EVIDENCE

EXAM OUTLINE

Professor Tanford, Fall 2002

I.GENERALLY

  • Rules are found in Federal Rules of Evidence (FRE), statutes, common law, and local custom.
  • All evidence is admissible if no one objects to it.
  • FRE 102 – purpose of rules: “fairness in administration, elimination of unjustifiable expense and delay”, end—“that the truth may be ascertained and proceedings justly determined”

A.DISCRETION

  • The judge ultimately controls the admissibility of evidence and does so at her broad discretion. She makes decisions according to what has been proven in court (not by what is “true”), except you don’t have to prove the obvious.
  • Presumption for admissibility: when in doubt, evidence is admissible.
  • “Sustain” = in favor of the objection/excludes the evidence
  • “Overrule” = against the objection/include the evidence
  • FRE 611(a) – court exercises “reasonable control” over questioning so as to make it “effective for the ascertainment of the truth, avoid needless consumption of time, and protect witnesses from harassment or undue embarrassment.”
  • Cross-examination should be limited to the subject matter of direct or impeachment of credibility – FRE 611(b). But the judge has discretion to allow more.

B.MAKING OBJECTIONS

  • The person making the objection has the burden of persuasion (this is like a mini-motion).
  • Objections must be timely; they must be made at the earliest opportunity (as soon as the grounds become apparent and there is enough information on the record for the judge to determine if the rule applies and if foundation is laid). – FRE 103(a)
  • Objections must be specific: topic (foundation, competency, personal knowledge, relevancy, opinion rule, hearsay), specific rule (number or name), text of the rule, point to record – 3-4 sentences at most.
  • Specifically what item of evidence you object to
  • What rule (name or number or both + text)
  • Why?
  • If the jury has already heard the evidence, you must also make a motion to strike. Specify what you want striken and why (instruct to disregard).
  • Response (optional): must also be specific (rule and text, etc.). Need not argue for the whole thing; keep what you really need.
  • Offer of proof – if evidence is excluded, show for the record in some way the substance of the proposed evidence (specific description). Must be sufficient indication on the record that the court was informed of what was intended (formal offer not required; just enough to show court was informed). – FRE 103(a)
  • Remove jury from the courtroom and question witness as if jury was present OR
  • Submit an oral or written summary of the excluded evidence outside the hearing of the jury. OR
  • Written, signed statement by the witness regarding to what the witness would have testified.
  • May object in limine (before trial or before a witness is called). Judge need not rule on the objection right away but puts court on notice that there is a potential problem.

II.COMPETENCY—whether a witness is legally qualified to testify (NOT mental competency)

  • Everyone is competent to be a witness (FRE 601). It is the jury’s job to determine credibility.
  • EXCEPT presiding judges (and their staff) and sitting jurors – FRE 605-06. Also, according to state law or other rules, attorney representing a party (witness advocate rule) and Dead Man’s Statute (cannot testify as to communications with the dead regarding financing obligations, will, trust, etc.) may come into play.
  • Oath—every witness must take an oath or affirm to tell the truth (no specific form is required) – in a manner “calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so.” Must demonstrate appreciation of the duty to tell the truth (FRE 603)
  • Young children and severely retarded adults are competent if they demonstrate that they understand the difference between telling the truth and a lie, understand the obligation to tell the truth, and have intellectual capacity to observe, recall, and narrate.
  • Must have perceived something important to the case, be able to recollect it, and able to communicate it. No mental or moral qualifications.

III.PERSONAL KNOWLEDGE

A.PERSONAL KNOWLEDGE—A factual event that was perceived through

any of the five senses

  • A person may not testify to matters about which they have no personal knowledge (FRE 602)
  • Must lay foundation: direct testimony from the witness that s/he was present and perceived what happened or circumstantial evidence based on the witness’s overall testimony that it is obvious the witness has personal knowledge. Also, memory and ability to communicate. Any slight opportunity to observe is sufficient.
  • Witnesses are presumed to have personal knowledge of their own thoughts and acts – no foundation is required.
  • Once you have established personal knowledge of the event, the witness may testify about the specific details without further foundation for each.
  • Cannot know what someone else is thinking; there is never personal knowledge of someone else’s mental process.

B.MEMORY

  • FRE 612—Writing used to refresh memory. Opposing party may be entitled to examine the writing and use it to cross-examine (may be redacted to exclude anything not related to the testimony).
  • Can use anything to refresh memory (subject to the discretion of the judge).
  • FRE 803(5)—recorded recollection is not excluded by the hearsay rule. Must have been made “when the matter was fresh in the witness’s memory and…[must] reflect that knowledge correctly.”
  • Hypnosis – Borawich v. Shay, 2d Cir. 1995: totality of the circumstances test. Factors – for recollection or therapy, subject to suggestion, record of session, qualified hypnotist, corroborating evidence, highly hypnotizable witness, expert testimony as to procedures.

IV.RELEVANCY

A.RELEVANCY

  • FRE 401—any tendency to make any fact in dispute more or less probable than without the evidence. Need not be conclusive in and of itself (“brick on a wall”). Evidence is relevant if it is
  • Material (question of law)—does it help prove a contested legal issue (as defined by the pleadings, case law, or as opened by previous testimony)? – properly in dispute
  • Has probative value (question of common sense)—does it logically help prove or disprove an issue? – sheds some light on those issues.
  • FRE 402—relevant evidence is generally admissible and irrelevant evidence is generally inadmissible.
  • All evidence usually has some minimum probative value so objections should be made on FRE 403 grounds.
  • Trial judge has especially broad discretion in this area.
  • Evidence that is relevant for one purpose or one party but not another is admissible but the judge may instruct the jury to restrict its use of the evidence (FRE 105). BUT if the evidence has low probative value and the jury is likely to use it for impermissible purposes (prejudice) then a FRE 403 “confusion of the issues” problem may exist.
  • If relevancy depends upon some connecting fact, the judge has the discretion to require the connecting fact to be proven first or admit it on the condition that “connecting up” occurs at some point (FRE 104(b)). Must be made in good faith that the condition exists.

B.PREJUDICIAL EFFECT

  • Unfair prejudice—arousing jurors’ emotions, biases, or prejudice not already inherently involved in the case so that they are likely to use the evidence for an improper purpose. Sex, drugs, religion. (90% of prejudice objections are here).
  • Confusion of the issues—confusing or misleading the jury about facts or law
  • Waste of time or needless presentation of cumulative evidence

C.THE FRE 403 BALANCING TEST

  • Unimportant relevant evidence (low probative value) may be excluded if its probative value is substantially outweighed by prejudicial effect. Prejudicial effect must be demonstrably greater probative value.
  • If it is important, the evidence will be admitted regardless of prejudice.
  • When making an objection argue both
  • Low probative value because the evidence tends to prove an issue of little importance or is of little help proving an issue AND
  • Substantial prejudicial effect for one of the three reasons above.
  • When responding to a relevancy objection argue both
  • Substantial probative value because the evidence tends to prove one of the central issues in the case and/or is important to proving an issue AND
  • The evidence will cause little or none of the prejudicial effects mentioned above.

D.SPECIFIC RELEVANCY OBJECTIONS

  • Specific relevancy rule (FRE 407-11) trump the general relevancy test of FRE 403.
  • These rules exclude evidence when offered to prove liability. If the evidence is offered for some reason other than to prove liability, the rule of exclusion does not apply (not the same as being admissible, still has to run the gauntlet including the FRE 403 balancing test—prejudice is usually whether the jury will use it for the improper purpose of proving liability).
  • FRE 407—evidence of subsequent remedial measures. Conduct by defendant in tort that, after an accident, it took measures (repairs, replacements, upgrades) designed to reduce the possibility that a similar accident will occur in the future.
  • EXCEPTIONS—to prove ownership or control OR to prove the feasibility of safety measures.
  • FRE 408—evidence of offers to compromise in civil cases. Offers to settle a dispute, completed settlements, and statements made during negotiations. A lawsuit need not be pending, but the controversy must be genuine and “disputed as to either validity or amount.”
  • EXCEPTION—To show the bias of a witness who agreed to testify as part of a settlement.
  • FRE 409—evidence that a third party (or its insurance company) offered to pay plaintiff’s medical and related costs
  • FRE 410—evidence of offers to compromise in criminal cases. Covers plea bargains, offers to plead guilty, and statements made during bargaining. Formal charges must have been brought against the defendant and the discussion must have been between the defense and the prosecutor (not the police).
  • EXCEPTION—to show the bias of a witness who agreed to testify as part of a plea agreement.
  • FRE 411—evidence that a party carried liability insurance.
  • EXCEPTIONS—To prove agency (i.e. A’s insurance covers X proving that X is an agent of A), ownership or control, bias of a witness (that the witness is employed by the insurance company).

V.CHARACTER EVIDENCE

  • Character = a tendency to usually behave a certain way.
  • Character evidence is not admissible to prove conduct (FRE 404(a))
  • EXCEPTIONS:
  • The accused may offer evidence of his own good character and the prosecution may rebut it
  • The accused may offer evidence of a pertinent trait of character of the victim and the prosecution may rebut it
  • The state may prove a homicide victim’s peaceful character to rebut a claim of self-defense (Π cannot bring up character unless Δ does).
  • Character of a witness (character for truthfulness to rebut impeachment)
  • Character at issue
  • Character evidence is admissible in unusual situations where there is a material, disputed issue concerning a person’s character. It may be proved by either
  • Reputation—lay foundation that character witness is familiar with the subject’s reputation
  • Personal opinion—lay foundation that witness has know the subject over a long enough period of time and under sufficient circumstances that they can form a reasonably reliable opinion. (FRE 405)
  • Sexual character is covered by FRE 412-15
  • Evidence of a rape victim’s sexual character is not admissible (FRE 412).
  • EXCEPTIONS (if the defendant gives advance notice)
  • Pattern of consensual activity between the victim and the defendant if the defendant claims consent
  • To show another man committed the act with which the defendant is charged.
  • To show that someone other than the defendant is responsible for the victim’s pregnancy (if visible to the jury)
  • That the victim has brought prior false rape accusations
  • When constitutionally required to enable the defendant to present a defense

VI.SPECIFIC BAD ACTS

  • Character may not be proven by specific acts (FRE 405(a))
  • Specific acts of bad character (usually criminal behavior – some states have created similar rules for civil cases) may be admissible (subject to FRE 403 balancing) against a defendant to prove a material issue (genuinely at issue, not pretext) other than guilt (FRE 404(b)):
  • Motive—properly invoked when a prior crime provides a specific motive for the crime charged, e.g., defendant’s desire to avoid prosecution on burglary charges was the motive for bribing a potential witness.
  • Opportunity
  • Intent—properly invoked in a specific intent crime; defendant must specifically dispute intent.
  • Preparation—properly invoked when one crime is committed in preparation for another.
  • Plan—properly invoked only when planning is a material disputed issue (usually conspiracy or murder in which premeditation is denied).
  • Knowledge—properly invoked in possession of contraband cases when the defendant denies knowledge of the contraband (i.e. what it is).
  • Identity—properly invoked when the evidence strongly connects the defendant to a prior similar crime that is sufficiently distinctive to qualify as his criminal “signature.”
  • Absence of mistake or accident—properly invoked only when the defendant claims that harm was caused by mistake or accident.
  • FRE 404(b)—
  • It doesn’t matter whether the defendant was ever charged, tried or convicted of the crime, wrong or act – the question is whether s/he did the act.
  • Upon request by the accused, the prosecution must provide reasonable notice of intent to offer such bad character evidence.
  • Evidence of specific prior sex crimes committed by the defendant are admissible “if relevant” upon advance notice to the defendant (FRE 413-15).
  • No double inference allowed; i.e. act must be the issue (not similar act to act to issue; just similar act to issue/act).

VII.HABIT AND CUSTOM

  • Habit = a pattern of always behaving a certain way
  • Evidence of habit and business custom is admissible (FRE 406)
  • Foundation:
  • The witness has personal knowledge of the person or organization whose conduct is at issue
  • The witness has observed a large number of situations similar to the one at issue.
  • The person or organization has always responded to the situation in a particular way. It is not enough that the person or organization usually acts in a certain way.
  • May be proved by describing specific similar events or by opinion testimony
  • Witness may testify to their own habits as well as the habits of others.

VIII.OPINIONS

A.LAY WITNESS OPINION

  • Lay witnesses may testify to their personal opinions if the following foundation is laid:
  • The witness has personal knowledge of the underlying facts (the only part of the foundation you can prove) – FRE 602(1), 701. Cannot use scientific, technical or other specialized knowledge – FRE 701(c).
  • The opinion is rationally based on that knowledge (in general, an opinion is rational if it is the kind of opinion that people ordinarily form). – FRE 602(2), 701. Distinguish from average witness if necessary (somewhere between lay and expert = skilled)
  • The opinion will be helpful to the jury – FRE 602(3), 701.
  • Relevant
  • Whether it will be more helpful for the jury to hear the opinion or the underlying details. In general, opinions are preferred when the issue is of little relevance, details are preferred when the issue is of central importance. There is a lot of judicial discretion in this area.
  • Opinions about physical appearances (age, sleepiness, etc.) are allowed
  • Opinions about mental states are not allowed (because no personal knowledge)
  • Legal opinions are not allowed.

B.EXPERT WITNESS OPINION

  • Expert testimony and opinions are admissible if the following foundation is laid (FRE 702)
  • The witness is qualified by training or experience (or knowledge, skill, or education) to be an expert. The foundation for qualifications is satisfied either by a witness’s formal training or self-taught “experience.” Whether a witness is qualified is a question of competency so voir dire is permitted. Voir dire must go to the presence or absence, not the extent of those qualifications.
  • The witness has knowledge of the facts of the present case (FRE 703). Need not be admissible facts for the expert to base her opinion on them (but cannot be disclosed to the jury). Experts may rely on any information they deem relevant.
  • The opinion is rationally based on data (“sufficient facts or data”). An expert’s opinions and testimony must be based on adequate data and be within the witness’s area of expertise. Under the Daubert (v. Merrell-Dow) test, the judge must make the decision whether proposed expert testimony is scientifically reliable – derived from scientific methodology (neutral scientists in a controlled study), peer review and publication (not private or proprietary), small rate of error in results (<.05), and widespread acceptance (educated elite). (“reliable principles and methods and the witness has applied the principles and methods reliably to the facts of the case”)
  • The expert testimony will assist (be helpful to) the jury
  • An expert is NOT restricted to personal knowledge, but may base opinions on second hand information (FRE 703).
  • Scientific evidence is admissible if a foundation is laid that the evidence is scientifically reliable.

IX.HEARSAY

  • FRE 802—hearsay is not admissible (really 95% of hearsay is admissible)
  • Something that actually isn’t admissible – when a police officer on the stand says “X said Δ did it.”

A.DEFINITION – FRE 801(a)-(c)

  • Oral statements or written documents (out of court statements).
  • Evidence does not fit the definition of hearsay if:
  • No content (it does not include the content of someone’s out of court statement) – FRE 801(a). Does not describe out of court declaration; must be quote or summary of communication.
  • The out of court statement is not an assertion – FRE 801(a). An assertion is a description of an observable fact or event. Questions, commands, promises, threats, etc. are not assertions. Contracts, deeds, wills and other purely legal documents are not assertions.
  • The statement is not being offered for the truth of the fact asserted, but for a different material purpose – FRE 801(c). Not offered for its truth if it explains the future or future act (police search exception—why police begin to investigate). Res gestae: miscellaneous parts left over; things that don’t have anything to do with the central issue but ought to be in anyway (just part of the conversation that can’t be extracted).
  • Conduct not intended to communicate – FRE 801(a). The barking of dogs is not hearsay. Street signs are not hearsay.
  • Does not apply if laying a foundation.

B.EXCLUSIONS