Introducing
Your new presentation assistant.
Refine, enhance, and tailor your content, source relevant images, and edit visuals quicker than ever before.
Trending searches
-US district courts
-US bankruptcy & magistrate judges
-US courts of appeal
-US Court of Federal Claims
-district courts of Guam, the Virgin Islands and the Northern Mariana Islands
-SCOTUS
-federal administrative agency
-state courts
2 Mechanisms for Disputing Evidence @ Trial
1) by objections - registered before opponent introduces potentially inadmissible evidence
2) motion to strike - occurs after disputed evidence has already entered
"once trial counsel has made a specific & timely objection and judge rules definitely, issue is preserved for appeal"
INADMISSIBLE unless disputed
open dispute BAR
open dispute ADMIT
1) claim that was
2) disputed and it occurred during
3) "compromise negotiations" and party is offering statement
4) liability purposes
property damage (offer or promise of) payment does not fall in this rule of evidence
Motorist & Pedestrian Collision
“Golly, that accident was entirely my fault. Just give me a call. I have good insurance that will cover all of your medical bills.”
Wet Restaurant Floor Slip
“I have told the staff not to mop the floor like this when people are in the restaurant. Go ahead and put your wife in a private room and get the best possible medical care. We will take care of it.”
Truck Stop Clean-up
bad driving led to a huge spill at a fuel station; trucking company had already paid for some of the clean up cost --> implicitly acknowledging their employee’s negligence in ruptured fuel tank
-this rule applies in both civil & criminal trials
BARS:
ADMITS:
--needed for fairness from misleading statements
--used for perjury prosecutions
1) Δ displayed “an actual subjective expectation to negotiate a plea” and
2) that expectation was “reasonable given totality of the objective circumstances”
- PQ involvement (**really important)
- Δ’s counsel involvement
- evidence of a quid pro quo
- specificity of negotiation terms
- gov’t expressing interest in negotiation (prompting?)
- charges already filed
- absence of caveat statements
FBI Investigates Bribery & Wire Fraud
-Δ voluntarily met with FBI agent and claimed he wanted to cooperate & declined counsel; agent clearly informs Δ of benefits of cooperation and agent’s inability to control courts or prosecutor (no promises)
-Δ later meets w/ PQ and PQ makes general cooperation benefit statements & stresses Δ’s right to cooperate (or refusal); Δ later makes statement of guilt to other officials
LSD Distributor “Sting”
-Δ is indicted for LSD distribution; Δ contacts DEA and offers to help get someone else in return for “something to be down about his own charges”
agent informs Δ he is interested but needs to talk to the PQ
-when informed, PQ talks to Δ’s attorney; agent gets back to Δ about the proposed sting; no plea results, PQ wants to admit these conversations
-Δ subjectively believed that he was participating in a plea discussion and agent’s behavior made the belief reasonable
Joe’s Bar Drunk Driving Accident (different pleas)
-jury convicts Δ guilty of drunk driving in a criminal case (issue preclusion)
-Δ pleads guilty to drunk driving criminal charge (issue preclusion)
-Δ pleads nolo contendere to drunk driving criminal charge
Federal Money Laundering Negotiations (against Δ?)
-plea attempted & failed; Δ admits responsibility from transactions, PQ acknowledges Δ had “good intentions"" in said transactions
**subject to fairness from misleading
Talbot Plea w/ Apology (perjury exception)
-Δ pleas guilty to a lesser degree of assault; during plea hearing he also states “I did it, your honor. I stuck victim with my knife and I’m sorry.”
-Δ later takes stand & claims “I was nowhere near victim at the time of his unfortunate knifing.”
FBI Investigates Bribery & Wire Fraud (outside plea discussion)
-Δ voluntarily met w/ FBI and claimed he wanted to cooperate & declined counsel; agent clearly informs Δ of cooperation benefits & agent’s inability to control courts or PQ
-Δ later meets w/ PQ and PQ makes general cooperation benefit statements & stresses Δ’s right to cooperate (or refusal); Δ later makes statement of guilt to other officials
Insurance-Employed Witness
Δ sued for medmal; P brought in W’s testimony to validate P’s medical standard of care; Δ wants to introduce W’s bias by showing W works for P’s liability insurance
Kodak Film Scratches
-P received 105 rolls of Kodak (Δ) [scratched] film; Δ is sued and wants to introduce P’s specialized insurance (that protects from this type of loss) and counter P’s denial of “industry custom”
-Δ’s insurance is not considered liability insurance! (judges are tripping or asleep);ΠP would have overcome this rule either way
Can they take the stand?
-every person is presumed competent
-when state law controls the substantive claims, federal courts must apply these state rules of competence
Dodson’s Fix
W admitted he used “substantial” amounts of heroin for years (including a “fix” 2 days prior); after testimony, W was hospitalized, given Demerol, & still returned to testify again; at 2nd testimony, W was “acting high”; W was competent
Abused Children
Δ convicted w/ child abuse of 4 and 6 year old daughters; both girls able to answer matters such as their age, school grade, teacher, favorite subject, & consequences to wrongful acts; girls failed to answer some of the PQ’s questions but competent
Delusional Witness
Δ's co-conspirator, JP, found incompetent to stand trial (his own charge) & had a past of suffering from auditory delusions (mental institute time); PQ called JP to testify against Δ; JP is competent
appellate ct’s reasoning: as long as witness appreciates his duty to tell the truth & is minimally capable of observing, recalling, & communicating events, testimony should come in for whatever it is worth
Nosey Neighbor
Δ on trial for stabbing X; Louise (L) saw Δ walking into his home w/ a knife in his hand the night of the incident; L testifies b/c she has personal knowledge
Debra’s Mild Memory
Δ is charged w/ conspiracy to cocaine distribution; PQ brought Debra (D) to testify against Δ; she testified she had “some very substantial memory problems” & was “emotionally unstable”; at cross, she admits “I don’t remember anything very well… nothing at all specific in any of it”; D has personal knowledge
--memory misrecollection does not equal no personal knowledge
Fellow Inmate Testimony
Δ (prison inmate) suing 3 guards for beating him; Δ introduces his prison inmate “neighbor”; witness describes what he saw through the 1.5” crack in his cell door; after examining cell diagram, W lacks personal knowledge
-allows witnesses to take either oath or affirmation & provides no particular format needed
-no oath or affirmation = witness cannot take the stand
Interpreter must...
1) be qualified as an interpreter and
2) take an oath or affirmation, not to tell the truth but to “make a true translation"
Juror 606
Judge Plea Commentary
PQ put a co-conspirator (who had taken a plea) on the stand; witness gave conflicting testimony; Δ’s counsel tried to expose witness’s “lack of intent” by referring to plea hearing; before witness answered, trial judge interjected his comments; trial judge"testimony" impermissible
appellate court held that this state constituted impermissible testimony by the trial judge; error required reversal; judge did not attempt to give curative instructions
Law Clerk Experiment
plaintiff (P) suing grocery store for slip and fall; clerk visited grocery after heavy rain and witnessed what P had described as the cause for his fall; clerk consequently testified and in his testimony identifies himself as the judge’s clerk; clerk testimony impermissible
Juror to Witness
Δ indicted for re-entering the U.S. as a deported alien; Δ had previously been charged with violating the same statute 13 years earlier & acquitted; Δ put 2 jurors from previous case on the stand to testify that trial’s finding he was a citizen
-rationally based on witness's perception.
-helpful to clearly understanding the witness's testimony or to determining a fact in issue; and
-not based on specialized knowledge
-not limited to the scientific and technical but extends to all specialized knowledge
5 Steps of Refreshing
1) establish witness doesn't recall the answer to a question
2) describe writing W wishes to use & ask if writing would refresh
3) show W the writing
4) ask W if writing has refreshed their recollection or helped W remember
5) either before or during this process, “refreshing” attorney must give opposing counsel a copy of writing
-any document can be used as "writing"
-W’s testimony doesn't need to be exactly the same as information contained in the writing
to “qualify” writing, witness must state...
1) they do not remember the answer to the question being asked; and
2) seeing the writing will “refresh her recollection”
1) can be invoked by either party or by judge
2) gives the judge no discretion (almost always excluded)
3) does NOT apply to...
INCLUDES: writings & recorded statements
DOESN'T INCLUDE: oral conversations, photographs, & physical objects
608(a) reputation or opinion
-allows general reputation or opinion evidence of a character
-admits testimony of general truthfulness on those individuals that testify at trial only after that character has been attacked
-only applies to witnesses (must take the stand)
-not an attack to show bias
608(b) specific instances of conduct
-party may ask about "specific instances of untruthful conduct" on cross to suggest W is untruthful
-judge has discretion to limit to prevent/limit this questioning
-proof of the instances by extrinsic evidence is barred
(if W lies about untruthful instances, attorney is out of luck)
-truthful instances admitted if truthfulness has been "challenged"
truthfulness; not generosity, messiness
EXCEPTION: Rule 609 criminal convictions
ADMITS: pending appeal of prior conviction &/OR evidence
BARS: pardons, annulments, & certifications of rehab
1) party seeking to use conviction must give adverse party reasonable written notice
2) judge must find specific facts & circumstances supporting conviction’s probative value
3) judge must determine probative value of conviction “substantially outweighs its prejudicial effect”
Prior Conviction Probative Value Factors
1) impeachment value of the former crime (truth telling crime)
2) timing of the prior conviction and subsequent criminality
3) similarity b/t prior crime & charged crime
4) importance of Δ’s testimony
5) centrality of credibility
When is character an element?
Do you go to church every Sunday?
Are you a member of Δ’s temple?
extrinsic evidence: any evidence other than current W's testimony on stand
collateral matter: matter relevant to case solely b/c it impeaches W
non-collateral matter proves a fact of consequence besides impeachment
(proves a fact in consequence and impeaches W? it's non-collateral )
-prohibits use of “character” to suggest that that person is acting in accordance to that character
in criminal cases
-bars admission of evidence to prove a person’s personality trait only if used for a propensity purpose (implying that other purposes okay)
-often allows evidence for purpose other than to prove character & propensity to act in a particular way in criminal & civil cases
-requires PQ to provide reasonable notice in criminal trials
-no bar if character is an element
-belief motive: Δ’s commitment to a white supremacist agenda, PQ successfully argued, established motive for their robbery & other crimes (survived 403!)
-financial motive: Δ’s immense IRS debt to show why he robbed the bank
-may offer evidence that Δ enjoyed access to a protected place or special tools on another occasion
"other occasion” may consist of a prior crime or bad act
Creepy Motel 6
-motel owner charged w/ sexual assault of motel guest; Δ denied access to rooms & claimed door was locked from the inside; PQ wants to offer evidence of Δ's past pled guilty to theft of a motel guest (victim’s room also locked in that instance)
-admits use of prior acts to prove intect
SCRUTINIZE
-despite propensity inferences, courts have well established use of intent evidence in drug cases
Ungrateful Offspring
-son (Δ) charged w/ vehicular homicide of his father (F); PQ offers Δ’s wife’s testimony of her witnessing Δ put arsenic in F’s bourbon; showing intent not accident
Re-dealing Dope Dude
-Δ arrested while in possession of drugs w/ intent to sell; PQ offers evidence past narcotics sales Δ
-allows evidence that shows a common plan or scheme
-evidence of past actions show a “repeat” or resemble a plan
Mortgage Pyro
-homeowner (Δ) w/ financial burden is charged insurance fraud; previous home fire resembling fire pattern is admitted to show Δ had previously tried to do the same
-without knowledge of "_____", Δ would not have been able to have the opportunity to commit the act
-only slight difference b/t this & opportunity (“merely semantic”)
Shoplifting Sally
-Δ charged w/ trespass; manager (M) caught Δ shoplifting & banned Δ; upon returning, Δ immediately arrested; M now testistifies why arrest was immediate
-admits evidence of Δ’s other bad acts b/c participants in those acts were able to identify Δ & link him to the charged crime
1) identity must be contested
2) identity must have strong similarities b/t both charges or other crimes (like 403 balancing test)
Side Hustle & Side Chick
-prostitutes can testify on how they know hustling cop Δ (foundation/personal knowledge) to then identify him at the scene of the crime currently at trial admitted
-Δ charged w/ homicide of a patient through epinephrine overdose; PQ offers evidence that nurse previously tried to kill her husband through potassium overdose; failed prong 1 and 2 (different time & drug) barred
Pawnshop Checks
police officer (PO) routinely checks serial numbers of pawnshop firearms for “stolen” firearms; PO identified shotgun as stolen; PO tags it & later firearm owner (Δ) later calls the police station to claim gun
-Δ gets charged w/ convicted felon in possession; PQ offers PO to testify how he found out about the (stolen) possession
(a) allows W to offer their opinion of a person THEN
on cross, court may allow counsel to ask about specific instances of the person's conduct
(b) explicitly allows that specific instances of conduct are admissible to prove character as an element of a crime, claim or defense
1) an out of court
2) statement
3) offered to prove the truth of the matter asserted
statements are NOT hearsay
Adoption by Silence Weston Smith test
**presence of government authorities affects interpretation of a
criminal Δ’s silence**
-a reference letter from a 3rd party
requesting a reference letter from a 3rd party is authorization for the 3rd party (reference person) to speak on your behalf about your own credentials and capabilities
-it does not matter if that person got to see the statements before “endorsing” (submitting letter)
Out-of-court State is Admissible Against a Party If It Was…
1) made by a co-conspirator;
2) during the course of the conspiracy; AND
3) in furtherance of the conspiracy
1) exception applies only to description or explanation of an event,
2) declarant must make it while perceiving the event or “immediately after” the event
Stranded Hit & Run
Granny Collision Smackdown
1) declarant must speak while excited by a startling event
2) must “relate to” the startling event
1) statement must be made for medical diagnosis or treatment [by a non-doctor]
2) statements must be reasonably pertinent to diagnosis or treatment
3) statements must fit within one of the rule’s categories:
**doctor to patient professional statements do not enter under this exception b/c of doctor-patient privilege
1) a record;
2) witness made or adopted;
3) where witness once had a personal knowledge;
4) adopted the record when that knowledge was fresh ;
5) testifies that information was then and is now accurate; and
1) exception applies to any “record”
2) information must have been recorded by…
3) organization must have made the record in the course of a regularly conducted business activity & organization must have a regular practice of keeping such records
4) a qualified witness must introduce the record into evidence (very broadly interpreted)
Who is a business?
any “business, organization, occupation, or calling, whether or not for profit”
Big Caveat
-some regular business records lack the indicia of reliability
(ex: routine safety checks, b/c self-serving in injury liability suits)
What is a record?
-any “memorandum, report, or data compilation”
-further includes an “act, event, condition, opinion, or diagnosis"
INCLUDES:
EXCLUDES:
1) applies only to matters that the agency has a duty to report
2) excludes all record of observations made by law-enforcement personnel when offered in a criminal case
(think every 10th car crossing border)
1) the timeliness of the investigation;
2) the special skill or experience of the official conducting the investigation;
3) whether a hearing was held by the public agency prior to the report being made; and
4) whether the public agency's motivation is suspect
example: whether the report was made in anticipation of litigation by a public agency that has a stake in the litigation)
Wrongdoing Caveat
Examples
Examples
(think journalist-source privilege or simply not recognized in Jx)
(think employer suit)
physically/mentally illness must be sufficiently disabling that…
PROOF REQUIRED:
2 Additional Obligations of “Absence”
1) party must use any “reasonable means” in addition to the subpoena to persuade the declarant to come to trial
2) proponent must use reasonable means to take the declarant’s deposition if the declarant will not attend the trial
PROOF REQUIRED: showing effort documentations
Examples
-party cannot find declarant after diligent search
-declarant refuses to come to court & is outside court’s Jx (court lacks subpoena power)
1) declarant is unavailable
2) prior statement was given at a trial, hearing, or deposition
3) opponent had opportunity to develop [predessor's] testimony
4) opponent had similar motive to develop testimony
1) declarant is unavailable unavailable
2) only applies in homicide trials and civil proceedings
3) declarant must believe that death is imminent when statement is made
4) statement's contains cause or circumstances of declarant’s death
1) declarant unavailable
2) statement was against interest
3 ways a statement is against interest
a) contrary to party's proprietary or pecuniary interest
b) invalidate party's claim against another person
c) declarant is exposed to civil or criminal liability
3) at the time in was made
4) in criminal cases, corroboration for statements against penal interest
1) declarant is unavailable
2) other party engaged or acquiesced in wrongdoing
3) intended to cause unavailability
4) wrongdoing caused the unavailability
-persuasion & begging aren't wrongdoing
statement that…
-is made under circumstances which would lead an objective witness reasonably to believe that statement would be available for use at a later trial
-has a primary purpose of creating an out-of-court substitute for trial testimony
-is to establish or prove past events potentially relevant to later criminal prosecution
statement that…
-does not bear against the accused in the same way that a crime report does
statement that...
-is made to law enforcement outside traditional interrogation →(use objective primary purpose test)
Testimony Supporting Factors Clark
1) whether the interrogator was a law enforcement official
2) absence of “ongoing emergency”
3) situation’s formality
4) whether similar evidence is regularly admitted evidence “at the time of founding”
5) declarant's age
6) absence of other indications as "primary purpose of conversation was to gather evidence for prosecution”
5 Influential Factors in Rule 403 Decision
1) extent to which evidence will arouse emotions or irrational prejudices of jurors
2) extent to which jury might overvalue this evidence
3) strength of connection b/t the evidence and the elements of the case
4) whether there are less prejudicial, alternative means advocate can use
5) whether it's possible to reduce prejudice/harm from introducing evidence