Evidence: Concept Summary

EVIDENCE: CONCEPT SUMMARY BIO 488 Forensic Environmental Science 2000-2005 Cutting Robert H. Cutting, JD

I. GENERAL 1 A. DEFINING EVIDENCE 2 3 B. SOURCES OF EVIDENCE LAW 4 1 C. FEDERAL RULES OF EVIDENCE: Daubert illustrates; many states model 2 1 D. THRESHOLD ADMISSIBILITY ISSUES 1 1. Materiality: The Proposition to Be Proved 2 2. Relevance: Probativeness—The Link Between Proof and Proposition: ‘Time, Event or Person in Controversy” 2 3. Federal Rules—Materiality and Relevance Combined 3 4. Competence: Policies Related to Truth Seeking 4 2 E. EVIDENCE CLASSIFICATIONS 3 1. Direct or Circumstantial 4 a. Direct Evidence Relies on Actual Knowledge 5 b. Circumstantial Evidence Relies on Inference 6 2. Testimonial, Documentary, or Real 7 a. Testimonial Evidence: Witness testimony 8 b. Documentary Evidence: paper evidence 9 c. Real Evidence: things, including 10 11 F. LIMITED ADMISSIBILITY 12 1. Admissible for One Purpose But Not Another 13 2. Admissible Against One Party But Not Another 14 3. Jury Must Be Properly Instructed

II. RELEVANCE 1 A. DETERMINING RELEVANCE 1. General Rule—Must Relate to Time, Event or Person in Controversy 2. Exceptions—Certain Similar Occurrences Are Relevant a. Causation b. Similar Accidents or Injuries Caused by Same Event or Condition c. Previous Similar Acts Admissible to Prove Intent d. Rebutting Claim of Impossibility e. Habit f. Evidence of Industrial or Business Routine g. Industrial Custom as Evidence of Standard of Care Industrial Custom Distinguished from Business Routine Relevant to Standard of Care But Not Conclusive 2 B. EXCLUSION OF RELEVANT EVIDENCE AS A MATTER OF PUBLIC POLICY a. Insurance b. Remedial Measures c. Sec. 452 Prejudicial Material d. Settlement Negotiations

III. JUDICIAL NOTICE 1 A. JUDICIAL NOTICE OF FACT: Matters of common knowledge, basic or common scientific 2 principles 2 B. JUDICIAL NOTICE OF LAW

IV. TYPES OF EVIDENCE

A. REAL EVIDENCE 1. Types of real evidence a. Direct b. Circumstantial c. Original d. Prepared 1 2. General conditions of Admissibility 1 a. Authentication 1 (1) Recognition Testimony 2 *(2) Chain of Custody 2 b. Condition of Object; Useful Probativeness 3 c. Legal Relevance 4 3. Particular types of real proof 1 a. Tangible Items: “the smoking gun” 5 b. Maps, Charts, Models, Etc. 6 c. Exhibition of Child in Paternity Suits 2 d. Exhibition of Injuries 3 e. Jury View of Scene 4 f. Reproductions and Explanatory Real Evidence 5 g. Demonstrations 1 (1) Demonstrations Showing Effect of Bodily Injury Usually Excluded 2 (2) Demonstrations Under Sole Control of Witness Excluded 3 (3) Scientific Experiments

B. DOCUMENTARY EVIDENCE 1 1. Authentication 1 a. Quantum of Proof of Authenticity 1 b. Authentication by Pleadings or Stipulation 2 c. Evidence of Authenticity 1 (1) Admissions by a party or witness 3 (2) Testimony of Eyewitness 4 (3) Handwriting Verifications 5 (4) Ancient Documents 6 (5) Reply Letter Doctrine 7 (6) Circumstantial Evidence in General 2. Types of Evidence: (1) Paper Evidence of all kinds: notes, documents, books and records (2) Photographs 8 (3) X-Ray Pictures, Electrocardiograms, Etc. 9 (4) Electronic Documents 2 3. Best Evidence Rule

C C. TESTIMONIAL EVIDENCE D 1. Competency Of Witnesses E a. Basic Testimonial Qualifications (1) Ability to Observe – Perception (2) Ability to Remember – Memory (3) Ability to Relate – Communication (4) Appreciation of Obligation of Oath b. Federal Rules of Competency c. Modern Modifications of Common Law Disqualifications 2. Form Of Examination Of Witness a. Leading Questions b. Improper Questions c. Use of Memoranda by Witness (1) Present Recollection Revived – Refreshing (2) Past Recollection Recorded – Recorded Recollection (3) Inspection and Use in Cross-Examination (4) North Carolina Law F 3. OPINION TESTIMONY G a. Opinion Testimony by Lay Witnesses (1) General Rule of Inadmissibility (2) When Admissible (3) Procedure (4) Situations Where Opinions of Lay Witnesses Are Admissible General Appearance or Condition of a Person State of Emotion Matters Involving Sense Recognition Identity and Likeness of Appearance, Voice, or Handwriting Speed of Moving Vehicle Value of Own Services Rational or Irrational Nature of Another’s Conduct (Sanity) North Carolina Law Intoxication Value of Property or Services – North Carolina Law (5) Situations Where Opinions of Lay Witnesses Are Not Admissible Agency of Authorization Contract of Agreement b. Opinion Testimony by Expert Witnesses H (1) Requirements of Expert Testimony (a) Subject Matter Appropriate for Expert Testimony (b) Witness Qualified as Expert Subject matter must be appropriate (where scientific, tech or other ecialized knowledge would assist in determining a fact or issue) (c) Expert Must Possess Reasonable Probability Regarding Opinion (d) Opinion Must Be Supported by Proper Factual Basis Personal Observation Facts Made Known to Expert at Trial Facts Made Known to Expert Outside Court (2) Opinion May Embrace Ultimate Issue (3) Scientific Evidence Federal Rules: Daubert v. Merrill Dow Pharmaceuticals “Gatekeeper” approach North Carolina Law: if expert qualified, may testify subject to rebuttal and cross-examination (4) Authoritative Texts and Treatises 4. CROSS-EXAMINATION a. Hostile Witness concept b. Leading Questions permitted 5. CREDIBILITY – IMPEACHMENT I a. Methods of Impeachment – Cross-Examination and Extrinsic Evidence (1) Prior Inconsistent Statements (2) Bias, Interest, or Hostility (3) Conviction of Crime (4) Opinion or Reputation Evidence for Truth (5) Sensory Deficiencies J b. Rehabilitation 6. OBJECTIONS, EXCEPTIONS, OFFERS OR PROOF 7. TESTIMONIAL PRIVILEGES a. Privilege Against Self-Incrimination b. Governmental Privileges (1) Identity of Informer Privilege Claimed by Government No Privilege If Identity Otherwise Voluntarily Disclosed c. Policy Privileges: Attorney-client, physician-patient, psychotherapist V. THE HEARSAY RULE

A. Statements That Are Nonhearsay Under The Federal Rules B. Hearsay Exceptions – Declarant Unavailable 1. Former Testimony 2. Statement Against Interest 3. Dying Declarations – Statement Under Belief of Impending Death 4. Statements of Personal or Family History C. Hearsay Exceptions – Declarant’s Availability Immaterial 1. Present State of Mind 2. Excited Utterances 3. Present Sense Impression 4. Declarations of Physical Condition 5. Business Records a. Business b. Entry Made in Regular Course of Business (1) Business Activity Example – Hospital Records (2) Entrant Under Duty to Record c. Personal Knowledge (1) Recorder Need Not Have Personal Knowledge of Event (2) Informant Must Be Under Business Duty to Convey Information (3) Recorded Statement May Be Admissible Under Other Exceptions d. Entry Made Near Time of Event e. Authentication f. Trustworthiness 6. Past Recollection Recorded 7. Official Records and Other Official Writings a. Public Records and Reports (1) Requirements for Admissiblity b. Records of Vital Statistics c. Statement of Absence of Public Record 8. Ancient Documents and Documents Affecting Property Interests 9. Learned Treatises 10. Reputation 11. Family Records 12. Market Reports 13. Residual “Catch-All” Exception of Federal Rules VI. PROCEDURAL CONSIDERATIONS

A. BURDEN OF PROOF 1. Burden of Producing or Going Forward with Evidence 2. Burden of Persuasion (Proof) 3. Quantum or Measure of Proof a. Clear and Convincing Proof b. Beyond a Reasonable Doubt c. Preponderance d. B. PRESUMPTIONS