Evidence Flashcards
Authentication
Evidence is what the party claims it is.
Low threshold.
A party need only make a prima facie showing of genuiness.
Up to jury. decide the authenticity and probative value of evidence.
Party may serve more than 25 interrogatories
with leave from the court; interrogatories may not be used to seek discovery from persons and organizations that are not parties to the ligitation.
Production of documents request
unlimited. on both parties and nonparties.
Deposition
can be served on nonparties up to 10.
Witness testimony
Personal knowledge about what tehy are testifying about.
Refreshing Recollection
If a witness does not remember sth; their recollection can be refreshed by any object; sound; smell; anything.
Refreshing recollection
Best evidence rule does not apply to our little refreshers.
The witness can’t just start reading off the writing.
Refreshing recollection: The witness may only
gaze upon the refresher; then testify from Memory.
Refreshing recollection: the opposing side has the right to
- Inspect our refresher;
- Use our refresher on cross examination against our witness
- if it is a coached answer the other lawyer wrote down; they are about to get lit up like X mas tree on the stand. - Introduce it into evidence as an exhibit.
Witness uses sth to refresh their recollection before testifying
The court has discretion whether to let the opposing side view it.
Can this be used to refresh recollection?
- Police report
- Def’s own diary
Yes, admissible.
Yes, admissible.
Anything.
Former Testimony Transcripts
to refresh recollection;
when you look at it; you are like “what the fuck, that’s wrong. That’s cheating.”
A witness is allowed to be refreshed by a goddamn full blown transcript on the stand.
They can’t just read from it.
Get over it.
You can even show the witness.
Stuff they wrote a day earlier.
–> It just won’t be admitted into evidence.
Refresh a witness recollection during testimony
- The witness once knew but is not unable to recall, a fact or event and
- Item - a writing will help the witness recall the fact or event.
Generally, a writing use to refresh the witness recollection is not admitted into evidence. Instead, the evidence is used only by a witness remembering trouble permitted to view a writing to refresh.
Refresh Recollection v. Past Recollection Recorded exception to hearsay rule
- Refreshing Recollection: Ability to testify from present knowledge.
- ## After refreshing Personal knowledge.Past Recollection Recorded
- the witness’ memory is not refreshed; rather writing is introduced into evidence as substnative proof of the information.
Objections
just statements opposing sth that has happened in court or that is about to happen.
You are asking for the judge’s immediate ruling on it.
Objections:
- Timely: at the earliest opportunity possible.
- Specific: i.e., you could say that you’re objecting on grounds of relevancy, hearsay, inadmissible character evidence, etc. - Accompanies by the stated ground. “Inadmissible as hearsay or as a leading question”
Objection
If the witness leaves the stand, it is not timely and too late to object.
If evidence gets into the record before a party states its objection;
Motion to strike.
Objection
안하면 Appeal가서 Issue가 Preserve가 안됨
시험에 나온 Objection상황
- Lack of foundation. Insufficient personal knowledge.
- Calls for speculation. not guessing
- Compound. yes or no simultenous
- Argumentative. that’s fucking ridiculous
- Call for a legal conclusion
- Misstating the evidence.
Motion in Limine
“At the Threshold” A party may make a motion in limine to admit or exclude a certain evidence prior to trial.
If I should have objected earlier but I didn’t;
You just waived the issue on appeal.
Jury instructions
You can object later on (or the judge can raise the issue themselves) if plain error affecting mothafucking substantial rights has occurred.
To show Plain Error in this circumstances;
You need to show the instructions are a clearly inaccurate statement of the law that would probably lead to an incorrect verdict.
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.
Offer of Proof
Objection후에 “나는 Admissible로!”
Just you telling the judge
1. What the evidence is (describing it or showing it to the judge)
2. Explanation of how the evidence relates to the case itself; and
3. Arguments supporting admissibility of the evidence.
Motions to Strike Evidence at Trial
A motion to strike happens when some evidence got in that should not be admissible; and you are asking for the jury to disregard it and preserve the error on appeal.
Would it surprise you to learn that
it did not record any shots in this area at the time you are saying my client allegedly shot someone?
Harmless Error
Error that does not adversely affect a party’s substantial right and will not warrant reversal of a judgment.
More likely than not, Jury would have reached the same verdict absent the error.
Prejudicial Error
Reversible Error
Error that adversely affects a party’s substantial right and warrants reversal.
- Error adversely affects a substantial right if it affects the outcome of the case: if the jury most likely would not have reached the result it did, but for the error.
약간 Structural Error? Plain Error같음.
Plain Error
Plain Error is error that is not raised at trial but is so obvious and substantial that it excuses any failure to raise it and warrants reversal.
- So Vital to the defendant that reversal of the conviction was still warranted.
Burden of Appeal
To prevail in an appeal on a properly preserved (by timely objection or offer of proof), argument that the court erroneously excluded or admitted evidence, a party must show
1- Trial court abused its discretion
2- Error affected a substantial right of the party.
—– error probably had a significant influence on the jury’s verdict.
- Prejudicial errors probably have a significant influence on the jury’s verdict; but harmless errors do not.
Plain erros have a significant influence on the jury’s verdict and warrant reversal even if the argument was not properly preserved for appeal.
Witness competency is
the Witness’ ability to testify truthfully and accurately.
1. Personal knowledge.
2. Related those facts to the jury.
3. Gives an oath or affirmation to testify truth
4. Neither a judge nor a juror.
Presumed to be competent.
Witness incompetency
Age lack of mental capacity intoxication at the time of the testify.
–> Weight of the jury; not about admissible or not.
–> If federal civil cases, State Rules of Competency apply if state law supplies any element of a claim or defense.
A party may impeach a witness by examination or with extrinsic evidence based on the witness inability to observe recall or rlate facts or events accurately.
Witness is deemed competent;
- Witness may be impeached based on sensory deficits such as poor eyesight or a brain injury affecting the witness ability to recall events.
Party may bolster a witness credibility
only after it has been attacked.
- Evidence used to rehabilitate an impeached witness must directly answer the impeachment evidence.
Good character for truthfulness:
- A witness character for truthfulness may be bolstered
only after his character for truthfulness is attacked and only with reputation or opinion evidence.
Prior, Consistent Statement
Prior, consistent out of court statement is admissible to
1. Refute allegations of recent fabrication or improper motive or
2. Rehabilitate credibility if attacked on other grounds.
Federal Civil Cases; which state law applies
The Federal court should also apply state law with regard to the effect of presumptions.
Lay Opinions
- Rationally based on the witness perception
- Helpful in understanding the witness testimony
- If based on the witness experience and gives the jury more information than a mere recitiation of facts. - Not based on any scientific technical or other specialized knowledge
Lay Witness
- Rationally based on the witness’ perception.
+ Helpful to the jury
+ Not based on technical, scientific, or other specialized knowledge.
Rabbits. Bouncing With Purpose
==> Rationally based on the witness’ perception.
Lay Witness Opinions
No conclusions allowed.
No Opinions allowed,
JUST FACTS
Lay Witness can’t give opinions on
“Ultimate Issues,” but can give an opinion on identification of drugs; speed of moving vehicle; whether someone was drunk; etc.
Lay Witness Opinions
Rationally related to your perception.
e.g., 1. Identification of drugs;
2. Speed of moving vehicle;
3. Whether someone was drunk, etc.
We don’t need a crack expert to testify;
that you thought it was crack; you smoke it everyday.
(Lay witness) Now whether the jury believes you or not goes to the weight;
not the admissibility of the evidence.
If you are familiar with someone’s handwriting prior to the trial
if you are a bank teller testifying in a fraud case; e.g., you may testify to the similarities you see in handwriting samples; because they are rationally related to your motherfucking perception.
Competencey
Child testifies.
Children have to have the capacity
to understand their obligation related to telling the truth.
Dead Man’s Statute
When it comes to civil actions; you cannot testify in support of your own interest about a dead person’s estate.
DeadMan’s Statute
You can’t be like; “oh yea Bob?” I know Bob is dead and I started to inherit his fortune but; he told me I could have all his shit 12 sec before he died and he wanted to cut out my sister Karen.
A witness in violation of the dead man’s statute is deemed
incompetent and cannot testify.
There is no federal dead man’s statute;
but in diversity cases they will apply a state dead man’s statute.
Judicial Notice
The court takes Judicial notice of facts generally known in the jur or facts that no one is arguing about from accurate; unquestionable sources.
Judicial Notice
Linda new Goat Law Clerk telling you the date that Pearl Harbor happened is not an “accurate and unquestionable” fucking source.
오답: “Judge Walterson knew it”이런 것은 상관 없음.
Judicial Notice
The court can take it of a fact on it’s own, or at the request of a party who supplies them with the necessary informationn.
Judicial Notice:
No mandatory presumptions in criminal cases.
Judicial notice
court’s acceptance of a well known and indisputable fact without requiring evidentiary proof of the fact.
Without any evidentiary proof. Math formula or the fact that it was raining outside on the particular day.
- Adjudicative facts. Not legislative
Judicial notice
river navigable, newspaper largest circulation in the state, canning baked beans in New England.
In 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.
Judicial notice in Civil Cases
Mandatory.
Judicial Notice in Criminal Cases
Jury can accept it or not.
- Does NOT create a presumption.
- Conclusive.
Determine preliminary questions of fact upon which admissibility depends.
They determine shit like whether a witness is competent.
Judge can’t testify as a witness if they are presiding over a trial.
FRE 605.
You don’t even need to object; it is considered an automatic objection.
If a judge does this; it is preserved for appeal
Judge’s, not juries, determine
admissibility of hearsay evidence and confessions.
- When determinating the admissibility of hearsay evidence and confessions; it must be outside the presence of the jury.
Judges also run
the courtroom.
They determine the order of the witnesses;
- timing
- who presents what evidence first.
They determine what evidence comes in
(sometimes, they even determine that evidence can only come in for one specific purpose and not another; and they tell this to the jury).
- They kind of just run the whole procedural aspect of their little courtroom.
Judge can let in circumstanctial evidence (not direct)
A def using an alias or nickname could be let in, 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 itself illegal; but it will serve as circumstantial evidence that we were standing on some Goat Gang Bus.
What issues relating to juries might appear?
- Determine credibility
- Judge determines admissibility
jury determine credibility and reliability of witness testimony.
What issues relating to juries might appear?
- Jury Misconduct
- Things like lying during voir dire or running your own experiments or googling stuff could lead to a new trial.
What issues relating to juries might appear?
- Jurors can talk to the press.
- But only once the trial is done.
What issues relating to juries might appear?
- Can’t testify about the deliberation
- In criminal or civil cases jurors can never testify about the deliberations that took place to get a verdict or indictment.
Can testify about outside influence someone taking about sth they googled; mistaken understanding or outside influences.
What issues relating to juries might appear?
Can’t be witnesses
- Juror are disqualified as witnesses in trials they are sittting on if the other side objects.
What level of juror misconduct will get us a new trial?
If a juror says afterwards “yea Donny screamed at me back there in the jury room, and I got intimidated.
Jury says, “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.
We are looking for crazy; overt acts or concealed bias. (jury)
- Refusing to deliberate at all.
We are looking for crazy; overt acts or concealed bias. (jury)
- Intentionally agreeing to nullify the verdict; that is, choosing the side the jury wants to win to make a societal statement not based on the facts.
We are looking for crazy overt acts or concealed bias (jury)
- A juror; even with the best of intentions, bring 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.
- 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 knockout.
We are looking for crazy overt acts or concealed bias (jury)
- Using a random ass fomula to come up with a verdict; like adding everything up and diving by 7. These are called “quotient” or “compromise” verdicts; not allowed.
We are looking for crazy overt acts or concealed bias (jury)
- Communications with others about the case; via social media or in person.
We are looking for crazy overt acts or concealed bias (jury)
We can’t hear about arguments inside the jury room.
Presumptions
-Def is presume innocent.
- Gov officials are presumed to carry out their duties competently.
Bursting Bubble Theory of Rebuttable Presumption
How a rebuttable presumption operates; a party benefiting from a rebuttable presumption must produce evidence to support it. The opposing party can then produce rebuttal evidence sufficient counterproof to rebut the presumption; then the presumption disappears. and the party formerly benefiting from the presumption bears the burden of persuasion.
Criminal cases;
Permissible Inference. In all criminal cases; there is a presumption that defendants are innocent until proven guilty.
People who are missing for after 7 years;
presumed to be dead.
“A person missing in the last 7 ears shall be presumed to be deceased”
S. Ct it is a violation of due process for a judge to give a mandatory jury instruction in criminal case on an element of the crime charged; “shall be presumed” to shift the burden of proof to the defendant or to require that the jury find an element of the crime charged; nonononononononono.
Jury instruction안 되는 것:
If a Goat is found to be in possession of stolen property; you must find that the Goat intended to deprive the owner of it permanently.
If we need to prove A and B;
If we have A, then B is proven.
–> You can’t do this shit.
If we prove A, we don’t have to prove B.
OK.
The gov officials like USPS workers will carry out their duties of actually delivering the mail.
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.
- Civil만 해당.
-In criminal, it is up to the jury’s discretion and only permissive presumptions are allowed.
Mode & Order of Evidence
Court controls what order the evidence is presented in and what order the witnesses testify;
The standard of proof for overturning a judge’s evidentialry rule is:
Abuse of Discretion.
The Appellate Court will Not overturn a judge on abuse of discreation grounds
Unless he acted arbitrarily or irrationally.
The plaintiff and prosecution present their case first;
followed by the def’s case.
Whoever calls the witness direct examines the witness
Direct examine:
5W
5W
- Who,
- What
- When
- Where
- Why.
Then the other side gets to cross after your direct.
Leading questions are allowed on cross.
Leading questions are only allowed for
Hostile witnesses who are adverse to use
- which is why we almost exclusively allow leading on cross examination because all those witnesses are typically adverse or hostile.
Leading questions are
allowed on direct in certain limited circumstances, such as
Leading questions are allowed:
- Introductory matters.
Leading questions are allowed;
- Very young or forgetful witnesses.
Leading qs are allowed
A witness you called is being biased; evasive; argumentative, and 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.
Cross Exam
Witness Credibility or Subject Matter of Direct
ReDirect Exam
Scope within Cross Exam.
Confrontation Clause 6th
Criminal defe. to be confronted by the witnesses again him; if new matters are raised on cross examination or redirect exam during a criminal case; 6th requires the court to permit redirect exam to address new issues raised on cross exam and recross exam to address any new issues raised on redirect.
Cross examination- How to properly cross a motherfucker?
- Leading question. OK.
These are questions that suggest an answer.
“You went to the pasture, right?”
Cross examination- How to properly cross a motherfucker?
- You can cross examine any witness who testifies at trial.
You can even impeach your own witness.
Cross examination- How to properly cross a motherfucker?
- Scope of cross?
- you can only ask about matters within the scope of the direct examination OR things that test the witness’ credibility- Bias, Perception, Memory.
Cross examination- How to properly cross a motherfucker?
- Cross cut short by death or illness of a witness?
Direct will be striken adn it could cause a mistrial.
Cross examination- How to properly cross a motherfucker?
- Have fun.
Yes your client might be facing life in prison for a vicious homicide or rape; yes you might be litigating a soul sucking vicious divorce or you may be trying convince a jury to award your client $2 million on an abstract spinal injury but this is our dream be in the moment.
You can impeach someone
anytime.
Impeachment
is always relevant and can always be brought up; even if it is not within the scope of the earlier questioning.
Redirect
You can only talk about what was on CROSS.
When a witness “opens the door” and brings sth in which is outside the scope of the previous questioning
Now the other side will have a chance to respond to cure the prejudice from your little fuckup.
- If we talk about apples;
- you start talking about banana.
- on my redirect I can bring up the bananas.
Witnesses and who can be excluded from the courtroom.
Witnesses can be excluded from the courtroom so they don’t hear what other people are saying adn tailor their testimony to that.
Witness who cannot be excluded (원래는 됨)
- People permitted by statute (like victims) cannot be excluded.
Witness who cannot be excluded (원래는 됨)
- A person whose presence is essential to a party presenting their case. like a jury expert or a summary witness.
Witness who cannot be excluded (원래는 됨)
- The parties themselves and their lawyers.
A party themselves (like def)
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 importatn parts in front of the jury.
The judge can also examine
any witness they want or call their own witnesses or experts.
If a lawyer is fucking up badly, the jdge will just start cross examining
Impeachment is
simply casting an adverse reflection on the veracity of a witness.
You can impeach through cross examination
even your own witnesses or by extrinsic evidence. And when I say extrinsic evidence, I am talking about calling other witnesses or brining in documents to prove someone is lying.
The only limitation is that
you can’t call a hostile witness solely to impeach them.
Sensory Deficiencies
- Chicago man convicted of murder on testimony of blind witness to get new trial.
- You can use extrinsic evidence to prove this.
- Like a prescription for thicc glasses.
Sound of Silence
- Civil trial: they can use your prior silence to impeach you.
The jury can draw an adverse inference based on your pretrial silence.
Sound of silence
Criminal case
You have the right to remain silent.
So post Miranda, post arrest silence CANNOT be commented on or used to impeach.
Convictions as impeachment
The state was going to bring in 5 of my clients convictions that he had plead guilty to in the past.
You can impeach with prior convictions
But whether or not we can impeach depends on 3.
1. The amount of time passed.
2. What type of crime it is.
3. Whether our witness is the def or not.
Can we impeach with prior convictions?
Any crime > 10 years old. (Old shit)
-> excluded unless probative value substantially outweighs prejudice risk (hard test). (Substantial이라는 단어가 있는)
Can we impeach with prior convictions?
Dishonesty Crime: all come in.
Can we impeach with prior convictions?
Crime < _ 10 years; Non dishonesty crime.
Can we impeach with prior convictions?
Crime < _ 10 years; Non dishonesty crime.
1. Def is witness.
Felonies only.
1-1 Excluded unless probative value outweighs prejudicial risk. (normal test: substantial이라는 단어가 없는)
Can we impeach with prior convictions?
Crime < _ 10 years; Non dishonesty crime.
1. Def is not a witness.
Felonies only.
1-1. Admissible as long as it passes R 403 Balancing test.
not meant to waste time, confuse jury, etc.
Can we impeach with prior convictions?
Crime < _ 10 years; Non dishonesty crime.
1. Def is witness.
Felonies only.
1-1 Excluded unless probative value outweighs prejudicial risk. (normal test: substantial이라는 단어가 없는)
+ You have to give the other side ADVANCED notice of your intent to use it.
What about when def is a witness?
Protective than (Def is not a witness).
The probative value must outweigh the prejudicial risk.
When the witness is a nondef 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.
Over 10
Substantial.
Under 10 Def
Probative.
Under 10 Witness
Not wasting juries time.
Impeachment with prior bad acts
You can bring specific bad acts which involve untruthfulness.
- Things like lying and deceit, not prior arrest as kind of a “shots fired” question on cross only.
Witness prior bad acts:
“너, 1999년에 입시 부정 저질렀지?”
- Shots fired.
“No.”
- You can’t go into it after you fire your shot.
- You can’t bring in extrinsic evidence to prove he did lie (like documents or witnesses)
Because then we would have a goddamn Trial within a Trial.
Opinion or reputation witness testimony
If Goat’s reputation and opinion witness gets up and says, “Yes, Goat is loved in our community; He is non violent guy I’ve ever met.”
–> The prosecution can then hit him with a shots fired bad act impeachment adn say, “are you aware that Goat attacked 57 Grandmas?”
–> If the witness says, “No, I am not aware of this. The prosecution just has to leave it alone.”
–> Because this is opinion witness in the community.
Goat’s opinion or reputation witness:
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 adn accuse a motherfucker on cross examination prior bad act impeachment of attacking 57 grandmas with no basis. The jduge will be like, “what basis di you have to even ask that?”
You can only reference the bad act itself;
not any consequence that flowed forth from it.
- e.g., you can say, “Isn’t it true you stole from your last employer?” but you can’t say, “isn’t it true you were fired for stealing from your last employer?”
The prosecution
can’t dirty up the witness either by impeaching them on collateral matters or irrelevant issues unrelated to truthfulness.
- E.G., “Isn’t it true you were actually seen at a strip club 19 times in the month of Jan?”
- This is not probative.
Collateral Evidence
Bars the extrinsic evidence to impeach a witness on a collateral matter.
Colleteral matter is a matter that has no tendency to make any fact in the proceeding other than the witness’ impeachment more or less probable.
Impeachment R 403
Admission of any extrinsic evidence to impeach a witness if the evidence is probative value is substantially outweighed by the risk of unfair prejudice, confusing or misleading the jury; wasting time or needlessly introducing cumulative evidence.
Heightened admissibility standard leaning toward exclusion if the impeachign evidence is a prior felony conviction used to impeach a criminal def witness.
Bias and Interest
Extrinsic Evidence of Bias Permissible.
- Bias is always relevant; courts generally require a party to lay a foundation before introducing extrinsic evidence of a witness bias.
Extrinsic Evidence of witness improper bias or interest is not subject to the
collateral evidence.
Extrinsic evidence that a witness has an improper bias or interest is never collateral.
Prior Criminal Conviction
If admissible, evidence of the prior conviction is limited to the name of the offense, the date of the offense, and the punishment for the conviction.
609 Prior Felony Conviction of a Criminal Def Witness is admissible
Only if the probative value of admitting the prior felony conviction outweighs its prejudicial effect.
609 FRE Convictions used to
impeach the witness character for truthfulness
Other reasons: no.
e.g., Contradicting the def’s testimony.
Specific Prior Conduct
A party may inquire about specific instances of conduct; or prior bad acts not resulting in a conviction; related to a witness’ character for truthfulness; if the party has a plausible, good faith basis for doing so.
Contradiction
If we have i our possession directly contradictory evidence?
Students get caught up in all the crazy impeachment rules they forget about good old fashion impeachment by contradiction.
Contradiction
“I have never once in my life ever seen cocaine.”
–> Goat can say, “Well you have 27 drug convictions for cocaine and you directly said an hour ago that you loved how cocaine made you fell in this same trial.”
–> if a man says, “I would never touch my wife” you can bring a witness up to say that he saw this man beat his wife.”
Contradiction
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.
Contradiction
Addressing inconsistencies between the witness present testimony and facts other than prior inconsistent statements.
Like bias, specific contradcition is not explicitly covered in the FRE but is governed by the rules addressing relevance and probative value.
Specific contradiction require the admission of extrinsic evidence the evidence being used to contradict the witness
Specific contradiction
not even statements.
-e.g., officers testimony was an admissible contradiction with which to impeach the def.
Bias or interest
They can be impeached on that at any time.
E.g., financial interest at play; or a personal vendetta against someone they are testifying about; or they are afraid of abuse from their husband, etc.
Bias or interest of witness
trump the other exclusionary rules.
No
financial interest to lie.
Prior inconsistent statements
If we have 2 statements by the same person at different times; we can bring in the earlier statement to show
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 jur he became unavailable, and you cannot impeach Goat using extrinsic evidence, that is, 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.
The legend of the hearsay declarant
Kianna. Witness. Declarant:
Says, “Goat’s murder trial; her friend Kevin Tipcorn made an excited utterance.” but Kevin Tipcorn is unavailable currently.
—> I fucking love being an unavailable eharsay declarant in Phuket.”
We have a statement that got in through a hearsay exception and
we have a hearsay declarant: unavailable Ghost Witness.
Kianna testifies, “I heard Kevin Tipcorn told her a few weeks after that that I never saw Goat do it.”
P.I.S.
Prior. Inconsistent, Statement.
Kevin is in Phuket.
Kevin doesn’t have a chance to explain or deny?
- P.I.S.
Impeach a hearsay declarant (Kevin Tipcorn) with a prior inconsistent statement without giving them a chance to explain or deny.
Ghost witness: Kevin Tipcorn
we can impeach it, and even rehabilitate it if a hearsay declarant’s statement gets in under an exception or exclusion.
Just as if they were an actual witness testifying.
- Credibility of Both the testifying witness and the hearsay declarant can be attacked through impeachment methods like prior inconsistent statements, prior conviction, bias, sensory deficiencies; you name ti 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 (Party Admission Doctrine) automatically.
- If the court finds in the interest of justice that the
prior inconsistent statment shouldg et in without an opportunity to explain or deny from the witness; it gets in.
Inconsistent Statement: Both Impeachment & Substantive Evidence: (케이크-Extrinsic Evidence 가 아님)
- 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.
Inconsistent Statement: Both Impeachment & Substantive Evidence: (케이크-Extrinsic Evidence 가 아님)
- 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.
You can impeach your own witness
with a prior inconsistent statement too. Usually by calling another witness.
Prior consistent statements
Someone does indeed get impeached; Can we make them look better after?
YES.
Prior Consistent Statements can only
come in when;
1. Declarant testifies and is subject to cross; AND
2. The previous statement is consistent with declarant’s in court testimony; AND
3. The opposing party ahs attacked the witness’ in court testimony AND
4. The statement must have been made before the motive to fabricate could arise;
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.
A Witness’ Prior Statement
Some prior statements of a declarant witness are exempted from the definition of hearsay because the declarant witness is at trial and able to be cross examined about th eprior statement.
Declarant witness’ prior inconsistent statement
Declarant Witness Prior Inconsistent Statement
- Witness testifies and is now cross examinable regarding the sts
- The prior sts is inconsistent with the declarant witness present testimony
- Prior statement made under penalty of perjury in a prior proceeding or deposition.
–> If prior inconsistent state does not meet these criteria; admissible for impeachment purposes.
Declarant Witness Prior Consistent Statement
- Improperly bolster the declarant witness credibility.
0 declarant witness prior out of court sts is not hearsay and is admissible if - Declarant witness testifies and is now cross examinable
- The prior stte is consistent witht eh declarant witness present testimony
- Prior stat was made before the alleged motive to fabricate arose;
- Prior Sts is offered to rebut an allegation of recent fabrication or improper influence or motive or to rehabilitate the declarant witness credibility when attacked on other grounds.
Preponderance of Evidence
More likely than not true.
Evidence is more likely admissible than in admissible
- The courts admission of the proffered evidence will depend on whether the evidence has any tendency to make the fact of contract formation more ore less probable than without evidence.
Clear and Convincing Evidence
The prosecution has the burden of proving by clear and convincing evidence that an incourt identification of a criminal def was not tainted by an unconstitutional out of court identification.
R 401
Tendency to make the existence of any consequential or material fact more ore less probable than it would without the evidence.
- Fact finder evidence can be relevant and admissible even if it is not very persuasive.
Inadmissibility of Irrelevant Evidence
Relevancy is an initial admissibility determination made by the trial judge.
Irrelevant evidence is not admissible.
Conditional Relevance
Evidence is conditionally relevant if its relevance depends on the existence of another fact.
A party offering conditionally relevant evidence must sufficiently demonstrate the existence of the other fact.
R 403
The ct evaluating relevant evidence challenged under R 403 of the FRE should
1. Determine the probative value of the proffered evidence.
2. identify the presence of any of R 403’s identified dangers or considerations,
3. Balance the probative value of the evidence against the identified dangers or considerations.
R 403
If identified dangers or considerations substantially outweigh the evidence’s probative value; the court may in its discretion, exclude the relevant evidence.
R 403 Balancing Test
- A testifying criminal def’ prior felony conviction
- A criminal conviction more than 10 years old (substantially outweighs)
- An otherwise inadmissible basis of an expert’s opinion (substantially outweighs) and
- In vicil sexual offense case, evidence of a victim’s secual behavior (substantially outweighs).
R 403 Unfair Prejudice
Evidence is unfairly prejudicial if it creates an undue tendency to suggest a jury reach a decision on an improper basis. (improper basis: emotional)
“Undue tendency to suggest decision on an improper basis.”
Def was on trial for cocaine possession. Graphic
if the evidence was relevant because the graphic nature of the evidence was particularly likely to incite the jury to make an irrational decision, and the evidence was therefore unfairly prejudicial.
R 403 : Def’s use of slurs was prejudicial;
the prejudicial effect did not substantially outweigh the probative value of having the jury hear and comprehend the entire substance of the recording.
Factors in Evaluating Unfair Prejudice
- The degree to which the evidence might arose strong emotions or irrational prejudice.
- Whether the jury will misuse or overvalue the evidence.
- The probable effectiveness of a limiting insturcion on the evidence’s admission.
- Whether other means of proof are available.
- How central the evidence is to the case.
Old Chief
The court could enter the stipulation as an alternative; less prejudicial means to prove the felon element of the felon firearm possession crime.
Demonstrative Evidence
R 403 Balancing test determines the admissibility of an in court or computer generated demonstration or recreation of an event.
- Computer animated recreation of hte shooting to demonstrate how or where the shooting could have occurred.
Bench trial
R 403 Unfair Prejudice: does not apply to jury trials.
If there is no jury; evidence should not be excluded based on the risk of unfair prejudice because.
1. Judge can avoid improper inferences.
2. To make a R 403 determination; the judge by definition, must review the proffered evidence anyway.
Confusion
If the evidence’s probative value is substantially outweighed by the risk of confusing the issues or misleading the jury.
Heightened R 403 Scrutiny for Experts
How much weight a jury generally gives to expert testimony, cts scrutinize expert testimony under R 403; of the FRE more closely than lay testimony.
Juries’ willingness to ascribe infallibility to experts and other scientific or technical evidence raise the likelihood that expert testimony will mislead them.
Guilt of a 3rd party;
In criminal case; the parties frequently argue over the degree to which alleged evidence of a 3rd party’s guilt will confues or mislead the jury.
S Ct. excluding this type of evidence denies a def his constitutional right to a fair trial if the evidence raised a reasonable inference of the guilt of a 3rd party and the prosecution had presented strong forensic evidence of the def’s guilt.
