evidence Flashcards
what does a witness need to have to testify?
they need to have personal knowledge of what they are testifying about
refreshing recollection
if a witness does not remember something, their recollection can be refreshed by any object, sound, smell, ANYTHINGGGG.
the witness may only briefly gaze upon the refresher then testify from memory.
what rules does not apply to refreshing recollection / and what rule must be followed?
the best evidence does not apply to refreshers.
there is only one rule: the witness can’t just. start reading off the writing.
Because then the lawyer could just write little notes to the witness and coach him. This isn’t a game of telephone motherfucker, this is a trial.
opposing sides rights when it comes to refreshing recollection
- inspect our refresher
- use our refresher on cross examination against our witness
- introduce it into evidence as an exhibit
exception to refreshing recollection
if a witness uses something to refresh their recollection before testifying, the court has discretion whether to let the opposing side view it.
objections
objections are just statements opposing something that has happened in court or that is about to happen. you are asking for the judge’s immediate ruling on it.
rules around objections
1) timely –> at the earliest opportunity possible
2) specific –> you could say you are objecting on grounds of ____.
when is it not timely to object
when a witness leaves the stand.
uh oh goat, i should have objected earlier, what about jury instructions? (and expection)
you just waived that issue on appeal.
however, when it comes to jURY INSTRUCTIONS you can object later on IF PLAIN ERROR affecting motha fucking substantial rights has occurred.
how to show plain error in jury instructions
To show plain error in this circumstance you need to show the instructions are a clearly inaccurate statement of the law that would probably lead to an incorrect verdict.
Otherwise, without plain error -> the objection is waived if it is not timely.
Plain error doesn’t only occur with jury instruction fuck ups, it can occur anytime there is an enormous error affecting someone’s substantial rights.
offers of proof
When an opponent at trial argues against the admission of a piece of your evidence (whether physical evidence or testimonial), you may make an offer of proof:
Basically, an offer of proof is just you telling the judge
(1) what the evidence is (describing it or showing it to the judge),
(2) an explanation of how the evidence relates to the case itself, and
(3) arguments supporting admissibility of the evidence.
used to help determine if the judge abused their discretion.
motions to strike evidence at trial m
A motion to strike happens when some evidence got in that shouldn’t be admissible, and you’re asking for the jury to disregard it and preserve the error on appeal.
lay witness opinions - admissibility
Rabbits bouncing with purpose
In order for a lay-witness opinion to be admissible it must be:
Rationally based on the witness’s perception
+ Helpful to the jury.
+ Not based on technical, scientific, or other specialized knowledge.
But the ANSWER on the F24 will say the words:
Rationally based on the witness’s perception.
no opinions allowed, no conclusions allowed.
competency of witnesses
Basically you have to make sure the child (or crazy person) is reliable
The only important thing you need to know is that they have to have the capacity to understand their obligation related to telling the truth
dead mans statute
When it comes to civil, I repeat civil actions… you cannot testify in support of your own interest about a dead person’s estate
You can’t be like “oh yea Bob? I know Bob is dead and I stand to inherit his fortune but… he told me I could have all his shit twelve seconds before he died and he wanted to cut out my sister Karen”
if a dead mans lips are sealed by death, the survivors lips are sealed by the law.
A witness in violation of the dead man’s statute is deemed incompetent and cannot testify.
Pro-Tip: There is no federal dead man’s statute, but in diversity cases they will apply a state dead man’s statute.
judicial notice
Sometimes the court takes judicial notice of facts generally known in the jurisdiction or facts that NO ONE is arguing about from accurate, unquestionable sources
I’m talking about the motherfucking farmer’s almanac, historical facts, geographical facts
The court can take judicial notice of a fact on it’s own, or at the request of a party who supplies them with the necessary information
You have to remember, there are no mandatory presumptions in criminal cases.
In a criminal case you are PRESUMED INNOCENT
THE PROSECUTION MUST PROVE EACH AND EVERY LITTLE BABY ELEMENT OF THIS CRIME
So nothing is mandatory for the jury to consider.
In civil cases, you can have mandatory presumptions that the jury must consider.
what does a judge actually do to justify their 190,000 a year, unlimited benefits, and 3 hours of work a day?
DETERMINE RULES OF LAW AND ADMISSIBILITY
- determine preliminary questions of fact upon which admissibility depends.
like whether a witness is competent.
they aren’t bound by the rules of evidence when they do this. they can consider affidavits which are hearsay, really anything. jury doesn’t have to be present, and typically isn’t.
- judge can’t testify as a witness if they are presiding over a trial
- judges, not juries, determine admissibility of hearsay evidence and confessions. must be outside presence of jury.
- run the court rule
determine order of witnesses, timing, who presents, determines what evidence comes in, etc.
can a judge let in circumstantial evidence?
I mean… my Goats… all evidence doesn’t need to be direct. A defendant using an alias or nickname could be let in, for example, so long as there was other corroborating evidence that linked him to the crimes.
Or perhaps I send you $100,000 in cash to your bank account. That isn’t by itself illegal… but it will serve as circumstantial evidence that we were standing on some Goat Gang business together.
what can juries do / not do
- determine credibility - judges determine admissibility, juries determine credibility and reliability of witness testimony.
- jury misconduct - things like lying during voir dire or running your own experiments or googling stuff can lead to a new trial.
- jurors can talk to press - but only once the trial is done.
- can’t testify about the deliberation - can never. can testify about outside influences.
- can’t be witnesses
what level of juror misconduct will get us a new trial?
we are looking for crazy, overt acts or concealed bias.
Such as:
Intentionally agreeing to nullify the verdict (i.e. choosing the side the jury wants to win to make a societal statement, not based on the facts)
A juror, EVEN WITH THE BEST OF INTENTIONS, bringing in “expert” or “specialized” opinions could be grounds for a new trial. I saw one case at the civil court where a train conductor told everyone how the gate sensors work on the train track warning things… and the case got remanded for a new trial lol.
Goat-Note: If a juror has specialized knowledge and agrees not to use it, they can still serve on the jury. Merely possessing specialized knowledge isn’t an automatic knock-out.
Using a random ass formula to come up with a verdict, like adding everything up and dividing by 7. These are called “quotient” or “compromise” verdicts… NOT ALLOWED.
Communications with others about the case, via social media or in-person.
So in summary: We can’t hear about arguments inside the jury room -
If a juror says afterwards “yea Donny screamed at me back there in the jury room and I got intimidated” or “the whole thing seemed to be a bit… harsh… so I went with my gut.” This will all be inadmissible and not grounds for a new trial.
Refusing to deliberate at all
presumptions - two nuances
- the state has the burden of proving every element of the offense - if there are three elements to the crime, the state has to prove all three elements.
- there are no mandatory presumptions allowed in criminal trials
jury instructions asking which one violates the defendant’s due process
The one that says “IF WE PROVE A, WE DON’T HAVE TO PROVE B” will be the right answer.
mail presumptions
This is related to the idea that government officials (like post office workers) will carry out their duties of actually delivering the mail.
So if one side shows the damn mail was properly addressed, stamped, and sent out… it is then presumed to be received by the other side.
Obviously, the other side can still rebut this with evidence it wasn’t received, but without any evidence rebutting it… the jury will hear that it was received (in civil trials, not criminal trials… in criminal trials it is still up to the jury’s discretion and only permissive presumptions are allowed)
standard of proof for overturning a judge’s evidentiary rule is
abuse of discretion
Remember: The Appellate court will NOT overturn a judge on abuse of discretion grounds unless he acted arbitrarily or irrationally.
leading questions
allowed on cross
They are just questions which suggest a right or wrong answer.
i.e. “You were dancing in the rain, weren’t you?”
They are never allowed on direct examination.
Leading questions are only allowed for hostile witnesses who are adverse to us (which is why we almost exclusively allow leading on cross-examination, because all those witnesses are typically adverse or hostile lol)
HOWEVER, leading questions are sometimes allowed on direct in certain limited circumstances, such as:
- Introductory matters (you can kind of speed up the initial questioning process and be like “alright Kevin you’re from Cleveland, right? Married?” etc.
- Very young or forgetful witnesses. The judge will allow you to guide them a bit with leading questions.
leading questions… what if a witness YOU called is being biased, evasive, argumentative, or changing their story on YOUR DIRECT EXAMINATION of them?
If you ask permission… Daddy Judge will let you cross your own witness in most cases.
basics of cross examination - scope of cross
you can only ask about matters within the scope of the direct examination OR things that test the witness’s credibility (bias, perception, memory)
you can’t just start talking about some crazy shit, only what was discussed on direct.
when can you impeach someone
at anytime!
Impeachment is always relevant and can always be brought up, even if it’s not within the scope of the earlier questioning.
re-direct
surprise, you can only talk about what was on cross.
opening the door
So when a witness “opens the door” and brings something in which is OUTSIDE the scope of the previous questioning… we have a big problem.
Now the other side will have a chance to respond to cure the prejudice from your little fuck-up.
If we are talking about apples… and you start talking about bananas… well now on my re-direct I can bring up the bananas.
witnesses / who can be excluded from the court room
Witnesses can be excluded from the courtroom so they don’t hear what other people are saying and tailor their testimony to that.
We don’t want people listening in on other witnesses and thinking up crazy ass intricate lies that all fit together.
what witnesses cannot be excluded from the court room?
- people permitted by statute (like victims)
- a person whose presence is essential to a party presenting their case (like a jury expert or a summary witness)
- the parties themselves (and their lawyers)
goat note: Remember, a party themselves (like the defendant) doesn’t have the right to be present for all parts of the trial (like when the lawyers go back and argue a quick in limine motion)… just the important parts in front of the jury.
Sometimes the MBE tries to trick you into thinking certain people can be excluded because they have bad records lmao. No, they can still testify. They will just get impeached based off their bad records.
what can a judge do with witnesses?
it seems like everything
The judge can also examine any witness they want or call their own witnesses or experts. If a lawyer is fucking up badly, the judge will just start cross-examining the witnesses on their own. My old boss was 87 years old and the judge himself would basically play the role of defense lawyer and question everyone lmao.
what is impeachment
simply casting an adverse reflection on the veracity of a witness aka calling a witness on their bullshit
The only limitation is that you can’t call a hostile witness solely to impeach them lmao.
impeaching someone with extrinsic evidence
(and when I say extrinsic evidence, I’m talking about calling other witnesses or bringing in documents to prove someone is lying)
ways to impeach someone
- sensory deficiencies
- sounds of silence in a civil trial (in criminal you have the right to remain silent)
- prior convictions (dependent on the amount of time passed, what type of crime it is, and whether or witness is the defendant or not)
can we impeach with prior convictions
- any crime over 10 years old… excluded unless probative value substantially outweighs prejudice risk (hard test)
- any crime under 10 years old
dishonest crime = comes in
nondishonest crime = defendant is a witness = felonies only, excluded unless probative value outweighs prejudicial risk
defendant is not a witness = felonies only; admissible as long as it passes 403 balancing test (not meant to waste time, confuse jury, etc)
crimes that involve dishonesty
whether felony or misdemeanor ARE COMING IN.
Forgery.
False statements to IRS.
It’s coming in to impeach your ass.
The reasoning: If you lied back then, your ass is lying on the stand now you hecking liar.
old ass crimes over 10 years old from release from prison or conviction… whichever is LATER
look for word: SUBSTANTIAL
Okay Goat, we know all that dishonesty shit gets in.
But when it comes to the old shit… the probative value of the conviction must substantially outweigh its prejudicial effects
& you have to give the other side ADVANCED notice of your intent to use it!
basically… if a non-defendant witness gets locked up in 2007 for two years then released, the conviction is admissible until 2019 (10 years after the later of the two dates, release or conviction… so 10 years after 2009 lol).
After 2019… we get hit with the harder substantially test.
Before 2019… we get the easy test (probative value must be substantially outweighed by a 403 danger like wasting time or confusing the jury)
what about when the defendant is a witness when we’re talking the defendant and it’s a felony under 10 years?
We are a little more protective when our defendant is a witness.
The probative value must outweigh the prejudicial risk.
The judge simply has to determine if it’s more important than prejudicial.
So when we’re talking the defendant and it’s a felony under 10 years… we have to make sure it’s probative.
what about when the witness is not the defendant for felonies
For any other witness we aren’t concerned that much that they get screwed over by a prior conviction impeachment or look bad in front of the jury.
When the witness is a non-defendant the prior felony convictions are admissible so long as they pass the 403 balancing test (will not confuse or mislead the jury, result in unfair prejudice, needlessly present cumulative evidence, YOU GET THE DRILL)
You can bring in the records of their conviction without laying any foundation as well.
When we’re talking about a normal witness… we basically have to make sure we aren’t wasting the juries time lol.
break down of prior convictions impeaching a witness
over 10 years = substantial
under 10 years defendant = probative
under 10 years witness = not wasting jury time
impeaching with prior bad acts (weren’t arrested) process
You can bring in specific bad acts which involve untruthfulness (things like lying and deceit, NOT prior arrests) as kind of a “shots fired” question on cross only
But you can’t go into it after you fire your shot
I could say to a witness on cross-examination who was talking shit “Isn’t is true that you… lied on your college application?”
If the witness says “no” … I can’t then bring in EXTRINSIC evidence to prove he did lie (like documents or witnesses)
Because then we’d have a goddamn TRIAL within a TRIAL
IF THE WITNESS DENIES THE CROSS EXAMINATION BY PRIOR BAD ACTS… I JUST HAVE TO ACCEPT THE DENIAL AND MOVE ON WITH THE PUPPY TRIAL
impeaching with prior bad acts (weren’t arrested) points
You have to have a reasonable basis to bring up these facts or it will be an ethics violation. I can’t just get up there and accuse a motherfucker on cross-examination prior bad act impeachment of attacking 57 grandmas with no basis… lmao. The judge will be like “um… what basis did you have to even ask that?”
- you can only reference the bad act itself, not any consequence that flowed forth from it.
- you can’t dirty up the witness either by impeaching them on collateral matters or irrelevant issues unrelated to truthfulness.
impeachment by contradiction
We need a way to police the witness. If the witness starts going a little nuts up there… we need to be able to take him down if we have in our possession directly contradictory evidence.
Students get caught up in all the crazy impeachment rules they forget about good old fashion impeachment by contradiction.
So if you get up on the stand and say “I have never once in my life ever seen cocaine.”
I can say “Well, you have 27 drug convictions for cocaine and you directly said an hour ago that you loved how cocaine made you feel in this same trial.”
If a man says “I’d never touch my wife” you can bring a witness up to say that he saw this man beat his wife.
So long as you are directly impeaching them on what they said and not impeaching them on some random collateral shit that doesn’t relate to the main facts, this will work.
what if a witness has a bias or interest in the case?
they can be impeached on that at any time. The most common bias or interest situations the MBE highlights are having a financial interest at play, or a personal vendetta against someone they are testifying about, or they are afraid of abuse from their husband, etc.
Remember… and this is kind of a mindfuck… but the bias and interest rules trump the other exclusionary rules.
Yea we can’t normally bring up issues of insurance, right? We can if this motherfucker is trying to burn his house down and we’re showing he has a financial interest to lie.
We can’t normally bring up what happened in the settlement conference, right? We can if this motherfucker got angry about something that was said in the conference and is now making up some shit on the stand to get back at someone.
So yea, just remember bias or motive. Can be raised at any time.
Random Goat-Note: Religious beliefs can’t be used to attack the credibility of a witness (example: you are not credible because you are a part of the church of Satan) but they can be used to show bias and motive (example: you attacked the christian church because you are part of the church of satan)
prior inconsistent statements
If we have two statements by the same person at different times, we can bring in the earlier statement to show that the defendant is being untruthful in court
Prior inconsistent statements are usually not available as substantive evidence… because they are almost always out of court statements and thus hearsay
If we want to impeach someone with extrinsic evidence of a prior inconsistent statement… The witness has to be given an opportunity to explain or deny the statement.
Once Goat left the jurisdiction he became unavailable, and you cannot impeach Goat using extrinsic evidence (i.e. a witness like Kevin Tipcorn) to show that Goat made a prior inconsistent statement without allowing him a chance to explain or deny the statement.
mind fuck exceptions to prior inconsistent statements
- You can impeach a hearsay declarant with a prior inconsistent statement without giving them a chance to explain or deny.
Remember, if a hearsay declarant’s statement gets in under an exception or exclusion… we can impeach it, and even rehabilitate it… just as if they were an actual witness testifying.
The credibility of BOTH the testifying witness and the hearsay declarant can be attacked through impeachment methods like prior inconsistent statements, prior convictions, bias, sensory deficiencies -> you name it, it can be attacked.
- If a prior inconsistent statement is from an opposing party, no opportunity to explain or deny is needed. It will get in as an opposing party admission automatically.
- If the court finds in the interest of justice that the prior inconsistent statement should get in without an opportunity to explain or deny from the witness, it gets in.
two times when the prior inconsistent statement can be brought in both to impeach and as substantive evidence
Mindfuck Concept #1: Normally the prior inconsistent statement is just allowed in for impeachment… however it can be allowed in substantively (meaning the jury can consider it for it’s truth as well, not just for it’s ability to show the witness a liar) when it is given under oath at a prior formal hearing, proceeding, trial or deposition.
Remember deposition, I bet that is how they will test it in F24.
Mindfuck Concept #2: Normally, as we said before, prior inconsistent statements are only brought in to impeach. However, when they are from an opposing party they can also be brought in substantively and be considered for their truth.
pro tip: you can impeach your own witness with a prior inconsistent statement usually by calling another witness.
prior consistent statement
Prior consistent statements can only come in when:
- Declarant testifies and is subject to cross; AND
- The previous statement is consistent with declarant’s in court testimony; AND
- The opposing party has attacked the witness’ in-court testimony; AND
Goat Trick Alert: Sometimes the MBE will try to mess with your head and have someone be rehabilitated… who wasn’t even attacked in the first place lmao. Not allowed.
- The statement must have been made before the motive to fabricate could arise;
I mean… if Alice and Bob have a huge argument THEN Alice says she saw Bob kill the guy… the statement can’t come in. The other side would have to show it occurred before the motive to fabricate could arise.
Remember, the prior consistent statement is a hearsay exception that comes in as substantive evidence, not just to rehabilitate! It can be considered by the jury for its’ TRUTH.
what proceedings do evidence rules apply in?
the federal rules of evidence apply at all proceedings except:
Grand jury proceedings
When judge is determining preliminary issues of fact (i.e. hearsay is available in motions to suppress)
Extradition proceedings
Preliminary hearings to determine probable cause
Sentencing
At sentencing hearings random people can just come in and fuck you up with some hearsay evidence just to smear your name lmao.
I was at one where this old lady got up and read this 40 page letter and said my client was lower than trash… then she turned on me and there was like 10 pages taking me down for some reason.
Parole/probation hearings
Hearings related to search warrants
Bail and bond proceedings
Final-Note: Federal law governs issues of privilege in federal court. But in diversity cases, they use the state privilege laws =)
relevancy
all relevant evidence is admissible so long as it is not hearsay and so long as it doesn’t hit a 403 danger.
usually the correct answer choice for relevancy questions will almost always say the word “probative” or “tendency”
I made a mnemonic: P.T. -> Physical Therapy (that this woman is about to have to do after crashing into my custom Bugatti Chiron)
403 dangers
confusing or misleading the jury,
wasting time,
causing unfair prejudice,
or being needlessly cumulative
Unfair surprise is NOT a reason to exclude relevant evidence. This is not a 403 danger lol. They always put that in the answer choices… it is a motha-fucking distractor and is wrong.
the standard in determining whether something is relevant is
does the evidence have ANY TENDENCY to make a fact of consequence more or less likely?
basically, does it move the needle, even slightly, on any fact that matters in our trial
scenarios involving consciousness of guilt
If a defendant destroys evidence…
Uses an alias…
Runs from law enforcement and flees the country…
or escapes from jail…
Well… this is all relevant evidence showing consciousness of guilt.
when evidence isn’t probative
Sometimes we have situations where evidence might be relevant… but the jury will likely put too much weight on it or there will be a danger of unfair prejudice.
If a man is arrested for burglary… evidence that he had a tiny bag of marijuana on him that he wasn’t charged for is likely going to be more prejudicial than probative.
showing the jury stuff
Sometimes things are too prejudicial simply because they are excessively emotional, shocking, or grotesque and they’d overwhelm the juries senses
Bar-Exam Pro-Tip: If the other side opens the door or puts a fact in controversy… you can take them down with evidence you normally wouldn’t be allowed to get in. The judge will almost always allow you to respond to any evidence placed in front of the jury (even if it shouldn’t have been) in order to cure the prejudice or respond to controverted facts
So if you have some fucked up pictures of a corpse… yea the judge will only allow that in to identify the victim, show the location of the death, prove the death, etc.
He won’t allow you to just continuously publish 100 pictures of the corpse from different angles.
But if the other side tries to get cute and say that the injury never happened or wasn’t bad or perhaps the death was a peaceful one…
The 100 corpse pictures are coming in Walking Dead style.
demonstrative exhibits being too prejudicial as well
the court won’t allow an expert to get up there and violently shake a baby for 15 minutes in order to prove a point in a shaken baby death case.
Finally, you can’t have prejudicial demonstrations that are not realistic.
All demonstrations and experiments have to be substantially the same conditions as the original event in question
conditionally relevant evidence
One final note: Some evidence is conditionally relevant and can be let in even if its relevance is based on a separate fact… provided that fact is proved first.
Such as: If I am charged with trespass, and you sent me a text two weeks prior which said “Come over whenever you want Goat!” … the text would be relevant only if I had actually read the text message.
So the court can admit the text conditionally, provided that the lawyer claims they will establish that I actually read it at one point first.
objections that can be made that might keep potentially relevant evidence out (6)
Lack of Foundation: This is when you are saying a witness has insufficient personal knowledge, so the evidence should not come in!
Calls for speculation: You’re supposed to testify based on personal knowledge, not guessing. Experts have a little more room to make some guesses, but not lay witnesses.
Compound: Asks two questions simultaneously and a “yes” or “no” answer could be to either one. i.e. “Can you dance if you want to and leave your friends behind?”
Argumentative: Not an actual question, you’re basically just talking shit, being sarcastic, or trying to get in a fight. i.e. “Do you REALLY think the jury will believe that?” or “THAT’S FUCKING RIDICULOUS”
Calls for a legal conclusion: “Did you think he was negligent?” … NOT allowed. The witness is not qualified to make this determination.
Misstating the Evidence: Question includes evidence that was never presented. “Isn’t it true that Johnny got shot 15 times?” when Johnny was only shot once.
authentication
before any evidence is actually admitted, we have to show that it is authentic first.
Well… we don’t have to conclusively prove it is authentic, but we definitely have to offer sufficient evidence that it is authentic before we can talk about it.
the burden is quite low
how to show evidence is authentic
chain of custody to show that an object is what we say it is. chain of custody authentication is only needed for items that are not readily identifiable. If an item is readily identifiable and can’t really easily be changed in any meaningful way, we don’t need chain of custody.
Unless there is a suggestion the evidence has been fucked with, the chain of custody will be met even though it may not be technically “perfect” i.e. it could be missing one link in the chain or one person may not show up to testify or we may be missing one signature, etc.
it is fine so long as no one is contesting it.
how do we authenticate photographs?
Photographs can be authenticated in several ways:
- Testimony of the photographer themselves; OR
- Testimony of someone who WITNESSED the photography; OR
- Testimony of someone who was there at the time or who has been to the location of the photograph to testify that the photograph is a fair and accurate representation of the area.
The key words here are that the photograph is a fair and accurate representation.. so long as this is testified to, it doesn’t matter that it isn’t the actual photographer who is testifying.
how do we authenticate photographs from unattended cameras?
If the camera is unattended, like a traffic camera of some sort, you must show that it was -
Properly installed;
The film was properly removed;
& THEN show chain of custody.
how do we authenticate x-rays and other medical renderings?
Okay so unlike photographs, X-Rays can’t be authenticated by the testimony of a witness that they are an accurate representation of… the bones lmao
You must show instead that:
- The process used to create the X-Ray is accurate;
- The machine was working properly; AND
- The operator was qualified to use the machine.
You also must show that it came through a proper chain of custody to ensure no one fucked with it.
how do we authenticate documents?
Party Admissions: If a party says that they themselves actually wrote a document… that is sufficient to authenticate it.
or
Personal Knowledge: A witness saying they viewed someone else write a document works to authenticate it as well!
how do we authenticate ancient documents?
When it comes to ancient documents… there will be a presumption of authentication if:
The document is AT LEAST 20 years old;
There is no suspicious shit on it (i.e. no white-out marks or things crossed out);
And it is found in a place of natural custody (such as an old book or newspaper being found in a library… not your friend Jimmy’s house next to his laser printer and counterfeit money machine)
how do we authenticate handwriting?
- handwriting expert
- lay witness opinion (someone who previously was familiar with the author’s handwriting)
- visual comparison by jury
authenticating phone calls - outgoing calls
if it’s outgoing (where the testifying witness is identifying the source of someone who they called) we need
(1) proper phone number, and
(2) person answers with the same name as who the phone number is linked to.
So basically… the rules of evidence assume people are not complete schizo lunatics who answer THEIR OWN PHONE… BY GIVING SOMEONE ELSE’S NAME lmao
So if I call Cow… and I can prove that I called Cow’s phone number in the phone book… and Cow answers and says: “hello this is cow”
authenticating phone calls - incoming calls
When it’s incoming (where the testifying witness is identifying the source of someone who called them) we need
(1) the caller to identify themselves, and either
(i) recognition of their voice,
(ii) you recognize what they are talking about, or
(iii) you recognize their reply technique when you ask them a question.
When it is a call to a business, all you need is to prove that you dialed the number of the business, and they answered the phone talking about business shit.
The assumption is that… if you call Home Depot’s number… and someone picks up the phone and says “Home Depot… how may we help you?” … well… that should be reliable enough for you to talk about that call in court.
authenticating a voice that is not on a phone call
So a voice can be identified based on the opinion testimony of any person who is familiar with the speaker’s voice… and this familiarity may be acquired at ANY TIME
So the actual interaction I’m talking about at trial… I can say “yea I know Kyle… that’s how his voice sounded… so when he called that day I knew it was him.”
But… if I hear your weirdass raspy voice and I don’t know what it is at first… like I just hear someone yell “I’M GOING TO SHOOT”…
then I learn it is KYLE’S VOICE later on when a detective plays me a recording of Kyle’s voice… I can testify BACKWARDS and say “yea that was fucking Kyle’s voice… I gained a familiarity with it later on.”
you just need to offer enough evidence sufficient to show that the voice should get in… then the jury will decide the weight they give it.
you can gain this familiarity with a voice by hearing it in person or electronically through the phone or on a recording device.
self-authenticating documents
Certain documents do not need a witness to testify to their authenticity.
These include:
Official publications;
Newspapers or periodicals;
Pro-Tip: We can’t get the contents of the articles in, mainly just the newspaper to show that a party had notice of something like a class action or some shit.
Trade inscriptions;
Notarized documents
Certified copies of public records OR certified copies of business records; Like a vehicle registration form
Commercial paper
character evidence
evidence that describes the nature or disposition of a person… or how it is anticipated they will act under certain defined circumstances.
three ways to prove character
- Opinion testimony i.e. a witness testifies “I know Goat personally, and in my opinion he is a very honest person”
- Reputation testimony i.e. a witness testifies “I know Goat’s reputation in our pasture, and he is considered to be extremely non-violent.”
- Specific acts i.e. a witness testifies “A year ago I saw Goat save a grandma from being attacked by a mugger.”
At different times, we are allowed to use different methods.
character evidence in civil cases
evidence of good character is NOT ALLOWED in civil cases UNLESS it is an essential element of the claim or defense.
- negligent hiring
- child custody hearings
- defamation
Example: If someone is suing you for defamation for calling them a thief, prior acts of them actually stealing shit will be admissible to refute the charge and raise the defense of truthfulness. Character can come in. - negligent entrustment
So anytime character is an essential element of a claim or defense in a civil case, you can bring in ANY of our three ways to prove character (1) opinion, (2) reputation, AND (3) prior bad acts.
character evidence in criminal trials, sexual crimes
the prosecution cannot be the first side to bring up character evidence in a criminal case… unless we are talking about rape, sexual assault, and child molestation.
And thus, FRE rules 413, 414, and 415 were born to allow the prosecution to strike directly at a defendant using propensity evidence.
If you are being charged with child molestation, and have been accused of it in the past… the prosecution can get on the stand and say “This defendant is a child rapist who has been accused of it in the past before, even though he was not convicted.”
Even if the defendant never testifies.
It can be used as purely propensity evidence, saying, in essence “because the defendant acted this way before, he is guilty now too.”
character evidence in criminal trials
Okay so besides sexual crimes, the prosecution can never be the first person to bring up character evidence and they can never use propensity evidence like that.
the defendant opens the door to character evidence
Defendant may introduce evidence of a relevant… I repeat relevant character trait (through reputation or opinion testimony of one of their buddies A.k.A. a CHARACTER WITNESS), which then opens the door for the prosecution to rebut this evidence. They can introduce this reputation or opinion evidence even if they do not testify.
they cannot open up with prior act character evidence, so having a character witness say “I once saw goat save a caravan full of grandmas from certain death” is not allowed. this is the trial within the trial thing.
what is a relevant character trait?
The defendant can only open the door with a pertinent character trait to the crime at issue.
ONE THAT IS RELATED TO THE CRIME WE ARE THERE FOR!!!!!
In a murder case for example, evidence that the defendant is violent or peaceable is related to the charge, so the defendant can open the door with this evidence.
In a fraud case, honesty is a pertinent character trait, so the defendant can open the door to reputation and opinion evidence about his incredible honesty.
In a perjury case, truthfulness is a relevant character trait.
However, in a battery case… honesty is not a relevant character trait.
The MBE will try to trick you and make you think the defendant can bring in evidence of his honesty for a violent case… no, not pertinent.
However, things like whether someone is law-abiding are generally relevant in all criminal proceedings.
how can the prosecution respond to these reputation and opinion witnesses?
when the defendant opens the door, the prosecutor can shut it in two ways:
- when defendant opens the door, prosecution can respond with their own reputation or opinion witness.
- when defendant opens the door, the prosecution can ask the character witness about specific bad facts related to the defendant.
evidence of the victims character can be introduced in self-defense situations
So sometimes… a victim may have a bit of a bad reputation in the community for beating the shit out of everyone.
And when the defendant is alleging self-defense… this bad reputation can come in (through opinion or reputation evidence that the victim was a crazy violent fuck like our friend Monterio, the baddest motherfucker in town)
It’s relevant because it may show that the victim was the initial aggressor.
how prosecution may challenge reputation or opinion evidence of the victim
they can respond by showing
- the victims good character; OR
- the defendant’s bad character for the same trait (basically saying the defendant has a reputation for being violent THEMSELVES)
reputation / opinion evidence in homicide cases
If the defendant offers ANY evidence that the victim was the first aggressor… doesn’t even have to be in the form of opinion or reputation evidence… the prosecution can offer evidence of the victim’s good character for peacefulness.
evidence of a habit of a person / routine practice of a business
is admissible to prove that on a particular occasion, the person or business acted in conformity with their habit or routine
We need three things for our habit to be admissible:
- Regularity;
- Specificity;
- And it must be an involuntary or semiautomatic response.
The fucking habit doesn’t even have to be in the presence of witnesses or corroborated in any way.
Yes it can be offered through opinion or witness testimony but you can also just talk about your own habits.
The other side can offer your habits against you OFFENSIVELY through specific acts as well.
what about evidence of custom in the industry?
If you don’t follow an industry custom that everyone else is following, it won’t be conclusive evidence you breached the standard of care (usually… negligence).
It can only be offered as some evidence towards your breach of the standard of care.
MIMIC evidence
Motive
Intent
Mistake or accident or absence of mistake
Identity
Common scheme or plan
what type of evidence is MIMIC evidence considered?
They are considered relevant prior acts which relate to aspects of the crime at issue, not to show that the defendant is a bad person because of his prior bad acts.
not considered character evidence.
MIMIC - identity
modus operandi
If you can prove that the defendant is only killing motherfuckers in a Garfield mask… every time… WELL YES… the fact that six other people were attacked by an UNKNOWN ASSAILANT in a Garfield mask is pretty damn indicative of a modus operandi and will get in.
a particular way or method of doing something, especially one that is characteristic or well-established.
MIMIC - intent
Past acts of racism for example will prove intent. If the person is constantly burning crosses in front of black people’s houses for example… well… this could be used to show that he had intent to commit a crime against black people later on due to his racism.
MIMIC - common scheme or plan
Basically, we’re looking for a pattern which is all connected together. If someone has burned down six of their houses for insurance money for example… or if someone has written 2,000 opiate prescriptions in the course of one month… we can see this motherfucker has a common plan to break the law. The evidence is coming in my Goats.
Of course the defendant will fight against this evidence and say it is propensity evidence.
It’s up to the judge and there will be motions surrounding all this shit before trial… but often… it’s coming in if the evidence has a strong tie to a relevant MIMIC factor.
And remember, the other act doesn’t even necessarily have to be criminal to come in under MIMIC.
MIMIC evidence can be proven by prior convictions or evidence that proves the act occurred
So long as the prosecution provides sufficient evidence for a reasonable jury to conclude that the defendant did these acts by a preponderance of the evidence... it will come in (the court will still weigh the probative vs. prejudicial value though)
If it’s too prejudicial or not similar enough to the crime at hand… that MIMIC is not getting in son.
Quick GOAT-NOTE: You can’t bring in evidence that someone has filed a bunch of other lawsuits as MIMIC evidence, unless you can prove they have a pattern of filing false lawsuits to show their fraudulent motive. They could try to trick you in F24 and give you someone who just filed a shitload of lawsuits or got into a ton of car accidents… I mean… this on it’s own doesn’t prove they have a bad motive. They’re just a litigious little bitch. You need to show that these prior lawsuits and accidents were actually scams.
PRO-TIP: Anytime one of these “mimic” options are in the answer choices, I’d honestly just fucking pick it. Because it’s kind of hard to make that a false answer choice since they are all such broad ideas and terms. I’m going to freestyle here for a second and say that if one of the answer choices has a MIMIC option in it… there’s an 84% chance that is the right answer.
expert witnesses
An expert witness is a witness with knowledge, skill, training or education to give a specialized opinion about the evidence in a trial or a fact at issue
to be an expert witness you must:
1. be qualified and
2. the testimony must be based on sufficient facts or data and be the product of reliable principles and methods.
2A - and the expert witness actually must have those reliable principles and methods in this case.
