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#Post#: 2--------------------------------------------------
Evidence Outline 1 [KangarooKort.com]
By: kangaroo Date: January 25, 2011, 4:36 pm
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Evidence Outline 1
Introduction
*
Evidence is any matter, verbal or physical, used to
support the existence of a factual proposition
*
Concerns fact finding in legal matters
*
Governs three areas
o
Types of information that may be considered by the
fact finder
o
The way in which this info may be communicated
o
The respective roles of judges and juries
*
Reasons for rules of evidence
o
Limitations in time and place—don’t have a lot of
time for a trial, and must take place in a courtroom
o
Party presentation—evidence is presented by the
parties; judges play a pretty passive role in what ev is brought
before the court
+
Adversarial system has led to a need to
control the parties and expose witnesses to cross examination
o
Laypeople are usually fact finders
o
Trials are public, so confidential info has to be
protected
o
Need for a record
+
Consists of pleadings, other filings, trial
transcript, and exhibits
+
FF can’t consider anything that’s not in the
record when making a decision
+
The record is all the appeals court can
consider when looking for errors in the conduct of the trial
*
Scope of the fed rules
o
Rule 101—Rules govern all fed courts, except as
provided in 1101
+
Don’t apply to administrative proceedings
+
1101(d)—Rules don’t apply to
#
Grand juries
#
Prelim. questions of fact
#
Sentencing, extradition, warrants, bail,
probation, prelim. examinations in crim cases
o
Rule 102—Rules are interpreted by the courts like
statutes (because they are a statute)
o
Rule 103 – Making the record –
+
103(a) – can’t appeal somethign trivial, must
be a substantial right being affected, error must be harmful
+
App. Courts basically never allow winning on
appeal
+
Objections – sustained or overruled, need to
give ground for objection unless obvious, the record preserves
it for appeal
+
Speaking objections – not proper, like an
argumentative objection
+
Motion to strike – removes it from the record
even if you don’t object quick enough you can do it later
+
Plain error – if it wasn’t objected to at the
trial level then there must be plain error but only allowed with
substantial problems
+
Motion in limine – made prior to trial,
advanced motion to admit or exclude evidence
Relevance
*
Introduction
o
Rule 402—Relevant ev generally admissible,
irrelevant ev not admissible
+
Relevant ev is admissible unless US Con, Cong
act, ev rules, or SC rules say it’s not
+
Irrelevant ev is not admissible
o
Rule 401—Definition of relevant ev
+
Ev having any tendency to make the existence
of any fact of consequence more or less probable than it would
be without the ev
+
You don’t have to be able to decide the case
based on any given piece of ev, but the ev has to help you
decide the case
#
Just has to move the guilt-o-meter
needle forward or backward
#
It is a brick, a brick is not a wall,
but many bricks are needed
+
Governs both direct and circumstantial ev
#
Direct ev—Requires only one inference to
get from the ev to the proposition it’s offered for (e.g. if a
witness say “I saw X do Y,” the only inference you have to make
is witness is telling the truth)
#
Circumstantial ev—Need more than one
inference to get to the proposition it’s offered for (e.g. “I
saw D running from scene with bloody knife,” need to assume
people running from scene with bloody knives have committed a
crime and W is telling the truth. Could be any number of other
reasons for running from scene, though, so not as reliable)
+
Materiality—does the ev go to a material issue
in the case?
#
Comes primarily from substantive law
#
To find out if something is material,
look to
*
Substantive law
*
Pleadings
*
Pretrial orders
*
Stipulations
+
Logical relevance
#
Inductive reasoning—conclusion doesn’t
necessarily follow from premises
*
Most legal reasoning is inductive
#
Deductive reasoning—conclusion
necessarily follows from the premises
o
Relevance is decided piece by piece, but sufficiency
is decided based on the whole
*
Conditional relevance
o
When the relevance of a piece of ev depends on the
introduction of another piece of ev
o
Rule 104—Preliminary questions
+
(a) Questions of admissibility
generally—Preliminary questions concerning qualifications of a
person to be a witness, existence of a privilege, or
admissibility of ev shall be determined by the court, subject to
(b)
#
Judge isn’t bound by rules of ev except
those about privilege
#
Not all preliminary questions of fact
are also questions of conditional relevance
+
(b) Relevancy conditioned on fact—When
relevancy depends on the fulfillment of a condition of fact, the
court shall admit the ev upon, or subject to, the introduction
of ev sufficient to support a finding of fulfillment of the
condition
#
Subject to—offer something into ev on
the condition that you’ll later prove the fact needed to make it
relevant; if you don’t prove that fact, judge will strike the ev
from the record
#
Upon—you offer something into ev after
you’ve proved the fact that makes it relevant
#
Tries to preserve the jury’s role as
fact finder; judge just performs a screening function to
determine if there’s ev sufficient to support the conclusion
offered (even if there’s contradictory ev)
#
Comes up a lot in written documents
(have to show the person really wrote it)
*
Counterweights to relevance
o
Some relevant ev is kept out for reasons other than
relevance
o
Rule 403—Exclusion of relevant ev on grounds of
prejudice, confusion, or waste of time
+
Although relevant, ev may be excluded if its
probative value is substantially outweighed by the danger of
#
Unfair prejudice
#
Confusion of the issues
#
Misleading
#
Waste of time
#
Undue delay
#
Needless presentation of cumulative ev
+
Unfair prejudice
#
Even if ev is gruesome, if it shows what
happened in the case, it isn’t necessarily unfairly prejudicial
(Yahweh Ben Yahweh)
#
Don’t have to prove a case with the
least prejudicial means; just have to prove it using relevant ev
that’s not unfairly prejudicial
#
The whole point of ev is to prejudice
the other side, so prejudice has to be unfair to keep something
from being admitted
#
Offer to stipulate
*
Stipulation—agreement by both
sides to something (facts are true/false, etc.)
*
How does an offer to stipulate
enter into the 403 balance? (Old Chief)
o
Offers to stipulate reduce
the probative value of the facts trying to be admitted to almost
nothing, which leaves nothing but unfair prejudice, so it
shouldn’t be admitted
*
You’re generally entitled to
present your case any way you choose, but this case created an
exception for cases where the ev concerns a legal status
independent of the events of later criminal behavior
o
Now judges have to take the
offer to stipulate into consideration when doing a 403 balancing
test
o
Steps
+
Decide if there’s any probative value
#
If yes, go on
#
If no, it’s out
+
Do any 403 considerations apply?
#
If yes, go on
#
If no, it’s in
+
Do the applicable considerations substantially
outweigh the probative value?
#
If yes, it’s out
#
If no, it’s in
*
Problems with circumstantial proof
o
Circumstantial ev of consciousness of guilt
+
Consciousness of guilt—person refuses a test
because they know they’re guilty; can be admitted
+
Flight
#
Probative value—consciousness of guilt
(D fled because she knew she was guilty) – don’t have to know of
the crime you are running from
#
Counters—coincidence, previous plans,
fear of false accusation, fear of victimization, etc.
+
Concealment of identity
#
Ev of concealment of identity can come
in if there’s enough to support of unbroken inference from D’s
behavior to D’s guilt (Silverman)
+
Resisting arrest
+
Bribing or attempting to bribe arresting
officer
+
Escape
+
False exculpatory statements
#
Show consciousness of guilt by trying to
mislead the investigation
+
Destruction of ev (spoliation) – evidence of
spoilation can be had even before the D was charged, like Arthur
Anderson destroyed books before the charges came down
o
Circumstantial ev of not having consciousness of
guilt
+
Non-flight
#
Could show lack of consciousness of
guilt
#
Counter—escape is a crime, didn’t think
he could make it, escape could be dangerous, failed escape would
look like consciousness of guilt
o
Inferences drawn upon inferences
+
Prohibited in some jurisdictions if the
previous inference isn’t proven to some degree of certainty
+
Ok in the fed rules
*
Statistical proof – Application of Rule 403 – Balancing
Test
o
To admit statistical proof, have to show some
foundation for the probabilities used, relevance, and can’t use
assumptions that aren’t true (Collins)
o
To what degree should statistical proof be
sufficient by itself to sustain a verdict?
+
For a verdict to be acceptable, P has to come
forward with something that shows the verdict should be in their
favor; stats alone might not be enough
+
Also, many are not educated enough to
understand very complex statistics and saying it is 99.99%
certain they did it, is clearly prejudicial, (also I feel that
if you have that much proof that you can rule it down to such a
certainty, the needle is beyond reasonable doubt anyway)
*
Categorical rules of exclusion – to win on appeal, it has
to show abuse of discretion, the trial courts are given a very
wide range to make decisions
o
Certain categories of ev are excluded by rule
o
Rule 407—subsequent remedial measures
+
If measures that would have made a harm less
likely to occur are taken after a harm has already taken place,
ev of the subsequent measures is not admissible
+
Ev of subsequent measures isn’t excluded if
it’s offered as proof of ownership, control, or feasibility of
precautionary measures; it’s controverted; or it’s used for
impeachment
+
Third party repairs aren’t excluded, even
though the language of the rule implies they should be DOUBLE
CHECK THIS ADAM
+
Exceptions include
#
Proving ownership, control, or
feasibility of precautionary measures
#
The ev is controverted
#
Impeachment
#
Can get around first two by offering to
stipulate to the fact P is trying to prove with the ev of
subsequent measures
+
First have to determine if it was a subsequent
remedial measure
#
If it is, not admissible
o
Rule 408—compromise and offers to compromise
+
Ev of offering, promising, or accepting, a
compromise on a disputed claim isn’t admissible to prove
liability or the invalidity of the claim or its amount
#
Either the amount or the validity of the
claim must be disputed to keep the ev out; offering to pay less
on an undisputed claim doesn’t count
+
Ev of conduct or statements made during
compromise negotiations isn’t admissible
+
Ev that is otherwise discoverable is not
inadmissible simply because it comes up in compromise
negotiations
#
The statement made by the party is what
is immunized, not the ev in the statement
+
Ev isn’t excluded if it’s offered for another
purpose, including, but not limited to
#
Proving bias or prejudice of a witness
#
Negativing a contention of undue delay
#
Proving an effort to obstruct a criminal
investigation or prosecution
+
Mediation is excluded; same policy reasons for
excluding compromise negotiations apply
+
Settlement negotiations are construed broadly
+
Does not apply when you say “I know I owe you
ten, but I will pay you eight” not going to allow extortion
o
Rule 409—Payment of medical expenses
+
Ev of furnishing, offering, or promising to
pay medical, hospital, or similar expenses occasioned by an
injury is not admissible to prove liability for injuries
+
Covers gratuitous offers to pay medical
expenses
+
No exceptions to this rule
o
Rule 410—Inadmissibility of pleas, offers of pleas,
plea discussions, and related statements
+
Except as otherwise provided, ev of the
following isn’t admissible in any civil or criminal suit against
D who made the plea or was a participant in plea discussions
#
Plea of guilty that is later withdrawn
#
Plea of nolo contendere (no contest)
#
Any statement made in proceedings under
Rule 11 of the fed rules of crim pro, or any similar state
proceeding
*
Rule under which the allocution is
taken
#
Any statements made in plea discussions
with the prosecutor that don’t result in a plea of guilty, or
result in a plea of guilty that is later withdrawn
*
Exists to encourage people to do
things that help the prosecution (e.g. give up accomplices)
*
Only statements made to a
prosecutor count, unless the police were acting as the
prosecutor’s agent
+
Such a statement is admissible
#
In any proceeding where another
statement made in the course of the same pleading or plea
discussions has been introduced and the first statement, in
fairness, ought to be considered contemporaneously with the
second; OR
#
In a criminal proceeding for perjury if
the statement was made by D under oath, on the record, and in
the presence of counsel (rule of completeness)
+
A plea of guilty in a criminal suit is
admissible in a civil suit if it’s relevant
+
This rule can be waived (Mezzanatto)
#
Rules of ev can be waived if objections
are not made at trial or explicitly
o
Rule 411—Liability insurance
+
Ev that a person was or was not insured is not
admissible on the issue of whether the person acted negligently
or wrongfully
+
Doesn’t require the exclusion of ev of
insurance when offered for another purpose, such as
#
Proof of agency, ownership, or control
#
Bias or prejudice of a witness
+
The fact that an expert is hired by an ins.
co. goes to bias; jury should know expert’s motive to lie
+
Opening the door—if you bring in improper ev,
your adversary can respond to it, even if they wouldn’t normally
have been able to (St. Pierre)
Character evidence
*
Ev of acts outside the one on trial can be relevant to the
issues on trial, but may not be admissible
o
Includes reputation, opinion, and other acts
*
Other acts
o
Propensity rule
+
We charge people on individual acts, not on
the badness of their character (Zackowitz)
#
Criminal justice system should judge the
act, not the actor, so ev of character (e.g. gun ownership,
other crimes, etc.) is kept out unless D brings it in
#
Res gestae—all events and circumstances
surrounding a happening
#
Can’t use the ev to show propensity, but
it’s commonly used to show motive, intent, absence of mistake or
accident, identity of the person charged, common scheme or plan
(MIMIC); res gestae is like these
+
Rule 404(b)—Ev of other crimes, wrongs, or
acts is not admissible to prove the character of a person in
order to show conformity therewith (not admissible to show
propensity)
#
May be admissible for purposes other
than propensity, such as proof of
*
KIPPOMIA: knowledge, intent, plan,
preparation, opportunity, motive, identity, or absence of
mistake or accident (Warning: this case is not exhuastive, if
the character evidence is being offered for something other than
propensity it is admissible.)
*
Subject to 403
*
Res gestae is probably included
here, too
#
D is entitled to advance notice of the
general nature of any such ev P plans to introduce
o
Can use limiting instruction to make sure admitted
ev of other acts is only used for other purposes and not
propensity
o
Prior act can’t establish identity unless the two
acts are sufficiently idiosyncratic to support the inference
they’re the handiwork of the same person (Trenkler)
+
Motion in limine—motion prior to trial for a
ruling on the admissibility of ev
+
403 is always available, even if ev passes
through another rule first
o
P must establish by clear and convincing ev that D
committed the collateral offense before it can be admitted
(Tucker)
+
Not the prevailing standard
o
Prior similar acts—don’t always have to happen
before the charged offense; sometimes occur afterward (Rex)
o
Double jeopardy—once you’re tried for a crime, you
can’t be tried again, and once you’re convicted of a crime, you
can’t be convicted again
o
If jury thinks ev of other act (admitted for reasons
other than propensity) has been shown by a preponderance, they
can consider it (Dowling)
o
Ev of reputation can be brought in by D, and can be
enough to raise reasonable doubt; prosecution is allowed to
rebut (Michelson)
+
There’s a lot at stake in a criminal
prosecution, so if the court is going to err, it wants to err on
the side of the defendant, which is why D is allowed to bring in
reputation ev
+
Witness can be crossed on other acts, whether
or not they resulted in a conviction
+
If the witness says they’ve never heard of the
event, the prosecution can’t introduce the record of conviction
or arrest
*
Character evidence generally
o
Rule 404(a)—Ev of a person’s character or a trait of
character is not admissible for the purpose of proving action in
conformity therewith on a particular occasion
+
Except
#
Character of the accused—ev of a
pertinent trait of character offered by accused or by
prosecution to rebut the same
#
Character of alleged victim—ev of a
pertinent trait offered by D or P to rebut the same, or ev of
peacefulness of V offered by P in a homicide case to show V was
not the initial aggressor
*
Used to show action on the date in
question
*
If D brings in V’s violent
character, P can bring in peaceable character, but only in
rebuttal
*
If D opens the door to the
character of V, P can bring in ev of the same trait of D’s
character
*
In homicide cases, P can bring in
ev of V’s peacefulness because V is dead and can’t be brought in
by D
#
Character of witness—ev of the character
of a witness
o
Tells you when character ev can be admitted (not ev
of other acts); 405 tells you how character ev can be offered
o
Bars the circumstantial use of character
*
Character in sexual offenses
o
Rule 412—Rape shield rule
+
Except as otherwise provided, the following is
inadmissible in any case alleging sexual misconduct
#
Ev V engaged in other sexual behavior
#
Ev to prove V’s sexual predisposition
*
Some courts let this in with
regard to the victim's predisposition as known to D that might
lead him to understand V consented
+
Exceptions
#
In criminal cases, the following is
admissible
*
Specific instances of sexual
behavior by V to prove someone else was the source of physical
ev
*
Specific instances of sexual
behavior with respect to the person accused, offered by D to
prove consent or offered by P
*
Ev that would violate D’s
constitutional rights if it’s excluded
#
In civil cases
*
Ev of sexual behavior or
predisposition is admissible if its probative value
substantially outweighs the danger of harm to any V and of
unfair prejudice to any party
*
Ev of V’s reputation is only
allowed in if V brings it up
+
Procedure to determine admissibility
#
Party intending to offer ev under the
exceptions must
*
File a written motion at least 14
days before trial describing the ev and state the purpose it’s
offered for, unless the court requires a different filing time
or permits filing during trial (for good cause)
*
Serve the motion on all parties
and notify V and V’s representative or guardian
#
Court must conduct a hearing in camera
and allow V and parties a right to attend and be heard
*
The motion, record, and related
papers must be sealed and remain sealed unless the court says
otherwise
+
If V is testifying, D can ask questions on
cross about past instances of false accusations of sexual
assault
#
No expert testimony on witness
credibility
o
Rule 413—Ev of similar crimes in sexual assault
cases
+
If D is accused of an offense of sexual
assault, ev of D’s commission of another offense of sexual
assault is admissible and may be considered for its bearing on
any matter to which it’s relevant
+
Ev must be disclosed to D
+
This rule shall not be construed to limit the
admission or consideration of ev under any other rule
#
Rule 403 can still be considered
o
Rule 414—Ev of similar crimes in child molestation
cases is admissible
+
Works the same as 413
o
Rule 415—Ev of similar acts can be admitted in civil
cases concerning sexual assault or child molestation
+
Works the same as 413
*
Rule 405—Methods of proving character
o
(a)—Reputation or opinion
+
In all cases in which ev of character or a
trait of character of a person is admissible, proof may be made
by testimony as to reputation or by testimony in the form of an
opinion
+
On cross ex, inquiry is allowable into
relevant specific instances of conduct
#
Relevant means relevant to the character
trait being testified to
#
Prosecution may rebut good character
witness by cross ex of that witness
#
Once D opens the door, P can bring up
whatever they want with that witness; they just can’t call any
other witnesses to besmirch D’s character
o
(b)—Specific instances of conduct
+
In cases in which character or a trait is an
essential element of a charge, claim, or defense, proof may also
be made of specific instances of that person’s conduct
+
Character in issue—there are certain cases
where character is an essential element of a charge, claim, or
defense; character isn’t being used for propensity, but to prove
the case
#
Usually comes up in defamation and
libel; negligent entrustment, hiring, or retention; entrapment;
and child custody
*
Character in civil cases
o
Reputation
+
Rule 404(a) doesn’t apply to civil cases
(Ginter)
#
The rule uses “accused,” “prosecution,”
“crime,” etc., which are all exclusively criminal case words
+
In a civil case, you can’t use character ev of
opinion or reputation, even if it’s relevant
o
Specific instances of conduct
+
404(b) applies to civil cases, as well as
criminal cases
+
Acts can be admitted if they are connected in
some special way, which indicates a relevancy beyond mere
similarity in certain particulars (Dallas Railway v. Farnsworth)
#
Shows state of mind on the day in
question
*
Habit
o
Rule 406—Habit, routine practice
+
Ev of the habit of a person or of the routine
practice of an organization, whether corroborated or not and
regardless of the presence of eyewitnesses, is relevant to prove
the conduct of the person or organization on a particular
occasion was in conformity with the habit or routine practice
o
If it’s habit, it’s not barred by rule 404, and if
it’s relevant, it comes in
o
Habit is the regular response to a repeated specific
situation
Examination of Witnesses
*
Competency
o
Rule 601—General rule of competency
+
Every person is competent to be a witness,
except as provided in the Rules
+
In civil cases, if state law provides the rule
of decision for an element of a claim or defense, competency is
determined in accordance with state law
+
Capacities necessary for being a witness
#
Narration (communication)
#
Sincerity (honesty)
#
Perception (distinguish between fantasy
and reality)
#
Memory
+
Standard for capacity is really minimal;
anything that might go against capacity can probably be grounds
for impeachment
+
Problems with testimony by kids
#
Distinction between truth and falsehood
(appreciating the oath), possibly problems with narration and
memory
#
Resolved by allowing judge to interview
the child out of the hearing of the jury to make a determination
of whether the kid is competent to testify
+
Competency is a continuing issue
#
Just because someone is found competent
at the beginning of their testimony doesn’t mean they won’t be
found incompetent later
#
If the witness isn’t competent for cross
ex, the direct testimony has to be struck
o
Rule 602—Lack of personal knowledge
+
Witness can’t introduce ev unless he has
personal knowledge about what he’s testifying to (except expert
witnesses)
o
Rule 603—Oath or affirmation
+
All witnesses have to make an oath or
affirmation
+
Lays groundwork for perjury
o
Rule 610—Religious beliefs or opinions
+
Ev of the witness’s religious beliefs or
opinions isn’t admissibl
#Post#: 105--------------------------------------------------
Re: Evidence Outline 1 [KangarooKort.com]
By: Ballsomsak Date: March 8, 2017, 10:45 pm
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This is a very good thing. I have read it was very impressed.
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