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Evidence
| Question | Answer |
|---|---|
| Rule 401- Test for Relevance | Evidence is relevant if It has any tendency to make a fact of consequence more or less probable than it would be without the evidence |
| Rule 402- General Admissibility of Relevant Evidence | Relevant evidence is admissible unless any of the following provides otherwise: US Constitution Federal Statute Federal Rules of Evidence Supreme Court ruling |
| Rule 403- Excluding evidence for... | The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one of the following: Unfair Prejudice Confusing the issues/ misleading the jury Undue delay, wasting time, or needlessly cumulative |
| Rule 407- Subsequent Remedial measures are inadmissible to prove: | Evidence of the subsequent measures is not admissible to prove: Negligence, Culpable Conduct, A defect in a product or its design; or A need for a warning or instruction |
| When does Rule 407 NOT apply? | But the court may admit this evidence for another purpose, such as impeachment or if disputed- providing ownership, control, or the feasibility of precautionary measures. |
| 106- Rule of Completeness | If one party introduces part of a document, Rule 106 allows the opponent to immediately introduce other portions “that in fairness ought to be considered at the same time” as the first portion |
| Evidence to show a witness's propensity to lie or tell the truth | 608 and 609 allow attacks, but limit the types of evidence parties can employ for that purpose. |
| Evidence used to prove other types of conduct through propensity arguments. | 404(a) prohibits most uses of this evidence. 405 restricts the methods which can be used to prove general propensity when it is admissible. |
| Evidence used to prove a character trait when the trait is an element of the crime, charge, or defense. | 401 - as long as it is relevant the evidence is admissible. |
| 404b | Evidence of specific acts that reveal an individual’s character but are also relevant to prove some other fact of consequence in the case |
| 404(a)(1) | Prohibits use of character evidence to show propensity |
| 404(a) | D introduces evidence of good character, opens the door D introduces evidence of pertinent trait of V, P can introduce good character of V or bad of D Homicide, shows V is first aggressor, state shows peacefulness |
| 404(a)(3) (Untrustworthiness, inquiry on cross) | Allows evidence of a witnesss untrustworthy character to prove that the witness may be untruthful while testifying. The defendant’s character may be proved only by reputation or opinion evidence. On cross, inquiry is allowed into specific instances of con |
| 404(b)(2) Character Evidence Exceptions | Motive Opportunity Intent Preparation Knowledge Identity Lack of accident Other purposes (victim state of mind, chain of events, contect/malice) |
| 405 Methods of proving character | Opinion and Reputation Specific Instances when character is an essential element Otherwise only on cross-examination |
| 406 Habit, Routine Practice | Habit or routine is admissible to prove action in conformity therewith. |
| Difference between habit and routine practice | Habit--one’s regular response to a repeated specific situation. Routine practice--the organizational equivalent of personal habit A person has habits, organizations have routine practices. |
| To distinguish habit from propensity, focus on three factors: | Specificity of Conduct (Habit more specific) Regularity (Habit more than character) Degree of Reflexivity (Habit is a reflex) |
| Rule 407- Subsequent Remedial measures can prove | Ownership, control, feasibility of precautionary measures |
| Rule 407- Subsequent Remedial measures Impeachment | a witness makes a specific representation that conflicts with the subsequent remedial measure, witness makes an absolute declaration "This is perfectly safe" the witness making the statement was personally involved in implementing the remedial measure. |
| 408- Settlements and Offers to compromise inadmissible: | To prove validity/amount of claim Disprove validity/amount of claim Impeach a witness's testimony through prior inconsistent/contradictory statement |
| 408- Settlements and Offers to compromise admissible: | Criminal case related to a claim by a public office Prove witness's bias or prejudice Negate contention of undue delay Prove an effort to obstruct criminal investigation Judge in assessing propriety of sanctions |
| 408- Settlements and Offers to compromise is evidence of | compromise, offers to compromise, or conduct and statements made during compromise negotiations |
| Compromise Negotiation Factors | Whether the statement was made unilaterally or occurred during bilateral communications between both parties, Whether either party made a concrete offer, Whether attorneys were involved in the discussion, Whether the parties used settlement language. |
| Is evidence of 3rd party negotiations/settlements permissible? | No |
| Impeachment from evidence from settlement negotiations | can be used for the purpose of proving a witness is biased, but NOT to show inconsistency or contradictory statements. |
| 409- Medical Expenses | Rule 409 excludes offers to pay, or the actual payment of medical expenses for the purpose of proving liability. |
| FRE 410 - Two types of pleas that are inadmissible | a guilty plea that was later withdrawn; a nolo contendere plea |
| FRE 410 - Two types of plea statments that are inadmissible | a statement made during a proceeding on either of those pleas under FRCP 11 or state a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or later-withdrawn guilty plea |
| 410 Defines plea discussion as: | as one that occurs “with an attorney for the prosecuting authority the defendant displayed “an actual subjective expectation to negotiate a plea” and that expectation was “reasonable given the totality of the objective circumstances |
| 411 Liability Insurance | Precludes evidence of liability insurance if it is offered to prove fault |
| 411 Liability Insurance permitted purposes | “proving a witness’s bias or prejudice,” and "proving agency, ownership, or control.” Not a complete list. Any purpose other than proof of liability is permissible under Rule 411 as long as the purpose is relevant to the dispute. |
| Liability Insurance Defined: | Insurance covers payments to other individuals that might be harmed by the insured/policyholder. Car Insurance, Med Mal, Homeowner's |
| 601 Competency | Every person is competent to be a witness unless these rules provide otherwise |
| 602 Need for Personal Knowledge | witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. |
| 603 Oath or Affirmation to Testify Truthfully | Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience. |
| 604 Interpreter | An interpreter must be qualified and must give an oath or affirmation to make a true translation. |
| 605 Judge’s Competency as a Witness | A judge may not testify as a witness at the trial. A party need not object to preserve the issue. |
| 606 Juror's Competency | A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence. |
| Five methods of Impeachment | Biased For/Against party Defect in Sensory/mental Bad Character for Truthfulness Prior Inconsistent Statements False or mistaken testimony |
| 607-Who May Impeach a Witness | Any party, including the party that called the witness, may attack the witness’s credibility. |
| 608(a) Reputation or Opinion Evidence | Character witness may testify about witness’s character for truthfulness or untruthfulness in form of: Opinion Testimony (lay foundation for personal relationship) Reputation Testimony (collective judgment of a community rather than personal) |
| 608 (a)limits | Character witnesses may not testify on direct examination about specific acts of the witness. Evidence of a witness’s good character for truthfulness is admissible only if the witness character for truthfulness has been attacked. |
| 608(b) Specific Instances of Conduct | allows parties to ask character witnesses on cross-examination about specific incidents of a fact witness’s behavior. |
| 608(b) Specific Instances of Conduct Limits | First, cross-examiners may only ask questions for which they have a good faith supporting belief. Second, the trial judge has discretion to exclude questions when they will create unfair prejudice substantially outweighing their probative value. |
| 608(b) and Extrinsic Evidence | Parties may cross-examine character witnesses about a fact witness’s specific conduct, but they may not offer extrinsic evidence of that conduct. |
| Extrinsic Evidence | Extrinsic Evidence: any evidence other than testimony from the witness currently being impeached. Ex: testimony of other witnesses, documents, physical evidence. |
| 609(a)(2)-Impeachment by Evidence of a Criminal Conviction | provides that convictions for crimes involving dishonesty or false statements are admissible to impeach a witness, regardless whether they are felonies or misdemeanors. |
| 609(a)(2) Felonies | provides for discretionary admissibility of prior felony convictions to impeach, subject to a balancing test. |
| 609(a)(2) Statute of Limitations | Convictions more than 10 years old not admissible The ten years are measured from (a) the date of conviction or (b) the release of the witness from confinement for that conviction, whichever is the later date. |
| 609(a)(2) Pardons | A conviction may not be introduced if it has been the subject of a pardon, annulment, or other equivalent procedure that is based on a finding of innocence or rehabilitation accompanied by a showing that the witness has no later felony convictions. |
| 609(a)(2) Juvie | A juvenile adjudication is generally not admissible to impeach a witness. |
| 609(a)(2) Juvie Exceptions | It is offered in a criminal case The adjudication was of a witness other than the defendant, adult conviction would be admitted, and is necessary to fairly determine guilt or innocence. |
| 611 Mode and Order of Examining Witnesses and Presenting Evidence, who controls methods of interrogation and presentation? | Court |
| 611 Mode and Order of Examining Witnesses and Presenting Evidence- Scope of Cross | should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. The court may allow inquiry into additional matters as if on direct examination. |
| 611 Redirect and Recross | should be limited in scope to issues raised during cross and redirect. |
| 611 leading questions | should only be asked during cross, when questioning an adverse witnesss, or when necessary on direct exam |
| 611 Common Objections | Argumentative, Asked & Answered, Assumes a Fact Not in Evidence , Beyond the Scope, Calls for Narrative, Calls for Speculation, Compound Question,badgering,leading, |
| FRE 612 - Writing Used to Refresh a Witness | Rule 612 gives the attorney the option to refresh the witness’s recollection with a document or other item. |
| 612 Refresh Recollection Laying Foundation | (1) she does not remember the answer to the question being asked; and (2) seeing the writing will “refresh her recollection.” |
| 612 What can be used? | Any document can be used, as long as the witness states that it will help her remember the necessary information. If the witness made no written record of her own, the attorney could use a writing made by someone else. |
| 612 Refreshing a witness Adverse party rights | (1) inspect any writing the witness uses to refresh recollection, (2) cross-examine the witness on the writing, and (3) introduce the relevant portions of the writing into evidence (Allowed to redact parts of writing before admitting) |
| FRE 613 - Witness’s Prior Statement | Prior statements of witnesses need not be shown or disclosed to the witnesses, but, on request, they shall be shown to opposing counsel. |
| FRE 613 - Witness’s Prior Statement Extrinsic Evidence | is admissible only after the witness is afforded an opportunity to explain or deny the statement and the opposing party is given an opportunity to interrogate. |
| Collateral Matter: | relevant to the case solely because it impeaches a witness. |
| FRE 613 Non Collateral matter, Non extrinsic evidence | Allowed |
| 613 Non Collateral matter Extrinsic evidence | Allowed subject to 613 |
| Collateral Matter, Non extrinsic evidence | Allowed subject to 403, 611 |
| Collateral Matter, Extrinsic evidence | Not allowed for (1) impeachment of prior inconsistent statement or (2) impeachment by contradiction pursuant to rules 403 and 611. |
| FRE 614 - Court’s Calling or Examining a Witness | Judge can call her own witnesses AND to interrogate witnesses called by the parties. Judges may ask questions of a parties witness such as to (a) seek clarification (b) ask witness to repeat an answer for the court reporter |
| 614 Parties' rights | Cross-examine the judge’s witness Object to the competency of the judge’s witness, OR Object to the questions asked by the judge Not required to object in the presence of the jury |
| FRE 615 - Excluding Witnesses | At a party’s request, the court MUST order witnesses excluded during a witness’s testimony. |
| FRE 615 - Excluding Witnesses who may invoke | The rule may be invoked by either party or the judge herself, The rule gives the judge no discretion |
| 615 exceptions (sequestration) | Makes exceptions for certain classes of people, including: party representatives, witnesses whose presence a party shows to be essential to presenting the party’s claim/defense (e.g. expert witness), and a person authorized by statute to be present. |
| 412- Rape shield law | bans most evidence of a rape victim’s prior sexual acts (specific acts) or sexual reputation. It bans the use of this type of evidence for ANY purpose. (404(b) does not apply). Applies only in cases of “sexual misconduct” |
| 412- Rape shield law physical evidence exception (Criminal) | Specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; |
| 412- Rape shield law defense exception (Criminal) | Specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and Evidence whose exclusion would violate constitution |
| 412 Rape Shield Law Civil Exception | if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy. |
| Rule 413. Similar Crimes in Sexual-Assault Cases | In a criminal case the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. [the forbidden inference is thus permitted] |
| Rule 413. Similar Crimes in Sexual-Assault Cases Disclosure | the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. |
| Rule 413. Similar Crimes in Sexual-Assault Cases Effect on other rules | Does not limit admission or consideration of evidence under any other rule |
| Rule 414. Similar Crimes in Child Molestation Cases | In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation |
| Rule 414. Similar Crimes in Child Molestation Cases Disclosure | If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. |
| Rule 415. Similar Acts in Civil Cases Involving Sexual Assault or Child Molestation | In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation, like 413/414. Must disclose. |
| Hearsay | an out of court statement that a party offers to prove the truth of the matter asserted in the statement. |
| Hearsay- If proponent is offering the statement for a purpose other than to prove that the content of the out of court statement is true | No hearsay issue |
| If the statement was made in a court/hearing/judicial proceeding | No Hearsay |
| Define statement | did the actor intend to communicate information through that conduct |
| Hearsay Step One | Is there an out of court statement? |
| Hearsay Step Two | What is the purpose of the statement (If offered to prove truth of the matter asserted, hearsay issue) |
| Hearsay Step Three | Does 801(d)(1) Say statement is not hearsay? |
| 801(d)(1) Not Hearsay | (A) Inconsistent prior statement made under oath, at a proceeding (B) Prior Consistent statement (only when the credibility of the witness is attacked) (C) Any identification (D) Party Opponent! |
| Hearsay Step Four | Does the statement fall under the exceptions in Rule 803 (regardless of the declarant being available) |
| When does 804 Hearsay Exceptions; Declarant Unavailable apply? | Apply only if declarant is unavailable to testify in court and court can only obtain the declarant’s perspective by admitting a hearsay statement |
| Rule 803 | 23 different exceptions Cover a range of statements that tend to be reliable enough to be admitted. |
| Rule 807 (residual exception) | Statements that fall outside the other 30 exceptions but have similar guarantees of trustworthiness |
| 801(d)(1)(A) – A w’s prior inconsistent statement is not hearsay if: | It was made under penalty of perjury At a trial, hearing, or other proceeding or in a deposition; Memory failure = inconsistency (even if fake) Police interrogations ≠ proceedings Combination of audience + transcript (generally) = proceeding |
| 801(d)(1)(B) – A w’s prior consistent statement is not hearsay if | The w’s credibility has been attacked The prior consistent statement has probative value in rehabilitating credibility. |
| 801(d)(1)(C) – Identification Rule | any identification of a person as long as the identifier testifies and is subject to cross on the identification |
| SCOTUS Understanding of cross examination requirement | placed on the stand, under oath, and responds willingly to questions |
| 801(d) and Rule 613 | 613(a) requires the party examining the W about the prior statement to disclose it, on request 613(b) states that extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness testifies and is subject to cross. |
| 801(d)(2) An Opposing Party’s Statement [Party-Opponent] is not hearsay if (Traditional Sense) | The statement was made by the opposing party in an individual or representative capacity; |
| 801(d)(2) An Opposing Party’s Statement [Party-Opponent] is not hearsay if (belief) | is one the party manifested that it adopted or believed to be true; |
| 801(d)(2) An Opposing Party’s Statement [Party-Opponent] is not hearsay if (party rep) | was made by a person whom the party authorized to make a statement on the subject; was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed; |
| 801(d)(2) An Opposing Party’s Statement [Party-Opponent] is not hearsay if | was made by the party’s coconspirator during and in furtherance of the conspiracy. |
| In terms of 802(d)(2) what does Silence mean? | Silence = adoption if the silence or lack of denial is so unnatural that it supports an inference that the undenied statement is true |
| Statements by Opposing Parties When there are Multiple Plaintiffs/Defendants | Incriminating out of court statements made by a co-defendant/co-plaintiff to a witness can only be used against that co-defendant/plaintiff. The statement is inadmissible hearsay if admitted against any other co-party (unless it fall under an exception) |
| What ends a conspiracy? | An arrest almost always ends a conspiracy – post arrest statements are usually NOT admissible against coconspirators |
| What ends a conspiracy?- Exception | coconspirator who makes the statement doesn’t know the other coconspirators are arrested, and makes a statement that in his mind, is “during” and furthers the conspiracy |
| “In furtherance” of the conspiracy: | Relates to the declarant’s subjective perspective – if the declarant thinks his statement furthers the conspiracy, then that is enough to make the statement admissible, even if in reality the statement doesn’t further anything |
| 803(1) Present Sense Impression: | A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. |
| 803(1) Present Sense Impression Requirements: | (1) Statement must be made “while or immediately after” the event Usually a few seconds, never more than 5 minutes The declarant had no time to make up a lie (2) Statement must describe or explain the event , not merely relate to event |
| 803 (2). Excited Utterance: | A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. |
| 803 (2). Excited Utterance Requirements: | (1) A startling event happens (2) Statement relates to startling event or condition (3) The statement was made while under the stress of the excitement that it caused (before there is opportunity to reflect or dissemble) |
| Excited Utterance timing? | No temporal requirement, but emotional requirement. The duration of the excited period depend on the declarant and the characteristics of the event. Could last 30 mins or longer…maybe even days. |
| 803 (3). Then Existing Mental, Emotional, or Physical Condition | A statement of the declarant’s then-existing state of mind (such as motive, intent, or plan) OR emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health), |
| 803 (3). Then Existing Mental, Emotional, or Physical Condition is NOT: | a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. |
| 803 (3). Then Existing Mental, Emotional, or Physical Condition Examples | State of mind – motive, intent, plan Emotional state – happy, sad, etc. Sensory state – hearing, tasting, etc. Physical state – thirst, pain, etc. |
| Hillmon Doctrine | A’s statement of intent to act with B can be used as evidence of B’s action, but only if supported by corroborating evidence. |
| 803(4). Statements made for Medical Diagnosis or Treatment: | (A) is made for — and is reasonably pertinent to — medical diagnosis or treatment; and (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. |
| Does the person receiving the statement have to be a doctor? | They can be a 911 agent, the husband/wife, or any other person that can help the declarant get the medical help. |
| 803(4). Statements made for Medical Diagnosis or Treatment: External Facts | The declarant may refer to external facts if those facts are pertinent to obtaining medical care: |
| 803(5). Recorded Recollection: A record that: | is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; was made or adopted by the witness when the matter was fresh in the witness’s memory; accurately reflects the witness’s knowledge. |
| 803(5). Recorded Recollection: If admitted, who can enter it as an exhibit? | If admitted, the record may be read into evidence and to the jury but may be received as an exhibit only if offered by an adverse party. |
| Adoption of Record (Police statements) | If witness signs a written statement from police, they adopt it. |
| Recorded Recollection vs. Refreshing memory | in past recorded recollection, the record is read to the jury, while in refreshing memory, the atty hands the paper to the witness who does not read it out loud, but instead testifies as to what the paper helps them remember |
| 803(6). Business Records [Records of a Regularly Conducted Activity] Prong A | the record was made at or near the time by — or from information transmitted by — someone with knowledge |
| 803(6). Business Records [Records of a Regularly Conducted Activity] Prong B | the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit |
| 803(6). Business Records [Records of a Regularly Conducted Activity] Prong C | making the record was a regular practice of that activity |
| 803(6). Business Records [Records of a Regularly Conducted Activity] Prong D | all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and |
| 803(6). Business Records [Records of a Regularly Conducted Activity] Prong E | the opponent does not show that the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. |
| What does custodian mean? | any person with the necessary knowledge to lay a proper foundation of a document is qualified. Does not have to be same person who made the record, as long as they know the org’s record-keeping practices. |
| Business Defined? | very broadly – Prisons, college, hospitals, and even an individual who collected guns for investment purposes have been considered businesses |
| 803(8). Public Records is excepted if it sets out | Office’s activities records of money spent, personnel hired, meetings held, votes taken, decisions made |
| 803(8). Public Records law enforcement exception | a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; |
| 803(8). Public Records Civil Matter | OR in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and |
| 803(8). Public Records Final Prong | ) the opponent does not show that the source of information or other circumstances indicate a lack of trustworthiness. |
| How is someone unavailable? | Exempted from testifying due to privlege Refuses to testify despite order Not remembering Cannot be present, death or infirmity Absent from trial or hearing and couldn't get attendance or testimony |
| When does the criteria for unavailable witness statements not apply? | if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying. |
| Burden is on proponent of the evidence to show unavailability – each type of unavailability requires a particular type of proof: | Privilege- W raises privilege Refusal- Declarant refuses Lack of Memory- W says they don't Death/Illness- Obvious impairment |
| Proving Absence | party wanting to bring the witness could not find the witness after making a diligent search, OR (b) the declarant refuses to come to court and is currently outside the court’s jurisdiction (and the court lacks power to subpoena them |
| 804(b)(1). Former Testimony [when declarant is unavailable] | Given as a witness at a trial, hearing, or lawful deposition, whether given during the current proceeding or a different one; and Now offered against a party who had or, whose predecessor in interest had an opportunity motive to re/direct, cross |
| Same party or predecessor in interest Criminal case | The party not introducing the evidence must have been the SAME party that crossed the unavailable witness in the prior proceeding, no successors in interest. Constitutional protection for the criminal defendant. |
| Same party or predecessor in interest Civil Case | Can be successor in interest or any other party that had the same or very similar motive to direct or cross the witness. |
| 804(b)(2). Dying Declarations | Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarant’s death to be imminent, made about its cause or circumstances. |
| Dying Declaration -How does proponent prove this belief? | Statements by the declarant Statement by medical personnel and others to the declarant Nature and extent of the wounds of illness The length of time between the statement and the declarant’s death |
| Dying Declaration Statement | statement must concern the cause or circumstance of the death Including who killed the declarant declarant must be unavailable to testify |
| 804(b)(3). Statements Against Interest | 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 D's interest Tendency to invalidate D's claim Expose D to liability Supported by corroborating facts |
| Statements Against Interest Requirement 1 | (1) Declarant must be unavailable to testify live. |
| Statements Against Interest Requirement 2 | The statement must be against the declarant’s interest “when made” – aka the declarant must believe the statement is against their own interest. [a statement that is harmless when made but later ends up being incriminating does NOT qualify] |
| Statements Against Interest Requirement 3 | (3) the statement is against the declarant’s interest if it is Contrary to their proprietary or pecuniary interests Renders invalid a claim they have against another person Exposes the declarant to civil or criminal liability |
| Statements Against Interest Requirement 4 (look inside someone else's shoes) | (4) The court uses an objective standard – whether a reasonable person in the declarant’s shoes would have falsely made the incriminating statement. General circumstances taken into account, but not the declarant’s personal peculiarities. |
| Statements Against Interest Requirement in Criminal Cases | (5) Criminal Cases: a statement against the declarant’s interest is admissible only when corroborating circumstances clearly indicate the statement’s trustworthiness. [Proponent of the evidence has burden]. |
| 804(b)(6). Forfeiture | A statement offered against a party that wrongfully caused — or acquiesced in wrongfully causing — the declarant’s unavailability as a witness, and did so intending that result. |
| 805- Hearsay within Hearsay | Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. |
| Hearsay within Hearsay examples? | Written documents – often contain statements by third parties: a police report when the officer wrote down all of what the people involved told him/her. It is an out of court report by an officer, containing out of court statements by people. |
| Hearsay within Hearsay layers | If one of the layers fails to satisfy an exception, the entire statement is inadmissible to prove the truth of the matter asserted by the original declarant. |
| RESIDUAL EXCEPTION – RULE 807 [last resort] | In General. Under the following conditions, a hearsay statement is not excluded by the rule against hearsay even if the statement is not admissible under a hearsay exception in Rule 803 or 804: |
| Residual Condition 1 | the statement is supported by sufficient guarantees of trustworthiness—after considering the totality of circumstances under which it was made and evidence, if any, corroborating the statement; and |
| Residual Condition 2 | it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. |
| Confrontation Clause | “In all criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him…” |
| Crawford v. Washington | 6A permits hearsay against a criminal defendant if there are procedural guarantees of cross-examination. |
| Testimonial Statements: | A solemn statement made to law enforcement for the purpose of providing evidence for potential use in a criminal proceedings. |
| Non-Testimonial Statements: | records kept by a business/organization (not used to prove guilt) Prosecutor can admit records of the defendant purchasing tools at a store (that match those used for the crime) w/o triggering the defendant’s confrontation clause rights. |
| prosecutor’s Sixth Amendment obligations: | the prosecutor may introduce nontestimonial hearsay as long as those statements comply with the hearsay rules. The 6th amendment does not limit the admission of non-testimonial hearsay |
| The prosecutor may introduce testimonial hearsay against the criminal defendant if | the statements comply with the hearsay rule, and the declarant is available as a witness. Under those circumstances the defendant can cross examine the declarant about the prior testimonial statement. |
| If the hearsay statement is testimonial and the declarant is unavailable for cross examination at trial, | the prosecutor may offer the statement ONLY if the defendant had a prior opportunity to cross examine the declarant |
| Yes Testimonial – (Yes trigger right to confront) | Formal statements during litigation [statements occurring at grand juries, pre-trial hearings, during trial, post-trial proceedings] Statements responding to conventional police interrogation Documentation of shoplifting - used to prove guilt |
| Not Testimonial – (No trigger right to confront) | The defendant’s own statements [including confessions] Statements in furtherance of a conspiracy Business Records – [Those not made for litigation] Statements admitted to prove something other than the truth of the matter asserted |
| Statements to cops or law enforcement | focus on the purpose of the statements If purpose is not to establish guilt or identify someone, but rather, for example, to help the police in an emergency then not testimonial |
| purpose test for Statements to cops or law enforcement | The purpose test is objective judge asks what a reasonable person would have believed in the circumstances. Must evaluate all circumstances. |
| Testimonial or not? Statements that occur right after the crime, not at a police station | testimonial if the statement to the police establishes how potential criminal past events began and progressed. Example of the woman who gave a statement in her house after a battery. |
| Likely NOT testimonial if | Recounts events as they occur (like a 911 call) – information obtained from someone narrating events is not testimonial. Emergency situation/ questions used to provide help = non-testimonial |
| Melendez-Diaz, are lab reports testimonial? | Yes testimonial because the primary purpose is to accuse the individual and use that result in trial. |
| Bullcoming: blood alcohol test. | Yes testimonial bc it accuses an identified individual. |
| Availability of declarant and opportunity to cross: | Faulty memory (fake or real) = subject to cross Privilege = not subject to cross |
| If prosecutor wants to introduce testimonial evidence and the declarant will not take the stand, prosecutor must show: | (1) declarant is actually unavailable [cts have held that the categories of unavailability in 804(a) all satisfy the 6A requirements] (2) the defendant had prior opportunity to cross-examine the declarant |
| OPINION TESTIMONY OF LAY PERSONS – Rule 701 | (a) rationally based on the witness’s perception; (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and (c) not based on Rule 702. |
| EXPERT TESTIMONY – Rule 702 | Experts can testify to matters they did not personally perceive (no personal knowledge required). |
| 702 Prong A | the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; |
| 702 Prong B | the testimony is based on sufficient facts or data; |
| 702 Prong C | the testimony is the product of reliable principles and methods; |
| 702 Prong D | (d) the expert has reliably applied the principles and methods to the facts of the case. |
| Daubert Factors | whether the theory or technique has been tested Been subject to peer review and publication Error rate Standards controlling the techniques application Generally accepted in the relevant scientific community |
| Five Factors of Daubert: | (1) reliability in underlying principles (2) reliability of application to facts (3) methods fit the case (4) testimony helps the trier of fact (5) is there 403 risk |
| 704-Opinion on an Ultimate Issue | In General — Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. |
| Ultimate Issue Criminal | In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. |
| Authentication: | Proponent Must produce sufficient evidence to support a finding that item is what proponent claims it is. Factfinder is not compelled to conclude as authentic, and may not be admissible |
| How to Authenticate: witness | Testimony of witness with knowledge using distinctive characteristics |
| How to Authenticate fungible items? | Chain of Custody, everyone in the chain testifies to make item authentic, item gets tagged with identifying number to shorten chain |
| How to Authenticate writings? | Testimony Non-expert opinion on handwriting Comparison by expert Comparison by factfinder Distincitve characteristics |
| How to Authenticate a voice? | Opinion identifying, heard 1st hand or through recording, based on hearing the voice under circumstances that connect it with the alleged speaker. |
| How to Authenticate photographs and videos? | Fair and accurate representation of underlying scene at relevant time Through photographer or someone familiar with area |
| How to Authenticate emails & texts | Distinguishing characteristics Address, number, esignature, name/screen name Customary use of emojis Writing style Facts or attachments associated with author |
| How to Authenticate emails & texts external factors | Witness testified that author told her to expect message Author acting accordance with an exchange with the witness Author repeating content of message soon after it was sent |
| How to Authenticate Social Media | Distinctive characteristics like emails and texts, judges sometimes demand evidence about the account's security |
| Self-Authenticating Document | Documents that fall into a specific category do not require additional evidence to authenticate. Authentication does not ensure admissibility! |
| Self-Authenticating Document Categories (public documents) | Public documents with signature and seal Public documents that are signed but lack seal (requires attestation by someone with seal) Certified copy of a public document Official Publications |
| Self-Authenticating Document Categories | Newspapers and Periodicals Business Records, 803(6), adv notice required Electronically generated records, databases (Adv notice required) |
| Hearsay Dangers | Misperception; Faulty Memory Misstatement/ambiguity Insincerity |
| Can you ever use compromise negotiation conduct and statements to prove or attack claim validity and value, or to impeach by inconsistency and contradiction? | Only in criminal cases when the negotiations relate to a claim by a public office exercising regulatory or enforcement authority. But you can use it for bias or proving undue delay |
| Use of medical expenses | Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. |
| Prior Inconsistent Statement vs. Contradiction | PIS Involves one person contradicting themselves Contradiction involves presentation of other evidence |
| If a person has a certificate of rehabilitation and commits a new felony, what happens? | Both the old and new felonies are fair game for impeachment |
| Are courtroom statements testimonial? | Courtroom testimony by live witnesses is inherently testimonial, and the defendant has a right to cross examine those witnesses at trial |
Created by:
Salyberg
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