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Evidence

Professor Louis Barracato

Summer 1999

by Christopher S. Lee

I. Relevance

II. Authentication - Original Document Rule

III. Exclusionary Rules

IV. Hearsay

Prior Statements

Admissions

V. Availability & Unavailability

Exceptions

Residual Exceptions

VI. Character

Sex Offenses

Similar Happenings

Habit

VII. Witnesses

Interrogation

Impeachment

Failure to object to a Question waives right to objection in Appeal.

Subsequent objections need not be repeated once timely objections are made.

Defendant Counsel's goal is to create a record for reversal on appeal.

Offer of Proof - A presentation of evidence for the record, but outside the jury's presence, after the judge has sustained an objection to the admissibility of that evidence, so that the evidence can be preserved on the record for an appeal of the judge's ruling.

Burden of Moving Attorney in OOP

Content

Purpose

Competence

Creates opportunity for Fabrication

Federal CT's require full Q&A; Evidentiary Hearing.

If documentary evidence offered with OOP; must be marked and entered into the Record.

Tactics - If OOP allowed - DON'T CROSS EXAMINE.

100% of evidence must be admissible; or else Appeals CT will reject OOP. Evidence must be 100% PURE.

In every situation where evidence is excluded - direct or cross - make an appeal to OOP Q&A.

Errors

1) Harmless Error - Doesn't affect Party.

2) Plain Error - Fundamental & Obvious

3) Reversible or Prejudicial Error - May be set aside.

Roles

Judge - Admissibility

Jury - Weight in Credibility

Defendant Counsel's - Create a record for reversal on appeal

Rule 104(b) - Must show Defendant made false statement & Plaintiff relied and suffered damages. Allows laying of preliminary groundwork to get full testimony from witness.

Relevance - Any tendency to make fact more or less probable.

Components

1) Proves or Disproves some proposition of fact.

2) Proposition of fact is consequence to charge, claim, or defense.

Affirmative Defenses - Must Raise Defense in Advance of Trial

1) Alibi

2) Insanity

Proposition of Fact - Defendant was at the scene of the crime; therefore had opportunity to commit crime. Or Defendant flees scene of crime.

Question of Fact - Creates burden for trier of fact to consider evidence.

Consciousness of Guilt - False ID to evade arrest.

Resisting Arrest - May lead to Relevance (as opposed to Guilt)

Chain of Inference - Relevance - Any Tendency

All admissible evidence must be relevant; BUT

Not all relevant material/evidence admissible.

Evidence may be relevant, but not sufficient to move forward.

Weight - Valuative Process to evidence.

Direct Evidence - No Inference Necessary

Circumstantial Evidence - Inference Necessary

In some instances, Circumstantial evidence may be stronger than not.

FRE gives NO weight to direct v. circumstantial evidence.

Jury determines weight of evidence.

Rule 403 - Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time

Factor 1 - Balance - Probative Value must substantially outweigh prejudice. Exclude evidence of limited probative value.

Factor 2 - Is there any other means of proof to get evidence to trier of fact? See Old Chief case.

Strategy when dealing with Multiple Defendants

1. Bifurcation - at Pretrial & Trial

2. FRE 403 - Exclude Evidence Completely

3. FRE 103 - Limit Admissibility

Surprise Witness

C/L - Objection on Surprise witness; as basis of exclusion of evidence.

FRE 403 - Continuance - Undue Delay - if witness critical, should have been produced earlier.

Case law - Presumption of Admissibility

Authentication & Identification

Minimal Burden.

Some evidence to let it go to jury.

Real Evidence - Actual Item from an event. Must show substantive similar condition; "Chain of Custody" Evidence.

Demonstrative Evidence - Actual origin not important character must be sufficient to not mislead jury.

Chain of Custody

C/L - Break in chain creates inadmissibility

FRE - Authorities given benefit of the doubt; break in chain goes to weight & credibility, not admissibility. Presumption of no break.

Photos, Graphs, Maps & Models - admitted if witness says is fair and accurate representation of what it is said to be.

Tape

Enter into Evidence

Proof of Timeliness

No subsequent Editing

Article X - Contents of Writings, Recordings, and Photographs

The Original Document Rule

Threshold Question - Are you attempting to prove the contents of a writing?

In Litigation

1) Writing with independent legal significance

K, Lease, Will,...

2) Writing offered up into Evidence

3) Testimony Reliant on Writing

Witness is conduit to writing

Difficult to Understand

Witness - "My records indicate I paid"

FRE 1003 - Admissibility of Duplicates

C/L - Did not require original

FRE - Opposing Party must raise some special reason to require original document.

Universally Recognized Excuse - Lost or Destruction (fire) with no wrongdoing.

FRE 1004 - Admissibility of Other Evidence of Contents

C/L - If lost, proponent suffered consequences.

FRE - No bad faith

If document not in possession, duplicate may be introduced, or secondary evidence.

Exclusionary Rules

FRE 407 - Subsequent Remedial Measures

If offered to prove liability, not admissible.

If issue is other than liability, may be admissible.

104(b) Conditional Relevance

SRM limited to feasibility & Control, not always excluded.

Strict Liability not protected by FRE 407 because remedial measures not subsequent to lawsuit.

Method to avoid FRE 407 - Show Jury premises; BUT make sure Jurors don't see SRM.

FRE 408 - Compromise and Offers to Compromise

C/L - Admission during compromise admissible at Trial.

FRE - Admission of guilt protected under 408

Allows free discussion between parties

Tradition - Lawyers speak in hypotheticals to probe settlement potential; "Not saying my client ran the red light, but assuming for argument he might have;..."

Threshold Question - Were statements intended to be a part of compromise? If yes; then Excluded by 408.

2 Step Determination

1) Did Defendant try to further settlement?

2) Did Plaintiff reasonably understand the settlement?

Tactical Approach

Article 9 - Authentication and Identification

Article 10 - Contents of Writings, Recordings, Photos

Article 4 - Relevancy and Limitations

If discoverable, then Admissible

FRE 409 - Payment of Medical and Similar Expenses

Policy - Humane effort to ease burden of medical expenses.

Doesn't protect from Admission of Fault.

Applies to medical expenses, not car damages.

If 409 fails, apply FRE 408

FRE 408 - Compromise & Offers to Compromise

1) Subjective Intention known to both parties

2) Reasonable under the circumstances.

FRE 410 - Inadmissibility of Pleas, Plea Discussions, and Related Statements

C/L - π & ∆ statements in negotiations not admissible

FRE - Only protects the accused.

Analysis

1) Did the accused have expectations to negotiate the plea?

2) Was the expectation reasonable?

Amended - Plea discussions must be with Gov't Attorney; discussions with agent/officer not enough (in most jurisdictions).

Article 8 - Hearsay

Factors

1) Perception

2) Memory

3) Narration

Does the Witness Speak Clearly?

Does the Witness tell a good story?

4) Sincerity - Is the witness Credible?

Burdens

Lawyer - Timely and Specific Objections

Judge - Hearsay determinations

FRE 801(c) - Hearsay

1) Out of Court Statement

2) Made to prove the Truth of the Matter Asserted.

Evidence offered for Impeachment purposes is NOT hearsay.

Machines & Animals are Non-Hearsay

Assertive v. Non-Assertive Conduct

C/L Conduct = Hearsay

FRE Assertive Conduct = Hearsay

Non Assertive Conduct = Non Hearsay

Doubtful or Ambiguous Conduct = Non Hearsay

Silence - Is never Hearsay

Metal Capacity - Only applies when out of court stmt is circumstantial evidence of declarant's state of mind.

Non-Hearsay State of Mind

Not Direct Statement

Strong Circumstantial Evidence

Hearsay Exception State of Mind

Tom Zachary - Pitched Babe Ruth's record breaking home run.

Breach of K

C/L - Subjective; Meeting of the Minds

FRE - Objective; Reasonable Persons' Understanding

Spoken words have independent legal significance.

Not concerned with the truth of the statement

Admitted under theory of "Verbal Acts"

Words have Meaning

Admissible because spoken.

Objective Theory - What did they say?

Marriage

"I do" - K affirmed

Certificate is Hearsay

Minister's Stmt. is a Question - Non Hearsay

"I do" = Verbal Act = K = Non Hearsay

Gifts - Exchange of chattel with donative intent is admissible as Non Hearsay. Also applies in Adverse Possession.

Verbal Acts

Slander

Gifts

Adverse Possession

FRE 801(d)(1)(C) - Prior Identification

C/L - Exception to Hearsay

1) Witness testifies to true reflection; AND

2) Made ID when fresh in memory.

FRE - Non Hearsay

i.e.: Witness identifies assailant at police line up. In CT identification is Non Hearsay. However person making prior ID must testify at trial. Then prior ID may be admissible.

Greater reliability on earlier ID.

Must be

1) Available as witness; and

2) Available for cross-examination.

Identifications Allowed (as long as ID occurs)

1) Artist Sketch

2) Photo Array

3) Line Up

Broad Reach

1) Reaches ID over lengthy time

Doesn't Matter when ID was made.

"After Perceiving" is not limited to sight; hearing OK.

2) Not related to impeachment

Possibly leading to needless cumulative evidence.

Prior ID & in CT ID

Tends to be overruled.

3) Allows testimony of 3rd party - Normally Police; who can come in to testify.

i.e.: Witness ID's suspect in police lineup, but refuses to testify; police officer (3rd party) witnessing ID can testify.

801(d)(1)(A) - Prior Inconsistent Statement Given by Witness

Must be given under oath; Subject to Penalty of PERJURY

Hostile witness can be impeached

Can be used outside Judicial Proceedings

Adjudication

Legislation

Investigation

Inconsistent if in any way different

Evasive Silence

Change of Position

801(d)(1)(B) - Prior Statement by Witness - Fabrication

NO requirement of oath

If both consistent and inconsistent statements - treated as Inconsistent.

ADMISSIONS = Non Hearsay

STATEMENT = Admissible Non Hearsay

Admission - Statement by one party offered by another party.

Silence

Implied Foundation Factors

1) Accusatory Statement

2) In presence of Party

3) Must have heard and understood

4) Must have been capable of responding

5) Circumstances - Reasonable person would have denied if not true

Admission by Silence is inadmissible hearsay.

Right to Remain Silent guaranteed by 5th Amendment

801(d)(2)(A) - Admission by Party-Opponent; Party's Own Stmt.

Must be given under oath; Subject to Penalty of PERJURY

Silence can be Argued; BUT

Admissibility not stated can't be argued.

801(d)(2)(C) - Admission by Party-Opponent; Party's Own Stmt

Authorized Person

C/L Majority Rule Codification

Authorization of Statement Required

801(d)(2)(D) - Admission by Party-Opponent; Party's Own Stmt

Party's Agent

C/L Minority Rule Codification

No Authorization of Statement Required

BUT Requires Independent Proof

Only Applies to Stmts made during employment

If Stmt made after employment then not applicable

801(d)(2)(E) - Admission by Party Opponent; Party's Own Stmt

Stmt Made by Party Co-Conspirator

Made during course and furtherance of conspiracy

Coconspirancy creates conditional relevance upon which stmt can be initially admitted, then linked to other conspirators.

Witness DOES NOT have to be a member of conspiracy.

C/L Standard of Admission - Beyond a Reasonable Doubt.

Modern Standard for Admission - 104(a) - TJ Determination

Defense Strategy

Force Prosecutor to prove conspiracy 1st;

Then allow hearsay evidence in.

Prosecution Strategy

104(b) - Defense shouldn't dictate strategy

Recommended Std - Prosecution should prove conspiracy 1st.

Standard of Proof for Conspiracy

C/L - Prima Facie - Weighs one side's evidence

Jury makes initial determination w/o hearsay stmts

SC - Preponderance of the Evidence - Weighs both sides of evidence; balances

Bootstrapping - Prosecution must establish conspiracy w/o hearsay

104(a) - Preliminary determinations not bound by FRE

801(d)(2) - Independent Proof Required

A Conspirator's role ends when arrested; BUT TJ has discretion/decision to make.

SC - Stmts made after conspiracy are not w/in rule.

Once a Conspiracy begins, it is presumed to continue.

Any indication of attempt to achieve goal leans towards continuance.

Conspirator joining in progress - Adopts all acts and stmts made current & prior to joining.

5th Amendment can be used to prevent Self-Incrimination

902(7) - Self Authentication - Trade Inscriptions

Letterhead insufficient to be automatically authenticated.

Balancing Test

1) Value of Evidence

2) Availability of other Evidence

3) Limiting Jury Instruction

Exceptions to the Hearsay Rule

A + B = 1

A = Need

B = Substitute for Cross Examination

1 = Exception

29 Exceptions to the Hearsay Rule

803 - Availability

804 - Unavailability

807 - Remaining

804 - (Out of CT.) Declarant Unavailable

Determined by whether testimony can be obtained; NOT determined on physical presence

TJ Determination

Must Demo witness intends to invoke witness

804(a)(2) - Persistent Refusal to Testify

1) Witness must be brought into CT

2) Ordered by CT to Testify; AND

3) Witness refuses to do so.

804(a)(3) - Lack of Memory

1) Witness must be brought into CT

2) Ordered by CT to Testify; AND

3) Witness Doesn't Remember.

804(a)(4) - Death or Illness

Illness Must be Persistent; NOT Temporary

804(a)(5) - Absent from Hearing

1) Subpoena - Good Faith Effort

2) Declarant induced to appear

Reasonable Means

Talk into coming

Voluntary

Must make effort

3) What kind of Effort has been made? Deposition

CT Reasonableness Standard

Stakes Involved

Property - Stakes

Resources

Importance

Expense

Former Testimony tends to have more reliability

Form Objection - Leading Questions

Substance Objection - to the Issue at Hand; Allowed; Hearsay

Maryland v. Brady - If Gov't in possession of any evidence that may exculpate defendant, Gov't obligated to provide materials.

804(b)(2) - Dying Declaration Exception

C/L - Only from Alleged Victim

Must be for Criminal prosecution of Homicide

Not Admissible in Civil Cases

Determined on Witness's presence

Admissible if D uses to prove innocence/issue.

Modern - Admissible in Homicide & Civil Cases

1) Cause & Circumstances of Impending Death

2) Declarant must believe death imminent

804(b)(3) - Declarations Against Interest

Admission - Only against Party

Declaration - Against Anyone if Relevant

1) Relevant

2) Declarant Available

3) Personal Knowledge

4) Must have know against interest at time Stmt was made.

D must corroborate stmt; else potential to fabricate

Balance between D's penal interest & Prosecutors' fear of fabricated evidence.

Factors of Relevant Consideration

1) Motive & Credibility

2) Number of People who heard stmt.

3) Spontaneity

4) Time Elapsed

Gov't Requirements

1) Declarant Unavailable

2) Stmt against interest

3) Corroboration

Required for Criminal Cases

Not required for Civil Cases

Stmts after arrest DON'T qualify

If one testifies then one is available

Stmts made after arrest are not conspiracy stmts

803 - Hearsay Exceptions; Availability of Declarant Immaterial

803(2) - Excited Utterance

1) Event Excites

2) Made during Excitement

3) Related to Excitement

Strengths - Accuracy, clarity, sincerity, memory

Weaknesses - Perception, Narration

Cross Exam should attack on Perception & Narration

Was Declarant truly excited by the event?

Look for "Oh My God!!!"

Reasonable Person Standard - Absent other evidence

Jury determines credibility

Has withstood 6th Amendment Challenges

104(a) determines admissibility

Doubtful or ambiguous situations; presumption operates towards non-assertive conduct.

Excited Utterances during Agency

1) Excited utterance competent evidence to establish agency.

2) If admissible, can be used to prove fault.

3) No requirement to disclose or explain event.

4) Statement can be used to satisfy requirements of rule.

803(1) - Present Sense Impression

Low Key Excited Utterance

No Memory Problems

Stmt said to another observer who could have corrected comment if wrong.

Stmt doesn't fit w/in 803(2)

More Restrictive

Doesn't allow for passage of time - measured in seconds or minutes - any length of time should bar admissibility

Potential to swallow entire hearsay rule

803(3) - Then existing mental, emotional, or physical condition.

Small risk of Misrepresentation

1) Must be PRESENT state of mind (at time of event)

2) Stmt deemed to be trustworthy.

Direct Stmt - Hearsay

Circumstantial Stmt - Non Hearsay

Usually Forward looking - Letter of intent

Sometimes backward looking - wills

Can't use state of mind exception to prove 3rd party's intentions - Not Admissible.

Physical Condition - Then Existing Problem

No Sincerity Issues - Jury decision

No Perception Problems

No Memory Problems

Expert Testimony allowed

803(4) - Statements for purposes of medical diagnosis or treatment.

Doesn't require Dr.; can be nurse, paramedic,...

Must be made for medical diagnosis or treatment

Can be stated to friend, nurse,...

Anyone with personal knowledge

CT requires witnesses with personal knowledge

Expert Testimony allowed

Medical History OK

Statements of medical condition Admissible

Statements of Fault NOT Admissible

803(5) - Recorded Recollection

1) Lack of Present Memory

2) Author

3) True and Accurate at the Time

4) Made when memory was fresh

Then can be read into evidence; but document cannot be submitted - gives Jury opportunity to read beyond stmt.

Never violated 6th Amendment

Witness w/ Selective Memory is found to have NO memory.

803(6) - Records of regularly conducted Activity

Business Documents

If good enough for business, then good enough for CTs

Requires testimony of Custodian of Records

Must be supplied by person with duty to Corp.

902 - Self Authentication; Used in conjunction

Custodian - Testifies to business practices, not personal knowledge

Better for Juries than 803(5)

CT premise that docs are admissible; subject to exclusion - lack of trust

Allows for Opinions & Diagnoses - supplied by person w/ duty to company

Oral & Written records permitted

C/L - Didn't recognize Oral Records

803(8) - Public Records and Reports

Government Documents

Self Authenticating document

Custodian's testimony unnecessary

If admission under 803(8) fails, then NOT allowed to backdoor using 803(6)

See 805 - Multiple Hearsay Rule

Requires exception or exclusion for each stmt.

803(8)(B)

Duty to report; excluding

Criminal case matters observed by Police

Aimed to exclude stmts by officers in adversarial settings

BUT objective observations not meant to be excluded

Absence = Non Hearsay; no hearsay issue

803(8)(C)

Requires Factual Findings

Evaluative Reports w/in meaning of rule permitted

Civil & Criminal Cases against Gov't.

Admissible only when offered against the accused

Private Contractor Chemist is Agent

Court Reporter is Not Law Enforcement

Fire Marshal is Other Law Enforcement

807 - Residual Exception

1) Offered as evidence of Material Fact

2) More probative than other available evidence

3) Interests of justice will be served

4) Circumstantial Guarantees of Trust

5) Must give Adverse party Notice

Used sparingly

Argue Need or Trustworthiness

More Need for Evidence = Less Trustworthy

Less Need for Evidence = More Trustworthy

Character

Character - Who you are.

Reputation - What other people think of you

404 - Character Evidence not Admissible to Prove Conduct; Exceptions; Other Crimes

404 requires 405 cite to be used in conjunction

Civil Cases where Character is an Essential Element

1) Negligent Hiring or Retention

2) Child Custody

3) Sanity

4) Some Defamation where truth is a Defense

Criminal Cases Where Character is an Essential Element

1) Entrapment - Predisposition

2) Recidivist - 3 Strikes Statute

Must establish prior convictions

Repeat Offenders

Prior Felons prohibited Activities

3) Some Extortion Charges

Evidence needed to demonstrate D's character to show extortion

404(a) - Character Evidence Generally

Bars Gov't. from citing use of bad character during Govt.'s case in chief.

If one side uses inadmissible evidence, TJ may allow other side to use inadmissible evidence. "Fighting fire with fire."

404(a)(1) - Character of the Accused

D may raise character in Criminal cases

Prosecution MAY NOT raise issue.

Prosecution MAY Rebut

404(a)(1) - Opens Door

405(a) - Reputation or Opinion - Used in Conjunction

404(a)(2) - Character of the Victim

Prosecution

Can Cross Examine

Introduce Rebuttal Witnesses

May NOT raise in Case in Chief

If introduces bad character w/o rebuttal from D may be Reversible Error

May raise peacefulness of Victim claim

Reputation Witness

"Had you Heard" - ALLOWED

"Did you Know" - PROHIBITED

Must show reasonable, good faith effort to show rumor about defendant's character circulating.

Usually requires Motion in Limine

404(b) - Other Crimes, Wrongdoings, or Acts

a.k.a. - The Prosecutors' Rule

Prosecution Required to Show Beyond Reasonable Doubt

Conduct

Identity

Mental State

Specific Acts Evidence - Admissible when strong probative link between D & charged crime

Prior or Subsequent Acts

Conviction or Acquittal

During Case in Chief

404(a) - Excludes when sole purpose is to show "bad acts"

404(b) - Prove circumstantial motive, opportunity, intent, absence of identity

TJ had discretion of admitting evidence.

404(b) Balancing Test

1) Relevance - Prosecutor must establish evidence offered for purpose other than Character

2) Need - How necessary is the evidence;

No other way

Only conceivable way

Balanced by

Other Evidence

Unfairly Prejudicial

3) Necessity to link to other Actions

BOP - Some evidence tying to other action

4) Balancing of Unfairly Prejudicial v. Probative Value

If admitted, D should request 105 limiting jury instruction.

In situations where the D is tried in 2 subsequent cases, evidence from the 1st case is admissible for the 2nd case; Some Evidence Threshold question.

412 - Sex Offense Cases

Term "Rape Victim" is possibly unfairly prejudicial against D, because Rape has yet to be proven.

405(a) - Rape Victim's testimony allowed

412 prohibits Reputation or Character Evidence; but permits

Prior Specific Acts Admissible

1) Prior acts between victim & 3rd Party

2) Prior acts between victim & defendant

3) Constitutionally Required

412(c)(1) - Requires Prior Notice be given for intro of evidence

412(c)(2) - Requires hearing to determine admissibility

Rape - Unlawful sexual intercourse with a woman against her will by force or threat of force. Determined by jury.

412(b)(1)(A)

Consensual - Inadmissible

Denial - Admissible

412 - Protects defendants from complainants

413 - 415 - tends to make evidence Unfairly Prejudicial

412(a)

Prior Victim's Conduct inadmissible

Defendant's state of mind inadmissible

413 - Evidence of Similar Crimes in Sexual Assault Cases

Must be offense of sexual assault.

Includes Propensity

Larger scope than 404(b)

Limited to indictments for Sexual Assault

Similar Happenings Connecting Factor - Same/like place in each accident; not same person/party involved.

Degree of Similarity General Requirements

1) No Change in Central Condition

2) Admissibility rests on purpose of evidence being offered

3) Moving Party articulates purpose

Character v. Habit

Character - Not all the time

404 - Inadmissible

General

Habit - All the time.

Course of behavior of person regularly repeated in like circumstances.

406 - Admissible

Narrow

Opinion or Routine

Usual ≠ Habitual

Witnesses

Viva Vochia - The Live Witness

The Most important part of Trial Law

ARTICLE 6 ONLY TRIGGERS AFTER WITNESS TAKES STAND.

601 - General Rule of Competency

Liberal Standard

Rule - Competency

Exception - Incompetency

Only permitted AFTER Defendant testifies

Witnesses are always competent, unless another rule prohibits.

C/L - Incompetency

Mental Incapacity

Determined at Pretrial Hearing by TJ.

Need v. Invasion of Privacy

Witness under influence of drugs is NOT Mentally Incompetent

Drug influence goes to weight and credibility

C/L - Age

Never limited

TJ Discretion - In Camera hearing

Witness's ability to preserve, remember, communicate

C/L - Conviction of a Felony

Any witness who was felon was automatically barred from testifying.

See FRE 609

C/L - Spouses not competent to testify against other spouse.

FRE - Spouses are competent; but not compelled to testify.

Privileges

1) Communications Privilege - similar to attorney-client privilege; Both spouses hold privilege

2) Spousal Competency Privilege - If at the time of trial there is a valid marriage, spouse can't be forced to testify against another

Testifying spouse holds the privilege.

If one spouse wants to testify, may do so.

Deadman Statutes

Originally parties couldn't testify in their own trials.

FRE 601 doesn't exclude; BUT

In Federal Diversity cases, must use local statutes

FRE 603, 605 may exclude testimony

602 - Lack of Personal Knowledge

Must establish foundation that witness has some personal knowledge.

Left to weight and credibility

603 - Oath or Affirmation

C/L - No Oath taken, No Testimony permitted

Some guarantee that truth will be told

FRE abandons C/L rules

See FRE 610 - Religious Beliefs or Opinions - prohibits religious beliefs to be used to show witness credibility or impairment.

Courtroom Tactics - Witnesses who prefer to be "affirmed" should be pointed out to the CT clerk before hand.

Oath - Awaken the conscious of the witness

604 - Interpreters

Foundation Requirements

1) Expert in language

2) Skilled to Interpret

3) Oath or Affirmation

605 - Competency of Judge as Witness

Hypo - Judge shakes head at testimony

1) Call sidebar and ask he stop; AND/OR

2) Request gallery attendee make record & testify

606 - Competency of Juror as Witness

Unlikely to occur

607 - Who may Impeach

Credibility of witness may be attacked by any party.

Moving Party may impeach; but can't lead

Attorney as Witness - No prohibition in Article 6

Possible conflict of interest

Single partner in law firm with conflict shares conflict with entire firm

611 - Mode and Order of Interrogation and Presentation

611(a) - Control by CT

Restatement of C/L

TJ has discretion

Usually requires non-narrative testimony

Judge may interrupt if unable to get around non-narrative

Direct Examination

Keep Questions Short

Keep Spotlight on Witness

Leading Questions v. Form Questions

ALWAYS OBJECT to "Is it possible" questions - speculative

611(b) - Scope of Cross-Examination

CT may allow probe into area outside scope "as if on direct exam"

Rule of Discretion

611(c) - Leading Questions

Leading Questions are generally IMPROPER on Direct

Leading Questions Exceptions

1) As long as not direct to disputed matter

2) Uncontrovorted or stipulated facts identified at pre-trial conference

3) When trying to refresh witness's memory, with good faith attempt to jog memory

4) Problem witnesses - kids, MI, hostile witnesses

C/L - Voucher Rule

Any Questions which tend to impeach credibility of witness are NOT PERMITTED on direct examination.

If you call a witness, you can't impeach him on direct.

Exceptions

1) Adverse Party witness may always be examined as if on cross; may lead or impeach

2) Hostile witness - Statutory Foundation

• Call Witness

• Demonstrate Hostility

• Satisfy Trial Judge

3) Turncoat Friendly Witness - surprises and gives harmful testimony. Allows for cross w/ leading and impeaching questions.

4) Required Witness - only witness to event; i.e. - author of will.

614(a) - Calling & Interrogation of Witnesses by CT; Calling by CT

Makes witness available for impeachment, leading, and cross questions

Cross Examination

Investigate - Oath, perception, memory, community, relationship to parties

Absolute right to cross every witness called

Principles

1) Don't ask "Why" cross questions. Gives witness right to answer fully

Test - Is reply responsive to Question? Can't object to own Q.

2) No requirement to cross all witnesses. If witness hasn't hurt you, don't cross-examine them.

3) Don't ask questions you don't know the answer to.

4) Know when to stop.

Focus on where cross examination is going, then raise timely objections to Questions beyond scope.

Redirect

No Leading Questions

Limited to Issues raised on Cross Exam

Impeachment

Limited to Credibility

May have only marginal relevance

Separate standard - Will answer help fact finder determine credibility of witness?

Methodology

1) Intrinsic - Cross examination of witness on stand - PREFERRED

Permitted - Witness's Perception

Permitted - Witness's Impeachment

Permitted - Mental Condition

2) Extrinsic - Introducing document or other person to tell about the witness

Permitted - Mental Condition

Permitted - Defendant's Perception

Prohibited - Witness's Impeachment

Bias

Witness may be questioned on

Interest in Parties

Interest in case outcome

Goes to Interest & Motive

Intrinsic & Extrinsic evidence permitted

No specific FRE for Bias; but 607 & 611 used

Rehabilation

1) Try to show prior inconsistent statement never made.

2) Witness can explain inconsistency

3) Possibly use a prior consistent statement

Prior inconsistent statement doesn't open the door to other's prior consistent statement.

Impeachment by prior consistent statemetn doesn't open door to rehabilation by prior consistent statement.

Prior consistent statement doesn't have to be under oath. Can be used to rebut.

Prior consistent statement admissible when used to rebut charge of fabrication or threat.

Impeachment Review

1-3 NO REQUIREMENT TO LAY FOUNDATION

1) Perception & Memory

Intrinsic & Extrinsic

FRE 607 & 601

2) Mental Condition

Intrinsic & Extrinsic

FRE 607 & 601

3) Bias

Intrinsic & Extrinsic

FRE 607 & 611

4) Prior Inconsistent Statement

Intrinsic for Collateral Matters

Intrinsic & Extrinsic for Material Matters

Requires Proper Foundation

FRE 613

5) Reputation and/or Opinion Evidence to Witness's Character for Truth

Extrinsic ONLY

FRE 608(a)

6) Bad Acts Probative of Untruthfulness

Intrinsic ONLY

FRE 608(a)

EXAM REVIEW

Exam Problem Strategy

ARTICLE 9

ARTICLE 10

ARTICLE 4

Vocabulary

Case in Chief - Part of trial where party with BOP presents case.

Doctrine of Limited Admissibility - Evidence can be used against one party but not another.

Motion in limine - A pretrial request that certain inadmissible evidence not be referred to or offered before the jury.

Relevance - Any tendency to make fact more or less probable.