evidence outline

EVIDENCE OUTLINE BACKGROUND/BASICS: - Judges rule on whether the evidence is admissible and not bound by FRE except with privileges (104(a)) - Jurors determine how much weight the evidence should be given - Evidence is admitted unless objected to - Rules of evidence tell us what to exclude, not what to admit - Objections must be timely, with reasoning, and non-objecting party must have a right to offer proof for why admissible (103) - Sustain = Exclude - Overrule = Admit Rule 103(a): A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party AND; - if the ruling admits evidence , a party on the record - timely objects or move to strike and - states the ground unless it was spparent from the context or - if the ruling excludes evidence a party informs the court of its substance by an offer of proof, unless the substance was Apparent from its context Rule 103(b): Once the court rule definitely on the record– either before trail or at trial- a party need not renew an objection or offer proof to preserve a claim on appeal A motion in limine is sufficient to preserve the moving party’s right ot appeal the evidentiary ruling - Limiting Instructions can be used if a piece of info is admissible for one purpose but inadmissible for another, or there are multiple parties and evidence is only admissible against one of them. Here, the jury still needs to hear info but must be guided as to how to use the info. (105) - “Rule of Completeness” = Party introduces all or part of a writing or recorded statement, adverse party may require the introduction of any other part– or any other writing or recorded statement– that in fairness ought to be considered at the same time (106) Structure of a Trial 1. Pretrial Motions a. Motions in Limine i. BEFORE trial ii. Seeks a ruling on the admissibility of evidence based on the FRE 1. Request to preclude 1

2. Request for a ruling that evidence is admissible iii. Preserves the right to appeal (no need to object during trial) (Rule 103(b) b. Motion to Suppress i. Motion seeking to preclude evidence because it was illegally obtained c. Motion for Summary Judgement i. No genuine issue of material fact 2. Jury Selection/ Voir Dire 3. Opening Statements a. P → D 4. Plaintiff/Prosecutor’s Case in Chief a. Witness Direct → Witness Cross → Witness Redirect, etc. 5. Defendant’s Case in Chief a. Witness Direct → Witness Cross → Witness Re-Direct, etc. 6. Plaintiff’s Case in Rebuttal → Defendant’s Case in Rebuttal 7. Closing Statements 8. Jury Instructions → Deliberations → Verdict Types of Evidence 1. Testimonial Evidence a. Good Examination Elements i. Background ii. Lay Foundation iii. Tell Story (non-leadings q’s) b. Cross-Examination (allowing leadings q’s) → Re-direct c. Fact Witness i. People who perceived facts related to the lawsuit and testify about those facts ii. Ex. Eyewitnesses, parties, and victims d. Expert Witness i. Use specialized knowledge to interpret evidence or explain it to the jury e. Character Witness i. Not testifying about facts directly but offer information about the good or bad character of a party or witness 2. Real Evidence a. Physical evidence that a party claims played a direct role in the controversy Ex. Murder weapon, stolen property, etc. 3. Documents/Writings a. Any type of writing or recording or information 2

Authenticating REAL EVIDENCE: - Rule 901 = Must have “evidence sufficient to support a finding that the item is what its proponent claims it is” - ”is this object in the same condition as it was on the date that you recovered/tested/saw it? - Rule 902 = Some documents are “self-authenticating” ARTICLE IV: RELEVANCE 1) Is it relevant? What FC is it relevant to? 2) Does the evidence implicate any issue covered by the rules on preclusion? (407, 408, 409, 410, 411, 412) 3) Can there be any problem of unfair prejudice? If so, can it survive a Rule 403 balancing test? STEP 1: IS IT RELEVANT? All relevant evidence is admissible (unless otherwise provided), all irrelevant evidence is inadmissible ( Rule 402) (very low standard) (yes or no) - Relevance is subjective! - Start With = What are you trying to prove? Rule 401: Test for Relevant Evidence Evidence if relevant if; a) PROBATIVE = It has any tendency to make a fact more or less probable than it would be without the evidence (irrelevant = equally consistent with guilt or innocence) b) MATERIAL = The fact is of consequence in determining the action Fact of Consequence = A material fact; a fact which helps the finder of fact decide the case The evidence might prove multiple facts, only ONE of which is a FC– as long as there is ONE FC that you prove which is relevant, you move past 401 Circumstantial Chain of Inferences - Each thing need to be relevant - Ex. D flees → Consciousness of guilt → Consciousness of guilt for crime charged → actual guilt of crime charged - If court rejects one of the links (because major premise not commons sense or a minor fact-based premise is too tenuous) look to 104(b) rule on conditional evidence , allowing you to bring in more support for inference chain 4

STEP 2: IS THE EVIDENCE RELEVANT BUT INADMISSIBLE? (rules 407, 408, 409, 410, 411, 412) Rule 407: Subsequent Remedial Measures *PERSONAL INJURY/CIVIL* BARS a dmission of measures taken that would have made an earlier injury or harm less likely to occur for the purpose of proving - Negligence - Defect in Product or Design - Need for a warning or instruction - Culpable Conduct ALLOWS admission of this evidence for another purpose, such as - Impeachment (SRM directly contradict D’s testimony) - Ex. W says “we had the safest possible design”, P can introduce evidence of their design modification after the injury - What did they believe at the time of the event? - Likely to admit when - W makes a specific representation that conflicts with SRM - W makes an absolute statement (“the product was perfectly safe”) - W was involved in implementing the SRM - If disputed by other party: - O wnership or control - D argues they did not own or control the instrument that injured P - F easibility - D says there is no way they could have remedied a dangerous situation - What did they believe at the time of the event? - Physically, technologically or economically impossible OR would make situation more dangerous What is an SRM? - After the injury occurred - Applied to Strict Liability - Does not apply to third-party repairs, only those made by D - Ex. firing employee, recalling a product, changing a policy, altering a design (apply 403) Rule 408: Compromise Offers and Negotiations CIVIL BARS settlement offers and statements made during settlement discussion from being admitted to prove: - Liability/Damages - Impeach W with inconsistent statements - Disprove those elements 5

- If D actually enters a guilty plea as party of a PB but later withdraws - Any statements made during criminal plea negotiation - No party can introduce this evidence against D, but D can introduce against others - Inadmissible in future criminal AND civil proceedings - Evidence that arises in a criminal trial barred from being used in a criminal OR civil trial - Only applies to D ON trial - Ex. A negotiates PB and testifies in B’s trial against B. Prosecutors can bring up statements A made during PB because A is not D on trial. - Nolo Contendre Plea: No contest, D doesn’t admit guilt just What is a Plea Discussion? - D displayed an actual, subjective expectation to negotiate a plea, AND - This was a reasonable expectation given the totality of objective circumstances Did D REASONABLY BELIEVE that bargaining was going on? Confession Plea Bargaining 1. Law enforcement agents present 2. No “consideration” offered by D 3. No consideration requested by D or offered by P 4. Signed Miranda waiver 1. Prosecutor present OR agents have or claim to have authority to make a deal 2. Defense Attorney present 3. D offers some consideration 4. P offers or D requests lowering or dismissal of the charges Rule 411: Liability Insurance BARS evidence of D carrying liability insurance to prove - Negligence/Wrongful Action - To suggest that bc D was insured, he was probably careless or to get jury to award P more - To suggest that bc D wasn’t insured, he was probably more careful or cannot pay P ALLOWS admission for any other purpose - Agency/ownership - Bias/Prejudice of W (apply 403) Exception Comparison 7

407 (SMR) 408 (Settlements) 410 (PB) ● Impeachment ● IF DISPUTED, other purpose (ownership, feasibility) ● Other purpose (proving bias) STEP 3: RULE 403 BALANCING TEST Rule 403 : P < UP The court may exclude relevant evidence if it’s probative value is substantially outweighed by a danger of one or more of the following: - Unfair prejudice - Confusing the issues, misleading the jury - Undue delay, wasting time, or needlessly presenting cumulative evidence Unfair Prejudice: - Old Chief : UP when something lures the jury into declaring guilt on a ground different from the proof specific to the offense charge - Notes: Undue tendency to suggest decision on an improper basis (emotional) Probative Value = question of degrees Ex. Presenting evidence of detectives use of racial epithet - PV = impeaches witness’ prior testimony, shows motive to plant evidence - UP = use of epithet is so repugnant that jury will be emotionally and unfairly predisposed against witness because he is a racist “Sanitizing the evidence” = Can you present the evidence in a way as to maintain its probative value AND eliminate or reduce the unfair prejudice? - Old Chief : Generally a party has the right to present evidence using teh most persuasive method they choose. VERY RARELY will choosing a more “prejudicial” method violate Rule 403 - Live testimony is more probative than a stipulation Five factors: - Arousal of emotions - Tendency to overvalue the evidence - The strength of the connection - Less prejudiced or confusing means? - Reduce prejudice or other harm from introducing the evidence? ARTICLE VI: WITNESSES 8

What are you trying to prove: dishonest or honest character **Impeachment is NEVER beyond the scope** Attacking credibility, this W shouldn’t be believed Can’t bolster W’s credibility until it has been attacked/AFTER impeach (then you can rehabilitate it) Attacks on Character which open the door to Rehabilitating Character: Need a witness testifying for 608 and 609. - 608: specific questions about W’s prior dishonest acts - 608: negative character witnesses - 609: prior convictions The rest of them are just saying that you are lying in THIS CASE Identify the source of impeachment, how are we attacking this W’s credibility? - Directly to W on cross? - Extrinsic source? No rule specific for bias and sensory defects but these are viable forms for impeachment EE always allowed no Hitchcock rule Bias = witness has stake in outcome of case or has relationship to party Sensory: visually impaired? Dark lighting? Run 404 test probative value substantially outweighed by unfair prejudice to the Jury - Rule 607: Allows any party to impeach any witness - D impeaches P’s witness, P impeaches D’s witness, P impeaches P’s witness, D impeaches D’s witness - Both parties can impeach a witness, usually cross-examination but you can impeach your own witness’s credibility (apply 403) Attacking Credibility: 1) Clarity 2) Memory 3) Perception (sensory defects) 4) Sincerity - Prejudice, bias, corruption (EE is allowed) - Contradiction ( Hitchcock ) - Character for Truthfulness ( Rule 608) - Reputation or opinion evidence ( 608(a) ) - Prior bad acts + Prior Convictions ( 609 ) - W’s prior inconsistent statements ( 613) ( Hitchcock ) Rule 610: BARS use of W’s religious beliefs or opinions to attack or supports W’s credibility 10

Rule 612: Refreshing Recollection ALLOWS attorney to refresh W’s memory with anything when they admit they don’t remember - “I can't’ remember” → “If I showed you X, would that remind you?” → Give to W → Take away from W → “Did that refresh your memory?” → W testifies Rule 613: Prior Inconsistent Statements Trying to show lies not truth of matter asserted Can ALWAYS ask Q’s about any PIS on Cross. Can only PROVE the PIS with EE IF it is relevant to something other than impeaching W’s credibility. a) Do not have to show W the statement b) Extrinsic evidence of PIS is INADMISSIBLE unless W has to have opportunity to explain or deny on cross and redirect *Offered to prove that W may be lying, NOT to prove that prior statement is true (apply 403) Hitchcock Rule (common law): Extrinsic evidence of PIS cannot be admitted on a collateral matter (wastes time) 608 and 613 - ONLY applies to attacking sincerity - Extrinsic Evidence = anything outside of asking W question (document, other witnesses, recordings, etc.) - Collateral Matter = Relevant only because it impeaches a W - EE for Non-Collateral ONLY Applying the Hitchcock Rule 1) Is this evidence being used to prove inconsistent or contradictory statements ? - If yes, proceed - If no, Hitchcock Rule doesn't apply 2) Is this evidence of a fact of consequence or of a collateral matter? If it points to fact of consequence/non-collateral , can - Call a witness to testify - Introduce a physical copy of the evidence, and - Ask witness about it on the stand If it points to a collateral matter , can Ask witness about it on the stand Hitchcock does not apply to bias attacks! Only 608 attacks (character attacks) and 613 (prior inconsistent statements) 11

- Prior alias, fake social secutity numbers, date of birth - Lies to a probation officer - Lying on school application - Adultery Prior acts have to be related to dishonesty, lying, breaking promises, etc. NO EE in 608(b) - No extrinsic evidence! Can't introduce physical E or bring other witnesses to testify about specific instances - If, on cross, atty asks "isn't it true that you lied on your application?" and W says no, atty cannot then introduce extrinsic E to prove it - Hopefully, instead of no, W says "I don't remember." Then you can refresh recollection by showing him the extrinsic evidence Ex. W testifies for prosecution. On cross, defense can ask W questions about specific actions on the part of W that reflect on W’s propensity to lie (as long as attorney has a good faith basis for asking the question) - Telling the court “hey this guy has lied in the past so maybe you shouldn't trust what he says on the stand today” Ex. Defense calls Y, a character witness who will attack W’s character for truthfulness. Y can testify as to her opinion of W’s truthfulness, or W’s reputation for dishonesty. Y CANNOT, on direct, talk about specific instances. Prosecutor can cross examine Y and ask Y about W’s specific acts of honesty. OR the prosecution can now call X, a character witness for W to testify as to W’s truthful character (because it has been attacked), but P could not ask X for specific instances because this is on direct. *Attacks on character for truthfulness do not include bias/prejudice/interest* Rule 609: Impeachment by Evidence of Conviction of Crime *D must take stand*, *Convictions only* ALLOWS W’s credibility to be impeached with prior conviction AND conviction can be proven w/ EE if: 1) Crime of falsity ( 609(a)(2 )) a) Only crimes that have a deceptive statement or action as an element) (theft not a crime of falsity) 2) Crime punishable by a sentence of > 1 year (just a possibility, not the actual sentence) a) W other than accused = 403 balancing test b) Accused = PV outweighs UP (609(a)(1)(b)) 13

2) IF crime is > 10 years OLD, conviction is inadmissible unless PV substantially outweighs UP (609(b)) a) Any years spent in prison don’t count, 10 years starts at time of release from prison Rule 609 Flowchart *PV to prove dishonesty* NOT about propensity to commit crime 1) Is the conviction over 10 years old? (609(b)(1)) a) Yes = Inadmissible unless the PV substantially outweighs UP ( super reverse 403) b) No → 2 2) Is it a “crime of falsity” (falsity is required element of crime) (609(a)(2)) a) Yes = Admissible, NO 403 BALANCING TEST b) No = 3 3) Is the crime punishable by a sentence of over one year (felony)? (609(a)) a) No = Inadmissible b) Yes = 4 4) Is the witness the accused? (is D the one being asked q’s) a) Yes = Admit if PV outweighs UP? (mild reverse 403 ) b) No = Admit subject to a 403 unfair prejudice substantially outweighs PV (unfair prejudice to the prosecutor’s case, not the witness) PROBATIVE VALUE = only to how much the W is telling the truth or not - What kinda crime? Some crimes are more indicative of untruthfulness Switches of burden of proof 403: default = evidence comes in, its only not going to come in if the person objecting to it can show that the UP substantially outweighs the PV Mild reverse 403 : default = evidence not coming in UNLESS person trying to ADMIT the evidence can prove that the PV outweighs the UP Super reverse 403: default = evidence not coming in UNLESS person trying to ADMIT it can prove that PV substantially outweighs uP 5 factors for admissibility when conducting PV/UP analysis when D is witness 1) Impeachment value of prior crime (truth telling crime) 2) Elapsed time between prior crime and trial 3) Similarity between the prior crime and current crime (more similar = harder to use prior conviction bc more UP) (NAME of the crime, not the details) 4) Importance of D’s testimony 5) Centrality of D’s credibility 14

c) Ex. “2 years ago D was challenged to a fight in a bar and walked away → D has a propensity for peaceful conduct → D did not commit the assault he is noe on trial for d) Ex. “I know D and in my opinion he would never be violent” → D has a propensity for peaceful conduct → D did not commit the assault he is now on trial for 4) Character Evidence to prove something OTHER THAN character a) 401 and 404(b) Rule 404(a): Character to Prove Propensity for Conduct BARS evidence of a person's character for the sole purpose of proving that on a particular occasion the person acted in accordance with that character (for propensity purposes) (good OR bad character) - Applies in ALL cases, civil and criminal ALLOWS propensity for conduct evidence if: (apply 403) Rule 404(a)(2): Exceptions ONLY to criminal cases (NEVER ALLOW propensity for conduct in civil cases) - D can offer evidence of their own pertinent trait → P can offer rebuttal evidence - D can offer evidence of victims’ pertinent trait → P can rebut AND attack D’s character - Homicide case: P can offer evidence that victim was peaceful in CIC if D is arguing self defense - P can do whatever D does, D must go first Rule 405: How do we bring it in? (a): By reputation or opinion . when evidence of a person's character or character trait is admissible, it may be proved by t estimony about the person's reputation or by testimony in the form of an opinion . on Cross examination of the character witness, the court may allow an inquiry into relevant specific instances of the person's conduct (404(a) purposes) - No extrinsic evidence - Usually D calling 3rd party character witness - So if character evidence is allowed under 404(a) then 405(a) applies (b): By specific instances of conduc t. when a person's character or character trait is an essential element of a charge claim or defense, the character or trait may also be proved by relevant specific instances of the person's conduct. (character as element) - Extrinsic evidence also allowed 16

PROPENSITY FOR CONDUCT EXAMPLE: D calls CW who testifies about D’s good character using opinion or reputation evidence - “I’ve know D for 3 years, I believe he is an honest, law abiding individual” CW cannot testify about specific instances of conduct on the part of D - “For example, one day the foreman left the door to the office unlocked…” = OBJECTION P can then cross-examine CW about specific instances of conduct that tend to refute the opinion/reputation evidence that they gave (trying to test the CW’s expertise) - “Did you hear that last year D stole $150 from his grandmother’s wallet to buy drugs?” Door has been opened by D → P in rebuttal case can call CW to offer opinion/reputation evidence as to D’s bad character. - “I’ve lived D’s neighborhood for years and everyone knows he steals whatever he can” P cannot offer specific act evidence to prove D’s bad character - “Is it tur that he once stole $150 from his grandmother to buy drugs” = OBJECTION On cross, D can ask P’s CW about specific instances of conduct that tend to refute the opinion/reputation evidence that they gave (to “test the expertise” of the CW) - “You said D had a reputation for stealing things, have you heard that last year he found a person’s wallet and returned it?” Rule 404(a) Rule 608 Propensity exceptions apply only to accused and victim Evidence can be introduced by either party at any time after testimony, credibility cannot be bolstered until it is attacked Evidence not allowed unless D “opens the door” Propensity evidence allowed on any relevant trait Propensity evidence must be relevant to credibility (truthfulness/untruthfulness) Never in civil cases, exceptions for criminal No specific acts on direct, only cross (not meant to prove that they did violetn things but to challenge credibility or expertise of witness) No specific acts on direct, only cross (to prove expertise of witness, not whether those things did really happen…if you didnt know this how much do you really know the accused) Can't cross examine the defendant or victim about their violent only askinging character witness Specific acts of character witness AND fact witness Propensity cannot be proven by specific facts on direct, however a character witness may be cross-examined as to specific acts of Specific acts cannot be proven by extrinsic evidence*, however, the testifying witness or the character witnes s may be asked about 17

2) The distinctiveness of the situation producing the conduct 3) The regularity of the conduct (more = habit) (doesn’t have to be always just regular basis) Ex. - Doctor gives warnings and disclaimed before every surgery - Police officer always unloads his gun before putting it in locker - Police chemist performs same six tests each time - Mechanic follows the same procedure when changing oil (apply 403) Rule 412: Rape Shield Law Overrides Rule 404(a) BARS admission of evidence in any case involving sexual misconduct pertaining to - Specifics acts (“prior sexual behavior”) - Reputation/General Character (“sexual predisposition”) - Regardless of purpose - Civil AND Criminal - Only in trials involving alleged sexual misconduct ALLOWS in criminal case for - Alternate explanation of physical evidence (identity) - D may offer proof of prior sexual behavior/conduct between D and V to prove consent - P may offer for any purpose - Allows of sexual acts/reputation if excluding them would violate D's Constitutional rights ALLOWS in civil cases if: - Admissible only if PV substantially outweighs UP (Reverse 403 test) - Only allowed if V opened the door Rule 413/414: Prior Sexual Assaults/Child Molestation Overrides Rule 404(a) ALLOWS evidence that D committed a prior sexual assault/child molestation for any purpose - In any criminal case involving sexual assault/child molestation - Prior acts, not necessarily charges or convictions - ONLY specific instances, not reputation/opinion - Propensity here is probative not prejudicial (apply 403) Rule 415 - Same as 413/414, but for civil cases 19

Overrides Rule 404(a) (apply 403) Character Review: Propensity Evidence: Evidence of a person’s character or trait, offered to show that a person acted in conformance with that trait on a particular occasion is typically BARRED. - Generally admissible under 404 - Exceptions under 404(a) - Testimony about R/O can be used to prove Character (405) - Criminal Cases - D offers evidence of D’s pertinent trait or V’s pertinent trait - Ex. D’s peacefulness, V’s violent disposition - Limited by 412 - P can rebut D, or if D offers evidence about V, then P can say D has same trait - Homicide cases: P can offer evidence of V’s peacefulness if D is claiming self-defense - Civil and Criminal - Witness Impeachment - Propensity for Truthfulness = 608 - Specific instances of conduct to prove character (405) - Generally inadmissible EXCEPT: - Cross-examination of character witness - Character as essential element - Rule 412 - D proving alternative source of DNA or proving consent - Non-character purposes (404(b)) - Habit evidence under 406 is generally admissible HEARSAY HEARSAY = INADMISSIBLE NON-HEARSAY= ADMISSIBLE Rule 802: BARS hearsay unless it falls within an exception Rule 801(c) : Hearsay = out-of-court statement offered to prove the truth of the matter asserted in the statement Declarant = person who SAW event and MADE statement based on personal knowledge 20