Evidence Flashcards
1
Q
Types of Evidence
A
Testimonial (text: fact/expert/character)
Photographic (& cell phone/surveillance videos)
Demonstrative (JC’s spiderman trial wall mockup)
Documentary (e.g. receipts, emails)
Real (must be authenticated)
Forensic
Expert (Text warns of eyewitness id)
Stipulations & Judicial Notice
2
Q
Direct vs Circumstantial evidence
A
Circumstantial requires an extra inference. ie. For example, def’s fingerprints at burglary scene (did
he burglarize, or was he a past invitee?)
3
Q
Two ways to dispute evidence:
A
OBJECT
MOVE TO STRIKE
4
Q
FRE 103(a)(1)(A) : Timeliness
A
Object as soon as ground known (or reasonably should be known)
Failure to timely object waives challenge on appeal
Allows judge to rule before jury learns of potentially inadmissible evidence, & to allow opponent to try to cure defect
5
Q
FRE 103(a)(1)(B) : Specificity
A
Unless specific ground stated, appellate court won’t consider challenge to evidence
If multiple grounds, raise each; raising only one will not prompt judge to consider others, or preserve others for appeal
Specificity not required if basis apparent from context; but the best give one word or rule # grounds
6
Q
FRE 103(a)(2) : Offer of Proof
A
When party objects, opponent makes offer of proof to show what evid would be (after ct rules to exclude the evidence)
Failure to do so waives objection on appeal
7
Q
FRE Rule 103
A
When judge rules on motion in limine, losing party need not repeat objection/offer of proof at trial
Appellate courts apply abuse of discretion test re evidentiary error
But reversal only allowed if the error affects a “substantial right” of a party
(i.e., reas. prob. that if ruling made correctly, outcome different)
8
Q
LEADING QUESTION [FRE 611(c)] (and exceptions)
A
Almost Always OK on Cross-Examination
On Direct, OK, if: 1. Preliminary/foundational 2. Necessary to develop the witness’s testimony 3. When examining a hostile witness or adverse party
9
Q
Objections to the Substance of Testimony
A
IRRELEVANT [FRE 401, 402]
IMMATERIAL
HEARSAY [FRE 801]
LACK OF PERSONAL KNOWLEDGE [FRE 602]
NO FOUNDATION
CALLS FOR SPECULATION
CUMULATIVE/WASTE OF TIME [FRE 403; CEC 352]
CONFUSING/MISLEADING [FRE 403; CEC 352]
PREJUDICE OUTWEIGHS PROBATIVE VALUE [FRE 403; CEC 352]
INADMISSIBLE OPINION OF LAY WITNESS [FRE 701]
CALLS FOR PRIVILEGED MATTER [FRE 501, 502]
CROSS IS BEYOND SCOPE OF DIRECT [FRE 611(B)]
IMPROPER IMPEACHMENT [FRE 613]
10
Q
FRE 402 (relavance)
A
If evidence is relevant, then it is admissible, unless a specific rule, statute, or Constitutional provision bars its admissibility.
11
Q
FRE 401 (relevance test)
A
Relevant if
- has ANY TENDENCY
- To make a FACT MORE OR LESS PROBABLE than it would without the evidence, and
- The fact is OF CONSEQUENCE in determining the action
12
Q
Old Chief case
A
Evidence can be relevant even if it addresses a matter the opponent concedes
ie refusing request to stipulate to past felony
13
Q
Things that are NOT Evidence:
A
Statements, arguments, questions by lawyers
Exhibits identified by a party but not received in evidence
Objections by counsel
Testimony or exhibits stricken by the court
Anything jurors see or hear outside court
14
Q
The Relevance of Negative Evidence
A
Rarely will evidence of the lack of a fact be admissible to prove another fact; The Robert Fuesting Marijuana Farm Case
15
Q
FRE 403: The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
A
- Unfair prejudice
- Confusing the issues, misleading the jury,
- Undue delay, wasting time, or needlessly presenting cumulative evidence
16
Q
Cal.Evid. Code 352: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will:
A
(a) necessitate undue consumption of time, or
(b) create substantial danger of undue prejudice, Of confusing the issues, or Of misleading the jury
17
Q
FRE 407 Remedial Measures
A
Is not admissible to prove:
- negligence,
- culpable conduct,
- a defect in a product or its design, or
- a need for a warning or instruction
Fed rule includes strict liability & beyond tort claims (examples)
18
Q
FRE 407 Remedial measures (Exceptions)
A
1. Impeachment and if disputed: 2. Proving Ownership 3. Proving Control 4. Proving Feasibility
If controverted or disputed only
Doesn’t apply to non-parties
19
Q
FRE 408: Settlements and Offers to Compromise
A
Excludes:
- Settlement offers by any party
- Conduct or statements made during negotiations
Overall:
•Claim has to have arisen, & be in dispute, & offer occur during compromise negotiations
- Only excluded when offered re validity or amount of claim, or to impeach
- Admit to prove bias, negate delay, or show obstruction of justice
- Finally: limited crim case exception
FRE 408 applies to all settlement discussions, even parties no longer involved in case
20
Q
FRE 408 Settlements (Criminal Exception)
A
- Statements made during negotiations with a public office exercising regulatory, investigative, or enforcement authority
- Admissible in any subsequent criminal trial
- Both prosecutor and defendant can invoke
• But most likely to benefit prosecutor
21
Q
FRE 409: Offers to pay medical expenses
A
Excludes the offers to pay medical expenses and payments of them, not offers to pay lost wages or repair property damage
Only excluded when offered to prove liability (not bias, ownership, control, etc)
Encourages persons and businesses to pay injured victims’ medical expenses
Can reduce damages and avoid lawsuits
Remember injured worker hypo: offer for extra wages acceptable but not the medical expenses part
22
Q
FRE 411 Insurance
A
Excludes fact, or lack of, liability insurance to prove negligence
But OK to prove bias, ownership, control, etc
Encourages obtaining insurance
Fact that it has insurance is of little relevance but is enormously prejudicial (if insured, jurors may grant more money, if not, maybe find no liability to avoid company bankruptcy)
Only applies to liability insur, not life insur/disability insur/health insur
23
Q
FRE 410. Pleas, Plea Discussions, and Related Statements
A
Excludes some offers to plead guilty, as well as statements made during plea bargaining in BOTH criminal and civil trials
Doesn’t exclude final guilty pleas
Excludes guilty pleas later withdrawn
But: statement may be admitted if to be fair re other statements during plea discussions, or Statements may be admitted in perjury case if made on oath, on record, w/atty
NOTE: Doesn’t exclude confessions
24
Q
FRE 606 Juror Testimony
A
(a): Juror’s may not testify as witness before other jurors at trial
(b [CAL EC 1150]): Juror may testify re: inquiry into verdict, but not about mental processes or deliberations, only about outside info/influence/mistake in verdict form.
25
FRE 602 Witness knowledge personal
Witness must have personal knowledge
Doesn’t mean direct, eyewitness knowledge of ultimate fact in dispute is required
But information may be based on seeing, hearing, or otherwise sensing
Ask: What does this witness personally know?
26
Cop in a grand jury: what 3 things to do to be fair?
1. Don’t let police officer testify (606(a))
2. Other witness can’t specify the first officer was involved or reference them
3. Exclude officer from jury for that case
27
Direct Examination Flow
1. Introduce the witness to the jurors (humanize and ease witness jitters) (eg. Garfield Shuffer)
2. Lay the foundation
3. Establish personal knowledge
4. Allow witness to tell her story
5. Jurisdiction!
6. ID of defendant!
28
FRE 614 Court's Calling or Examining a Witness
Judge may call witness (rarely occurs)
Judge may question witnesses (often occurs)
Can object then, or as soon as jury not present
Final tip: judge in control about how close attys can get to witnesses (may I approach?)
29
FRE 615: Exclude Witnesses
At a party’s request, the court must order witnesses excluded so that they cannot hear other witnesses’ testimony.
Except . . .
Parties (Crim. Def’s always go last)
Representative of a corporate or organizational party
Witness essential for preparation (e.g., investigating officer)
Trial tip: if you request exclusion (which ct must grant), police your wits or may lose them! (JC new pub def trial story)
30
Refreshing Recollection: Steps
1. Witness says she can’t recall
2. Identify “memory jogger” and ask witness if that might refresh
3. Show memory jogger to opposing counsel
4. Show memory jogger to witness (w/ct ok)
5. Take memory jogger away
6. Ask witness: “Did that refresh your memory?”
7. Ask witness to testify from memory
31
FRE 612(b) Refreshing Recollections (adverse party moves)
Adverse party may:
1. Have opponent produce the writing
2. Inspect the writing
3. Cross examine the witness about it, &
4. Introduce into evid any part of it that relates to the witness’s testimony
Illegally obtained things for refreshing memory:
Generally allowed, but not generally admissible independently
32
Rule 604. Interpreter
An interpreter must be qualified and must give an oath or affirmation to make a true translation.
33
FRE 607
Any party may attack the credibility of any witness
When would you attack your own witness?
- -Hostile witness
- -Witness changes story
- -To “draw the sting”
34
Extrinsic Evidence
Evidence other than testimony from witness on stand (e.g., a diff. wit. w/diff. point; a document, like an email)
35
Collateral Matter
Something relevant only because it impeaches; if it proves a fact of consequence, it is non-collateral (even if it also impeaches)
36
Impeachment with Prior Inconsistent Statement (Some Key Rules about EE)
Extrinsic evidence allowed never on purely collateral matters! Allowed on non-collateral matters subject to FRE 613
1. If the inconsistency involves a fact of consequence, the judge will take time for extrinsic evidence.
2. If the inconsistency involves a collateral issue, the judge probably will limit exploration to questions.
Unlike inconsistent statements, BIAS is NEVER collateral, so extrinsic evid always ok
37
FRE 613 Witness’s Prior Statement (how to handle)
1. May ask witness about prior statement without showing it to the witness. Advocates choose to show to witness.
2. But must show statement to opposing counsel on request.
3. If you use extrinsic evidence of prior statement, the witness must have an opportunity to explain or deny
4. And opponent must have opportunity to examine witness
38
FRE 801(d)(1)(A) Prior Inconsistent Statements allowed when:
allows prior inconsistent statement in for truth only if given under penalty of perjury at trial, other proceeding or in deposition.
39
Tactical Tip for Prior Inconsistent Statements
When one side impeaches witness w/prior inconsistent statement, other side can rehabilitate witness w/prior consistent statement, if it occurred before the inconsistent one;
40
FRE 610 Religious Beliefs
Religious beliefs are not admissible to attack or support a witness’ credibility.
41
Ways to Show Untruthful Character
1. Cross-examine about untruthful acts, 608(b)
2. Introduce evidence of prior conviction, 609
3. Offer reputation or opinion testimony about untruthful character, 608(a)
42
FRE 404(a)(3) Prior Bad Acts (when admitted?)
Rules of evidence generally exclude character evidence FRE 404(a)(1)
But, exceptions:
404(a)(3) wit character can be admitted under:
1. FRE 607 to impeach
2. 608 to show character for truthfulness
3. 609 showing prior conviction
43
FRE 608(b) A Witness’s Character for Truthfulness or Untruthfulness (how to handle)
The court may, on cross-examination, allow specific instances of a witness’s conduct to be inquired into if they are probative of the character for truthfulness or untruthfulness
Have to accept answer
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
ie. the fact that the witness cheated on an exam
A “good faith belief” under Rule 608(b) is most like a probable cause for a warrant
44
FRE 609(a): Impeachment by Evidence of a Criminal Conviction generally
Rule only applies to attacking witness’s character for truthfulness by evid of crim conviction
So, if prior is an element of the crime, then can use w/o applying 609 (remember Old Chief case: ex-felon w/gun); but if not an element, jury can’t use prior to prove guilt or liability (even felons deserve fair crim trials, or ability to sue folks who wronged them civilly)
45
FRE 609 Prior Criminal Convictions General Rules (a)
Must be admitted:
1. Applies to felonies (crimes punishable by death or imprisonment > 1 yr)
2. In civil cases, and in criminal cases, when
3. witness is not the defendant (eg: DA wits; def alibi/char wits)
AND
1. In crim case
2. where wit is the def
3. Must be admitted, but only if probative value outweighs prej effect
(Slightly tilts balance towards exclusion, as FRE 403 requires prejudice to substantially exceed probative value)
AND
1. Applies to prior crime regardless of punishment
2. If crime involves a dishonest act or false statement
Court has no discretion under FRE 403
So prior convictions involving dishonesty or false statements are automatically admitted for impeachment (subject to rules on time limits & pardons)
46
FRE 609(b) Limits on Using Evidence of Prior Crim Convictions (timing)
For any crim conviction used against anyone, where > 10 yrs from conviction or person’s release (whichever later)
Only admissible if
1. proponent gives adverse party reasonable written notice of intent to use, so party has fair chance to contest, AND
2. Court must determine that probative value substantially outweighs prej effect
One last trick w/10 yr old crimes: measured from date of conviction, or release, whichever later, so: can admit a 20 yr old conviction if served a > 10 yr sentence!
Violations of probation/parole & reincarcerations can extend the period even further
47
FRE 609(c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation.
Can’t impeach w/prior conviction if conviction pardoned or COR
If pardon/COR based on finding of innocence, can never use prior
If pardon/COR not so based, and person later does another felony, then can use prior conviction to impeach
48
FRE 609(d) Juvenile Adjudications (using these as prior crim convictions)
1. Juvenile priors admissible only in criminal cases
2. Only against witnesses other than the crim defendant if:
3. If admissible to attack credibility if were an adult conviction, AND
4. If admitting the evid is necessary to fairly determine the crim def’s guilt or innocence
49
Reputation or Opinion Evidence FRE 608(a) (when allowed)
Truthful character evid only admissible after char for truthfulness has been attacked (spoiler alert: NOT in CA)
50
Character Witnesses on Another Witness’s Character for Truthfulness
1. Must relate to a witness (who has testified)
2. Must relate to truthfulness
3. Reputation or opinion evidence on direct
4. Cross-examination on specifics (w/good faith belief)
5. No extrinsic evidence of specifics
6. Testimony on good character only after character attacked (CAL DIFFERENT)
51
Impeachment Overall Methods
Impeach witness with bias, interest, prejudice, inducement, etc.
Impeach witness with prior inconsistent statement (FR 613)
Impeach witness with character attacks
Prior bad acts regarding truthfullness (FRE 608(b))
Prior criminal convictions (FRE 609)
Prior reputation for truthfullness (FRE 608(a))
52
FRE 405(b) Character as an Element
```
When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
Remember 405(a) already allowed character testimony by opinion or reputation evidence
```
You can bring in extrinsic evidence if propensity is an element of the case (Beckham defamation example)
53
Rule 404(a)(1) Character Traits
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. (Remember: rule even applies to propensity evid about NON-witnesses!
54
the mercy rule (criminal cases only)
DA charges D w/bar brawl attack on V
Can D introduce evid of own peaceful nature?
YES (the mercy rule)
```
Can DA rebut w/D’s violent nature?
YES
D now says victim started it, has violent nature
What can DA do to rebut?
Show V not violent; show D is violent
```
Applies only to criminal cases
Allows defendant to introduce evidence about his character OR the victim’s character
Character trait must be pertinent
Prosecutor may respond, but not initiate
55
FRE special 404(a)(2)(C) Victim was first aggressor in homicide case
Once defense puts on evid that V the 1st aggressor (such as eyewitness, not just char evid)
Then DA can rebut w/character evid of V’s peacefulness
56
PROPENSITY OTHER Uses:
```
Motive
Opportunity
Intent (most common)
Preparation
Plan or Modus Operandi
Knowledge
Identity
Absence of Mistake
Lack of accident
```
57
Identity Special Rule
Evidence of other acts to prove identity NOT admissible unless identity is contested (e.g. assaulting def admits he stabbed, but in self-defense; can’t admit prior bar stabbings to show identity)
58
FRE 406 Habit Evidence
Person’s habit, or organization’s routine practice, is admissible to prove action on a particular occasion (can use as sword or shield)
Means regular response to a repeated specific situation
Proof allowed by any form of evid (but specific acts most common)
Corroboration not needed, & habit alone can support a verdict
59
Factors: Habit is
1. Specific conduct
2. Distinctive Situation
3. Regular Basis
4. Lack of a moral overtone
Relevance is crucial
No corroboration needed
Can self-admit the habit
60
FRE 412(a) Sex-Offense Cases: The Victim (Rape Shield)
Civil or criminal case
No evid victim engaged in other sexual behavior
No evidence of victim’s sexual predisposition
61
FRE 412(b) Rape Shield Exceptions
In Criminal cases:
1. may show victim’s sexual behavior to prove someone other than D did injury/left evidence:
2. Victim’s sex behavior (incl fantasies) with D ok if by D to show consent (or by DA for any reason)
3. When exclusion would violate D’s constitutional rights (eg. V falsely accused others)
FRE 412(c)
Proponent must give 14 days notice to court, opposing atty, & victim
Ct must hold sealed hearing, w/parties and victim to decide admissibility
62
Pie for impeaching character
1. prior inconsistent statement (FRE 613(b))
2. prior specific act of untruthful conduct, on cross (FRE 608(b))
3. by a prior criminal conviction (609) (Cal EC 788 different)
4. Opinion/Reputation for truthfulness (FRE 608) (Have you heard?)
5. essential element of claim (FRE 405(b))
6. in crim cases of def’s/victims (mercy rule) (FRE 404(a)(2))
7. Proving a non propensity purpose (ID, intent, etc) (FRE 404(b)(2);CEC 1101(b))
8. Sometimes used to prove propensity in special cases (FRE 406))
9. And Habit evidence for routine practice (FRE 406)
63
Similar Crimes in Sexual-Assault Cases
1. Criminal sexual assault D’s may have other sex assaults admitted (to show propensity) (need not be conviction)
2. Crim child molest D’s may have other child molests admitted (to show propensity) (under 14)
3. Civil sexual assault or child molest issue D’s may have prior sex assaults /child molests admitted (to show propensity)
4. All cases: Prosecutor must give notice to use 15 days before trial
64
Rule 801(d)(2)(A) party admission
A party admission, admissible as nonhearsay
65
Hearsay: THE TRUTH OF THE MATTER ASSERTED
Is a party using an out-of-court statement as part of the witness’s personal knowledge? (Not hearsay) (is it true, from Bohanan’s perspective, that the dispatcher reported a hot prowl?)
Or is the party using the statement to show something that the out-of-court declarant knew? (Hearsay) (is it true, from the dispatcher’s perspective, that a burglary really occurred?)
66
Statements Offered for NonTruth Purposes
To show knowledge of speaker
To show notice to listener
Publication in a defamation case
To show effect on listener (e.g. crim threats case)
Legally binding statements (e.g. consent to entry as burg defense)
67
Prior Inconsistent Statement
Not hearsay when used to impeach witness
The statement isn’t offered for the “truth of the matter asserted” [CA diff]
It’s offered to show that the witness has said different things at different times
68
Hearsay Analysis Steps
1. Witness referring to a statement, by a human, that occurred outside the courtroom?
2. Did the statement occur outside court? (Are you sure it’s a “statement”?)
3. Is it offered to prove the truth asserted?
4. Does an exception apply?
5. Does the 6th Amendment limit use of the statement?
69
FRE 801(a) / CA too: Statements
“a person’s oral assertion, written assertion, or nonverbal conduct intended as assertion”
Declarant + Assertion = Statement
Human + Intentional Communication
Human using machine to make statement still counts
Statements Need Not be Verbal
70
Four Categories of Hearsay Exception
Rule 801(d): “Not” Hearsay [CA: just exceptions, not exemptions as in FRE]
Rule 804: Declarant Not Available
Rule 803: Availability Immaterial
Rule 807: Residual Exception (Not in CA)
71
Prior Statements by Witnesses (801)
FRE 801(d) prior statement also admissible for TRUTH, but some added requirements, including prior statement given under penalty of perjury at a proceeding
801(d)(1)(A): Prior Inconsistent Statement [Cal EC 1235; 770]
801(d)(1)(B): Prior Consistent Statement [Cal EC 1236; 791]
801(d)(1)(C): Prior Identification [Cal EC 1238]
72
Prior Inconsistent Statement (801) allowed factors
Allowed if:
1. Declarant testifies at trial
2. Declarant subject to cross
3. Prior statement is inconsistent with courtroom testimony
4. Prior statement given under penalty of perjury
5. Prior statement given during proceeding
73
801(d)(1)(B): Prior Consistent Statement
Allowed if:
1. Declarant testifies at trial
2. Declarant/witness is subject to cross
3. Prior statement is consistent with courtroom testimony; recall it need not be made under oath or in a proceeding
4. Witness’s credibility has been attacked (note: prior consistent statement has to come before inconsistent stmt)
5. Statement probative for rehabilitation
74
801(d)(1)(C): Prior Identification
1. Declarant testifies at trial
2. Declarant/witness is subject to cross
3. Prior statement was identification of person (this exception found in CAL EC 1238) (CAL foundation req’s)
4. Our Final Class: Cross-Examining Defense ID experts
75
Present Sense Impression
1. Only applies to descriptions or explanations of events, not analyses or interpretations
2. Declarant must speak while perceiving event or “immediately after” (i.e., no more than a few seconds)
3. Time lapse so short as to preclude time to create a lie (a few minutes, if not seconds)
76
Excited Utterance
1. Declarant must speak while personally excited by the startling event (NOT objective std)
2. Excited utterance must relate to the startling event (but can go beyond description to analysis or interpretation)
3. Longer time frame allowed, so long as still excited & about event
4. Written statement not barred, so long as little time for reflective thought (e.g., ”OMG…” text)
77
FRE 803(3) State of Mind
Covers what one is currently feeling but not extended analysis
Can be:
1. then-existing state of mind (such as motive, intent, or plan) or
2. emotional, sensory, or physical condition (such as mental feeling, pain, or bodily health),
3. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will.
78
Hillmon (state of mind)
Many courts allow parties to introduce state of mind referring to future actions of another (CA appears to, as well as 9th Cir.)
Irresistible appeal of victim’s parting words (in murder or abduction cases)
79
Medical Treatment
Made for medical diagnosis/treatment (subjective)
Must be reasonably pertinent to such diagnosis/treatment (objective)
Describes:
Medical history
Description of past or present symptions/sensations
Reports of cause of condition
Generally exclude statements blaming cause
No contemporaneous req: OK back in time
External facts OK if pertinent to med care
80
Weird things allowed under Medical Treatment even though cause-based:
Gloria sues police for physical & emotional injuries from unlawful arrest; Goes to MD after release; MD testifies re her anxiety & pain in wrist, shoulder, back:
Handcuffed behind back
Gun pointed at her face
Put in cold squad car w/poor ventilation
All above allowed under medical exception thanks to 4th circuit
81
Recorded Recollection
Six Foundation Elements
1. Record (incl. memo, report, data compilation, tape recording)
2. Witness made or adopted that record
3. Witness once had personal knowledge
4. Witness made or adopted the record when that knowledge was fresh
5. Witness testifies that info was accurate
6. Witness has forgotten
Then witness reads it into record! (only adverse party can admit)
But once foundation laid & evidence read, this hearsay may be considered for truth
82
Hearsay Within Hearsay
FRE 805
| Find an exception for every layer!
83
Business Records
1. Need to have a business (very broadly defined) which has records that contain facts (opinions and conclusions too)
2. Need a qualified witness or other certified person to lay the foundation for the records.
a. They are the person with knowledge of the records
b. At or near the time
c. In the course of a regularly conducted business activity
d. Business’ regular practice to make the record
e. Foundation laid by custodian (or any person with knowledge of the records)
Finally, you rebut any showing that circumstances indicate lack of trustworthiness
How to defeat? Show unreliable, prepared in anticipation of litigation, etc
Business emails count
Watch for double hearsay in records
84
Public Records (overview)
1. Make sure you have a public record
2. Records of the office’s activities.
3. Observations (by the agency itself, not outsiders) pursuant to duty
4. Except matters observed by law enforcement personnel are not admissible against criminal D.
5. Unless the observation was ministerial. (done all the time, not specific, neutral, try to argue (good example: license plate crossing border, calibration record of intoxalyzer)
6. Results of an investigation by any public office are not admissible against a criminal defendant
7. Records are not admissible if they lack trustworthiness.
8. Statements by third parties require a separate hearsay exception
85
Absence of Records: FRE 803(7) & (10)
1. Still must show records generally fit biz/public exception
2. Custodian or other qualified wit shows absence relates to matter about which records were kept
3. In FED crim case, prosecution must give defense notice if proving absence thru certification only (so defense can call official)
Ie. No record of license
86
Ancient Documents
1. Document has existed for 20 years or more (CA: 30 yrs)
2. Authenticity established
3. Watch for hearsay within hearsay
87
Market Reports and Similar Commercial Publications
Data compilation
| Generally relied on
88
Learned Treatises
1. May come from any field
2. Offer substantive evidence
3. As long as accepted as reliable authority
4. Two peculiarities:
a. Must accompany expert witness
b. Read excerpts into record (so like recorded recollection)
89
5 types of Unavailability:
1. Privilege
2. Refusal to Testify
3. Lack of memory (real or feigned)
4. Death or Illness
5. Absence (& unserved)
90
Former Testimony (unavailability)
FRE 804(b)(1) ; Cal EC 1290
1. Declarant is unavailable
2. Prior statement was given at a trial, hearing, or deposition
3. Opponent [predecessor] had opportunity to develop testimony
4. Opponent had similar motive to develop testimony
No grand jury! No police statements!
91
Dying Declarations
FRE 804(b)(2) ; Cal EC 1242
1. Declarant is unavailable
2. Applies only to homicide prosecutions and civil proceedings [NO SUCH CAL LIMIT]
3. Declarant subjectively believed death was imminent
4. Statement concerns cause or circumstances of death
92
Statement Against Interest (unavailable)
FRE 804 (b)(3) ; Cal EC 1230
1. Declarant unavailable
2. Statement was against interest *
3. At the time it was made
4. Corroboration for statements against penal interest when offered in criminal case*
```
Three types
Pecuniary or proprietary interest
Civil or criminal liability
Render invalid a claim
CAL: against social interest also
```
93
Forfeiture
FRE 804(b)(6) ; Cal EC 1390
1. Declarant unavailable
2. Other party engaged or acquiesced in wrongdoing
3. Intended to cause unavailability
4. Wrongdoing caused unavailability
Tricky Spots
Persuasion and begging aren’t “wrongdoing”
Opposing party must specifically intend to make declarant unavailable
Courts construe acquiescence broadly (including if part of conspiracy, even if party didn’t know)
Government must prove wrongdoing by a preponderance of the evidence
94
Statements by an Opposing Party
```
FRE 801(d)(2) ; Cal EC 1220-1
Opposing Party Exemption is Very Broad
Applies to any statement by a party
Statement does not have to be an admission
Party’s availability is immaterial
```
Opposing Party: Two Limits
1. Declarant must be a party NOT victim in criminal prosecution
2. Statement must be offered against the party/declarant e.g.: defendant can’t offer own self-serving statement
95
Adoptive Admissions
1. Silence as adoption – In criminal cases, examine circumstances carefully (can’t use post-Miranda silence, or police interrogating questions asked w/o Miranda)
2. Statements of agents or employees
96
Statements of Co-conspirators (Exemption)
FRE 801(d)(2) (E) ; Cal EC 1223
1. Out-of-Court Statement Is Admissible Against a Party If It Was . . .
2. Made by a coconspirator
3. During the course of the conspiracy
4. And in furtherance of the conspiracy ← important
97
Residual Exception
Very rare but:
1. Statement still trustworthy
2. Most effective way to prove fact, & other admissible evidence not reas to find
3. Existing hearsay exception inapplicable, but close
4. Must give notice to opponent of intent to use at trial
98
Attacking a Declarant’s Credibility
When a hearsay statement — or a statement described in Rule 801(d)(2)(C), (D), or (E) — has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness.
The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
you can't use extrinsic evidence to show inconsistent statements like collateral damage for the proof dishonest acts that a witness denies
But, nothing stopping us and it's forensic evidence to show mental impairment with drugs for example
99
The Sixth Amendment general rule confrontation clause
In a criminal trial, the Confrontation Clause of the Sixth Amendment requires that, in order to admit an out-of-court testimonial statement of a declarant (i.e., hearsay) against a defendant
(i) the declarant must be unavailable, and
(ii) the defendant must have had a prior opportunity to cross-examine the declarant.
100
The 6th Amendment & Crawford (Testimonial hearsay)
Confrontation Clause only limits evidence in crim cases against def’s
(so no problem in civil cases or when def offering against gov’t–tho still subject to usual hearsay rules)
On exam: Mention Crawford, but say why it wouldn’t apply if it doesn’t
NON-testimonial hearsay OK by 6th A, so long as normal exception applies
Testimonial hearsay also OK, if declarant available as witness to be cross-examined
Even testimonial hearsay OK when decl is Unavailable, so long as def had prior opportunity to cross examine!
Used to be reliability test from Roberts, now Crawford
101
Stipulations
Judicially noticed facts are indisputable,
while stipulated facts are simply undisputed
• Parties simply agree to stipulate on point
neither contests
– E.g., white powder is .08 meth (at PX)
– DNA evid establishes D’s semen on V’s panties
(where defense is consent, not alibi)
• Jury must accept in civil case, not req’d in
crim (tho always do)
102
Adjudicative facts vs Legislative facts
Adjudicative facts are simply the facts of the particular case. (ex. is this cocaine)
Legislative facts, on the other hand, are those which have relevance to legal reasoning and the lawmaking process, whether in the formulation of a legal principle or ruling by a judge or court or in the enactment of a legislative body.
103
FRE 201 Judicial Notice of Adjudicative Facts
(a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact.
(b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it:
(1) is generally known within the trial court’s territorial jurisdiction; or
(2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.
(c) Taking Notice. The court:
(1) may take judicial notice on its own; or
(2) must take judicial notice if a party requests it and the court is supplied with the necessary information.
(d) Timing. The court may take judicial notice at any stage of the proceeding.
(e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard.
(f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive.
104
Wikipedia
```
Accepted:
Risk of a fatal car crash rises with blood alcohol level
Definition of “IP address”
Qualities of a Paso Fino horse
Songs performed by Ciara, Chris
Brown and other entertainers
```
Denied:
• Synopses of zombie movies and video games
• Meaning of digits in credit card numbers
• Information about Da Vinci’s “Vitruvian Man" drawing
105
Judicial Notice of Adjudicative Facts allowed when:
If the accuracy can be reasonably determined or reasonably not be questioned
106
Judicial Notice on Appeal
* Court may take judicial notice on appeal
| * But not of a fact necessary to support a criminal conviction
107
JC Ex of Judicial Notice (& Data Compilation)
* Wit says saw crime across st on cloudless night w/enough natural moonlight
* I introduce Almanac (or news clip) to show full moon at that date & time (which court admits as "data compilation")
* I get DAI in wit’s spot to photograph me at spot of crime under same (later) full moon; then show photo (familiar face to jury)
108
701 Lay Opinions: Lay opinion must be:
1. Based on perception
2. Helpful
3. Not based on scientific or specialized knowledge (not in CA)
109
702 Expert Testimony (elements)
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:
1. Reliable principles and methods
2. Technique reasonably/reliably applied
3. Evidence fits the facts (helpful to the fact finder)
4. Qualified
5. Rule 403 (probative value is substantially outweighed)
(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.
110
FRE 403 Prejudice
The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following:
1. unfair prejudice,
2. confusing the issues,
3. misleading the jury,
4. undue delay,
5. wasting time, or
6. needlessly presenting cumulative evidence.
111
Daubert factors for expert witness theory credibility
Daubert Factors
1. Can the theory be tested?
2. Has it been subjected to peer review and publication?
3. Is there a known error rate?
4. Are there standards controlling technique’s operation?
5. Has the theory been generally accepted?
112
Reliable application (Expert Witness Testimony)
Reliable Application
1. Followed rules of method/test
2. Applied in proper context
3. Ruled out other explanations, if appropriate
113
Helpful (Expert Witness Testimony)
1. Does the testimony fit the dispute?
2. Does it add a perspective that the jurors couldn’t provide on their own?
3. Does the testimony make sense?
114
“Qualified” (Expert Witness Testimony)
* Knowledge
* Skill
* Experience
* Training
* Education
Must lay foundation, just look at experience and training
115
Steps in Expert Qualification Process
1. Lay foundation re expertise (leading questions OK)
2. Offer wit as expert to court
3. Opponent can voir dire on expertise then, or save till cross-examination; if does voir dire, can object to wit’s expertise or not
4. Court rules on accepting wit as expert
116
Factual Bases of Expert Opinions: FRE 703, 705
1. Personal knowledge
2. Facts or data admitted into evidence (e.g., experts sits in trial, or asked hypo ?)
3. Inadmissible facts or data if they are the type reasonably relied upon by experts in the particular field
117
Strange exceptions for character with Expert Witness's
* The latter may offer opinions of another’s character, though specific acts supporting that opinion are inadmissible
* The latter may testify about another’s reputation, even though the 3rd party statements creating that reputation are inadmissible
118
Evidence Supporting Expert Opinion (703)
Independently Admissible: May use to show truth of the matter asserted AND to evaluate the expert’s opinion
Admitted under Rule 703: Admissible only to evaluate the expert’s opinion
You can use inadmissable hearsay if the expert relies on it to evaluate the experts opinion
119
Sanchez rule (expert witness)
Gen’l rule: experts may relate info thru training & experience, even if derived from conversations w/others, lectures, or treatises
BUT: experts cannot relate case-specific facts about which they have no indep knowledge (i.e. relating to particular events & participants involved in case at trial);
If gang expert bases opin on case-specific out
of court statements, must fit hearsay exception,
or call proper wit (& expert may then opine thru
hypo ?)
• And if expert relies on testimonial hearsay
(such as pol rpt statement), 6th A issue unless:
decl unavailable and def did prior cross, or def
forfeited that rt by wrongdoing
120
Sanchez rule example
ie. Def’s gang associate having diamond tattoo on arm is a case-specific fact to be proven by wit who saw tattoo, or an authenticated photo
• That the diamond is a specific gang’s symbol is backgrd info which a gang expert can testify to, as well as opinion that presence of the diamond shows gang membership
121
FRE 704. Opinion on an Ultimate Issue
(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.
122
Four Problems with Probability
* Factual foundation
* Technical flaws
* Distract jury from conflicts in testimony
* Confuse rarity of event with probability of guilt
ie. DNA case must say likelihood of a match is 1/quadrillion never says percentage
123
Expert opinion on credibility allowed?
Courts very reluctant to allow this even if technically allowed
124
Privileges FRE 501 and 502
Rule 501:
– Privileges governed by common law
– When state law governs civil claim or defense, state law determines privilege
• Rule 502: Waiver of attorney-client privilege
125
How to Analyze Privilege Issues
* WHO holds it (who may assert? Who may waive?)
* WHEN does it apply (all proceedings or only under certain circumstances)
* WHAT does the privilege cover (scope) (e.g., only certain communications oronly betw certain people, only certain topics?)
* HOW strong is it (absolute or qualified? Exceptions?)
126
Attorney-Client Privilege
1. Communication
2. Between a client
3. And a lawyer
4. That is confidential
5. And concerns legal advice
Big Exception: CRIME/FRAUD: EC 956 – NO priv if atty services sought to plan or commit crime or fraud (but past crime discussions are privileged)
127
Essay number of hearsay issues to spot:
Crim: 12
Civil: 6
BOTH JUST FEDERAL RULES!
128
exception in keeping A/C privilege
exception in keeping claim confidence when disclosure is reasonably necessary to avoid reasonably certain death or serious bodily harm.
Execution of innocent man may fall under this exception
129
Client admits crime to his atty: what must atty do?
So long as client doesn’t take stand, never reveal the confession
But if client takes stand & lies, atty must withdraw rather than suborn perjury (ethical requirement)
130
Upjohn rule
In the corporate context, the attorney-client privilege applies to not only those high-level employees who have the authority to act on the legal advice of the attorney, but also to any of those employees who provide information to the attorney so that he may give such legal advice.
Company can waive this at any time however
131
Work Product vs AC priv
Attorney-Client Privilege:
Any receipt of legal services
Communications between client & lawyer
Absolute privilege
Work Product:
Only in anticipation of litigation
Any documents prepared
Qualified for facts about the dispute
132
FRE 502 Waiver of Privilege
When the waiver is intentional . . .
The party must disclose other communications or information:
1. concerning the same subject
2. that ought in fairness be considered
When the disclosure is inadvertent . . .
The privilege-holder may take back the information if
1. The privilege holder took reasonable steps to prevent disclosure
2. The privilege holder promptly took reasonable steps to rectify
133
Spousal Testimonial Privilege
Applies when:
1. Spouse is a CRIMINAL defendant or target of GJ investigation. Other spouse may refuse to testify against defendant or target spouse. (not apply in civil)
2. Lasts for the life of the marriage
3. Applies to information obtained before the marriage
4. Shields all information not just communications
5. Witness spouse controls! The witness spouse may waive privilege and testify.
Exceptions:
1. One spouse commits a crime against the other or a child in the house, or
2. Both spouses are suspected of jointly committing a crime
134
When the marriage ends re: spousal privilege
Must actually be legally dissolved, not just separated
135
Marital Communications Privileges
1. Applies to all judicial proceedings, and both spouses
2. Protects marital confidences even after the marriage ends
3. Both spouses control, ie. both must waive the right
4. Only protects communications during the marriage
5. in confidence (young children around may be exception)
136
All these spousal privilege hypos: key distinction*
* IF SPOUSE ABOUT TO TESTIFY WHAT SHE SAW/SAID: Privilege issue
* IF COP ABOUT TO TESTIFY RE WHAT SPOUSE SAW/SAID: Hearsay issue
137
Psychotherapist-Patient Privilege
Applies to social workers, psychiatrists and psychologists as well.
Same as A/C privilege but only about diagnosis or treatment of a mental or emotional problem.
Dangerous patient exception is a jurisdictional split, similar to crime-fraud exception. May be pierced for sufficient need.
138
Privilege Against Self-Incrimination
```
• Available to any witness in any proceeding
• Protects people, not organizations
big:
1. Applies only to criminal liability
2. Applies only to testimony
```
139
Executive Privilege
US President and close advisors
1. Absolute protection for important national security stuff
2. "more generalized interest in confidentiality" is a weaker one, can be overcome by showing of need.
140
Clergy-Communicant Privilege
1. Communications
2. Made in confidence
3. By a person seeking spiritual counseling
4. To a member of the clergy
No federal exception for crime/fraud
Communicant controls the privilege
141
Crawford notes on police
Testimonial evidence can be even a police statement. Need to follow the rules!
1. Available now for cross
2. Was available for cross in the past
142
Rule 901. Authenticating or Identifying Evidence
To satisfy the requirement of authenticating or identifying an item of evidence:
1. Party only needs “sufficient to support a finding” to show its legit
2. To show the evidence “is what the proponent says it is”
It Does not:
- -Guarantee it is what it is
- -Opposing party can challenge identity of evidence
- -Can challenge it was tampered with
- -Establish compliance with other evidentiary rules
143
Evidence that requires extrinsic information for authentication
(1) Testimony of a Witness with Knowledge.
(2) Nonexpert Opinion About Handwriting.
(3) Comparison by an Expert Witness or the Trier of Fact.
(4) Distinctive Characteristics and the Like.
(5) Opinion About a Voice.
(6) Evidence About a Telephone Conversation.
(A) a particular person, if circumstances, including self-identification, show that the person answering was the one called; or
(B) a particular business, if the call was made to a business and the call related to business reasonably transacted over the telephone.
(7) Evidence About Public Records.
(8) Evidence About Ancient Documents or Data Compilations.
(9) Evidence About a Process or System.
(10) Methods Provided by a Statute or Rule.
```
Know:
Nonexpert handwriting
Distinctive Characteristics
Voice
Evidence about telephone
```
144
Authentication on social media
Can look to picture, maybe writing style, etc
145
Establishing chain of command
Preponderance of evidence
"that was the same bag I put in the trash, contents look the same"
"that was the same bag I retreived that is in court today"
146
Chain of evidence defense argument
Defense often argues in criminal cases that a breaking the chain of custody, is an example of reasonable doubt and the defendant should be acquitted.
147
Breaking the chain of custody defense rebuttal
Rope rebuttal:
Not a chain but a massive ship rope. A few strands may be broken but the rope still holds.
148
Best Evidence Rule FRE 1001-8
To prove the content of a document, you should provide that document itself.
Duplicates generally allowed, so long as no genuine question re authenticity. (ie has to be a mechanical, photographic, chemical, or electronic process.)
Can be admitted to the same extent as original unless
1. Authenticity is uncertain
2. Unfair to admit
149
FRE 1004 other evidence of content (exception to BER)
An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if:
(a) all the originals are lost or destroyed, and not by the proponent acting in bad faith;
(b) an original cannot be obtained by any available judicial process;
(c) the party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or
(d) the writing, recording, or photograph is not closely related to a controlling issue.
150
Rule 1007. Testimony or Statement of a Party to Prove Content
The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.
151
Rule 1005. Copies of Public Records to Prove Content
The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met:
1. the record or document is otherwise admissible; and
2. the copy is certified as correct in accordance by a custodian or is testified to be correct by a witness who has compared it with the original.
152
Electronically stored information (BER)
Can use a printout just need to verify it
For camera, can use film etc
153
When does BER apply?
Best evidence rule applies when a party is offering evidence trying to prove content.
Doesn’t apply if trying to prove a fact that could be shown with multiple types of evidence–no obligation even if one is available
154
Are Text Messages Subject to the Best Evidence Rule?
Yes, they are “writings” as defined by Rule 1001(a)
| • But court may allow oral testimony if the originals have been lost: Rule 1004(a)
155
Rule 606. Juror’s Competency as a Witness basics
During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that
(1) occurred during the jury’s deliberations;
(2) the effect of anything on that juror’s or another juror’s vote; or
(3) any juror’s mental processes concerning the verdict or indictment.
The court may not receive a juror’s affidavit or evidence of a juror’s statement on these matters.
156
Key Legal Principle: We don’t want jurors impeaching their deliberative process. Why Maintain a Black Box?
* Legitimacy
* Finality
* Efficiency
* Protect jurors (though jurors can talk to lawyers, public after verdict; just won’t legally matter unless fits rare exceptions noted in rule)
157
Ways to Peek Into the Box (Jury rules)
* 606(b) only bars juror statements raised after the verdict
* 606(b) bars only juror testimony
* 606(b) allows testimony about outside influences or extraneous prejudicial info (PAY ATTENTION TO THIS)
* 606(b) allows testimony about clerical errors
158
Jury issues removal
Bad juror? Could act on that
Letter from juror? Nope, after the verdict and not admissible
159
Rule 606. Juror’s Competency as a Witness Exceptions
(2) Exceptions. A juror may testify about whether:
(A) extraneous prejudicial information was improperly brought to the jury’s attention;
(B) an outside influence was improperly brought to bear on any juror; or
(C) a mistake was made in entering the verdict on the verdict form.
160
Race in 606(b) claims
Supreme Court reverses: 6th Am. Exception when “racial animus a significant motivating factor in juror vote to convict” (Rule not auto bar in racism situation, but trial court still has considerable discretion
161
Tanner jury case
Jurors drinking still not admissible
162
Jury Experiments
The jury can't do improper experiments, but they are allowed to manipulate any evidence that they are given.
163
Admission of a party opponent sixth amendment
Admission of a party opponent can confront himself, no sixth amendment issue
as this is an EXCEPTION. REFRESH MEMORY ON THIS.
164
Eyewitness ID
Important issue as people usually don't know the other aggressor/criminal
May be relevant if no other way to show (ie dna)
165
Impermissibly suggestive ID
Is it?
1. Impermissibly suggestive
2. Substantial likelihood of misrepresentation
Rare to get it kicked out. But common to get witness to reveal procedure to make sure it wasn't overly suggestive (ie. 5 white people and 1 hispanic person photo block)
166
Six ways to attack expert
1. WHO is the expert?
2. WHAT has he done/concluded?
3. HOW did he do it?
4. WHERE did he get his facts?
5. WHEN did he get his facts?
6. WHY is he testifying?
"He's a bought and paid for whore"
167
Pretrial Strategy for Expert Witnesses
```
Discovery
Researching the def. expert & area of expertise (“name.ppt”)
Interviewing the expert
Consulting your own expert
Assembling your expert notebook
```
168
Opponent using expert witness
1. Need to give notice in advance
2. Need to give resume and name of the expert
3. Examinations and tests they've done of the evidence
169
Expert resume (what to do if ones presented) (who attack)
Attack its credibility, maybe come up with a line of questioning to address it. Leading is fine on cross
Did they make up a credential? Strange credential?
170
Expert member of strange group question (who attack)
Q. doctor I noticed that you're a fellow the National Academy of forensic pedants...
A. yes
Q. Well, that must have been quite an honor when you accept it?
A. well, yes, it was I worked long and hard for that membership
Q. doctor isn't in fact that anyone can join that organization just by paying $500 annual dues?
171
Expert teacher question (who attack)
Q. How many such seminars, did you attend
A. he'll tell those numbers
Q. and these seminars are taught by nationally recognized masters in this field are they not doctor?
A. yes that's the case.
Q. Dr your association never asked you to teach these seminars did it?
(must ensure no seminars taught on resume)
172
WHAT attack
Sometimes you can attack an expert, not just on who they are, but on the very science that they're purporting to testify about.
Frazier case, made doctor speak about the theories of ghosts from personal experience and made them look crazy
173
HOW attack (eyewitness ID)
How did they come to the conclusion?
```
DEFENSE FACTORS:
STRESS
WEAPON FOCUS
CROSS-RACIAL
PHOTOSPREAD DAY(S) LATER
```
```
OUR FACTORS:
MULTIPLE ID’S
LACK OF BIG 3 DEFENSE FACTORS
LONG EXPOSURE
QUICK ID
DISTINCTIVE CUES
VIC. NOT DRUNK
MANY MISC. EXPOSURE VARIABLES
```
174
WHERE attack
Firsthand knowledge vs hearsay
175
Sequential lineups
Likely more reliable than show-up line ups according to studies. But maybe not due to other studies.
176
If the Defense tries to argue that this 1996 DNA exoneration study proved that I witness ids are are lacking in liability.
Cite other studies.
there's a study that says that false confessions are the real reason behind exonerations where is that DNA study said it was bad eyewitness ids.
177
WHY attack
The motive.
How much are you getting paid?
Do you always do expertise for one side?
Whats your proclivities?
178
Scan Duration (eyewitness ID)
Phony Frazier idea that taking too long after photo spread makes it less reliable
to rebut: needed a moment to think
179
Rebutting specific defense points for eyewitness ID reliability
STRESS: "yerkes dodson law" was done on monkeys over 100 years ago on drugs. Sometimes stress makes people more aware (remembering where we were on 9/11)
WEAPON: if you had a weapon you tended to focus more on the weapon, then, on the face of the perpetrator, because you were worried about put the weapon hurt you. This isn't really founded to extrapolate to the community.
OTHER RACE EFFECT: Studies show people bad at identifying other races. JC didn't give any real rebuttal besides maybe not all the time.
DISTINCTIVE CUES: "gold tooth", "english accent" etc. increases reliability of ID. Defense will argue lack of notice.
180
Photo biasing/Progression certainty
Defense may argue that seeing same person in several lineups is biased. Only works under assumption initial selection is wrong.
the more times you see this person, the more certain you feel that your selection was immediately accurate.
181
WHEN attack
Public defenders may not have enough time and expert has rushed to judgment
182
Using Percentages to gauge accuracy of ID (eyewitness ID)
90% sure. Defense will argue that that 10% of unsure illness is equal to reasonable doubt.
183
Unconscious Transferee (eyewitness ID)
Seeing someone earlier makes it more likely to ID them
Throw out under relevance
184
Hypotheticals
Use them for witnesses if they don't know facts of case
185
Public Records actual definition
(A) it sets out:
(i) the office’s activities;
(ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or
(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the opponent does not show that the source of information nor or other circumstances indicate a lack of trustworthiness.
186
Essay Organization Slide
1. Relevance (if q only ask about hearsay, skip relevance)
- -Logical
- -Legal
- -403 (not just prej v prob, but time/confusion as well)
2. Competence?
3. Authentication/Foundation? (all unavailability requires laying the foundation of unavailability)
4. Best Evidence (for documentary evidence only) (use what party said about it in the past?)
5. Privilege or Extrinsic Policy issues? (offer to pay, subsequent repair, etc) ←Don't forget
6. Hearsay and all of its exceptions
7. And note may need to lay foundation for HS exceptions
8. And cover any 6th amendment issues
