Evidence Ii

Front 1

Gov’t of the Virgin Islands v. Knight, 989 F.2d 619 (3rd Cir. 1993)

Back 1

Application of FRE 701. If a layperson has firsthand knowledge of the facts upon which his opinion would be based, and the opinion would help the jury resolve a disputed fact, then the layperson’s opinion is admissible.

Front 2

U.S. v. Montas, 41 F.3d 775 (1st Cir. 1994)

Back 2

Expert testimony that concerns a subject within an average juror’s understanding is reversible error; but you need to object under FRE 702, or 403 to avoid losing because it was not plain error.

Front 3

U.S. v. Paul, 175 F.3d 906 (11th Cir. 1999)

Back 3

Handwritten note at an Atlanta Wachovia bank to deliver $100K to a McDonald’s restaurant. Ziegler was an expert in handwriting analysis while Denbeaux was a law professor with no skill, experience, education or training in the field.

Front 4

Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993)

Back 4

Federal Rules of Evidence superseded Frye “general acceptance” test for admissibility of scientific evidence. Fed.Rules Evid.Rule 702, 28 U.S.C.A.

Front 5

Daubert v. Merrell Dow Pharmaceuticals, Inc., 43 F.3d 1311 (9th Cir. 1995)

Back 5

Supreme Court's Daubert decision requires federal judges ruling on admissibility of expert scientific testimony to engage in two-part analysis: first, judge must determine nothing less than whether experts' testimony reflects “scientific knowledge,” whether their findings are “derived by the scientific method,” and whether their work product amounts to “good science”; second, judge must insure that proposed expert testimony is relevant to task at hand, i.e., that it logically advances material aspect of proposing party's case. Fed.Rules Evid.Rule 702, 28 U.S.C.A.

Front 6

Kumho Tire Company, Ltd. v. Carmichael, 526 U.S. 137 (1999)

Back 6

The Daubert factors may apply to the testimony of engineers and other experts who are not scientists.

Front 7

Arkansas State Highway Commission v. Schell, 683 S.W.2d 618 (Ark. App. 1985)

Back 7

When an expert's testimony is based on hearsay, the lack of personal knowledge on the part of the expert does not mandate the exclusion of the opinion but, rather presents a jury question as to the weight which should be assigned the opinion.

Front 8

Torres v. County of Oakland, 758 F.2d 147 (6th Cir. 1985)

Back 8

An opinion that goes to an ultimate issue is not inadmissible unless it has a fatal flaw, such as an unauthorized legal conclusion. If terms used by witness have a separate, distinct and specialized meaning in law different from that present in the vernacular, exclusion of witness' testimony as being a legal conclusion is appropriate

Front 9

United States v. Thigpen, 4 F.3d 1573 (11th Cir. 1993)

Back 9

Under FRE 704(b), expert testimony concerning the nature of a defendant's mental disease or defect, including its typical effect on a person's mental state, is admissible.

Front 10

Commonwealth v. Farris, 380 A.2d 486 (Pa. 1977)

Back 10

A disingenuous tactic to get around the hearsay rule does not cure the hearsay defect. Thus evidence as to the purport of “information received” by the witness, or a statement of the result of investigation made by other persons, offered as evidence of the facts asserted out of court, have been held to be hearsay. FRE 801 (Q: "After declarant made statement, what did you do?" A: "I arrested defendant")

Front 11

Hanson v. Johnson, 201 N.W. 322 (Minn. 1924)

Back 11

“Verbal acts” are not hearsay. A declarant whose statement has legal significance per se is not offered to prove the truth of the matter asserted, but rather only to show that a matter was asserted – which itself has legal significance. FRE 801 (Nodding at the corn in the crib means"That's your corn over there")

Front 12

McClure v. State, 575 S.W.2d 564 (Tex. Crim. App. 1979)

Back 12

Whenever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is to be made of it, and the utterance is therefore admissible, so far as the hearsay rule is concerned. FRE 801 (“The declarant’s statement, whether true or not, enraged me”)

Front 13

U.S. v. Zenni, 492 F.Supp. 464 (E.D.Ky 1980)

Back 13

Nonassertive verbal conduct is not hearsay. FRE 801 (People calling to place bets)

Front 14

Bridges v. State, 19 N.W.2d 529 (Wis. 1945)

Back 14

An out-of-court statement by a declarant offered to show declarant’s state of mind, such as knowledge about a circumstance, is not hearsay. FRE 801 (Declarant’s statements tended to show she was familiar with the surroundings where she was allegedly assaulted)

Front 15

U.S. v. Castro-Ayon, 537 F.2d 1055 (9th Cir. 1976)

Back 15

Prior inconsistent statements, made in a quasi-judicial immigration proceeding, satisfy the conditions of 801(d)(1) defining certain prior inconsistent statements as not hearsay. FRE 801(d)(1)(A). (Illegals statements in quasi-judicial INS inquisition admitted to impeach their exculpatory testimony at defendant’s trial)

Front 16

Tome v. U.S., 513 U.S. 150 (1995)

Back 16

Post-motive prior consistent statements are not admissible under 801(d)(1)(B)

Front 17

U.S. v. Lewis, 565 F.2d 1248 (2nd Cir. 1977)

Back 17

Despite a mistake in the courtroom identification, the photospread identification, when consistent with a previous photospread identification, is admissible under 801(d)(1)(C)

Front 18

U.S. v. Owens, 484 U.S. 554 (1988)

Back 18

Identification – confrontation clause – memory loss and availability of witness; victim/witness suffered memory loss from attack so that loss of memory of attack did not operate to exclude evidence of memory of identifying defendant in a later interview with the FBI.

Front 19

Jewell v. CSX Transportation, Inc., 135 F.3d 361 (6th Cir. 1998)

Back 19

The daughter’s statement that her parents were arguing, and not paying attention to the road is admissible as opponent party admission. FRE 801(d)(2)(A).

Front 20

U.S. v. Morgan, 581 F.2d 933 (D.C. Cir. 1978)

Back 20

The government can’t disavow a statement as hearsay if it relied on the statement to get its warrant. FRE 801(d)(2)(B)

Front 21

People v. Green, 629 P.2d 1098 (Colo.App., 1981)

Back 21

A failure to respond is not adoption of a statement. FRE 801(d)(2)(B)

Front 22

Kirk v. Raymark Industries, Inc., 61 F.3d 147 (3rd Cir. 1995)

Back 22

An expert witness cannot make a party admission under 801(d)(2)(C).

Front 23

Mahlandt v. Wild Canid Survival & Research Center, Inc., 588 F.2d 626 (1978)

Back 23

Statements against interest made by an employee of the corporate defendant, a wild canid survival and research center, were admissible against the corporate defendant, where the statements were made by the employee when he was an agent or servant of the corporation, where they concerned a matter within the scope of his agency or employment, i.e., his custody of the wolf, and where they were made during the existence of that relationship. FRE 801(d)(2)(D)

Front 24

Bourjailly v. U.S., 483 U.S. 171 (1987)

Back 24

A coconspirator’s statement is defined as not hearsay. The statement in question may be used in determining the preliminary matters of whether the conspiracy existed and whether the statement was made in furtherance of the conspiracy. FRE 801(d)(2)(E)

Front 25

Houston Oxygen Co. v. Davis, 161 S.W.2d 474 (Tex. Comm. App. 1942)

Back 25

Hearsay of a present sense impression is reliable and thus admissible as an exception to the hearsay rule. FRE 803(1)

Front 26

City of Dallas v. Donovan, 768 S.W.2d 905 (Tex. App. 1989)

Back 26

When there are two events – (1) a report of a missing stop sign and (2) a traffic accident featuring broken bloody children, the excited utterance exception applies to a statement offered to prove the truth of event (1) although the excitement was caused by event (2), if event (1) is sufficiently related to event (2) to be material. FRE 803(2)

Front 27

Casualty Insurance Co. v. Salinas, 333 S.W.2d 109 (Tex. 1960)

Back 27

A declarant's own contemporary statements of his physical (or mental or emotional) condition is admissible pursuant to a hearsay exception. FRE 803(3)

Front 28

Adkins v. Brett, 193 P. 251 (Cal. 1920)

Back 28

If part of the testimony is admissible pursuant to a hearsay exception, but another part is not, the testimony remains admissible with a limiting instruction, unless this approach would not provide enough protection against prejudicial effect, that is misuse by the jury. FRE 803(3)

Front 29

U.S. v. Pheaster, 544 F.2d 353 (9th Cir. 1977)

Back 29

Hillmon doctrine applied with an interpretation that the state of mind exception can be used to admit hearsay of the declarant's state of mind as circumstantial evidence that someone other than the declarant performed an act. FRE 803(3)

Front 30

Norton v. State, 771 S.W.2d 160 (Tex. Ct. App. 1989)

Back 30

The state of mind exception to the hearsay rule does not include hearsay as to a memory or belief to prove the fact remembered or believed. FRE 803(3)

Front 31

State v. Moen, 786 P.2d 111 (Ore. 1990)

Back 31

Classic 803(4) illustration. An out-of-court statement offered to prove the truth of the matter asserted is admissible if the statement was originally made for the purposes of medical diagnosis or treatment. FRE 803(4)

Front 32

U.S. v. Patterson, 678 F.2d 774 (9th Cir. 1982)

Back 32

803(5) Illustration. An out-of-court statement offered to prove the truth of the matter asserted may be admitted when it is a past recollection recorded (as opposed to a past recollection refreshed – here, the memory failed) FRE 803(5)

Front 33

Keogh v. Commissioner of Internal Revenue, 713 F.2d 496 (9th Cir. 1983)

Back 33

Personal business records, if well kept, may fit under the 803(6) hearsay exception.

Front 34

U.S. v. Baker, 693 F.2d 183 (D.C.Cir. 1982)

Back 34

Double hearsay is admissible only when each level of hearsay independently fits within an exception to the hearsay rule. Business records exception does not fly when the person filling in the form is an unverified “outsider.” FRE 803(6)

Front 35

Scheerer v. Hardee’s Food Systems, Inc., 92 F.3d 702 (8th Cir. 1996))

Back 35

"Routine course of business" for 803(6) purposes does not include "routinely for the purposes of preparing for litigation," but rather "routinely for the course of doing the business that the business is in business to do."

Front 36

U.S. v. Quezada, 754 F.2d 1190 (5th Cir. 1985)

Back 36

If statements from a law enforcement official are free from the adversarial process of the criminal justice system, they may fall within the public records exception in 803(8) to the hearsay rule.

Front 37

Beech Aircraft Corp. v. Rainey, 488 U.S. 153 (1988)

Back 37

Investigative reports containing "findings of fact," "opinions," and "recommendations" for report purposes do not necessarily make those distinctions on legal grounds, and therefore do not automatically have portions excludable under 803(8)(C).

Front 38

Zwack v. State, 757 S.W.2d 66 (Tex. App. 1988)

Back 38

Learned treatises are only to be used in conjunction with expert testimony to prevent misunderstanding and misapplication. FRE 801(18).

Front 39

State v. Ayers, 468 A.2d 606 (Me. 1983)

Back 39

Tactical choices for trial do not enter into the analysis for “opportunity and similar motive” [to develop the testimony by examination] under 804(b)(1).

Front 40

Clay v. Johns-Manville Sales Corp., 722 F.2d 1289 (6th Cir. 1983)

Back 40

“Predecessor in interest” as interpreted after enactment of 804(b)(1) is more generously interpreted than it was at common law.

Front 41

State v. Quintana, 644 P.2d 531 (N.M. 1982)

Back 41

The abandonment of all hope of recovery is no longer required for admissibility of a dying declaration; If it can be reasonably inferred from the state of the wound or illness that the dying person was aware of his danger, then the requirements of impending death are met.

Front 42

Robinson v. Harkins & Co., 711 S.W.2d 619 (Tex. 1986)

Back 42

A statement against financial, criminal and social interests can outweigh an argument that the statement was self-serving.

Front 43

Williamson v. U.S., 512 U.S. 594 (1994)

Back 43

The statements must be against the declarant’s interests to fit under the 804(b)(3) hearsay exception.

Front 44

U.S. v. Paguio, 114 F.3d 928 (9th Cir. 1997)

Back 44

Williamson distinguished. When statements against interest are offered under 804(b)(3) with no attempt to shift blame or curry favor, then they are admissible.

Front 45

U.S. v. Aguiar, 975 F.2d 45 (2nd Cir. 1992)

Back 45

Under 804(b)(6), you can’t benefit from intimidating a witness not to testify against you. If you do, his prior hearsay statements are admissible.

Front 46

Idaho v. Wright, 497 U.S. 805 (1990)

Back 46

Evidence possessing “particularized guarantees of trustworthiness” must be shown from the totality of the circumstances to be so trustworthy that adversarial testing would add little to its reliability

Front 47

Crawford v. Washington, 541 U.S. 36 (2004)

Back 47

Where testimonial evidence is at issue, the only indicium of reliability sufficient to satisfy constitutional demands is confrontation: the 6th Amendment demands unavailability and a prior opportunity for cross-examination.

Front 48

Davis v. Washington, 547 U.S. 813 (2006)

Back 48

Absent a finding of forfeiture by wrongdoing, the 6th Amendment operates to exclude “testimonial” hearsay. Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of interrogation is to enable police assistance to meet an ongoing emergency. Statements are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.

Front 49

U.S. v. Johnson, 637 F.2d 1224 (9th Cir. 1980)

Back 49

Foundation testimony for real evidence that is not “entirely free from doubt” can support a finding that the item is what the proponent claims if a reasonable juror, based on the proponent’s testimony can find the item is what the proponent claims.

Front 50

U.S. v. Olson, 846 F.2d 1103 (7th Cir. 1988)

Back 50

Gaps in the chain of custody go to the weight of the evidence, not its admissibility. If the trial judge is satisfied that in reasonable probability the evidence has not been altered in any material respect, he may admit it.

Front 51

U.S. v. Mangan, 575 F.2d 32 (2nd Cir. 1978)

Back 51

Rule 901 may be satisfied by signatures on tax returns because of a presumption provided by IRC § 6064; similar documents can be authenticated based on the tax return under 901(b)(4): Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.

Front 52

U.S. v. Vitale, 549 F.2d 71 (8th Cir. 1977)

Back 52

Testimony that a witness recognizes the voice of an evidence opponent because the witness had actually spoken with the opponent either before or after the occasion in issue supports the authentication requirements of Rule 901.

Front 53

Fisher v. State, 643 S.W.2d 571 (Ark. App. 1982)

Back 53

Photographic evidence may be admitted under either a “pictorial testimony” theory, or a “silent witness” theory, in which the photographic evidence is a “silent witness” speaking for itself, as substantive evidence of what it portrays independent of a sponsoring witness

Front 54

Smith v. Ohio Oil Co., 134 N.E.2d 526 (Ill. App. 1956)

Back 54

Demonstrative evidence is admissible at the trial court’s discretion subject to appellate review of the actual use made of the demonstrative evidence for “abuse of the ruling” by the proponent, as opposed to abuse of discretion by the trial court.

Front 55

U.S. v. Duffy, 454 F.2d 809 (5th Cir. 1972)

Back 55

When disputed evidence is an object bearing a mark or inscription, and is, therefore, a chattel and a writing, the trial judge has discretion to treat the evidence as a chattel or as a writing.

Front 56

U.S. v. Gonzales-Benitez, 537 F.2d 1051 (9th Cir. 1976)

Back 56

Therefore the Best Evidence rule does not apply when the issue is the content of a conversation versus the content of the media.

Front 57

U.S. v. Rangel, 585 F.2d 344 (8th Cir. 1978)

Back 57

Photocopies are “originals” under the best evidence rule when the content of the photocopies, and not the content of original receipts, is the matter to be proved.

Front 58

Neville Construction Co. v. Cook Paint & Varnish Co., 671 F.2d 1107 (8th Cir. 1982)

Back 58

The Federal Rules of Evidence recognize no degrees of secondary evidence to prove the contents of a writing that has been lost or destroyed.

Front 59

U.S. v. Marcantoni, 590 F.2d 1324 (5th Cir. 1979)

Back 59

The predicate to Rule 1004 for admissibility of secondary evidence may be inferred from the record on appeal when it is not clear whether the trial court considered the evidence in dispute secondary evidence.

Front 60

Farr v. Zoning Board of Appeals of Town of Manchester, 95 A.2d 792 (Conn. 1953)

Back 60

Originals are not required as proof of content when the content is a collateral matter in a proceeding under Rule 1004(4)

Front 61

Englund v. State, 946 S.W.2d 64 (Tex. Crim. App. 1997)

Back 61

Copies of copies of public records are admissible under Rule 1005 when a duplicate of a public record would be admissible.

Front 62

U.S. v. Bakker, 925 F.2d 728 (4th Cir. 1991)

Back 62

Rule 1006 deals with summaries of voluminous evidence, and whether the summary represents the underlying evidence goes to weight, not admissibility. Distinguish this from summaries of admitted evidence for demonstrative purposes in which whether the summary represent the underlying evidence goes to admissibility.

Front 63

Seiler v. Lucasfilm, Inc., 808 F.2d 1316 (9th Cir. 1986)

Back 63

Stipulate to the existence of the originals when you discover the evidence proponent cannot get his grubby little hands on them. If you don’t get the evidence in under 104, then getting it to a jury under 1008 does not happen.