Uploaded by Michael Garrett

Evidence Batholomew fall2018

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Rule 611(b) Scope of Cross Examination. Cross examination
should not go beyond the scope of the direct examination and
matters affecting the witness’s credibility. The court may allow
inquiry into additional matters as if on direct examination
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Rule 611(c) Leading Questions. Leading questions should not be
used on direct examination except as necessary to develop witness
testimony. The court should allow leading questions on: Cross
examination; and When a party calls a hostile witness, an adverse
party, or a witness identified with an adverse party
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Objections to the Form of Questions:
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Leading, except the following: Hostile Witness, Cross
Examination, Instances where necessary to develop
testimony (young/impaired/timid), Refresh memory,
Undisputed preliminary, Witness identified as an adverse
party
The general rule is that the defense cannot exceed the scope of the
direct examination, however it can be exceeded when the
questions asked would have been asked on direct examination
– no leading questions in this scenario
Direct Examination:
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Q/A is preferred
Leading Questions in Not Preferred (except for the exceptions)
Narrative is not preferred
On Cross:
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The direct define the scope of the cross
Leading Questions is Permissible (when questions that are asked
that would have been asked on Direct is asked, no leading
questions) 1ba
Rule 608: A Witness’s Character for Truthfulness or
Untruthfulness
a.
Reputation or Opinion Evidence. A witness’s credibility
may be attacked or supported by testimony about the
witness’s reputation for having character for truthfulness or
untruthfulness, or by testimony in the form of an opinion
about the character. Evidence of truthful character is
admissible ONLY when the witness’s character of
truthfulness has been attacked
b. Specific Instances of Conduct. 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/untruthfulness. But on cross-examination,
the court may allow inquiry into extrinsic evidence if
they are probative of the character of the character of
truthfulness/untruthfulness of:
1. The witness, or
2. Another witness whose character the witness being
cross-examined has testified about
Rule 608 is an exception to Rule 404
Rule 608 is limited to cross examination
Inquiry into the witness’s credibility is strictly
limited to veracity
Evidence in support of credibility is admissible only
after credibility has been attaked (Cannot Bolster a
Witness)
Admission of opinion, reputation and specific
instances for purposes OTHER THAN
truthfulness is not governed by 608, it is governed
by 402 and 403
The extrinsic evidence prohibition under 608(b)
bars any reference to the consequences that a
witness might have suffered as a result of an alleged
bad act
Rule 609: Impeachment by Evidence of a Criminal Conviction
a.
In General. Applies to attacking a witness’s character for
truthfulness by evidence of a criminal conviction:
1. For a crime punishable by death or imprisonment for
more than one year, the evidence:
A. Must be admitted in civil or criminal case where
the witness IS NOT a defendant; and
B. Must be admitted in a Criminal case in which the
witness IS a Defendant, if the probative value of
the evidence outweighs its prejudicial effect to that
defendant; and
2. Evidence must be admitted if the court can establish
the elements of the crime requires proving the witness
was dishonest or made a false statement – Crimen Falsi
b. Limit of Using the Evidence After 10 Years. This section
applies if more than 10 years have passed since the witness’s
conviction or release from confinement, whichever is later.
Evidence of the conviction is admissible only if:
1. its probative value, supported by specific facts and
circumstances, substantially outweighs its prejudicial
effect, and
2. 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
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extrinsic evidence CAN be used under Rule 609
when a witness denies the prior conviction (unlike
rule 608 prohibition of extrinsic evidence)
Note that, rule 609 applies to the potential
sentence, not the one actually imposed
Prior act under 608/609 does not have to be a
criminal conviction, the act only has to be
probative of truthfulness
Crimen falsi conviction are not subject to the rule
403 exclusion
Criminal acts are only relevant if the witness
participated in the crime himself
Only essential element of crime is admissible
under 609. Essential elements of an offense
include – statutory name of the offense, date of
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conviction, and the sentence imposed. Note: the
underlying facts or the details of the
offense/act is not admissible
Juvenile convictions are typically not admissible,
but may be if the witness is not the defendant
Two parts:
i.
ii.
Rule 610. Religious Beliefs or Opinions
Evidence of a witness’s beliefs or opinions is not admissible to attack
or support the witness’s credibility
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Such evidence is permissible to show bias or
interest
Rule 613: Witness’s Prior Statement
Showing or Disclosing the Statement During
Examination. A party does not have to show the disclose a
witness’s prior statement to them. But they must show it to
an adverse party on request
b. Extrinsic Evidence of a Prior Inconsistent Statement.
Extrinsic evidence of a witness’s prior inconsistent
statement is admissible only if the witness is given an
opportunity to explain or deny the statement and the
adverse party is given opportunity to examine the witness
about it, or if justice requires
Show or disclose to the opposing counsel upon request
Special rules for extrinsic evidence
 The witness must be given an opportunity to
explain
 If they cannot, the statement about the prior
inconsistent statement is inadmissible
At a criminal trial, there is limits on a party’s ability to impeach
their own witness with their prior inconsistent statements – a
party cannot use a prior inconsistent statement evidence as a
mere subterfuge to get before the jury evidence not otherwise
admissible
a.
Rule 806: Attacking and Supporting the Declarant’s Credibility
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Privileges apply to all stages in civil and criminal
proceedings
The privilege against self-incrimination is not subject to
analysis under Rule 501
Rule 501 defers to state law when state law provides the rule
of decision
Whoever is asserting the privilege has the burden of establishing that
burden exist by a showing of reason and experience
Scope of the Attorney Client Privilege
The court may admit evidence of the declarant’s
inconsistent statement or conduct if the declarant testified.
 Spousal Privilege
Impeachment for Bias or Motivtion
Extrinsic evidence CANsens be admitted to impeach for bias or
motivation.
Impeachment – Sensory Perception
Adverse Witness Testimony Privilege (Requirements)
1.
2.
Can be admitted if impacts ability to testify or ability to remember
Alcohol + Drug use is admissible only when it affects ability to testify
or recall. (Witness must be impaired or was impaired at the time of
the event)
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Be sure such evidence does not conflict with
404(b) – the prohibition on specific act evidence
to show propensity
3.
Marital Communication Privilege
1.
Impeachment by Contradiction
2.
3.
The evidence must be direct, cannot merely cast doubt on veracity
4.
The assumption is that both of the witness’s assertionsco cannot true
Cannot impeach by contradiction for someone who do not
remember
Impeachment by Prior Inconsistent Statement
Evidence of prior inconsistent statement can be admitted as
substantive evidence if it satisfies rule 801(d)(1)(A).
It can be admitted under rule 613 for impeachment purposes (See
Rule 613)
Communication (does not have to be confidential)
Cover communication and observations at the time of
testimony (Privilege does not transcend divorce)
Witness owns the privilege
Must have a confidential communication from one spouse
to another that occurred during the marriage
Observations do not count as communications
Third party cannot be present (including children, unless
they cannot not speak)
The privilege applies no matter when the party married as
long as they intend to stay married – the marriage is not a
sham
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