Relevance
Relevant Evidence: 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 (rule 401)
If unfair prejudice and probative value are even, the evidence is admitted. If
unfair prejudice is a little greater, then it is admitted.
Proponent of evidence has the burden of showing relevancy. Opponent has the
burden of showing the prejudice, etc.
Preserving Error
When objection sustained, atty should make an offer of proof. Put on record what
he would have shown/ what witness would have testified. If no offer of proof,
appellate court can not review unless plain error.
Error must effect a substantial right of a party for a reversal to be necessary (103).
Harmless error (would not change outcome) is not reversible.
Must state specific ground for objection if not apparent from the context.
If evidence was excluded, substance of the evidence must have been made known
to the court or have been apparent.
Can’t predicate error on a denied motion in limine if the evidence doesn’t come
in.
Procedure
Atty can ask for a limiting instruction. Should be allowed when evidence is
admissible for one party/purpose, but not another (105)
Real Proof
Authenticity/Identification:
- must have evidence sufficient to support a finding that the matter is what the
proponent claims it is (901a)
Views of scene: trier of fact (court or jury) is not allowed to view independently.
Must do so as if in court.
Demonstrations must show that the conditions are substantially the same.
Role of the judge in admitting: is there sufficient evidence that a reasonable juror
could find that the evidence is what it purports to be. Jury decides if it is actually
what it purports to be. Judge is a gatekeeper
Demonstrative Evidence: map, model, photo, x-ray, etc. Has no probative value
itself, but serves as a visual aid.
Photos: person must testify that they are an accurate description of what they purport
to be.
Writings
Best Evidence Rule: To prove the contents of a writing, recording or photograph the
original writing, recording or photograph is required except as otherwise provided
(1002)
Must be trying to prove the contents of the writing, recording or photo. (where the
facts in the document are directly at issue)
Original: the writing or recording itself or any counterpart intended to have the same
effect. (if execute 20 copies at a business closing all 20 are originals)
Can use summaries to prove contents if too voluminous. Originals shall be available
upon request (1006)
Reply Letter doctrine (C/L rule): a letter may be authenticated by contents and
circumstances indicating that it was in reply to a duly authenticated one. i.e. I write C a
letter, the letter C writes back is authenticated if he refers to things only he would know
by contents of my letter to him. (distinctive characteristics)
Character Evidence:
Note the exceptions only apply in criminal cases. In civil cases can NOT use
evidence of character to show action in conformity with.
404b: Evidence of other crimes, wrongs, or acts is not admissible to show action in
conformity with. It is admissible for other purposes (motive, opportunity, intent,
preparations, plan, knowledge, identity, absence of mistake or accident, modus
operandi, res gestae – inextricably intertwined, all part of the same transaction)
Still allowed to show evidence of acts (if allowed) even if D was acquitted.
Always remember 403 balancing test, even if rules let in, it must still pass this test.
Testimonial Proof
Any party may attack the credibility of a W, even the party that called (607).
Every witness must declare that he will tell the truth by oath or affirmation (603)
- no set form
- in a way to awaken the W’s conscience and impress on the W the duty to tell
the truth
No juror can testify as a W (if does, party can object out of hearing of jury) (606a)
Wagner 7
Lay Witness:
All witnesses must have first hand knowledge (602)
- evidence sufficient to support a finding that the W has personal knowledge
- need not be W’s own testimony
- judge determines if a reasonable juror could find that the W has first hand
knowledge (104)
Interrogation: (611)
- court has the power to control to make presentation effective for ascertaining
the truth; avoid waste of time; protect W from harassment or undue
embarrassment
- Cross should be limited to SM of direct or credibility of the W. Court may
allow additional matters in its discretion
- Leading questions should only be used on cross except as necessary to
develop the W’s testimony (on direct)
- If hostile W, adverse party, or W identified with adverse party may ask
leading questions.
- Court may call its own W, which all parties are entitled to cross (614a)
Objections to W’s called by court can wait until out of jury presence.
- Court may interrogate any W (614b) (can’t suggest what he thinks)
- If W freezes on direct can ask permission to lead
- Redirect is limited to the scope of the cross (still no leading questions)
Refreshing Recollection of W:
- use of a writing: (612)
o while testifying or before testifying if court determines is necessary
Wagner 8
Expert Witness:
Requirements for Expert:
- Opinions
o Helpful to trier of fact
o Based on info not personal knowledge
o Opinions on ultimate issues allowed except mental state or condition
when an element of crime charge or defense thereto
- Qualified
Expert:
- if will assist trier of fact (helpfulness standard, TN is necessary)
- a W qualified as an expert by knowledge, skill, experience, training, or educ.
may testify in form of opinion
- if:
o based on sufficient facts or data
o testimony is the product of reliable principles and methods
o W has applied the principles and methods reliably to case
Expert may testify on ultimate issues except the mental state or condition
constituting an element of the crime charged or defense thereto. (704)
Expert may testify and give reasons for without first testifying to
underlying facts or data unless court requires. Expert may be required to
disclose on cross (705)
Learned Treatises: hearsay exception (801(13))
- if established as reliable authority, may be read into evidence if relied on
by expert
Impeachment:
Ways to Impeach a W:
- Bias
o Extrinsic evidence
o Foundation issue
- Prior Inconsistent Statement
- Independent Evidence that Contradicts W’s story
o Limited by collateral matter rule
o Fact must be relevant for any purpose other than contradiction
o Independent relevance or lynch pin fact
- Character assassination
o Past crimes, bad acts, opinions, reputation, veracity
- Defect in Capacity
o Ability to observe, remember, communicate
Prior Statements:
- W need not be shown or contents disclosed when questioning
- On request shall be shown to opposing counsel (613)
- Extrinsic evidence of prior inconsistent statement is not admissible unless W
is given opportunity to explain (not applicable to party admission)
Impeach by Bias:
- can always use extrinsic evidence to show
- motive to lie
- plea agreements
- settlement agreements
- civil litigation against crim D
- bias in expert fees
- W offered to sell silence/ testimony
Rehabilitation:
- evidence of character for truth and veracity (only after character for truth
attacked)
- prior consistent statement
Wagner 12
Hearsay
Hearsay: a statement, other than one made by the declarant while testifying at trial
offered for the truth of the matter asserted. (801c)
If Asked, what did you learn from x? watch out for hearsay
A statement that is hearsay may be admissible if it has relevancy other than its
hearsay nature. (ask for a limiting instruction)
801(d)(2): Admissions
- need not be against interest
- it is substantive evidence
- whether it is admissible as an admission (was party authorized
to speak) is a preliminary question for the court
- no 1st hand knowledge needed to introduce party admissions
- party cannot use this to offer his own statement
- conspirator:
o statement must be in furtherance of
o during the pendency of
o and independent proof of conspiracy and the connection of the declarant
with it (statements can’t be the only proof of conspiracy
- preliminary question for the court on whether it qualifies as an admission
Constitutional Constraints:
- Confrontation clause bars admission of testimonial statements of a W who did
not appear at trial unless he was unavailable to testify and the D had a prior
opportunity to cross.
- Confrontation Clause does not apply to non-testimonial statements.
- Testimonial: no on-going emergency and primary purpose is interrogation to
establish or prove events relevant to criminal prosecution
- Unavailability:
o Exempted by privilege on SM of declarant’s testimony (must actually claim
privilege)
o Persists in refusing to testify concerning the SM despite the court order
Wagner 14
1. Former testimony
- testimony at another hearing of the same or different proceedings
- in the course of the same or another proceedings
- if against whom the testimony is now offered
- had an opportunity and similar motive to develop the testimony by direct,
cross or redirect (full opportunity to question)
- a statement on the same topics of another person if the declarant was related or
intimately associated so as likely to have accurate information concerning the
matter
(requires an actual statement by a declarant, more than simply reputation)
5. …
6. Forfeiture by wrongdoing
- declarant’s unavailability is due to the opposing party
- opposing party therefore forfeits right to object to hearsay
- must be for purposes of preventing the W from testifying
2. Excited Utterance
- statement relating to a startling event
- made while declarant was under the stress of the excitement caused by the
event/condition
5. Recorded Recollection
- A memo or record
- Concerning a matter a witness once had knowledge
- But now has insufficient memory to testify fully or accurately
- Shown to have been made or adopted by the witness when the matter was fresh
in memory
- May be read into evidence but not received as an exhibit unless offered by the
opposing party
8. Public Records
(A) statements of the activities of the office
(B) matters observed pursuant to duty imposed by law as to which there was a
duty to report
• not by police officers or law enforcement personnel in a criminal
proceeding
(C) Factual findings resulting from an investigation
• In civil action and against the government in criminal actions
• Unless indicate a lack of untrustworthiness
Declarant must still have first hand knowledge just like any witness would
under both 803 and 804
Privileges:
Rule 501:
- privileges shall be governed by the principles of common law
- as they may be interpreted by the courts of the US in light of reason and
experience
- Except for civil actions where State law applies, then state law on privileges
will apply
Marital privileges:
- privilege against adverse testimony
- privilege against disclosure of confidential communications