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96 Cards in this Set
- Front
- Back
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What are the three broad steps of relevance?
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• Three steps of relevance:
1. Must be of consequence (401) 2. It has to prove something (401) 3. It has to be legally relevant (403) |
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Distinguish logical from legal relevance
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• Kinds of relevance
○ Logical relevance § More or less probable ○ Legal relevance § Is it admissible? § Inadmissible when legal considerations outweigh probative value |
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Name the general prohibitions on two kinds of evidence
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• General prohibition against "propensity evidence," character attacks
• Hearsay is evidence based on an out of court statement ○ But cannot be cross-examined ○ Is unreliable |
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What is the Powell Doctrine? Namely, what four factors are we looking for from witnesses?
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• What we want from the witness:
○ Perception ○ Memory ○ Narration ○ Sincerity |
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Generally what are two reasons evidence may lack relevancy?
What are two (alternate) justifications to find evidence is probative? |
• Evidence lacks relevancy b/c:
○ Not probative of the proposition at which it is directed ○ OR proposition not provable in the case • Offered item of evidence is probative, provided: ○ Proposition is provable in case at bar ○ OR if it forms a further link in a chain of proof, leading to a final provable proposition ○ Relevance is different from sufficiency; "A brick is not a wall." |
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What is the general principle behind FRE 403? What are the six specific reasons evidence may be generally excluded under FRE 403?
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• M.R. Evidence 403, Principle of 403
○ 403, Although relevant evidence may be excluded if probative value substantially outweighed by dangers of: § Unfair prejudice § Confusion of the issues § Misleading the jury § Considerations of undue delay § Waste of time § Needless presentation of cumulative evidence ○ Only when a factfinder might react to aspects of evidence § In a way that is not supposed to be part of the evaluative process § Is reaction considered unfair prejudice |
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What is conditional relevance and how does it impact the jury?
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• Conditional relevance
○ When evidence is by itself irrelevant, but relevant contingent upon some other information ○ In true conditional relevance situations, jurors are only asked to ignore info § When it is highly likely they will do so § b/c info will not seem to them to have anything to do with the case |
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[deleted]
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[deleted]
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What are the three principal exceptions to the general prohibition against propensity evidence?
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i. 404(a)(1) Character of the accused: Allows Defendant to introduce evidence of good character relevant to the defense
ii. 404(a)(2) Character of the victim: If accused knew at the time of the alleged crime of prior violent acts, evidence is relevant to show reasonable apprehension iii. 404(a)(3) Character of the witness: (See Impeachment) |
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404(a)(1) Allows Defendant to introduce evidence of good character relevant to the defense. But there are four complications. What are they?
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Evidence must be pertinent
405(a), methods of proof limited to testimony of reputation or opinion Prosecution may cross-examine Prosecution allowed to rebut the pertinent trait |
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For 404(a)(1) evidence of good character purposes, what is impertinent in an embezzlement trial? What is pertinent in a trial for theft?
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Law-abiding is always pertinent
Otherwise, must be pertinent In a trial for embezzlement Def's trait of non-violence Is not pertinent In a trial for theft Def's traits of honesty and regard for others' property Would be pertinent |
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For 404(a)(1) evidence of good character purposes, what may the prosecution do to rebut? What may the prosecution not do?
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Prosecution allowed to rebut the pertinent trait
Also confined to reputation or opinion Prosecution may provide specific instances (except on cross-examination) Extrinsic evidence is forbidden, must abide by witness' statements Guilt-assuming hypotheticals are forbidden |
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What is the 404(b) exception to prohibition against propensity evidence?
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404(b) Allows evidence of other crimes, wrongs, or acts
§ Which are otherwise inadmissible to demonstrate character § But admissible for other purposes, such as: □ Proof of motive, □ Opportunity □ Intent |
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What is the general rule for evidence offered to prove victim's sexual predisposition?
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412 generally disallows evidence offered to prove any alleged victim's sexual predisposition
Problems with such evidence □ Evidence has little relevance on issues of consent/credibility □ Evidence is misleading/time-consuming □ General admissibility of evidence deterred significant number of sexual assault victim from reporting/prosecuting these crimes |
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What are the exceptions for evidence offered to prove victim's sexual predisposition?
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412(b)(1), in a criminal case,
® Evidence of specific instances to prove a person other than accused was source of physical evidence ® Evidence of specific instances of sexual misconduct to prove consent ® Evidence that if excluded would violate Constitutional rights of defendant □ 412(b)(2), in a civil case, ® Evidence of sexual predisposition must substantially outweigh danger of harm to any victim and of unfair prejudice to any party ○ For purpose of showing victim had prior independent knowledge of similar acts § which could explain the source of her knowledge § And rebut the inference that she understood such acts simply b/c of her encounters with Summit Summit v. State |
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What is the general rule on admission of evidence of subsequent remedial measures?
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• Rationale: Evidence of subsequent repairs or design changes is ambiguous
○ Might support a relevant finding that def's conduct/design was substandard ○ OR support an irrelevant finding that def's subsequent conduct represented greater care than the law requires • Evidence of a design change effected after manufacture but before the accident not barred by Rule 407 |
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When is evidence that person was insured admissible?
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• Rule 411, Evidence that person was insured or not insured against liability is inadmissible, except when offered for another purpose, such as:
○ Proof of agency ○ Ownership ○ Control ○ Bias ○ Or prejudice of a witness |
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What compromises are admissible? Which are inadmissible?
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○ Offer to pay or payments - inadmissible
§ But a plaintiff is entitled to introduce evidence of a settlement as a contractual undertaking § But not as relevant to the validity or invalidity of an underlying claim ○ Statements made in connection w/ negotiating for a payment - admissible § Rochester Machine Corp. v. Mulach Steel Corp. □ Penn retains common law rule allowing introduction into evidence of distinct admissions, even if made in connection with an offer to compromise □ Parties seeking to invoke exclusionary rule may characterize admissions in hypothetical terms |
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What are three justifications for forbidding hearsay and requiring direct testimony?
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• Justifications for Hearsay Rule and requiring direct testimony:
(1) Witness testifies under oath (2) Demeanor of witness provides valuable clues about veracity (3) Witness subject to cross-examination |
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According to 801(c), what is hearsay?
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• 801(c), Hearsay is a statement, other than one made by the declarant while testifying, offered in evidence to prove the truth of a matter asserted
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What are the prior statement by witness statements which are not hearsay? They all must be statements made on cross-examination.
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§ 801(d)(1), On cross-examination, statement is one of the following:
a. Inconsistent with declarant's testimony and given under oath b. Consistent with declarant's testimony and offered to rebut express/implied charge against defendant of recent fabrication or improper influence/motive ® There is a pre-motive requirement ® Yet, after opposing party opens the door, evidence ◊ Extends beyond purpose of rebuttal ◊ To show substantive evidence c. One of identification of a person made after perceiving the person |
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Besides being offered against a party, what are the five admission by party-opponent statements which are not hearsay?
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§ 801(d)(2), Statement offered against a party and is one of the following:
(A) Party's own statement (B) Adoption or belief in its truth (C) Authorized (D) Party's agent (E) Co-conspirator of a party ® during the course and in furtherance of the conspiracy Corroboration required for (C)-(E) • "Contents of statement shall be considered . . ." "But are NOT alone sufficient to establish the declarant's authority" |
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• To prove that corn was owned by plaintiff as a part of his share
○ He testified that tenant had said: "Mr. Hanson, here is your corn for this year, this double crib here and this single crib here is your share for this year's corn; this belongs to you, Mr. Hanson" ○ Bystander also testified to hearing this testimony Why was this not hearsay? |
• The words were the verbal facts; and was not hearsay
○ The verbal part of the transaction b/w plaintiff and tenant was necessary to prove the facts ○ The words accompanied the conduct Hanson v. Johnson |
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Why aren't implied assertions hearsay?
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• 801(a)(2) Assertion
○ Hearsay rule permits all evidence of conduct not tended as an assertion, § Verbal § Or non-verbal ○ Nothing is an assertion unless intended to be one • Utterances of betters telephoning their bets were nonassertive conduct, permitted as evidence ○ Relevant to show bets could be placed at the premises ○ These telephoners did not intend to make an assertion United States v. Zinni US District Ct, ED of KY, 1980 |
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Are out-of-court consistent statements admissible when made
○ After the alleged fabrication ○ OR after the alleged improper influence/motive arose? |
There is a pre-motive requirement
§ A consistent statement predating the motive is a square rebuttal that testimony was contrived § By contrast, prior consistent statements carry little rebuttal force when most other kinds of impeachment are involved • Trial court erred in admitting out-of-court statements ○ To rebut alleged improper motive ○ When statements occurred after possible origination of improper motive Tome v. United States SCOTUS, 1995 |
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Is testimony barred concerning a prior, out-of-court identification when memory loss prevents identifying witness from explaining the basis for the identification?
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• Defendant may discredit a forgetful expert witness by persuading the jury
• Jury (or fact-finder) decides whether identification testimony is reliable ○ Subject to cross-examination ○ Neither Confrontation Clause nor Hearsay rule violated when witness suffers from memory problems United States v. Owens SCOTUS, 1988 |
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FRE 801(d)(2)(B) allows 'adoptive' statements in admission (a statement of which the party has manifested an adoption/belief in its truth).
What are the elements of adoption? |
• Elements of adoption:
a. Def heard & understood statement b. Had knowledge of contents c. Was physically/emotionally free of impediments |
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Must agents/servants have personal knowledge of the facts of their statements to be admitted by a party-opponent subject to FRE 801(d)(2)(D)?
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• Civil action b/c of alleged attack of wolf upon a child
• Trial judge forbade Poos' and Directors' admissions b/c they had no personal knowledge of the facts • Admissions: (1) Note: "Sophie bit a child that came in our backyard" (2) Later, Poos told Sexton: "Sophie had bit a child that day" (3) Discussion in Meeting of Directors minutes of meeting • Rule 801(d)(2) lacks any 'personal knowledge' implied conditions Statements should have been admitted, even if agents lacked actual knowledge of the events Mahlandt v. Wild Canid Survival & Research Center, Inc. US 8th Circuit Appeals, 1978 |
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In proving whether a conspiracy existed, for the sake of evidence admission under FRE 801(d)(2)(E), what standard of proof is used in a criminal trial?
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• Inquiry re: evidentiary rules
○ Is not whether proponent wins/loses case on merits ○ But whether evidentiary rules have been satisfied ○ Thus, evidentiary standard unrelated to burden of proof on substantive issues § In criminal § Or civil case • When preliminary facts relevant to Rule 801(d)(2)(E), co-conspirator party-opponent admissions, are disputed, offering party must only prove them by preponderance standard Bourjaily v. United States SCOTUS, 1987 |
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What are the justifications for the Present Sense Impression hearsay exception? Must the declarant be unavailable? Are there any other requirements for admission?
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803(1) Availability of Declarant Immaterial
• This exception to Hearsay justified, b/c: ○ Report is safe from error from defect of memory of the declarant ○ Little or no time for calculated misstatement ○ Statement will be made to another who would have equal opportunities to observe and check a misstatement |
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What are the time elements and for the Excited Utterance hearsay exception? What about the time element for the Present Sense Impression hearsay exception? What subject matter is permissible for the statement?
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Re: time element,
○ Exception (1) recognizes a slight lapse is allowable b/c precise contemporaneity is not possible ○ Exception (2)'s standard of measurement is duration of the state of excitement ○ No time element re: statement and actual event ○ Only time element re: duration of declarant's state of excitement ○ b/c only this affects likelihood of fabrication • 803 advisory notes, Excited utterances need only "relate" to the startling event or condition |
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Why are statements re: medical conditions more valuable as originally made than on the witness stand?
FRE 803(3) |
• Wigmore on Evidence, Statements of human being's internal state of pain/emotion
○ Where great opportunity for deliberate misrepresentation on the witness stand ○ Are inferior to statement made at times when circumstances lessened inducement to misrepresentation |
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803(4) allows an exception to hearsay for statements for purposes of medical diagnosis or treatment. How far does this exception extend?
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• Allowed if made to person for purpose of diagnosis/treatment in view of declarant's strong motivation to be truthful
• Statements to fault ordinarily excluded § Thus, statement that declarant was struck by an auto admissible, since it touches causation § Statement that the car was driven thru a red light excludable as bearing on fault |
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What are the three requirements for the 803(5) Recorded Recollection hearsay exception?
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• Document is admissible as evidence, provided:
(1) Witness once had knowledge (2) Witness now has insufficient recollection (3) The record was made when matter was fresh and reflected witness' knowledge correctly |
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803(6) allows admission of records of regularly conducted activity, but under what requirements?
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• Record entries must be timely and regular
□ Record made near time of occurrence □ Made by or with information from a knowledgeable person □ Made and kept w/in normal course of business • Although not a business record, personal records may be reliable if they are systematically checked and regularly maintained |
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What are the justifications for the Public Records and Reports hearsay exception?
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• Justification for exception:
(1) Presumed trustworthiness of public documents prepared in discharge of official functions (2) Necessity of using such documents, else no independent memory of particular action where duties require constant repetition of routine tasks |
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Are gov't conclusions and opinions admissible under the 803(8)(C) Public Records and Reports exception?
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• Beech Aircraft v. Rainey, Factually based conclusions/opinions admissible under Rule 803(8)(C), provided
○ The conclusion is based on a factual investigation ○ And satisfies the Rule's trustworthiness requirement |
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803(18) allows admission of Learned treatises. What is the limitation on this admission?
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○ Learned treatises only admissible
○ In conjunction with testimony by an expert witness either § On direct § Or cross-examination ○ Even though the authority of the publication is otherwise established |
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When is prior testimony of an unavailable witness allowed under 804(b)(1)?
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○ Prior testimony of an unavailable witness is admissible so long as:
(i) Prior testimony must have been given in a proceeding (ii) The same party against whom the former testimony is now offered, or in a civil case, the same party or a predecessor-in-interest (iii) Must have had an opportunity to examine the declarant in the prior proceeding; to ensure fairness, party against whom testimony is now offered must have a similar motive to develop the testimony in both the earlier and current proceedings |
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What are the four requirements for the 804(b)(2) 'death exception?'
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• 804(b)(2) Hearsay evidence not excluded if
○ Offered in a murder/civil case ○ Made by a person who believed she was dying ○ Statement is about the facts of her death ○ Declarant is unavailable |
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804(b)(3), Hearsay Exceptions: Declarant Unavailable, Statement against Interest. How does the court determine if a statement was against the declarant's interest? What about in a civil trial?
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○ A statement so contrary to declarant's interest . . . That a reasonable person would not have made the statement unless believing it to be true
○ Robinson v. Harkins, • Three interests balanced under the rule: ○ Pecuniary ○ Penal ○ Social • Requirements for civil statements against interest ○ Statement may cause liability to declarant ○ Or statement may eliminate cause of action against another person ○ Declarant is unavailable |
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If a statement against interest may expose a declarant to criminal liaiblity, what extra requirement is added?
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○ Statement exposing declarant to criminal liability inadmissible
absent corroborating circumstances indicating the trustworthiness of the statement |
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How do the rules of evidence address the mafia's (perhaps fabled) propensity to off witnesses?
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• 804(b)(6), Forfeiture by wrongdoing
• A defendant who procures a witness' absence waives the right of confrontation for all purposes re: that witness, not just to the admission of sworn hearsay statements United States v. Aguilar 2nd Circuit, 1992 |
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What are the two ways in which the Confrontation Clause restricts hearsay? What is required when a witness is unavailable?
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Confrontation Clause, restricts hearsay in two ways
○ Establishes a rule of necessity for face-to-face accusation, so prosecution must also demonstrate the unavailability of the declarant ○ If witness is unavailable § Statement admissible only if it bears adequate indicia of reliability § Otherwise evidence must show particularized guarantees of trustworthiness • Confrontation Clause excludes out-of-court statement ○ Unless an affirmative reason, arising from statement's circumstances ○ Provides a basis for rebutting the presumption that a hearsay statement is unworthy of reliance at trial |
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How is the particularized guarantee prong of the Confrontation Clause's demand for unavailable declarants satisfied?
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• Relevant circumstances showing particularized guarantees of trustworthiness include
○ Only those circumstances surrounding the making of the statement ○ Which render declarant worthy of belief |
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How is the indicia of reliability of the Confrontation Clause's demand for unavailable declarants satisfied?
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Indicia of reliability
○ Come by virtue of inherent trustworthiness ○ Not by reference to other evidence at trial |
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Which of the following satisfy the the indicia of reliability standard of the Confrontation Clause's demand for unavailable declarants?
§ Opportunity of respondant to commit the offense § Whether child had motive to make up a story of this nature § Older daughter's corroborating identification § Presence of physical evidence of abuse § Whether given the child's age, statements are of the type that one would expect a child to fabricate |
• Evaluating trial court's supposed indicia or reliability
○ Only two relate to circumstances surrounding statements: § Whether child had motive to make up a story of this nature § Whether given the child's age, statements are of the type that one would expect a child to fabricate ○ Other factors relate to outside evidence irrelevant to showing particularized guarantees § Presence of physical evidence of abuse § Opportunity of respondant to commit the offense § Older daughter's corroborating identification Idaho v. Wright SCOTUS, 1990 |
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What are five factors indicating circumstantial trustworthiness?
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Factors indicating circumstantial trustworthiness:
○ Was statement made under oath ○ Was it concerned matters w/in declarant's personal knowledge ○ Had declarant recanted statement ○ Was there evidence that declarant is unreliable Or does other evidence seriously undermine the content of the statement? |
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When are testimonial statements of witnesses absent from trial admitted?
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• Testimonial statement of witnesses absent from trial have been admitted only when:
○ Declarant is unavailable ○ AND where Def has had a prior opportunity to cross-examine Crawford v. Washington SCOTUS, 2004 |
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Are statements to law enforcement testimonial when made during
○ a 911 call? ○ OR at a crime scene? |
• Police interrogations are only testimonial when circumstances objectively indicate:
○ There is no ongoing emergency ○ And primary purpose is to prove past events potentially relevant to later criminal prosecution • Although domestic violence is prone to intimidation or coercion of the victim, we may not vitiate constitutional guarantees when they have the effect of allowing the guilty to go free Davis v. Washington SCOTUS, 2006 |
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What is the general presumption concerning witness competency?
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• 601, Generally, all witnesses are presumed competent
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What does FRE 603 require witnesses to do before testifying?
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• 603, Before testifying, every witness shall
○ Declare to testify truthfully ○ By oath or affirmation ○ In a form awakening witness' conscience and impressing duty upon witness' mind |
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May a party attack the credibility of its own witness?
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• 607, The credibility of a witness may be attacked by any party, including the party calling the witness
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When are leading questions permitted under Rule 611?
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• 611, Leading questions prohibited
○ May lead with questions during cross-examination or interrogation of hostile witness ○ Example: § Leading: "Is it true that you locked the door when you left the house?" § Permissible: "What did you do, if anything, when you left the house?" |
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What are Dead Man's Statutes, and how do the Federal Rules treat them?
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• Dead Man's Statutes
○ State laws preventing witness from testifying about transactions w/ person involved who has died prior to trial ○ Federal Rules reject principles behind Dead Man's Statutes ○ Farley v. Collins, § Survivor of auto accident may testify § b/c a collision fails to constitute a "transaction" under Florida's Dead Man's Statute |
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Although jurors may not normally testify as witnesses under Rule 606, what are the three exceptions to this rule, and what do all three exceptions have in common?
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• 606, Jury testimony
(a) Jurors may not testify as a witness (b) Juror may not testify about state of mind during deliberations, but during inquiry into validity of a verdict/indictment a juror may testify about (1) Whether extraneous prejudicial info was improperly brought to jury's attention (2) Whether any outside influence was improperly brought to bear upon any juror (3) Whether there was a mistake in entering the verdict |
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Since all witnesses are presumed competent, what are the grounds for disqualifying witnesses?
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• Grounds for disqualifying a witness:
○ Lacks knowledge of matters about which he is to testify ○ Lacks capacity to recall ○ Fails to understand duty to testify truthfully |
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What are the rules when children testify?
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• Children are generally competent
○ Judge might rule child cannot understand oath/affirmation • When child testifies, trial court examines witness to ascertain whether ○ she is sufficiently intelligent to observe, recollect, and narrate the facts ○ Can child distinguish reality/fantasy? ○ and has a moral sense of obligation to speak the truth |
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What are five grounds of impeachment?
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• Five methods of impeachment
(i) witness has made a prior inconsistent statement (ii) witness has bias or interest relating to parties/outcome of case (iii) witness has bad character for truthfulness (iv) Defect of capacity (v) Witness' testimony is false - contradiction of witness |
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What two forms of evidence are admissible for FRE 608(a) witness impeachment purposes? Are there any other requirements?
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608(a), A witness may be impeached by proof that she is by disposition untruthful
○ (a)(1) Evidence may refer only to character for truthfulness or untruthfulness § Reputation for truth-telling § OR opinion about testifying witness typical truthfulness § Weinstein's Evidence, Rule imposes no prereq conditioned upon long acquaintance or recent info about the witness □ Witness may simply say, "I think X is a liar" □ W/o having to show familiarity w/ X There must be an attack on credibility before evidence of truthful character is admissible |
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608(b) allows specific instances of bad acts conduct to be admissible for witness impeachment. What are three pre-conditions? What are the limitations?
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○ (b) Bad acts
§ Three conditions on use of defendant's prior misconduct (1) Good faith (2) Probative value > prejudicial effect (3) Relates to truthfulness § Specific instances of witness conduct may not be proved by extrinsic evidence □ But, since proof other than this testimony is prohibited □ Examiner must "take the witness' answer" |
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609(a)(1) allows witness impeachment via evidence of prior conviction. But subject to what restrictions?
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○ 609(a)(1) Impeachment via Evidence of prior Conviction
§ "witness other than Def" subject to Rule 403 § Qualifications: □ Crime must have been punishable by death/imprisonment in excess of a year □ Def is witness: prejudice? ® Evidence excluded if court determines probative value outweighed by prejudicial effect OR: any crime of dishonesty BUT IN ANY CASE: limited to w/in past 10 years |
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[Deleted]
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When does evidence of conviction go 'stale?'
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○ 609(b) Evidence of conviction 'stale' after ten years unless probative value substantially outweighs prejudicial effect
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What two kinds of convictions are inadmissible for witness impeachment purposes?
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○ 609(c) Pardon/annulment/cert. of rehabilitation makes evidence inadmissible
○ 609(d) Juvenile adjudications inadmissible |
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What kind of witnesses may issue opinion testimony?
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• Rule 702 A witness qualified as an expert by knowledge may testify thereto in the form of an opinion or otherwise
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What does Rule 612 mean about refreshing memory?
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• Rule 612
○ Allows a writing to be used to refresh memory ○ Compare with 803(5), allowing a recorded past recollection ○ Riccardi, Primary difference b/w refreshing recollection and otherwise: ability of witness to testify from present knowledge ○ Witness' memory being revived ○ Different from witness who cannot directly state the facts from present memory |
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What is the scope of cross-examination?
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○ Rule 611(B)
□ Limits cross-examination to ® Credibility ® AND matters testified on direct □ But also to inferences from matters referred to on direct |
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Why is it dangerous when the court calls a witness on its own initiative?
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• Rule 614,
○ A court may call and interrogate witnesses, called by itself or by a party ○ Karnes, Impartiality of court destroyed when court undertakes to produce evidence ○ Essential to overcome def's presumption of innocence ○ Which gov't has declined to present |
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What is the rule on juror questions?
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• Questions by jurors
○ No per se rule against juror questions • Decision to allow juror questioning firmly w/in trial judge's discretion ○ But should weigh § Potential benefit to jurors § Against potential harm to the parties (particularly in a criminal matter) □ May convert jurors into partial advocates □ May be a subliminal invitation to launch prematurely into evaluating the evidence ○ Questions should clarify factual issues § Not to pursue legal theories § Or fill in the gaps |
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FRE 615 allows sequestration of jury members. What should a judge do when a witness disobeys a withdrawal order?
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• Holder v. US, If a witness disobeys the order of withdrawal
○ He may be held in contempt ○ His testimony open to comment to the jury ○ BUT witness is not disqualified A party ignorant of the violation and who didn't cause it should not be deprived of essential testimony • Exclusion of the witness' testimony is too grave a sanction when ○ The violation was unintentional ○ AND not procured by the connivance of the party or his counsel Towner v. State Wyoming, 1984 |
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How strict is the evidence authentication requirement?
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• 901(a), requirement of authentication satisfied by evidence sufficient to support a finding that the matter is what its proponent claims
○ Proffered evidence normally admitted ○ Once a prima facie case has been established • United States v. Johnson, Witness' statement that he was "pretty sure" this was the weapon used against him clears 901's authentication hurtle • United States v. Olson, An uninterrupted chain of custody, § is not a prereq of admissibility § Goes towards weight of the evidence ○ Presumption of regularity attends official acts of public officers |
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Who may testify as to opinions on handwriting?
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• 901(b)(2), Non-expert opinion on handwriting; allows those familiar with handwriting to testify on it
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How are incoming calls authenticated?
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• Incoming calls
○ 901(b)(4), distinctive characteristics and the like § An incoming call cannot be authenticated □ Merely on the basis of self-ID by the caller □ b/c of the danger of fabrication ○ 901(b)(5), voice ID □ Witness' identifying voice must have personal knowledge □ Which may be acquired by hearing the voice at any time □ Before □ OR after the time in question |
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How are outgoing calls authenticated?
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• 901(b)(6), outgoing calls are sufficiently authenticated
○ By showing the call was made ○ To the person ○ At the number assigned by the telephone company (a) Self-ID (b) OR conversation related to relevant biz |
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What are the two theories of photographic evidence?
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• Fisher v. State
○ Pictorial testimony theory □ Photo evidence is merely illustrative □ Only admissible when a sponsoring witness can testify that it’s a fair/accurate representation of the subject matter ○ Silent witness theory □ Photo evidence speaks for itself □ Is substantive evidence of what it portrays independent of a sponsoring witness |
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What must demonstrative evidence do?
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• Demonstrative Evidence
○ Used for illustrative purposes ○ Must ○ Depict relevant info ○ That will be proven by other substantive evidence ○ That is accurate § Perfect accuracy not required § Only that it be helpful ○ That will probably aid the trier in fact ○ Smith v. Ohio, Model skeleton was helpful and not gruesome/unnecessary, ○ And only then to describe the pelvic area (which is the most difficult part of the body for the average person to visualize) ○ Pointed to where excess strain could occur ○ Relevant to doctor's statement that a built-up shoe could not remedy plaintiff's condition |
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What are the limitations on lay testimony under FRE 701?
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• Rule 701, If witness not testifying as an expert
○ Witness' testimony in form of opinions/inferences ○ Is limited to those which are § Rationally based on perception of the witness § AND helpful to a clear understanding of the testimony and determination of fact at issue ○ Rule 701 2000 Amendment § Declines to distinguish b/w expert and lay witness § But distinguishes expert and lay testimony |
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When may an expert testify?
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• Rule 702, an expert may testify
○ concerning "scientific, technical, or other specialized knowledge" ○ If it will assist the trier of fact to understand the evidence or determine a fact in issue § Test for determining use of experts is whether a layman would be able to understand w/o expert's testimony |
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What is troublesome about the term 'expert?'
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§ Should prohibit use of the word "expert" by parties/court at trial
□ Ensures trial courts avoid inadvertently putting their stamp of authority on testimony □ Protects against jury being overwhelmed by so-called 'experts' |
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What is the general reliability test for evaluating expert testimony?
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• Daubert test "General Reliability test"
(1) Validity/Reliability i. Tested? ii. Peer Reviewed? iii. Error rates? iv. Acceptance in Scientific community v. Qualifications of expert (2) Does it fit the facts of the case (3) FRE 403 |
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How is expert testimony special with relation to the rest of the rules of evidence?
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• Rule 703, Normal evidentiary rules (particularly hearsay) are set aside when experts present facts/data
§ Upon which an expert bases an opinion/inference § That are of a type reasonably relied upon by experts in the particular field to form opinions/inferences |
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Under FRE 705, must experts disclose underlying facts/data?
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• Rule 705, Experts may testify in terms of opinion/inference and give reasons therefor w/o first testifying to the underlying facts or data, unless the court requires otherwise
○ The expert may in any event be required to disclose the underlying facts or data on cross-examination |
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Is lay testimony inadmissible when it touches on the ultimate issue to be decided?
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Rule 704, testimony otherwise admissible is not objectionable b/c it embraces the ultimate issue to be decided
• Lay witness testimony on discrimination in employment case may not provide a legal conclusion ○ Testimony containing legal conclusion problematic b/c it conveys the witness's unexpressed, perhaps erroneous, legal standards to the jury ○ Should use common terms distinct from legal terms Torres v. County of Oakland |
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What are the general guidelines for lay witness testimony and opinions?
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• Generally witnesses should state facts and avoid giving opinions
• But should be allowed when facts are incapable of being presented w/ proper force to anyone but observer himself • For example, opinions allowed instead of describing odors |
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Are original documents required under the rules of evidence?
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○ 1002 Requirement of original, unless otherwise stated in rules
○ 1003 Duplicates - assumed admissible unless (1) Genuine question of authenticity of original (2) Circumstances make admitting duplicate unfair 1004 Other Evidence (Secondary) § When original is not required § Sets out when other evidence is admissible: original lost/destroyed OR unobtainable OR in possession of party-opponent |
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[Deleted]
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[Deleted]
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How disfavored are copies of original documents?
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Not very disfavored at all
• United States v. Rangel, Photocopies of documents treated as originals absent a challenge to their authenticity • Neville Construction, ○ There are no degrees of secondary evidence to prove contents of a writing that has been lost/destroyed ○ Secondary evidence, live testimony of Dennis, was properly admitted to prove contents of brochures destroyed in a fire • Englund v. State ○ Broad purposes and goals of Article X support the trial court's admission of the copy of the document prepared by the clerk admissible in lieu of the actual document into evidence |
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What is the rule for summaries of evidence?
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• Summary evidence admissible under Rule 1006 only if the underlying materials are admissible
• Foundation: a proper foundation for a summary must establish ○ the admissibility of the underlying materials ○ and the accuracy of the summary • United States v. Bakker, Purpose of Rule 1006 to provide a practicable means of summarizing voluminous info ○ Simply requires material be made available to other party, not that original material be introduced into evidence ○ Here, viewing all of the original broadcast tapes would have taken over 200 hours of the court's and jury's time |
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What are the two theories on presumption, and which does the FRE adopt?
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• The theories:
○ Bursting the bubble § (chosen by the FRE) § Effect of evidence rebutting the presumption ○ Burden-shifting approach § (discarded) § Who has the burden of proof? |
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What are the three kinds of presumptions?
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• Three kinds of presumptions
○ True Presumption (Rebuttable) ○ Permissive Inference (Presumption of Fact) ○ Conclusive Presumption (Rule of Substantive Law) |
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Name three specific examples of presumptions
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• Presumption of delivery;
○ Proof that mail is properly addressed, stamped, and deposited is accepted as evidence of delivery to the addressee ○ But is merely a rebuttable presumption ○ May be refuted by actual evidence • Presumption of procedural regularity; ○ Based upon normal habit/custom of handling incoming mail at the Patent Office ○ And on absence of evidence showing the subject applications were not handled routinely in accordance w/ those established principles • Acts of a person of sound mind and discretion are presumed to be the product of a person's will, but presumption may be rebutted |
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How does the Due Process Clause impact presumptions?
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• Due Process Clause: conviction must be proof beyond a reasonable doubt
○ Mandatory presumptions violate the Due Process Clause if they relieve the State of the burden of persuasion on an element of an offense ○ Permissive inferences are allowed, b/c it requires the State to convince the jury that the suggested conclusion should be inferred based on the predicate facts proven ○ Question is what a reasonable juror could have understood jury instructions to mean |
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What is the test for when a fact should be given judicial notice?
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• Judicial notice test:
○ Is the fact one of common, everyday knowledge, which everyone of average intelligence/knowledge can be presumed to know? ○ Is it certain/indisputable? If yes, then judicial notice may be given Varcoe v. Lee California, 1919 |
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Is the jury required to accept any fact judicially noticed?
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• Rule 201(g), In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed
• By excepting criminal cases, Congress intended to preserve the jury's traditional prerogative to ignore even uncontroverted facts in reaching a verdict |
