0 penilaian0% menganggap dokumen ini bermanfaat (0 suara)
690 tayangan24 halaman
This document outlines the rules of evidence in the United States court system. It discusses the general provisions in Article I, including the scope and applicability of the rules. It also covers the purpose of construing the rules to promote fairness and justice. Additionally, it outlines key concepts for rulings on evidence including the need for timely objections stating the specific issue, and offers of proof if evidence is excluded. The document also discusses preliminary questions of fact that judges must determine, such as issues of privilege and relevancy that may depend on the determination of an underlying fact.
This document outlines the rules of evidence in the United States court system. It discusses the general provisions in Article I, including the scope and applicability of the rules. It also covers the purpose of construing the rules to promote fairness and justice. Additionally, it outlines key concepts for rulings on evidence including the need for timely objections stating the specific issue, and offers of proof if evidence is excluded. The document also discusses preliminary questions of fact that judges must determine, such as issues of privilege and relevancy that may depend on the determination of an underlying fact.
Hak Cipta:
Attribution Non-Commercial (BY-NC)
Format Tersedia
Unduh sebagai DOC, PDF, TXT atau baca online dari Scribd
This document outlines the rules of evidence in the United States court system. It discusses the general provisions in Article I, including the scope and applicability of the rules. It also covers the purpose of construing the rules to promote fairness and justice. Additionally, it outlines key concepts for rulings on evidence including the need for timely objections stating the specific issue, and offers of proof if evidence is excluded. The document also discusses preliminary questions of fact that judges must determine, such as issues of privilege and relevancy that may depend on the determination of an underlying fact.
Hak Cipta:
Attribution Non-Commercial (BY-NC)
Format Tersedia
Unduh sebagai DOC, PDF, TXT atau baca online dari Scribd
A. Rule 101 – Scope 1. These rules govern proceedings in the courts of the United States and before the United States bankruptcy judges and United States magistrates judges, to the extent and with the exceptions stated in rule 1101 a. Rule 1101 – Applicability of Rules i. Courts and judges ii. Proceedings generally iii. Rule of Privilege iv. Rules Inapplicable – The rules (other than with respect to privileges) do not apply in the following situations: - Preliminary Questions of Fact – the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104 • Fact that has to be determined by the judge o Rules to evidence don’t apply - Grand Jury – proceedings before grand juries • Can hear hearsay evidence o Rules of evidence don’t apply - Miscellaneous proceedings – proceedings for extradition or rendition; preliminary examinations in criminal cases; sentencing, or granting or revoking probation; issuance of warrants for arrest, criminal summonses • US v. Monsanto – forfeiture proceeding – Monsanto wanted money back to get an attorney and wanted to know who the informants were against him o Court allowed affidavits – which are hearsay o Rules do not apply to forfeiture proceeding B. Rule 102 – Purpose and Construction a. Apply these rules so they make sense to get to ultimate goal – that justice is established – justice is overriding desire to get everyone his “due” i. US v. Opager – D raised defense of entrapment – P calls guy who worked with D and guy says D was predisposed – D wants to show that W didn’t even work at hair salon - Rule 608b – if you are attacking W character using specific instances of misconduct – only done so on cross examine • Extrinsic – comes from something other than mouth - Reversed because it was not fair - Rule is meant to promote fairness and achievement of justice C. Rule 103 – Rulings of evidence 1. (A) Effect of erroneous ruling – Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and a. (1) Objection – a timely objection or motion to strike appears of record, stating the specific ground or objection, if the specific ground was not apparent from the context; or i. People v. Dunham – Child makes statement using machine – there was no objection made to the hearsay - Specific grounds must be stated for objection - If objection is sustained – what is the evidence that we are talking about • Need to state with specificity what the testimony would deal b. (2) Offer of Proof – in case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked i. (B) Record of offer and ruling – the court may add any other or further statement which shows the character of evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form - Must make offer of proof if evidence is not allowed in • Fox v. Dannerberg – Can’t determine who was driving the car – objection to expert testifying o P says what experts would say ii. (D) Plain Error – nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court - United States v. Maliszewski • Requirements of plain error o Mistakes must be an error contrary to law o Must be plain - Issue must be well settled o Error must effect substantial rights - Excluded evidence must have someone tendency to effect outcome of case o If 3 are met – court MAY notice forfeited error - If effects a judicial proceeding - Rojas v. Richardson – closing statement error calling him an immigrant • Court dealt with plain error rule o Very high bar D. Rule 104 – Preliminary Questions 1. (A) Questions of admissibility generally – Judge makes call on admissibility decisions – Judge is not bound by rules of evidence a. Green v. States – Green robbed and shot clerk, clerk died – clerk told medical tech about it before he died and judge had to make call if it was admissible i. Issue is hearsay complaints ii. Green wanted to keep out V’s statements about who shot him and what happened iii. Rule 802 says hearsay is not allowed unless there is an exception iv. Procedural device that allows preliminary questions of fact – rules don’t apply b. US v. Campbell – D wrote fraudulent checks from corp, the question was whether the attorney could testify against him – there was a letter from the trustee to the lawyer i. Judge had to decide if AC privilege applied ii. Determination of whether privilege applies – judge had to consider hearsay to make determination – rules of evidence do not apply 2. (B) Relevancy conditioned on fact – Judge makes determination of fact a. Ricketts v. City of Hartford – constitutional violation by someone acting under color of state law – Ricketts got beat up – the evidence item in dispute was an audio tape between dispatcher and pursing officer i. Jury makes determination – question of fact ii. Because of determination of relevancy depends on fact of who was speaking - Judge can say: • It was him speaking and it is relevant • It wasn’t him speaking and it is not relevant iii. Those determinations go to jury – admitted subject to fulfillment of condition - Standard is whether any rationale juror could find b. US v. Plattero – Rape that occurred on Indian reservation – D wanted to prove V had past sexual relationship – under rape shield law – evidence attacking character of rape V is barred (exception – evidence that tends to establish specific defense) i. Evidence of past relationship comes in and jury decides if past relationship was there ii. Fact of relationship is factual question – and admissibility turns upon fulfillment of that condition E. Rule 105 – Limited admissibility 1. Dual purposes a. Contains assumptions i. Can be admissible for one purpose but not admissible for another - Using past felonies are allowed to impeach, but not prove character b. When there is dual purpose evidence i. First let in and give limiting instruction ii. A limiting instruction is a not self executing rule - Gov’t of the Virgin Islands v. Mujahdid – Rape case – the co-D pleaded guilty and testified against D • Plea shows bias • Problem with showing deal – her guilt can be imputed to D F. Rule 106 – Remainder of or Related Writings or Recorded (rule of completeness) 1. Writing or recorded statement is introduced a. Adverse party can require more to the writing or recorded b. Based on fairness i. Prevents ability to things out of context c. Judge has to take a look at writing – see if admitting a portion will be misleading – make a determination if there needs to be more in order to give a true meaning to the evidence i. US v. Sutton – Sutton sold crude oil and DOE of employee were convicted of bribery – issue was additional portions of the tape admitted recorded by government employee - Only introduced part of the tape in which Sucher admitted guilt • Can we have hearsay evidence for one party but not for another? o Hearsay: statement made out of court offered to prove asserted in statement o Certain statements are excluded – admission of party opponent - Even though out of court statement – if that admission is made to another person – it can be admissible when it should be excluded - Statement must be offered by party opponent - Collision of rule of completeness and rule against hearsay - Using this rule in collision with another rule – find features that promote fairness ii. Adverse party may require the introduction AT THAT TIME – D can stop government case and insist that government put in the balance of the statement so the jury hears it all at once II. Article IV – Relevancy and its limits A. Rule 401 – Definition of “Relevant Evidence” 1. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence a. Sets a low bar b. Allows idea of incremental proof – sufficiency of evidence - evidence must be sufficient and actually proves a point c. Relevancy contains 2 concepts i. Logical persuasion – can contribute to proof of a fact – need not be sufficient – only advance inquiry a little bit - State v. Knapp – guy killed cop • Have to know what inquiry is o Rebutting claim of defense - To determine if evidence bears consequential fact - D must show that he had honest and reasonable belief that he was in danger of death or serious injury – focuses on state of mind • Has to have honest belief that this cop will kill him – he offers evidence • Component is what he believed about how old man died o Only applies to his state of mind - What does it matter of how man actually died – irrelevant evidence – makes it less probably that he actually heard it • Proof of cause of old man’s death doesn’t undermine D’s story – makes it a little less likely that he heard it (low relevancy threshold) - State v. Brewer – DUI – D says he was drunk but he wasn’t driving and there was an accident and D was in car and said roommate was driving • Didn’t call roommate at trial – is it logical to infer that if he didn’t call his roommate at trial he was driving o Court says that isn’t fair o Doesn’t prove consequential fact - Kelly’s Auto Parts, Inc v. Boughton – insurance company defends against fire with arson • Evidence – P’s want to introduce evidence they were never tried for criminal arson • Standard for relevancy – tends to prove or disprove a consequential fact more or less likely • Court says it doesn’t advance inquiry – because other people determination - Murphy v. Cinnicnati Ins. Co. – P’s home burned down before they were going to move, fire chief said it was arson and that P’s husband was a few miles • Arson + fact that insurance owners were the ones who committed arson • P offered to take lie detector and wanted to put that in evidence • Helps logically advance inquiry – if someone is guilty more likely they would NOT take lie detector test - US v. Dillon – infer that act of flight – from flight to conscience of guilt – conscience of guilt concerning case – actual guilt ii. Materiality – to determine relevancy analyze elements of claim – fact must be consequential and must advance inquiry - Evidence does not to be sufficient to be relevant • i.e. worked in a plant working on a press machine, reaches in to take part, machine takes off hand, brings lawsuit against manufacturer of machine – what if he went to the bar o Fact that he went to the bar makes it more likely he was drunk – gives us incremental proof o Can be persuasive and is persuasive on a consequential point - Proof that he was drunk proves whose fault it is (comparative negligence) d. Relevancy has to do with drawing logical inferences i. Know what evidence is ii. What consequential fact is - Consequential fact – notice that there was a problem, mechanism of injury, company had a sufficient data base to commence recall • Ponder v. Warren Tool – used tool to inflate tire and tire exploded injuring P o Court didn’t allow evidence of prior accidents of bead seater o Court says if dangerousness is issue – events have to be similar to a high degree - If question of notice – a certain level of dissimilarity is tolerated - If precise failure – high level of similarity • Hines v. Joy Manufacturing – mine worked was injured by machines o Evidence was lack of claims - Lack of claims shows there is no design defect iii. Chain of inferences B. Rule 402 – Relevant evidence generally admissible; irrelevant evident in admissible 1. All relevant evidence is admissible C. Rule 403 – Exclusion of relevant evidence on grounds of prejudice, confusion, or waste of time 1. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence a. Balance – probative value (purpose- hotly contested point) v. prejudice evidence will have i. Prejudice has to be unfair – - Evidence might be considered by jury for improper use - If jury gives weight to evidence that is out of proportion to its logical force (jury believes that evidence proves TOO much) b. Unfair prejudice must substantially outweigh probative value i. Improper purpose of evidence must take over proper purpose - Old Chief v. US – bar fight and a shot was fired – D was charged with felon in possession • Possession is generally contested point • What is purpose for which evidence being offered? o To show he is a felon o Propensity – act in conformity with character trait • Balance probative value with prejudicial value o Can attack probative value side was as well as showing prejudicial side - Proved D was convicted of felony, but he has many other felonies o Consider alternative sources of proof - If all you have – probative value is high ii. Product rule of probability - People v. Collins – couple committed robbery – prosecution brought in expert to testify to statistics of couple • Operative rule – product rule of probability o Multiply all factors together to come up with probability all factors occur • Unfair prejudice comes from: probability can represent at best that a random couple could fit into characteristics not the characteristics of guilty couple • Problem – distorted jury – unfair prejudice comes from allowing evidence to carry more weight than it was supposed to o This evidence claims certainty – but has no right to claim that o Any probative force was substantially outweighed by prejudice c. Analytical Process i. First identify purpose ii. Determine if there is another purpose (illegitimate?) iii. Turn to 105 – dual purpose iv. If 105 is insufficient 403 – evaluate both sides of the scale – discuss probative value and unfair prejudice D. Rule 404(a) - Character Evidence generally –not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: 1. Criminal D may show his own good character to show inference he didn’t do crime charged a. Government of Virgin Islands v. Peterson – D said he did not commit murder – that he was not the kind of guy that would kill someone because he was a Rastafarian i. Person may not act in accordance with professed belief ii. He can prove a trait of character of circumstantial evidence of what he did or didn’t do - Evidence MUST be relevant • Evidence of a religion is TOO remote b. US v. Gilliand – convicted of stealing a car – son says he didn’t do it i. Son was there to show car wasn’t stolen ii. Rule must be complied with literally - Must be offered by accused 2. Criminal D may introduce evidence of V’s inference of violence to show V was aggressor a. Self defense – honest and reasonable belief of fear b. Proving victim had a character for violence – likely victim acted in a violent way c. Perrin v. Anderson – D was fighting officers and the officers shot him – excessive force case i. Inference is that he is more likely the first aggressor – because he has acted that way in the past 3. If D opens door for either purposes – the pros may introduce character evidence to rebut that a. US v. Bright – D is charged with mail fraud i. D called W to give character testimony - Using reputation ii. Government asked during cross – asked about reprimanding - Requirements before asking about specific instances on cross • Good faith basis • Pertinent character trait 4. In sexual assault, or child molestation – can show propensity – pros can show D’s sexual propensity to show he committed charged offense 5. Evidence of W’s character of untruthfulness to show that W was lying while testifying a. Proof of W’s character for untruthfulness is allowed 6. Character may be prove when element of claim or defense a. i.e. defamation – prove what type of character was damaged b. i.e. negligent entrustment – entrusting a dangerous instrumentality to a irresponsible person – proof of persons irresponsibility is element of claim 7. If main purpose is not to show propensity a. Motive, plan, scheme, absence of mistake, etc… 8. Must determine purpose of character evidence – offered to prove because part of claim or defense or circumstantial for state of mind - not allowed if circumstantial of what person did or thought = propensity evidence to show they were acting in conformity a. State v. Carlson – D shot bar guest i. Evidence – specific instances of violence ii. Purpose was to show subjective mind set of D - Allowed specific instances of conduct • Not show character for violence 9. Specific instances are admissible to prove character a. Panas v. Harakis – negligent hiring case – for security guard abusing discretion i. P had to show guards bad character which should be kmart on notice on a risk - Element of P’s claim 10. Proving character as a concept and methods a. If you want to show character of honesty: (means – not allowed in all cases) i. By evidence of reputation – how a person is known in the community ii. By proof of means of opinion – view of someone that can be offered to show what character is iii. By showing specific instances of conduct - i.e. individual was arrested and ripped the door off and gave rise to fact that person was violent 11. Prohibited Uses – to show propensity a. Hatt v. Nay – whether P could introduce specific instances of foreman i. Evidence of specific acts of carelessness is inadmissible ii. Servant may have been guilty on certain occasions – not ordinarily be a careful person b. Lexington Railroad v. Herring – woman was boarding a trolley car – in process of getting she fell back – dispute deals with whether or not the trolley stopped i. Evidence – tending to show general reputation of her sobriety – properly excluded because it was not relevant ii. D said that she had on prior occasions that she was carelessness c. State v. Bazan – D was charged with assault and intent to commit a violent felony i. Evidence – wanted to prove officer was reckless and dangerous ii. Purpose was to infer from character trait specific conduct on this occasion iii. Method was invalid – specific instances E. Rule 404 (b) – Character evidence can admitted for another purpose 1. Other purposes where it allowable – not exclusive list 2. Evidence must have a bearing on a material point in the case a. US v. Fuller – convicted of 2 federal firearm violations – evidence – drug paraphernalia found in apartment (wrongful bad act) i. Ex-wife denied knowledge of drug paraphernalia ii. Tried to tie together that where there is drug paraphernalia there are guns iii. Purpose – impeachment 3. If identity is purpose – must be a high relation a. State v. Garfole – sex with a minor – evidence – indicted on 5 similar counts i. To be admissible – must bear same “high degree of similarity” ii. If D open door to past criminal evidence – doesn’t apply 4. If purpose is plan, scheme or method, or absence of mistake – not as high relation has identify a. People v. Oliphant – D was convicted of raping college girl in his backseat – evidence – manner of how he raped other girls i. Defense is consensual sex - State brings in other “raped” victims • Purpose is plan, scheme, or system ii. If purpose is not to show propensity (to infer what someone did) – list is non-exclusive iii. Evidence was offered in rebuttal – once he testifies and argues consent – evidence has MORE value b. US v. Merryweather – attempting to use taped conversation of other indictment – evidence – was tapes of conspiracy that he was not indicted for i. Purpose – identify and intent ii. Must state a specific reason iii. Must be material proper purpose and that must be in play F. Rule 405 – Methods of Proving Character 1. Allowed a. Testimony towards opinion – subjective of what witness thinks about person b. Testimony about reputation – collective hearsay of opinion of the community of a person’s character trait i. Size of community matters ii. Also hearsay – reputation requires gathering of information 2. Specific instances are NOT allowed a. Except on CROSS 3. In a criminal case – opens door to relevant specific instances of conduct a. Prosecutor can undermine the credibility of the witness b. Prosecutor can undermine bad characteristics i. Rebut with opposite character trait same way defendant attempted to do so ii. Specific instances can only be used to undermine witness – not prove bad character G. Rule 406 – Habit; Routine Practice 1. Regular practice of responding to a repeated situation with specific conduct a. Not a specific number of conduct i. Charmely v. Lewis – P always walked a certain way in a cross walk - 5 W’s saw him numerous times walk a certain way - Testimony of supporting a habit – tends to support the fact he does it multiple times ii. French v. Syarano – Guy found money in the back of car - Evidence – widow wanted to show husband had habit of stashing none - Evidence can be admissible but not sufficient to establish the claim b. Customs i. Progressive v. Kurtz – insured motorist with policy - Company wanted to show that the form was sent • Using evidence that it was there routine policy - habit H. Rule 407 – Subsequent Remedial Measures 1. Terms a. Subsequent – after (harm, lawsuit started, discovery of fall) b. Remedial c. Measure – action taken by someone to achieve goal 2. Must be controverted a. Boeing Airplane Co. v. Brown – Product liability where Brown sued on behalf of his dad when his plane exploded after a faulty part i. Allowed to introduce evidence of changes that Boeing made after crash ii. Remedy was made after lawsuit iii. Must look at purpose – policy is to fix mistakes and not take a hit in court – encourage repair defective products and promote development 3. Mere puffery a. Muzyka v. Remington Arms Co. Inc. – defective bolt lock safety – Remington changed their design – took stance as safest i. Evidence of redesign was allowed ii. Extravagant statements of how safe iii. Must identify reason it is fair or why policy still needs to be vindicated 4. Defendant offering evidence of remedial measure a. Hartman v. Opelika Machine and Welding – OMW made the device – worker is injured – exclusive tort = workers compensation i. Not offered to prove: negligence, culpability, defect, design, or need for warning ii. 407 does not apply for non-party iii. Evidence not showed to show fault – doesn’t fit pattern of 407 5. Impeachment a. Must directly contradict W’s testimony i. Reddin v. Robinson Property – premise liability – area after fall was taped off – only marginally touched and could not offered as impeachment evidence - Must directly contradict not if only marginally contradicts I. Rule 408 – Compromise and Offers to Compromise 1. (a) Prohibited Uses – Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: a. Furnishing or offering or promising to furnish – or accepting or offering or promising to accept – a valuable consideration in compromising or attempting to compromise the claim; and b. Conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority i. Must be a dispute (not just offer to pay) and dispute must deal with damage or relate to amount of damage being claimed ii. Ramada Development v. Ruach – Ruach refused to pay because he wasn’t happy with work - Must have contested point (dispute) – based on fault or amount of damages - Excluded is the report • Report says what the damages are • Ruach offered report into evidence • Ramada hired Goldsmith - Ruach is trying to offer in evidence of what Goldsmith found – purpose was damages - Report can’t come into evidence 2. (b) Permitted Uses – This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness’s bias or prejudice; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution a. Offer to mitigate damages i. Bhandari v. First National - Evidence that is offered to mitigate damages b. When there is a mitigation argument that deals directly – rule does not prohibit – until last year… i. Stockman v. Oakcrest Dental center (480 F.3d 791) – case - Dentist Stockman sold to dental center (oakcrest) – worked out side deal where he could continue working – supposed to making a certain amount and he was terminated – filed age discrimination case – oakcrest made offer of reinstatement • Jury finds for stockman – awards damages • Trial judge held offer of reinstatement would not be admissible • Goes to mitigation o Offered evidence of reinstatement talk • Appeals said evidence was not properly admitted – issue of mitigation deal with amount of claim – reversed • Offered occurred during litigation o Might not have much of bearing of whether there was an attempt of mitigation J. Rule 409 – Payment of medical and similar expenses 1. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury K. Rule 410 – Inadmissibility of pleas, plea discussions, and related statements 1. A plea of guilty which was later withdrawn; 2. A plea of nolo contender; (no contest) 3. Any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (statements made in connection with plea proceedings) 4. Any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn (negotiations that deal with prosecutor) a. Only applies to prosecutor i. US v. Robertson – Robertson told DEA he will cooperate L. Rule 411 – Liability insurance 1. Evidence is not allowed to prove to negligence or wrongful act a. Allowed to come in to show bias i. Charter v. Chelreborad – charter sued for malpractice – P brings in expert – D calls in attorney and attorney testified that expert had a bad rap - Evidence show bias – Alder is on approved list for insurance company – looking for more work from insurance and more money b. Allowed to show ownership i. Dobbins v. Crain Brothers, Inc – P slipped on snow and ice - Alternate purpose – proper purpose under rule 411 • Proof of ownership or bias c. If not on prohibited list i. Morrissey v. Welch Co – Wall fell on P because of negligence - Not an exclusive list - First look at prohibited reasons • If does not fit within prohibited reason – most likely will come in - Show purpose to fit within the rule M. Rule 412 – Rape shield law – evidence of victim’s past sexual conduct 1. In a civil case – admissible if probative value outweighs unfair prejudice N. Rule 413 – sexual assault 1. Evidence of admission of other sexual assaults is admissible to any matter in which it is relevant a. Any evidence can be considered as long as its relevant b. Trumps rule 404a and 404b c. US v. Guardia – D is charged with 2 counts of sexual abuse i. En Clave offense – state law claims committed on federal property – become federal because of where they are committed ii. Wanted to admit evidence of 2 other sexual assault complaints O. Rule 414 – Child molestation of cases 1. Same rule as sexual assault – evidence of admission of other child molestation cases is admissible to any matter as long as its relevant P. Rule 415 – deals with child molestation/sexual assault in civil case – generally comes up in employment cases where there is contact III. Article VI - Witnesses A. Rule 601 – General Rule of Competency 1. Who is competent? – just about everyone a. State v. Roman – D sexually assaulted a child – W was child who testified i. D said child was not competent ii. Ties into rule relating to oaths (603) – if W can tell the truth – the person is old enough to testify iii. Children are competent and so is everyone else - Unless there is showing there isn’t 2. Civil actions when using state law for claim or defense – diversity cases a. Competency of state rules apply in fed court i. Brand v. Brand – P and D were brothers – and D lived with F – F transferred all or most of assets to D – note that said assets would to be split between brothers - Dead man statute says parties can’t testify about talks with deceased • Attacks competency about only in state law B. Rule 602 – Lack of personal knowledge 1. W may not testify to a matter unless evidence is introduced to support a finding that W has personal knowledge a. Pre-requisite is proof that W has personal knowledge 2. Foundation – that evidence that is necessary to establish the required facts to satisfy procedural requirement a. Certain facts that expert must testify to b. McCrary-El v. Shaw – Person in prison serving time – got into a fight with correction officer – McCrary-El wants damages i. Evidence wants in testimony of guy in next cell who could see through a crack in the wall - Standard – whether reasonable juror could conclude that W could see what W saw • Low threshold - Jury decides W’s credibility c. US v. Peyro – D was charged with conspiracy to distribute cocaine – gf testified (memory issues and emotionally unbalanced) i. Judge made finding that W had sufficient knowledge ii. Believability was up to jury 3. Hypnosis a. Confabulation – process of mixing facts that might be suggested to W while under influence of hypnosiss i. US v. Valdez C. Rule 603 – Oath or Affirmation 1. Oath doesn’t have to resort to God or have an religion reference 2. Any word that W will utter that will impress the obligation of truth a. US v. Fowler – Fowler is tax protestor – he didn’t wasn’t the kind of guy would lie i. He wasn’t allowed to testify regardless D. Rule 604 – Interpreters 1. Must accurately must translate a. State v. Warden – D was charged with inappropriate touching i. Evidence – V could not testify without a facilitator ii. V could not utter any words iii. Danger is that facilitator could change testimony E. Rule 606 – Competency of juror as Witness 1. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury a. Member of the jury may not testify as a W i. US v. Straach – D was selling guns to nonresidents of Texas – jurors who sat in and contacted attorney saying he was innocent and they had compromised on their verdict - Jurors can talk about trial once it was over ii. US v. Swinton – D was misrepresenting and a juror found and told the other jurors about a past criminal activity that was inadmissible - Info was gained from outside sources - No less extraneous simply because it comes from a juror – juror brought from outside the court room • Extraneous info can come from different sources F. Rule 607 – the credibility of witness may be attacked by any party 1. Two basis types of impeachment a. Use of intrinsic evidence i. Challenge to witness himself WHILE witness is testifying on stand b. Use of extrinsic evidence i. Proof other than from witnesses own mouth ii. Limits on use of extrinsic evidence when impeaching witness: - When involves collateral matter – generally will not allow extrinsic evidence to be used to impeach G. Rule 611 – Mode and Order of Interrogation and Presentation 1. Rule 611(a) – Control by the court a. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment i. Court has a lot of power and reviewed under an abuse of discretion standard - Berroyer v. Hertz – P had wisdom teeth pulled and wound didn’t heal right • Order of proof with respect to experts • D wanted an expert to testify during P’s case • P wanted to bring in rebuttal W right after D’s W • 611a says judge has discretion – fairness 2. Rule 611b – Scope of cross-examination a. 3 different rules of scope i. Wide-open – on cross you can ask about anything relevant ii. Restrictive – limited to scope of direct iii. Modified wide-open – scope is very liberal and not limited to the subject matter of direct – may deal with other things that may have an affect b. Federal rule embraces the restrictive scope of cross i. W’s credibility is included in direct c. On cross: i. Generally restricted to scope of direct - Always ask credibility questions d. Court may permit inquiry as if on direct – scenario of pathologist of W stand i. Must do it as if on direct (no leading questions) 3. Rule 611c – Leading questions a. Leading questions shouldn’t be used on direct i. Leading question – questions that suggest an answer b. Not allowed on direct i. Direct should be take one small part at a time c. Allowed on cross – leading questions help challenge the W to get the truth out (used to challenge testimony) d. Exceptions: i. Develop testimony and get to point (through uncontested point to contested point) ii. Hostile W – a W who demonstrates a reluctance or refusal to testify iii. Biased W iv. Children who has trouble communicating e. Rule is not self-executing H. Rule 612 – Writing used to refresh memory 1. While testifying, or 2. Before testifying, if the court in its discretion determines it is necessary in the interests of justice, the adverse party is entitled to have the writing produced at the hearing, to inspect it, cross the witness, and introduce in evidence those portions which relate to the testimony a. You can use anything to refresh their memory i. Statements, reports, etc… ii. As long as it jogs memory b. Not read allowed in court room i. Jury does not consider item c. Must lay foundational facts d. Must be the product of refreshed memory e. Done in front of jury – jury can take into account the process it took to remember f. What happens with item that is used to refresh? i. If W uses an item while testifying then otherwise has absolutely right to see ii. If I uses an item before testifying other side can see it g. What if W reads privileged document to refresh memory i. Privilege is trumped – requires production I. Rule 613 – Using prior inconsistent statement 1. Impeachment – attacking credibility of witness statement – any effort to undermine juries to put stock in what a witness says – process by which advocate persuades jury that witness is not worthy of belief a. Challenge to witness’s willingness to tell the truth and witnesses ability to do so b. Call into question accuracy of witness perception and witnesses sincerity 2. General rule – attempts to support credibility are not allowed until witness has been attacked 3. 613a – examining W with prior statement – statement need not be shown or disclosed to W but on request it shall be shown to opposing counsel – deals with intrinsic impeachment – don’t have to tell W of evidence a. W admitting he made prior inconsistent statement – intrinsic i. Statement came from W’s own mouth9 b. Doyle v. Ohio – drug bust dealing with plea bargain and who sold the drugs to who i. Contested buying drugs ii. D remained silent and pros wants to introduce silence as evidence c. Jacbos v. Anderson – silence occurred before Miranda was given – i. Difference was that there was a silence before Miranda 4. 613b – deals with extrinsic evidence – W is given opportunity to explain and opposite party is afforded an interrogation a. Must first lay foundation by confronting W on DIRECT examination i. Must afford W oppurunity to explain or deny ii. Can be evidence: - W’s own written statement - Tape recording of W talking - Another W iii. US v. McClaughlin – tax fraud evasion – - Gave advice that he had to withhold the funds - D wanted to testify that Wietz had conservation • Not allowed because Weitz was not allowed to explain or deny - There does have to happen a specific order of events b. Prior inconsistent statement – some words written or oral that W made BEFORE the time the W was testifying i. Different that what W says on stand c. People v. Peterson – Dynamite was discovered after a conversation about D in connection with dynamite i. Issue – was who owned dynamite ii. Peterson told Conolly of dynamite iii. Didn’t remember about dynamite iv. Court allowed testimony – introduced to prove Connolly was lying – used it impeach - Purpose not to prove underlying fact - Only can offered to impeach Connolly’s statement d. In order to lay a foundation: I don’t remember is sufficient to lay foundation and then confront the W about it and give W opportunity to deny or explain 5. Impeachment is DUAL PURPOSE evidence – it can’t be used as substantive evidence 6. Demonstration of bias a. Can result from: i. Any reason that W might lie, sway, or shave testimony in favor/against ii. Interest in outcome iii. Relationship with party iv. Inducement to testify v. Hostility vi. Pecuniary interest in the case - Legit or corrupt 7. Attack on W’s character in order to undermine credibility a. Exception to 404 – 404a3 b. Only trait is character for truthfulness or untruthfulness 8. Demonstration of defect in perception, memory, or ability to communicate 9. Counterproof or specific contradiction a. If W testifies that house on corner was blue – might bring in other W’s to prove house was red – to show that W was incapable or unwilling to impeach b. Always be definition – involves extrinsic evidence – other 4 can use both types of impeachment J. Rule 615 – Exclusion of witnesses 1. At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion. a. W is being removed from court to eliminate collaboration of testimony i. At request of party – rule is NOT self-executing b. Exceptions: i. Parties to the case - If party is a business – a rep gets to stay • More can stay if you can show they are essential ii. Person authorized by statute iii. Essential parties to the presentation of the party’s case - Expert witness • Doesn’t have person knowledge – sequestration order does not affect their ability to say what happened o Second hand and not a fact witness • Necessary IV. Article VII – Opinions and Expert Testimony A. Rule 701 - Opinion testimony by lay witnesses 1. If the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of rule 702 a. Deals with opinion testimony with fact Ws’ b. Limited testimony to: i. Rationally based on perception of the W ii. Helpful to jury to understand a fact or W testimony c. Rule 701c i. US v. Anthony – opinion that W was unstable was not allowed - Person who gave opinion was not able to establish rationale inferences - Attempted to have expert W give lay testimony that they said was based up on rationale inferences rule introduced 2.