Evidence Outline s4

Evidence Outline

I.  Introduction/Basics

a.  Course of Trial

i.  Beginning

i.  Civil – complaint

ii.  Criminal – indictment or preliminary hearing

ii. Standard of Proof

i.  Civil – preponderance of the evidence

ii.  Criminal – beyond a reasonable doubt

iii.  Pretrial:

i.  Discovery

a.  Civil – always

b.  Criminal – depends on jurisdiction; usually no, unless there is exculpatory evidence

ii.  Pretrial orders

a.  Motions in limine – motion to exclude evidence

b.  12(b)(6) motion

c.  summary judgment

iii.  Procedural Hearings/Meetings

iv.  Beginning of Trial

i.  Jury selection: 103(c) – rulings on evidence should be done outside the hearing of the jury

ii.  Burden of proof: prosecutor/plaintiff

iii.  Making a record – FRE 103: to preserve an issue for appeal, a ruling must:

a.  Affect a substantial right of the party

b.  If ruling admits evidence, a timely objection or motion to strike must appear on the record, stating the specific grounds for objection

c.  If ruling excludes evidence, there must be an offer of proof on the record

v. Case Phases and Scope

i.  611 – Mode and Order of Interrogation and Presentation

a.  Court can control interrogation and presentation of witnesses to:

i.  Make interrogation/presentation effective for finding truth

ii. Avoid needless consumption of time

iii.  Protect witness from harassment/undue embarrassment

b.  Scope of cross-examination limited to scope of direct, impeachment

c.  Leading questions

i.  Should not be used on direct or redirect

ii. May be used on cross

iii.  May be used on hostile witness, adverse party

ii.  Opening statements

iii.  P’s case (defines scope of trial)

a.  Presentation of witnesses

b.  Presentation of evidence

i.  Exhibit numbers

ii. The Offer

1.  lay foundation

2.  opposing counsel may object

a.  Motion in Limine

b.  Sidebar

iii.  Offer of proof (make record)

c.  103 – Rulings on evidence

i.  CTA will not reverse for erroneous ruling on evidence unless:

1.  affects substantial right of party

2.  if ruling admits: timely objection or motion to strike made stating specific grounds

3.  if ruling excludes: substance must be made known by offer of proof

ii. Court may add information to record on character of evidence (including offer of proof in Q/A form)

iii.  Plain error always reversible, even if no objection on record

d.  104 – Objections and Preliminary Questions

i.  FRE (except for privilege) does not apply during preliminary question hearing

ii. Does not limit the right of party to introduce evidence to challenge weight and credibility

iii.  Questions of admissibility generally:

1.  Qualification

2.  Existence of privilege

e.  Stipulations

i.  May be used to try to exclude evidence

ii. May be entered into evidence

iv.  D’s case (within scope of P’s case)

v.  P’s rebuttal

vi.  D’s rebuttal

vii.  Surrebuttal

viii. Closing Statements – party with burden always goes last

b.  Scope of Rules:

i.  101 – Scope of Rules

i.  Federal

ii.  Bankruptcy (not Art. III courts)

iii.  US Magistrate judges

ii. 1101 – Applicability of Rules

i.  geographic: DC and US territories

ii.  type of cases: civil, criminal, bankruptcy

iii.  Rule of Privilege: super objection – applies to all stages of actions, cases, proceedings; it can be waived, but it will always win if asserted

iv.  When not applicable:

a.  Preliminary questions of fact (104)

b.  Grand jury proceedings

c.  Miscellaneous proceedings (extradition, sentencing)

iii.  102 – Purpose and Construction

i.  fairness

ii.  efficiency

iii.  growth of law of evidence in the name of justice and truth

II.  Relevance/Judicial Notice

a.  Relevance – 401

i.  Definition: 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

ii. Very low standard

iii.  Conditional relevance: probative value depends on existence of some matter of fact

iv.  402 – Relevant evidence generally admissible; irrelevant evidence inadmissible (except as otherwise provided by Constitution, Act of Congress, FRE, or other rules promulgated by S.Ct.)

b.  Prejudicial, Confusing, Cumulative Evidence – 403

i.  Must substantially outweigh relevance

ii. Potentially prejudicial:

i.  Generally admissible in criminal trial

ii.  Does not create presumption of guilt or suffice for conviction

iii.  Examples:

i.  Evidence of attempt to avoid capture

ii.  False ID or alias

iii.  Destroying or concealing evidence

iv.  Fabricated evidence or suborned perjury

v.  Witness tampering

vi.  Attempted escape from detention

vii.  Attempted bribery of public official

c.  105 – Limited Admissibility

i.  Evidence that can come in for one purpose or party, but not for another purpose or party

ii. Court can instruct jury as to scope of evidence

d.  Judicial Notice of Adjudicative Facts - 201

i.  Adjudicative facts = facts that a jury could find

ii. Facts not subject to reasonable dispute in that they are either:

i.  Generally known within the territorial jurisdiction of trial court (Silver Spring is within 30 miles of DC)

ii.  Capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned (What day was Super Bowl Sunday in 2005?)

iii.  May be done on request by party or sua sponte

iv.  Hearsay admissible to show preliminary questions of fact

v. Opposing party must be given time to object if timely request made

vi.  May be made at any stage of proceeding

vii. Instruction to jury:

i.  Civil case:

a.  Jury should accept as conclusive any fact judicially noticed

b.  Opposing party may make the record that judicial notice is opposed

ii.  Criminal case: Jury may, but is not required to, accept as conclusive any fact judicially noticed

III.  Authentication, BER, Opinion, Scientific Evidence

a.  Authentication – 901

i.  Condition precedent to admissibility

ii. Need only be sufficient to support a finding that the matter in question is what the proponent claims

iii.  Purpose of offer matters to authentication: illustrative vs. actual evidence

iv.  Evidence may be authenticated by “sponsoring witness” or by stipulation

v. 902 – Self-identification (extrinsic evidence need not be presented to authenticate)

vi.  Issues of authentication:

i.  Chain of custody

ii.  Tangible objects

iii.  Authenticating writings:

a.  consistent misspellings can be used to authenticate

b.  Circumstantial evidence can be used to authenticate

iv.  Sound recordings

a.  McMillan factors (not a strict test by any means):

i.  Recording device was capable of taking the conversation now entered into evidence

ii. Operator of device was competent to operate device

iii.  Recording is authentic and correct

iv.  Changes, additions, or deletions have not been made in recording

v. Recording has been preserved in a manner that is shown to the court

vi.  Speakers are identified

vii.  Conversation elicited was made voluntarily and in good faith, without any kind of inducement

v.  Telephone Conversations

b.  Best Evidence Rule – 1002

i.  To prove the content of a writing, recording, or photograph, the original is required

ii. 1001-1002: What is a writing?

i.  letters, words, numbers…set down by handwriting, type, printing

ii.  Includes still photos, x-ray film, video tape, motion picture

iii.  Chattel vs. writing: they become one, and court has discretion to treat as either chattel or writing

iii.  1001(3): What is an original?

i.  The writing or recording itself, or any counterpart intended to have the same effect by a person executing or issuing

ii.  Photo: includes negative and any print therefrom

iii.  Hardcopy from a computer is considered an original of data stored in computer or similar device

iv.  Independent Knowledge Rule (only applies to BER)

v. Duplicates:

i.  1003 – Admissibility of Duplicates – admissible to the same extent as original unless:

a.  genuine question as to authenticity of original

b.  unfair to admit duplicate in lieu of original

ii.  403 – Prejudicial

vi.  1004 – Admissibility of Other Evidence of Contents

i.  Originals lost or destroyed

ii.  Original not obtainable

iii.  Original in possession of opponent

iv.  Collateral matters

vii. 1005 – Public Records: copy may be entered if certified and authenticated

viii.  1006 – Summaries: may be presented for convenience sake, but originals must be available if court requests

c.  Lay Opinion – 701

i.  Limited to opinions or inferences which are:

i.  Rationally based on perception of witness

ii.  Helpful to a clear understanding of witness’ testimony or determination of fact in issue, and

iii.  Not based on scientific, technical, or other specialized knowledge within scope of FRE 702

ii. Whether or not the witness falls under 701 or 702 depends on purpose of the offer

d.  Experts/Scientific Evidence

i.  702 – Basis

i.  Scientific, technical, or other specialized knowledge

ii.  Qualification

a.  Lay a foundation: resume could be entered as evidence (if authenticated under 901)

b.  Move for the court to recognize witness as expert

c.  Could be a preliminary question

d.  Voir dire: opposing counsel wants to conduct their own examination on qualification

i.  FRE do not apply (preliminary question)

ii. Attempt to show that witness is not qualified, or to limit scope of expertise and testimony

e.  Knowledge, skill, experience, training, or education

iii.  Expert can give opinion on the area of expertise if:

a.  Testimony is based upon sufficient facts or data

i.  703: Expert doesn’t have to explain all underlying facts forming the basis of the opinion

ii. Basis can come from information heard by expert during the course of trial

iii.  705 – underlying facts or data do not have to be presented in advance

b.  Testimony is the product of reliable principles and methods

c.  Witness has applied the principles and methods reliably to the facts of the case

ii. 704 – Ultimate Issue

i.  Testimony in the form of an opinion or inference that is otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by trier of fact (except for provisions of subpart (b) – mental state or condition of D in criminal case constituting an element of crime or defense thereto)

a.  Jury can still reject expert opinion

b.  Reverses common law rule

iii.  706 – Court appointed experts

i.  Court may appoint experts sua sponte or by motion of party

ii.  Payment will come from funds for that purpose or by proportional payment from parties

iv.  Scientific Evidence

i.  Frye standard (no longer rule) – scientific evidence only admissible if the principle upon which based is “sufficiently established to have general acceptance in the field to which it belongs”

ii.  Daubert factors: (not a definitive checklist)

a.  Has the theory been tested?

b.  Has the theory been subject to peer review?

c.  Rate of error?

d.  General acceptance? (not dispositive)

IV.  Hearsay

a.  Introduction

i.  Common Law: whether or not you intended to make a statement by an action is irrelevant

ii. Broad definition

iii.  Modern View

i.  801(c): a statement, other than one made by the declarant at the trial or hearing, offered in evidence to prove the truth of the matter asserted

a.  Statement: an oral or written assertion OR non-verbal conduct, if it is intended by the person as an assertion

i.  Negative hearsay: if someone has a responsibility to say something in the event of something happening, and they don’t, this may be evidence that nothing happened

b.  To prove the truth of the matter asserted: goes to purpose of the offer

c.  We are not concerned with the ultimate issue of the case, only with the issue for which the evidence is offered

d.  An out of court statement by the witness himself may be objectionable as hearsay

ii.  802: Hearsay not admissible unless there is an exception

iii.  Hearsay concerns:

a.  We want to see people as they speak

b.  Cross-examination

c.  Person doesn’t have time to think up a lie

b.  Nonhearsay

i.  Two views:

i.  Not offered for proof of matter asserted, and are not, by definition, hearsay

ii.  Exception to the rule

ii. Categorical exceptions

i.  Impeachment by prior inconsistent statement

a.  One of 5 major types of impeachment

b.  Statement isn’t offered to show that what declarant said before is true, but rather to show that declarant “blows hot and cold”

c.  Two uses of prior inconsistent statement:

i.  Impeachment

ii. Substantive (would be hearsay) – 801(d)(1)

ii.  Verbal Act – act of independent legal significance

a.  Words have significance and meaning such that they would not be casually uttered; the words are acts; even illegal acts may qualify

i.  Words of offer/acceptance

ii. Words of gift/donation

iii.  Words of surrender of liability/rights

iv.  Words of threat

iii.  Effect on Hearer

a.  How the hearer reacted must be relevant

b.  Offered for the purpose of showing how the words caused the listener to act or not to act (as opposed to showing that the words themselves are true)

iv.  Circumstantial Evidence of State of Mind

a.  State of mind of the speaker must be relevant

b.  Note circumstantial evidence vs. direct evidence

c.  Requires a leap from what is testified to and what the inference is to be drawn (circumstantial)

v.  Circumstantial Evidence of Memory or Belief