EVIDENCE

What is Evidence?

 Evidence is testimony, writings, material objects, or other things presented to the senses that
are offered to prove the existence or nonexistence of a fact.

• Rule 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence

Inadmissible

 This is the logical basis for everything that is going to happen

 Difference b/w admissible evidence and sufficient evidence. – If evidence is not

sufficient enough to prove the point your trying to make then you’ll loose by motion.

 Substitutes for Evidence: Other Methods for Establishing Facts

• Rule 201 – Judicial Notice of Adjudicative Facts (VIP)

− Rules have greater protection for the criminally accused than in civil parties – we
protect freedom more than we protect fortune.

− Make sure you understand this, bar exam question

• Have to remember that the jury knows nothing about the case –

 Empty mind at the start of trial

v.
 Realistic types of jurors’ background knowledge

• What do I Actually have to Prove?

1. Communicative facts – we don’t have to prove nor

2. Evaluative facts – like fire burns and ice is cold – basic facts of life as humans
you don’t have to prove.

 This is stuff that we need no witnesses at all.

• What is an adjudicative fact?

 An adjudicative fact has to be a fact that is not subject to reasonable dispute.

− Anything the parties can’t argue about – the judge will just judicially note it.
− Reasonably certain is not good enough. If there is any dispute, cannot be judicially
noted.
− Adjudicative facts are things that are certain and everyone knows.

 Preferred way to take judicial notice is in limine – before the trial

• Difference b/w adjudicative facts and legislative facts:

1. Adjudicative facts = those within the province of the jury and are governed by
FRE 201.
a. basic facts;
b. political motivations;
c. social sciences

2. Legislative Facts = those used by trial or appellate courts as the legal basis for a
decision & not governed by FRE 201:

 Typical areas for judicial notice of legislative facts:

1. Legislative History;
2. Empirical Research;
3. Medical Literature;
4. Current Social conditions;
5. Dangerousness of certain activities;
6. Aspect of human nature;
7. Marital Harmony factors;
8. Language and Word usage.

 Have judge take judicial notice of the statute, which makes . . . . . .

• Admission of (legislative facts)

− Evidence here may not be to establish the truth of the matter, but for example, to
show that it was part of the rational basis for a statute or regulation.
− Legislative not to the parties but concerns the law as it applies to the parties.
− Legislative facts are universal, adjudicative facts are those developed in a
particular case.

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 − For legislation, look to history of statue to define. (get these cases to look at how
legislative or adjudicative facts are presented in a case)

• Jury Instructions for Adjudicative & Legislative Facts

1. Civil Case
− The court has determined that reasonable people would all agree that [insert fact
to be noticed] is true. This fact is so [generally known within this jurisdiction or
so clearly established as true by sources whose accuracy cannot reasonably be
questioned] (note r. 105) that the court will not require any evidence to prove it.
The court instructs you that you must accept this fact as true.

2. Criminal Case
− The court has determined that reasonable people would all agree that [insert fact
to be noticed] is true. This fact is so [generally known within this jurisdiction or
so clearly established as true by sources whose accuracy, cannot reasonably be
questioned] that the court will not require any evidence to prove it. The court
instructs you it is taking notice that the fact is true. Although you are not required
to do so, you are entitled to accept this fact as true on the basis of the court’s
notice.

• Stipulation of Fact

 It is hereby stipulated by and between the plaintiff and the defendant, that the
following facts are true, susceptible of proof and admissible that in fact . . .. concrete

• Stipulation of expected testimony

 It is hereby stipulated by and between the plaintiff and the defendant that if Dr. X . ..
were present in court today, he/she would testify under oath substantially as follows, and
that his/her testimony would be admissible. . . . (in my expert opinion )

− How about we stipulate to a fact allows lawyers to put the case in the position to
focus on the issues that really matter.

 Judicial notice and Stipulation most important be able to distinguish b/w these.

− For exam, just know there are two trees – Judicial notice & Stipulation of Facts how
they are different and how you use them.

THE BEGINNING OF THE MOSAIC— The Foundational Process

 How the Advocate Deals w/Questionable Evidence

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 − Admit or Exclude —Rules 103 & 104
− Weight & Credibility —Add Rules 105 & 403

1. Pretrial Litigation—Rule 104—Preliminary Questions & Conditional Relevance →

Determines Admissibility of Evidence

a. Motions in Limine
b. Objections to Evidence

 Motions in Limine

− Motions in Limine are a way for either the government or defense to determine the
admissibility of that piece of evidence. Pre-trial agreement and settlement
discussions. This motion resolves questions of admissibility or some issue of fact.

 Objections to Evidence

− In Florida, judges like you to make “non-speaking” objections—that is—“Objection

your Honor, hearsay.”

− In Federal Court, you have to make a “speaking objection”—that is—state the nature
of your objection—the evidentiary rule involved—facts supporting your position—
authority supporting your position.

 The 3 Step Shuffle:

1. Offer;
2. Objection;
3. Judge’s Thing

a. Overruled—Evidence is admissible
b. Sustained—Evidence is excluded but proponent must make an offer of proof or
waive error.

− You must make an offer of proof in order to preserve the record on appeal.

• Rule 104 Applications

 Two types of Preliminary Facts:

− 104(a)—The trial judge, not the jury, decides whether evidence is admissible.
Judge uses a preponderance of the evidence standard.

− 104(b)—This is a shared responsibility b/w the judge & the jury.

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 1) First, the judge decides only that the proponent has presented enough evidence
to support a rational finding by the jury of the existence of the questioned fact
—e.g., that a document is authentic and not a forgery.
2) Jury then decides whether and how to use the evidence.

 Rule 104(a) Fact Patterns

1) Is the witness qualified to testify as an expert under 104(a)?

2) Is there an attorney-client privilege that prevents certain evidence from being
presented?
3) Is a witness’s statement inadmissible b/c it violates the rules of hearsay?

 Rule 104(b) Fact Patterns

1) Accused is charged with robbing a bank.

2) Government can prove he robbed another bank in the same way (see Rule
404(b)).
3) Judge decides only whether there is enough evidence for the jury to decide that
the same person robbed both banks.
4) Judge’s job is not to decide whether he believes the evidence—only whether there
is enough for the jury to believe it.
5) Jury weighs the credibility and quality of the evidence to make its determination.

 Connecting up:

1) Homicide prosecution
2) Murder with a knife
3) Police find knife in the car of the accused
4) Knife is admissible if it can be connected to the crime
5) Court may:
a. withhold admission of knife until connecting evidence is introduced
b. admit the knife on assurance of counsel that it will be connected up.

 Standards for Admission of Evidence Under:

− Rule 104(a)—evidence more likely than not satisfies the FRE requirements will
be used to determine admissibility.
− Rule 104(b)—The trial judge neither weighs credibility nor makes a finding that
the government has proved the conditional fact by a preponderance of the
evidence. The t/j simply examines all the evidence and decides:

1) Whether the jury could reasonably find the conditional fact (evidence
sufficient to support a finding of fact.)
2) If so, then the jury uses “preponderance of the evidence” standard—more
likely than not—will be used to determine admissibility.

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2. Trial Litigation—Rule 103—Rulings on Evidence → Motions & Objections

a. Offer Evidence
b. Object to Evidence
i Overruled — evidence admitted
ii Sustained — offer proof or waived
c. Waiver or Plain Error
d. Prejudice

 Explanation of Rule 103

− To preserve an evidentiary issue for appeal, a party must object to the court’s ruling.

 Effective Presentation to Rule 103

1) Offer identifying evidence or Object +

2) Substantive Rule +
3) Factual application +
4) Authority in Support +
5) Rules 403 & Rule 105

3. Theory of Objections

 The t/j should not have to guess what ground counsel is objecting upon, and then have
to ask counsel to see if s/he got it correct.

a. Specificity vs. Obvious from Context

b. Timing (b/f answer/damage)
c. Connection to Rule 105 and limiting instructions
d. Establishing prejudice
e. Dealing with constantly objecting counsel
f. Exclusion vs. [Weight & Credibility] vs. Admission

4. Theory of Plain Error—Rule 103(d) (functional equivalent of charity)

a. Designed to protect a client from his/her lawyer;

b. When there has been no:
i. Objection or
ii. Offer of proof
c. Error must affect credibility of the system
d. Examples:
1) Went to the heart of the case
2) Discredited a party or

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 3) Prohibited a party from discrediting a key opponent’s witness
4) Important evidence erroneously admitted against a party

5. Jury Instructions—Rule 105—Limited Admissibility → You must requests these

 Two views of Evidentiary Jury Instructions:

1. Expert Testimony vs.

− Prosecutor can impeach an expert witness—hammer on the fact that this

witness is a “hired gun.”

− With expert testimony, you want to make sure the judge tells the jury that just
b/c this person is an expert you don’t have to believe them, it’s up to you ladies
& gentlemen of the jury to decide.

− Cautionary Instructions—judge will tell jury some evidence is more sensitive

than others and some you should be more particularly direct about the way they
value the evidence—very general.

2. Laypersons Testimony

6. Rule 401—Definition of “Relevant Evidence”—The Need for Relevance and Materiality

a. Easy to Meet Standard

− Evidence having any tendency to make the existence of any fact that is of
consequence to the determination of the action to make it more likely or less
likely that a disputed fact is true.

b. Proponent’s Obligation to Establish

c. Opponent’s Obligation to Challenge or Waive

7. Rule 601—The Need for Establishing Witness Competence

 Legitimization of a Witness → Use w/Rule 105

a. Easy to Meet Standard—Every person is competent → Goes to Weight → Unless

there is a Constitutional prohibition, the evidence is coming in.

b. Even Drug Abusers using Drugs in Court are Competent

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 − The rule is if you don’t like the testimony (drug dealer on stand), at the same
time, the attorney is asking the judge for jury instructions—105—we trust you,
the jury—that if you are properly instructed—you will be able to use the
evidence properly.

c. Requirement of an Oath or Affirmation (Rule 603)—must declare to testify

truthfully

8. Rule 602—The Need for Establishing a Lay Witness’ Basis of Knowledge

 Personal Knowledge

a. Applicable to every witness’s testimony

b. Lay vs. Expert Testimony
c. Can be Covered in Normal Testimony About the Events

− Before a witness can testify to a fact or event the witness purportedly observed,
there must be foundational proof of the witness’s knowledge of the event

− Evidence to prove personal knowledge may, but need not, consist of the witness’
own testimony.

1) The witness must testify as to what they know not what someone else may have
told them—it must be your own observation.

− “I object your Honor, without personal knowledge.”

− This rule is subject to the provisions of Rule 703, relating to opinion testimony by
experts.

1) Rule 703—An expert witness is not going to be at the scene of the event, they
will not have personal knowledge—but we need them to interpret facts that we
would not ordinarily understand.

− Experts can testify to inference, opinions and they can draw conclusions
− Experts can rely on hearsay & third party admission.
− As a prosecutor you can impeach the testimony of this witness by
hammering in “this person is a hired gun.”

9. Rules 901 & 902—The Need for Authentic Evidence—Logical Relevance

 901(a)—Authentication is a requirement that the proponent of the evidence provide a

basis for the fact finder to believe that the evidence is what the proponent claims it is.

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 − Best Evidence Rule—you must provide the original of the writing, document,
photo, records, recording or other physical things described in testimony or offered
into evidence.
− The requirement of an original can usually be satisfied by introducing a copy or by
providing an excuse for failure to have the original.

 901(b)—examples of methods parties can use to satisfy authentication requirement.

(1) Testimony of Witness w/Knowledge—testimony that a mater is what it is
claimed to be.

− This type of testimony could be as simple as a witness saying that he

knows the person he talked to on a certain day was the defendant b/c he
has known the defendant for many years and is always able to recognize
him.

− Or it could be more complex:

a. Chains of Custody
b. Readily Identifiable
c. Self-authenticating
d. Photos, Charts, Writings, Recordings
e. Private/Business vs. Public/Government

1) Chain of Custody—Protecting the Evidence

 How do we know the same sample we are introducing is the same b/w
white powder—you do this by the chain of custody:

− To Establish Chain of Custody Testimony the proponent must prove

reasonable certainty vs. reasonable doubt concerning each link:

1. Receipt and condition of the item

2. Ultimate disposition of the item
3. How item was safeguarded and handled
4. No significant change or alteration occurred
5. If change occurred, what was the change

− Remember, you don’t have to prove beyond a reasonable doubt for

admission, all we need is good enough evidence so that a reasonable jury
could say, I believe.

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 − The Evidence Custodian is all you need—unless there is a showing of
more, you don’t need to bring in the chemist.

2) Readily Identifiable

− Evidence where characteristics have not been recorded becomes readily

identifiable b/c of unique characteristics—you can scratch your name on a
plate and make it readily identifiable.

− Remember, it is not enough to say the evidence is readily identifiable or

fungible.

3) Self-Authenticating—Rule 902
− This rule withdraws the requirement of “extrinsic authenticating evidence”
for certain types of documents.

− These are documents that are “certified”—where the certification takes

place of the witness and other items such as—newspapers and “trade
inscriptions” where the chance of forgery or mistake is remote

− Self-Authentication is where one document speaks for another.

 Types of Documents that Qualify for Self-Authentication (5)

1. A domestic public document not bearing a seal but containing a
signature of an official and accompanied by a document under seal
attesting to the official’s signature;
2. Certified foreign public documents bearing certified signatures;
3. Certified copies of public records, official publications, newspapers
and periodicals, trade inscriptions, acknowledged documents,
commercial paper and related documents;
4. Certified domestic records of a regularly conducted activity and
certified foreign records of a regularly conducted activity.
5. Also, within the rule’s definitions are documents or other items
declared by federal statutes to be prima facie genuine or authentic.

4) Photos, Charts, Writings, Recordings

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 − The common standard for reviewing evidentiary issues is that we give
substantial deference to the d/c’s ruling on admissibility of evidence, and
we will not find error in the absence of a clear showing of abuse.

 Verification of Photographs

1. Pictorial Testimony Theory (c/l)

a. Demonstrative evidence theory

b. Need Witness to Establish Foundation

− They needed to show familiarity with scene depicted

− They need to show how the picture was made
− They need to show that the picture was a fair description

2. Silent Witness Theory – (FRE – this is the theory we use today)

a. Substantive Evidence Theory

b. Foundation Witness not needed
c. Photo speaks for Itself
d. Cross-Examine by using issues in 1)b. above

 Tape Recording

− It is almost impossible to distinguish when a tape-recording device has

been altered, so the question is—has it been altered?

− For Exam, just know there is this process where we authenticate, cd’s,
dvd’s, and video—but it is fraught with problems.

 Writings

− Handwritings—If a party claims that a document was written by a

particular person, the authentication rule requires that evidence be
introduced adequate to support a finding that the document really was
written by that individual.

1. Laypersons—people who are familiar with someone’s handwriting

may testify that h/w on a document offered into evidence is by that
person.

2. Experts—An expert on handwriting analysis may testify that a

document was written by a particular person if the expert can base

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 that opinion on samples of the person’s h/w that are themselves
authenticated.

− Those examples would have to have been authenticated in some

way other than by the handwriting expert who uses them for
comparison.

− Where authenticated examples of someone’s h/w are available,

they can also be used by the trier of fact to decide whether a
challenged writing was made by the person who wrote the
authenticated examples.

 Distinctive Characteristics

− The uniqueness of an object or an object’s appearance, along with the

circumstances of how it was found, can provide adequate evidence to
satisfy the authentication requirement.

− For example, under a doctrine known as the “reply doctrine,” if a party

introduces evidence that a communication was made to another party,
that evidence is treated as adequate authentication of another
communication that seems to have been a reply to the first
communication.

 Voice & Telephone Conversations

− A witness may authenticate a voice by testifying about familiarity with

it if the witness has a reasonable basis for recognizing and identifying
the speaker. That type of familiarity may be obtained in circumstances
that provided a connection b/w that voice and the identity of the person
whose voice the witness testifies that it was. That method of
authentication is allowed for voices heard in telephone calls or other
ways.

 Telephone Calls
− Other methods of authentication are also outline in the rule when there
is testimony that a call was made to a number assigned by the telephone
company to a person or a business.

1. Business – If a call was made to a business, it can be authenticated

with testimony that the conversation was about business reasonably
transacted by phone.

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 2. For Other Phone Calls – authentication is permitted by testimony
that the person who answered the call was the person who was
called. This testimony can describe the circumstances of the call,
including self-identification by the person who was called.

5) Private/Business vs. Public/Government

− Public Records—for document required or authorized to be recorded or

filed in a public office or any other records or “data compilation” from a
public office, one of the rule’s examples states that authentication can be
provided by evidence that the writing or data compilation came from the
officer where items of that type are kept.

− Hearsay exception for government records—it is easier to get in an

official record than it is to get in a business record.

− Private/Business—both quantum of papers introduced by individuals and

by businesses and by government are admissible.

 Process or System
− Where an item of evidence has been produced by a computer system or
a scientific device, testimony describing the process or system can serve
to authenticate the evidence—these are all kinds of official records—
things that make the government work—license records, easement
records, etc.

− For example, a computer-generated listing of information could be

authenticated with testimony about the way in which data were
assembled and the program used to organize and extract the data.

10. Rule 106—Remainder of Related Writings

a. Timing is Everything
b. Getting the opponent to Admit your Evidence

− This is not the rule that controls admissibility of evidence it controls timing of
admitting admissible evidence.

− This rule puts the onus on proponent when he introduces paragraph 123, at that time,
the adverse party may require the introduction of paragraphs 4 & 5 (paragraph 4 & 5
may demonstrate he doesn’t have a cause of action.

− Defense will say to strengthen his argument in the end that the evidence was
introduced not by me but by the plaintiff.

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 − You need to be careful b/c you don’t want to introduce a document that will be
impeached in the same document.

11. Shortcuts to Presenting Live Testimony

a. Judicial Notice (Rule 201)

b. Stipulations
i. Fact
ii. Expected Testimony

 Judicial Notice of Adjudicative Fact—Rule 201

− An adjudicative fact has to be a fact that is not subject to reasonable dispute.

− Anything the parties can’t argue about – the judge will just judicially note it.

− Reasonably certain is not good enough. If there is any dispute, cannot be judicially
noted.

− Adjudicative facts are things that are certain and everyone knows.

− Preferred way to take judicial notice is in limine – before the trial

• Difference b/w adjudicative facts and legislative facts:

1. Adjudicative facts—are those within the province of the jury and are governed
by FRE 201.
a. basic facts—reasonable people would all agree that . . . is true. political
motivations;
b. social sciences

2. Legislative Facts—are those used by trial or appellate courts as the legal basis
for a decision & not governed by FRE 201:

− Typical areas for judicial notice of legislative facts:

1) Legislative History;
2) Empirical Research;
3) Medical Literature;
4) Current Social conditions;
5) Dangerousness of certain activities;
6) Aspect of human nature;

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 7) Marital Harmony factors;
8) Language and Word usage.

− Have judge take judicial notice of the statute, which makes . . . . . .

• Admission of (legislative facts)

− Evidence here may not be to establish the truth of the matter, but for example, to
show that it was part of the rational basis for a statute or regulation.
− Legislative not to the parties but concerns the law as it applies to the parties.
− Legislative facts are universal, adjudicative facts are those developed in a
particular case.

• Note:

− Rules have greater protection for the criminally accused than in civil parties – we
protect freedom more than we protect fortune.

− Make sure you understand this, bar exam question

− Communicative facts – we don’t have to prove nor

− Evaluative facts – like fire burns and ice is cold – basic facts of life as humans
you don’t have to prove.

• Jury Instructions for Adjudicative & Legislative Facts

− Civil Case—the court has determined that reasonable people would all agree that .
. . is true. This fact is so generally known within this jurisdiction or so clearly
established as true by sources whose accuracy cannot reasonably be questioned.
The court instructs you that you must accept this fact as true

− Criminal Case—the court has determined that reasonable people would all agree
that . . . is true. This fact is so generally known within this jurisdiction or so
clearly established as true by sources whose accuracy cannot reasonably be
questioned. The court instructs you it is taking notice that the fact is true.
Although you are not required to do so, you are entitled to accept this fact as true
on the basis of the court’s notice.

 Stipulation of Fact

− It is hereby stipulated by and between the plaintiff and the defendant that the
following facts are true, susceptible of proof and admissible that in fact . . . .concrete.

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  Stipulation of Expected Testimony

− It is hereby stipulated by and between the plaintiff and the defendant that if Dr. X
were present in court today, s/he would testify under oath substantially as follows and
that s/his testimony would be admissible.

• Note for Exam

− Just know there are two trees—Judicial Notice & Stipulation of Facts & Expected
Testimony. Know who they are different and how you use them.

12. Mode and Order of Interrogation and Presentation—Rule 611

a. The Judge’s Roles—Connection to Rule 403

b. Cross-Examination—Nexus to Direct Examination
c. Leading Questions—Nexus to Cross-Examination

 Control by the Court—Judge’s Role—Connection to Rule 403

− 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.

− Rule 403—allows the judge to determine what evidence is good enough to be

admitted and what evidence is too good to be admitted. This is the exclusion of
relevant evidence on grounds of prejudice, confusion, or waste of time.

 Scope of Cross-Examination—Nexus to Direct Examination

− C/e should be limited to the subject matter of the direct examination and matters
affecting the credibility of the witness. The court may, in the exercise of discretion,
permit inquiry into additional matters as if on d/e.
− C/e challenges direct testimony

 Leading Questions—Nexus to Cross-Examination

− Leading questions should not be used on d/e of a witness except as may be necessary
to develop the witness’s testimony. Ordinarily leading questions should be permitted
on c/e.

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 − Hostile Witness—when you have to call a witness that is identified with the other
side—here you may be allowed to lead even on direct examination but you must
demonstrate on the record that the witness is hostile.

− Leading Questions Exceptions—if someone is emotionally crippled—that is,

witness is incapable of testifying in the traditional way. Defense will object.

− Leading questions are not permitted on d/e—isn’t it true; are; were; do; did, these are
permissible only on c/e.

• Note:

− The Rule of Completeness—if one counsel introduces part of an item of evidence

such as a deposition during one state of witness’s examination, the opponent has the
right to introduce other parts relevant to the same subject matter during the next stage
of the examination.

WHERE WE ARE IN MOSAIC – AT THIS POINT

 The process of trying a case—integrating procedural rules w/authentication rules:

1. Motion in Limine or Objection at trial – Rule 103

 If there is a piece of evidence that is controversial, someone b/f trial is going to

make an objection to admit or exclude.

2. Judge v. Jury Responsibility – Rule 104(a) & (b) – this is the standard.

 Judge’s job – is there a reasonable certainty that the jury may or may not believe
 Jury’s job – to determine the truth based on the evidence the judge allows in

3. Authentic or Not – Rules 901, 902 and 701, 702

 Is it authentic establishes the authenticity of the item – you might need an expert
witness to do this.

 Is the evidence authentic enough? – Does this evidence satisfy these rules?

 May need both lay & expert witness and different standards for each.

4. The evidence must be relevant, the witness must be competent, must have
authentication and identification

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  FOR EXAM – You must know the difference b/w these:
• Authentication, Hearsay, and Best Evidence

− Ask yourself, can I define the difference b/w the standards for admitting
evidence b/w these three?
− All three must be clearly distinguishable—each is its own animal

Logical Relevance/Writing Authentication

Rule 901 – Requirement of Authentication or Identification
Rule 902 – Self-Authentication

 Key Provision for authenticating Evidence – Make the historical connection b/w what
happened in the courtroom with what happened in the event. You can’t get anything into
evidence until admissibility is of what it purports to be. (Rule 104 gives you this standard)

• 901(a) – Authentication is a requirement that the proponent of evidence provide a basis for
the fact finder to believe that the evidence is what the proponent claims it is.

 The rule applies to documents, records, or other physical things described in testimony or
offered into evidence.

 The Best Evidence Rule – applies to documents, photographs, and recordings. If their
contents is the subject of testimony, the party offering the testimony must provide the
original of the writing, document, or recording.

 This rule is applied far less strictly under the FRE tan it was at c/l, so that the requirement
of an original can usually be satisfied by introducing a copy or by providing an excuse for
failure to have the original.

• Rule 901(b) – provides examples of methods parties may use to satisfy the authentication
requirement. Its first illustration makes it plain that parties are entitled to use a wide variety
of methods to supply the necessary information.

(1) Testimony of Witness with Knowledge – testimony that a matter is what it is

claimed to be.

 This type of testimony could be as simple as a witness saying that he knows the
person he talked to on a certain day was the defendant b/c he has known the
defendant for many years and is always able to recognize him.

 It could be more complex that is:

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  Chain of Custody Testimony – in which various witnesses state that some object
was the same object obtained from another person by stating how, at what time,
and from whom each one obtained the item.

• In Criminal Cases involving a claim that a substance possessed by the

defendant was an illegal drug, a witness (usually a police officer) will testify
about taking the substance from the defendant, sealing it in a container, and
marking it. That witness will state what he or she did next with the substance.

• Then, another witness will describe having obtained the marked container
from the first witness and will say what he or she did with it.

• In this way, a number of witnesses will provide a basis for a jury conclusion
that testimony the last witness in the chain may give, such as a report of
chemical analysis of the substance, is really testimony about the actual
substance that was taken from the defendant.

 To Establish Chain of Custody Testimony – The proponent must prove

reasonable certainty vs. beyond a reasonable doubt concerning each link:

1) Receipt and condition of the item

2) Ultimate disposition of the item
3) How item was safeguarded and handled
4) No significant change or alteration occurred
5) If change occurred, what was the change
 Remember:

 You don’t have to prove beyond a reasonable doubt for admission, all we need is
good enough evidence so that a reasonable jury could say, I believe.

 The Evidence Custodian is all you need – you don’t need to bring the chemist in
b/c this is an administrative burden and a fishing expedition b/c 99 out of 100 the
chemist would have performed his job correctly. He is simply performing a
mechanical, ministerial function, so he does not have to be present.

 Unless there is a showing of more, you don’t need to bring the chemist in.

 If you want the chemist there and the judge denies this request, you can make an
offer of proof showing why judge should bring chemist in.

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  There is a difference b/w the mere possibility that tampering occurred and that
something actually happened – this is important to keep in mind.

(2) Handwriting -- If a party claims that a document was written by a particular

person, the authentication rule requires that evidence be introduced adequate to support a
finding that the document really was written by that individual.

1. Laypersons – people who are familiar with someone’s handwriting may testify that
handwriting on a document offered into evidence is by that person.

 An example of this would be someone identifying his or her spouse’s

handwriting.

2. Experts – An expert on handwriting analysis may testify that a document was written
by a particular person if the expert can base that opinion on samples of the person’s
handwriting that are themselves authenticated. Those examples would have to have
been authenticated in some way other than by the handwriting expert who uses them
for comparison.

 Where authenticated examples of someone’s handwriting are available,

they can also be used by the trier of fact to decide whether a challenged
writing was made by the person who wrote the authenticated examples.

(3) Distinctive Characteristics – The uniqueness of an object or an object’s

appearance, along with the circumstances of how it was found, can provide adequate
evidence to satisfy the authentication requirement.

 For example, under a doctrine known as the “reply doctrine,” if a party

introduces evidence that a communication was made to another party, that
evidence is treated as adequate authentication of another communication
that seems to have been a reply to the first communication.

(4) Voice & Telephone Conversations – A witness may authenticate a voice by

testifying about familiarity with it if the witness has a reasonable basis for recognizing
and identifying the speaker. That type of familiarity may be obtained in circumstances
that provided a connection b/w that voice and the identity of the person whose voice the
witness testifies that it was. That method of authentication is allowed for voices heard in
telephone calls or other ways.

 Telephone Calls – Other methods of authentication are also outline in the

rule when there is testimony that a call was made to a number assigned by
the telephone company to a person or a business.

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 1. Business – If a call was made to a business, it can be authenticated
with testimony that the conversation was about business reasonably
transacted by phone.

2. For Other Phone Calls – authentication is permitted by testimony

that the person who answered the call was the person who was
called. This testimony can describe the circumstances of the call,
including self-identification by the person who was called.

(5) Public Records – For documents required or authorized to be recorded or filed in

a public office, or any other records or “data compilation” from a public office, one of the
rule’s examples states that authentication can be provided by evidence that the writing or
date compilation came from the officer where items of that type are kept.

 The proponent of evidence may have to produce a witness who knows and
can testify about the source of the exhibit.

 This is a kind of chain of custody method of establishing that a document is

what it is claimed to be.
 The reference to date compilations extends the example to computerized
records and various forms of compute output.

(6) Process or System – Where an item of evidence has been produced with a
process or system, such as a computer system or a scientific device, testimony describing
the process or system can serve to authenticate the evidence. These are all kinds of
official records—things that make the government work—license records, easement
records, etc.

 Both quantum of papers introduced by individuals and by businesses and by

government are admissible.

− Hearsay exception for Government Records – It is easier to get in an official

record than it is to get in a business record.

 For example, a computer-generated listing of information could be authenticated

with testimony about the way in which data were assembled and the program
used to organize and extract data.

• Rule 902 – Self-Authentication

 This rule withdraws the requirement of “extrinsic authenticating evidence” (term of art)
for certain types of documents.

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  This rule differs from structure of Rule 901 as the examples in 901 are not exclusive, but
merely suggestive, the examples in 902 for self-authenticating are limited.

 For a specific class of documents called “self-authenticating,” litigants may satisfy the
authentication requirement simply by presenting the document themselves.

• These are documents that are “certified”—where the certification takes the place of a
witness who could state where the document had been found and establish that it is
legitimate, and other items such as newspapers and “trade inscriptions” where the
chance of forgery or mistake is remote.

• Self-authentication is where one document speaks for another.

 Types of Documents that Qualify for Self-Authentication:

1) A domestic public document not bearing a seal but containing a signature of an

official and accompanied by a document under seal attesting to the official’s
signature;

2) Certified foreign public documents bearing certified signatures;

3) Certified copies of public records, official publications, newspapers and periodicals,

trade inscriptions, acknowledged documents, commercial paper and related
documents;
4) Certified domestic records of a regularly conducted activity and certified foreign
records of a regularly conducted activity.

5) Also, within the rule’s definitions are documents or other items declared by federal
statutes to be prima facie genuine or authentic.

 Protections against phony exhibits are still available since the party against which a self-
authenticating item is introduced is free to introduce evidence casting doubt on its
legitimacy.

Logical Relevance/Verification of Photos, Tapes & Others

• Rule 901

 Common Standard for reviewing Evidentiary issues:

 We give substantial deference to the district court’s ruling on admissibility of evidence,

and we will not find error in the absence of a clear showing of abuse.

 As long as the judge deems this is what the law required, there will be no problem.

 Tape-Recording

22
  It is almost impossible to distinguish when a tape-recording device has been altered, so
the question is—has it been altered?

 For Exam, just know there is this process where we authenticate, cd’s, dvd’s, and video
—but it is fraught with problems

 Verification of Photographs (Important to know this)

 Demonstrative Evidence/Substantive Evidence v. Historical Evidence

3. Pictorial Testimony Theory (c/l)

a. Demonstrative evidence theory

b. Need Witness to Establish Foundation

− They needed to show familiarity with scene depicted

− They need to show how the picture was made
− They need to show that the picture was a fair description

4. Silent Witness Theory – (FRE – this is the theory we use today)

e. Substantive Evidence Theory

f. Foundation Witness not needed
g. Photo speaks for Itself
h. Cross-Examine by using issues in 1)b. above

 The real essence of these rules are to present that the minimum
qualifications have been met for authentication—if this has not
been met, it is up to the opposing party to present this

TRIAL CHRONOLOGY
Rules 105 & 614

• Rule 105 – Limited Admissibility → Instructions To the Jury → You must request
these instructions. VIP

 Upon request you must bring the objection up otherwise you waive it; it is your
responsibility not the judges to request.

 Two views of “evidentiary” jury instructions

 How do you see the value of the instruction?

23
 • Expert Testimony v. Laypersons Testimony

− With Expert Testimony, you want to make sure the judge tells the jury that just
b/cthis person is an expert you don’t have to believe them, it’s up to you ladies &
gentlemen to decide. You do not have to give any extra weight to an experts
testimony just b/c he used science, only you can decide

 Prosecutor can impeach an expert witness – hammer on the fact that this
witness is a “hired gun”

 Cautionary Instructions – Judge will tell jury some evidence is more

sensitive than others and some you should be more particularly direct about
the way they value the evidence. Very General.

• Rule 614 – Calling and Interrogation of Witnesses by the Court

(a)Calling by court. The court may, on its own motion (sua sponte) or at the suggestion
of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus
called.

 He asks why would the court want to call a witness? The witness may be an
unsavory person and you don’t want this rubbing off on your case, so instead of
your calling the “dirt bag” the judge may allow you to put this burden on the
court.

(b) Interrogation by court. The court may interrogate witnesses, whether called by
itself or by a party.
 You don’t want the judge examining the witness

(c)Objections. Objections to the calling of witnesses by the court or to interrogation by

it may be made at the time or at the next available opportunity when the jury is not
present.

 The rule allows you to wait for the next available time.

 This must be done at every stage of the litigation:

1. Jury selection/voir dire
2. Opening statement
3. Plaintiff’s or prosecutor’s case-in-chief
4. Defense/defendant’s motions for non-suit or directed verdict, etc.
5. Defense/Defendant’s case-in-chief
6. Plaintiff’s motion for directed verdict

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 7. Plaintiff’s or prosecutor’s rebuttal
8. Defense surrebuttal or rejoinder
9. Witnesses called by the trial judge
10. Witnesses requested by the jurors
11. Closing Argument or Summation
12. The judge’s instructions or charge to the jury

1) Final Instructions including

2) Evidentiary Instructions:
a. Admissibility
b. Corroboration
c. Cautionary
d. Limiting
e. Curative
f. Sufficiency

 Timing of Evidentiary instructions:

a. When the event occurs and/or
b. At final instructions
vs.
c. “The evidence must be even more important if they have to tell me to ignore it.”

 Lawyers get to decide whether or not their will be an instruction

THE EXAMINATION OF A WITNESS

Rules 106, 611, 614 & 615

1. Sequestration or Exclusion of a Witness

 When a judge “sequesters” a prospective witness, the judge orders that witness excluded
from the courtroom.

− The judge may sequester witnesses b/f the trial begins.

− In some jurisdictions, judges automatically sequester most witnesses
− In others, judges must do so on the motion of either party; and
− Still in others, judges have discretion whether or not to sequester.

 The governing FRE is Rule 615.

• Rule 615 – Exclusion of Witnesses

25
 • What happens if there’s a mistake?

 Potential trial results when counsel or a witness makes an error or fails to comply
with a rule or order of the court:

1. Automatic Exclusion/Sanctions
vs.
2. Punish Counsel/Witness
vs.
3. Measured Relief when necessary

 More than likely if a mistake happens they’ll do a measured relief and instruct the
jury that the jury should be aware of the misconduct. You can’t do this w/o Rule
105—Instructions to the Jury.

 The three above issues will come over and over again, b/c its not possible to try a
perfect case.

 Make sure you understand your tools and this is what he’s giving you here.

2. Direct, Cross, Re-Direct, and Re-Cross Examinations

 When the attorney wants to present a prospective witness’ testimony, the attorney calls
that person as the next witness.

− In our adversary system, the attorneys representing the opposing parties dominate the
questioning of the witnesses.

3. Questions by the Trial Judge

• Rule 614 – Calling and Interrogation of Witnesses by the Court

 The rule allows you to wait for the next available time.

 The party who benefits from the witnesses testimony the most goes first.

• What Role shall the trial judge play?

1. moderator
2. governor
3. referee

 This will vary depending on experience of counsel and/or type of trial.

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4. Questions by the Petit Jurors

 Jurors may request that the judge call additional witnesses and also may request that
questions be posed to any witness.

− In most jurisdictions, even if the question is unobjectionable, the judge has discretion
whether to put it to the witness.

− Most trial judges do not even tell the jury that they may suggest questions for the
witness, and many appellate courts have made it clear to the trial bench that they do
not want the jurors to be encouraged to ask questions

5. Excusing the Witness

 When the questioning is completed, the witness is excused. There are 2 methods of
excusing the witness:

1) Permanently Excused

− A witness is typically permanently excused. If this is the case, and the attorney
later desires to elicit additional testimony from him, the attorney must seek leave
of the court.

2) Excused Subject to Recall

− In some cases, the witness will be excused subject to recall. If this is the case, the
attorney has the right to recall him and elicit additional testimony.

 The difference b/w permanent excuse and excuse subject to recall can be critical

• The Scope of the Examination of a Witness

1. Direct Examination

 The scope of the plaintiff’s case-in-chief is broader than the scope of the plaintiff’s
rebuttal.

− So, the scope of direct examination exceeds the scope of direct during rebuttal

2. Cross-Examination

 All courts concur that the scope of cross-examination includes the witness’ credibility

27
 − Consequently, during CE, the questioner may attempt to impeach the witness’
credibility

− Further, most courts agree that the judge has discretion to broaden or narrow the
normal scope of CE on the historical merits of the case.

 There is a point of disagreement as to what is the proper norm for CE on the historical
merits. There are 3 views. Rule 611(b) opts for the majority, restrictive view:

• 611 – Mode and Order of Interrogation and Presentation

 Leading questions exception – If someone is emotionally crippled – witness is

incapable – of testifying in the traditional way. Defense will object.
 Cross Examination challenges direct testimony.
 Hostile Witness – when you have to call a witness that is identified with the other side
– here you may be allowed to lead even on direct examination. First must
demonstrate on the record that the witness is hostile.

3. Re-Direct Examination

 The Common Law rule is that, as of right, the proponent of the witness may conduct
redirect about topics the opponent broached for the first time during cross-
examination.

4. Re-Cross Examination

 As of right, the cross-examiner may question about topics mentioned for the first time
on re-direct.

− Here too, the judge has discretion to broaden the normal scope, but does not
usually do so.

5. The Rule of Completeness

 This rule decrees that if one counsel introduces part of an item of evidence such as a
deposition during one state of a witness’ examination, the opponent has the right to
introduce other parts relevant to the same subject matter during the next stage of
examination

− The Rule is a Scope Doctrine – The doctrine provides that if one party introduces a
half-truth during an examination of the witness, the opposing party has the right to
show the whole truth during the next examination.

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 • Rule 106 – Remainder of or Related Writings or Recorded statements

 This is not the rule that controls admissibility of evidence it controls the timing of
admitting admissible evidence.
 Put the onus on proponent when he introduces paragraph 123, at that time, he must
introduce paragraph 4 and 5. (paragraph 4 and 5 may demonstrate they don’t have a
cause of action)
 Defense will say to strengthen his argument in the end that the evidence was
introduced not by me but by the plaintiff.
 Need to be careful don’t want to introduce a document that will be impeached in the
same document.

• The Form of the Examination of a Witness

1. Leading Questions

 A leading question is a question that suggests to the witness the answer that the
examining party desires.

 Leading Questions are designed to allow the witness to testify – not the lawyer

a. Not permitted on direct – it suggests to the witness answers the examining lawyer
desires

b. Judges listen to the first word of the questions:

1) Is – leading question – Isn’t it true you were here on the night of . . . non-
leading – where were you on the night of . . . .
2) Are
3) Were
4) Do
5) Did

c. Permissible only on cross-examination – generally (isn’t it true that, isn’t it true,

isn’t it true you don’t care how they answer you just want to paint a picture that
the jury can put together that the witness was lying.

2. Non-leading questions

a. Allows the witness to testify, not the lawyer

b. Classic ways to begin direct testimony

1) Who

29
 2) What
3) Where
4) When
5) Why
6) Which

THE ROLES OF JUDGE, JURY & ATTORNEYS

Rules 103 &104—Objections & Offers of Proof

 The Objection Process

 Motions in Limine v. Objections to the Evidence

− (Rule 103 covers these two) → Timing is Everything

1) Pretrial –Motions In Limine

− Motions in Limine are a way for either the government or defense to determine
the admissibility of that piece of evidence. Pre-trial agreement and settlement
discussions. This motion resolves questions of admissibility or some issue of fact.
− Let me get out of the way all the issues that may come up at trial that I can
anticipate
− Can beat the other side to submission and/or get things out of the way b/f trial
starts
− Allows judge to go to his chambers and research the cases on this issue of law.
He reviews motions for and against.

2) Trial – Objections to Evidence

− Better be something that you could not anticipate. Don’t want to interrupt court

 In Florida Courts judges like you to make “non-speaking” Objections:

− Objection your honor! Hearsay.

 This objection would be totally incompetent in federal court you have to make:
a “Speaking Objection”

− Nature of your objection

− Evidentiary Rule involved
− Facts supporting your position
− Authority Supporting your position

30
 • Three Step Shuffle:

1. Step One – Offer

2. Step Two – Objection
3. Step Three – Judge’s thing:

 Overruled: Evidence is Admissible

 Sustained: Evidence is Excluded but Proponent must make an Offer of Proof or

Waive Error. You say your honor “may I make an offer of proof” must have this
for the appeal.

• The logical Evidentiary Process → A 3 Step Operation

1. The “procedural” requirements (Rule 103)

2. The foundational requirements of the Substantive Rule of Evidence in
Question
3. The judge and jury responsibilities (Rule 104)

 How This works:

1. First, COUNSEL must comply with Rule 103’s requirements for objections
and offers of proof.

2. Then, COUNSEL must establish the substantive foundational basis for

admitting the questioned evidence (e.g., Rule 201)

3. Next, the JUDGE decides (Rule 104(a)) if the foundational requirements for
admitting the (Rule) evidence (facts and argument presented by the proponent
& the opponent) have been satisfied.

4. If COUNSEL’S (Proponent’s) proffer satisfies the (Rule) then the judge (Rule
104(a)) will admit the evidence.

5. If COUNSEL’S (Proponent’s) proffer does not satisfy the (Rule), the judge
(Rule 104(a)) will reject the evidence.

6. If the JUDGE admits the evidence, the JURY (Rule 104(b)) will decide
whether and how to use the evidence.

THE BEGINNING OF THE MOSAIC

 Rules 103, 104, 105 & 403 – How the advocate deals with “questionable” evidence:

31
  These rules establish how we balance should I admit or exclude the evidence?
− The first 3 begin the mosaic.

 +Admit or –Exclude – Rules 103 & 104

 Weight & Credibility – Add Rules 105 & 403

• Rule 103 – Rulings on Evidence → Motions & Objections

VIP

 Motions in Limine v. Objections to the Evidence

 Timing is Everything

Note → If you do the right thing according to 103(a), then you know that when the case
goes up on appeal it will be brought up on 103(d) – Plain Error/Incompetent Counsel

• Applying Rule 103

• Marking Exhibits

 Prosecution or Plaintiff – 1, 2, 3 etc.

 Defense or Defendant – A, B, C, etc.
 Appellate – I, II, III, etc.
• Numbering & Referring to Exhibits

 Next in order: Prosecution Exhibit Number For Identification

 Court reporter keeps track of the evidence numbering. Sometimes can refer to
exhibit as “next in order”

• Evidence for Admission? With or Without the Jury?

1. Prosecutor: Your honor, the government request that government Exhibit # 1 for
identification be admitted into evidence as government exhibit #1.
2. Judge: Defense?
3. Defense Counsel: No objection your Honor or State the basis for an objection.
4. Judge – Objection overruled – government exhibit #1 for identification is admitted
into evidence as government exhibit #1 Or Objections sustained, the evidence is
excluded.

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 • Offer of Proof Techniques

1. The judge may prescribe the form in which the offer must be made.
2. If the judge permits the party some freedom to choose how to make the offer, the
party may choose among the following alternatives:

a. A proffer by counsel as to the substance of the excluded evidence;

b. Placing a witness on the stand to testify in question and answer form;
c. A witness summary of the excluded evidence; or
d. A deposition or other document setting for the substance of the excluded
testimony.

• Raise or Waive

 Offer – Objection or waived

 Overruled: Evidence Admitted
 Sustained: Offer of proof or waived

• Effective Presentation

 Offer (identifying evidence) or Objection +

 Substantive Rule +
 Factual Application +
 Authority in Support +
 Rules 403 & Rule 105 (usually, not always)

• If you are raising an issue challenging established authority, you must explain what the
authority is or it is an ethical violation. If it is settled law and you wish to challenge
precedent, case of first impression, you must explain.

• Rule 104 – Preliminary Questions → Determines Admissibility of Evidence

VIP

 In determining whether evidence is relevant the court must not consider the weight or
sufficiency of the evidence. Even if a … court believes the evidence is insufficient to
prove the ultimate fact for which it is offered, it may not exclude the evidence (under rule
401) if it has even the slightest probative worth.

− No one could reasonably believe the witness could have observed, remembered,
communicated or told the truth with respect to the event in questions. (The judge
would have to delete “no one would believe that that’s true” – evidence the jury
should not hear this is not probative)

• Rule 104 – Applications:

33
• Two types of “Preliminary Facts”

 104(a). Decided by the judge using a “preponderance of the evidence standard i.e., --
does the attorney-client privilege apply.

 104(b). A shared responsibility b/w the judge and the jury:

1. First, Judge decides only that the proponent has presented enough evidence to
support a rational finding by the jury of the existence of the questioned fact –
e.g., that a document is authentic; not a forgery.
2. Second – Jury then decides whether and how to use the evidence.

 Fact Patterns:
1. Is the witness qualified to testify as an expert? under 104a
2. Is there an attorney-client privilege that prevents certain evidence from being
presented?
3. Is a witness’s statement inadmissible b/c it violates the rules of hearsay.

 Fact Patterns: 104(b)

1. Accused is charged with robbing a bank

2. Government can prove he robbed another bank in the same way (see Rule 404b)
3. Judge decides only whether there is enough evidence for the jury to decide that the
same person robbed both banks.
4. Judge’s job is not to decide whether he believes the evidence – only whether there is
enough for the jury to believe it.
5. Jury weighs the credibility and quality of the evidence to make its determination.

 Connecting up:

1. Homicide prosecution
2. Murder with a knife
3. Police find knife in car of the accused
4. Knife is admissible if it can be connected to the crime
5. Court may:

a) withhold admission of knife until connecting evidence is introduced

b) admit the knife on assurance of counsel that it will be connected up.

 Standards for Admission of Evidence

Under Rule 104(a)

34
 − Although the rule is silent, the Supreme Court held that the common law’s
preponderance of the evidence standard (evidence more likely than not satisfies
the FRE requirements) will be used to determine admissibility

Under rule 104(b)

− Rule is again silent. Sc held that the trial judge neither weighs credibility nor
makes a finding that the government has proved the conditional fact by a
preponderance of the evidence. The trial judge simply examines all the evidence
and decides:

1) Whether the jury could reasonably find the conditional fact (evidence
sufficient to support a finding of fact)

2) If so, then the jury uses “preponderance of the evidence” standard (more
likely than not) will be used to determine admissibility

• Rule 105 – Limited Admissibility → Instructions To the Jury → You must request
these instructions. VIP

 Upon request you must bring the objection up otherwise you waive it; it is your
responsibility not the judges to request.

 Two views of “evidentiary” jury instructions

 How do you see the value of the instruction?

• Expert Testimony v. Laypersons Testimony

− With Expert Testimony, you want to make sure the judge tells the jury that just
b/cthis person is an expert you don’t have to believe them, it’s up to you ladies &
gentlemen to decide. You do not have to give any extra weight to an experts
testimony just b/c he used science, only you can decide

 Prosecutor can impeach an expert witness – hammer on the fact that this
witness is a “hired gun”

 Cautionary Instructions – Judge will tell jury some evidence is more

sensitive than others and some you should be more particularly direct about
the way they value the evidence. Very General.

35
• Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or
Waste of Time (Huge Rule)

 Ubiquitous rule of all the rules → Allows the judge to determine what evidence is
good enough to be admitted and what evidence is too good to be admitted (i.e.,
illegal confessions.)

Witness Competency
Rules 601, 605 & 606

 Here we are going to establish who is eligible to testify

1. General Competency Requirements

 On appropriate objection, the trial judge must rule on the preliminary issue whether
the prospective witness possesses these four capacities

• Rule 601 – General Rule of Competency → Legitimization of a Witness → Use

w/ 105

 Every Person → Weight → How much Weight

 The rule is if you don’t like the testimony (i.e., drug dealer on stand), at the same
time, the attorney is asking the judge to give instructions → Rule 105

 We trust the Judge & Jury. We have confidence that if they are properly
instructed, they will be able to use the evidence properly.

 Unless there is a Constitutional Prohibition, that evidence is coming in

a. Moral Capacity: The Oath

 Moral Obligation has been replaced by legal obligation to tell the truth and the
law’s punishment for perjury has replaced a Supreme Being’s retribution as
sanction that induces truthful testimony.

− The opponent may no longer challenge a witness’ competency on the ground

that the witness does not believe in a Supreme Being or divine punishment for
perjury.

• Rule 603 – Oath or Affirmation

 If someone says they are not going to tell the truth, they will be in contempt

36
 • Rule 610 – Religious Beliefs or Opinions → This Rule is Aimed at
Credibility

− A witness’ beliefs or opinions on religious matters are inadmissible on the

issue of credibility
− Cannot use religion for the purposes of enhancing or detracting from
credibility
− Cannot say b/c you don’t go to church, you’re a liar
− Cannot use religion to attack or enhance the testimony of a witness

b. Mental Capacity to Observe

 In addition to imposing the oath requirement, the c/l allowed the judge to
determine whether the prospective witness has the ability to observe.

 However, in this context, the term has a broader meaning; a person can
“observe” a fact or event through any sense organ.

− So, a deaf person can be a competent witness

c. Mental Capacity to Remember

 In addition to having the capacity to observe the relevant fact or event, the
prospective witness must be able to accurately recall the data at the time of the
trial.

− Empirical Research can play a central role in the evolution of evidentiary

doctrine. (Hypnosis – I now remember something I didn’t recall b/f.)

d. Mental Capacity to Narrate

 The last required capacity is the witness’ ability to narrate or relate what she
remembers about the perceived event.

− A person is disqualified to be a witness if he is incapable of expressing

himself concerning the matter so as to be understood, either directly or
through interpretation by one who can understand him . . .

 A witness is not incompetent by reason of the fact that she cannot communicate
adequately (or at all) in the English language, provided she can do so through a
qualified interpreter.

2. Applications of the General Requirements

37
 a. Minors

 Children who are too young to understand an oath’s significance may

nevertheless testify (if otherwise competent). The oath is excused.

− If you are dealing with a child as a witness, you will probably get a motion in
limine to suppress the testimony of the child b/c the child has no idea what
reality is.

− The judge decides here. He will determine if the child has some sense of right
or wrong—to the extent the judge can get the child to articulate this—then it is
enough and the child will be able to testify.

− At trial, the judge is given great latitude in dealing w/children – he doesn’t

have to apply the same strict rules as to adults. The judge will allow you to
lead a young witness to some extent. You just say to the child tell me what
you saw period. Whereas with adults you can’t have suggestive questions
they must be open-ended.

b. Drunks, Drug Abusers, people w/low intellect

 At c/l, you could keep these people off the stand. Today, the rule says every
person shall testify—so, this goes to weight. They testify then on cross-
examination you impeach the witness—weight.

3. Specialized Aspects of Competency

• Dead Man’s Statute

 Dead Man’s Statute Definitions—Incompetent, disqualified interested persons—

these are potential witness’ whose testimony may be barred.

 This statute protects representative of the deceased person—the representative

must invoke the Act. Without doing so, it can constitute a waiver of the Act’s
protections.

 The main reason we talk about this statute is so that you understand there is a
juxtaposition b/w this statute and 601. 601 says every person and this statute puts
a limit on that.

 Remember this statute b/c on the bar exam you will be tested on the main
differences b/w FRE and the Florida Rules of Evidence.

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  This statute protects the deceased and the mentally incompetent people

 Basic philosophy behind Rule 601 is weight. So if the deadman’s statute applies,
it trumps Rule 601.

4. Judges, Jurors and Attorneys

a. Judges

• Rule 605 – Competency of Judge as Witness

 If the judge speaks as to a particular piece of evidence and inputs his personal
knowledge, then this judge has now become a witness—cannot do this. (Gun
case example)

 Dean Diaz Example—You must be sensitive to who the judge is. That is, if
Dean Diaz is your judge and she has a PH.D in Chemistry, and your case is all
about his subject, you might want to ask her to recuse herself b/c she may,
unintentionally, come to her own conclusions – unfairly prejudicing your
client.

 On the other hand, if you have a judge that worked at a defense firm for 25
years and is now on the bench and you are the prosecutor, you cannot ask that
the judge recuse him or herself. This is just the way it goes. So, you just
presume that they will be fair & judicious.

 Ask yourself, is this the first time the judge has heard facts about this case or
the 30th? Because if it isn’t the first time, he may be prejudiced by the time
you go to trial as to the facts of your client’s particular case.

 When judge hears testimony there should be no record in his head of other
trial testimony about the facts of your case. You could challenge this in
limine or challenge the judge to recuse themselves. Be careful here b/c you
don’t want to get a bad reputation and piss judges off. Remember the human
element to all of this.

b. Jurors

• Rule 606 – Competency of Juror as Witness

 Example for (a) – if you have a negligence case, car accident, and trees
obscured the driver’s view and some juror says I’m going to drive by 1st and
main b/c I live around there and I’m going to see if its true that the trees
obscured the view—juror has no become a witness—this is not allowed.

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  The judge will give instruction to the jury that they are not allowed to collect
any evidence—the only evidence they will get is from the witness box period.

 If the judge instructs the jury not to consider certain information—the jury can
in deliberations say too bad, I ain’t going to listen to the judge and I’m going
to consider the evidence—you can’t do anything about this.

 Exception—a juror may testify if a defense lawyer got to a juror, that is

bought a juror off or provided them w/information—this is outside influence
and the judge will hear this.
 What happens inside the deliberations room you don’t have a say in these
matters—zero.

 Anything that happens outside the courtroom that may influence a juror’s
decision is an issue to be dealt with.

c. Attorneys

 The attorney can testify, however, if an attorney does testify, he should not
participate in the conduct of the trial.

 Although the court has discretion to exclude lawyer testimony, more often the
testimony is permitted with conditions (such as requiring the lawyer to withdraw
from active participation in the trial.

5. The Criminal Defendant

 The criminal defendant has a privilege not to take the stand. Moreover, criminal
defendant’s, like any other witness, have a privilege not to be compelled to give
incriminating testimony.

6. Spouses

 Husband & Wife (or spousal) disqualification—In most jurisdictions, a spouse may
not be compelled, over objection, to testify against his or her spouse in a criminal
case. In few jurisdictions, the privilege extends to civil cases.

 Additionally, in some states, in a criminal proceeding the accused spouse can prevent
a spouse from giving any testimony at all.

 The Privilege for Confidential Marital Communications—The social policy

promoting the privacy of the marital relationship supports creating a privilege to bar

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 one’s spouse’s testimony about confidential communications b/w the spouses during
the marriage.

Logical Relevance: Probative Value

Rules 401, 402, 602 & 901

 This is an easy concept as it demonstrates the philosophical difference b/w c/l and FRE—
which means more evidence is allowed in—evidence is really broad.

• Probative Evidence

• Rule 402 – Relevant Evidence Generally Admissible; Irrelevant Evidence

Inadmissible

 Always be aware of the language in the middle of this statute—6th & 5th Amendment
Issues. So always ask yourself these two questions:

1. Is the rule constitutional as written; and

2. Is the provision as applied constitutional?

• Distinctions b/w Logical and Legal Relevance & Materiality

1. Purely Logical Relevance (Facts)

 Pure logical relevance is a matter of logic and experience, not a matter of law or
policy.

 Use Rule 401 standard – “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 that it would be
without the evidence.

 For all of this use 401’s standard – that is, what contributes to or distracts from
the conversation. This rule is the basic issue.

2. Legal Relevance (The Law)

 It’s a legal, social, and cultural question when it comes to admissibility

a) Matter of degree as to Value

b) See Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice,

Confusion, or Waste of Time.

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 − 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 considerations of undue delay,
waste of time, or needless presentation of cumulative evidence.

3. Materiality

 An objection to relevance is an objection to materiality – materiality is a timing

thing

a) The issue may be both factually & legally relevant, however,

b) It is not admissible b/c the issue is not yet before the court.

 Look for the outcome determinative evidence. Get to the facts that will get into
the juries brain. What matters—what does the case spin on—what’s the crucial
issue? What is it that tells the story? Around all these facts are the things that set
the scene, and outside of this are things that are irrelevant

• Curative Admissibility

 If one party injects inadmissible evidence in the case, should the judge permit
the opponent to respond in kind to “cure” the prejudice caused by the
inadmissible evidence?

 Most jurisdictions subscribe to the view that the opposing attorney may resort to
similar inadmissible evidence.

 This is balancing waiver, justice and being an officer of the court

1. What should be done when inadmissible evidence has been admitted?

a) Was it a tactical ploy?

b) Was it an innocent mistake?
c) Was it just plain ineptitude?

2. What impact will the unchallenged evidence have on the jury?

3. Is that impact fair?

4. Can instructions cure it?

 Example

− Let’s say defense counsel is a wily, old experienced lawyer and she has sat down
and looked at prosecutions inadmissible evidence and has looked at her
inadmissible evidence and decides hers is better.

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 − So that the defense attorney decides I’m not going to object to plaintiff’s evidence
so that when it comes to my case, if opposing counsel objects to my inadmissible
evidence, I’m going to make a curative admissions argument (Rule 102) – that is,
unless I’m going to be able to offset what was inadmissible – there will be a
miscarriage of justice.

• Rule 102 – Purpose and Construction

− This defense attorney is being a shark. If your trying to be cute, the judge is
thinking I’m going to deny this offer b/c when the case goes up on appeal,
your going to be slapped with a malpractice suit for having tried to pull a fast
one.

− If the judge allowed this to go on, there would be curative admissions all the
time.

 You must always either object or waive – don’t play games of this sort as
above

 Sustained means OUT; Overruled means IN

 Criminal Case

− If this is a criminal case (6th Amendment) and the judge keeps the
evidence out and the case goes up on appeal then there is going to be the
allegation of ineffective counsel (103(d)). You know that if you do the
right thing (103(a)) then when if goes up on appeal they will argue
ineffective counsel 103(d)) – A judge doesn’t want to be reversed so in a
criminal trial, he will let the evidence in .
− Instruction to the Jury (105) – he will give a cautionary instruction –
that is, judge will tell the jury some evidence is more sensitive than others
and some you should be more particularly direct about the way you value
the evidence.

• Direct & Circumstantial Evidence Issue

 There is no difference with respect to proving an issue at trial

 Circumstantial Evidence is intrinsically not different from testimonial (direct evidence)

 Circumstantial Evidence is just as valid and usable as Direct Evidence.

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  Sometimes you might want to ask judge to bring 105 issue when opponent has used
purely circumstantial evidence so that he may inform the jury that this case was tried on
circumstantial evidence. Most judges will say you bring it up counsel in your argument,
not me.

Direct Evidence

− Someone breaks their leg badly → victim testifies in court saying they were in pain → if
the issue is pain and the witness is saying I was in pain → you’ve now got direct
evidence

− Direct evidence is a solid line from event to testimony, there is nothing in the middle
− event ________________ testimony

Circumstantial/Indirect Evidence

− You are not the victim but you saw the victim lying on the ground yelling and screaming
→ you might not be able to say the victim was in pain b/c this would be considered
conclusory but → you can give facts and details as to what you saw → this is indirect
evidence.

− Circumstantial evidence is a broken line and little places in the middle where the
opponent can interject inconsistencies.

• Personal Knowledge

 Before a witness can testify to a fact or event the witness purportedly observed, there
must be foundational proof of the witness’ knowledge of the event.

• Rule 602 – Lack of Personal Knowledge → Hearsay Rule (VIP) → Layman Rule

 The witness must testify as to what they know not what someone else may have told
them. It must be your own observation.

 Were you on Main & 1st? Yes, I was—this is personal knowledge

 Personal knowledge testimony need not consist of the witness’ testimony, so that if
you want to object, you would say “I object your Honor without personal
knowledge.”

 Rule 703 changes everything

• Rule 703 – Bases of Opinion Testimony by Experts → Expert Rule

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  An expert witness is not going to be at the scene of the event; they will not have
personal knowledge of what happened. But we need them to interpret facts that we
would not ordinarily understand.

 Experts can testify to inference, opinions and they can draw conclusions
 Experts can rely on hearsay, third-party admission. An expert is trained to
distinguish what’s important and what’s not. As a prosecutor you can impeach the
testimony of an expert witness by hammering in that this person is a “hired gun.”

• How do you see the value of the instructions based on Rules 602 & 703?

 Example – Witness A and B testify to a crime and witness C, who is an FBI Agent,
provides testimony about the crime b/c he’s a criminologist.

 How do you use 105 here? With regard to the Expert Testimony, you want to make
sure the judge tells the jury that just b/c this person is an expert, you don’t have to
believe them, it is up to you ladies and gentlemen to decide

• Authentication

− Authentication is a generic term used to describe the process of proving that the evidence
is the real thing—that the writing is authentic. Authentication presupposes there is just
one item and the issue is to identify the relevant/historical one, for example drugs from a
crime scene.

− Identification & Verification are used to describe the process of authenticating other
evidence, such as physical evidence and photographs. Identification applies to chattels
(i.e., gun serial number) and presupposes more than one item of the kind. The issue is to
identify the relevant/historical one.

1. Make sure it is the original letter

2. Make sure this is in fact the item b/c we’ve particularly identified the item

 This is the relevant gun, drugs, whatever—this is the foundation the proponent must
establish

 If the proponent presents that quantum of foundational proof, the judge admits the
exhibit; and during deliberations, the lay jurors finally resolve the question of the
document’s authenticity.

 In this respect FRE 901(a) prescribes the same fact-finding procedure as Rule 104(b).
Can we trust lay jurors to resolve questions of personal knowledge & authenticity?

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 • Rule 104 – Preliminary Questions → Admissibility

 In determining whether evidence is relevant the court must not consider the
weight or sufficiency of the evidence. Even if a . . . court believes the
evidence is insufficient to prove the ultimate fact for which it is offered, it
may not exclude the evidence (under Rule 401 - “relevant evidence”) if it has
even the slightest probative value.

 No one could reasonably believe the witness could have observed,

remembered, communicated or told the truth with respect to the event in
question.

 Here, the judge would have to delete “no one could reasonably believe that
this is true” b/c this is not probative.

 You must ask yourself is the above paragraph consistent with rules:

− 602 – Lack of Personal Knowledge

− 401 – Definition of “Relevant Evidence”
− 601 – General Rule of Competency
− 104(a) – Admissibility

 Look to these rules and justify the paragraph – this is the mosaic.

Specialized Aspects of Logical Relevance: Identification of Physical Evidence

Rule 901(b)(1) and (4)

 85% of what we learn comes from sight and 10% comes from listening. So as a trial lawyer
it is of vital importance that you have stuff for the jury to look at. This is a mechanical
process.

− ABA Prosecution Function Standard 5.6(c)

It is unprofessional conduct for a prosecutor to permit any tangible evidence to be

displayed in view of the judge or jury which would tend to prejudice fair consideration by
the judge or jury until such time as a good faith tender of such evidence is made.

• Authenticating Real or Physical Evidence establishing the historical Connection – 2

ways:

1. Readily Identifiable

a. Common Characteristics
b. Serial Numbers

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  With a gun you must match the serial number, or if you introduce a plate that you
say is the authentic plate b/c it has a characteristic on it that matches your
description – such as particular scratches on it.
 On the other hand, if you introduce a vile of blood or a kilo of marijuana – who
knows what could be in the vile – watered down ketchup? or the marijuana could
be oregano—you must authenticate.

2. Chain of Custody – Protect the Evidence

a. For Fungible Evidence – marijuana is fungible—unless your going to write on

each piece of marijuana—how can they tell its marijuana and not oregano. Blood,
Drugs – this is the hard one to prove – fungible. How do we know the same
sample we are introducing is the same b/w white powder is white power – so you
do this by the chain of custody.

b. Readily Identifiable evidence where characteristics have not been recorded –

becomes readily identifiable b/c of unique characteristics – you can scratch your
name on a plate and make it readily identifiable.

 Not enough to say the evidence is readily identifiable or fungible

c. Condition at Time of Seizure is Important

d. Length of Time – Seizure to → Introduction in Court

e. Who must testify – Handle vs. Access; Mechanical vs. Analytical Functions

 Who are the links in the chain of custody that will testify? VIP

f. Purpose is to show same item in the same condition

 Bottom of page 222 of text—this is the foundation—Identifiable/Fungible—Do it

like they did it, follow this line of questioning.

− In this questioning it is amazing how the police officer remembered the exact
serial no. of the gun but this is not uncommon. They have reports and b/f trial
he looks and studies the report.

− FRE allows opposing counsel to have access to this police report. You might
say you don’t want to give file to opposing counsel b/c there’s stuff in there
you don’t want counsel to see.

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 − The remedy for this is usually there will be two files, one for the private
record and one they give to counsel that just has the specified information.
Another alternative is to redact the information (white-out) that you don’t
want opposing counsel to see so that you reveal only necessary information
not private information.

Logical Relevance/Writing Authentication

Rule 901 – Requirement of Authentication or Identification
Rule 902 – Self-Authentication

 Key Provision for authenticating Evidence – Make the historical connection b/w what
happened in the courtroom with what happened in the event. You can’t get anything into
evidence until admissibility is of what it purports to be. (Rule 104 gives you this standard)

• 901(a) – Authentication is a requirement that the proponent of evidence provide a basis for
the fact finder to believe that the evidence is what the proponent claims it is.

 The rule applies to documents, records, or other physical things described in testimony or
offered into evidence.

 The Best Evidence Rule – applies to documents, photographs, and recordings. If their
contents is the subject of testimony, the party offering the testimony must provide the
original of the writing, document, or recording.

 This rule is applied far less strictly under the FRE tan it was at c/l, so that the requirement
of an original can usually be satisfied by introducing a copy or by providing an excuse for
failure to have the original.

• Rule 901(b) – provides examples of methods parties may use to satisfy the authentication
requirement. Its first illustration makes it plain that parties are entitled to use a wide variety
of methods to supply the necessary information.

(1) Testimony of Witness with Knowledge – testimony that a matter is what it is

claimed to be.

 This type of testimony could be as simple as a witness saying that he knows the
person he talked to on a certain day was the defendant b/c he has known the
defendant for many years and is always able to recognize him.

 It could be more complex that is:

 Chain of Custody Testimony – in which various witnesses state that some object
was the same object obtained from another person by stating how, at what time,
and from whom each one obtained the item.

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 • In Criminal Cases involving a claim that a substance possessed by the
defendant was an illegal drug, a witness (usually a police officer) will testify
about taking the substance from the defendant, sealing it in a container, and
marking it. That witness will state what he or she did next with the substance.

• Then, another witness will describe having obtained the marked container
from the first witness and will say what he or she did with it.

• In this way, a number of witnesses will provide a basis for a jury conclusion
that testimony the last witness in the chain may give, such as a report of
chemical analysis of the substance, is really testimony about the actual
substance that was taken from the defendant.

 To Establish Chain of Custody Testimony – The proponent must prove

reasonable certainty vs. beyond a reasonable doubt concerning each link:

6) Receipt and condition of the item

7) Ultimate disposition of the item
8) How item was safeguarded and handled
9) No significant change or alteration occurred
10) If change occurred, what was the change
 Remember:

 You don’t have to prove beyond a reasonable doubt for admission, all we need is
good enough evidence so that a reasonable jury could say, I believe.

 The Evidence Custodian is all you need – you don’t need to bring the chemist in
b/c this is an administrative burden and a fishing expedition b/c 99 out of 100 the
chemist would have performed his job correctly. He is simply performing a
mechanical, ministerial function, so he does not have to be present.

 Unless there is a showing of more, you don’t need to bring the chemist in.

 If you want the chemist there and the judge denies this request, you can make an
offer of proof showing why judge should bring chemist in.

 There is a difference b/w the mere possibility that tampering occurred and that
something actually happened – this is important to keep in mind.

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(2) Handwriting -- If a party claims that a document was written by a particular
person, the authentication rule requires that evidence be introduced adequate to support a
finding that the document really was written by that individual.

3. Laypersons – people who are familiar with someone’s handwriting may testify that
handwriting on a document offered into evidence is by that person.

 An example of this would be someone identifying his or her spouse’s

handwriting.

4. Experts – An expert on handwriting analysis may testify that a document was written
by a particular person if the expert can base that opinion on samples of the person’s
handwriting that are themselves authenticated. Those examples would have to have
been authenticated in some way other than by the handwriting expert who uses them
for comparison.

 Where authenticated examples of someone’s handwriting are available,

they can also be used by the trier of fact to decide whether a challenged
writing was made by the person who wrote the authenticated examples.

Distinctive Characteristics – The uniqueness of an object or an object’s appearance, along

with the circumstances of how it was found, can provide adequate evidence to satisfy the
authentication requirement.

 For example, under a doctrine known as the “reply doctrine,” if a party

introduces evidence that a communication was made to another party, that
evidence is treated as adequate authentication of another communication
that seems to have been a reply to the first communication.

Voice & Telephone Conversations – A witness may authenticate a voice by testifying about
familiarity with it if the witness has a reasonable basis for recognizing and identifying the
speaker. That type of familiarity may be obtained in circumstances that provided a
connection b/w that voice and the identity of the person whose voice the witness testifies that
it was. That method of authentication is allowed for voices heard in telephone calls or other
ways.

 Telephone Calls – Other methods of authentication are also outline in the

rule when there is testimony that a call was made to a number assigned by
the telephone company to a person or a business.

1. Business – If a call was made to a business, it can be authenticated

with testimony that the conversation was about business reasonably
transacted by phone.

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 2. For Other Phone Calls – authentication is permitted by testimony
that the person who answered the call was the person who was
called. This testimony can describe the circumstances of the call,
including self-identification by the person who was called.

(3) Public Records – For documents required or authorized to be recorded or filed in

a public office, or any other records or “data compilation” from a public office, one of the
rule’s examples states that authentication can be provided by evidence that the writing or
date compilation came from the officer where items of that type are kept.

 The proponent of evidence may have to produce a witness who knows and
can testify about the source of the exhibit.

 This is a kind of chain of custody method of establishing that a document is

what it is claimed to be.
 The reference to date compilations extends the example to computerized
records and various forms of compute output.

(4) Process or System – Where an item of evidence has been produced with a
process or system, such as a computer system or a scientific device, testimony describing
the process or system can serve to authenticate the evidence. These are all kinds of
official records—things that make the government work—license records, easement
records, etc.

 Both quantum of papers introduced by individuals and by businesses and by

government are admissible.

− Hearsay exception for Government Records – It is easier to get in an official

record than it is to get in a business record.

 For example, a computer-generated listing of information could be authenticated

with testimony about the way in which data were assembled and the program
used to organize and extract data.

• Rule 902 – Self-Authentication

 This rule withdraws the requirement of “extrinsic authenticating evidence” (term of art)
for certain types of documents.

 This rule differs from structure of Rule 901 as the examples in 901 are not exclusive, but
merely suggestive, the examples in 902 for self-authenticating are limited.

 For a specific class of documents called “self-authenticating,” litigants may satisfy the
authentication requirement simply by presenting the document themselves.

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 • These are documents that are “certified”—where the certification takes the place of a
witness who could state where the document had been found and establish that it is
legitimate, and other items such as newspapers and “trade inscriptions” where the
chance of forgery or mistake is remote.

• Self-authentication is where one document speaks for another.

 Types of Documents that Qualify for Self-Authentication:

1) A domestic public document not bearing a seal but containing a signature of an

official and accompanied by a document under seal attesting to the official’s
signature;

2) Certified foreign public documents bearing certified signatures;

3) Certified copies of public records, official publications, newspapers and periodicals,

trade inscriptions, acknowledged documents, commercial paper and related
documents;
4) Certified domestic records of a regularly conducted activity and certified foreign
records of a regularly conducted activity.

5) Also, within the rule’s definitions are documents or other items declared by federal
statutes to be prima facie genuine or authentic.

 Protections against phony exhibits are still available since the party against which a self-
authenticating item is introduced is free to introduce evidence casting doubt on its
legitimacy.

Logical Relevance/Verification of Photos, Tapes & Others

• Rule 901

 Common Standard for reviewing Evidentiary issues:

 We give substantial deference to the district court’s ruling on admissibility of evidence,

and we will not find error in the absence of a clear showing of abuse.

 As long as the judge deems this is what the law required, there will be no problem.

 Tape-Recording

 It is almost impossible to distinguish when a tape-recording device has been altered, so

the question is—has it been altered?

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  For Exam, just know there is this process where we authenticate, cd’s, dvd’s, and video
—but it is fraught with problems

 Verification of Photographs (Important to know this)

 Demonstrative Evidence/Substantive Evidence v. Historical Evidence

5. Pictorial Testimony Theory (c/l)

a. Demonstrative evidence theory

b. Need Witness to Establish Foundation

− They needed to show familiarity with scene depicted

− They need to show how the picture was made
− They need to show that the picture was a fair description

6. Silent Witness Theory – (FRE – this is the theory we use today)

i. Substantive Evidence Theory

j. Foundation Witness not needed
k. Photo speaks for Itself
l. Cross-Examine by using issues in 1)b. above

 The real essence of these rules are to present that the minimum
qualifications have been met for authentication—if this has not
been met, it is up to the opposing party to present this

WHERE WE ARE IN MOSAIC – AT THIS POINT

 The process of trying a case—integrating procedural rules w/authentication rules:

4. Motion in Limine or Objection at trial – Rule 103

 If there is a piece of evidence that is controversial, someone b/f trial is going to

make an objection to admit or exclude.

5. Judge v. Jury Responsibility – Rule 104(a) & (b) – this is the standard.

 Judge’s job – is there a reasonable certainty that the jury may or may not believe
 Jury’s job – to determine the truth based on the evidence the judge allows in

6. Authentic or Not – Rules 901, 902 and 701, 702

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  Is it authentic establishes the authenticity of the item – you might need an expert
witness to do this.

 Is the evidence authentic enough? – Does this evidence satisfy these rules?
 May need both lay & expert witness and different standards for each.

4. The evidence must be relevant, the witness must be competent, must have
authentication and identification

 Just note: In Florida Rules – page 581 – is authentication & identification

 FOR EXAM – You must know the difference b/w these:

• Authentication, Hearsay, and Best Evidence

 Ask yourself, can I define the difference b/w the standards for admitting
evidence b/w these three?
 All three must be clearly distinguishable—each is its own animal

OPINION EVIDENCE – LAY & EXPERT

 Article VII Rules – 701—706 →Opinions and Expert Testimony

 What we are really dealing here with is trustworthiness

1. Rule 701. Opinion Testimony by Lay Witnesses → Rationally based on perception &
helpfulness.

2. Rule 702. Testimony by Experts → This rule is aimed at Arcane Evidence→

Helpfulness standard from Daubert & Kumho – this rule is the most important of the
set b/c it establishes the elements – use both Daubert & Kumho standards.

3. Rule 703. Bases of Opinion Testimony by Experts → Need not be admissible → all
you need is opinion, inference, and conclusion.

4. Rule 704. Opinion on Ultimate Issue

5. Rule 705. Disclosure of Facts or Data Underlying Expert Opinion → Disclosure of

underlying data need not be first disclosed.

6. Rule 706. Court Appointed Experts

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  Rules 702, 703, & 705 – always apply these together – these people don’t come w/o a
hefty monetary price – these are witnesses we are going to put on the stand.

 Opinion Testimony by Lay Witnesses → Rationally based → Helpful & Valid

• Rule 701 (7 points)

1) The theory behind the rule is that juries can find facts better if witnesses report
concrete information and allow the juries members to analyze the information.

2) The rule provides that unless a witness is testifying as an expert, statements of

opinion or inferences are allowed only if they help provide a clear understanding of
the testimony or of a fact in issue.

3) It must also be shown that the opinion or inference is based on some perception by
the witness.

4) This rule rejects a controversial c/l position that attempted to distinguish clearly b/w
factual and opinion statements and was supposed to exclude statements of opinion by
any witnesses other than expert witnesses.

5) A witness may state, for example, that a person seemed drunk, or that a driver seemed
to be in control of a vehicle so long as those statements (which could be characterized
as reporting conclusions, inferences, or opinions) have some support in actual
perceptions of the witness.

6) Rule 701 refers to Rule 702 to reinforce the distinction b/w expert witnesses and non-
expert witnesses.

7) Rule 701 prevents a “non-expert” from giving testimony of the types that Rule 702
defines. This ensures that a witness whose testimony is based on scientific or
technical knowledge will be subject to certain detailed requirements specified in Rule
702.

 As long as you can make the connection of what they have seen and their ability to
connect to the situation—the opinion will be allowed in b/c it is rationally based.

 A non-expert witness provides the facts of the case – the story.

 Layman is allowed to have opinions about things they know

The Acceptable Types of Lay Opinion (2)

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1. Collective Fact, Composite Fact or Shorthand Rendition Lay Opinions

 Under this first doctrine, a lay witness may express an opinion on such subject as whether
a person was drunk; whether a killing was accidental.

 Lay opinion sometimes has been referred to as a shorthand rendition (testimony was
merely a shorthand report of his observations.)

 The doctrine permits lay person to opine on such varied subjects as relative darkness,
speed, sound, size, age, weight, and distance.

To trigger the collective fact doctrine, the proponent must lay a foundation proving two
elements:

1) The witness’ opinion is based on personally observed facts

 Rule 701(a) requires that the inference be “rationally based” on the perception of the
witness . . .” Proof of perception should precede the question eliciting the opinion.
This requirement is as much a product of Rule 602 (Personal Knowledge) as it is of
Rule 701.

 The judge must not merely inquire whether the opinion has some underlying factual
basis; rather the judge must also assess the sufficiency or adequacy of the basis.

 Example: The Δ was charged w/sexual harassment. The ¶, a female truck driver,
complained about the attitude of Anderson, supervisor of the construction project
where ¶ worked. ¶ offered a witness’ alleged statement that “Anderson has a problem
w/women.” The court rejected this conclusion: “The witness’opinion regarding
Anderson’s idiosyncratic impression about female beauty was inadmissible under
Rule 701(a) b/c it was not based on his personal knowledge of any statement
Anderson may have made about his preferences concerning a women’s appearance.

 Example: An African-American restaurant customer was arrested by a p/o for

allegedly causing a disturbance at a fast food restaurant. At issue was the testimony
of any eyewitness to the events who opined that “had Alexis been a ‘rich white
woman’ she would not have been treated in the same manner. The court stated:
“There simply is no foundation for an inference that the restaurant manger harbored a
racial animus toward Alexis or anyone else.

 As Alexis illustrates, courts demand an evidentiary foundation for an inference of

racial animus or other conclusory lay opinions.

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  Rule 701 does not authorize the admission of “flights of fancy, speculations, hunches,
intuitions, or rumors . . .”

2) The opinion is the type of inference that lay persons commonly and reasonably
draw.

 There are some inferences that only an expert can draw; the expert’s knowledge or
skill enables the expert to draw conclusions beyond the capacity of laypersons.
Thus, this element of the foundation is the dividing line b/w lay and expert opinion
testimony.

 If expert knowledge or sil is necessary to draw a particular inference, laypeson

cannot commonly draw the inference; and hence, lay opinion on that subject would
be inadmissible.

2. Other “Lay” Opinion Testimony

 The witness could testify about the value of his own property even though it was
perfectly clear that he would not be permitted to express a similar opinion about the
value of other persons’ property in the same area.

 Testimony By Experts

1. The Rationale for Admitting Expert Opinion

 The common objections to expert testimony are speculative & conjectural, your
honor it is of no value and it will be misleading and confusing to the jury.

• Rule 702

1) A subject is appropriate for expert testimony if an expert’s opinion on it would

assist the trier of fact.

2) A person can qualify as an expert witness by a showing of knowledge or

experience.

3) An expert’s opinion can be based on any data that expert in the field ordinarily
use, but it must apply reliable principles to sufficient data related to the case.

4) An expert may state an opinion or conclusion based on the facts the expert
believes to be true or may answer a hypothetical question that asks the expert to
make assumptions.

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 5) In criminal cases, an expert’s freedom to state conclusions is narrowed: An
expert may not testify specifically that a defendant did or did not have a mental
state that is an element of a crime

6) Expert Legal Testimony is not permitted

7) Courts uniformly reject offers of expert testimony on the issue of whether a

witness in a case testified truthfully.

 This rule is aimed at Arcane Evidence →Helpfulness standard from Daubert &
Kumho → this rule is the most important of the set b/c it establishes the elements →
use both Daubert & Kumho standards.

 Experts are: Interpreters; Evaluators; Educators; and Applicators.

 We must establish that this machine will do what we are saying it will do

 If not, object—speculative & conjectural

 Battle of the Experts – how much credit do we give to scientists’ as opposed to lay
witnesses.

• How Does the Expert “Assist the Trier of Fact?”

1) The underlying data can be verbalized.

 The physician can list all the symptoms he/she observed.

2. The Foundation for an opinion evaluating or interpreting underlying data

a. The Statement of the Expert’s Qualifications

 A proper foundation must be laid for expert opinion. The first part of the
foundation is proof of the witness’ expertise.

LOGICAL RELEVANCE – VALIDATION OF SCIENTIFIC EVIDENCE

1. The proponent first calls an Educating witness

 This scientist teaches the jury about the underlying theory and any instrumentation
used in the case.

a. Begins with Rule 103 – Rulings on Evidence → Motions & Objections

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  Motions in Limine
 Objections at Trial

b. Witness Qualifications – You must qualify the witness

 Rule 104(a) – Determines Admissibility of Evidence

 Stipulations ???

c. The educating witness usually has heavy academic credentials

d. This witness is going to explain why Benedictine causes birth defects

 With a readily verifiable certainty

e. Standard will come from Daubert/Kumho

f. Process

 Validity of Theory
 Proper Application of the theory

2. The proponent next calls a Reporting Witness

 This witness is not a scientist or a researcher and they usually do not have the same
level of academic credentials as the educating witness.

 This witness describes to the jury the manner in which the test was conducted in the
case and states the test result.

 This is usually a laboratory technician and he will explain to the jury his
qualifications to conduct the test.

 He is part of the chain of custody

 He qualifies the actual instrument used

 Use same as above court procedure and add weight to the equation

3. Finally, the proponent will call an interpreting witness

 This witness evaluates the test result and illuminates its significance for the jury.

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  They provide the interpretive standard (Major Premise) and apply standard to test
results (minor premise).

 Note:

 Opinion testimony based on facts learned in any of the following ways:

1. Personal observation
2. Type customarily relied upon
3. Hypotheticals
4. Continuously present in the courtroom

 How We Establish Reliability of These Witnesses

 The Frye Test – under c/l courts had applied the Frye test requiring the proponent of
testimony based on scientific procedures to show that the procedures were “generally
accepted” in their field.

 Fry Analysis – in the Frye analysis, the consensus of scientists in the expert’s field
controlled the admissibility of the testimony. Testimony based on theories that were
on the cutting edge of knowledge was rejected. This protected the process against
using evidence that might later be discredited.

• This is the important part:

 Current practice expands on the Frye Test, on the basis of two U.S. Supreme Court
decisions, Daubert and Kumho

 The Daubert court established new requirements for admission of scientific

evidence.

• Under Daubert the court must determine admissibility of scientific evidence by

evaluating the validity of three separate aspects of the evidence:

1. It’s scientific method; and

2. The application of that method to the factual inquiry under consideration; and
3. The production of consistent results from repeated applications of the principle.

• The Daubert Court says a court may analyze the following aspects of an expert’s
theory or technique: (This is not a definitive checklist – but the main) (5)

1. Can it be tested, and if it can be tested, has that testing taken place?

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  Scientific explanation must be capable of “empirical test.”

2. Has it been described in scientific publications subject to peer review?

3. What are its known or potential error rates?

4. Are there standards that can control its operation, and if so, were they used in
developing the expert’s testimony?

5. Has it achieved some degree of “acceptance” in a relevant community?

• So, “general acceptance” is not a necessary precondition to the admissibility of

scientific evidence under FRE, but the FRE—especially Rule 702—do assign to
the trial judge the task of ensuring that an expert’s testimony both rests on a
reliable foundation and is relevant to the task at hand. Pertinent evidence based on
scientifically valid principles will satisfy those demands.

• Another Important Note:

 Although Daubert was remanded back to the t/c, they ultimately did not prevail.
 The Court held (Good Law Today)

− One very significant fact to be considered is whether the experts are proposing to
testify about matters growing naturally and directly out of research they have
conducted independent of the litigation, or whether they have developed their
opinions expressly for purposes of testifying.

− That an expert testifies for money does not necessarily cast doubt on the reliability
of his testimony. But, in determining whether proposed expert testimony amounts
to good science, we may not ignore the fact that a scientists’ normal workplace is
the lab or the field, not the courtroom or the lawyer’s office.

− While plaintiff’s scientist’s are all experts in their respective fields, none claims to
have studied the effect of Bendectin on limb reduction defects b/f being hired to
testify in this or related cases.

− If the proffered expert testimony is not based on independent research, the party
proffering it must come forward with other objective, verifiable evidence that the
testimony is based on scientifically valid principles.”

• Under Kumho, the court held that Daubert applies to all expert testimony not just
expert testimony based on science.

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  The court in Kumho, also reiterated that not all of the factors set out in Daubert
need be applied in every case, and that factors other than those can also be used by
a t/c in assessing reliability of expert testimony.

• Under Rule 702, the t/j must apply gate-keeping inquiries of 3 types to all expert
testimony based on scientific principles or other kinds of technical expertise:

1. The t/c must assess the sufficiency of the expert’s underlying data,
2. The reliability of the experts methods, and
3. The reliability of the expert’s application of those methods to the facts of the case.

 Decisions on the admissibility of expert testimony are reviewed under the “abuse
of discretion” standard, so they will rarely be reversed.

 Argument Against Expert Testimony

 Opponents of expert testimony that they characterize as based on “fringe” or “junk”

science can argue against its admissibility in terms of its :

1. Topic,
2. The training of the proposed expert; and
3. The reliability of the expert’s methods and application of those methods

 For Example

− You can’t use a psychic to refute testimony as an expert – applying Rule 702, it
might say the topic of the proposed witness’s testimony is not one which specialized
knowledge can assist the trier of fact in determining whether the Δ committed the
crime.

− Using the Daubert factors, a court would likely conclude that psychic feelings
cannot be tested, have not been documented in publications subject to peer review,
do not have known error rates, are not used in controls, and have not gained
acceptance in some significant community.

− This would support a ruling that the testimony is not based on sufficient facts or
data, that it is not the produce of reliable principles and methods, and that it is not
based on a reliable application of reliable principles to the facts of the case.

 Type of Data

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  Rule 702 requires an expert’s testimony to be based on “sufficient facts or data.” In
attempting to satisfy that requirement, an expert may rely on information from a
variety of sources, including material that would not be admissible in evidence. Rule
703.

• Rule 703 – Bases of Opinion Testimony by Experts

 The expert is entitled to state an opinion based on facts he or she believes to be true
b/c of what the expert has seen or heard at the current trial, or based on facts the
expert believes to be true b/c of observations outside the trial.

 The expert is allowed to testify to their conclusion but he can’t say EMT Bob
Johnson told me this. It is only the conclusion unless the court determines.

(Is it admissible for its truth?)

 Here, hearsay can come in as a conclusion but the expert cannot say who or whom
they got their information from.

 Rule 705 allows the court to require disclosure of the data relied on by the expert.

 With regard to testimony that is based on information the expert obtains other than
by observing the trial, the rule makes it clear that there is no requirement that this
nformation be admissible in evidence, so long as it is the type of data that experts in
the field reasonably rely on in forming opinions.

 Examples:

− A medical expert could base testimony on X- rays that the expert had seen
outside of court even if technical rules would preclude admission of the X-ray
films as evidence, if the trial court had a basis for believing that experts typically
consider that type of X ray reliable.
− An assessor of real estate could testify about the value of a house even if the
testimony was based in part on hearsay statements by people who lived in the
neighborhood where the house is located, if relying on statements of that kind is
reasonable conduct in the field of real estate appraising.

 The rule assumes that an expert can usually state his or her opinion w/o revealing
the underlying information.

 It controls the disclosure of otherwise inadmissible information that is a basis for

an expert’s opinion with a balancing test administered by the court.

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  An expert will be allowed to disclose otherwise inadmissible facts or data if their
value in assisting the jury to evaluate the expert’s opinion substantially outweighs
their prejudicial effect on the opponent’s case.

• Rule 705 – Disclosure of Facts or Data underlying Expert Opinion

 An expert’s testimony does not have to include the basis for the opinion it states, but
that basis must be given on cross-examination if it is requested.

 This rule is important b/c if you put an expert on the stand, on cross-examination they
can ask him about this inadmissible evidence in great detail – that is, where he got it,
how and why and if this comes in and its not solid, this could gravely hurt your case –
so be careful when you use an expert whose data is questionable.

• Style of Testimony

− Expert witnesses may state their opinions and conclusions in any way they choose,
subject only to a limitation in criminal cases that prevents them from saying explicitly
whether a defendant possessed a specific mental state that is an element of a charged
crime.

• Rule 704 – Opinion on Ultimate Issue

− An expert is permitted to state an opinion on an ultimate issue in a case with the

exception of issues of mental state in criminal cases.

− An expert on mental health can testify about definitions of mental states, symptoms,
and methodologies for making diagnose and can describe “facts.” However, the
testimony is improper if it crosses a vague line to make a specific statement about the
crucial mental state of the defendant that is at issue in the criminal prosecution.

− You can put the psychiatrist on the stand to testify about the defendant’s alcoholic
psychosis but you can’t ask the doctor could he distinguish right from wrong. You
can ask what causes these symptoms and such but you cannot ask him with respect to
this case and these facts did he, could he, have committed the crime.

− You can testify that he is a pedophile, etc . . .

• Just Know that this following rule exists

• Rule 706 – Court appointed Experts

 Allowing the court to appoint an expert is a response to the “battle of experts”

problem in which rivals are hired by opposing sides; the provision is rarely used,

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 however, and carries the risk that a jury will give improperly significant weight to the
expert’s opinion on the theory that b/c the judge has appointed the expert, the
opinions must be respected.

 Note:

 Florida rules are different from FRE 702. The Florida rule used to be the Federal rule.
On the bar exam you will have both rules. Go to page 268 of Florida rules and note
distinctions b/c this will definitely be on the bar exam.

 Also just note, that if the case is b/f 1975 – c/l rules apply, if after its FRE that apply.

LEGAL RELEVANCE/COURT’S DECISION TO EXCLUDE

 Rule 403 (The most often cited FRE)

• Rule 403 – Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or

Waste of Time

 This balancing test allows t/c to exclude relevant evidence where its admission would
harm the judicial process through delay, confusion or unfair prejudice.

 For prejudicial effect to be significant under this rule, the effect must be one of unfair
prejudice.

 It is only when a fact-finder might react to aspects of evidence in a way that is not
supposed to be part of the evaluative process that the reaction is considered unfair
prejudice.

 Example

− Simultaneous Inferences from Evidence that Defendant said “I’m going to break your
arm, I belong to a cult that worships violence”

Allowable Chain of Inference

Juror belief that Δ said words  Juror belief that those words could scare a reasonable
person  Juror belief that Δ guilty of assault

Forbidden Chain of Inference

Juror belief that Δ said words  Juror belief Δ adheres to weird cult  Juror disgust at Δ for
belonging to cult  Juror interest in punishing Δ for cult status, regardless of juror beliefs
about assault.

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Another Type of Unfair Prejudice that the Trial Judge is authorized to consider under
Rule 403.

 This is the risk that a juror will give undue probative weight to an item of evidence.

 Example

− In a case where a defendant acknowledged that the plaintiff’s theory was possible,
admitting evidence about a single other incident of the type claimed by the plaintiff
would subject the defendant to risk that the jury would give it too much weight.

1. Step One: Determining the probative value of the item of evidence

1) A judge may consider the apparent flaws, vagueness or uncertainty of the proposed
testimony.

 When the weakness of the testimony is evident on its face, a judge certainly
should be permitted to consider that a flaw.

2) Next, the judge may consider the number of intermediate propositions b/w the item of
evidence and the ultimate consequential fact that the item is offered to prove.

 The larger the number of intermediate inferences the jury must draw, the greater
the probability that the jury will commit some inferential error.

 This element comes into play when the evidence is circumstantial rather than
direct.

 How long is the chain of inferences connecting the item of evidence and the
consequential fact under Rule 401 (definition of relevant evidence)? The longer
the chain, the more possibilities of error.

3) In addition, there is a consensus that the judge may consider the strength of the
inference from the item to the consequential fact that it is offered of prove.

 The remoteness in time lowers the probative value of the evidence

 The remoteness in place can have the same effect.

4) Finally, the Advisory Committee Note to Rule 403 states that “the availability of
other means of proof may be an appropriate factor.”

 In the Devitt letter example, assume that the prosecutor has no evidence of
Devitt’s motive other than the somewhat dated letter. The unavailability of

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 alternative evidence increases the prosecutor’s need to resort to the letter as proof
of Devitt’s motive.

2. Step Two: Identifying the Countervailing probative Dangers

 We want the jury to use the item of evidence as proof only of the fact or facts the
judge admits the item to prove → Rule 401 → historical facts on the merits,
credibility of Witnesses, Procedural Facts, such as jurisdiction & venue.

 The federal rules place significant restrictions on the admissibility of evidence

logically relevant only to the witnesses credibility in order to reduce the probative
danger of diverting the jury’s attention.

3. Step Three: Weighing the Balance Between Probative Value and Probative Dangers

 The last step in the process of applying the legal irrelevance doctrine is the t/j ad hoc
determination of whether the probative dangers outweigh the probative value of the
evidence.

 In effect, the judge must conduct a “cost/benefit” analysis.

 Evidence may not be excluded unless its probative value is “substantially

outweighed” by the trial concerns.

 Generally, under Rule 403, the party opposing the admission of relevant evidence
must be able to point to a real danger of prejudice that is sufficient to outweigh
substantially the probative value of evidence.

There is a well established body of case law supporting a “Rule 403” objection. These
recurring situations including the following:

1) Tangible objects, photographs, and other visual evidence

 The most frequent objections are to tangible objects and photographs that may shock
or “inflame” the jury.

2) Experiment and Tests

 To moot the danger of misleading the jury, most courts require that the proponent of
an out of court experiment prove that the test conditions were substantially similar to
those obtaining at the time of the relevant event.

3) Exhibitions

a. Jury Views

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  The rationale of the jury view doctrine is that if the object or scene cannot be
brought into the courtroom, the jury can go to the object or scene.

 In deciding whether to grant a jury view, the judge weighs the complexity of the
proposed testimony; the more complex the testimony, the greater the likelihood is
that the judge will authorize a view.

 The judge also considers the time lapse b/w the incident in question and the time
of the request. The greater the time lapse, the greater the likelihood is that the
object or scene has changed, and the less the likelihood that the judge will grant a
view.

b. Displays of a Person or Parts of the Body

 Exhibitions are not limited to inanimate objects. The judge may also permit the
display of a person or a part of a person’s body.

4) Demonstrations

 In an exhibition, the attorney passively displays the object to the jurors. In a

demonstration, the attorney shows the jury some process in action.

 As in the case of a request for an exhibition, a request for a demonstration is

ordinarily committed to the judge’s discretion, and the Rule 403 considerations apply.

 Judges will typically insist that the proponent demonstrate that the conditions for the
in court demonstration are substantially similar to those that prevailed at the time of
the relevant event.

LEGAL IRRELEVANCE/CHARACTER, HABIT, OTHER ACTS & T/A’S

 Rules 404, 405, 406, 412, 413, 414, & 415

 Character Evidence

 In this section, we first encounter the two fundamental character evidence issues: (1) the
proper use of character and (2) the methods of proof that may be used to establish
character.

 When character itself is in issue under Rule 401, three methods of proof are available:
reputation, opinion, and specific instances of conduct. FRE 405 adopts this view

 Character as Circumstantial Evidence of the Conduct of a Party

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  Proof of character is not an end in itself; rather, the end objective is proving conduct, and
character is merely employed as a means to that end.

 The defendant may introduce affirmative testimony that the general estimate of his
character is so favorable that the jury may infer that he would not be likely to commit the
offense charged. Simply stated, the proponent argues that the party is not the type of
person who is likely to perform that type of act.

• Rule 404 – Character Evidence Not Admissible to prove conduct; Exceptions; Other
Crimes.

 404(a) Character Evidence Generally – Explanation. – Evidence may not be

admitted, generally, if its only relevance is to support an inference that b/c a person
has a certain type of character the person acted in a way typical of that character at a
particular time. This is the rule against “propensity” evidence.

• The Propensity Inference

− Suppose someone on trial for robbery of a liquor store had robbed gas stations
several times in the past. He might also have the reputation of being a thief.

− The propensity rule prohibits introduction of information about his reputation

or the past robberies to support the inferences that he is a thief and that he
therefore robbed the liquor store. (This is 404(a))

− This prohibition applies to civil cases with no exceptions and to criminal cases
with a small number of exceptions.

− For civil and criminal sexual offense cases, however, Rules 413, 414 & 415
reject this traditional analysis. These provisions permit introduction of
evidence of a defendant’s past sex offense to support an inference that the
defendant committed another offense of that type.

− There are two main reasons for the prohibition in Rule 404(a).

1. One is the belief that the propensity inference may lead to wrong
conclusions.

2. The other is a concern that the propensity inference would almost always
be supported by evidence that carries a significant risk of unfair prejudice

 404 (a)(1) Explanation. – Despite the general rule against the propensity inference, a
criminal defendant may introduce evidence of “good” character related to the type of
offense for which the defendant is being tried. If the defendant takes advantage of this
opportunity, the prosecution is entitled to introduce opposing character evidence. If the
defendant takes advantage of a different opportunity to offer character evidence, the

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 provision in Rule 404(a)(2) about character evidence concerning an alleged victim, then
the prosecution may offer similar character evidence about the defendant.

− Note, that evidence law forbids the use of inference from general character to
conduct o specific occasions, but allows a criminal defendant to use that precise
chain of inferences to disprove guilt, and allows a prosecutor to use it, too, if the
Δ does first.

− The Δ/s ability to inform the jury about his or her character is sometimes called
The Mercy Rule.

− A Δ must prove character by reputation or opinion evidence instead of with

information about specific instances of past conduct, but a prosecutor may bring
in the defendant’s past conduct by asking the defendant’s character witnesses
about it.

− Once a criminal Δ “opens the door” by introducing character evidence, the

prosecutor is permitted to cross-examine the defendant’s character witnesses and
to introduce rival character witnesses.

− In cross-examining the defendant’s character witnesses, the prosecutor is allowed

to “inquire into” any “relevant specific instances of conduct” by the defendant.

− However, while the prosecutor is allowed to ask about events, the prosecutor is
not allowed to introduce independent proof about them and is required to accept
whatever answer the character witness gives.

− To respond to a defendant’s character evidence, the prosecutor is also permitted to

introduce testimony from other character witnesses.

 404(a)(2) Explanation. – To establish the defense of self-defense in criminal cases

involving an attack by the defendant on another person, the defendant is entitled to
introduce evidence that the victim had a violent character. In some situations, the
prosecution may also use character evidence about a victim.

− For Example, a defendant accused of attacking someone might admit to the attack
but claim that he or she had acted in self-defense.

− The claim of self-defense leads to two issues for which character evidence is
relevant.

1. First is the factual question of whether the victim actually did attack the
defendant.

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  The Δ is allowed to introduce evidence showing that the victim had an
aggressive or violent character to support an inference that the victim was
the aggressor.

 In this instance, the usually forbidden propensity inference is allowed.

2. Character evidence can also support a defendant’s self-defense claim by

persuading the jury that the defendant could reasonably have feared the victim
b/c the defendant knew the victim had a reputation for violence.

− When a Δ introduces character evidence on either of these rationales, the

prosecution can then introduce contrary character evidence about the alleged
victim to refute the defendant’s showing.

− In homicide cases, the prosecution is sometime entitled to introduce evidence

about the victim’s character even if the defendant chooses not to use that kind of
material.

− Rule 405 requires that all of this material be in the form of reputation or opinion
testimony since the character of the victim is relevant only as a stepping stone to
the ultimate inference about the victim’s conduct.

− Evidence about the defendant’s use of character evidence about an alleged victim
also authorizes the prosecution to introduce character evidence about the
defendant relevant to that same trait of character.

− Usually the prosecution cannot introduce character evidence about a defendant

unless the defendant has already used character evidence about the defendant.
However, Rule 404(a)(1) provides that when the defendant uses evidence about
an alleged victim’s character trait, the prosecution may introduce character
evidence showing that the defendant has that same trait of character. This applies
regardless of whether the defendant had already introduced any evidence about
his or her own character. Rule 405 controls the form of the prosecution’s proof.

 404(a)(3) Explanation. – Character evidence that would otherwise be prohibited due to

the general bar against propensity evidence is admissible for impeachment purposes under
Rules 607, 608, and 609.

− If a witness has been convicted of a crime, evidence of the conviction is often

admissible to support the following linked inferences:

1) The witness does not respect our society’s rules of conduct;

2) The witness is a person who has a propensity to lie; and
3) Because of that propensity, the witness may have lied while testifying.

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 − This general rule permits jurors to base a conclusion about the witness’s conduct
in court (the witness lied or spoke truthfully) on information about the witness’s
past conduct out of court.

− This is an exception to the general prohibition against propensity evidence.

− Admissibility of evidence of prior convictions is often determined in pre-trial

proceedings.

 404(b) Other crimes, wrongs, or acts Explanation. – The general bar against propensity
evidence excludes evidence when the only rationale for admission is to support inferences
about a person’s character and the person’s having acted in conformity with that character.
This rule confirms that information about a person’s past conduct that would naturally lead
to inference about the person’s character may be introduced for different, and therefore
allowable, purposes. It provides examples of typical allowable rationales such as proving
that the person had special knowledge or a particular motive.

New Class October 3, 2006

Going over Dauber how they turned them down the second time. Look on page 274 Note 1 – we
don’t like when research is done for the sole purpose of the trial. Put this in your notes. You
have to understand the political sensitivity.

Kumho Case – he just has the rule on board

Nothing in either daubert or the federal rules of evidence requires a d/c to admit opinion
evidence that is connected to existing data only by the ipse dixit (b/c I say there’s a connection
there’s a connection) of the expert.

The dauber factors are not holy write, in a particular case the failure to apply one or another of
them may be unreasonable, and hence an abuse of discretion.

It is the rules 702 work “knowledge”, not “scientific” that modify that word, that establish a
standard of evidentiary reliability.

Rules 702 and 703 grant all expert witnesses, not just “scientific” ones, testimonial latitude
unavailable to other witnesses on the assumption that the expert’s opinion will have a reliable
bases in the knowledge and experience of his discipline.

How do you change result in daubert? Someone else had to be doing a study on the drug rather
than her lawyer hiring people.

Competing considerations for admitting opinion testimony

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1. Will it be helpful – assist the finder of fact? Rules 701 & 2 versus
2. Is the basis of the opinion speculative and or conjectural? Rules 702&703 – bought and paid
for is not enough to keep it out anymore – no we go to weight – and instruct jury what to do with
weight. versus
3. What is the jury’s ability to provide the appropriate weight to the opinion testimony? Rule
104(b) versus
4. What is the court’s ability to provide adequate cautionary instructions concerning the
testimony? Rule 105 versus
5. Would using this evidence be unfairly prejudicial? Rule 403.

The Florida Test

First, the t/j must determine whether such expert testimony will assist the jury in understanding
the evidence or in determining a fact in ussue.

Second, the t/j must decide whether the expert’s testimony is based on a scientific principle or
discovery that is “sufficiently established to have gained general acceptance in the particular
field in which it belongs.”

Third, the t/j must determine whether a particular witness is qualified as an expert to present
opinion testimony on the subject in issue.

Fourth, the t/j may then allow the expert to render an opinion on the subject of his or her
expertise, and its is then up to the jury to determine the credibility of the expert’s opinion, which
it may either accept or reject.

The logic of Daubert is better than the logic of Frye. Florida’s law will eventually be changed.
FRE & Florida rule here both go in different directions. Florida’s rule is about counting heads –
general acceptance but this is not what daubert or kumo mean

Rule 707 Polygraph Examinations he said to write 608 b/c we are coming back here. – this is a
government rule.

a. Notwithstanding any other provision of law, the results of a polygraph examination, the
opinion of a polygraph examiner, or any reference to an offer to take, failure to take, or taking of
a polygraph examination, shall not be admitted into evidence.

b. Nothing in this section is intended to exclude from evidence statements made during a
polygraph examination which are otherwise admissible.

If you take polygraph exam and pass it, the results cannot come in by statute. Cant’ mention test
in a jury trial. CAN’T MENTION POLYGRAPH PERIOD.

Rule 707 is fine but we have the 6th amendment issue.

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I didn’t do it I have a polygraph – you can’t admit this evidence. but stevens in his dissent is
saying under the 6th amendment a person accused of a crime has a constitutional right to present
a defense.

Noting in Dauber indicates that a state’s interest in ecluding unrealiable evidence estends to per

catergorical exclusiong if done reasonably and aribratiatly it doesn’t violate the 6th amendment.
Read the decision on scheffer

The federal test Daubert Factors for novel expert witness testimony with Kumho and Joinder
interpretations. This will be on bar exam.

New Area of law now – Really, Really Important

All evidence must be both Logically Relevant Legally – Rules 401 + 403 You must satisfy both
logical and legal we’ve done logical now were going to legal.

Rule 403 is a ubiquitous rule.

What does it mean to say a judge has abused his discretion? Discretion as its meant to be
interpreted what it does not mean is the judge’s own bias. So what does discretion then mean?
Fact and law on both sides and the judge does the math he uses his or her discretion based on the
facts and law that have come b/f him. This is discretion.

Rule 403 has no value if used by itself it must be used with other rules.

Only applies to evidence already admissible – it cannot make inadmissible evidence admissible.
– grab on to this thought. But it can make admissible evidence inadmissible. It can only keep
evidence out it cannot be the vehicle to admit evidence.

This is admissible evidence – evidence the judge has already said can come in.

Unfair is the most important word of this rule. Unfair means the jury will base their decision on
emotions and not on the facts and the law.

Your ability to be able to anticipate how the jury is going to see the evidence – this is your job in
this rule. What evidence is going to be unfairly used by the jury – and you have to object to this
evidence as being unfairly prejudicial. You must put yourself in the position of the jury.

Substantially is the standard we use to determine unfair. In a close case as to whether or not
unfair it comes in.

New Class October 5

Middle of Rule 403

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Hand out – Legal Irrelevance.

Autopsy Example – Emotion they may not look at the evidence. The DVD is relevant but we
need to decide whether or not were going to let it in. Argument is 403 balance – probative value
– unfair prejudicial effect.

Facial vagueness is there something in the evidence that makes it suspect – if it is this is the
argument to keep out otherwise admissible evidence.
Circumstantial Evidence – the more circumstantial factors is more weakness and will argue rule
403 to keep it out.
iii – does really the video tape of autopsy really help establish what’s going on – the stronger this
is the more likely the evidence will come in.
iv. Remoteness – how distance is the evidence – the more distance – the less probabtive – time.
v. his a felon and in possession of a gun. I’ll tell you what I’ll stipulate about the fact he was a
felon and had a gun. Prosecutor says you can’t tell me what evidence I’ll stipulate or admit ,
which was the law b/f old chief. Term of art – this is a really bad man. Supreme court says
unfair

These are the issues you make either for or against the evidence. 1. abc . . .

Unfair prejudice in the drafter’s minds meant an undue tendency to suggest a decision on an
improper basis, commonly though not necessarily, and emotional one. – Unless you can get the
otherwise admissible eveidence to this level – the evidence is going to come in.

When the opponent to the evidence on rule 403 the overall burden is upon he who seeks the
exclusion of relevant evidence.

The essence of being a good advocate is your ability to provide the specifics not some broad
overall sweeping statement – do detail, specificity, rationale, facts. – say away from conclusory
statements – give the reasons

Bar Exam – Two tests

a. Where the unfair prejudice and probative value are relatively Equal – admit the evidence
b. In all close questions – admit the evidence

Measuring the Closeness

a. The rule is not meant to be applied to admit evidence that is plainly more unfairly harmful
than helpful

b. The rule is not meant to be applied to exclude evidence that is only slightly more unfairly
harmful than helpful.

If you can demonstrate unfair prejudice by demonstrable, articulable & dangerous

Trying to get the evidence so the case will be decided on rationale and not emotionally

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Now going to substantive rules of evidence that are most often used with rule 403.
Federal Rule and Florida rules are different here

Rule 405 – Reputation, Opinion and Specific instances of conduct

We’re going to prove the character of the accused and/or the character of the victim
Character rules only apply in criminal trials

Only the accused can initiate character evidence.

Once the defense opens the door, the government will bring in every possible conceivable
witness to bring him down. that will show the exact opposite. You have to make a tactical
decision.

How do we prove reputation? In FRE you can prove by reputation or opinion. Florida only uses
reputation.

(a) Reputation -- Lay foundation of somebody who not just knows her but to the corporate
opinion. Admit it. Going back to the little old lady and the guy – my reputation is the only
defense I have. Opinion –

On Cross-examination – specific instances of conduct. On cross examine prosecutor would ask

witness so you’re a member of the same community . . . no one’s heard of the fact that your
arrested. On direct can only do reputation and opinion on cross inquiry is allowable into relevant
specific instances of conduct. Then you present your own witness to attest to that negative
testimony. This is about impeaching the witness.

New Class October 10

Handout 1

Explaining the story about Michael shooting the guy his girlfriend was talking to:

Two kinds of character evidence in this case:

Michael knows this man is a bad man who can kill him with one blow –everyone believes this—
he has some sense of the character of this man – lethal dangerous – what he doesn’t know is this
character’s reputation in the community—he only knows what he thinks of him.

You must separate these two types of character evidence

If defending Michael – show he was afraid—self defense; you also might want to introduce that
this guy’s reputation in the community was as a hostile and aggressive man.

401 – this evidence is relevant b/c it deals with what happens – the first category is I was afraid
-- Historical facts then go to 2 & 3

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2. Michael’s minister cam to testify.

Rule 404 The accused and the victim these are the only two players in this rule.

(a) propensity evidence is generally not admissible but for 404(a)

(1) accused is only in a criminal case (on bar)
Compare w/rule 608(a) study for exam 608(a) v. 404(a) – must know this for exam.

404(a) (1) when the accused places his or her character in issue it opens the door for the
prosecution to rebut the same. He says I’m a peaceful guy I would’nt have done this crime, but
once he does this prosecution is allowed to rebut.

If the accused places the victims character in evidence the government can then place the
accuseds character in evidence. Defense has to be particularly careful about tactical use of
initiating character evidence.

(2) Here were talking about s/d – defense is offering self defense thereby opening the door for
the government to testify about the peacefulness of the victim. B/f trial begins say your honor
I’m comtemplating of offereing evidence of – will this open the door – in limine you do this.
You have to pay a price to raise the self defense. You bring it up in such a way that you can say
your honor is this going to open up the door – probably – but its worth a shot.

(3) 608(a) he’ll go into this later

Two step process to do this in a courtroom

1. Prove the relevant Character Trait
2. Argue that it applied on the Time and Date in Question

Closing argument you invite jury to believe that on the day and time in question the accused
acted in conformity with his or her character.

This rule is the link b/w the presentation of evidence and show to the jury how the evidence is
linked.

Jackson on circumstantial logical relevance: The defendant may introduce affirmative testimony
that the general estimate of this character is so favorable that the jury may infer that he would no
be likely to commit the offense charged. – This is it in a nutshell. This works when its not the
person who would do the crime – if you open the door for a person who is the type – be
extremely careful.

Handout 2 This is the timing process requirement of rule 404a

Reputation, opinion and specific instances can only be used to impeach the witness

Impeaching the accused’s character witnesses with specific instances of conduct; the value of
“do you know” and “have you heard” questions: -- know this

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Rules 404a, 405a and Michelson v. United States

Cross-Examination provides “tests of credibility” and prevents the accused “from profiting by a
mere parade of partisans.”

Going back to Michaels’ case – do you know Michael’s reputation in the community as a
peaceful person then Ausa cross-examines and says “have you heard that Michael was involved
in a fight six months ago. If witnesses says no means testimony is useless if says yes his entire
testimony is suspect b/c his testimony is skewed. The defense counsel know asks the judge to
instruct the jury for evidence that can be used two ways – Rule 105. – instructions.

Movin on to another couple of rules 406 which is cousin to 404a

Rule 406 Habit; Routine Practice

1. Probability Theory Evidence

2. Individual—habit—uniformity
Businesses—routine practice—frequency
3. Both measure patterns of conduct
4. Used as circumstantial proof of conduct on the date and time in question
5. 404a character – generalized description of one’s disposition to certain behavior
vs.
406 Habit – specific description of one’s regular response to a repeated situation

Semi-Automatic Conduct

6. Witness—observed subject “always reacting the same way to a given situation

7. Methods of proof (Rule is silent): Opinion Testimony (Not reputation), Specific Instances of
Conduct.

More often than not what were dealing here with is proof.: 406 Standards+

1. How often was the person observed performing the conduct

2. How similar is the past conduct with the conduct sought to be proved?
3. How unique is the conduct
4. How uniformly consistent is the conduct
5. Is the conduct automatic vs. discretionary

Habit is narrower – character evidence is reputation and opinion

Rule 404(b) VIP in criminal cases often determines the outcome of the trial

404a is propensity rule 404b has nothing to do w/404a except to juxtapose it. Rule 404 b is other
crimes wrongs or acts

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Handout 3 404b – talking about serious criminals—dangerous individuals b/c we are going to
look at other crimes that accused has been involved with not charged with.

You want to use some of this extrinsic offense evidence to help prove the crime the accused is
charged with.

I want to present evidence of the two previous charges even though he was acquitted to show
knowledge, motive, scheme. When the prior crime is of the same pattern we are going to let it
in. This rule is always sited w/rule 403.—your going to argue as def. attorney – unfair . This is
the exact opposite of 404a on b you can never use it to show propensity or conformity.

First rule that has a notice requirement. Here they don’t tell them who the witnesses are b/f the
trial. b/c your dealing w/bad guys hear. unlike 404a. If the defense can show the judge that the
jury is going to prosecute b/c this is unfair—how do you make the argument – look at other case
–how your circuit has ruled. 404(b), 403, 105—you do the arguing to keep it out in limine. 404
a u use 405 a to admit evidence on 404a under 404b propensity is not admissible cannot admit he
did it b/f –conformity. 105, 403, 404a. He’s a bad man, he did it b/f show to use how he
planned to commit this robbery – bad man.

New Class October 12

404b Say accused is charged with bank robbery and the extrinsic offense were thinking about is
drug abuse – this is not at all related—but you can tie it in—needed money—argument to keep it
out 403—might be unfair. H/o five is an explanation of all the traditional reasons you can get
the evidence in. Rule 404a is exclusively about propensity rule 404b is everything but
propensity

h/o six shows what you have to show in order to get the evidence in.
1. the weaker the governments evidence the less likely that the judge is going to let it in.
2. Unless the issue is challenged the defense, no 404b evidence.

404b is extremely important rule will be on this exam and bar exam.

Rape must be separated in two categories.

1. Date Rape – question is was the penetration consensual—won’t spend a lot of time on here.
2. Street Crime – whether or not the accused did it or not.

You must when you analyze separate the two above out.

Rule 412

How much of how she looked and acted and dressed is admissible for evidence?
a(1) not allowed to prove other sexual behavior
a(2) not allowed to prove sexual predisposition.

(c) here to remind parties and judge there is still a 6th am. that we have to be sensitive to.

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The rule 412 Balance

The right to present a defense (6th am) vs. society’s interests in: Preventing sexual offenses, and
protecting the victim/witness of sexual offenses

Moving to Rules 413 & 414 opposite of rule 404 a and b you can only do them in child sexual
abuse cases and sexual assaults. The evidence for the crime of sexual assault and abuse is
different than others. What you can’t do in 404 b you can do with these rules.

New Class October 17

Character credibility evidence

Limiting the defense evidence expanding the government evidence

Rule 413 and rule 414 pretty much the same

Rule 413

Florida has not adopted this rule – its is purely a creature of the Federal govt.

These two rules only apply in rape or child sexual molestation abuse cases. If your charged with
rape this statute is about other rape charges

This rule means you can do the best of 404a and 404b. If charged with rape and has previous
rape we are going to argue he has the propensity to commit the crime because of his prior rapes.
No limits here. B/c accused prior crime he committed this crime. This is huge. Will be on
multi-state portion of bar. Statements we are going to use are for the purpose of getting the
accused to plead guilty. You establish a good faith belief – like in 404 b – you bring in the niece.
Present enough evidence so that a judge would find that a reasonable juror would find the
accused did the crime – this is a bad man.

(c) not be construed to limit – this was not meant to abrogate the other FRE and secondly, rule
403 saves the constitutionality of rules 413 and 414 w/o 403 this rule would be unconstitutional.
This rule was designed to admit unfair evidence.

Too emotional is the standard for un-fair. In this rule your only allowed to prove the act. This
rule is the extrinsic act even though he’s never been charged b/f for molesting he has the
propensity to do the crime.

Its not so egregious that it offends the rest of the world, but if we give the judge discretion under
403 that will not be unfair to the accused in this given case, fine let the evidence in.

We are going to have evidence come in of previous acts judge tells jury 105 –limited instructions
– what does the judge say – jury shouldn’t be so overborne by this evidence, or get too emotional
—this is an area of the law 412,13,14—which has special treatment.

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Rule 412—significantly reduces the mount of traditionally admitted defense evidence

Rules 413-15 – significantly increases the amoun t and use of traditionally excluded government
evidence.

Lets see if we can get this

Distinguish b/w why, if you were an AUSA, you would use:

1. Rule 404a – character evidence – propensity evidence from
2. Rule 404b – other crimes wrongs or acts used to plan scheme intent knowledge from --
Identity
3. Rule 412 – which eliminates the accused to present evidence
4. Rule 413/14 where the gates are open propensity and similar previous crimes in rape and child
molestation cases. Then

How do rules 105 and 403 affect your decision? KNOW THE DISTINCTIONS FOR THE
EXAM

ALL YOU HAVE TO PICK OUT WHICH WOULD BE THE PROPER RULE AND WHY
THAT’S ALL YOU NEED TO KNOW FOR THE EXAM.

FROM HERE WE ARE HALF WAY IN THE PROCESS

FOUR RULES YOU USE ALL THE TIME 103—OBJECTIONS, MOTION IN LIMINE &
OFFERS OF PROOF, 104 A AND B TO DETERMINE WHETHER THIS EVIDENCE IS
GOING TO BE ADMITTED OR NOT JURY/WEIGHT CAN A REASONABLE JURY
DECIDE, THEN RULE 403 THEN FINALLY AT END 105 – HAVE A RIGHT TO A
LIMINE INSTRUCTION ONLY IF THEY ASK FOR AN INSTRUCTION

Ad hominem – an argument a philosophy and approach, To the person – personal attack on who
you are – not on pertinent character traits but on you. This is the logic of the rules we are
starting now: Be sensitive to these three terms: TERMS OF ART;

1. Bolstering Evidence (generally on direct)—inadmissible evidence presented b/f a witness

has been attacked.

 Not allowed to call a witness to say I believe the first witness – drug scenario case,
informant—unbelievable—next witness FBI agent says I believe him—can’t do this its
bolstering.

2. Attack evidence (impeachment)—evidence used on cross-examination to show that the

witness is not worthy of belief.

 The witness herself is not a believable person

 On c/e the defense can attack the believability veracity of the witness—truthfulness

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3. Rehabilitation Evidence—during redirect, or by calling other witnesses, proponent can repair
damage done by the cross-examiner.

 In our scenario, now the door has been open the prosecutor can come back with
credibility , believability, veracity.
These rules are different from pertinent evidence in 404(a)

Rule 607. – VIP Rule

The credibility (personal attack, veracity, truthfulness) of a witness may be attacked by an

party, including the party calling the witness.

If your witness has a problem with credibility and you don’t bring it up first, the jury is going
to think that lawyer was going to hide it from us that this was not a credible guy. You must
bring it up first if your witness has a credibility problem. This rule allows us to attack our
own witness. I’m going to ask in front of the jury my client about his three convictions first.

§ 90.608 Who May Impeach – this is the Florida rule. (will be on bar) pg. 566
1. is not covered in federal rule of evidence but still used.

This rule is what we will be looking at in the FRE of evidence – FlA just lays it out better

Rule 610 this law vs. the eternal existential question: Does God punish liars?

Crucial part of rule it makes religion inadmissible in only once circumstance – that is if its
being offered for credibility purposes. For any other purpose its admissible.

Move away from concept of God to the existential question: Does God punish liars?

Examples:

1. Accused charged with using cocaine. Can he prove his religious character for not using
drugs? Yes admissible under rule 404a, I’m allowed to do this, I’m going to open the door,
this is my character trait, this is not for credibility.

2. Accused charged with using marijuana . Can the government use a DEA agent to testify
that the accused admitted to using drugs as part of a religious ceremony? This case the
evidence was admissible also the fact that he used drugs for religious ceremony had nothing
to do with his credibility. In this case, its just an admission and confession – has nothing to
do with his religious beliefs.

New Class October 19, 2006

Rule 610 – This is 404a evidence

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 Handout The Testimonial qualities
1. Have to distinguish between people who lie
3. Classic way you would impeach a witness as to whether they are testifying truthfully-
these are all personal attacks – has nothing to do with the evidence.

A Crucial Concept Handout

Admitting someone’s statement against them – he is saying the light is green on the stand but
I’m coming in saying he told me the light was read – this is not for substance – just for
impeachment

Rule 613 -- Credibility of Witnesses

This is about what is inconsistent b/c if it isn’t you can’t use it to impeach. Has to be
inconsistent enough that it is of some value to the litigation.

a prior statement is b/f the trial began outside the courtroom.

All the witness says on the stand is apples, apples, apples you get up to c/e witness and you
know in the deposition they said oranges – you said oranges a bunch of time – you don’t
need a foundation nor answers – just ask the questions so the jury hears you say all the
different times he said oranges. The value is in the simple inconsistency. If you are the other
side and you know your client said oranges in the deposition – you need to bring this to the
juries attention in your opening statement – you are protecting your witness. You need to
take the sting out so that the other side doesn’t broadside you. Only used for the believability
not to prove this in fact was an orange.

(b) back to example of apples and oranges, now we are looking to introduce the extrinsic
evidence of the orange statement b/f you introduce the deposition you have to give the witness
the opportunity to explain or deny the same. diff. b/w a and b has to do with the admission of the
actual document—the extrinsic proof of the inconsistent statement. – this is b/f you can
introduce the document into evidence. Why do we have a provision here that gives us a hearsay
rule? It makes a distinction in the body of the rule b/w here. However is you are going to admit
for the truth of the matter asserted you don’t have to do anything b/c its part of your case – 801
(d)(2) statement by an agent you don’t have to doe 613d you can just simply admit it. If if
doesn’t’ fit in 802d2 then you have to go through the process of 613b. When it comes in under
613 is to show he’s lying when you get to hearsay its for substance.

Florida Rule 90.614 – same legal though but procedurally different this will be on bar exam.

Is the witness biased? If they are you have the right to prove the bias with extrinsic evidence –
you are not bound by the answer. Admit or Exclude or admit subject to weight. Can no testify
as a spouse b/c it will go to weight and bias

Two ways of impeaching for bias

1. Intrinsic evidence of Bias:

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a. C/e the witness;
b. not bound by the answer
2. Extrinsic Evidence of Bias:
a. Call another witness;
b. Present other types of evidence (documentary, photo, etc.)

see rule 801(c)

Common Attacks for bias:

family ties, financial interests, power & turf interests, romantic interests, friendships, deals w/the
prosecution, paid informants.

Honesty v. Truthfulness Which one is a pertinent character trait under 404a—honesty—honesty

is like peacefulness. Honesty is about personal, pertinent character trait.

Truthfulness, veracity, credibility—truthfulness is rule 608a—truthfulness is one thing—

believability, credibility, veracity. Truthfulness is a function of getting on the stand. Jury
decides whether or not you are a truthful, credible person.

Handout Rule 608a. Character . Always keep in mind rules 105 and 403 – is it fair and
instructions

Rule 608

(a) only for truthfulness—

No bolstering, attacking is allowed, and rehabilitation – BAR

New Class October 25

You can’t use 610 for the purposes of believieableity. You can’t use religion b/c I go to church,
therefore I am truthful—you can’t use this.

Little old lady – there defense is going to be were religious—pertinent character trait, just like
I;m a law abiding citizen – not that I’m truthful, beleivabel or credible, its just for a pertinent
character trait. – This is a big deal.

Rule 608 Again

Deals w/ propenstity in character in the same way 404a this is evidence that who you are going
to believe when they are on the stand—not pertinent character trait like 404a. As soon as you
take the stand you are subject to this rule remember BAR. In Fla. they only use reputation.

evidence may refer to the character only to truthfulness and untruthfulness and nothing else. Can
only do this after you have attacked then go to BAR . 404a is pertinent character trait for the

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accused or victim period. Here we can use character evidence but only for one purpose. 608a
you use when you attack – I don’t think this witness is truthful.

Last part is diff. than fla. rule. (2) evidence – were talking about attacking a witness credibility
or any other way that demonstrates the witness is a liar. (cross-examination say what he said in
the court room is not what he said outside the courtroom, i.e., depositon)
An attack on any witness in any way 405a reputation of opinion, bias

608 (b) if you say isn’t true that you’ve been indicted for saying false statements – they say no
—your stuck with the answer—then go to the table get piece of paper and say isn’t it not true
that you so and so, it doesn’t matter what the witness answers b/c the jury thinks you have
something official like the indictment.

(2) concerning – what’s this?—if theres another witness that’s crucial for the case, a hearsay
witness that has said a statement outside the court—this rule attacks the character for veracity of
the heasay declarant who is not in the courtroom. Before you use this rule first attack with 404 a
evidence

last part – the giving of testimony – the witness is on stand only being examined by credibility –
this does not open the door as to any other criminal complicity. You can testify on one thing
only . If a witness testifies that does not operate as a waiver for self-incrimination. so just b/c
some one talks about good character doesn’t waive the witnesses 5th am. rights. You can only
assk them about the statement not the crime. You can only testify as to charcter—

609—your going to find out if the government’s evidence of conviction is going to be able to
come in—the only evidence that comes in here is conviction. The big deal here is conviction
404b is the evidence 609 is the conviction—if no conviction you don’t have this rule –hand/out
Rule 609. This is a very contentious rule as to whether it should be used or not used. Ask
yourself if accused in on trial for robbing a bank, we’ve been through relevance and unfair, what
difference does it make if he’s been convicted for selling drugs, rape, assault and battery why
would we admit evidence that has nothing to do with the crime he’s been charged with?
Conviction of a crime can be used for one thing and one thing only—only used for truthfulness
—not propensity. Our socieity says these people are less likely to tell the truth. 608 and 609 are
credibility rules. Like 608 to the extent that it’s the same sequence as 608 you can only use this
rule to attack.

VIP to kinds of conviction

1. Felony—a qualifying offense—any crime
2. A Crimen Falsi Conviction—the crime was committed for fraud, lying or something
dishonest – this is huge b/c this rule is for truthfulness—this could be a misdeamonor but if it
was done in a fraudumelnet, lying untruthful way –it comes in – 403-405 bells in your mind
should be going off b/c he’s going to get convicted –we have a serious 403 issue here—you say
this is unfair The stronger the evidence is of the 609 conviction the closer in time and for same
charge the prejudicial value goes sky high – best evidence for the most prejudice—the greater
the unfair prejudices. The evidence is too good is creates an emotional stimulus and they will try

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to convict on the previous crime. This is the most potentially unfair evidence there can be in a
trial. Your only salvation here as opposing counsel is 403.

What is the value of the following rules in this area: You gotta use these rules together
Rule 103—objections – If you don’t object to this stuff coming in you waive, you’ve got to
object
104. judge decides will the trier of fact . . .
105 – limited instructions to the jury, your honor I want an instruction to the jury—you have to
ask for it if you want the judge to give the instruction or not – be careful here
403—unfair prejudice
&
607—your allowed to impeach your own witness—you say I’ve gotta use 607 to impeach my
own client b/c I have to do it first—raise at voir dire—the earlies possible time—ask jury if you
would be prejudiced by the prior conviction –you ask them.
These are the major issue we want to think about.

Rule 609 – handout has corrections. If it’s a felony in Alabama can come in for a witness.
Evidence that an accused has been convicted—they have a different standard for the accused—
it’s much higher.

This rule is unique paragraph 2 in all the rules of evidence – 403 doesn’t’ apply –shall be
admitted irrespective of 403. This only applies if the accused or witness is taking the stand.
404b only the facts to show identity not to show evidence of the convinction this would be error.
for 609 purpose none of the facts can come in of the conviction just the conviction itself. Then
in cross-examintion government isn’t true you’ve been convicted of a crime

On Thursday going over 609 again.

New Class October 31, 2006

Rule 802

Rule 801—Rule has 3 Parts

Part One—Definitions:
Statement
Declarant
Hearsay

Exemptions/Exceptions

Part Two—Prior Statements{Any Witness}

Inconsistent (oath)
Consistent (rebut fabrication)
Identification (bolstering)

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Part Three—Admissions by party opponent {Not Just any Witness}:
Party’s own statement
Party has manifested adoption
Party has Authorized or Agent
Co-Conspirator
Boot-strapping OK + A Scintilla

Rule 801

Assertion is intent to communicate some information—The key is it has to be intended –written,

oral, body language.

Declarant is the person who has made the out-of-court statement

(c) is always on the bar.—it has to be offered to prove the truth of the matter asserted. (613, --
sole purpose of impeaching witness –703 & 705 admitting for sole purpose that this is what the
expert relied on—these 3 rules are not for the truth of the matter asserted. Here is how you prove
the truth of the matter asserted—it really was an apple, the light was really red.

Hand out here—Professor Tribe

H/o –The great hearsay controversy—
H/o –Rule 801(c) (heart of rule of evidence will be on exam)—How we know when the
statement is being offered to prove the truth of the matter asserted
3—Legally operative language—not offering for the truth of the matter just the legally operative
language—you can show that the deal occurred—the contract—consideration—just putting the
people together.—just want to show that this negotiation occurred period—the cocaine, the
money and the deal—your just putting the people at the scene—that’s it.
Hearsay is what you heard them say—nonhearsay is when you saw them but you didn’t hear
what they said.
H/o Rule 801c “hearsay not offered for its truth—all the issues we just talked about here in one
place. You must get 801c will be on exam big time.

Moving on to exemption: AB is the 90% answer c is easy

(d) This rule is for witness – this is how you identify 613 statements from 801 d statements
(A) if at a depositon saying oranages, oranges comes in for the truth –you know have offered
some evidence to prove it was an orange unlike 613. Difference b/w these two 613 as opposed
to 801d – your honor I’m offering to prove the truth of the matter—this is substantive proof of
orange. Always begins with why and then goes to the elements of the rule.
(B)—dealing w/ a witness who has been attacked an now want to rehabiliate the witness and
want this statement to be admissible for the truth of the matter—opposing counsel is saying the
witnesses testimony is a lie b/c of recent fabrication or improper influence or motive, or. I’m not
lying I said this b/f not under oath but I said it before and then I wasn’t coerce so . . .. . Nothing
in the rule tells you when the statement had to be made
(C) your allowed to bolster

New Class

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Juxtapose 801(d) vs. 607—who may impeach

How inconsistent does the statement have to be to Qualify furl 801d1A

a. diametrically opposed
b. Conflicts. Even by implication, but conflict must be on a significant point:
c. One statement is more specific or more detailed than the other statement;
d. Generally speaking prior positive statements are inconsistent when the witness:
i. Claims a lack of mermory on the stand;
ii. Changes his/her statement in degree of knowledge or memory;
e. Changes are seen as masking mistakes or lies.

Examples:
1. Grand jury testimony:

Government witness days he saw the accused kill the victim

2. In Court testimony==government on Direct:

Government witness says he saw the accused fighting with the victim and walk away after the
fight

3. In court testimony—government still on direct:

Prosecutor can impeach witness.

What is recent fabrication? go to h/o 801d1b—using prior consistent statements

Prior Consitent Statement rule 801d1B Example h/o
7. Can witness then be rehabilitated with: a. Monday’s statement? b. Wednesday’s statement?
The rule is silent. What court often does is look at c/l but unfortunately they are not always the
answer. The answer is a –statements made before b/c they are the logical answer.

Another h/o Rule 801d1b

What does no inevitable attack mean?

Who uses admissions mainly in criminal –the government—limited to party opponent.

HEARSAY RULE 801D2-h/o

Don’t talk to anybody about what you did b/c these statements will find their way back and this
rule allows us to use those statements as substantive evidence.

Rule 801—d2—first 4 are civil last is criminal

H/o Bourjaily—Boostraping

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1997 amendment to rule 801d2 h/o you need a scintilla more than just the co-conspirators
statement.

H/o Rule 801d2

New Class November 9

Rule 803

Now we are looking at out of court statements which are going to be admitted for the truth of the
matter.

6th am. only in play when the statements are in a testimonial nature. So you just need to ask your
self are these statements testimonial in nature.

Hand out – Rule 803 Guidelines

Then Rule 803 Juxtaposed Handout

Page 682 Florida rule is different. Look at 18 at 686—that’s in 801 in the Federal Rule, look at
23 this is not in FRE—this is more lenient for children’s hearsay statements more easily
admissible. Then look at 803 24 same approach except this time its aimed at elderly people.
First 23 are viable 24th is unconstitutional

Now to h/o 2. the 23 exceptions . . .

Rule 804 requires unavailabity, rule 803 does not require unavailability.

It does not matter is the declarant is not available in the courtroom

Handout Rule 803—The Macro View –this will give you a categorical way to see the hearsay
exceptions

Another h/o Rule 803(1) Resent Sense Impressions of the declarant

Looking at rule now

Moving to h/o Excited Utterance

Looking at Rule 803(2) in 803 1 the person is saying at its being unfolded in 803 2 saying it after
it happened. at the next available moment.

Ex. woman gets rapped rapist leaves runs to neighbor’s apt. tells her immediately what happened
this is 803(2) she could testify she was rapped and neighbor could testify she was raped and this
is not bolstering it is corroborating evidence.

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Lets say she’s beaten up after the rape and can’t get up then next day will be able to get up then
tells neighbor can this come in?—Have here examined by a phycharatist that examined her and
knows rape trauma sysndrome – that in her mind this was the first time. If you can lay the
foundation to establish that this was the first opportunity this person had the chance to relay the
startling event.

Looking at child sexual abuse example—little girl in b/r sleeping and father comes up an
sexually assaults her and then goes down for breakfast and says nothing 12 hours pass then she
tells mom will this be allowed under 8032? Have a child psycolgist come in an explain why the
child would wait 12 hours until the father and brother left. But def. is going to bring in his own
psychologists to counter this. 8032 all that comes in is the complaint 8031 you can explain the
event as your perceiving it immediately thereafter

These are all facts dispostive – you need to look at the facts does it fit in ?

Now 803(3) this one and 8034 have a lot of commonality-h/o

Hearsay rules to introduce the evidence for the truth of the matter asserted

New Class November 14, 2006

Rule 803 compared to 801 is really easy. Only covering exceptions we will need.

Rule 803(4)—
1. Child sexual abuse case—victim tells doctor that father raped her;
2. Victim may or may not testify at trial;
3. Can the government call the doctor to testify as to what the child said?**

Whether or not declarant/child testifies at trial or not, can we introduce the doctor’s testimony of
what the child told the doctor?

Past distinguishes b/w 803(3) and 803(4).

The doctor can come to court and testify to what the declarant/patient told him even though the
child doesn’t come to trial. Because w/o this there is no case. Someone has to tesify to the
sexual assault. If the child won’t do it then you go to hearsay evidence—did the child tell a
doctor, nurse, teacher. Below is the standard:

These are the problems you must overcome to get the testimony in from the doctor:

1. Did declarant make the statement for purposes of receiving medical diagnosis or treatment? If
not their statements are not coming in.

2. Did the declarant have a reasonable expectation of receiving medical benefits as a result?

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These two above are what you have to establish b/f the child’s statements to the doctor or school
nurse, or etc. may be admitted.

These cases focus on the very young victims or the victims who have the learning capacity of a
child but are adults. You want this to be reliable she is going in for the purpose of receiving
medical treatment—this comes in – but if women brings child to the hospital to get back at father
—this is not coming in. We do this b/c we want the statement to be reliable.

803 do not require the declarant to be unanabialbe—whether the little girl can testify or not – it
doesn’t matter if the declarant is available—if they are available its good b/c you get two people
testify you get corroboration.

Distinction b/w 803 (3) and 8034

1. Rules 8034 allows evidence of an individual’s medical history –backward looking statements
–statements that rely on memory to be admitted – Rule 8033 does not.
2. Rule 8034 allows statements relating to the cause of an injury, pain or sensation to be
admitted if reasonably necessary to the doctor’s diagnois or treatement – 8033 does not. As a
result the following statements are admissible pursuant to rule 8034
a. Who cause the injury
b. how the injury was caused;
c. When the incjury occurred.
3. Rules 8034 depends on the expertise of the doctor to ferret our false satements – Rule 703
4. However, statemens oriented toward developing trial evidence rather than medical diagnoisis
or treatment will not be admitted under this rule.

This is the difference b/w admitting for the truth of the matter asserted unlike 703 – you must get
this—You must get the difference for exam – 703 is just for the basis of the expert opinion—803
coming in for the truth of the matter asserted. – Spend a lot of time here. If its not for the truth
of the matter asserted its 703 if for the truth of the matter asserted its 803. 703 – I’m an expert
and at the medical emergency and I just hear stuff from other people that the little girl has been
sexually abuse—he can say based on my medical opinion she was sexually assaulted—this will
come in under 703 not to prove what the nurse told him simply that this is the basis the doctor
used to come to his opinion. Now 803 doctor is relying on what victim told him herself and he
testifies—I had a conversation with her and she told me – this is offered for the truth of the
matter asserted. Understand 703 801c and 803. If your worried about the jury not get this as to
703 difference make sure you have limiting instructions but if it comes in 803 you don’t need
special instructions b/c it is for the truth of the matter asserted.

Moving on to 803(6) (8) & (18)

Now on 803(6) Records of regularly conducted activity

Example going to introduce this document that accused was charged w/cocaine

Rule 8036 what the proponent must prove to admit a business document:

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1. Routine
2. at or near the time the event
3. Opinion or judgment
4. Business Duty
5. Regular Course of Business

Examples: Say we have an automobile accident and a policeman goes out there and makes the
report and now you got the police report but you just want to admit the police report—not
admissible b/c it doesn’t come through b/c of business duty b/c this is not his job—police report
not admitted b/c not done for purposes of trial.

Train gets into accident engineer dies but b/f he dies Amtrak does an investigation and talke to
him and now litiagatyion is coming can this come in—no. Amtrak is not in the business of doing
investigations—they are a railroad.

Mcdonald’s slip and fall accident report – can’t come in b/c there business is hamburgers.

Laboratory Report?—admissible in a criminal case if made in the course of business irrespective

of the 6th am.

Hospital record indicating a patient was shot by accused?—no. doctor is only expert for medical
purposes. It’s different under 8034 if your offering it for the doctor’s examination but not as a
business record.

Supplemental record indicating date of sale? no supplemental not made near or at the time

Report that contains expert medical opinion?—is this within the experts expertise? is it going to
be admissible—no. We want the doctor there

new class November 16, 2006

Looking at 803(8)

Is their a duty imposed by law – this is the difference b/w a business document.

Issues distinguishing Official Documents: from 8036

First hand knowledge
In accord with applicable statute
Near time of event not required
Facts v. opinions
Criminal v. civil

Talking about beechcraft—about an airplane accident—“at the time of the impact, the engine of
3E955 was operating but was operating at reduced power. Going to beech craft handout here.

Going to Learned Treatises h/o—This will be on bar b/c

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Differnce b/w Learned Treatises and florida §90.706. Authroitavieness of Literature
--may be used only in cross examination of an expert witness—comes in as substantive evidence.

18 is the last exception we are going to talk about in 803

At h/o Rule 804 Summary

new class November 21, 2006

Florida Rule on page 689—this differs from the FRE

What’s difference b/w 804a and 804b6?

804a—proponent cannot admit

804b6—opponent can admit

Steps to the proper use of former testimony guaranteeing reliability in Civil Cases:
1. Declarant gave the prior testimony at a fair Adversary hearing tells us:
Under oath, right to counsel, opportunity to cross-examine

2. Identity of Parties b/w the two hearings

Predecessor in Interest: Judicial relationship (privity) or community of interests & similar
motive to develop the testimony

3. Identity of Issues
Comparison of fact and issues from trial
One and trial two
Identity of parties is a means to this end

4. He say you have this h/o

Criminal Cases:

1. Must be same accused

2. Grand Jury—Ex parte proceeding only people in room are the prosecutors no defense counsel
No Defense Counsel
No Cross-examination
Can’t use this evidence b/c it is not adversarial
3. Preliminary Hearing
Defense Counsel Present, BUT What is defense counsel’s preliminary hearing motive vs. trial
motive? Can bring in if what defense counsel had as motive in the preliminary hearing is the
same motive at trial and counsel was present at preliminary hearing. Defense counsel more
than likely are questioning at preliminary hearing with a different motive—he must establish
distinction to the court otherwise the evidence would come in.
4. Can an accused use this rule against the government?

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Going to H/O (554 in text)—This rule is about sufficiently similar motive
Here accused wants to admit testimony but evidence is excluded b/c not the same motive

Take the similar motives must be sufficiently similar whether it’s the defense or prosecution, if
they did not have the same motive—it doesn’t come in. If the second hearing lawyer did not
have the same motive to cross examine as the first hearing lawyer did then it doesn’t come—
focus what was the motive of the lawyer in the first case and is the second’s lawyer motive
sufficiently the same—this is a hot issue. We go through thise b/c the original declarant is
unavailable –this is what 804 is all about.

Judge is going to say how is your motive different ? If defense says I choose not to do it b/c I
didn’t want to reveal stuff—well too bad b/c you should’ve done it.

In civil first difference is different parties this is where the conflict is

In criminal cases it has to be the same party—but what happens if the witness in the first trial
disappears.

This is a very important rule so know it.

Statement against interest—this is anybody’s statement where in 802d it has to be a party

opponent. Second part—this is like the guy in jail for life and now says he did the accused
crime, but not admissible b/c you need corroborating evidence—b/c these people will lie

Williamson at 559. – 804b3—self-inculpatory & Collateral/exonerating statements—a

codefendants statements about what the defendant said or did are less credible than ordinary
hearsay evidence.

Dying Declarations—person doesn’t necessarily have to be dead but you have to prove
unavailability. He had to at the time believe that death was imminent. You can show this buy
the wound, that a priest gave him last rights. Establish that at the time he made the statement he
believed death was imminent—look at the facts of the case to prove this.

803(5) and 612

Forgetful witnesses
Rule 612 Writing used to refresh memory
Rule 803(5) Recorded recollection
Sequence and timing Count
You have h/o

You use rule 612 b/f you use 803(5)—talking about the documents

Now going to 803(5)—recorded recollection

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Two ways of getting information in but first start w/612—witnesses memory has been refreshed
under 612. – This is refreshing recollection

Now back to hearsay rule—we have a document that he wrote and his recollection and now what
we want to introduce what is his but not in his ability to articulate—the objection would be if he
didn’t make it. Under 803 5 the memory can’t be refreshed then hands the document and just
reads it into evidence.

Going to Crawford H/O Talking about how the Supreme Court changed all this

Supreme court looked at the juxtaposition of FRE and 6th Am. – In criminal prosecutions the
criminal will have the right to –get this definition of 6th am.

If declarants out of court statement is testimonial then it can’t come in.

Testimonial definition in h/o

You gotta be thinking is this testimonial evidence? Are declarants statement at the time they
were made subject to cross-examination.

The Crawford process applies to

1. Testimonial statements in Criminal Trials
2. Taken by or on helhalf of a government agent
3. Offered against the accused
4. For their truth
5. Subject to c/e either:
a. b/f trial if the declarant is unavailable, or
b. at trial otherwise

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