evidence - class notes

8/12/2019 Evidence - Class Notes

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EVIDENCE

A. Introduction

Three points to remember:

1. Relevance: most fundamental rule of evidence. Evidence cannot be admitted in alegal proceeding unless it is relevant to some fact that matters in that proceeding.

If it doesnt have a bearing on the issues!facts in the case it cannot be admitted.

". Common sense: most rules of evidence are at heart common sense rules.#. $urpose of the rules of evidence: It is to filter information so that onl% the right

information gets into the legal process. The rules of evidence filter out bad

information and let good information in.

I. Irrelevant, Prejudicial & Unreliable Evidence: 3 major criteria for filtering

evidence

Irrelevant evidence: evidence that has little to nothing to do &ith issues or facts in'uestion.

$re(udicial Evidence: proffered evidence that has the potential to lead the finder of fact

a&a% from rational and logical deliberation and to ma)e decisions on passions and

pre(udices.*bad character evidence

*inflammator% evidence

+nreliable Evidence: evidence that is 'uestionable as to its reliabilit%.*incompetent &itnesses

*heresa% evidence

II. Public Policy Judgments

,etting in certain evidence might eventuall% lead to more harm than good in future

matters.

The rules of evidence are:1. -iltering device

". ub(ect to specific filtering criteria

#. Commonsensical

/. The Rule of Relevance 0 -RE 21 * 2"

Evidence is admissible if it is relevant3 evidence is not admissible if it is not relevant.

ometimes relevance is not enough and e4ceptions e4ist. Rule 21 tells us &hat is

relevant.


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-RE 21: Relevant evidence means evidence having an% tendenc% to ma)e the e4istence

of an% fact that is of consequenceto the determination of the action more or less probable

than it &ould be &ithout the evidence.

5hat 21 sa%s is that:

*If a fact that matters to the outcome of the case

* is supported or discredited b% a piece of evidence

*than it is relevant.

6r:

7as to ma)e a rational person believe that the fact of conse'uence is true in order for it tobe relevant.

i.e. The fact that a 8 has red hair &ho is accused of raping a &oman and a 'uestion is

presented about the possibilit% of penetration9 the fact that the 8 has red hair does not tellthat penetration &as more or less probable and therefore is irrelevant in the determination

of this 'uestion.

/. Relevance

C. PEJU!I"E

Evidence is deemed pre(udicial if it appeals to emotions and passion rather than to reason

or logic or if it triggers intense fear9 feelings of s%mpath%9 or pla%s to or triggers biases inthe finder of fact (ur%;.

6ther e4amples of pre(udicial evidence:

*evidence &ith a high propensit% to mislead the (ur%

1. +NNECE+DICI


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pre(udicial one on its o&n can pass the rule 2# balancing test. +nnecessar% pre(udice

should be avoided. #ld "$ief v. United %tates.

*To determine &hat the probative value actuall% is: the t%pe of evidence must be

considered. i.e. narrative evidenceis much more probative than stipulations

non*narrative evidence;. The narrative is al&a%s better than the non*narrative.

*In most cases a stipulation is not an ade'uate substitute for other )inds of

evidence. 8 ma% not stipulate their &a% out of the @full evidentiar% forceof the governments caseA. ?enerall% spea)ing9 narrative evidence has

greater probative value than non*narrative evidence3 value that mere

stipulations dont have. The court finds that (urors e4pect a stor% and ma%

be inclined to rule against the government for failing to meet theire4pectations or creating s)epticism or suspicion.

". EVIDENCE 6- $


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. EVIDENCE 6- EB$ERIENT C6ND+CTED II,


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*Evidence of past bad acts &ill bias the (ur%.

#. EVIDENCE 6- C7


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. EVIDENCE 6- $


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E;ce+tions to rule of using c$aracter to s$o conduct

. EVIDENCE 6- ?66D C7


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*-RE 2a;"; the accused can put on evidence of pertinent

aspects of the alleged victims character.

$eacefulness e4ception in 2a;";

The prosecution can put on evidence of the victims character even if thedefendant did not put on evidence of the victims character. Ver% rare that the

prosecution is allo&ed to first raise character evidence but this is one &a% to do

so.

*Evidence of a character trait of peacefulness offered b% the prosecution in

a homicide case is admissible to rebut the defendants evidence that the

victim &as the aggressor.

i.e. if 8 puts on evidence that the victim attac)ed first.

R


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C. Is evidence of a victims past se4ual behaviors admissible if offered to sho& the

source of in(ur% to the victim

=es9 it is an e4ception to -RE 1" evidence of specific instances of a rape

victims prior se4ual behavior is admissible if offered upon the issue of &hether

the accused &as or &as not the source of semen or in(ur%;. United %tates v.A8ure

The e4ception does not appl% here ho&ever as the evidence of her past consensualse4 &ith her friend is irrelevant to the source of her in(uries.

In a se4 abuse case9 the defendant can put on evidence &here some of it involves

an in(ur% according to A8ure.

D. To prove consent can a 8 put on evidence that the% had consensual se4 in the

past

=es9 1"b;1;b; the defendant can put on this evidence despite 1"a;1;sprohibition against using evidence of @other se4ual behavior in the pastA


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in the case9 cannot duplicate the effect &ith evidence that is alread% admissible.

"$ambers v. *ississi++i

Revie& -E


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*Does not offend -RE 2a; using past bad acts to sho& conduct;

*1 onl% applies to child molestation cases

5h% open the door on this t%pe of evidence

*this )ind of evidence is much more probative

*give prosecutors more ammunition against this t%pe of crime for public polic%

. -RE 1# 0$


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* The evidence of habit9 or routine practice9 is probative of conduct in conformit%

there&ith on a particular occasion9 but does not establish such conduct nor give

rise to a legal presumption that such conduct occurred cant sa% because theevidence is admitted that &hat %ou &ant to eventuall% prove happened9

happened.; Routine business practices can though produce a strong inference in

favor of the proponent.

*Evidence against organiations is less personal and less li)el% to be ta)en

personall%.

*Evidence against organiations is also needed for the purpose that no one person

can in all li)eliness give specific information about a specific item!productK its

(ust not feasible.

*,a& is open to evidence of an organiations routine and scrutinies it less closel%

than &hen presented &ith evidence of an individuals habit la& distinguishes

business activit% from individual human activit%;.

END C7


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-E 4D* "annot use evidence of someones offer or actual settlement or someones

statements or conduct during settlement negotiations as an admission of liability.

Rule 2O bars the admission of evidence of settlements bet&een plaintiffs and third*part%

(oint tortfeasors and former codefendants. *cInnis v. A*- Inc.

*-RE 2O states that %ou cannot use settlements against plaintiffs or defendants

*This )ind of evidence is not ver% probative*5ant to encourage settlement. If the% )no& an offer might be used against them it &ill

be disincentive to settle.

FF9itness !iscrediting E;ce+tion* Can put on evidence of a settlement onl% to sho&that a particular &itness might be biased or pre(udiced in a particular &a% to&ards one of

litigants.

-E


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F. 8 ma)es statements against someone else during plea bargaining sessions. Does

-RE 12 allo& for e4clusion of statements made against third parties in plea

bargaining


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!octor Patient Privilege

-ederal courts have said that reason does not support such a privilege since much of &hatdoctors do is ob(ective observation and patients need not confide in them to get effective

care.

"lergy Privilege

Is a recognied privilege in the federal courts9 analogous to Jaffee.

N6N*TETI6NIudicial Notice 0 -RE "21

>udge tells (ur% that the% must ta)e notice of a specific fact. i.e. time of da%

5hen does (udicial notice need to be given

< court ma% but is not re'uired; refuse a re'uest to ta)e (udicial notice of a factsupported b% a ne&spaper e4cerpt that does not identif% the source of that fact. %tate v.

"anady

>udicial Notice is given &hen a fact is not sub(ect to reasonable dispute:

1. fact must be generall% )no&n &ithin (urisdiction in &hich court sits

or:

". fact can be )ind b% sources &hose accurac% cannot reasonabl% be'uestioned

traightfor&ard scientific facts ma% be cited from a

generall% reliable treatise such as an enc%clopedia etcK

Right to a (ur% trial is a fre'uentl% cited right as a grounds

to contest an order of (udicial notice since that in a criminal

case the defendant has a right for each important fact to bedecided b% the (ur% not the court. The defendant has the

right to put on evidence contesting the (udiciall% noticedfact. -RE "21g; sa%s that that (ur% does not 7


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a% (urors ta)e (udicial notice of the commonl% accepted meaning of all English &ords

=es9 (urors ma% ta)e (udicial notice of the commonl% accepted meaning of all English

&ords and thus ma% use a dictionar% in recalling such meanings &hen no special or legalsignificance of its use is involved. Palestroni v. Jacobs

*>uries ma% also ta)e their o&n notice b% using a dictionar% as to common&ords &ith no special or legal significance.

*>urors ma% ta)e notice of facts that are @too notoriousA to need evidence9 of

such common )no&ledge and thus are constantl% noticed.

*6ne problem &ith this is that (urors are al&a%s ta)ing notice K the parties mightnot )no& &hen the% are ta)ing notice of something that might not be correct.

!E*#2%0A0I1E E1I!E2"E? I''U%0A0I1E E1I!E2"E5using a +$ysical object to e;+lain testimony6

5hen demonstrative evidence is used for dramatic effect is it reversible error

=es9 Court permission to use demonstrative evidence constitutes reversible error onl% ifthe evidence is used for dramatic effect or emotional appeal rather than to aid the

reasoning of the (ur%. %mit$ v. #$io #il "o.

$R6$ER -6+ND


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EA' E1I!E2"E ? P/K%I"A' E1I!E2"E

Can a part% introduce evidence of the instrumentalit% alleged to have caused an in(ur%

=es9 but the admission of such evidence must be precipitated upon a foundational

sho&ing that the ob(ect is &hat it purports to be and that it is in a condition reasonabl% thesame as &hen it allegedl% caused the in(ur%. Gallag$er v. PeCuot %+ring 9ater "o.

$R6$ER -6+ND


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Videotape reenactments are illustrative evidence and the foundation for them must onl%

be that the% help e4plain some testimon% or other evidence.

Videotapes can be ilent 5itnesses

ilent 5itness* under the circumstances &hich the tape &as made9 the tape sho&s theincident that %ou claim it sho&s.

*sho& that the camera &as on and &or)ing properl%

*prove the time and date someho&

AU0/E20I"A0I#2 #- !#"U*E20% & /A2!9I0I2G

ust give the court a legitimate basis to conclude that the document offered in

court is the document that %ou claim it is.

-RE P21 0 If %ou &ant to authenticate something %ou need to provide evidence

sufficient to support a finding that the item in 'uestion is in fact &hat its

proponent claims it is.

1. 7and&riting evidence

3 9ays to Aut$enticate !ocuments:

< hand&riting ma% be authenticated b% a &itness &ho is of familiar &ith it.

uc(ing$am "or+. v. Eing 'iCuors "o.

*-amiliarit% can be if a &itness has seen a signature (ust one time before in some

cases %eetater;.

*,a% people can identif% a document based on familiarit% but cannot offer their

opinion in a comparison bet&een &riting )no&n and un)no&n.

6nce %ou have one authenticated document then %ou can give other un)no&n documents

to the (ur% and let them decide if the same person authored the documents. U.%. v.

American adiator & %tandard %anitary "or+.

*The trier of fact ma% compare alread% )no&n documents to un)no&n ones tosho& authorship.


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AU0/E20I"A0I#2 #- P/#2E "#21E%A0I#2%

1. Voice


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0$e asis for 0estimony) -E 4


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5hat Constitutes < Reasonable Fuestion on Cross E4amination

*< good basis in fact for the 'uestion that %ou are as)ing. i.e. if %ou have a good basis in

fact for the suspicion that the &itness is a racist then %ou can as) about it.

*=ou can use e4trinsic evidence to bring out a &itnesses bias

*6ther fla&s or infirmities can be brought out during cross i.e. mental defect;*use e4perts

*other &itnesses to testif% as to patterns of behavior

"$aracter Im+eac$ment of a itness

-E 4D* can onl% refer to &itnesss character to put on evidence that &itness is an

untruthful person

-E 4L* can cross e4amine a &itness about specific dishonest things that the% have

done but cannot put on e4trinsic evidence of past bad acts other than crime cannot put onother &itnesses to sho& that this &itness has done other bad non*criminal things;.

If (itness (as )*T the +ccused: 2Pa;1;* can put on evidence of &itnessspast crimes if &itness &as not the accused and it &as a felon% &ill pass -RE

2# if it is probative and not too pre(udicial;.

+nder 2Pa;"; a &itness can be impeached b% past crimes if the%involved dishonest% or false statement regardless of the punishment even

if it is highl% pre(udicial. acrime of dishonest' is one that involved an

element of deception;

If (itness IS the +ccused9 the evidence pass the evidence past the -RE 2# test

and be more probative than other evidence.

< prosecutor ma% use previous convictions to impeach a defendants testimon% or

'uestion his veracit%. U.%. v. #rti8

< &itness ma% be impeached b% proof that he &as convicted of a crime that involved

deceit. Altobello v. orden

Im+eac$ment it$ +rior inconsistent statements

< &itnesss prior inconsistent statements can be used to impeach him since it raises

doubts as to his truthfulness during testimon%. "entral *utual Insurance "o. v.2eman


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*Inconsistencies can sho& that there is fault% memor%9 or another defect not

necessaril% deceit.

*ho&s that this is the )ind of &itness that gets things &rong or &hos stor%

changes.

*Inconsistent is a fle4ible and broad term. If there is a significant change in a

&itnesss stor% then %ou can use the inconsistencies to impeach that &itness.

/EA%AK

-E D4


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/EA%AK "A%E 'A9

6ut of court statements not offered for their truth are not hearsa%* U.%. v. Gibson

(hat Counts +s + Statement

-E D4


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Can Silence or Inaction be 0earsa'

ilence or Inaction does not fall under the scope of the hearsa% rule although an implicitassertion might be present. %ilver v. 2e Kor( "entral .. "o.

EM"EP0I#2% 0# 0/E /EA%AK U'E) -E D43?D4

ule D4 e;ce+tions a++ly $en s+ea(er is unavailable for court as defined in D45a6

ule D43 e;ce+tions a++ly


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(hen statement at time of its main& 1as far from the declarant-s interest that a

reasonable person 1ould not mae 1ithout believin& it to be true is an exception to

hearsa'.

-E D45b6536does not allo& admission of self serving statements even if the% are made&ithin a broader narrative that is generall% not self serving. 9illiamson v. United %tates

*tatements against a spea)ers o&n interest are t%picall% more reliable since the motiveto lie is greatl% decreased.

*The declarants statement in this case &ere not reall% against his interest as he &as tr%ing

to curr% the favor of la& enforcement and shift responsibilit% to 5illiamson therefore theupreme Court held here that the statements could not be admitted.

*tatements against interest to e4culpate someone in a criminal case9 &here someone

might be l%ing to help the defendant that tend to e4pose declarant to criminal liabilit% arenot admissible unless corroborating circumstances sho& that the spea)ers statement is

probabl% true since people might &ant to help someone out9 i.e. claiming to havecommitted the crime that the defendant is charged &ith.

3. Present %ense Im+ression ) -E D435


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Can a defendant admit statements of a victim declarant-s state of mind in a

prosecution for homicide b' arson to prove that it ma' have been suicide

=es9 The state of mind e4ception to the hearsa% rule permits the introduction of relevant

out of court statements &hich reflect the declarants state of mind.United %tates v.1eltman

*tatements of spea)ers then e4isting mental emotional or ph%sical conditionare admissible as an e4ception to the hearsa% rule.

*pea)er must be describing something as it happens9 cannot search memor% for

past conditions etcK

*ame rational as present sense impression e4ception but here the spea)er is

describing something happening to them instead of in front of them.

. %tatements for Pur+ose of *edical !iagnosis of 0reatment @ -E D4356

Statements made b' a rape victim to the doctor examinin& her are admissible under the

hearsa' exception for medical dia&nosis and treatment if the doctor should testif' as to

1hat she related to him4her.


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B. ecords of egularly "onducted Activity @ -E D4356

5usiness records that meet the test belo1 ma' be admitted as an exception to the

hearsa' rule

,ong Distance Telephone Tic)ets ma% be admitted as business record evidence. #lesenv. /enningsen

0E%0 -# -E D4356

-or /usiness Records to be considered regularl% conducted activit% the% must:

1. Record of event

". ade at! or near the time#. /ased on personal )no&ledge made b% a person &ith personal )no&ledge;

. ade in the course of regular business activit% is it &hat the bi does;

. Regular practice to ma)e such records

. Fualified 5itnessJ. Trust&orth% 5itness

*In advisor% notes: Court held that a blac)(ac) dealers tips ledger &as a business record

*Includes records of illegal business activit%. Concept of business is broad9 &hat %ou doto ma)e %our living.

D. Public ecords and e+orts @ -E D435D6, D435L6, D435


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Can a statement translated from one lan&ua&e to another be admitted into evidence if

the translator has a clear recollection of 1hat 1as said

No9 a translated statement ma% not be admitted into evidence unless the preparer can

testif% that he no longer has an independent recollection thereof. United %tates v. -eli;)Jere8

12. -ormer Testimon% 0 -RE O2b;1;

11. Catchall or Residual E4ception 0 -RE O2J

evidence - class notes

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