Evidence Stuff to Know for da final Flashcards
Crawford
1: Is there a hearsay exception that is bringing the statement in?
2: If yes, is the statement testimonial? If no, no Crawford issue, if it is, move to next step.
3: Is the declarant available? If so, no Crawford issue, if unavailable, was there an opportunity to develop declarant about the issue at hand at a prior proceeding? If no, then there is a Crawford issue
4: Statement not coming in due to Crawford issue
Bruton
1: Is there a co-defendant? If so
2: Does one co-defendant’s statement implicate the other co-defendant?
3: If so, is the statement prejudicial?
4: If so there is a Bruton issue. The court may choose to redact portions of statement, separate trials, separate juries, or the statement can’t be used at all
Authentication of Evidence
FRE Rule 901 provides that an item of evidence is authenticated when there is sufficient evidence to support a finding that the item is what the proponent claims it is.
There are four general methods of authentication that are commonly used:
1: direct testimony
2: chain of custody
3: expert comparison
4: distinctive characteristics.
These methods are not mutually exclusive and may be used either alone or together to authenticate an item of evidence, regardless of whether the item is a tangible object, paper document, voice recording, or any other type of item.
Best Evidence Rule
The best evidence rule requires an item to be the original when two elements are met:
(1), the item is a writing, recording, or photograph; and (2), the item is offered to prove its content.
Though the best evidence rule requires original writings, recordings, and photographs, the originals of these items may not always be available or readily obtainable. Rather than forgo such evidence altogether, Rule 1003 allows for reliable duplicates to be admissible under the best evidence rule. Rule 1003 provides that a duplicate may be used to prove the content of the original, unless a genuine question is raised about the original’s authenticity, or the circumstances make it unfair to admit the duplicate.
Exceptions:
1: The first exception permits secondary evidence if all of the originals have been lost or destroyed, as long as the proponent did not act in bad faith. For example, if Susie’s confession letter has been lost or destroyed, then secondary evidence may be used to prove the content of the letter. However, if Susie’s confession letter was intentionally lost or destroyed by the proponent, then secondary evidence may not be used to prove the content of the letter.
2: The second exception permits secondary evidence if the original cannot be obtained from a third person by any available judicial process. For instance, if the court issues a subpoena to Susie’s friend to produce her confession letter, but Susie’s friend ignores the subpoena, then the proponent may offer secondary evidence to prove the content of the letter.
3: The third exception permits secondary evidence if the opposing party has control of the original, was put on notice that the original would be the subject of proof, and fails to produce the original at the trial or hearing. For example, if the opposing party has Susie’s confession letter and was put on notice that the letter would be used at trial, then the proponent may offer secondary evidence if the opposing party fails to produce the letter at trial.
4: Finally, the fourth exception permits secondary evidence if the writing, recording, or photograph is not closely related to a controlling issue. For instance, a photograph intended to impeach a non-key witness would likely not be considered closely related to a controlling issue. If so, then secondary evidence could be used to prove the content of the photograph.
Expert Testimony
Expert Testimony Requirements under FRE 702
1: Helpful to the factfinder
2: Must be based on sufficient facts or data
3: Reliable Principals and Methods
4: Have applied these reliable principals and methods
- Uses the Daubert which has 5 factors:
1: whether it is testable, verifiable, or falsifiable;
2: whether it has been subjected to peer review and publication in the relevant scientific or professional community;
3: whether it has a high or low error rate;
4: whether it has any professional standards or controls; and finally
5: whether it has been accepted by the relevant scientific or professional community.
