempting to show he was not very observant. Because its relevance is limited to impeachment, the color of the car should be deemed a "collateral" matter as to which extrinsic evidence is not admissible. "Given its minimal probative val[u]e, the courts allow inquiry on cross-examination but cut off the [inquiry] at that point." Carlson et al., Materials at 302. In other words, the cross-examiner is bound by the witness's answer and cannot contradict him with another witness. The traditional test for whether a fact is "collateral" is whether it could be shown in evidence for any purpose other than contradicting the witness. United States v. Harris, 542 F.2d 1283 (7th Cir. 1976); 3A Wigmore on Evidence § 1003; McCormick on Evidence § 47. I will refer to this as the "independent relevance" test for collateralness.

Front 44

When is extrinsic evidence allowed to impeach a witness' testimony?

Back 44

The extrinsic evidence about the color of the Thunderbird is admissible because it would be relevant to the guilt or innocence of the defendant, even if it did not cast doubt on the testimony of the parking lot eyewitness. The prosecution has introduced testimony that a stolen red Thunderbird-- inferentially the one used in the robbery--was recovered near the bank. If the defendant was parked in a car that was yellow instead of red, then that serves to reduce the chance that he was guilty, whether or not it also impeaches a witness. Therefore, the evidence is relevant to some point other than contradiction of the witness, and hence, it satisfies the "independent relevance test.

►The traditional test for whether a fact is "collateral" is whether it could be shown in evidence for any purpose other than contradicting the witness.

Front 45

If the witness denies the embezzlement, does the trial judge have discretion to permit defense counsel to produce extrinsic evidence of it?

Back 45

Rule 608(b) has a specific prohibition against extrinsic evidence of specific instances of conduct, not resulting in conviction, offered to show bad character for truthfulness. (Even without Rule 608(b), the evidence would have to be excluded under the "independent relevance" test.)

Front 46

When may a conviction be used and not used against a witness for impeachment purposes?

Back 46

Under Rule 609, evidence that a witness has been convicted of a crime is not admissible, whether elicited on cross-examination or established by public record, unless the crime was punishable by more than one year or unless it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness "involved dishonesty or false statement, regardless of the punishment."

►R

Hint 46

(a) General rule. For the purpose of attacking the credibility of a witness,

(1) evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403, if the crime was punishable by death or imprisonment in excess of one year under the law under which the witness was convicted, and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused . . . .

(2) evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment.
b) 10 yr time limit unless interest of justice/probative value substantially outweighs predjudicial effect.
c) pardon, annullment etc: not allowed unless convicted of later crime
d) juvenile accused not allowed, other witness rare
e) can still be submitted even if appeal pending.

Front 47

SPOUSAL PRIVILEGE
►What timeframe of communications does it protect?
►When is it lost?
►What types of cases does it apply to?
►Who holds it?

Back 47

►communications before AND during marriage
► lost at divorce
►Criminal cases ONLY
►Holder:
Federal Courts (Majority) : Witness Spouse

Front 48

MARITAL PRIVILEGE
►What timeframe of communications does it protect?
►When is it lost?
►What types of cases does it apply to?
►Who holds it?

Back 48

►ONLY during marriage
►Survives divorce
►Civil AND criminal
► Both spouses

Front 49

WHAT IS THE TEST FOR WHETHER A FACT IS COLLATERAL?

Back 49

The traditional test for whether a fact is "collateral" is whether it could be shown in evidence for any purpose other than contradicting the witness.

Front 50

IMPORTANT NOTE ABOUT NON-HEARSAY "STATEMENT OF IDENTIFICATION MADE AFTER PERCEIVING THE INDIVIDUAL"

Back 50

THE DECLARANT MUST BE THE ONE TESTIFYING TO IT IF IT IS TO BE FOR THE TRUTH!!!

►FRE 801(d)(1)(C) provides that so long as the out-of-court declarant is present and testifying at trial, he may testify to statements that are ones of identification of a person after perceiving him.

IT CANNOT BE TOLD BY SOMEONE ELSE!!!

Front 51

WHAT TOPICS ARE NEVER COLLATERAL?

Back 51

►BIAS
►MOTIVE
►COMPETENCE
►SENSORY PERCEPTION
►PRIOR INCONSISTENT STATEMENTS THAT ARE ALSO RELEVANT TO SUBSTANTIVE ISSUES
(Rose claims all are if you were allowed to ask about them)

Front 52

WHAT IS A MAJOR HEARSAY DIFFERENCE BETWEEN A PRIOR INCONSISTENT STATEMENT UNDER OATH AND NOT UNDER OATH?

Back 52

The new non-hearsay category created by 801(d)(1)(A) for prior inconsistent statements is limited to those under oath at a proceeding; 801 items are HEARSAY EXCLUSIONS -- they do not count as hearsay at all and can be offered for the truth.

Prior inconsistent statements that have been made to an investigator, as opposed to having been made under oath at a proceeding must follow the old route and come in on the theory that they are not being offered for their truth and that's why they are not hearsay so that they are admissible.