Introduction Evidentiary law Overview How to Approach Evidence Questions ● Underline the cause of action ○ Civil or Criminal? ● Situate the Proceeding ○ Direct or Redirect ● Party or Witness ○ Purpose for admitting the evidence ● Substantive or to Impeach Preliminary Questions of Admissibility Judicial Notice Background ● Know the ground rules ○ Responsibility of Counsel 103 ○ Role of the trial judge 104 & 105 ○ Logical Relevance 401 ○ Legal Relevance 403 ○ Standard of review Burden of Proof Relevancy Background ● Character Matters ○ 404(a), 404(b), 405, 608, 609 Character & Qualifications of a Witness Impeachment Hearsay Defined - 801 & Approach to Hearsay Hearsay Duties of Counsel and the Court Duties of the Parties ● FRE 103 - Rulings on Evidence (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) 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. (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record-either before or at trial--a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (c) Court’s Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. (e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. ● FRE 104 - Preliminary Questions (a) In General. The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. (b) Relevance That Depends on a Fact. When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. (c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires. (d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case. (e) Evidence Relevant to Weight and Credibility. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. ● FRE 105 - Limiting Evidence that is not admissible against other parties or for other purposes ○ If the court admits evidence that is admissible against a party or for a purpose -- but not against another party or for another purpose -- the court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly Relevancy ● ● ● FRE 401 - Test for relevant Evidence ○ Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. FRE 402 - General Admissibility of Relevant Evidence ○ Relevant evidence is admissible unless any of the following provides otherwise ■ The United States Constitution ■ A federal Statute ■ The FRE, or ■ Other rules prescribed by the supreme court ○ Irrelevant evidence is not admissible FRE 403 - Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons ○ The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Limitations on Relevancy Habit, Offers, Negotiations, Remedial Measures, & Privileges ● FRE 405 ○ F.R.E. 405 controls the form that character evidence takes at trial, not its admissibility. The three forms are reputation, opinion and SIC. See Michelson v. United States 335 U.S. 469 (1948). ○ Don’t confuse Rule 405(b)—character evidence of parties—with Rules 608(b) and 609– impeachment of witnesses. ● FRE 406 - Habit, Routine Practice ○ Habit: Habit evidence refers to a narrow range of highly probative traits, namely automatic, invariable patterns of behavior which are usually characterized by the words “always” or “invariably.” The descriptive terms “frequently” or “often,” do not rise to the level necessary to categorize a response as habit. Remember, a habit is a regular response to a given situation which is done without a high degree of forethought. Habit evidence does not need to be corroborated. ○ Method of Proof. Habit or routine practice may be proved by testimony in the form of an opinion or by specific instances of conduct sufficient in number to warrant a finding that the habit existed or that the practice was routine. ● FRE 407 - Subsequent Remedial Measures ○ When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in the product, a defect in the product’s design, or a need for a warning or instruction. This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controversial, or impeachment. Why exclude? ● Repairs after an accident may not indicate negligence or fault. ● ● Social Need to encourage repairs for public safety. Parties might be deterred if repairs prove negligence. Unfair to penalize for socially responsible conduct. ○ - FRE 408 Settlement offer Offers to settle claims in "dispute" are inadmissible Admissions are NOT severed (inadmissible) ○ - FRE 409 Offer to Pay Meds Offered to pay medical expenses of another are inadmissible Admissions ARE severed (admissible) ● FRE 410 (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn; (2) a nolo contendere plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present. ● FRE 411 ○ Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. Admissibility of Prior Sexual Acts ● FRE 412 (a) Prohibited Uses. The following evidence is not admissible in a civil or criminal proceeding involving alleged sexual misconduct: (1) evidence offered to prove that a victim engaged in other sexual behavior; or (2) evidence offered to prove a victim’s sexual predisposition. (b) Exceptions (1) Criminal Cases. The court may admit the following evidence in a criminal case: (A) evidence of specific instances of a victim’s sexual behavior, if offered to prove that someone other than the defendant was the source of semen, injury, or other physical evidence; (B) evidence of specific instances of a victim’s sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor; and (C) evidence whose exclusion would violate the defendant’s constitutional rights. (2) Civil Cases. In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy. (c) Procedure to Determine Admissibility. (1) Motion. If a party intends to offer evidence under Rule 412(b), the party must: (A) file a motion that specifically describes the evidence and states the purpose for which it is to be offered; (B) do so at least 14 days before trial unless the court, for good cause, sets a different time; (C) serve the motion on all parties; and (D) notify the victim or, when appropriate, the victim’s guardian or representative. (2) Hearing. Before admitting evidence under this rule, the court must conduct an in camera hearing and give the victim and parties a right to attend and be heard. Unless the court orders otherwise, the motion, related materials, and the record of the hearing must be and remain sealed. (d) Definition of “Victim.” In this rule, “victim” includes an alleged victim. ● FRE 413 (a) Permitted Uses. In a criminal case in which a defendant is accused of a sexual assault, the court may admit evidence that the defendant committed any other sexual assault. The evidence may be considered on any matter to which it is relevant. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. ● FRE 414 (a) Permitted Uses. In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. (b) Disclosure to the Defendant. If the prosecutor intends to offer this evidence, the prosecutor must disclose it to the defendant, including witnesses’ statements or a summary of the expected testimony. The prosecutor must do so at least 15 days before trial or at a later time that the court allows for good cause. ● FRE 415 (a) Permitted Uses. In a civil case involving a claim for relief based on a party’s alleged sexual assault or child molestation, the court may admit evidence that the party committed any other sexual assault or child molestation. The evidence may be considered as provided in Rules 413 and 414 (b) Disclosure to the Opponent. If a party intends to offer this evidence, the party must disclose it to the party against whom it will be offered, including witnesses’ statements or a summary of the expected testimony. The party must do so at least 15 days before trial or at a later time that the court allows for good cause. ● Privileges ● Background of Privileges ● ● ● Supreme Court proposes rule Congress rejects proposed rule Left with the common law ○ Good ○ Bad ○ Indifferent ● Attorney - Client ○ Testimonial in all phases ○ What about MRPC 1.6 Priest - Penitent (clergy) Physician - Patient (medical) ● ● Character Evidence FRE 404 (a) Character Evidence. (1) Prohibited Uses. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may o er evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may o er evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) o er evidence to rebut it; and (ii) o er evidence of the defendant’s same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the rst aggressor. (3) Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608, and 609. (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trial--or during trial if the court, for good cause, excuses lack of pretrial notice. Methods of Proving Character Reputation Testimony Opinion Foundation Proving Character through Cross Examination - Witness is a member of the Accused/Victims community - Witness has been a Member for a substantial time - Accused/Victim has a reputation - Witness knows that reputation - Witness states that reputation -Witness knows the accused/Victim - Witness has had sufficient contact to form an opinion - Witness has an opinion of the accused/victim's pertinent character trait - Witness states that opinion Cross Examination (Specific instances of conduct): - Questions are designed to test validity of R&O testimony or to expose bias/motive to lie - Good Faith basis for the question - Bound by answer - Focus on conduct - No guilt assuming questions ● BOP - Extrinsic Acts 404(b) ○ 4 prong test to establish admissibility of 404(b) evidence ■ Offered for a proper purpose ■ This is the initial threshold inquiry that the court must make before accepting this evidence ■ Inquiry addresses whether the proffered evidence is “probative of a material issue other than character.” ■ Establishing a proper purpose imposes a standard 402 and 403 analysis ■ Court focuses on whether there is proof that the relevant act occurred and that the accused committed that act ■ Apply relevancy protections of 104(b) ■ What does 104(b) mean in practical application ■ "the sum of an evidentiary presentation may well be greater than its constituent parts." ■ F the court finds that the jury could find the conditional fact by a preponderance of the evidence then ■ Evidence of that prior act should be admitted ■ Apply the balancing test of 403 ■ Is the probative value substantially outweighed by the danger of (any of the following): ■ Unfair prejudice ■ Confusion of the issues (what issues?) ■ Misleading the jury (as to what?0 ■ Considerations of undue delay (delay who?) ■ Waste of time (whose time?0 ■ Needless presentation of cumulative evidence ■ Provided to the jury through the restriction of limiting instructions under 105 Foundations Authentication & Foundation ● What is Authentication ○ Authentication = more defined relevancy process ○ Foundation = evidence supporting a finding that the exhibit is "what its proponent claims" ○ Authentication requirement exists for all evidence other than live testimony ● Authentication & Discovery (Civil) ○ FRCP 26(a)(1)(A)(ii) now requires parties, without awaiting a discovery request, to provide other par es with ‘‘a copy of, or a description by category and location, of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims and defenses, unless the use would be solely for impeachment.’’ ● Authentication & FRCP ○ FRCP 16 – Pretrial Conferences ○ FRCP 26(a)(1)(A)(ii) - Discovery ○ FRCP 36 – admissions ○ FRCP 37(c) – when admission denied under FRCP 37(c) & proved genuine then recovery of reasonable expense associated with proving the requested admission are possible ● General Provision - Authentication ○ FRE 901(a) General provision. ■ The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. ● Laying a Foundation ○ FRE 901(a) ■ The preliminary showing = laying the foundation ■ Factors required depends on the “thing” ■ Usually multiple ways to do this ■ Only bedrock requirement is that the evidence supports a finding that the thing is what it purports to be ● Authentication v. Authenticity ○ Authentication deals only with the foundation required for admitting evidence ○ Adequacy of that foundation is determined by the trial judge – screening function only under 104(b ○ Authenticity is ultimately a question for the jury. Exhibits ● Types of Evidence at Trial ○ Testimony ○ Exhibits ■ Real evidence ■ Fungible ■ Non-fungible ■ Documentary evidence ■ Demonstrative evidence When do you use it? Examples of Real & Demonstrative Evidence Admitting Evidence Publication - Opening statement - Witness examinations - Closing argument - Physical evidence/tangible objects - Pictures - Diagrams, maps, models - Witness demonstrations - Film recordings - Computer simulations - Have the exhibit marked - Show exhibit to opponent - Ask judge's permission to approach the witness - Show the exhibit to the witness - Lay foundation - Offer exhibit into evidence - Showing the exhibit to the jury - Several methods: Documents - enough photocopies for everyone Charts Diagrams PowerPoint - Use the exhibit to illustrate, show your point Foundations for nonFungible Real Evidence Fungible Foundations Models and Demonstrative Evidence Demonstrative Foundation - I'm handing you what's been marked as PE 3 for id. - Do you recognize it? - What is it? - How do you recognize it? - Is PE 3 for id in substantially the same condition today as it was on (relevant date)? Offer. - Witness initially received object at a certain time and place - Witness safeguarded the object - Witness ultimately disposed of the object (retain, destroy, transfer) - As best as can tell, exhibit is same object previously handled - As best as can tell, exhibit is in the same condition - Witness needs visual aid to explain testimony - Aid depicts a certain scene or object - Witness is familiar with scene or object - Witness explains basis for familiarity with scene or object - Aid is "true", "accurate", "good" or "fair" model of scene or object - I'm handing you what's been marked as PE 1 for id - Do you recognize it? - What is it? - How do you recognize it? - Is PE 1 for id a fair and accurate representation of ____ on (relevant date0? - Offer into evidence. Impeachment 7 steps to a Superior Cross Examination Why cross examine? Should you Impeach? - Prepare based on Case Analysis - Every cross is ed to theme, theory or credibility - CONTROL THE WITNESS! - Organize to accomplish your goals - Details give control - Impeach by the probabilities (common sense) - Use the witness’ own words - To introduce a new fact - To weaken or highlight a fact - Weaken or strengthen the credibility of a witness - Does the witness’s testimony factually support your case? - Will the method of impeachment destroy the witness’s entire credibility or only undermine their truthfulness on the impeached points? - Does the impeachment increase the lawyer’s credibility? - Can I effectively impeach? - Will the jury see the impeachment as significant or only as a lawyer trick? - Does the witness present as a basically truthful or untruthful person? The law: FRE 611 -> Impeachment on the Oath ● FRE 611 addresses witnesses and establishes the manner and scope of witness testimony during cross examination. While FRE 611 governs the form of cross examination questions, many other evidentiary rules also impact your ability to impeach witnesses. You must understand the legal doctrine behind the rules governing impeachment. You should begin your inquiry by developing a deeper basis of knowledge concerning prior untruthful acts under FRE 608(b), prior convictions under FRE 609, and prior inconsistent statements under FRE 613. 7 primary Means of Impeachment ● Prior untruthful acts. FRE 608(b) ORE 608(A)(B) ○ Opinion or reputation ○ No bolstering ○ Specific instances on cross ■ To test their opinion of another witness ■ To attack the witness on the stand ■ No extrinsic evidence allowed ○ Impeachment ■ Permitted under FRE 608b ■ If you're not in federal court, check the corresponding rules in your jurisdictions ■ Only applies to a witness on the stand ■ Only applies to evidence of prior untruthfulness (as opposed to other "bad acts") ■ May not be "proven up" by extrinsic evidence ■ If the witness denies the prior untruthful act, counsel is stuck with the answer ■ Remember ■ You MUST have a good faith basis to even bring it up ■ Watch for opposing counsel for misuse of this rule. If it is egregious, think "mistrial"! ■ ● ● Timing is a critical, strategic consideration. You may like/need some part(s) of this witness's testimony. ■ At the beginning of cross examination ■ At a significant point during cross ■ As a last question on cross examination Prior conviction. FRE 609. - READ CAREFULLY -> jurisdictions treat differently ○ Only when a witness is on the witness stand ■ EX: if a criminal defendant does not take the stand, prior convictions do not come in under this rule ○ May be proven with extrinsic evidence such as a certified copy of the conviction ○ Issues: ■ Is the witness the accused in a criminal proceeding? ■ Does the prior conviction involve a false statement ■ If not, was it punishable by at least a year in prison in the jurisdiction where the crime was committed? ■ How long ago did the conviction take place? ○ Remember: ■ An Impeachment by Prior Conviction may NOT be used for a “propensity” argument! ■ Do NOT make anything like a propensity argument, and be certain opposing counsel does not either. ■ Could be grounds for a mistrial! ■ A party may be entitled to a limiting instruction stating that the evidence of a prior conviction goes ONLY to the credibility of the witness. ■ Strategically, it may be best to leave it alone. ■ Crimen Falsi Crimes ■ Non-crimen falsi crimes ■ Potential punishment ■ Balancing test ■ Other limitations ■ Extrinsic evidence allowed Prior inconsistent statement. FRE 613. ○ Use to show witness is reliable ○ Confront on cross examination ○ Prove with extrinsic evidence ○ Prior statement under FRE 801(d)(1)(A) ○ Impeachment: ■ Commit the witness to the prior inconsistent statement ■ Is it your testimony that . . .? ■ I thought I heard you tell opposing counsel . . . ■ Are you telling this jury . . .? ■ Get the commitment or drop it and move on ■ Credit to the prior inconsistent statement. ■ “I’d like to draw court and counsel’s attention to . . .“ (include page and line #s if possible) ■ “Mr./Ms. Witness, on that date when you were asked . . . you responded by saying ‘. . .’, isn’t that true?” ● ● ● ● ■ When you get it, leave it. ■ Do not forget to remind the jury in Closing Argument! ○ Confront the witness by citing to the prior inconsistent statement – ■ It’s o.k. to “milk” this a little . . . ■ Date ■ Surrounding circumstances ■ Others present ■ Oath, if one was given ■ If no oath, confirm the need for truthfulness. Bias, prejudice or motive. Common law. ORE 616. ○ Common Law ○ Witness has an interest in the outcome ○ Extrinsic proof allowed Defects in Capacity to Observe, Recall or Relate. Common Law. ORE 616. Impeachment by Omission. ○ Fact was stated for the first time during testimony at trial ○ Issue is material to the case ○ Prior statements or opportunity to make such statements exists ○ The devil is in the presentation Impeachment on a non-collateral matter. ○ Contradiction ■ No FRE (common law rule) - check the state code ■ Show witness is mistaken ■ Material matter ■ Extrinsic evidence allowed IBC: What is it IBC: Why it works IBC: How to do it - Witness makes material assertion or statement at trial - In-court statement differs from -Prior out-of-court statement -Prior out-of-court action - Counsel introduces extrinsic evidence specifically contradicting in-court testimony - The importance of witness credibility - “A double-minded man is unstable in all his ways” - IBC does two things: -Calls into question the specific in-court statement -Casts doubt on all aspects of witness testimony - Caveat: no collateral issues - Case analysis and preparation - Set trap on cross-examination - Close trap with extrinsic evidence - Exploit on closing argument ● IBC: Example ○ OJ Simpson trial ○ Mark Furman ■ “No use of racial epithet in the last 10 years.” ○ Contradictory extrinsic evidence ○ Closing argument Experts ● ● Lay opinions ○ A witness who doesn't have expertise in a subject can still give an opinion ○ Ex: ■ Asking how fast a car was going ■ Asking how a person appears (looked intoxicated) ○ Give the underlying facts first -> used because people think in assumptions ■ Used less often than you think ○ FRE 701 ○ If a witness is not testifying as an expert, testimony in the form of an 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 Expert Opinions ○ Judge decides admissibility ○ Witness must be qualified ○ Must "assist" the fact finder/relevant ○ Opinion must have a proper basis ○ Methods and conclusions must be reliable ○ Must satisfy FRE 403 -> Delbert (?) Test / Fry (?) Standard ■ FRE 702 ■ A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: ■ (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; ■ (b) the testimony is based on sufficient facts or data; ■ (c) the testimony is the product of reliable principles and methods; and ■ (d) the expert has reliably applied the principles and methods to the facts of the case. ■ (no requirement for a specific degree, "or" list, ■ FRE 703 ■ An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. ■ Don't have to know the surrounding facts of the case ■ Can consider evidence that might be inadmissible ■ Can use the inadmissible evidence if the opinion of their testimony has been attacked/challenged on cross-examination ■ ■ ■ ■ ■ ● ● ● ● The basis has got to be the kind of stuff that other people would have relied upon Get documentation in through direct testimony Example of a powerful rule for expert testimony FRE 704 (a) In General--Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. (b) Exception. In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. Can't talk about mens rea Can't use to tell truthfulness ○ Otherwise free reign Qualifications to Form an Opinion FRE 702 ○ Knowledge ○ Skill ○ Experience ○ Training ○ Education ○ Laying the foundation ○ Only the 1st Step to admissibility ● "Will Assist" FRE 702 ○ Helpfulness ■ Relevance ■ Complex subject ■ Counterintuitive subject FRE 704 ● ● Reliability ○ Daubert's Reliability Factors (PEAT test) ■ Peer Review ■ Error Rate ■ Acceptance -> Old Frye Standard (generally accepted standard) ■ Testable ■ Don't need all four ■ Not an Exhaustive list, comes from the rule and is most often applied and tested Basis of the Opinion FRE 703 -> the foundation ○ ● Based on facts of the case ■ Posed in hypothetical ■ Personally observed ■ Reports from third parties ○ Type of facts that other experts rely on The Opinion FRE 704 ○ Ultimate issue testimony not per se inadmissible ○ Will the opinion assist the fact finder ○ Credibility opinions are not helpful Hearsay Approach to Hearsay******** ● Isolate the statement ● Determine who is the declarant ● Purpose for which the evidence is being offered ○ For its truth = hearsay ○ NOT for its truth = nonhearsay ● Apply the hearsay exceptions ● 801(D) -> exclusions (powerful rule) -> 5 examples ○ Opens the door to make things easier to prove at trial Hearsay Defines - 801 ● Statement ○ Oral or written assertion ○ Nonverbal conduct - intended as assertion ○ OCS, offered for TMA by declarant ○ Rules to Cover: 801(a), 801(b), 801©, 802 Why do we exclude hearsay? ● Misrepresentations concerns ○ Sensory capacity, mental capacities, physical circumstances ● Faulty memory concerns ○ Recalling someone else's words is difficult, and may give an inaccurate picture as to what happens FRE 801(a) ● "Statement" means a person's oral assertion, written assertion, or nonverbal conduct, if the person intended it as an assertion ○ This statement must be grounded in the FRE 602 Personal Knowledge of the person saying it ● (hearsay within hearsay problem, think of it like a bullseye with the different rings, keep going through each layer of statements until it is no longer admissible, then everything after that statement is also not admissible) ● Nonverbal assertions ○ Nodding or shaking your head ○ Pointing out a suspect in a lineup ○ Key from ACN: is the conduct ■ The equivalent of words ■ Assertive in nature ■ Such that it can be regarded as a statement Statement Examples ● Verbal assertions ● Non-verbal assertions ● Coded language ● Verbal conduct designed to imply an inference ○ What about Commands and Questions? ■ Not hearsay, therefore admissible if they are relevant Non Statement Examples ● Reflexive verbalizing: statements of pain, surprise ● Non-volitional statements: sleep talking ● Questions or imperatives ● Statements lacking factual context ● "statements" by machine (for example, a video recording) are not evaluated. ● Why? ○ Because hearsay is about the risk of untruths coming into a court of law ■ Big Brother Moment: ■ Deep fakes - Adobe is making photoshop for voices/video editing software ○ Non-verbal actions offered to prove the declarant's belief in a condition, and thus the condition itself ■ EX: declarant puts up an umbrella, therefore he thought is was raining, therefore it is more likely that it was actually raining FRE 801(b) - "declarant" means the PERSON who made the statement FRE 801(c) ● “Hearsay” means a statement that: ○ (1) the declarant does not make while testifying at the current trial or hearing; and ■ Judge Misconception ■ Important question: was the statement made at the time of the events that are at issue in the trial? ○ (2) a party offers in evidence to prove the truth of the matter asserted in the statement. ■ Prove the truth of the matter asserted ■ Does this need to be true in order for the party offering it to meet their burden of proof/disprove the case against them? ■ If yes, then it’s hearsay and you need an exception or exclusion to use it. ■ If not, then you are using it for one of the NON HEARSAY USES. Non-hearsay purposes of statements ● Knowledge of the speaker ● Notice to a listener ● Publication (specific to defamation cases) ● Effect on the listener ● Legally binding statements ● LOOK AT HEARSAY CHARTS IN THE INTRODUCTION SECTION Memorize 803-808 Hearsay and the confrontation clause ● ● ● ● Ohio v. Roberts ○ Residual hearsay (803 exception) ■ The statement needs to be admitted so that justice can occur, but doesn’t fall under a specific exclusion or exception Crawford v. Washington -> IN THE ESSAY OF THE FINAL EXAM ○ Creates a new rule over the Roberts case ○ Scalia ■ Defendant's best friend in criminal cases ■ Right to confrontation issue when using residual hearsay (?) ■ Reinvigorate the idea of the right to confrontation ■ Look at how the out of court statement was acquired by the cops? ■ Testimonial Evidence ■ When that statement was created for the inherent use of testimony then it can be biased and must be able to have a right of confrontation ■ Allows the defendant to have the witness available to be put on the stand should they so desire ■ New issue - how far does this rule apply? ○ Legacy of Crawford ■ Davis v. Washington ■ Not Testimonial ■ Primary purpose is to obtain police assistance to meet an ongoing emergency ■ Hammon v. Indiana ■ Testimonial ■ The primary purpose of the integration ... Melendez v. Diaz ○ Applies Crawford to what had been previously treated as a business record ○ Government creates the evidence (prepared report) for the purpose of the trial ○ Therefore, the person who prepared the report has to be brought in for the Defendant to cross examine ■ Can be used to get a better sentencing/deal for their client because of the issue to pay to bring in witnesses ○ 803 exceptions other than residual hearsay and business records that could apply? ○ Sworn Affidavits are testimonial in nature, violate the Confrontation Clause under Crawford v. Washington, and do not meet the business records exception to the hearsay rule. The requirements of the Confrontation Clause may not be relaxed because they make the prosecution's task burdensome. "Notice and demand" statutes are Constitutional. Williams v. Illinois Confrontation Clause (Crawford Test) ● The confrontation clause applies if ○ It is a criminal case ○ The declarant is unavailable ● "Testimonial" evidence will be admissible only if defendant is given a prior opportunity to cross-examine the declarant (testimonial means - if an objective person would believe that it would be used for a criminal prosecution, if yes it offends the confrontation clause) ○ Article 32 hearing -> done quickly to catch testimony while the witness was still cooperating ■ Usually used in SA & DA cases (issues of bias) (not done in Ohio) Responding to an emergency, is not hearsay, can be offered ■ Ex: diffusing a violent altercation ■ After the situation is calmed down and cops are now investigating a case, anything said now becomes testimonial, becomes hearsay Approach to Hearsay ● Isolate the statement ● Determine who is the declarant ● Purpose for which the evidence is being offered ○ For its truth = hearsay ○ Not for its truth - non hearsay ● Apply the hearsay exceptions Hearsay issues to Consider ● Adoptive Admissions (employee for employer- nice relationship to watch for-indicates type of liability and use of evidence) ● Family History- bibles, birth certificates, tombstones, photos, NOT affidavits as they lack reliability ● Importance of first hand knowledge, but remind that it is not a hearsay exception ● Best Evidence Rule- usually wrong, also not a hearsay exception ● Present recollection refreshed versus past recollection recorded ● 804 exceptions ● State of Mind- non hearsay, effect on the listener ○ ○ A "statement" is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Not Hearsay ● (1) Prior statement by witness. The declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement, and the statement is (A) inconsistent with the declarant's testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition, or (B) consistent with the declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) one of identification of a person made after perceiving the person; or ● (2)Admission by party-opponents. The statement is offered against a party. Admissions ● Statement of a party ○ Oral or written assertion/conduct ● Used against them by their opponent ● Can be anything (words, letters, documents) Effect on Listener FRE 803(3) - Non Hearsay: Circumstantial evidence to show: ● Knowledge, Intent, Attitude, Belief - Of the declarant or of the listener - Hearsay Exception: Statement of then existing state of mind or physical condition ● Intent, Design, Plan, Motive - Offered for its truth Common Hearsay Exceptions 803, Availability of declarant immaterial ● 803(1) Present Sense Impression ○ An Event Occurred ○ Declarant has Personal Knowledge ○ Declarant Made Statement During or Soon After the Event ○ Statement Describes the Event ● 803(2) Excited Utterance ○ Startling/Stressful Event ○ Declarant has Personal Knowledge ○ Declarant Made Statement ○ Statement Made While Under Stress ● 803(3) Then existing mental, physical condition ● 803(4) Medical Diagnosis or Treatment ○ Declarant Made a Statement to Medical Personnel ○ Statement was Made for the Purpose of Diagnosis or Treatment ○ Proper Subject Matter ● 803(5) Recorded Recollection ○ Foundation and Procedure ■ (1) Attempt refreshing memory. ■ (2) Cannot refresh memory of the witness. ■ (3) Witness made a record when the matter was fresh in their memory. ■ (4) Record made accurately reflects the knowledge of the witness at the time. ■ (5) Have the witness read the recorded recollection into evidence. ● 803(6) Records of Regularly Conducted Activity ○ Business Records Exception ■ Report has Business Relationship ■ Duty to Report ■ Personal Knowledge of Facts in Report ■ Report Contemporaneous ■ Written Report ■ Made in the Course of Business/Routine Practice ■ Report Factual in Nature ○ Records Custodian Foundation ■ Personal Knowledge of System ■ Knows how Reports are Prepared (See Foundation Above) ■ Record Removed From the File is the Same ■ Can Identify the Record ● 803(8) Public Records and Reports ○ There is a Public Office/Agency ○ ○ ○ ○ Public Office Prepared a Report Office had a Duty to Report Report Contains the Matters Observed Public Record authentication ■ Document is Copy of an Official Record ■ Document is a True and Accurate Copy ■ If Certificate, Signatory is Records Custodian & Signature Presumptively Authentic ● 803(18) Learned Treatises ○ Statements made in treatises may be read into evidence once authoritativeness is established ○ Authoritativeness ■ Court can take judicial notice or ■ Expert testimony as to authority ○ Treatise itself does NOT come in FRE 804 Declarant Unavailable ● Unavailability defined (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement; (2) persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarant's statement; or (4) is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under subdivision (b)(2), (3), or (4), the declarant's attendance or testimony) by process or other reasonable means. ● 804(b)(1) - Former testimony ○ Testimony from the same or different proceeding, or in a deposition ○ Unavailable declarant ○ Opportunity and similar motive to develop the testimony on direct, cross, or redirect ● 804(b)(2) - Dying Declaration ○ Statement must concern cause or circumstances of death ○ Unavailable declarant ○ Criminal homicide or any civil case ○ Declarant’s belief of imminent death ● 804(b)(3) - Declaration against interest ○ Statement of an: ■ Unavailable ■ Non-party (generally) ■ Against interest when made (penal, pecuniary, or proprietary) ● 804(b)(4) - Statement of Pedigree ○ A statement concerning a declarant's own relationship by blood, adoption, or marriage or other similar fact of personal or family history.
