Evidence Outline Professor Pierce

Evidence Outline Professor Pierce

Evidence Outline – Professor Pierce

Fall 2012

Table of Contents

I.Examination and Impeachment

A.Rulings on Evidence

B.Competency Rules

1.General Rule

2.Personal Knowledge Requirement

3.Children

4.Dead Man’s Statutes

5.Opinion Testimony of Lay Witnesses

6.Summary and Analysis

C.Examination

1.Direct Examination

2.Cross-Examination

D.Impeachment

1.Conviction of Crimes

2.Prior Bad Acts

3.Character for Truthfulness

4.Poor Perception or Memory

5.Contradiction

6.Prior Inconsistent Statements

II.Relevance

A.General Requirement

B.Preliminary Questions

C.Limited Admissibility

D.Conditional Relevance

E.Recurring Situations

F.Exclusions of Relevant Material

1.Unfair Prejudice

2.Insurance

3.Subsequent Remedial Measures

4.Compromises and Offers to Compromise

5.Payments of Medical Expenses

6.Nolo Contendere and Withdrawn Guilty Pleas

7.Character Evidence

i.The Propensity Inference

ii.Non-Propensity Uses of Character Evidence

iii.Form of Proof Related to Character

iv.Special Rules for Sexual Assaults.

8.Constitutional Restrictions on Exclusion of Defense Evidence

G.Summary and Analysis

III.Hearsay

A.Definition of Hearsay

B.Exceptions to the Hearsay Rule

1.Definitional Exceptions

2.Admissible Without Regard to the Declarant’s Availability (Rule 803)

3.Admissible if the Declarant is Unavailable (Rule 804)

4.Residual Exception (Rule 807)

5.The Confrontation Clause

C.Summary and Analysis

IV.Privileges

A.Attorney-Client Privilege

1.Definition of “Communication”

2.Existence of the Attorney-Client Relationship

3.Required Confidentiality

4.Purpose of the Communications

5.Allowable Privilege Claimants

6.Waiver

7.Issues Unique to Lawyer-Client Communications

8.Work Product Doctrine

9.Summary and Analysis

B.Spousal Privileges

1.Spousal Communications

2.Spousal Testimony at Trial

C.Physician-Patient Privilege

D.Therapist-Patient Privilege

E.Government Privileges

V.Expert Testimony

A.Topics for Expert Testimony

B.Qualifications as an Expert

C.Reliability

D.Sufficient Facts or Data

E.Style of Testimony and Opinion on the Ultimate Issue

F.Opinion Testimony of Lay Witnesses

VI.Authentication and the Original Writing Rule

A.Authentication

1.Witness With Knowledge

2.Handwriting

3.Distinctive Characteristics

4.Voices and Telephone Conversations

5.Public Records

6.Ancient Documents

7.Process or System

8.Self-Authentication

B.The Original Writing Rule

1.Definition of “Original”

2.Definition and Use of “Duplicates”

3.Excuses for Non-Production of Original or Duplicate

VII.Appendices

A.Appendix A – Claim of Error Flow Chart

B.Appendix B

I.Examination and Impeachment

A.Rulings on Evidence

- Rulings on evidence are interlocutory and cannot be appealed until after the trial is over.

- The process for properly preserving a claim of error is governed by Rule 103.

- A party can appeal an error to admit or exclude evidence only if:

  • The error affects a substantial right of the party, and
  • If the ruling admits evidence, a party, on the record:
  • Timely objects or moves to strike, and
  • States the specific ground, unless it was apparent from the context.
  • If the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

- See Appendix A, infra, for a flowchart of the analysis.

B.Competency Rules

1.General Rule

- Rule 601: Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision.

- Rule 605: The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

- Rule 606: A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.

  • During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury’s deliberations; the effect of anything on that juror’s or another juror’s vote; or any juror’s mental processes concerning the verdict or indictment. The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
  • A juror may testify about whether:
  • Extraneous prejudicial information was improperly brought to the jury’s attention;
  • An outside influence was improperly brought to bear on any juror; or
  • A mistake was made in entering the verdict on the verdict form.

- Rule 603: Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience.

  • Note: Rule 610 forbids the use of a witness’s religious beliefs or opinions for the purpose of impeachment.

- For witnesses whose competency is not treated specifically in the rules, the trial judge can apply Rules 401, 402 and 403 to control whether or not they will be able to testify.

2.Personal Knowledge Requirement

- Rule 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter.

  • Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony.
  • This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses.

- Note that this presents a type of conditional relevance – evidence is only relevant if the witness testifying has personal knowledge of the testimony.

- To satisfy the personal knowledge requirement, the proponent of the witness must introduce evidence that provides a basis on which a trier of fact could reasonably conclude that the witness has personal knowledge of the subject matter of his testimony.

3.Children

- The Rules do not include any express provision regarding the age of the witness.

- At common law, testimony by children was closely controlled and was barred if the judge thought the child did not understand the concept of truthfulness.

- Instead, courts can evaluate the testimony under Rule 403 and can exclude it if it seems that the probative value of the testimony will be very weak because of the child’s inability to tell truth from falsehood.

- The child’s testimony could also be excluded on the grounds that the child cannot take the oath or that the child doesn’t have personal knowledge.

4.Dead Man’s Statutes

- A dead man’s statute prevents witnesses from testifying about transactions with a person involved in the litigated claim if the person has died prior to the trial.

- There is no such rule in the Federal Rules, but many states still have them.

- Most courts seek to construe the statutes narrowly to favor the admission of testimony.

- Depending on the statute, a party may be prohibited only from testifying about his or her own statements to a decedent or may be prohibited from giving any testimony at all concerning the transaction.

- Other states have statutes that allow the witness to testify about his own statements to a decedent, but simultaneously eliminates any possible hearsay objection that might otherwise have prevented the quotation of the decedent’s words.

5.Opinion Testimony of Lay Witnesses

- Rule 701: If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:

  • Rationally based on the witness’s perception;
  • Helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
  • Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.

6.Summary and Analysis

- Everyone is presumed competent to testify. (Rule 601)

- Does he have personal knowledge? (Rule 602)

- Can the witness take the oath or affirmation? (Rule 603)

- Other issues:

  • Is the witness a child?
  • Is this a state in which there is a dead man’s statute?
  • Is the witness a judge? (Rule 605)
  • Is the witness a juror? (Rule 606)

C.Examination

- Rule 611(a): The trial judge controls the mode and order of presentation of each party’s case.

- The judge can also question witnesses.

  • Judges are supposed to use this right sparingly.
  • While appellate courts are highly deferential to trial courts on an issue like the timing and extent of judicial questioning of witnesses, occasional remands for new trial are ordered where judicial questioning is excessive.
  • The judge’s motive for questioning should always be to increase the clarity of the testimony rather than to influence the result in the case.

1.Direct Examination

- Direct examination: when a party asks its own witness questions.

- Rule 611(c): On direct examination, a party cannot use leading questions unless the party calls as a witness:

  • A hostile witness,
  • An adverse party, or
  • A witness identified with an adverse party.

- A leading question is a question that suggests its answer:

  • Leading: Is it true that you locked the door when you left the house?
  • Not leading: What did you do when you left the house?

- However, judges tend to permit leading questions on direct when they involve topics that are no controversial or are really only preliminary to the main points of a witness’s testimony (i.e. the credentials of an expert).

2.Cross-Examination

- After the party is done with direct examination, the opposing party may question the witness on cross-examination.

- Rule 611(b): Cross-examination may not go outside of the scope of direct examination and matters affecting the witness’s credibility. However, the court may allow inquiry into additional matters as if on direct examination.

- Rule 611(c): Leading questions are permitted on cross-examination.

- Additionally, a cross-examiner is permitted to ask questions more than once and to repeat questions to get at a single issue more than one way, as long as he does not cause harassment or undue embarrassment.

D.Impeachment

- Rule 607: Any party may impeach any witness.

- Impeachment evidence is sometimes evidence that is needed for impeachment but would be inadmissible otherwise. In this case, a limiting instruction is proper.

- Some courts have prohibited a party from impeaching its own witness when it seems that the party has used the witness only as part of a plan to impeach that witness with material that would be inadmissible for other purposes.

- Timing:

  • Convictions can be used at any time for impeachment purposes if they satisfy the requirements of Rule 609.
  • Character evidence that satisfies the requirements of Rule 608:
  • Can be used at any time if it attacks the witness’s credibility.
  • Can only be sued after a witness’s credibility has been attacked if it supports credibility.
  • Unless the defendant is testifying about his own truthfulness if truthfulness is a trait pertinent to the charged crime.
  • Past acts may be inquired about only on cross-examination.

1.Conviction of Crimes

- Rule 608(a): A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked.

- Rule 608(b): Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness.

  • But the court may, on cross-examination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of:
  • The witness, or
  • Another witness whose character the witness being cross-examined has testified about.

- Rule 609: Rules for attacking a witness’s character for truthfulness by evidence of a criminal conviction:

  • The following evidence must be admitted (subject to the ten-year limitation):
  • Evidence of a criminal conviction for a crime that was punishable by death or by imprisonment for more than one year in the convicting jurisdiction.
  • Subject to the Rule 403 balancing test (the probative value of the evidence must not be substantially outweighed by its prejudicial effect) in a civil case or in a criminal case in which the witness is not a defendant.
  • Subject to an “opposite Rule 403 balancing test” (the probative value of the evidence must outweigh its prejudicial effect) in a criminal case in which the witness is a defendant.
  • Evidence of a criminal conviction for any crime regardless of the punishment if the court can readily determine that establishing the elements of the crime required proving — or the witness’s admitting — a dishonest act or false statement.
  • The following evidence may be admitted:
  • Evidence of a criminal conviction if more than 10 years have passed since the witness’s conviction or release from confinement for it, whichever is later. This evidence is admissible only if:
  • Its probative value substantially outweighs its prejudicial effect (opposite Rule 403 balancing test), and
  • The proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.
  • Evidence of a juvenile adjudication is admissible only if all of the following are satisfied:
  • It is offered in a criminal case,
  • The adjudication was of a witness other than the defendant,
  • An adult’s conviction for that offense would be admissible to attack the adult’s credibility, and
  • Admitting the evidence is necessary to fairly determine guilt or innocence.
  • Note: A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible.
  • The following evidence may not be admitted:
  • Evidence of a conviction if the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year.
  • Evidence of a conviction if the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence.

- Summary:

  • Evidence that any witness was convicted of a crime of dishonesty or false statement is usually admissible to impeach that witness’s credibility.
  • Examples: perjury, embezzlement, fraud
  • The ultimate criminal act must involve deceit.
  • The only time admission of this evidence is not automatic is when a ten-year period has elapsed since the date or conviction or the witness’s release from confinement related to the conviction (whichever is later). In that circumstance, the evidence is subject to a balancing test under Rule 609(b).
  • Evidence that a witness was convicted of a crime that was punishable by death or imprisonment of more than one year:
  • If the witness is a criminal defendant, the evidence is admissible only if the probative value of the evidence outweighs its prejudicial effect (near opposite of the Rule 403 balancing test; tilts in favor of exclusion).
  • If the witness is not a criminal defendant, the evidence is admissible if the probative value of the evidence is not substantially outweighed by its prejudicial effect (Rule 403 balancing test; tilts in favor of admission).
  • The same ten-year limitation applies to these cases: when a ten-year period has elapsed since the date or conviction or the witness’s release from confinement related to the conviction (whichever is later), The evidence is subject to a balancing test under Rule 609(b).
  • Lastly, where a conviction has been the subject of a pardon or was the result of a juvenile adjudication, the Rules restrict introduction of evidence about it.

2.Prior Bad Acts

- Because proving that a person committed any particular act in the past is so much more difficult than proving that he was convicted of a crime, extrinsic evidence of prior bad acts is not permitted when their only relevance is to impeach a witness’s credibility (Rule 608(b)).

- A witness may be questioned about past acts that did not lead to a conviction if they are relevant to the witness’s character for truthfulness, but proof other than this testimony is prohibited.

- There are three controls on the use of this information:

  • The questioner must have a good faith belief that the event actually occurred or else may not ask questions about it,
  • The questions must be asked during cross-examination, not on direct examination.
  • The questioner may not introduce other proof about the alleged past act by testimony from other witnesses or by any other method.

3.Character for Truthfulness

- When a person testifies, evidence may be introduced about his character traits related to truthfulness.

- A party seeking to impeach the credibility of a witness may introduce evidence showing that the witness is the type of person who is likely to lie.

- An impeaching witness is allowed to provide the fact finder with negative information about the testifying witness’s untruthful nature in two ways:

  • By describing the testifying witness’s reputation for truthfulness.
  • By giving an opinion about the testifying witness’s typical truthfulness.

- After a witness’s character for truthfulness has been attacked with evidence in the form of reputation of opinion evidence, it can be rehabilitated.

  • Rehabilitating witnesses are limited to reporting the reputation of the testifying witness or to stating their own opinions about the testifying witness’s character for telling the truth.
  • No witness is allowed to give reputation or opinion evidence showing that another witness has probably testified truthfully unless the testifying witness’s character for truthfulness has been attacked.
  • Exception: A defendant may comment on his own truthfulness if truthfulness is a trait pertinent to the charged crime regardless if his character has been attacked.

- A cross-examiner is entitled to ask questions that will show possible sources of bias. Other types of evidence of bias may also be introduced.

- Rule 610 prohibits using a witness’s religious beliefs or opinions to attack his credibility.

4.Poor Perception or Memory

- Cross-examiners are permitted to ask witnesses questions about how well they can see or hear and about the circumstances in which they observed or heard things that are the subjects of their testimony.

- Independent evidence on these topics is also admissible.

5.Contradiction

- If some of a witness’s testimony is factually incorrect, proof that those portions were wrong could support a conclusion that the other parts of the testimony were also false.

- Regardless of whether the falsehoods are intentional or accidental, the fact that the witness claimed to believe things that are actually false could decrease a juror’s belief in the credibility of the witness.

- However, a party may not introduce extrinsic proof that particular details of a witness’s testimony are false unless those details involve a topic that could be subject to proof even if the witness had not referred to them.

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