Evidence (Real & Demonstrative)
Total Page:16
File Type:pdf, Size:1020Kb
Load more
Recommended publications
-
Best Evidence Rule--Oral Proof of Contents of Writings
St. John's Law Review Volume 5 Number 2 Volume 5, May 1931, Number 2 Article 8 Best Evidence Rule--Oral Proof of Contents of Writings Thomas M. McDade Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Note is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. NOTES AND COMMENT ing certain modes of procedure, in federal cases, it is submitted that there is nothing in the Fourteenth Amendment that forbids a state from keeping its rules of procedure and evidence abreast of the most enlightened views of modern jurisprudence. C. JOSEPHa DANAHY. BEST EVIDENCE RULE-ORAL PROOF OF CONTENTS OF WRITINGS. It is common learning in the law of evidence that a writing or document is the best evidence of what it contains. "Indeed the term 'best evidence' has been described as a convenient short de- scription of the rule as to proving the contents of a writing." I Therefore, generally, oral testimony will not be admitted to prove what was contained in a writing; the document itself must be produced and offered in evidence.2 The reasons for this rule are founded on the uncertainty of oral testimony based on recollec- tion, and the inability to reproduce properly such characteristics as form, handwriting and physical appearance. 3 But, like most laws of a pseudo-science, this general rule has several exceptions, and it is with one of these exceptions that we are concerned. -
Examination of Witnesses [PDF]
CHAPTER 32 JANUARY, 2012 ________________________________________________________ Examination of Witnesses Written by Eric Blumenson Table of Contents: §32.1 A Recommended Sequence for Trial Preparation .................................................... 2 §32.2 The Elements of Credibility ..................................................................................... 2 §32.3 Direct Examination .................................................................................................. 4 A. Choosing and Preparing Witnesses ................................................................... 4 B. Selecting the Areas of Testimony ...................................................................... 4 C. Techniques of Questioning ................................................................................ 5 §32.4 Cross-Examination ................................................................................................... 6 A. Selecting the Areas of Testimony ...................................................................... 6 1. Potential Areas of Cross-Examination ......................................................... 6 2. Narrow the Focus to Reduce the Risks ........................................................ 7 3. Subject Matter to Avoid in Cross-Examination ........................................... 9 B. Techniques of Questioning ................................................................................ 9 Cross-References: Checklists of issues in particular cases, § 11.10 Child witnesses, §§ -
Evidence in Criminal Proceedings Hearsay and Related Topics
Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS A Consultation Paper LAW COMMISSION CONSULTATION PAPER No 138 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Law Commissioners are: The Honourable Mr Justice Brooke, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber, QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WClN 2BQ. This Consultation Paper, completed for publication on 11 May 1995, is circulated for comment and criticism only. It does not represent the final views of the Law Commission. The Law Commission would be grateful for comments on this Consultation Paper before 31 October 1995. All correspondence should be addressed to: Ms C Hughes Law Commission Conquest House 37-38 John Street Theobalds Road London WClN 2BQ (Tel: 0171- 453 1232) (Fax: 0171- 453 1297) It may be helpful for the Law Commission, either in discussion with others concerned or in any subsequent recommendations, to be able to refer to and attribute comments submitted in response to this Consultation Paper. Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response is not intended to be confidential. The Law Commission Consultation Paper No 138 Criminal Law EVIDENCE IN CRIMINAL PROCEEDINGS: HEARSAY AND RELATED TOPICS -
On Demonstrative Evidence and Trial Graphics: What Works and What Doesn't
Criminal Law Practitioner Volume 2 Issue 1 Article 3 2014 On Demonstrative Evidence and Trial Graphics: What Works and What Doesn't Ryan Flax A2L Consulting Follow this and additional works at: https://digitalcommons.wcl.american.edu/clp Part of the Criminal Law Commons, Evidence Commons, and the Litigation Commons Recommended Citation Flax, Ryan (2014) "On Demonstrative Evidence and Trial Graphics: What Works and What Doesn't," Criminal Law Practitioner: Vol. 2 : Iss. 1 , Article 3. Available at: https://digitalcommons.wcl.american.edu/clp/vol2/iss1/3 This Article is brought to you for free and open access by Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in Criminal Law Practitioner by an authorized editor of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Criminal Law Practitioner Flax: On Demonstrative Evidence and Trial Graphics: What Works and What ON DEMONSTRATIVE EVIDENCE AND TRIAL GRAPHICS: WHAT WORKS AND WHAT DOESN'T' manipulation of evidence. Did you know that color plays a major role? 1. Litigation Graphics, Psychology and Color Litigation graphics are almost never Meaning' black and white - they almost always involve As a litigation consultant, one of my the use of color. Most colors carry psychologi- primary responsibilities is to help litigation cal (and even physiological), cultural, personal, teams develop and effectively use demonstra- emotional, and expressive implications that tive evidence' to support their trial presenta- can impact how persuasive you are when us- tion. The primary means of doing this is to ing them. -
10.9 the Right to Cross-Examination
Minnesota Administrative Procedure Chapter 10. Evidence Latest Revision: 2014 10.9 THE RIGHT TO CROSS-EXAMINATION The APA guarantees all parties to a contested case the opportunity to cross- examine: “Every party or agency shall have the right of cross-examination of witnesses who testify, and shall have the right to submit rebuttal evidence.”1 The OAH rules affirm this right2 and extend it to include the right to call an adverse party for cross-examination as part of a party's case in chief.3 In the case of multiple parties, the sequence of cross-examination is determined by the ALJ.4 While application of the right to cross-examine is a simple matter in the case of witnesses who testify, does the existence of this right prevent the use of evidence from witnesses who do not give oral testimony? In short, is it ever proper to receive written evidence5 in contested cases, sworn or unsworn, offered by a party who fails to call the author of the written evidence. In Richardson v. Perales, the United States Supreme Court held that where the written evidence consisted of unsworn statements of medical experts, receipt of the evidence was proper.6 Perales involved a claim for social security disability benefits based on a back injury. At the hearing, Perales offered the oral testimony of a general practitioner who had examined him. The government countered with written medical reports, containing observations and conclusions of four specialists who had examined Perales in connection with his claim at various times.7 The reports were received over several objections by Perales's counsel, including hearsay and lack of an opportunity to cross-examine. -
Best Evidence Rule Chapter
Evidence: Best Evidence Rule Colin Miller CALI eLangdell® Press 2012 Notices This is the first version of the first edition of this chapter. It was updated March 21, 2012. Check elangdell.cali.org for the latest edition/version and revision history. This work by Colin Miller is licensed and published by CALI eLangdell Press under a Creative Commons Attribution-NonCommercial-ShareAlike 3.0 Unported License. CALI and CALI eLangdell Press reserve under copyright all rights not expressly granted by this Creative Commons license. CALI and CALI eLangdell Press do not assert copyright in US Government works or other public domain material included herein. Permissions beyond the scope of this license may be available through [email protected]. In brief, the terms of that license are that you may copy, distribute, and display this work, or make derivative works, so long as you give CALI eLangdell Press and the author credit; you do not use this work for commercial purposes; and you distribute any works derived from this one under the same licensing terms as this. Suggested attribution format for original work: Colin Miller, Evidence: Best Evidence Rule, Published by CALI eLangdell Press. Available under a Creative Commons BY-NC-SA 3.0 License. CALI® and eLangdell® are United States federally registered trademarks owned by the Center for Computer-Assisted Legal Instruction. The cover art design is a copyrighted work of CALI, all rights reserved. The CALI graphical logo is a trademark and may not be used without permission. Should you create derivative works based on the text of this book or other Creative Commons materials therein, you may not use this book’s cover art and the aforementioned logos, or any derivative thereof, to imply endorsement or otherwise without written permission from CALI. -
DNA Fingerprinting: Informed Consent and the Admissibility of Evidence Greg Horton
DNA Fingerprinting: Informed Consent and the Admissibility of Evidence Greg Horton I: INTRODUCTION All human beings, no matter how varied their appearance, share one basic characteristic: they are built from cells, and in the nucleus of each cell is deoxyribonucleic acid - DNA. Further, the DNA is the same in every cell of the human body. DNA carries the genetic code which determines a person's physical characteristics. Because human beings are generally more similar than different in appearance (that is, for the most part we all have two legs, two arms, a head and a torso), most of our DNA structure is identical. However, approximately one- thousandth of the composition of each person's DNA is unique. Every individual, therefore, except an identical twin, has unique DNA. The existence of this unique DNA structure formed the basis for the develop- ment of a technique which has been described as "the most significant break- through in resolving serious crime since fingerprinting was invented".1 That technique is known as DNA fingerprinting, and it was developed in 1985 by Professor Alec Jeffreys of Leicester University. The essence of the technique is the subjection of a bodily sample, such as blood, semen, saliva, hair, or skin scrapings to a complicated laboratory process.2 This process results in a visualisation on Tande, "DNA Typing: A New Investigatory Tool" [1989] Duke L 474, citing Marshall, "'Genetic Fingerprints' May Catch Killer", LA Times, 11 March 1987, 11. 2 The actual process used is not discussed in this paper but in depth discussions of the technique can be found in most academic articles on the subject of DNA fingerprinting: see for example Kelly, Rankin & Wink, "Method and Applications of DNA Fingerprinting: A Guide for the Non- Scientist" [1987] Crim LR 105. -
New York Evidentiary Foundations Randolph N
digitalcommons.nyls.edu Faculty Scholarship Books 1993 New York Evidentiary Foundations Randolph N. Jonakait H. Baer E. S. Jones E. Imwinkelried Follow this and additional works at: http://digitalcommons.nyls.edu/fac_books Part of the Evidence Commons Recommended Citation Jonakait, Randolph N.; Baer, H.; Jones, E. S.; and Imwinkelried, E., "New York Evidentiary Foundations" (1993). Books. Book 4. http://digitalcommons.nyls.edu/fac_books/4 This Book is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion in Books by an authorized administrator of DigitalCommons@NYLS. New York .Evidentiary Foundations RANDOLPH N. JONAKAIT HAROLD BAER, JR. E. STEWART JONES, JR. EDWARD J. IMWINKELRIED THE MICHIE COMPANY Law Publishers CHARLOTIESVILLE, Vlli:GINIA CoPYRIGHT ~ 1H93 BY THE MICHIE COMI'ANY Library of Congress Catalog Card No. 93-77731 ISBN: 1-55834-058-0 All rights reserved. lllllllllllllllllllllllllm IIIII SUMMARY TABLE OF CONTENTS Page Table of Contents . v Chapter 1. Introduction . 1 Chapter 2. Related Procedures .. .. .. .. ... ... .. .. .. .. .. .. ..... 11 Chapter 3. The Competency ofWitnesses .......................... 25 Chapter 4. Authentication . 45 Chapter 5. Limitations on Credibility Evidence . 99 Chapter 6. Limitations on Evidence That Is Relevant to the Merits of the Case . 129 Chapter 7. Privileges and Similar Doctrines . 155 Chapter 8. The Best Evidence Rule . 199 Chapter 9. Opinion Evidence ......................................... 225 Chapter 10. The Hearsay Rule, Its Exemptions, and Its Excep- tions ......................................................... 241 Chapter 11. Substitutes for Evidence . .. .. .. .... .. .. .. .. ..... ... .. 315 Index ......................................................................... 329 iii TABLE OF CONTENTS Page Summary Table of Contents 111 Chapter 1. Introduction .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. 1 · A. Introduction . 1 B. Laying a Foundation - In General . 2 1. -
GUIDE to NEW YORK EVIDENCE ARTICLE 11 REAL and DEMONSTRATIVE EVIDENCE TABLE of CONTENTS 11.01 Real Evidence 11.03 Demonstrative
GUIDE TO NEW YORK EVIDENCE ARTICLE 11 REAL AND DEMONSTRATIVE EVIDENCE TABLE OF CONTENTS 11.01 Real Evidence 11.03 Demonstrative Evidence 11.05 Anatomically Correct Dolls 11.07 Childs Age 11.09 Demonstrations and Experiments 11.11 Personal Appearance & Capability 11.13 Photographs 11.15 Viewing of Premises 11.17 Exhibits to the Jury 11.01. Real Evidence (1) Definition. Real Evidence refers to any tangible object or sound recording of a conversation that is offered in evidence. (2) Admissibility. Real evidence is admissible upon a showing that it is relevant to an issue in the proceeding, is what it purports to be, and has not been tampered with. Proof that an object has not been tampered with and is what it purports to be depends on the nature of the object and, in particular, whether the object is patently identifiable, or fungible. (a) Patently identifiable evidence. When real evidence possesses unique or distinctive characteristics or markings and is not subject to material alteration that is not readily apparent, evidence identifying the object normally will constitute the requisite proof. (b) Fungible evidence. When real evidence is fungible, capable of being altered, contaminated, or replaced, or is a sound recording, in addition to testimony identifying the object, proof that the proffered evidence has not been tampered with is required and may be satisfied by: (i) a chain of custody (i.e. testimony of those persons who handled the object or recording from the time it was obtained or recorded to the time it is presented in court to identify the object or recording and attest to its unchanged condition); or (ii) proof of circumstances that provide reasonable assurances of the identity and unchanged condition of the object or recording. -
The Changing Face of the Rule Against Hearsay in English Law
The University of Akron IdeaExchange@UAkron Akron Law Review Akron Law Journals July 2015 The hC anging Face of the Rule Against Hearsay in English Law R. A. Clark Please take a moment to share how this work helps you through this survey. Your feedback will be important as we plan further development of our repository. Follow this and additional works at: http://ideaexchange.uakron.edu/akronlawreview Part of the Evidence Commons, and the International Law Commons Recommended Citation Clark, R. A. (1988) "The hC anging Face of the Rule Against Hearsay in English Law," Akron Law Review: Vol. 21 : Iss. 1 , Article 4. Available at: http://ideaexchange.uakron.edu/akronlawreview/vol21/iss1/4 This Article is brought to you for free and open access by Akron Law Journals at IdeaExchange@UAkron, the institutional repository of The nivU ersity of Akron in Akron, Ohio, USA. It has been accepted for inclusion in Akron Law Review by an authorized administrator of IdeaExchange@UAkron. For more information, please contact [email protected], [email protected]. Clark: English Rule Against Hearsay THE CHANGING FACE OF THE RULE AGAINST HEARSAY IN ENGLISH LAW by R.A. CLARK* The rule against hearsay has always been surrounded by an aura of mystery and has been treated with excessive reverence by many English judges. Traditionally the English courts have been reluctant to allow any development in the exceptions to this exclusionary rule, regarding hearsay evidence as being so dangerous that even where it appears to be of a high pro- bative calibre it should be excluded at all costs. -
Ohio Rules of Evidence
OHIO RULES OF EVIDENCE Article I GENERAL PROVISIONS Rule 101 Scope of rules: applicability; privileges; exceptions 102 Purpose and construction; supplementary principles 103 Rulings on evidence 104 Preliminary questions 105 Limited admissibility 106 Remainder of or related writings or recorded statements Article II JUDICIAL NOTICE 201 Judicial notice of adjudicative facts Article III PRESUMPTIONS 301 Presumptions in general in civil actions and proceedings 302 [Reserved] Article IV RELEVANCY AND ITS LIMITS 401 Definition of “relevant evidence” 402 Relevant evidence generally admissible; irrelevant evidence inadmissible 403 Exclusion of relevant evidence on grounds of prejudice, confusion, or undue delay 404 Character evidence not admissible to prove conduct; exceptions; other crimes 405 Methods of proving character 406 Habit; routine practice 407 Subsequent remedial measures 408 Compromise and offers to compromise 409 Payment of medical and similar expenses 410 Inadmissibility of pleas, offers of pleas, and related statements 411 Liability insurance Article V PRIVILEGES 501 General rule Article VI WITNESS 601 General rule of competency 602 Lack of personal knowledge 603 Oath or affirmation Rule 604 Interpreters 605 Competency of judge as witness 606 Competency of juror as witness 607 Impeachment 608 Evidence of character and conduct of witness 609 Impeachment by evidence of conviction of crime 610 Religious beliefs or opinions 611 Mode and order of interrogation and presentation 612 Writing used to refresh memory 613 Impeachment by self-contradiction -
“Real Evidence” Refers to Any Tangible Object Or Sound Recording of a Conversation That Is Offered in Evidence
11.01. Real Evidence (1) Definition. “Real Evidence” refers to any tangible object or sound recording of a conversation that is offered in evidence. (2) Admissibility. Real evidence is admissible upon a showing that it is relevant to an issue in the proceeding, is what it purports to be, and has not been tampered with. Proof that an object has not been tampered with and is what it purports to be depends on the nature of the object and, in particular, whether the object is “patently identifiable,” or “fungible.” (a) Patently identifiable evidence. When real evidence possesses unique or distinctive characteristics or markings and is not subject to material alteration that is not readily apparent, evidence identifying the object normally will constitute the requisite proof. (b) Fungible evidence. When real evidence is fungible, capable of being altered, contaminated, or replaced, or is a sound recording, in addition to testimony identifying the object, proof that the proffered evidence has not been tampered with is required and may be satisfied by: (i) a “chain of custody” (i.e. testimony of those persons who handled the object or recording from the time it was obtained or recorded to the time it is presented in court to identify the object or recording and attest to its unchanged condition); or (ii) proof of circumstances that provide reasonable assurances of the identity and unchanged condition of the object or recording. 1 (c) Sound recording. A sound recording of a conversation is admissible: (i) upon testimony of a participant in, or a witness to, the conversation that the recording is unaltered and completely and accurately reproduces the conversation at issue; or (ii) by a combination of testimony of a participant and an expert establishing the completeness, accuracy, and absence of alteration of the recording; or (iii) in addition to evidence concerning the making of the recording and identification of the speakers, by establishing a “chain of custody” (i.e.