I.Witnesses

  • Rule 609 – Impeachment by Evidence of Conviction of Crime

Allows for impeachment by evidence of witness character untruthfulness – specific act allows introduction of extrinsic evidence (608b does not)  it shows the person is one who violates norms of society and one who violates norms of society is more likely to lie on the stand than one who does not = probative value (the only reason it is admissible is to show untruthfulness to allow for any other reason would be unfairly prejudicial)

 must do a 403 balance - (favoring inadmissibility or exclusion) probative value must outweigh the risk of unfair prejudice

  • Luce v. United States, 1984

In order for a criminal D to appeal a ruling on admissibility of criminal conviction  the criminal D must take the stand (or he waives his right to appeal)

  • Rehabilitation – when a witness is impeached (bad character for truthfulness) they may be rehabilitated by introducing evidence of character for truthfulness

II.Opinion & Expert Testimony

Witnesses generally testify to basic facts but with opinion witness testifies as to inference. Opinion  witness is testifying to the inference – the form of the info presented – has the witness drawn a conclusion??

Circumstances – Witnesses can testify when it is too hard for jury to understand underlying data

  • Rule 701 – Opinion Testimony by Lay Witness

Lots of leeway for lay witnesses to testify in the form of opinion

a. Limited to personal knowledge  RATIONALLY BASED ON THE

PERCEPTION OF THE WITNESS and

b. is helpful to the trier of fact and

c. is not based on scientific knowledge

  • Collective facts doctrine – witnesses cannot really verbalize a lot of the data
  • Skilled lay observer – recognition of voice, handwriting, etc…
  • Rule 702 – Expert Witnesses(someone with special knowledge) basic rule of admissibility of testimony by experts

And the jury can be helped by someone with personalized knowledge (the jury listens when expert testimony – however they can disregard what the expert says)

Whenever an expert testifies – 104A – court must determine 

  1. subject of testimony (must assist trier of fact with specialized knowledge that the jury does not have) 702, 704
  2. Qualifications (put into evidence) of witness (important for credibility – must be legit) 704
  3. Basis of opinion – basic facts of case must be tied in with the expert testimony – 702, 704, 705
  • Rule 703 – Bases of Opinion Testimony by Experts

If other experts in the field rely on it, then the expert can rely on it; basis doe not have to be admissible as long as other experts in area reasonably relied on it

 do a balance that favors exclusion – experts opinion substantially outweighs their

prejudicial effect

  • Rule 704 – Opinion on Ultimate Issue
  • Rule 705 – Disclosure of Facts or Data Underlying Expert Opinion

Expert doesn’t have to give (basis) reasons before testifying – the preliminary facts cannot be determined without such questions – but be careful about giving too much deference to the expert testimony.

  • Daubert v. Merrill Dow – changed expert testimony – prior Daubert Experts had to show principle techniques (that led to finding) was generally accepted in the field  judge didn’t have to make determination of whether scientific evidence is reliable (this kept out a lot of good scientific evidence)
  • Daubert case made the judge the gatekeeper on the reliability of expert scientific evidence  Daubert is not too lenient, it still excludes evidence
  • Based on Rule 702 Principle Method is: knowledge must be derived by the scientific method – the list is not exclusive
  1. Testable – has it been tested??
  2. has it been subjected to peer review and publication??
  3. Does the method have a known error rate??
  4. Are there standardized procedures??
  5. Is it generally accepted in the relevant field??

Scientific evidence – standard to review is an abuse if discretion standard. Should Daubert standard apply to other expert evidence  yes daubert applies to all evidence under 702

III.Presumptions – a device that enhances the value of evidence

Characteristics –

  1. mandatory, if you find this, you must find this (if you find the letter was mailed, you must find that it was delivered
  2. rebuttable – evidence must rebut presumption; rebutted by evidence that the presumed fact is not true (rebuttal makes the presumption go away and no instruction)
  3. arise at two times – motion to dismiss and at the end of the trial when the judge instructs the jury
  4. many presumptions are statutory and also switch the burden of persuasion on the issue
  5. never used in criminal case
  • Examples

Presumption of death after absence for 7 years

Marriage

Legitimacy of child during marriage

Evidence of owner of vehicle in accident – driver is driving with consent of owner

Act performed by public official – presumed legally performed

Only in insurance cases if insured was caused by violence, it is an accident not suicide

  • Rule 301 – Presumptions

Prescribes the effect of presumption

A presumption imposes on the party against whom it is directed

the burden of going forward with evidence to rebut or meet the presumption,

but does not shift to such party the burden of proof in the sense of the risk of non-persuasion

  • Rule 302 – State Presumption

Applicability of state law in civil actions

IVJudicial Notice of Adjudicative Facts (facts that otherwise a jury would have to find)

  • Rule 201 – Judicial Notice of Adjudicative Facts

a. scope – governs judicial notice of adjud. Facts only

b. kinds of facts – a judicially noticed fact must be one not subject to reasonable dispute in that it is either

1. generally known within territorial jurisdiction of trial court

2. capable of accurate and ready determination by resort to sources whose

accuracy cannot be reasonably questioned

V.Privilege – exclusionary rule

Right to keep trier of fact from considering certain evidence privileges rules are based on social policy, it is considered to be better to exclude the information, the rule has nothing to do with a search for the truth

  • Categories
  1. communications – atty/client, hus/wife, psych/patient, preist/penentee
  2. protects information regardless of whether it is a communication – state secrets, voting, trade secret
  3. privilege not to testify against a spouse at crim case spousal exception rule
  • Checklist for Analyzing Privilege – applies to what you must disclose – enforceable by contempt and the right to keep info from disclosing in court
  1. Is there a privilege for this type of communication or fact??
  2. Is this communication within scope or privilege??

-what is the purpose of communication –to obtain legal services of lawyer

-status of communicator

-does an exception apply

3. Who is the holder (it is the clients priv, but the lawyer can claim on behalf of client,

patient, penantee)

  1. Has the privilege been waived the client says it is ok to disclose or if the client actually discloses the info it is waived
  • Spousal Privilege – only applies in criminal prosecution

testimonial privilege (witness spouse is the holder)

communications privilege

no privilege for favorable testimony – cuz criminal has a right to testimony in his favor

-must be married at t he time of the trial

-does not apply in crimes against the other spouse or child or ongoing crim activity by both spouses

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