Evidence Outline Jaxy1

EVIDENCE OUTLINE[JAXY1]

PROCESS OF PROOF

3 step process
1. Preserve the issue on appeal (clear ruling from trial ct. and on record)
2. Persuade appellate court trial ct. made error
3. Convince appellate ct. the error was prejudicial (affected substantial rt.)
Fed rule 103 Making the Record/ Preserving the Issue on Appeal
A. must show a substantive right has been effected which is prejudicial and warrants a reversal (CEC 353)
1. Objection: must be timely made and state the specific grounds
This is when evidence is being admitted and you contest it (basis of the objection is clear)
If it is obvious from the context, such as a previous objection, then the objection is preserved as well on the record
CEC 353nothing in the CEC that says you can fill in by context, but most state courts will allow fed arg. Of context to stand but it is not in the literal law
2. Offer of Proof: explain to the ct what the evid would have been had been had it been admitted (the substance of the evid) (CEC 354)
This is the objection when evidence is being excluded
Couple ways to do this:
1. attorney can say that “the witness would have said x”
2. attorney makes offer of proof and asks the witness to tell their answer if permitted to testify
Not done in front of the jury but can be done thru sidebar, wait until jury is out of the room, or rarely done but can excuse jury on the spot
B. Record of Offer and Ruling: reasons for timely objection and specific ground:
1. process of making the record allows trial ct opportunity to assess ruling
2. app. ct. needs something to refer to, see if error made
C. Hearing of Jury
D. Plain Error: an appellate ct may take notice of errors affecting a substantial right even when not brought to the court’s attention
1. applies to forfeited rights rights lost by failure to timely assert
Does not apply to waived rights intentional relinquishment of rt.
2. error must be plain in that it is clear under the current law
3. must affect a substantial rt.  jury heard and was influenced by this
No similar plain error rule in CEC cannot appeal if not objected to
Motion to strike asking the judge to remove something from the record, if granted the judge will instruct the jury to disregard the answer
Motion must be made as soon as the grounds for objection become clear otherwise the ct will say under 103 (a) (1) that the objection was not timely
Motions in Limine  pretrial motion to resolve issue outside the jury to avoid possibility jury will hear questioned evid before the ct rules on its admissibility
Standards of Judicial Review
Abuse of Discretion- appellate court refers to lower court’s ruling if reasonable
Trial court thought to be in best position to make ruling bc can observe things that do not appear in the record
“may be excluded”
De Novo Review- appellate court reviews the issue from scratch
Appellate court is in just as good a position to judge bc the case by case factors are not required for fixed rules
“shall be excluded”

WITNESS COMPETENCY

Fed Rule 601: General Rule of Competency (CEC 700 same as 601)

Every person is competent to be a witness unless otherwise provided
Sometimes state law will control competency of a witness testifying in fed ct Erie doctrine (only civil)
1. the issue arises in a civil action or proceeding
2. it concerns an element of a claim or defense
3. the claim or defense is one which st. law supplies the substantive rule
CHILDREN: (FRE do not contain restriction on children of certain age)
Many states do declare children under a certain age incompetent unless they can show understanding and duty to tell the truth and to testify accurately
CL: children under age 10 are not competent to testify
INSANE: (FRE do not disqualify an insane person)
May not be used to keep a W off the stand, but can be used to impeach a W
States typically say insane can testify if understand duty to tell truth & can express this
DEAD MAN’S STAT: (no FRE dead man’s stat, just states)
Makes incompetent a W wanting to testify to a convo or other transaction with a person now deceased when the testimony is offered against the estate of the deceased
HYPNOSIS: nothing in Fed rules about this, but if diversity juris must look to state rules
CEC 701: A. Disqualification of a W if: (this is what gets out children and insane)
1. incapable of expressing oneself to be understood
2. incapable of understanding the duty to tell the truth
Different from Fed rule bc 603 says promise to tell truth but here must understand truth

Fed Rule 605:Prohibits presiding judge from testifying at trial (no rule regarding attorneys just ethics)
No objection needed to preserve the point
CEC 703:judge allowed to testify if no objection , if objection made then must declare a mistrial
Fed Rule 606: Competency of Juror as a W
A. At the trial: juror may not testify as a W, attorney must make objection in order to preserve error
B. inquiry into validity of Verdict or indictment: may not testify to what happened during deliberations or what mental processes and emotions played a role in the decision, BUT can testify to:
1. extraneous prejudicial information learn about facts from somewhere else, radio, tv, etc
If the juror enters the trial with info can use, but just cant acquire after trial starts
Jury selection is how to deal with this
2. improper outside influence external pressures like threats or bribes
3. mechanical error in writing verdict on form very rare
Tanner v. US several jurors drinking and doing drugs, not considered outside influence under 606.b
Safeguards to protect 6th A right to an unimpaired jury voir dire questioning, jury is observable by ct, judge, attorneys, jurors could have reported behav., party can seek to impeach the verdict after the trial if there is evid of misconduct they did not raise an objection even tho ample time
CEC 704: juror can testify if no objection, if objection made must declare a mistrial
CEC 1150: in fed rule nothing in the jury room or inside the jury mind or body can be testified to, BUT here a statement, conduct or condition CAN be testified to, but not the effect it had on the verdict
Fed Rule 603: Oath or Affirmation (may be punished by perjury for violating this) not discretionary
Every W must declare that they will testify truthfully (if this ceremony not done, W is ineligible)
By oath or affirmation (Oath invokes God and A is simply just a promise to tell the truth)
Perjury only punishable if oath or affirmation done, just lying in ct not a crime
Administered in a form to awaken the W’s conscience and impress the W’s mind with the duty to do so
CEC 710: kids <10, dependent w/ cognitive impairment may just promise to tell the truth, ct. discretion
Fed Rule 610: cannot use religious beliefs to attack credibility first A concerns
Competent to Testify Test: 1) are they alive? 2) are they a judge/juror? 3) have they taken oath or affirm?

Hypnosis(can never be hyp DURING trial, this only pertains to refreshing memory of W)

3 problems with hypnosis: (rule in all juris is that hypnosis cannot be used to prove truth of a matter, unreliable)
1.Suggestion: want to please hypnotist by giving helpful answers
2. confabulation: unconsciously make up facts and post hyp cannot separate from true recollections
3. overconfidence: highly confident and difficult to shake on the W stand
Five approaches to W competency once undergoing Hypnosis:
1. Per Se Competent: W considered competent bc jury can evaluate credibility
2. Per Se Incompetent: incompetent to testify to any matter discussed under hypnosis
Jury cannot accurately weigh the credibility of W and undermines effectiveness of x-exam
3. Modified Per Se Incompetent: W is incompetent except to matters recalled prior to hypnosis
Testimony less likely to be the result of suggestion or confabulation if recalled prior
4. Safeguards: competent to testify if procedural safeguards taken, middle of the road position
Licensed professional familiar with hypnosis conducted the session
Session conducted by neutral third party and recorded
Before hypnosis detailed record created of W’s then existing recollection
Only hypnotist and W present during the session
5. Totality of the Circumstance (Balancing Test): risk of unreliable testimony vs. value of testimony
Considers factors like:
Presence of procedural safeguards
Presence of suggestive statements or cues during hypnosis
Presence of corroborating evid
Consistency of post and pre hypnosis testimony
Rock v. Arkansas anytime there is a conflict btw evid rules and C rules, C always wins!
any categorical denial testimony without regard to reliability is not C, must be decided case by case
CEC 795:Testimony of hypnosis subject, admissibility, conditions
Criminal: testimony inadmissible UNLESS: (enacted 2 years after Shirley but only 4 criminal cases)
1. testimony limited to matters recalled before hypnosis
2. substance of pre-hyp preserved in writing, audiotape, or videotape
3. Hypnosis conducted in accordance with ALL OF THE FOLLOWING:
A. written record made prior to hypnosis
B. subject gave informed consent
C. hypnosis, and pre and post session all recorded
D. performed by license professional no in presence of prosecution, defense, or police
4. prior to admission court holds a hearing showing by clear and convincing evid that hyp did not make W’s pre hyp recollection unreliable or substantially impair ability to x-exam W
Civil: a W who has undergone hypnosis is NOT competent to testify
People v. Shirley CA court says W refreshed by hyp is incompetent to testify
Did not foreclose hyp for investigative purposes but “chilling” effect bc cannot testify to post hyp information

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Fed rule 602: Personal Knowledge must perceive with at least one or more of her senses (CEC 702)
FP= FT (facts perceived = facts which the W will testify), if not same testimony is rejected
Standard: sufficient to support a finding (CEC 403) just if a R juror would believe the W is able to (if 50/50 then it will be admissible)
comprehend, remember, and communicate what was perceived
Timing: Must have personal knowledge at the time testifying and before when event occurred
Can use process of refreshing the recollection of the witness read notes, see if recall
Rule 602 will not apply when the person is not a W, but an exhibit like cant communicate
Any time there is an eyewitness personal knowledge is always an issue perception flawed?
Exception: Rule 703: sometimes permits expert W to testify based on facts not perceived w/ own senses

AUTHENTICATION (refers to the process of proving that an item of evid is what its proponents claim it to be)

Tangible Evidence 2 types: (governed by authentication and best evidence rule)
1.real evidenceitem involved directly in the very events at issue (murder weapon, clothes at the scene)
2. demonstrative evidencemerely illustrates testimony (diagram, photo of scene, weapon like used)
Fed Rule 901 (a) General Provision: proponent carries burden showing 3 basic principles: (CEC 1400)
1. authentication is a condition precedent to admissibility
2. must show the matter in question is what its proponents claim
3. showing must be sufficient to support a finding (low threshold, same as rule 602)
United v. Jackson crazy law student sending hate mail to UPS, evid not authen so inadmissible
Fed Rule 901 (b) Illustrations not an exclusive list to show ways evid can be authenticated (CEC 1410)
1. testimony of a W w/ personal knowledge most common
2. nonexpert opinion on handwriting, based on familiarity
3. comparison by trier of fact or expert W of specimens which have been authenticated
4. distinctive characteristics appearance, contents, substance, patterns analyzed in context
5. Identification of a voice based on opinion of hearing it sometime before connected w/ speaker
6. telephone conversations evid call made to registered number assigned to person or business
7. evid that a public record or report is from the public office where items of that nature are kept
8. doc. or data compilation no suspicion re authen, kept in place likely be, existence of over 20 yrs.
9. describing process/system used to produce result and show results are accurate
10. methods authorized by congress
United States v. Simpson porn chat room case, even if evid doesn’t fit into specific illustrations can still be admitted since this is a flexible rule to deal with evid that comes in new form (technology)
CA and Fed Rules under CEC all provisions relate to authentications concerning writings but 901 is defined more broadly applying to all “matters in question” including phone convos, voice ID, etc. BUT even tho CEC refers to writing explicitly it is applied equally to all forms of tangible evid (no diff in practice!)
Authenticating Photographs knowledge required depends on what the proponent is claiming photo to be
Photo is tangible evidence but can be:
1. real evidence depicts the act/crime itself, only person who took can authenticate this!
“is this a photo of the intersection?” (only photographer can testify to this)
2. demonstrativehelps jury understand what W is saying, indirect depiction of act/scene
“does this photo fairly and accurately depict what the intersection looked like at the time?”
Chain of Custody
1. used to show authen generic items thru a string of testimony (vial of blood, drugs) OR
2. used even when items unique to show that have not been tampered (vial of blood marked unique)
1. Continuously shown to be in safekeeping
2. of one or more specific persons
3. beginning with the event that connects the evid to the case
4. and continuing until the evidence is brought to court (may be small gaps but might cast doubt on authen)

Self-Authentication

Fed rule 902 extrinsic evid of authen is not required w/ respect to the following exclusive list
1. domestic public docs under seal 2. domestic public docs a) not under seal, b) bearing signature of an official c) certifies under seal signature genuine and w/in official capacity 3. foreign public doc 4. certified copies of public records ( CEC 1530) 5. official publications 6. newspapers/periodicals 7. trade inscriptions, signs, tags, labels (NO CEC rule like this!) 8. docs accompanied by a certificate of acknowledgement lawfully executed by a notary public or other authorized person 9. commercial paper 10. act of congress 11. certified domestic records of regularly conducted activity 12. certified foreign records of regularly conducted activity
Fed Rule 803.6Business records exception (admissible over HS objection) Not in CEC

BEST EVIDENCE RULE (Original Writings Rule) Tangible Evidence Continued…

Fed Rule 1002 Requirement of an Original to prove the content of a writing, recording, or photographthe original of the writing, recording, or photo is required
Safeguards against unreliability, often used when admitting docs that affect legal rights (K, wills, etc)
CEC 1520: the content of a writing MAY be proved by an otherwise admissible original[JAXY2] Fed requires!
Fed Rule 1001 Definitions
1. Writings & Recordings letters, words, numbers, equivalent set down by handwriting, typewriting, printing, Photostatting, photographic, mechanical/electronical recording or form of data compilation
2. Photographs still photographs, x-ray films, videotapes, motion pictures
If Dr. just giving opinion based on x-ray no best evid problem unless says what’s on x-ray!
3. Original  writing/recording itself or any counterpart intending to have the same effect by a person executing or issuing it (negative of a photo, print out of data stored in computer shown to be accurate[JAXY3])
CEC 255 Original same as fed but says any print out is an original
4. Duplicate counterpart produced by the same impression as the original, from the same matrix, by means of photo (enlarge or mini), mechanical/electronic re-recording, chemical reproduction, or other technique which accurately reproduces the original (photocopy or carbon copy)
Exam Tip Photocopy is a duplicate mostly but hand writing is NOT a duplicate but secondary evidence instead!
Just bc photocopy does not determine if original or not think K counterpart ex. all intended to be original
If witness testifying to what heard at first trial not best evid prob bc have personal knowledge of hearing, but if not there and refer to transcript then best evid. Prob

Exceptions to Best Evidence Rule

Fed Rule 1003 Admissibility of Duplicates admissible to same extent as original unless:
1. genuine question is raised as to the authenticity of the original; OR
2. it would be unfair, under the circumstances, to admit the duplicate in lieu of the original
CEC 1521 can use secondary evid unless:
1) genuine dispute to material terms; Or
2) admission of secondary evid would be unfair[JAXY4]
Fed Rule 1004 Admissibility of Other Evidence Contentsoriginal not req. to prove content of W/R/ Ph. If:
1. all originals lost or destroyed unless proponent destroyed in bad faith
2. no original can be obtained by any available judicial process or procedure
3. opponent is in possession of original & does not produce at hearing despite notice
4. involves a collateral matter (not closely related to a controlling issue)
Fed Rule 1006 Summaries contents of large W/R/Ph. May be presented in the form of a chart, summary, or calculation and the originals or duplicates shall be made available to other party in R time and place
Exam Tipto admit a W/R/Ph. Need to satisfy best evid. rule requiring original, if not then look to exceptions which will try to admit secondary evidencesecondary evid is admissible to prove contents of a writing only if original produced or best ev satsified

JUDICIAL NOTICE OF ADJUDICATIVE FACTS

Judicial Notice allows facts to be established w/o proof of facts thru normal evidentiary process
court may take judicial notice of an adjudicative fact whether requested or not, as long as 201 met
Fed Rule 201a Scope can only take judicial notice of adjudicative facts and not legislative facts
Adjudicative facts facts that the jury would normally determine during jury deliberations at the end of the case, pertaining to facts that arise about the particular event in question explaining the who, what, when, where, how, and with what motive and intent
Ultimate facts facts necessary to the success of a charge, adjudicative facts are the facts along the chain leading to the finding of the ultimate facts (this is a distinction)
Legislative factsfacts that provide the social, political, and public policy foundations for legal rules which have relevance to legal reasoning and the lawmaking process (ex. parent-child privilege to increase comm)
Fed Rule 201b facts must not be subject to reasonable dispute (CEC 453)
1. Must be generally known [JAXY5]within the trial court’s jurisdiction; OR (CEC 451f)
9-11 attack and no shipments going out, must be known to EVERYONE, not just to judge
2. capable of accurate and ready determination by resort to sources whose accuracy cannot be R questioned (calendar)
Fed Rule 201c court may take judicial notice whether requested or not (discretionary power)
Fed Rule 201d court MUST take judicial notice if requested and supplied w/ necessary info
Fed Rule 201e opponent must be given an opportunity to contest the propriety of taking JN (can occur after JN too)
Fed Rule 201f Timing Judicial notice may be taken at any stage of the proceeding (even on appeal)
Fed Rule 201gCivil Cases (mandatory) the ct must instruct the jury to accept as conclusive any facts JN
Fed Rule 201h Criminal Cases (discretionary) jury may but is not required to accept as conclusive JN facts
6th A right to jury trial mandates that cts must allow the jury to determine facts in crim. Cases
Rae v. Statecrim trial and ct instructed jury must take JN of license being revoked, unC
NO SUCH DISTINCTION BTW CRIMINAL- CIVIL CASES IN CEC! (possible C problem)
CEC §451 JN MUST be taken, whether requested or not, if under one of the categories (DIFF than FED)
451 (f) facts & propositions of generalized knowledge that are so universally known and not R disputed
CEC §453 MUST take JN upon requests if
A. gives each adverse party sufficient notice on request
B. furnishes the ct. with sufficient information
CEC §452 have to take JN only if requested under §453 (party requests it)
Rationales for Judicial Notice prevents parties from offering testimony that distorts the facts, efficiency, appeal saver (judicial notice can be taken on appeal if party forgets to prove a pertinent fact that is not difficult to prove)
Exam Tip usually adjudicative facts must be the subject of formal proof, whether by witness testimony, real evid, doc. Evid, or some combination thereof. If the requirements of Rule 201 are satisfied, a party can dispense with these formal methods of proof and the fact will be judicially noticed.
Technology like an x-ray or a breathalyzer test are generally known to be valid so can be JN BUT will still need evid that THIS breathalyzer was working authen. Problem
Also, JN is very limited, calendar will be considered not questionable but not a textbook

CHAPTER TWO: RELEVANCE (first hurdle to admit evid)