Outline – Evidence

  1. Preliminary Questions104
  2. 400’s – Relevance & Prejudice
  3. 401
  4. Scientific Evidence – only admissible if there is a substantial similarity b/w actual and demonstrated event unless to illustrate a general principle; (72)
  5. Flight, escape, etc.: “Evidence of an accused flight may be admitted at trial as indicative of a guilty mind, so long as there is an adequate factual predicate for the inference that the defendant’s movement was indicative of a guilty conscience and not normal travel.” U.S. v. Zanghi, 189 F.3d 71, 83 (1st Cir.1999) (70)
  1. 402 Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible;
  2. An important exception is evidence that is relevant but which the 4th, 5th & 6th Amendments exclude;
  1. 403: Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time
  2. There’s an assumption in favor of admission
  3. Confusion: focuses attention on improper issues
  4. Waste of Time: where evidence put on would merely waste time – esp. true of cumulative evidence – the probative value decreases;
Extrinsic evidence – not at issue in trial; re credibility, from an outside source;
Crime involving truthfulness allows extrinsic evidence (as element of crime);
Rule 612: Refreshing recollection with writings – procedure
p.184(a) Show writing to the witness (w) in the presence of the jury;
(b) If the witness testifies that she now recalls the matter independently of the writing, he may testify to that independent recollection but NOT permitted to testify to the contents of the writing under the guise of refreshed recollection;
(c) if w still can recall matter after refreshing, his testimony is forestalled unless counsel can lay the predicate for admitting the contents of the writing under the past recollection recorded exception to the hearsay rule, Rule 803(5), or some other hearsay exception;
Rebuttal witness: police officer specializing in gangs
(Does this officer qualify as expert?)
Knows both p & a belong to gang and knows that precept is that gang will lie to protect them.
Gang membership relevant to show bias.
Prejudicial>Prob.: gang membership wd. prejudice jury v. .
Assume these objections are overruled. How is the police officer’s testimony relevant on rebuttal? Extrinsic evidence – can’t be related to a collateral matter. Bias is never collateral so it isn’t.

Rehabilitation of w’s

1. Improper impeachment – Rule 608. You cannot bolster a w until that w’s credibility has been attacked.
2. What basis for objection? Hearsay – testifying as to statements made out of court. Why is she offering that statement? To bolster herself, saying she told the truth in the first place. This would rebut the ’s claims that w . Such prior consistent statements are allowable.
Tome: a child told story of sex. abuse to a no. of people to a number of people. The mother’s attorney offered prior statements made to grandma, hc worker, etc., of prior consistent statements but timing was off—these statements had been made subsequent to filing of divorce and hence did NOT rebut ’s claim that these statements were made to bolster mother’s divorce case.
Note: it’s hearsay to repeat your own statements;
Once a w’s truthfulness has been attacked – whether it be on account of bias, etc. – you can call a character witness to testify as to w’s crediblity on any count.
REVIEW OF IMPEACHMENT
  • a specialized form of char ev. that attacks the truthfulness or veracity of the w
  • prior inconsistent statements are a form of self-contradiction
  • Extrinsic impeachment is limited to avoid the time consumption that litigating collateral issues will cause.
  • Bias is any form of corruption, influence, prejudice, interest, etc. that can cause w to favor or disfavor a party or its postion.

Two types of crimes permitted: felonies, or crimes of false statement or dishonesty.

Two types of crimes permitted: felonies & crimes of dishonesty or false statement.

Prior bad act evidence – evidence should only cover those specific instances of conduct that bear on the truthfulness of the w.

Impeachment by omission requires two statements: one preceding and one during trial. Make sure to write out your facts and questions so that you do this neatly or it won’t work. You ask is there anything else? consistently.

LAY TESTIMONY

Note that there are two kinds of opinion: lay & expert.

1. Discern when you have an opinion: did the person have to draw any inferences/conclusions to make this statement?