Evidence

▼	Relevance Rule 401: "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 or less probable than it would be without the evidence.
	▼	Something must be relevant to be admitted
	•	But not everything relevant is automatically admitted; it might be barred by another rule. 
	•	Relevance is a very low bar to the admissibility of evidence.
	•	Everything irrelevant is inadmissible: There are not exceptions to this rule
	▼	Components of relevance
	▼	Evidence makes some fact more or less likely that it might be
	•	It must prove something and 
	•	The fact itself must matter- it must have consequence
	•	If the proposed evidence fails at either test, then it is not admitted
	▼	The evidence must only have a tendancy to establish some fact bearing on the claim or defense.
	•	It need not be a smoking gun.
	▼	Each piece of evidence is a part of a whole, and the whole is what matters
	•	It does not matter what the burdeon of proof is for relevance questions- it is illrelevant to the relevance questions
	•	Evidence need not be conclusive, or even very helpful to be relevant. It only needs to be a little helpful
	•	"A brick is not a wall"
	•	Evidence that tends to impeach is also relevant.
	•	Each link in a chain of inference must satisfy relevance.
	▼	Rule 403: 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
	•	UNFAIRLY prejudicial "undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one."
	•	a tendency to prove something is slight while the tendency to confuse or waste time, is great. 
	▼	It is judicial discretion when to exclude irrelevant evidence
	▼	A court can exclude evidence that is more prejudicial than it is probative.
	•	This is a straight forward balancing test against its helpfulness and its ability to sway juries emotionally, or to confuse them.
	▼	The balance is tipped heavily toward admissibility
	•	The probative value must be substantially outweigh by the likelyhood of prejudice.
	▼	All evidence is prejudicial to one party in the case.
	•	The type of prjucdice is the type that would mislead a jury, or confuse them , or twist their fair assesment of the facts .
	▼	Graphic photos are relevant
	•	But too many graphic photos will be cumulative, and not allowable.
	•	To be excluded  the unfair prejudice must SUBSTANTIALLY  outweigh its probative value.  McRae is a perfect  example of the Substantial part of the rule. (Close range gunshot wound- multiple gruesome pictures not necessary to show the injury. Some are ok though
	▼	Stipulating to a previous crime- Old Cheif
	•	Excluding the circumstance of a previous crime is allowed if the D stipulates to the fact they were convicted of a crime
	▼	The statute requires that the person be convicted of a felony- its doesn't distinguish between felonies. - so the need to define the type of felony that the person was convicted of in court is not necessary to the current crime accused.
	•	EG: Stipulating that I am a convicted felon for the purpose of the statute- gets around the need to introduce evidence that the person was convicted of a violent felony
	▼	It could be unduly prejudicial- the person did this bad thing before, so they are a bad person and we should punish them
	▼	Certain Sex crimes are excluded
	▼	The fact that you are a pedophile before indicates a propensity that they will do it again-
	•	This is the modern phycological stance, so the law has changed to allow its admission. 
	▼	Conditional Relevance
	▼	Evidence should be conditionally admitted that is relevant conditional on the truth of another possible fact.
	•	1:The Car was going 50 MPH in a school zone
	▼	2: Its only relevant if the D was driving the car.
	•	Must prove the fact 2 for fact 1 to be relevant .
▼	Hearsay Rule 801: An Out of court statement, made by one other than the declarant, offered to prove the truth of the matter asserted. 
	▼	Elements
	▼	A "Statement" is an oral or written assertion, or conduct that is intended to be an assertion.
	•	Statement: an assertion of fact
	▼	Made by one other than the declarant
	•	The declarant is the person on the stand right now
	▼	offered to prove the truth of the matter asserted.
	•	Not intuitively clear.
	▼	The matter asserted in the statement
	•	It is far removed from the claim of the defence in the case.
	•	All you have to do is examine the statement.
	▼	What is hearsay, and what is not hearsay
	▼	Verbal Acts- Not Hearsay
	▼	We do not care about the belief of the speaker- we care that the statement was made.
	▼	It has legal significance besides what the person is saying
	•	We don't care if the person believes the statement or not
	•	We are offering it to show its legal effect.
	•	A statement was made that altered the legal relationship
	▼	There is no matter asserted by the statement.
	•	EG: I offer you this- nothing is asserted.
	▼	EG: an instruction- "Do this"- it can be neither true nor false.
	•	the words in and of themselves are attempting to accomplish something- solicit an acceptance to an offer, form a contract  ect.
	•	The statement has stand alone legal significance.
	▼	Implied Acts - 801A- Not hearsay- hinges on the intent of the actor
	•	Words or conduct not intended to have a communicative purpose. 
	▼	If there is intent to communicate via non-verbal acts- then it is hearsay
	▼	If there is no intent to communicate, then its an implied act, and can be allowed in
	▼	EG: I open my umbrella because it is raining
	•	Not hearsay- admisible as an implied assertion
	▼	EG: I open my umbrella to tell you that it is raining
	•	Not admissible as hearsay.
	▼	Major Mistakes about hearsay
	▼	Where is Out of court?-
	•	ALL statements outside of the present trial are out of court statements.
	▼	What is the Matter asserted?
	•	Refers to what the declarant is asserting, not the purpose or larger goal of the suit or trial
	▼	Assuming that the rule applies to only certain links in inferences
	•	it apply to all assertions in the chain of inferences.
	▼	Terminology
	•	a witness is someone on the stand under oath testifying
	▼	A declarant- a person who makes a statement
	•	Much broader than a witness.
	▼	4 Reasons why Hearsay exists
	▼	Ambiguity
	•	What did the declarant actually mean when they said it?
	•	Its meaning could be ambiguious when someone else is commenting on it
	▼	Insincerity
	•	We can't test the other party to find out more about their statement
	•	Was it gossip? Were they joking?
	▼	Erroneous Memory
	•	We can't test the persons memory if the statement is made by another related by another person
	▼	Faulty Perception
	•	Did they perceive the event correctly? Do they wear glasses?
	•	Again, we can test this when the statement is not coming from the source.
	▼	Confrontation Clause and hearsay
	▼	The accused enjoys the right to confronted with the witnesses against him
	•	Applies only in criminal cases
	▼	Only the D has the right to assert the right of confrontation
	•	The Gov. has no confrontation right.
	▼	Does not apply if the D had the ability to cross examine the witness under oath in a previous trial where they were charged with the same crime
	•	Also a preliminary hearing
	•	EG: Trial- guilty, then appeal- witness dies- appellate court remands for a new trial. Prior statement does not offend the confrontation clause
	•	If you had the opportunity to cross examine, but did not take it, then you can't complain about the confrontation clause.
	▼	Crawford and Davis represent the biggest constitutional change in our lifetimes.
	▼	The confrontation clause bars non-confrontational testimonial statements
	▼	What is testimonial?
	▼	Generally- a statement made to a government official.
	•	But not all statements to government though. 
	▼	A statement is testimonial if it is made to the police when they are investigating a crime.
	•	And will be barred from adimission if the declairant is not available at trial.
	•	The primary prupose of the police conversation was to investigate past criminal conduct (testimonial) or to respond to an ongoing emergency (non-testimonial)
	▼	Unanswerd questions
	•	What about undercover police agents? Is this testimonial?
	•	Are reports by scientists, eg DNA tests, out of court statements that are testimonial.
	•	You cannot have a rule of evidence that violates the confrontation clause.
	•	Testimony is : A solemn declaration or affirmation made for the purpose of establishing or proving some fact.
	•	Davis: 911 call is not testimonial.
	•	The Supremes have moved from what is reliable evidence (Roberts standard) to what was historically reliable in the context of the rejection of the marian statutes of england and the adoption of the confrontation clause (Crawford standard) 
	•	It is only the EXACT PRECISE exceptions in 1791 that will continue to be allowed today.
	▼	What kind of statements were the framers concerned about
	•	They were concerned about statements given to government officials for the use in criminally prosecuting individuals
	▼	801(d) statements - not hearsay- counterintuitive.
	▼	A prior statement by witness D2
	•	Earlier identifications are thought to be more reliable. 
	▼	Impeachment-
	•	To introduce evidence is to prove a fact.
	•	To impeach is to attack the credibility of a witness
	•	Somethings can be used for both.
	•	You will see this question on the exam!
	•	If something is admissible as substantive evidence then it is always admissible to impeach- just not the other way around.
	▼	A prior inconsistent statement that is used only to impeach is NEVER hearsay
	•	ANY prior inconsitant statement
	▼	But to be used to prove a fact 801d(1)a
	▼	It must not only be inconsistant, it must also have been the subject to cross examination previously, as in either a trial, or deposition- for witnesses, not parties.
	•	The measure of inconstant is very very low
	•	Parties are treated differently thant witnesses.
	•	Prior out of court statements that are consistent are generally not allowed.
	▼	Admission by party opponent- admission is specialized term- think of it more as "statement"D2
	▼	The statement is offered AGAINST a party and is A)the party's own statement, in an individual or representative capacity, or B) a statement which the party has manifested an adoption or belief in its truth, or C) a statement  by a person authorized by the party, or D)a statement made by the parties agent within the scope of the agency, during the existence of the relationship, or E) a statement made by a co-conspirator during the course of the conspiracy.
	▼	You cannot offer a prior statement in support of yourself
	•	Otherwise you could make self serving statements before trial with the intent of admitting them at trial
	▼	A:If the opposing party said anything then I can offer it against them- as long as its relevant.
	•	It does not matter if the person making the statement had personal knowledge of the situation at all.
	•	The statements need not be against the parties interest, but against the opponent, and not against another defendant.
	▼	B: Adoptive Admissions.
	•	the party does not have to have made the statement, but they must have manifested assent to its truth
	•	EG:" Me and Troy robbed the bank. "Troy hears the statement, and does not object.
	•	Acts as an implicit admission of the truth of the statement.
	▼	Not everything will be an adopted admission
	•	Is it reasonable for the party to respond and correct erroneous admissions.
	▼	C: Authorized admissions
	•	attorneys admission count.
	•	get around this by saying that your conversation is in an attempt to settle, and the facts are tentative.
	▼	D: Admissions by party's agent 
	•	the statement made within the scope of the agency or employment, made during the existence of the relationship.
	▼	Personal knowledge of the events are not needed. 
	•	Essentially any employee can say something, if they are employed at the time, and it has to do with their employment, and use that statement against the employer.
	•	We don't look at relevance in terms of personal knowledge, but in terms of marginal probative value.
	▼	E: Statement by a co-conspirator
	•	Conspiracy is difficult to prove
	▼	The statement must be made in the course of and in furtherance of the conspiracy.
	•	Admissible only if the statement is made while the conspiracy is ongoing.
	•	The idea is that the statements are less reliable if the conspiracy has been interupted.
	•	Trial court decides if the statement is made by a co-conspirator
	•	The burdeon of proof is a purponderance of the evidence that the statement was a co-conspirator statement. 
	▼	Multiple hearsay
	▼	Hearsay on hearsay.
	▼	Jane tells alex: ben robed the bank.
	•	Alex tells fred that jane told him that ben robed the bank
	•	An out of court statement made about another out of court statement.
	•	For every individual piece of hearsay, you must establish that the statement is not hearsay, or that it qualifies as an exception to the hearsay rule.
	•	Multiple hearsay changes nothing about the hearsay rule.
	▼	Admissions and completeness
	•	When an opponent brings in part of a statement as evidence, the other party may bring in the rest of the statement to clarify its content and context.
	▼	Exceptions to the hearsay rules are not about truth- more about pragmatism.
	•	The general rule is to let it in, and let the lawyers argue over the weight of the evidence.
	▼	Bruton Rule- More???
	▼	confession of one defendant cannot be used against a conconspirator in a criminal trial.
	•	What? Don't we allow statements of co-conspirators?
	▼	You can't give a limiting instructions when you are trying conspiracy defendants together.
	•	You have to sever the trials.
▼	Hearsay Exceptions 803- Availability of declarant is immaterial
	•	Parties need no make an effort to make the declarant available.
	▼	1. Present sense impression- a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. 
	▼	The declarant has to have personal knowledge of the event
	•	You cannot relay the present sense impressions of another person- they must be your own
	▼	And the statement must be made immediately thereafter
	•	What is immediate? Not sure- fact specific - Purely temporally link
	▼	Why to we except this?
	•	We perceive it as reliable because there is no chance for reflection, - therefore it has a higher probability of being true
	▼	2. Excited utterance; a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition.
	•	A court determines what a startling event is.
	•	The time frame is linked purely to the person's state of excitement. 
	▼	Why?
	•	The spontanious nature of the statement makes it less likly that you are twisting the facts
	•	You could possibly be under the stress for hours- arguible in court.
	•	Res gestae is never the right answer on an exam.
	▼	3. State of Mind. Statement of the declarants then existing mental, emotional, or physical condition (such as intent plan motive) BUT not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution revocation identification or terms of a will. (unless it relates to a will)
	▼	"I have a head ache" a statement about a persons physical well being- if said at the time of the pain, then the statement is not hearsay
	•	The best source of proof of where a person is in pain is their statement about it.
	•	"I was sick in August"- doesn't count- the statement was not made contemporaneously with the state of mind.
	▼	4. Statements for the purpose of medical diagnosis or treatment for the purpose of medical diagnosis or treatment AND (describing medical history OR past or present symptoms, pain or sensations OR the inception or general character of the cause or external source insofar as reasonably pertinent to diagnosis or treatment.
	•	The rule is drafted for statements not only for treatment- you primary doctor eg, but also for diagnosis- like an expert witness.
	▼	It doesn't say anything about the declarant being the person being treated
	•	Mom brings in the injured kid- mom's statement is ok
	▼	Nothing is said about the person hearing the statement being the treating doctor
	•	Your statement to the triage nurse- they aren't going to be the one treating you, but no problem with them testifying
	▼	Ordinarily- statements as to fault are not admissible
	•	I was hit by a car- ok
	•	The car was going fast- ok
	•	The car ran a red light- not necessary for the treatment of the injury.
	▼	Domestic Violence Cases/Sexual Abuse Ect
	▼	You can't keep the person healthy unless you know that they are getting beat up at home
	•	I have issues with this- its not pertanant to the treatment of the victum- only to the prevention of future injuries. Would the same rational apply to the rusty step case- if the said that all of the other steps were rusty, and were in the same condition.
	•	Is it testimonial or not- Doctors are acting as part of the law enforceemnt apparatus when they examine domestic abuse cases. 
	▼	5. Recorded recollection. Past recollection recorded, present recollection refreshed
	•	When a witness can't remember.
	▼	Present recollection refreshed
	•	The evidence is the witness' memory- and it's just being refreshed
	•	ANYTHING can remind them- the EVIDENCE IS THE TESTIMONY.
	▼	Past recollection recorded
	•	The evidence is the record, and the witness is just reading it into the record. 
	•	The witness must be present- but cross examination is awkward- they can't remember.
	▼	This does need to be something that the witness MADE OR ADOPTED.
	•	I call you and tell you to write something down
	•	I didn't write it, but I did give direction to someone to record it for me. 
	•	THE DOCUMENT is the evidence
	▼	All the proponent of the document can do is have it read
	•	The Opponent can require the docuement to be given to the jury- NOT the proponent.
	▼	6. Records of regularly conducted activity, Memoranda, data, or compilation in any form, of acts events conditions opinions or diagnosis.
	▼	Frequently used exception
	•	Business records are generally coming in
	•	The odds of keeping them out is very small.
	▼	Made at or near the time by a person with knowledge
	•	The recorder must have personal knowledge
	▼	At or near the time
	•	Not a lot of fighting over this point.
	•	A mushy concept.
	▼	But if the recording is made only after it apprears that there will be litigation, problems begin to develop.
	•	It may not be a reliable indicator of truthfullness in this case then.
	•	The business normally keeps these records for its own use, and they have little incentive to lie to themselves. 
	▼	Business, institution, profession,  occupation, and calling of every land
	•	What is not exculded?
	▼	A diary kept that records all of a persons tips received was kept in the course of a mans "personal business" and admissible
	•	Evidence that the person was untrustworthy in general, was maybe relivant, but he was not untrustworhty in this sense.
	•	Incompleteness of the records is not fatal to their admissibility.
	•	If it is the regular practice of that business.
	•	The original use of this exception was to eliminate the need to call every single person who may have had custody over the document over it's lifetime.
	▼	The test is: Unless the source of information indicates lack of trustworthiness, the method of preparation, circumstances of preparation.
	•	Motive is often the critical question
	▼	7. absence of entry in records kept in accordance with the above exception.803(7)
	•	If the records are generally complete, we can allow the introduction of evidence that would have spoken to some fact, but in fact it does not, in order to show the non-occurrence of some event.
	•	UNLESS the sources of the information or other circumstances indicate a lack of trustworthiness
	▼	8. Public records and reports
	•	Public records, statistics and data of all type
	•	setting forth the activities of the office or agency
	▼	matters observed in accordance to law
	•	we have a duty to do this, and the law imposes it.
	▼	Excluding matters observed by law enforcement personnel
	•	 because of the confrontation clause.
	▼	Can opinions as well as facts be brought in?
	•	Trustworthy requirement, Opinion based on facts requirement.
	▼	Any scientist preparing record for the state must be available for cross examination on the stand. In  a criminal case- if they want the records to be admitted. Melendez-Diaz case.
	•	The evidence is testimonial in nature, and would violate the confrontation clause otherwise.
	▼	9. Records of vital statistics
	•	Births Deaths, marriages, etc.
	•	10. Absence of Public Record or entry
	•	11. Records of religious organizations
	•	12. Marriage, baptismal, and similar certificates
	•	13. Family Records.
	•	14. Records of documents affecting an interest in property
	•	15. Statements in documents affecting an interest in property
	•	16. Statements in ancient documents
	•	17. Market Reports, commercial  publications
	•	18. Learned Treatises
	•	19. Reputation concerning or family history
	•	20. Reputation concerning boundaries or general history
	•	21. Reputation as to general charachter
	•	22. Judgement of previous convictions
	•	23. Judgement as to personal family or general history or boundaries.
▼	Hearsay Exception 804: Declarant unavailable
	•	The declarant being unavailable is a predicate to being able to use these exceptions 
	▼	What is unavailable:
	▼	Unavailable do to privledge
	•	Like attorney client, 5th amendment self incrimination
	•	Persists in refusing to testify concerning the subject matter despite a court order
	•	lack of memory of the subject
	•	Death- the ultimate unavlaiblility, or illness or other infirmity
	▼	Proponent of the statement has been unable to produce the declairant through reasonable means
	•	What's reasonable- usually your best effort
	▼	The declarant is available for this rule if he is not available because of the actions of the proponent of the statement.
	•	Don't kill the witness, in order to make him unavailable, so that you can use his otherwise hearsay statement.
	▼	You cannot complain when you are unavailable because you make yourself unavailable.
	•	EG: you don't get to intoduce prior testimony when you invoke the 5th in the second trial.
	▼	1. Former testimony
	•	Testimony given as a witness at another hearing of the same or a different preceeding, 
	▼	Must be a predecessor in interest- in a civil action.
	•	If you are in privity, with one of the parties of the 1st trial, then that is good enough to use the statement in the second trial.
	•	We are concerned with the trial that is going on right now
	•	THere must be a similarity in motive
	•	NOT the same as an admission of a party opponent
	▼	We can use it for other reasons
	•	Impeachemnt
	•	admission against interest. 
	▼	2. Statement under belief of impending death- dying declarations
	•	ONLY to homicide cases and ALL civil cases
	▼	A statement made by the declarant made while they though that death was imminent- concerning the cause or circumstances of their believed impending death.
	•	They must believe that they are dying
	•	The only admissible piece concerns the cause or circumstances surrounding their impending death
	•	"Cause or circumstances" must show personal knowledge.
	•	The person need not actually die! THey must only believe that they are about to die
	▼	Rational
	•	Belief that people who are about to die have no future interest protect- is more likly to be truthful
	•	There is a critical need of evidence that shows first hand knowledge of a persons murder.
	▼	3. Statement against interest
	•	A statement contrary to the declarants pecuniary or proprietary interest, at the time of the making
	•	Must be made by the party, and against their interest.
	•	So far contrary to the declarants interest as to make the statement unlikely to be made unless it was true.
	▼	Statements that would exculpate the accused and expose the declarant to liability, are NOT admissible unless there other corroborating circumstances
	•	Your mom takes the stand and said she did it.
	•	These kinds of statements have a lessor degree of trustworthiness. 
	•	4. statement of personal or family history
	▼	5. forfeiture by wrong doing.
	•	a statement offered against a party that has engaged in in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. 
	•	Crawford: Confrontation clause controls parameters of 804(b)(6). 
Is this statement testimonial or not? If it is testimonial, then the defendant gets to cross examine the witness: unless, a historical exception to the requirement exists, which are: 1) Dying declaration, and 2) Forfeiture by wrongdoing. 
A third exception for testimonial out-of-court statements is obviously if the declarant is available to be cross-examined by the defendant. 
Thus – testimonial statements can get in, through this exception, thus bypassing the confrontation clause. 
Scope of forfeiture by wrongdoing: Because dying declarations so rarely occur – utility of it is only in homicide cases, not said often, etc. The only window of opportunity for prosecutors to get around testimonial bar is this exception – thus making scope important. 
States have thought different things over the year. California – simply the intentional act of killing someone is sufficient. 
Other view: Intentional killing plus purpose: Whether a defendant – in murdering someone, possessed, at the time of the murder, the requisite intent to silence them as a witness. (Giles)

	•	Intuitive principle in practice – with an equitable base  if you procure the absence of a witness, its admissible under the rules, and you forfeit your constitutional right of confrontation.
Equitable principle: Unclean hands – if your inability to cross-examine someone is due to your own bad behavior, you cannot complain about your inability to confront them.
	•	How do you prove someone killed someone with the intent to silence them as a witness? A) Express statement by the defendant to someone else about the need not to have that testimony occur, or concern over the testimony occurring. Exp: Mafia boss telling his henchman he is worried that Joe will testify against him. 
▼	Character Evidence 404, 405
	•	Not admissible for proving action in conformity with that character trait- unless an exception aplys
	▼	Character is never an issue in a criminal trial unless the defendant chooses to make it one. 
	▼	Criminal
	•	You only open the door to the same trait. The D has the keys to the door.
	▼	Evidence of the Character of the accused is admissible if first admitted by the accused, in the form of OPINION ONLY by a witness
	▼	The prosecution is given the opportunity to rebut the evidence of character of the D, and may inquire whether the witness knew of SPECIFIC INSTANCES of bad conduct.
	•	But the Prosecutor is not allowed to introduce independent proof of the specific past events. 
	•	AND must accept the answers of the witness as given. 
	▼	And the Prosecution may introduce witnesses who also testify to ONLY THEIR OPINION of the accused.
	•	NOT the specific conduct
	▼	If the D uses the character of the Victim-
	•	Then the P can introduce evidence about the same trait in the D.
	•	Charachter of WItnesses
	▼	Evidence of the character of a witness is also admissible if first brought up by a D
	▼	EG: D argues self defense- and offered evidence to prove that the was a violent person- the P can then admit evidence rebutting that.
	•	The P can then also argue that the D was a violent person
	▼	When Character is essential to the Charge- eg Charachter at issue cases
	▼	Like liable- "He is an evil person"- can be defended by evidence of an evil charchter
	•	In these types of cases- evidence is permitted about specific conduct.
	•	As well as opinion of reputaion like other forms of charchter evidence
	▼	Methods of admitting chachter evidence. 405
	▼	A) If its admissible, character evidence is admissible in the form of opinion of the witness- specific instances not allowed
	•	Specific instances may be brought in on cross
	▼	B) If the character evidence is a specific element of the charge, specific instances of conduct is allowed. 
	•	Asserting self defense as a defense is not sufficient to allow the introduction of specific evidence
	▼	Civil
	•	Same rule as criminal essentially
	•	Not allowed unless it is an essential ellement to the charge.
	▼	Pemissible Purpose of Character- Other Crimes, wrongs, acts
	•	Evidence of past crimes is not admissible to prove conformaty with that type of behavior.
	•	But it is admissible to prove motive opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.
	•	Standard- Bar the evidence unless it is substantially more prujudicial than it is probative.
▼	Trial Mechanics
	▼	Generally - courts have the discretion to run their courtrooms as they see fit.
	▼	And they won't be reversed because of it, in absence of abuse of discretion to the contrary.
	•	Was the content of the testimony that you were denied from presenting in a certain manner, able to be presented in other ways?
	•	Did you get it in through 3 witnesses and you were denied the ability to get in in though 2 others.
	▼	Leading Witnesses- 611c
	•	Leading questions are not allowed on direct- except as to ellicit testimoney
	▼	Hostel, Adverse, or witnesses associated with an adverse party can be examined with leading questions on direct
	•	the witness is not forthcoming- they are not answering them directly.
	•	Leading questions are allowed on cross
	•	Your witness- can't ask leading questions unless they are hostel
	•	Children, people with mental issues, can also be led.
	▼	Sequestering Witnesses
	•	experts are routinely exempted from this rule
	•	witness are sequestered at the request of the parties
	▼	Questioning by the judge/Jurry
	•	Permissible- but frought with peril.
	•	Rather rare, but increasing
	•	courts should be careful how they phrase questions to prevent their personal judgements from comming in. 
	•	YOU WILL NOT WIN ON APPEAL ON TRIAL MECHANICS- UNLESS AN ABUSE OF DISCRETION- AND THEY WONT FIND THEM.
▼	Character for truthfulness in criminal convictions.
	•	404- Does not govern characters of a witness
	•	607- The credibility of any witness may be impeached by any party including the party calling the witness.
	▼	608- ONLY apply to character for truthfulness
	▼	A) Opinion and reputation evidence of character-
	▼	The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation BUT 
	•	1)The evidence may only refer to character for truthfulness or untruthfulness AND
	•	2)Evidence for truthfulness can only be admitted after the character of the witness has been attacked
	▼	B) Specific instances of conduct
	▼	May not be proved by extrinsic evidence, OTHER THAN CONVICTION OF A CRIME AS IN 609
	▼	You can not bring in evidence to refute a witnesses statement about specific instances of conduct
	▼	"ON July 3rd you lied to your spouse"
	•	As the lawyer I have proof that you are lying right now
	•	And I cannot present that proof.
	•	You have to take the witnesses answer as it comes.
	•	WHy? Drafters of the rules did not want a collateral trial to develop as to whether something did or did not happen in the past.
	•	BUT in a civil case- if you have a deposition and they are not contradicting themselves- now thats perjury and you are exposing yourself to criminal liability.
	•	Only the accused can put forth the character of the accused or the victim
	•	BUT if the D testifies, then the prosecutor can introduce evidence of the truthfulness of the D.
	▼	PAST MISCONDUCT NOT SUBJECT TO CONVICTION
	•	The CROSS examiner may not offer INDEPENDENT proof to show the falsity of the answers given.
	•	SOOO- Your word speaks for itself
	▼	Prior Criminal Convictions 609
	•	Conviction can only be used to impeach- not to show conformity with the prior act.
	▼	If the witness is not the accused
	•	If the crime was a felony AND the evidence is more probative than it is prejudicial- Different balancing test from 403
	▼	Any witness
	▼	the conviction is admissible if:
	▼	Regardless of the punishment- one of the ellements of the crime is an act of dishonesty or false statement
	•	What is dishonesty- not sure- its not shoplifting
	▼	Time limit
	•	10 years from the conviction or release whichever is later
	▼	5 modes of attack on a witnesses credibility
	•	self contradiction
	•	witness is partial based on kinship for one party, or hostility for another or motives of pecuniary interest, whether legitimate or corupt
	▼	attack on charachter,
	•	lack of religion is not available as a basis of attack
	•	witnesses capacity to observe remember or recount
	•	specific contradiction.
▼	Extrinsic evidence of prior inconsistent statements - 613 B
	•	Admissible as long as the the witness is given the opportunity to explain or deny the statement, and the opposite party has an opportunity to cross examine. It always comes in- unless there is some bizarre fact sinario that NEVER happens
	•	REMEMBER Heresay- but 806 gets around this, 613B does not apply to hearsay statements where the declarant is unavailble.
	▼	Courts must not permit testimony, which would otherwise not be allowed, to be introduced for the purpose of impeachment
	▼	You look to the statement- Morlane Rule
	▼	Does it have much probative impeachment force?
	•	No- then it looks like a subterfuge.
	▼	The content
	▼	Does it go to proof of an element of the crime
	•	then the statement might be more prejudicial than it is probative.
	•	Impreachment though evidence of incapacity and inability to report.
▼	Specific Contradiction
	▼	You cannot impeach on a collateral matter
	▼	What is a collateral matter
	▼	Does the fact in question have any other function in the case other than contradiction of the witness
	•	No? Then it is collateral.
	▼	Why do we do this?
	•	Because we don't want a series of mini trial to develop where we investigate the history of the witness to find every instance of every mistake the witness has ever made. 
▼	Rehabilitation is Squirly- everybody punts to the trial court
	•	In few areas of evidence is the answer so opaque
	▼	What does it mean for the exam
	•	Unless the question is clearly in the area of can/can't rehab then it won't be asked
	▼	What is predictible.
	▼	You can't boulster a witness for truthfullness unless their truthfullness is attacked
	•	Why? Policy is efficiency- Jurors should focus on the facts, and not the truthfullness of witnesses- unless it comes into play.
	▼	Attacks by reputation of bad reputation, bad opinion ofr truthfullness, conviction of crime , mis-conduct that does not result in conviction.
	•	All allow for rehabilitation of truthfullness
	•	A strong cross examination is not neccessarily an attack on truthfullness. 
	•	Impeachment for bias does not open the door for truthfullness.
	▼	Rehabilitation must match the type of impeachment
	▼	Bias must match bias, truthfullness matches truthfullness.
	•	Impeachment for bias is intended to show that the witness has a reason to lie or slant his or her testimony
	•	Use of prior inconsistent statement MAY constitue an attack on truthfullness.
	▼	Prior Consistent Statements 801(D)1B
	▼	 A statement is not hearsay if the declarant testifies and is subject to cross and the statement is
	•	consistent w/ declarants testimony and is offered to rebut ...
	▼	Prior consistnet statement is generally inadmissible
	•	HOWEVER- if its offered to rebut a express or implied charge of recent fabrication or improper motive
	•	Where prior consistent statements are not offered for their truth, but for the rehabilitation of a witness- 801 does not apply and you can use the statement.
▼	Competence
	▼	Testimony should not be excluded for lack of personal knowledge unless...
	•	no reasonable juror could believe the witness had the abbility or opportunity to perceive the event they are testifying about
	▼	this rule takes all gradations about witness personal knowledge away from the court,
	•	and puts it all in the hands of the jury.
	▼	Testimony of the mentally ill and children
	•	The child witness is presumed competent, and the party objecting must make a showing, carrying the burden about the witnesses incompetence.
	▼	If you are incompetant to stand trial, the standard is different from the standard of testifying
	•	You must show that the person does not know the difference between telling a lie and telling the truth
	▼	Competancy exam of a child may be conducted only if- on the record there exists evidence calling into question their comptancy
	•	age alone is not sufficient
	•	age and consistancy of statements go to the credibility of the witness and not the competancy of the witness.
	▼	Judges, Jurors, and Lawyers
	•	Not competent to testify.
	•	COntroversy surrounds the ability of jurors testifying at habeus trials, but not in the current trial.
▼	Opinion- Inferences based on knowledge are opinions.701-706
	▼	Lay 701
	•	MUST HAVE FIRST HAND KNOWLEDGE
	•	A Lay witness is someone who is not an expert
	▼	We allow them to testify sloppily
	•	We want them to communicate their story, and we want them to get that story to the jury without having to use specific language.
	▼	Lay witness opinions are limited to:
	•	those rationally based on the perception of the witness
	•	AND helpful to a clear understanding  of the witnesses testimony or the determination of a fact in issue
	•	AND NOT based on scientific, technical or other specialized knowledge.
	▼	WHy? Because it is difficult to convey the reality of a scene w/o offering some sort of conclusory opinion
	•	"the car was out of control"- thats an opinion- but it paints a much different picture than "it swerved suddenly, and was going very fast"- 
	▼	Expert 702
	▼	Must be qualified as an expert by knowledge, skill, experience, training
	•	The source of the knowledge is not important- as long as the knowledge is present
	•	the court must affirmativly say- this person is an expert.
	▼	Such that the knowledge will assist the trier of fact in understanding the evidence or determine a fact at issue
	▼	If it is within the common understanding of people, then there is no need for experts
	•	Common experience- Speed, intoxication.
	▼	can testify in opinion if
	▼	the testimony is based on sufficient facts or data
	▼	the facts or data need not be admisible in evidence
	•	experts can base their opinion on hearsay
	•	hearsay is the opinions of others, and anything relevent can be a basis of knowledge.
	•	the testimony is the product of reliable principles and methods AND
	•	the witness has applied the principles and methods reliably to the facts of the case.
	▼	Basis of opinion - 703
	•	Experts must have a basis of opinion, and they can be cross examined on the basis of their opinion.
	•	Source of the opinion can be almost anything- hearsay, direct observation ect.
	▼	Opinion on Ultimate issues- 704
	•	Is he guilty? was he negligent?
	▼	Testimony is not objectionable because it contains an opinon on an ultimate issue
	▼	EXCEPT- Opinions on ultimate issues of mental state are not allowed
	▼	Insanitiy defence
	•	Doc cannot say directly that the D was incapable of knowing what they we doing
	▼	Experts and trial practice.
	▼	The biggest way to undermine an expert is to prove that they were not provided all of the facts
	•	SO make sure you provide everything to your expert.
	▼	Just because you are an expert, does not mean they can testify to anything
	•	they must have firsthand knowledge to give lay testimony
	▼	You need to win on admitting your expert- especially "new" scienece
	•	On appeal- it is reviewed for abuse of discrestion basis ONLY, and you won't win unless the denial is egregious.
	▼	Daubert
	•	the standard of review is abuse of discrection.
	•	the standards of daubert are applicable to all experts. 
▼	Privilege
	•	Federal Rules do not codify privilege, but many states do.
	▼	Privileges interupt the search for truth
	•	but they exist because there is greater social good to be acomplished by protecting privilege
	•	Privileges are valued greater than truth
	•	The strength of the social value determines the extent of the privilege
	•	Privilges are held by the person for whom the privelge benifits
	•	Certain relationships require a certain amount of confidentiality in order to thrive.
	•	Privileges can be waived
	▼	Attorney Client
	▼	Elements
	▼	A Communication
	▼	Is something transmitted between people that is intended as communication
	•	Speach, letters, physical manifestions
	▼	Observations are not communications
	•	Like of their physical being.
	•	Fee arrangements are not privileged
	▼	In Confidence
	•	Close the door!
	•	Client has the burden of showing confidence 
	▼	The communication can be to your agents too
	•	Like your paralegal.
	▼	Not the same as work product
	•	Protects the attornies thoughts, not communications between attornies/clients
	•	Works product is not a privilege
	•	That is governed under other stuff.
	▼	Minor client
	•	parents coming in with the child negates the privilege between the client-child and the attorney
	▼	Between a Lawyer and a Client
	•	Agents of attorneys are OK
	▼	What about Corporate Clients???
	▼	UpJohn
	▼	Old rule was "control group"
	•	That was senior management
	▼	didn't serve the goals of the privilege
	•	attorneys need to gather info from lots of people- not just senior managers.
	•	Communications made by Upjohn employees to Upjohn counsel while counsel was acting at the direction of corporate superiors who were seeking legal advice is protected by ACP.  
	•	Business must be incorporated- probably LLC would work
	•	Must be a legal function
	▼	Just because the client is a law firm and the lawyers are the attorneys of the firm does not defeat the purpose of attorney client. 
	•	It doesn't matter what type of corporation it is- the privilege will attach.
	▼	Waiver
	•	Can only be waived by the person who benefits- ie the clients.
	•	Waiver can be express or implied
	•	Attorneys can sometimes disclose things that were communicated under privildege, because disclosure is in the best interest of the client.
	•	Voluntarily disclosure by the client waives the privilege
	•	When the client publicly calls into question the competency of the attorney in giving legal advice, the privilege is waived.
	•	A defense of advice of council will waive
	▼	Extrajudicial disclosure of an attorney client communication, not subsequently used by the client in a judicial proceeding to his adversary's prejudice, does not waive the privilege as to the undisclosed portions of the communication.
	•	It allows you to disclose all of the things that make you look good, but hide everything that makes you look bad.
	▼	Crime-Fraud Exception
	▼	Lawyers can help perpetuate crimes or fraud
	•	Client communications to a lawyer “in furtherance of criminal or fraudulent activity or closely related to it” are not privileged.  (These are communications where the lawyer’s services were used in furtherance of the crime/fraud.)
	▼	The judge can review the communications in camera to determine if the crime fraud exception applies to the communcations.
	•	The party seeking it cannot hear the statement
	•	Spouse
	•	Doctor Patient
	•	Priest Pentient
▼	Physical Evidence
	▼	Authentication- see examples rule 901, 902
	•	Done by a witness.
	•	Evidence cannot be offered until it has been authenticated.
	▼	Perfection is not required in the chain of custody
	•	"To authenticate a document, the proponent need only prove a rational basis for the claim that the document is what the proponent asserts it to be. ....This may be done with circumstantial evidence.
	•	It must be reasonably believable
	•	The jury must decide what weight to give the evidence.
	•	You can offere evidence that has been authenticated,  even if it is the other sides marked exhibit.
	•	There is no need to authenticate the testimony of a live witness. 
	•	Demonstrative Evidence is not subject to authentication nor the best evidence rule
	▼	Best Evidence Rule- 1002
	•	BER does not control witness testimony
	▼	There is No BER about the admissability of copies,
	•	UNLESS there is a real issue about the authenticity of the copies.
	•	The rule requires that when writings are introduced as evidence in a trial, to prove the contents thereof, the original writing must be produced as the "best evidence." In Federal practice, however, any exact copies of the original carry the same legal weight as the original unless their authenticity is in question or under the circumstances it would be unfair to admit the duplicate in lieu of the original.
	•	The rule applies in two situations:

    * Where the terms of the writing are legally dispositive in the issue at bar (not collateral documents or issues).
    * Where the witness's sole knowledge of a fact comes from having read it in the document.

There is an exception. If the original document is unavailable for reasons other than serious misconduct of the proponent, secondary sources of evidence (such as oral testimony) can be used in place of the original.
	•	Furthermore, rule 1003 allows the use of mechanically produced duplicates unless a party has raised a genuine question about the accuracy of the copy or can show that its use would be unfair.
	▼	Public records are always copies,
	▼	when you get them, they attach a certifications,
	•	This is called a self authenticating document.
	•	Non- copy machine copies are ok...when XXX
▼	Demonstrative Evidence.
	▼	The first rule of demonstrative evidence is that there is no rule of demonstrative evidence
	▼	It is excluded only when it not an accurate representation about what it intends to show
	•	it is more prejudicial than it is probative
	•	What matters is is it helpful to the jury?
▼	Judicial Notice Rule 201
	▼	Adjudicative Facts
	•	Must be not one subject to reasonable dispute.
	•	Generally known within the jurisdiction of the trial court
	▼	Examples
	•	Calendars, geography, ect.