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Evidence
Evidence for Honors Program
132
Law
4th Grade
11/20/2012
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Term
Direct Evidence
 Definition
Proves a fact without requiring any inference
Term
Circumstantial Evidence
 Definition
Requires an inference be drawn for the evidence to be relevant
Term
Trial Judge’s Role
 Definition
Overall Mgt. of Trial
Makes Admissibility Determinations
Term
Jury' Role
 Definition
Can only consider admitted evidence

Job is to weigh the evidence against the standard of proof required, apply the law to the facts, and render a verdict
Term
The Attorney’s Role
 Definition
1) Attempt to win the trial
2) Attempt to create a record for potential appeal
3) Lay Proper Evidentiary Foundations
Term
Rule 401: Relevant Evidence
 Definition
“Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence
Term
Define Relevance?
 Definition
Rule 401- if the evidence is:
1) Probative of
2) a fact of consequence to the issue at hand

To What is the evidence relevant?
What is the evidence offered to prove?
Term
Rule 401(b)
When the relevancy of evidence depends on the fulfillment of a condition of fact
 Definition
When the relevancy of evidence depends on the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.
Term
Judge's standard for 401(b)
 Definition
Judge’s standard is whether a reasonable jury could find the fact exists

NOT a finding the fact does exist
Term
Under Rule 401(b) Evidence Comes in when?
 Definition
When party introduces conditional fact
Term
Rule 402: Admissibility of relevant evidence
 Definition
All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible
Term
Rule 403 Reasons Relevant evidence would be excluded
 Definition
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Term
Exceptions allowing admission of Evidence of similar events
 Definition
Causation

Assists in identifying the cause of the injury/problem

Dangerous conditions existed

Mental state of party when at issue

Rebut claim of impossibility

Sales of other property to show value (if at issue)

Prior dealings of party to show meaning of contract
Term
Rule 801 Hearsay Definitions
 Definition
Rule 801(a): New Version

“Statement” means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion

Rule 801(b): New Version

“Declarant” means the person who made the statement

Rule 801(c): New Version
“Hearsay” means a statement that:

(1) the declarant does not make while testifying at the current trial or hearing; and

(2) a party offers in evidence to prove the truth of the matter asserted in the statement
Term
Rule 802 Admissibility of Hearsay
 Definition
Hearsay is not admissible unless any of the following provides otherwise:
A federal statute;
These rules; or
Other rules prescribed by the Supreme Court.
Term
5 Step Hearsay Matrix
 Definition
5-Step Hearsay Matrix

Is evidence an out-of-court statement?

If so, for what purpose is it offered?

If offered for non-hearsay purpose,

Is it relevant? If so,
Does probative value outweigh prejudicial impact?

If offered for truth, satisfy an exemption/exception?

(only when offered against Crim. Def.):
(5) Even if admissible hearsay, does 6th Am. prevent admission?
Term
When is an out of court statement not hearsay
 Definition
When witness offers out-of-court testimony not for the truth, the Adversarial system does require the credibility of the in-court witness to be tested by cross examination
Term
Hearsay Dangers
 Definition
1. Sincerity
2. Perception
3. Memory
4. Communication Difficulties
Term
Out of court assertios used as circumstantial evidence that are not asserted as true can be used evidence True or False
 Definition
False When a declarant’s out of court assertion is used as circumstantial evidence that a fact not directly asserted is true, the assertion is hearsay if judge concludes the declarant intended to assert that fact

US v. Zenni
Term
Common Non-hearsay Uses of Out of Court Evidence
 Definition
Declarant’s State of Mind

Listener’s State of Mind

“Verbal Act”

Impeach in-court testimony

To Provide Context & Meaning
Term
If an out-of-court statement is offered for the truth of the matter asserted it is...
 Definition
HEARSAY

If for the purpose other than truth? OBVIOUSLY NOT HEARSAY
Term
What must the proponent still proove if an out of court statement is not offered for the truth?
 Definition
RELEVANCY
Term
When is a declarant's State of Mind relevant?
 Definition
1. When speaker's belief itself is a material fact

2. When speaker's belief is circumstantial evidence of speaker's behavior.
Term
When is an out of court statement regarding Listener's state of mind relevant
 Definition
1. When listener's belief itself is a material fact
Term
When is an out of court statement regarding a Verbal Act relevant?
 Definition
When the act itself is a material fact
Term
When can an out of court statement used to impeach relevant?
 Definition
Evidence of an out-of-court assertion exists that is inconsistent with the in-court assertion of the same witness
Term
When can out of court statement used for Context and Meaning be relevant?
 Definition
Out-of-court assertions offered to provide context and meaning in critical events
Term
Rules that allow an out-of court statement to be admitted for the truth
 Definition
FRE 801(d)(1), 803, 804, 807
Term
FRE 801(d)(1): A witness's prior out of court statement is not hearsay if:
 Definition
(1) declarant testifies at the trial in which the statement is offered and is subject to cross examination, and

(2) prior statement is inconsistent with trial testimony, or

(3) prior statement is consistent with trial testimony and offered to rebut claim of falsity, or

(4) prior statement is an identification
Term
Admissibility for Prior Inconsistent Statement
 Definition
(1) Declarant testifies at the trial or hearing

Declarant is subject to cross examination

Prior Statement is inconsistent with
testimony

Prior statement given under oath subject to perjury
Term
Admissibility of Prior Consistent Statement
 Definition
Declarant testifies at trial or hearing

Declarant subject to cross exam on prior statement

Prior statement consistent with testimony

Prior statement offered to rebut claim of recent fabrication
Term
Admissibility of a pretrial identification
 Definition
For admission as hearsay exception, proponent must show

Declarant testifies at trial or hearing

Declarant is subject to cross exam on prior stmnt

Prior statement identifies a person

Prior statement was made after the declarant perceived the person
Term
FRE 801(d)(2): Party Admissions
A prior statement is non-hearsay if it is:
 Definition
The party’s own statement

Adopted by the party

Made by an authorized person

Made by the party’s agent during agency

A co-conspirator’s statement made during and in furtherance of the conspiracy
Term
Admissibility of Party Admissions
3 Basic Prinicples
 Definition
A party cannot offer his own prior admission
Must be offered by adversary against the party

Any statement can qualify as party admission, even if not incriminating at the time made

Any statement can qualify as party admission, regardless of when it was made prior to trial
Term
Admissibility of Straight Admissions by party
 Definition
For admission as hearsay exception, proponent must show

Declarant is a party

Adversary is offering the party’s prior statement
Term
Admissibility of adoptive admissions by party
 Definition
1. The party has adopted the prior statement
Manifested a belief in the truth of the statement
a. party heard the statement
b. party understood the statement
c. subject matter w/in party’s personal knowledge
d. Reasonable person would have denied it if not true
2. The statement offered by the party's adversary
Term
Admissibility of Authorized Admissions by Party FRE801(d)(2)(C)
 Definition
1. Declarant was expressly or impliedly a party’s authorized agent;

2. The adversary offers the statement into evidence
requirement is that the proponent of the statement must show the declarant had “speaking authority”, and the statement was within the scope of that authority
Term
Admissibility of Party Admissions

Employee Admissions FRE802(d)(2)(D)
 Definition
Declarant is party’s agent or servant;

Statement concerns a matter within the scope of the agency or employment;

Statement made during the existence of the agent/servant relationship;

Adversary offers the statement into evidence
Term
Admissibility of Party Admissions

Co-Conspirator Admissions
FRE801(D)(2)(E)
 Definition
Elements:

1. Declarant is a party’s co-conspirator;

2. Statement made in the course of the conspiracy;
3. Declarant’s statement made in furtherance of the conspiracy;

4. Adversary offers the statement into evidence
Term
FRE 803 Hearsay Exceptions!
 Definition
Present Sense Impression

Excited Utterance

Then existing mental, emotional or physical condition

Statements for purposes of medical diagnosis or treatment

Recorded Recollection
Term
FRE 803(1): Present Sense Impression
 Definition
1. Declarant made statement while or immediately after perceiving an event or condition

2. The statement describes or explains the event or condition
Term
FRE 803(2): Excited Utterance
 Definition
Elements:

1. Declarant made statement relating to startling event or condition

2. Declarant was under the stress of excitement caused by the event or condition at the time the statement was made
Term
FRE 803(3): Then existing mental, emotional or physical condition
 Definition
1. Declarants’ statement identifies his/her concurrently existing state of mind, emotion, sensation or emotional condition

2. Such a statement is only admissible to prove the fact surrounding the state of mind only if it is relevant to issues surrounding declarant’s will
Term
Pheaster Doctrine
 Definition
An assertion about declarant’s inner S.O.M can make admissible a closely related assertion about the outside world.
Term
FRE 803(4):Statements Made for purposes Medical Diagnosis or Treatment
 Definition
Elements:

1. Declarant made a statement for purposes of obtaining medical diagnosis or treatment

2. Information in the statement is reasonable pertinent to diagnosis or treatment

3. Statement concerns declarant’s med. history, symptoms/sensations, or the inception or general character of the cause or source of malady
Term
FRE 803(5):Recorded Recollection
 Definition
Elements:

1. Declarant has personal knowledge of a matter

2. Declarant has insufficient recollection to testify about the matter fully and accurately

3. Declarant made a memorandum or record of the matter, or adopted someone else’s

4. Matter was fresh in declarant’s mind when recording made
Declarant testifies the memorandum is accurate

5. Content is admissible, but only opponent can offer the memorandum itself into evidence
Term
FRE 803(6-7):Business Records
 Definition
Elements:

1. A business entity produces a record of bus. Activity

2. Entity representatives w/personal knowledge contributed to the info.

3. contained within the record
Representatives recorded the info. at or near the time the business activity occurred

4. Entity’s regular bus. practice was to create the record

5. The info. in the record relate to regular bus. activity
Term
FRE 902 - For actual introduction Business Records Require either:
 Definition
1. A records custodian

2. A certification from the records custodian
Term
FRE 803(8):Public Records
 Definition
Elements:

1. The record (in any form) is from a public office or agency

2. The record(s) set forth:

a. Activities of the office/agency

b. Matters that the office/agency has a legal duty to report, or

c. In civil cases or against Gov. in criminal cases, factual findings from an investigation pursuant to legal authority

4. Nothing indicates lack of trustworthiness
Term
The other 803 Hearsay Exceptions (9, 11, 13, 15, 16, 17)
 Definition
803(9, 11) – Records of Vital Statistics

803(13) – Family Records

803(15) – Statements in dispositive documents

803(16) – Statements in Ancient documents

803(17) – Market Reports and Commercial Publications
Term
FRE 804(a) - Declarant unavailable Hearsay Exception
 Definition
1. Definition of Unavailability: includes but not limited to, situations where the declarant:

a. is exempted b/c of privilege from testifying;

b. persists in refusing court order to testify;

c. testifies to a lack of memory of the statement;

d. is unable to testify due to death or illness;

e. is absent and proponent cannot diligently procure the witness for testimony
Term
FRE 804(b) - Not Excluded by hearsay Rule if declarant is unavilable Former Testimony
 Definition
1. Former Testimony –

a. Declarant Unavailable

b.Previous testimony under oath at hearing or deposition

c. Party against whom testimony is offered:

i. Previously offered the testimony, or

ii. Had opportunity to cross examine the declarant

d. Party against whom testimony is offered has same motive as prior party when they offered testimony or crossed the witness
Term
FRE 804(b) - Not Excluded by hearsay Rule if declarant is unavailable Dying Declaration
 Definition
2. Dying Declaration:

a. Declarant unavailable

b. Statement offered in homicide
prosecution or civil case

c. Declarant believed death imminent

d. Statement concerned cause or circumstances of the imminent death
Term
FRE 804(b) - Not Excluded by hearsay Rule if declarant is unavailable - Statement Against Interest
 Definition
3. Statement Against Interest

a. Declarant unavailable

b. Statement sufficiently contrary to declarant's interest that a reasonable person would not make it if not true.

c. If statement against penal interest, offering party must offer corroborating evidence clearly indicating trustworthiness.
Term
FRE 804(b) - Not Excluded by hearsay Rule if declarant is unavailable - Forfeiture by Wrongdoing
 Definition
a. Declarant unavailable

b. Party against whom statement offered engaged or acquiesced in wrongdoing intended to, and which did result in declarant's unavailability.
Term
FRE 807 – Residual Hearsay Exception
 Definition
1. Statement has circumstances suggesting trustorthiness similar to FRE 803 and 804, but not specifically covered there;

2. Statement pertains to material fact;

3. Statement is more probative than any other evience proponent can reasonably procure;

4. Admission serves the interests of justice

5. Offering party gives pre-trial notice.
Term
FRE 404(a)(1) Character evidence
 Definition
Evidence of a person’s character or trait of character is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
Term
FRE 404(a)(2) Character evidence Exceptions
 Definition
A. A defendant may offer evidence of his own character, if offered the prosecution may rebut.

B. Subject to FRE 412 Limitations, a defendant may offer evidence of a victim's specific character train.

- If admitted, prosecution may rebut AND
- May offer evidence of a defendant's same character trait

C. In Homicide case, prosecution may offer evidence of a victim's peacefulness, to rebut claim that victim was first aggressor.
Term
FRE 404(b): Crimes, Wrong or Other Acts
 Definition
(1) Prohibited Uses: Evidence of a prior crime/wrong/act not admissible to prove character in order to show that on particular date person acted in conformance with the character

(2) Permitted Uses: Evidence of a prior

crime/wrong/act admissible to prove:

Motive

Opportunity

Intent

Preparation

Plan

Knowledge

Identity

Absence of Mistake

Lack of Accident

But upon request by defendant, prosecution must:

Provide reasonable pre-trial notice, of

The general nature of such evidence they intend to use
Term
FRE 405(a) Three Types of Character Evidence
 Definition
1. Reputation (What People in the community think of the relevant character trait)

2. Opinion (What knowledgeable people in that community think of the relevant character

3) Specific Acts (Which reflect the relevant character trait)
Allowed when character or character trait is an essential element of charge, claim or defense
Term
How To Analyze Potential Character Evidence
 Definition
1. Determine if it is character evidence

- Does it refer to the average thoughts or relationships to others?

-Does it ask the jury to infer/presume what type of person the witness/defendant/party is?

2. Does it relate to “Act Propensity” or “Mental Propensity”?
Term
Laying the foundation for Reputation Character Evidence
 Definition
Witness must be:
Familiar with subjects’ reputation
In the relevant community
Term
Laying the foundation for Opinion Character evidence
 Definition
Personally know the subject
well enough to make a judgment about his/her character
Term
“Act Propensity”
 Definition
if character evidence offered to prove acting in conformity, limited to reputation or opinion.
Term
“Mental Propensity”
 Definition
if offered to prove something else (motive, opportunity etc.) specific acts allowed
Term
Exceptions to Rule 404(a) Propensity Bar
 Definition
1. It is character evidence offered by a criminal defendant

2. It is character evidence of the victim in cases other than homicide or sexual misconduct

3. It reflects the peacefulness of a homicide trial victim

4. It is character of the accused following an attack on the victim’s character by the accused

5. It is the character of the defendant in a criminal or civil case alleging sexual assault or child molestation

6. It is character impeachment of a witness
Term
FRE 412 Rape Shield Law
 Definition
(a) Following evidence not admissible in civil or criminal proceedings involving alleged sexual misconduct:

1. Evidence offered to prove victim engaged in other sexual behavior

2. Evidence offered to prove a victim’s sexual predisposition
Term
FRE 412(b) Rape Shield Law Exceptions
 Definition
(b)(1) In Criminal cases, following evidence may be admitted:

(A) Evidence of specific instances of victim’s other sexual behavior if offered to prove someone other than the accused was responsible

(B) Evidence of specific instances of victim’s other sexual behavior with accused if offered to prove consent

(C) Evidence whose exclusion would violate the defendant’s constitutional rights
Term
FRE 412(b) Rape Shield Law Exceptions for Civil Cases
 Definition
In a civil case, court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs danger of harm to any victim and of unfair prejudice to any party.

Court may admit evidence of a victim’s reputation only if the victim has previously placed it in controversy.
Term
FRE 412(c) Offering of Evidence under 412(b)
 Definition
1. Any party offering evidence under FRE 412(b) must:

A. File written motion 14 days pre-trial describing evidence and purpose of offering

B. Serve all parties and the alleged victim

2. Court must conduct in camera review and give parties and victim opportunity to be heard, and seal all papers/pleadings
Term
FRE 413 – Similar Crimes in Criminal Sexual Assault Cases
 Definition
(a) In criminal case charging sexual assault, court may admit evidence that the defendant committed any other sexual assault, to be considered on any matter to which it is relevant

(b) Pre-trial notice required at least 15 days before trial or as Court deems appropriate
Term
FRE 414 – Similar Crimes in Criminal Child Molestation Cases
 Definition
(a) In criminal case charging child molestation, court may admit evidence that the defendant committed any other child molestation, to be considered on any matter to which it is relevant
Term
FRE 415 – Similar Crimes in Civil Sexual Assault or Child Molestation Cases
 Definition
(a) In civil case charging sexual assault or child molestation, court may admit evidence that the defendant committed any other sexual assault or child molestation, to be considered on any matter to which it is relevant
Term
Impeachment – FRE 404(a)(3)
 Definition
Evidence of a witness’s character may be admitted pursuant to FRE’s 607
Term
Who does FRE 404(a)(3) apply to
 Definition
- Only applies to Witnesses - But if a criminal defendant does testify, he is a witness, and thus can be impeached via 607, 608 or 609 - Also applies to a hearsay declarant – FRE 806
Term
Character Evidence - Analysis (From Mears)
 Definition
If evidence concerns “character” and offered to prove propensity, inadmissible under 404(a) BUT, can be admissible if fits a 404(a)(1,2 or 3), or 413, 414 or 415 exception If not “character” evidence, or offered for non-propensity purpose, admissible unless barred by another rule (i.e. 403) If character evidence admissible, provable by reputation or opinion; or prior acts if offered for non-propensity reason If rape shield law applies, diff. analysis under 412
Term
Impeachment – FRE 607
 Definition
Any party may attack the witness’s credibility
Term
Impeachment – FRE 608-Character for Truthfulness
 Definition
a. Witness credibility may be attacked or supported by reputation or opinion evidence regarding the witness’s character for truthfulness. . . but evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked b. Specific instances of a witness’s conduct may be inquired into if they are probative of the character for truthfulness of: 1. The witness; or 2. another witness whose character the witness has testified about Except for criminal convictions (FRE 609) extrinsic evidence of specific instances not admissible
Term
Impeachment – FRE 609(a)-Evidence of Criminal Conviction
 Definition
a. When attacking a witness’s character for truthfulness by using a criminal conviction:

1. for a crime punishable by death or more than 1yr in prison, the evidence:

A. subject to FRE 403, must be admitted in a civil case or in criminal case in which the defendant is not the witness; and
B. in a criminal case in which the witness is the defendant, must be admitted if the probative value outweighs its prejudicial effect to that defendant

2. regardless of punishment, if element of prior crime involves dishonesty, must be admitted
Term
Impeachment – FRE 609(b)-Evidence of Criminal Conviction
 Definition
b. If crime is more than 10 years old (from conviction or release from custodial sentence), admitted if:
1. Probative value substantially outweighs prejudice
2. and reasonable written notice provided
Example p. 162
Term
Impeachment – FRE 609(c)-Evidence of Criminal Conviction
 Definition
c. Effect of Pardon/Annulment
1. A pardon or annulment based on rehabilitation prevents use of the prior conviction, if no further felony conviction exists
2. A pardon or annulment based on innocence prevents use of the prior felony conviction
Term
Impeachment – FRE 609(d)-Evidence of Criminal Conviction
 Definition
d. Juvenile Convictions – admissible only if:

1. Offered in criminal case
2. Conviction of a witness, NOT the defendant
3. An adult conviction for the same would be admissible to attack the adult’s credibility
4. Admitting the evidence is necessary to fairly determine guilt or innocence
Term
404(b)(2) Prior Bad Acts(for non-character uses)
 Definition
-Motive

-Opportunity

-Identity

-Intent/Knowledge

-Common plan/scheme/design

-NOT Habit/Routine Practice (FRE 406):
Term
Major Quasi-Priveleges for the Exclusion of Evidence
 Definition
FRE 407 – Subsequent remedial measures

FRE 408 & 410 – Compromise negotiations

FRE 409 – Offers to pay medical expenses

FRE 411 – Insured against liability
Term
FRE 407 – Subsequent remedial measures
 Definition
When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of those subsequent measure NOT admissible to prove:

-Negligence

-Culpable conduct

-Defect in product or its design, or

-Need for warning or instruction
Term
FRE 408(a)– Offers to Compromise
 Definition
a. Following not admissible to prove or disprove validity or amount of a claim or to impeach:

1. Agreeing to in any way, a valuable consideration in resolving or attempting to resolve the claim; and

2. Any conduct or statement made during compromise negotiations – except in a criminal case when negotiations related to claim by public office in relation to its regulatory, investigative or enforcement authority.
Term
FRE 408(b)– Offers to Compromise
 Definition
Permitted Uses: evidence may be admitted for other purposes, such as to prove bias or prejudice, to negate a contention of undue delay, or proving attempt to obstruct criminal invest/prosecution
Term
FRE 410 – Plea Bargains in Criminal Cases
 Definition
a. In civil or crim. case evidence of the following not admissible against Def.:
1. Guilty plea later withdrawn
2. Nolo Contendere plea
3. Any statement made during those proceedings, or
4. Statement made during plea discussions w/prosecutor if discussions did not result in successful guilty plea

b. Exceptions: The court may admit a statement made in parts (a)(3 or 4)
1. In a proceeding where one statement from the plea/discussions has been entered and they ought to be considered together,
2. In a crim prosecution for perjury or false statement, if statement made under oath, on record, w/counsel
3. Third Exception found in US v. Mezzanatto Defendant can waive his FRE 410 rights, as long as waiver is knowing, intelligent and voluntary
Term
FRE 409 – Payment of Medical Expenses
 Definition
Evidence of paying, promising or offering to pay medical or similar expenses resulting from an injury is NOT admissible to prove liability for that injury
Term
FRE 411 – Liability Insurance
 Definition
Evidence that a person was or was not insured against liability is NOT admissible to prove whether the person acted negligently or wrongfully.

But Court MAY admit evidence for another purpose, such as proving witness bias, prejudice etc.
Term
FRE 601 – Competency
 Definition
Every person is competent unless rules say otherwise. Except in federal civil suit where state law governs witness competency regarding a claim or defense for which state law provides the rule of decision.
Term
FRE 602 – Need for personal knowledge
 Definition
A witness may testify only if sufficient evidence exists to support a finding that the witness has personal knowledge of the matter.
Term
FRE 605 – Competency of Judge as witness
 Definition
Presiding judge may NOT testify at the trial. No objection from a party required.
Term
FRE 606 – Competency of Juror as witness
 Definition
a. A juror may NOT testify as a witness before the other trial jurors. Counsel must have opportunity to object outside presence of jury.
b. During inquiry into validity of verdict/indictment:
1. Juror may not testify about comments made during deliberation, the effect of any comments on any juror’s vote, or any mental processes relating to verdict of indictment
2. Exceptions: a juror may testify about:
A. Extraneous prejudicial information brought to jury
B. Improper outside influence
C. Mistake made in entering verdict
Term
FRE 611 - Mode/order of interrogation & presentation
 Definition
a. Court controls mode and order of witness examination and presentation of evidence to facilitate truth-finding, and a smooth trial

b. Cross examination should not go beyond matters covered in direct examination and issues of credibility. Court may allow additional inquiry if appropriate.

c. Leading questions allowed on cross, or on direct if a hostile witness, or to develop witness’s testimony
Term
Two Main Types of Impeachment:
 Definition
1. Intrinsic Impeachment
Where the impeachment depends on the answers given by the witness

2. Extrinsic Impeachment
Where the impeachment depends on another witness or piece of evidence– which is “extrinsic” to the impeachment
Term
Most Common Forms of Impeachment
Contradiction
 Definition
Contradiction
-When the examining attorney disputes the witness’s testimony about a fact
-Extrinsic evidence to prove the contradiction rarely allowed – only if the contradiction is important to the case
Term
Most Common Forms of Impeachment
Bias
 Definition
Bias
- When a witness is shown to be influenced, prejudiced or predisposed towards or against one party.
- Extrinsic evidence routinely allowed – Bias is critically important when alleged and shown
Term
Most Common Forms of Impeachment
Convictions of Crime
 Definition
-A witness convicted of certain types of crimes is deemed less believable/trustworthy
-Two Types of permissible crimes:
1,Adult Felonies
2. Any Crime of dishonesty
3. With Juvenile and 10 yrs and older crimes excluded
Term
Most Common Forms of Impeachment
Prior Untruthful Acts
 Definition
Prior Untruthful Acts
-Limited to specific prior acts which reflect directly on witness’s capacity for truth or veracity

-Relevance depends on the act itself, so can’t ask about any arrest, allegation, charge etc.

-Extrinsic impeachment NOT allowed
Term
Most Common Forms of Impeachment
Capacity
 Definition
Aspects of testimony important to accuracy:
-Perception
-Memory
-Ability to communicate
-Sincerity
Extrinsic evidence allowed to reveal defects
Term
Most Common Forms of Impeachment
Prior Inconsistent Statement – FRE613
 Definition
Essentially impeachment by self-contradiction

Extrinsic evidence allowed ONLY if the contradiction important to the case
Term
FRE701: Non-Expert Opinions
 Definition
-If witness is not testifying as an expert, opinion testimony is limited to one which is:
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 scientific, technical or other specialized knowledge within scope of FRE702
Term
Personal Knowledge” is generally derived from what
 Definition
your 5 senses:
Touch
Smell
Sight
Hearing
Taste
Term
FRE702 – Testimony By Experts
 Definition
A qualified expert witness may give opinion testimony if:

a. The expert’s specialized knowledge will help the trier of fact understand the evidence or determine a fact in issue
b. The testimony is based on sufficient data/facts
c. Testimony is the product of reliable principles/methods
d. Expert has reliably applied them to facts of case
Term
Four sources of data for basis of opinion:
 Definition
1. Firsthand observations made by expert
2. Information provided to expert in the courtroom which the experts is to assume is correct
3. Expert’s observation of in-court testimony by one or more witnesses
4. Facts or data made known to expert out of court, such as reviewing other experts’ reports/findings
Term
FRE703–Basis of Expert Opinion Testimony
 Definition
-Expert may only base opinion on facts/data the expert is personally aware of.
-If experts in the field would normally rely on the same type of facts/data, they need not be admitted for the opinion to be admitted
-If facts/date otherwise inadmissible, proponent of opinion may disclose them to jury ONLY if probative value substantially outweighs prejudicial impact
Term
FRE705 – Disclosing Facts/Data Underlying The Expert’s Opinion
 Definition
-Expert may state opinion on direct examination without disclosing facts/data underlying the opinion

-But if asked on cross examination, must disclose the underlying facts/data
Term
FRE 702 Form of Expert Testimony
 Definition
Experts “may testify thereto in the form of an opinion or otherwise.”
-Allows experts to offer opinion, but ALSO to testify to testify to background information without offering an opinion, as long as it is within the scope of their expertise
Term
Expert Can Testify In 3 Capacities:
 Definition
1. As an observer
2. As an opinion-articulator
3. As an “otherwise” testifier
Term
FRE704(b)Expert Opinions on Criminals Mental State
 Definition
where in a criminal case an expert cannot opine on whether the defendant had the mental state either required as an element of the crime or defense.
Term
FRE803(18) Learned Treatises and Cross-examination
 Definition
Statements w/in treatise admissible, but cannot go back w/the jury as exhibits
Term
FRE901 – Authentication and Identification
 Definition
a. Proponent has burden to produce evidence sufficient to support finding that the item is what it is claimed to be

b. Non-exhaustive list of examples:
(6) Evidence about a telephone conversation made to a # assigned to:
A. A particular person if circumstances show same person answered
B. A particular business if made to business and about business
7. Public Records: filed in public office/from a public office
8. Ancient documents or data compilations
A. In condition which creates no suspicion about its authenticity
B. In place where, if authentic, would likely be found
C. Is at least 20 years old
9. Evidence describing a process or system being accurate
10. Any method of authentication/identification provided by law/rule
Term
FRE902 – Self-Authenticating Evidence
 Definition
Extrinsic evidence of authenticity not required with respect to the following:
-Domestic Public documents sealed and signed
-Domestic Public documents not sealed but signed/cert’d
-Foreign Public documents
-Requires certification either from Foreign or US official
-Certified copies of public records
-Official publications – issued by public authority
-Newspapers and Periodicals
-Trade inscriptions and the like (sign, tag, label)
-Acknowledged documents (w/notarized acknowledgement)
-Commercial Paper and related documents
-Presumptions under Federal Statute
-Certified domestic records of FRE803(6) bus. Record
-Certified foreign records of FRE902(11) bus records
Term
Procedures for Authentication
 Definition
After marking, identifying on record and showing evidence to opposing counsel, 4 steps:
1. Do you recognize Exhibit #1 for identification?
2. What is Exhibit #1 for identification?
3. How do you recognize it?
4. Is it in substantially the same condition as when you saw it last? (Real Evidence)
or Is it a fair and accurate representation of what it shows as of a certain date/time? (Representative Evidence)
Term
Procedures for Authentication
Once procedures satisfied, proponent must:
 Definition
Offer item into evidence
1. Publish evidence to the jury
2. Make sure jury has unobstructed view!
Term
Best Evidence Rule FRE1001 – Definitions:
 Definition
a. “Writing” is letters, words, numbers or their equivalents set down in any form

b. “Recording” is letters, words, numbers or their equivalents recorded in any form

c. “Photograph” is a photographic image or its equivalent stored in any form

d. An “original” means the thing itself. For electronically stored things, a printout as long as accurate. For photos, either the negative or the original image file.

e. A “duplicate” means a copy no matter how created
Term
Best Evidence Rule
FRE1002 – Requirement of Original
 Definition
An original writing, recording or photograph is required to prove its content unless these rules or Federal Statute provides otherwise
Term
FRE1003 – Admissibility of Duplicates
 Definition
Duplicates admissible in place of original unless a genuine question is raised about authenticity
Term
FRE1004 – Admissibility of other Evidence Content
 Definition
Original not required and copies admissible if:

a. All originals lost or destroyed, and not by bad faith of proponent

b. Original cannot be obtained by judicial process

c. Opponent of evidence had original, notice that it was required for admission, and failed to produce it, or

d. The contents are not closely related to controlling issue
Term
FRE1005 – Copies of public records to prove content
 Definition
Certified copies of otherwise admissible public records are admissible
Term
FRE1007 – Testimony or Statement of a Party
 Definition
Proponent may prove the content of a writing, recording or photograph by the testimony, deposition or written statement of the party against whom the evidence is offered, without accounting for the original
Term
FRE501 – Privileges in General
 Definition
The Common Law governs privileges unless the following provide differently:

US Constitution
Federal Statute
US Supreme Court
Term
Husband-Wife Privileges
Adverse Spousal Privilege
 Definition
Triggered when one spouse called to testify against the other spouse
Must be a valid marriage at time of trial
Only available in criminal cases
Privilege only held by testifying spouse
Exception for “Joint Participants” in criminal activity
Similar to Co-Conspirator Statement Rule
Term
Husband-Wife Privileges
Confidential Communication Privilege
 Definition
Valid marriage at time of communication required
Prevents only disclosure by spouse-witness of any confidential communications between the spouses during the marriage
Applies in both criminal and civil cases
Privilege held by both spouses
Exceptions – where one spouse has been charged with crimes against the other spouse or the spouse’s children
Term
Operation of Priveleges
 Definition
Privileges do NOT operate automatically
ONLY upon specific invocation by the holder
Term
Operation of Privileges
Waiver:
 Definition
Express – when the holder of the privilege specifically and clearly waives the right to the privilege

Implied – when the holder of the privilege does something that acts as a waiver of the privilege
Term
Attorney-Client Privilege
 Definition
Requires only the existence of a formal attorney-client relationship
Term
Attorney-Client Privilege
Corporate Clients
 Definition
Modified in 1981 to broaden the availability to those corporate employees who play a “substantial role” in deciding and directing a corporation’s legal response

This then includes middle and lower-level employees as long as they were acting in the course of their duties involving legal advice about the corporation
Term
Work Product Privilege
 Definition
Prevents during litigation the discovery of mental impressions, conclusions, opinions or legal theories of attorneys involved in that litigation

Allows attorneys to design, structure and prepare their own case w/out fear of disclosure
Term
Psychotherapist-Patient Privilege
 Definition
Applies to confidential communications made during the course of diagnosis or treatment by a psychotherapist

Includes:
Psychologists
Psychiatrists
Clinical Social Workers

Privilege is held by the patient
Term
Fifth Amendment Privilege
 Definition
Prohibits compelled testimony that constitutes self-incrimination

-Incrimination must be “substantial and real”

-Does NOT apply to:
Hair sample
Voice exemplar
Handwriting exemplar
DNA
Saliva
Semen
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