I.  Introduction to Evidence

a.  Coverage of FRE

  1. Purpose and Construction – FRE 102
  2. rules should be construed to secure fairness, eliminate delay, promote growth of the law of evidence
  3. Purpose:
  4. Mistrust of juries
  5. Uniform interpretation of evidence
  6. Ensure accurate fact finding
  7. Control scope and duration of trials
  8. Preserving Appeal – FRE 103
  9. to preserve the right to appeal admission or exclusion of evidence, a lawyer must have either:
  10. made an objection on the record (to appeal admission) and state specific grounds – 103(a)(1)
  11. made an offer of proof on the record (to appeal exclusion) UNLESS the purpose of the offer is patently obvious – 103(a)(2)
  12. nothing precludes the appeals court from taking notice of plain errors affect substantial rights although they were not brought to the attention of the court

b.  Scope of Rules – FRE 101, 1101

  1. Rules govern in court of US, bankruptcy and magistrate matters (101)
  2. Rules do not apply to: (1101)
  3. preliminary questions of fact under 104
  4. grand jury proceedings
  5. misc. proceedings (extradition, preliminary examinations, sentencing, probation hearings, issuance of warrants for arrests, searches)
  6. Apply to civil actions, criminal cases, contempt proceedings
  7. Privilege always applies – super objection

c.  Course of Trial

  1. Steps:
  2. Jury Selection
  3. Jury Instructions
  4. Opening Statements
  5. Presentation of Proof
  6. Trial Motions
  7. Closing Arguments
  8. Jury Instructions
  9. Jury Deliberations
  10. Verdict
  11. Judgment and Post-Trial Motions
  12. Appellate Review
  13. Consists of two sides, each presenting a case to the jury
  14. Trial begins with jury instructions (standard of proof, charge, what is required) and opening statements (which are not evidence)
  15. Plaintiff goes first, directs witnesses, then Defendant crosses
  16. Rebuttal phase – plaintiff tries to rebut the defendant’s case after the defense has presented
  17. Impeachment – attackes credibility of the witness (5 types)
  18. Stipulations – facts agreed upon
  19. reasons for:
  20. prevent prejudicial evidence from being authenticated in front of the jury
  21. time issues
  22. Mode and Order of Interrogation and Presentation - FRE 611
  23. Control by the court – FRE 611 (a)
  24. Court shall exercise reasonably control over the mode and order of interrogation to:
  25. make the interrogation effective to ascertain the truth
  26. avoid wasting time
  27. protect witnesses from harassmant/embarassment
  28. Scope of cross – FRE 611 (b)
  29. Limited to subject matter of direct (redirect is limited to the scope of the cross, recross is limited to the scope of the redirect) AND
  30. Matters affecting the credibility of the witness
  31. Leading Questions – FRE 611(c)
  32. Should not be used in direct
  33. child witnesses are one exception (Tome)
  34. when a party calls a:
  35. hostile witness, (when your witness changes story)
  36. adverse party, or
  37. witness identified w/an adverse party

the attorney can use leading questions

d.  Motion in Limine

  1. A motion to exclude or include evidence, made prior to start of trial
  2. Different from other pretrial motions b/c other motion don’t deal with evidence
  1. Difference between criminal and civil trials:
  2. Standard of proof:
  3. Criminal: beyond a reasonable doubt
  4. Civil: preponderance of the evidence
  5. How the case begins:
  6. Criminal: grand jury or preliminary hearing
  7. Civil: complaint and answer
  8. Discovery rights:
  9. Criminal: limited/minimal discovery, constitutional requirements
  10. Civil: federal rules of civil procedure govern
  11. Defendant’s Rights:
  12. Criminal: 5th amendment
  13. Civil: NO 5th amendment protection

f.  Preliminary Questions – FRE 104

  1. Concerns:
  2. qualification of a person to be a witness
  3. existence of a privilege
  4. admissibility of evidence
  5. Judges have ultimate power over such questions

g.  Limited Admissibility – limiting instruction under FRE 105

h.  Judge’s Power to Control the Courtroom

  1. Judge has inherent power to control courtroom and ensure that proper order and decorum are present and that justice is done
  2. 103(c) – right to conduct certain preliminary hearings outside the jury’s hearing
  3. 105 – limiting instructions
  4. 614 – judge can calls witnesses (happens very rarely)
  5. 615 – sequestration/exclusion of witnesses
  6. a party has the right to be present and CANNOT be sequestered even though they are a witness too

II.  Relevance

a.  Generally

  1. Definition under FRE 401:
  2. 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
  3. **this is a low standard**
  4. Evidence of flight can be used as evidence of guilt, but does not create a presumption of guilt
  5. Purpose of the offer can relate to impeachment

b.  Admissibility under FRE 402:

  1. Relevant evidence is admissible, irrelevant evidence is inadmissible

c.  Prejudice under FRE 403

  1. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, or misleading the jury
  2. **this is a high standard**
  3. burden is on party wanting to keep evidence out
  4. State v. Chapple (1983)
  5. In a murder trial, state presented jury w/ graphic pictures of victim’s body. Ct. found that they shouldn’t have been admitted b/c the manner of death wasn’t in dispute - it had been stipulated to. Only identification of the shooter was at issue, so the pictures were only offered to inflame the jury.
  6. when applying the 403 balancing test, Ct. should consider the purpose of the offer. If evidence has no tendency to prove or disprove any question actually contested, it is inadmissible.

III.  Authentication, The Best Evidence Rule, Opinion, Judicial Notice and Scientific Evidence

a.  Authentication

  1. Evidence cannot be admitted w/o authentication by a witness (901) or a stipulation
  2. Requirement of authentication or identification as a condition precedent to offerability is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims (901(a))
  3. **this is a very low threshold**
  4. Need a sponsoring witness
  5. Illustrations under 901(b):
  6. testimony of witness with knowledge
  7. nonexpert opinion on handwriting
  8. comparison by trier or expert witness
  9. distinctive characteristics (misspellings, etc.)
  10. voice id by someone who is familiar with it
  11. Subscribing Witness’ Testimony – FRE 903
  12. isn’t necessary unless required by jurisdiction
  13. Self-Authenticating Documents – FRE 902
  14. domestic public documents under seal
  15. domestic public documents not under seal (with certification)
  16. foreign public documents
  17. certified copies of public records
  18. official publications
  19. books, pamphlets issued by public authority
  20. newspapers and periodicals
  21. trade inscriptions indicating ownership, control, or origin
  22. acknowledged documents (certified by notary public, etc.)
  23. commercial paper and related documents
  24. checks
  25. presumptions under acts of congress
  26. certified domestic or foreign records of regularly conducted activity
  27. made at or near the time

vii.  Tangible Objects

  1. just need to establish a prima facie case that item is what you say it is to satisfy authentication rule
  2. opposing attorney can still argue that it isn’t, even if authenticated under 104(c)

3.  US v. Johnson

  1. Ct. upheld authentication of an ax even though the sponsoring witness failed to state specifically that he could distinguish this ax from any other and didn’t identify specific characteristics of it

viii.  Writings

  1. authentication may be based entirely on circumstantial evidence, including appearance, contents, substance and other distinctive characteristics of the writing
  2. US v. Bagaric (1983)
  3. Ct. admitted letter found in D’s home linking D with unidicted co-racketeer where the letter was addressed to D, began with ‘dear vinko’ (which was his name), signed w/ unindicted co-racketeer’s nickname, and referred to D’s friends

ix.  Tape Recordings

  1. party who introduces the tape has to demonstrate that recording is accurate reproduction
  2. in criminal trial, gov’t must show:
  3. competency of operator
  4. fidelity of recording equipment
  5. absence of material deletions, additions or alterations in relevant portions, AND
  6. identification of relevant speakers
  7. tape transcripts are not admitted UNLESS both sides stipulate as to accuracy

4.  US v. Biggins

  1. Ct. admitted both recording and re-recording filtered for noise of activity in D’s house b/c witnesses who heard the conversation as it was being recorded testified to same conversation as was on the tape

x.  Chain of Custody

  1. Ultimate issue is whether the authentication was sufficiently complete so as to convince the court that it is improbable that the original item had been exchanged with another or otherwise tampered with
  2. fact that there is a ‘missing link’ doesn’t prevent admission of evidence, so long as there’s sufficient proof that evidence is what it purports to be and hasn’t been tampered with

3.  US v. Howard-Arias

  1. Ct. allowed evidence in drug possession case where several people who seized and tested drug testified, but one key person did not

b.  Best Evidence – FRE 1001

  1. Generally:
  2. To prove the content of a writing, recording or photograph, the original is required… only applies when you are offering something to prove the content
  3. This rule does not require you to present the best possible evidence in all cases – only applies to writings, recordings or photos
  4. Questions to ask:
  5. What constitutes a writing, recording or photo?
  6. What is an original
  7. What does it mean to offer evidence for the purpose of proving content?
  8. What are the exceptions to the rule?
  9. Writing and Recording – letters, words, or numbers… set down by writing, printing, photographing, etc.
  10. Photographs – still photos, x-rays, video tapes and motion pictures
  11. Original – writing or recording itself or any counterpart designed to have the same effect (ie: duplicate originals, 1 signature on 3 separate contracts).
  12. Original photo includes negatives or prints made with negatives.
  13. If data is stored on a computer the hardcopy is the original
  14. Exceptions:
  15. Under 1003, duplicates are admissible to the same extent as the original UNLESS:
  16. a genuine question is raised as to the authenticity of the original OR
  17. in the circumstances it would be unfair
  18. Under 1004, the original is not required and other evidence is admissible if:
  19. Originals lost or destroyed
  20. originals not obtainable
  21. original in possession of opponent
  22. collateral matters
  23. item doesn’t relate to a controlling issue
  24. Certified copies of public records are fine (1005)
  25. Summaries are allowed (1006)
  26. Testimony or Written Admission (1007)
  27. Contents of writings may be proved by testimony or deposition of party against whom offered or by that party’s written admission, without accounting for non-production of the original
  28. US v. Meyers (1948)
  29. Ct. allowed a witness to testify to events a committee hearing even though a transcript of that meeting existed AND witness said ‘I do not remember exactly’
  30. Chattel
  31. Writing and object have merged together, chattel does not have to be presented
  32. US v. Duffy (1972)
  33. Ct. found that where shirt with “DUF” on it, it’s chattel, not a writing, so it wasn’t wrong for shirt not to be admitted

c.  Opinion

  1. Lay Opinion – FRE 701
  2. Opinion testimony of lay witness is allowed when it is:
  3. Rationally based upon perception of witness
  4. Helpful
  5. Not based on specialized or scientific knowledge
  6. Can try and impeach witness or voir dire witness if you think a proper foundation has not been established
  7. Under FRE 602, a non-expert witness may not testify to a matter unless evidence is introduced to support his personal knowledge

ii.  Expert Opinion

  1. Testimony by Experts – FRE 702
  2. Scientific, technical (ie: inflating tire) or otherwise specialized knowledge (ie: rape trauma syndrome)
  3. Will assist trier of fact
  4. To understand the evidence or determine fact at issue
  5. witness “qualified as an expert” (series of questions laying foundation)
  6. may testify in form of an opinion or otherwise
  7. Expert Testimony may be based on facts:
  8. From firsthand knowledge before hearing
  9. Learned at hearing
  10. Outside data IF of a type reasonably relied upon by experts in the field
  11. This often allows hearsay though the backdoor
  12. A balancing test is used to determine whether jury can hear data – probative value must substantially outweigh prejudicial effect
  13. **different from 403, easier to get evidence in under 403
  14. Experts can testify to an opinion, EXCEPT they are not allowed to testify in a criminal case that the defendant did or did not have the mental capacity to commit an element of the crime they are charged with – FRE 704, Opinion on the Ultimate Issue

d.  Scientific Evidence – Expert Witnesses

  1. Common Law used the Frye standard – expert testimony must be based on generally accepted scientific principles
  2. Modern Standards:
  3. Daubert (for scientific evidence)
  4. Judge is considered the ‘gatekeeper’ and should focus on relevance AND reliability
  5. Guidelines:

i.  Whether theory can be (and has been) tested

  1. Whether theory or technique has been subjected to peer review and publication
  2. Known or potential rate of error
  3. General Acceptance can have a bearing
  4. Ct. said FRE said nothing about Frye and thus, common law wasn’t incorporated

2.  Kumho Tire

  1. Extended Daubert standard to all expert testimony
  2. Major principle is reliability
  3. Soft Science
  4. murky area

a.  Gilstrap

  1. Ct. refused to allow D to have expert testimony that he doesn’t fit pedophile profile. Said matter didn’t involve unique and mysterious areas of human response requiring expert testimony.
  2. Syndromes are treated with caution

b.  Wernick

  1. Need to have Fryehearing before admitting neonaticde expert testimony

c.  Humphrey

  1. CA statute allows evidence on battered women’s sydrome re: claim of self-defense
  2. Policy – expanding syndrome evidence detracts from personal responsibility

e.  Judicial Notice – FRE 201

  1. Court only takes notice of adjudicative facts, not law
  2. Judicially noticed fact is not subject to reasonable dispute b/c:
  3. generally known w/in the territorial jurisdiction of the court OR
  4. capable of accurate and ready determination by resort to sources who accuracy cannot reasonably be questions (201(b))
  5. In civil action, judge tells jury to accept as true any fact judicially notice (201(g))
  6. In criminal case, judge tells jury that they may, but don’t have to, accept as true an fact judicially noticed (201(g))
  7. Court MUST take judicial notice when party asks and has given necessary info (201(d))
  8. Party is entitled to be heard on the matter of taking judicial notice
  9. Can be taken at any stage of proceeding

IV.  Hearsay

a.  What is Hearsay?

  1. An out of court statement, offered into evidence to prove the truth of the matter asserted
  2. Hearsay is inadmissible unless you have an exception b/c there is no cross, no demeanor evidence, & absence of an oath
  3. If statement has hearsay and non-hearsay purposes, can offer it for the non-hearsay purposes and get a limiting instruction under 105
  4. Declarant is one who makes a statement
  5. animals and machines are not considered declarants
  6. statement = oral or written assertion OR nonverbal conduct of a person, if it is intended to be an assertion

b.  Common Law view v. Modern View of Hearsay