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35 Cards in this Set
- Front
- Back
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Foundation Requirement for Witnesses
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FRE 602 – Personal Knowledge
1. witness must have personal knowledge of any matter to which she testifies a. standard of proof: is there evidence sufficient to support a finding that witness has personal knowledge of what they’re testifying about? i. low hurdle b. witness may establish their own foundation by explaining how they have personal knowledge |
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Foundation Requirement for Exhibits
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FRE 901 – Authenticity/Identification of Exhibits
1. required to be authentic a. standard: evidence must be sufficient to support a finding that the matter in question is what its proponent claims i. low hurdle b. usually established by a witness w/ personal knowledge c. identification of an exhibit must be specific enough to establish its relevance |
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Foundation Requirement Expert Witnesses
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FRE 702 – Expertise
1. where scientific, technical, or specialized knowledge will assist the trier of fact, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of opinion or otherwise a. also required: i. testimony must be based on sufficient facts or data; ii. testimony must be the product of reliable principles and methods; and, iii. witness must have applied the principles and methods reliably to the facts of the case b. standard: higher than ‘evidence sufficient to support a finding’; likely ‘preponderance of the evidence’ |
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Lay Opinions
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FRE 701 – Opinion Testimony of Lay Witnesses
1. requires that (1) the opinion be rationally based on the witness’ perception (personal knowledge) and (2) be helpful to a clear understanding of his testimony or the determination of a fact in issue. a. standard: evidence must be sufficient to support a finding that a rational basis for the opinion exists b. helpfulness: if the jury has the same facts as the witness, then opinion cannot be helpful 2. Note: formerly, witnesses were not allowed to give their opinions, but due to the difficulty of eliminating all opinion from fact testimony, the rule was changed 3. NOTE: concrete, factual descriptions are still more persuasive |
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Three Bells for Admissability of Exhibits
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a. Three bells for admissibility:
i. authenticity; ii. compliance with the original writing rule; iii. not being offered for some purpose prohibited under the hearsay rule |
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FRE 901 Authenticity
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FRE 901 – Authenticity: satisfied by showing of evidence sufficient to support a finding
a. FRE 901(b): examples of proper authentication/id- i. (2) Nonexpert Opinion on Handwriting: lay opinion allowed only if based on familiarity acquired not for the litigation ii. (3) Comparison by the Trier or Expert Witness w/ specimens which have been authenticated 1. note: comparison by trier only allowed in a judge trial b/c judge determines admissibility of evidence iii. (4) Circumstances: distinctive characteristics (appearance, contents, substance, internal patterns, etc.) taken in conjunction w/ circumstances 1. either circumstances may be sufficient by themselves, or sometimes they bolster someone else’s identification iv. (5) Voice Id: lay opinion is sufficient v. (6) Telephone Conversation: sufficient to call a # listed for a party and have the person on the other end of the line (or other circumstances) identify the party b. FRE 901 has replaced former chain of custody rules i. still used in some cases, but no longer generally required |
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Original Writing Rule
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“writing speaks for itself”; formerly “best evidence” rule
1. applies when party seeks to prove the contents of a writing, recording or photo, the party must have the original or otherwise comply w/ OWR a. thrust of rule is that witnesses may not testify to the contents of a document, it must speak for itself b. Rule applies when: i. Document to Prove a Document: when a controversy centers on the contents of a document; or, ii. Document to Prove a Fact: when contents of document proves an element of material fact |
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Self authentication
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c. FRE 902 – Self-Authentication: exhibits which lay their own foundation
i. Public documents which have been certified or come under seal 1. better to have a witness, but can self-authenticate ii. Publications and certain trade documents 1. better to have a witness, but can self-authenticate |
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FRE 1001 Hierarchy
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: uses expansive definitions for writings, recordings, photos
a. hierarchical rule: i. original is preferred; 1. FRE 1002 ii. duplicate is generally acceptable, so long as there is no question of fairness; 1. FRE 1003 iii. other means are acceptable if the writing, recording, photo is lost, destroyed, inaccessible through reasonable means, or in the possession of my opponent who knew it would at issue in this case 1. FRE 1004 |
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FRE 1005 Hierarchy For Public Records
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Public Record: special rule establishes separate hierarchy for public records:
a. certified copy of record (aka “true” copy of document on record); b. testimony as to a compared copy; c. other means of proof |
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FRE 406 – Habit or Routine Purpose
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1. evidence of person’s habit or the routine practice of an organization is admissible to prove action in conformity on a particular occasion, regardless of lack of eyewitness or corroboration (at common law, needed corroboration)
a. habit: specific, near-automatic reaction to particular circumstances ingrained through repetition 2. Foundation for habit need repeated observation to establish a routine practice |
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Hearsay Exemptions
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a. statements which have legal significance in and of themselves; such as,
i. statements that orally create a contract 1. libelous statements; 2. misrepresentation (misleading statements); 3. statements which show a gift was made ii. statements that provide notice/awareness iii. statements as to credibility (veracity/truthfulness) 1. prior inconsistent statements used to impeach the truthfulness of the witness (also prior consistent to rehabilitate) iv. statements which circumstantially show the state of mind of the declarant 1. note: may not use statements which directly show the speaker’s state of mind v. res gestae: “the thing said or the thing done”; statements uttered during an occurrence to explain the happening, not entered for the truth of the statements, but for the fact they were made b. certain prior inconsistent statements made under oath by the witness, when the witness is currently on the stand and statements are used to impeach; c. certain prior consistent statements made under oath and on the stand which are used to rehabilitate the impeached winess; d. admissions: any statement of the opposing party (including agents, employees, etc. of the opposing party) |
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Hearsay Theory
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1. factors that affect the accuracy of reports (in and out of court):
a. left hand side (how the experience was recorded in the witness’ brain) – i. perception of the witness ii. memory b. right hand side (how the experience was recounted to the court) – i. narration 1. sincerity 2. accuracy of description 2. “three safeguards” w/in system: in court statements are made (a) under oath; (b) in the presence of the trier or fact; and (c) subject to cross-examination iv. Hearsay and the Confrontation Clause 1. Crawford v. Washington: S.Ct recognized a greater degree of protection under the Confrontation Clause (6th Amend) for criminal defendants than the hearsay rule allows [testimonial statements] |
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Confrontation Clause of 6th Amendment
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a. Crawford v. Washington (2004): woman reported husband for abuse, P wanted to call her to stand, but husband invoked “spousal privilege,” so P tried to admit her statement Ct held statement violated the 6th Amend and was inadmissible unless (a) declarant was called to testify or (b) D had chance to cross-examine the statement
i. basically: any testimonial statement offered against the accused is subject to Confrontation Clause concerns b. Davis v. Washington: woman calls 911, P wants to play tape; Ct held that recording was not testimonial b/c it was made under the threat of imminent harm and hence, woman would not have considered that it might be later used against her attacker at trial i. hence, purpose of the statement became dispositive c. Hammond v. Indiana: Ct held statement of woman who had been threatened by her husband was testimonial d. Giles v. California: husband beats wife; wife gives statement; husband kills wife, but not to intentionally keep her from testifying against him; Ct maintains that statement is testimonial and hence violates 6th Amend i. Ct held that statement would only be admissible if P could prove that husband had killed wife to specifically keep her from testifying e. NEW: most states have statute allowing official reports and drug analyses/ test results to be admitted w/o the actual scientist to testify, so long as report was certified (statute of convienence) i. Melendez-Dias v. Massachusetts: Ct held that such statutes violated 6th Amend, witness who executed document must testify or there must have been an opportunity to cross-examine the report |
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certain prior statements of a witness who appears
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a. prior inconsistent statements from those statements made by the declarant under oath at the trial/deposition/hearing
i. any prior inconsistent statement may be used for impeachment ii. if prior statement was given in depo/trial/prior hearing, and was made under oath, then it qualifies as non-hearsay and may be used to prove the fact that it describes, as well as for impeachment b. prior consistent statements used to rebut improper influence/motive i. admissible as non-hearsay only when used to rebut an express or implied attack on the witness’ truthfulness, AND ii. the consistent statement was made before the motive to lie arose (pre-motive Tome v. United States) c. prior identification any prior identification by the witness who is testifying qualifies as non-hearsay |
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admissions
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ii. party does not need to believe that they are admitting something and statement does not need to be adverse to the party’s interest
iii. only admissible against the party that made statement 1. party may not admit their own admissions to support their case iv. common law: waiver of foundation/helpfulness requirement v. federal rules: no foundation/helpfulness requirement (implicit in rules) |
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Types of Admissions
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i. personal: when Smith’s statement is used against Smith
ii. adoptive: when Jones makes statement and Smith says “I agree” Smith has adopted Jones’ statement and it may be used against Smith iii. authorized: when Smith’s agent makes a statement and that statement is used against Smith 1. agent must have express or implied authorization 2. generally used in corporate settings to allow agent admissions 3. note: partnerships statement of one partner may come in as an admission against the partnership, however the statement may not come in against the other partner iv. agent w/in courses and scope: Smith’s employee’s statement may be used against Smith if the statement was made w/in the employees course and scope of employment 1. Common Law: only allowed admissions made by authorized agents to be used against the principle v. co-conspirator: co-conspirator’s statement may come in against another co-conspirator if gov’t shows (1) existence of conspiracy, (2) statement was made during conspiracy, and (3) statement was made in furtherance of conspiracy 1. conditions must be shown by a preponderance of the evidence 2. does not necessarily have to be part of a formal conspiracy charge |
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Present Sense Impressions
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statement describing an event or condition made while perceiving or immediately thereafter spontaneity creates reliability
a. declarant perceives event/condition b. statement describes/explains event/condition c. statement made during/immediately after event/condition |
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Excited Utterance
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: statement that relates to startling/exciting event that is made while the speaker is excited from eventspontaneity creates reliability
a. statement related to startling event/condition b. statement made while excited (but not necessarily immediately) c. event caused excitement |
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Statements Describing Then-Existing Mental/Physical/Emotional Condition:
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reliable b/c person can be trusted to accurately describe their own condition when it occurs (contained w/in present sense impression)
a. does not include remembered states of mind, except for statements about feelings about wills b. may use prior statement describing then-existing mental/physical/ emotional condition to prove future conduct, but not past conduct |
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Statement for Medical Diagnosis/Treatment
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: reliable b/c people don’t lie to doctor, or when they’re trying to get diagnosed/treated
a. any statement that goes to the cause of the injury must be reasonably pertinent to the diagnosis/treatment to be excepted from hearsay b. statement doesn’t have to be made to a doctor, and doesn’t necessarily have to have been said by the injured person |
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Prior Recollection Recorded
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a record of a matter made when the witness remembered it, but which the witness no longer has a complete recollection
a. permits the record to be read, but allows its introduction as an exhibit by the adverse party b. note: only permitted after a failed attempt to refresh witness’ memory i. practice rule for refreshment: anything fairly calculated to refresh witness’ recollection may be used to refresh recollection c. Elements/foundational conditions: i. once had knowledge ii. insufficient recollection to testify iii. made when fresh iv. accurate |
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Regularly Kept Records:
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a. Elements:
i. document (or equivalent, including electronic records) ii. source of information from a knowledgeable informant 1. showing of this may be circumstantial, but record must show record was made by someone with knowledge, but person doesn’t need to testify iii. regular practice to make iv. regular practice to keep v. business duty to accuracy 1. may be hearsay w/in hearsay, but every link in chain must have had the business duty of accuracy vi. timely (close to the event) vii. not untrustworthy viii. qualified witness- custodian or knowledgeable witness 1. must be able to testify and lay the foundation for the regularity of the record keeping/making 2. exception: certified copies w/ authority allowed w/o testimony of custodian b. Opinions in Record: foundation for opinions in regularly kept records is assumed if the opinion is something that would be expected or regular in such records i. ex. opinion in hospital record about what is wrong w/ patient c. Absence from records (FRE 803(7)) allows a showing that a matter is not included in a business record to prove the nonoccurrence or nonexistence of the matter, if the matter would have been recorded as part of the business’ regular practice |
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Public Records (FRE 403(8)):
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a. agency activities: admissible to show that the activity occurred, not admissible to prove the findings of the agency
b. matters observed for which there is a legal duty to report: admissible, except for the use of law enforcement reports against criminal defendant (but may be used against gov’t) i. prohibition trumps “recorded recollection” exception c. fact findings from an investigation made pursuant to legal authority: admissible, except against criminal defendant; may include opinions unless circumstances indicate that opinions/findings are untrustworthy i. prohibition trumps “recorded recollection” exception ii. NOTE: may be used even if the findings are conclusory/unhelpful iii. must be trustworthy: factors- 1. timeliness of investigation 2. skill/experience of investigator 3. whether or not there was a hearing (formal or not) 4. whether investigator had a motive to slant the findings iv. Absence from Certification/Testimony (FRE 403(10)): |
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Learned Treatise (FRE 403(18)):
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use if the conclusions of the treatise go against the findings of the opposing party’s expert who is on the stand
a. reliability established by: i. the witness’ admission; ii. other expert testimony; or iii. judicial notice b. may be read, but not introduced as an exhibit |
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Judgment/Previous Conviction for a Felony: may be introduced to establish the facts essential to the conviction; applies only to final judgments adjudging someone guilty of a felony (conviction/guilty plea)
a. NOTE: evidence of an acquittal or the loss of a criminal case cannot be introduced at a subsequent civil trial to show innocence |
: may be introduced to establish the facts essential to the conviction; applies only to final judgments adjudging someone guilty of a felony (conviction/guilty plea)
a. NOTE: evidence of an acquittal or the loss of a criminal case cannot be introduced at a subsequent civil trial to show innocence |
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Definition of Unavailability
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1. 804(a) – Unavailability
a. a person is unavailable if: i. Exercise of a Privilege ii. Refusal to testify iii. Lost Memory iv. Death/Infirmity v. Absent/Cannot Compel vi. note: if absence is procured by wrongdoing, procurer cannot use 804 |
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Former Testimony
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a. applies to:
i. testimony given in a prior hearing, deposition or trial ii. where the same party or predecessor in interest, iii. with similar motive to develop the testimony, 1. ask: are the legal issues the same or so similar, that a person could be expected to develop testimony related to that issue? iv. has the opportunity to examine the former testimony b. Note: Crawford would normally bar unless actual defendant was party in previous matter and had the opportunity to cross-examine |
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Dying Declaration
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a. applies only in criminal homicide or in civil actions
b. applies to statements made when declarant believed death was imminent i. note: declarant doesn’t have to actually have died, but they do need to be unavailable (hence FRE 804) c. statement must concern cause/circumstances of the impending death |
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Statement Against Interest
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a. statement must go against declarant’s (a) pecuniary, (b) proprietary, or (c) legal interest
i. “against interest”: subjects speaker to criminal or civil liability ii. reliability theory declarant wouldn’t say it if it weren’t true b. Note: if one statement against interest exculpates another party, the exculpating statement is only allowed if it is corroborated |
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Procure Absence of Declarant through Wrongdoing
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a statement offered against a party that has engaged in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness
b. Giles: only applies if purpose for creating unavailability was to keep declarant from testifying |
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Scope of Cross
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a. Federal Court: cross is limited to the scope of the direct examination and the truthfulness of the witness
i. must be a logical relationship between the direct and the cross ii. judge has discretion to broaden scope, so that witness does not need to be recalled during the defense’s case b. La: no limit on the scope of the cross-examination i. allowed to go into any relevant topic (and allowed to lead, unless crossing your own client (friendly cross)) |
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FRE 613(a) – Prior Statement Disclosure:
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1. : if counsel is cross-examining a witness about a prior statement, counsel is not required to disclose the content of the prior statement to the witness at that time (aka doesn’t have to show it to the witness), but, on request, must disclose to opposing counsel
a. federal rule overruled the rule in “Queen’s Case” b/c former rule had been an impediment to effective advocacy b. La: no Rule 613(a), but practice is the same i. judicial preference for “intrinsic impeachment” (aka keep it questions and answers w/in witness’ testimony), so preference is for no docs c. Strategy: don’t start w/ the statement, start w/ the fact only use the statement if the witness denies the fact, then it becomes a prior inconsistent statement, if they don’t deny it, then document remains hearsay |
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Opinion/Reputation (FRE 607)
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1. witness may testify to lack of veracity or veracity (w/ foundation)
2. allowed to call extrinsic witnesses to weigh in on other witness’ truthfulness if the other witness’ character was previously attacked a. may only use opinion and reputation testimony on direct b. specific acts are allowed on cross (but no extrinsic if witness denies it) |
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Prior Conviction (FRE 609)
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1. basics
a. crime involves dishonesty/false statement i. admissible if involvement of false statement/dishonesty is readily discernable from the charging documents (misdemeanor or felony) b. felony: punishable by one year or more (no misdemeanors) i. if the accused in a criminal case: admissible if the probative value outweighs prejudice for the purpose of determining truthfulness (51%) ii. otherwise 403 standard (relevance not substantially outweighed by prejudice) c. 10 year rule: i. if ten years have passed since he was released from jail or when he was convicted (whichever is later) then probative value must substantially outweigh prejudice to witness and must give witness notice d. pardon/annulment: i. rehabilitative pardons may keep conviction out; not political pardons e. appeal: does not keep conviction out, but jury can hear about appeal f. juvenile: generally do no come in g. details: (practice rule only) name of crime, date of conviction, sentence h. unconvicted: (FRE 608(b)) i. arrest allows P a good faith basis to believe prior bad act had occurred, but it is within the judge’s discretion to determine if it is probative 1. only allowed on cross-examination ii. Note: never allowed in La 2. Note: La all prior crimes admissible; anyone who puts themselves on the witness stand opens themselves up to questions about past crimes |
