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RELEVANCY Def: If the piece of evidence offered tends to prove or disprove a fact that is of consequence to the case; 2 part analysis 1. Tend to prove or disprove²logical link between fact and evidence and legal issue 2. Fact that the party is trying to prove must be of consequence to the outcome of the case. Rule 401: Def²³Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.´ Rule 403: Exclusion of Relevant Evidence on grounds of prejudice, confusion, or waste of time²Relevant evidence can still be excluded if: 1. Danger of unfair prejudice: an undue tendency to suggest decision on an improper basis, commonly, though no necessarily an emotional one. 2. Confusion of the issue 3. Misleading to the jury 4. Undue delay 5. Waste of time 6. Needless presentation of cumulative evidence Court has discretion on an ad hoc case by case basis to decide exclusion FRE Relevancy Analysis: 1. Does evidence get us ³one step´ closer to a decision? 2. Are there 1-6 exclusions? Direct and Circumstantial Evidence Circumstantial²Evidence which requires the fact finder to draw inferences from the evidence in order to conclude that some consequential fact exists -Jury must weigh credibility, number of inferences that must be drawn to get from the testimony to the conclusion that D shot, and strength of the inferences. Direct²Evidence that proves a consequential fact directly -The eye witness that testifies that ³I saw D shoot the victim´; if the jury believes the witness, then they will have to find D shot victim -Credibility and ability of the witness/evidence in direct evidence are what the jury must weigh HEARSAY Rule 801: Definition -Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth to the matter asserted. Hearsay Analysis²if there are multiple statements, do analysis for each one 1. Is there an out-of-court statement? -3 forms: (1) Oral, (2) written, (3) conduct intended as an assertion 2. What is the evidence being offered to prove? 3. Does the probative value of this statement depend on the credibility of the declarant? -If we don¶t care if the declarant is lying or we don¶t care about his credibility, then it¶s not hearsay -Hearsay Analysis 1. Is there an OOC Statement?²includes any human statement except those made in the courtroom from the proceeding in question from the witness on the stand.
2. What does the statement assert?²look at declarant¶s intent when making the statement; Statements that make assertions: ³That car was going too fast!´ ³He¶s driving like a bat out of hell!´ ³Whoa! Where¶s he rushing to?´; Statements that DO NOT make assertions: ³Did you see Janet¶s breast at halftime?´ ³Tackle that man!´; Generally, command and questions for info are not meant to assert anything. 3. Are we using the statement to prove that what it asserts is true?crucial question: What is the statement being used to prove? If evidence is being used to prove what the declarant meant it to say, then it is hearsay. 4. Even if the statement is being offered to prove the truth of the matter asserted, is it admissible under some exception to the hearsay rule? -Simple Hearsay Test: If the fact that the statement was made is relevant, even if the facts in the statement are not relevant, then the statement is NOT HEARSAY. 1. G/R²The hearsay rule is NOT APPLICABLE, under any definition of hearsay, where evidence of the OOC words or actions is offered only to show that the statement was made or that it had a certain effect on a listener or observer, rather than to prove the truth of the facts asserted. -Hearsay problem only arises when you have a witness testifying to an out of court statement and the probative value of this statement depends on the credibility of the declarant/the person who made the out of court statement. General Non-Hearsay -Knowledge of the Hearer: does the probative value of the statement depend on its effect on the hearer and not on the truth of the statement -Circumstantial Evidence of State of Mind: from the statement you infer the state of mind; if it is direct evidence as to state of mind then it is hearsay; e.g. father saying son is a douche offered to prove he intended to disinherit son is circumstantial evidence of father¶s state of mind. -Verbal Act of Independent Legal Significance/Utterances as Operative Fact: Independent of the truth or falsity of the statement, the fact that the statement was made has independent legal significance, and it is admissible; credibility of declarant when they said words is irrelevant, e.g. ³I accept,´ making a promise, slander, libel, marriage vows. Common Law v. FRE -Explicit Verbal Assertion: E.g. To prove that it is raining: W testifies that D said ³its raining outside.´ = Hearsay -Non-Verbal Conduct Intended as an Assertion: E.g. the sign or gesture is introduced to show that someone intended to communicate something; D make gesture of opening umbrella-same as verbal conduct; Hearsay under both CL and FRE -Non-Verbal Conduct not Intended as an Assertion: E.g. W testifies that I knew it was raining b/c I saw D open his umbrella as he stepped out; CL says hearsay, but FRE says not hearsay because nothing was asserted. -Non-Assertive Verbal Conduct: E.g. W testifies that before D left, he asks, ³Does anyone have an umbrella´; D did not mean to assert that it was raining, but we can infer that it was raining b/c implicit in his statement is his belief
that it was raining; Hearsay under CL, but FRE says its not b/c nothing asserted. -Verbal Assertion used Inferentially: E.g. to prove its raining W testifies that D before leaving says ³dang I forgot my umbrella´; statement being offered to prove not that D forgot his umbrella, but that it is inferentially raining; Hearsay under CL, but not under FRE. Hearsay w/in Hearsay²analyze each statement separately -E.g. W testifies that G told him that D told G that X shot V -Multiple hearsay is acceptable if you have an exception for each layer of hearsay Hearsay Exceptions -Unavailability: Established in 5 ways, PRIMA 1. Privilege²pleading the 5th 2. Refuses to testify 3. Ill, infirm, DEAD 4. Memory²declarant testifies to a lack of memory 5. Absent²proponent of the witness cannot get the declarant to appear BAD SPLITS PEPPI F/DIFF²requires a showing that Declarant is unavailable to testify -Business Records²Rule 803(b): if record is good enough for business to rely on, then it should be admissible as evidence -Requirements for a record to qualify: 1. If it was the regular practice of the business to keep such records 2. Record must be made in the regular course of business 3. Record must be made at or around the time of the event 4. Record must be made by an employee with personal knowledge of the event or made upon information provided by someone with a business duty to report the information -Admission (Statement) by Party Opponent²Rule 801(d)(2) -Most important exception; Always look to this one first -A party may not object on hearsay grounds when his opponent offers any statement made by that party; e.g. P may offer any statement made by D and vice versa -Limited Admissibility²a statement made by a party opponent is admissible only as evidence against the party who made the statement; important for multi-party litigation -Adoptive Admissions²a statement of which the party has manifested an adoption of belief in its truth -Failure to deny is an implied admission -Implied admission by silence is hearsay under CL, but not under FRE -Authorized Admission²A statement by a person authorized by the party to make a statement. 1. Must concern a subject within the scope of the agency relationship 2. Must have been made while that relationship existed -Vicarious Admission²statement made by party¶s agent or employee; Requirements: (1) must concern a matter within the scope of agent¶s employment, (2) statement must be made while the speaker is still an agent or employee
-Co-Conspirator Admission; Requirements: (1) declarant and party against whom it is admitted were co-conspirators, (2) statement was made during the conspiracy, (3) statement was made in furtherance of the conspiracy -Dying Declarations²Rule 804(b)(2) -Requires a showing that D is unavailable to testify -FRE allows dying declarations in all civil and criminal cases -Requirements: (1) Declarant must be unavailable Rule 804(a)(1), (2) declarant must believe that death is imminent (doesn¶t have to actually die, just believe they are going to die), (3) statement must concern the causes or circumstances that declarant believes to be his impending death, (4) Does the D have personal knowledge of the facts asserted? -Spontaneous Statements²Rule 803(2) Excited Utterance/Rule 803(1) Present Sense Impression -Statement made before D has had time to think about what he is going to say 1. Excited Utterance²Statements made while declarant is under the stress caused by a startling even or condition and the statement must relate to the starling event or condition; must be made before the declarant had time to think about the statement; 3 part analysis: (1) Was there an exciting event or condition? (2) Was the D under stress of the excitement caused by exciting even or condition? (3) Does the statement relate to the exciting even or condition? 2. Present Sense Impression²Statements that explain or describe an event or condition and are made while the declarant is perceiving the event or immediately after; spontaneity of the statement promotes trustworthiness, person who heard the statement can verify its truth; 2 part analysis: -Public Records²Rule 803(8) -Records setting forth the public agency¶s own activities -Record setting fort the areas which the agency is required by law to observe and report -Reports which set forth factual findings which result from authorized governmental investigations -Learned Treatise²Rule 803(18) -Requirements: (1) May only be used to the extent that they are called to the attention of the expert on cross or are relied upon by expert in direct, (2) Treatise must be established as reliable authority by witness, judicial notice. -Statements admitted under this exception can only be read into the record not admitted as evidence -Interest, Declaration Against²Rule 804(b)(3) -People normally do not say things adverse to their own interests unless they are true. -Requirements: (1) D must be unavailable, (2) under common law, statement must be against civil and pecuniary interest only, FRE creates declaration against penal interest in addition to civil or pecuniary interest (Statement against penal interest may be offered to exculpate an accused only when corroborating circumstances clearly indicate the trustworthiness of the statement).
-Testimony, Former²Rule 804(b)(2) -Requires a showing be made that D is unavailable to testify -When the out of court statement that is being offered was itself testimony in another hearing. -Requirements: (A) D must be unavailable (B) Party against whom the testimony is now being offered must have had the opportunity and the motive to develop the testimony in the former trial or hearing. -Analysis: (1) Who is the former testimony now being offered against? Is it fair to use testimony against this party? (2) Did the party against whom the statement is being offered have the opportunity to develop the testimony in the first hearing? (3) If yes to 2, then did the party against whom it is now being offered have similar motive to develop the testimony in the second trial as it did in the first trial? -FRE²in civil cases, former testimony may be admissible if a predecessor had motive as opportunity to cross examine -Statement of Mind of Condition²Rule 803(3)/Statements for purposes of medical diagnosis or treatment²Rule 803(4) -Statements relating to D¶s then existing mental, emotional, or physical exception -Exception includes a then existing intent to do something in the future if offered to prove declarant actually carried through with his plans. Statements of memory or belief may not be used to prove the fact remembered or believed, ³X poisoned me.´ (Caveat: With wills statement can be reverse looking). -Statement for Purpose of Medical Diagnosis or Treatment: (1) Can be used to admit issues of past medical history, (2) statement must be made for the purpose of getting treatment or diagnosis, (3) statement of cause of pain is admissible but must be related to the condition; 3 part analysis: (1) Was the statement made for the purpose of seeking medical diagnosis or treatment? (2) Does the statement describe medical history, or past or present symptoms, pain or sensations, or the cause or external source of the injury? (3) Was the statement reasonably pertinent to obtaining medical diagnosis or treatment? -Past Recollection Recorded²Rule 803(5) -Occurs when despite your best efforts to refresh her memory the witness still can¶t recall what occurred -Requirements: (1) Eyewitness must testify that he at one time had personal knowledge of what occurred, (2) eyewitness must testify that he has insufficient recollection to testify fully and accurately about an event, (3) must testify that he made a statement of the event when it was fresh in his mind, (3) statement/letter accurately reflected her personal knowledge at the time, (4) Limitation: a letter which qualifies as a past recollection recorded may not be introduced as an exhibit. -Equivalent²Residual Catchall²Rule 807 -Even if the hearsay doesn¶t fall within one of the established exceptions it will be admissible if it possesses certain qualities of trustworthiness. -Requirements: (1) Must not be covered by rule 803 or 804, (2) It must be trustworthy, (3) it must be offered as evidence of a
material fact, (4) It must be more probative on point for which the proponent can procure through reasonable efforts, (5) Admission of evidence must serve the interests of the public, (6) Opposing party must be provided with notice of the proponent¶s intended use of the statement before trial. -Prior Inconsistent Statements²Rule 613, 801(d)(1)(B): Statement made that are now inconsistent with trial testimony may be used to impeach the witness; You are not asking the jury to believe that hearsay statement is true, only that the statement was made and it is different than what they are saying now; Limiting instructions will probably be needed; Use of extrinsic evidence to show that witness made a prior inconsistent statement under FRE: (1) Witness must be given an opportunity to admit or deny or explain the statement, and (2) opposing counsel must have an opportunity to question the witness about the statement. -Prior Consistent Statements²not admissible -Identification -Statements of prior identification of a person made after perceiving the person is defined as non hearsay by FRE -Forfeiture²Rule 804(b)(6) -Requires a showing be made that D is unavailable to testify -D who kills a key witness loses the right to object to that dead witness¶ hearsay statements CHARACTER EVIDENCE -3 step analysis: What, May, How 1. What is the evidence being offered to prove? -Why does a party want to admit character evidence? a. Character evidence may go to an element of the claim or defense; Rule 405(b) b. Circumstantial evidence you want to show that D conduct was in conformity with character (violent personality, dishonest, etc.); trying to get the jury to infer that the actions of D were in conformity with character; generally NOT admissible because probative value v. prejudicial effect mitigates admission; Rule 404(a) 2. May character evidence be used to prove this? -Character as an element²character evidence is admissible in this instance 3. If so, how may character evidence be introduced? -Element: a. Reputation²tends to show that the person¶s reputation is in accordance with character b. Opinion²³I¶ve known D for 20 years and he is a violent person.´ c. Specific instances of conduct²proof that D lied on many occasions to prove dishonest character. -Conduct in Conformity with character on particular occasion EXCEPTIONS to general rule a. Rule 404(a)(1)²D may introduce evidence of a pertinent trait of his own character to prove innocence; restricted to the crime at issue: -Rule 405(a) How to prove he acted in conformance with character: Reputation and opinion testimony only on specific acts. -Rule 404(a) If D puts evidence of character/reputation in the prosecution may rebut by: Calling its own reputation and
opinion witnesses Rule 405(b); Cross-examine D¶s reputation witness b. Rule 404(a)(2)² If D¶s defense is that victim was aggressor D may admit evidence of victim¶s violent character as evidence that the victim acted in conformity with character on this occasion -Rule 405(b) D may only use reputation and opinion evidence; Caveat: rape shield rules²alleged victim¶s sexual behavior and sexual reputation generally no admissible unless: Rule 412(a), 412(b)(1)(A), 412(b)(1)(B), 412(b)(1)(C). -Rule 404(a)(2) In Homicide cases only, prosecution can call reputation and opinion witnesses to victim¶s peaceable character b/c victim is not there to tell his side of the story. -Rule 404(a)(1) Prosecution can rebut by offering reputation and opinion evidence of D¶s bad character but no specific instances of conduct. c. Rule 412-15 Evidence of similar crimes in sexual assault cases, child molestation, and civil cases in which damages are based on D¶s sexual assault or child molestation -Other Crimes Evidence²Rule 404(b): as long as the proponent can demonstrate that the evidence is relevant other than to prove conduct in conformance w/character is not rendered inadmissible. -Other crimes Evidence admissible if goes to show: MIAMI COP 1. Motive²e.g. killing of a witness 2. Identity²when identity of the person who committed the crime is at issue: other similar crimes, distinctive method of committing the crime. 3. Absence of Mistake²Specific acts evidence introduced to show that there was not mistake on D¶s part 4. Intent²Evidence of other bad act is admissible to prove D in fact possessed criminal intent 5. Common plan or scheme²Not meant to show that D is the type to commit this crime rather meant to show crime was part of a larger scheme 6. Opportunity²capacity to commit the crime; has disabled alarms before 7. Preparation²Introducing evidence that D stole morphine to show preparation to kill elderly residents with it -Habit²Rule 406 -Habit evidence is admissible to show that the person acted in conformity with the habit or routine practice -Habit: regular response to a repeated specific situation; character refers to generalized trait -Test to see if its habit: Is it specific enough? Does conduct occur with regularity? Person must have engaged in the conduct a sufficient number of times with sufficient regularity so that we can say the person does it invariably -Business habit²custom and routine practice OBJECTIONS -Rule 104 Not the judge¶s job to stop introduction of evidence, just an empire -Rule 103 Timeliness and Specificity Requirements -Rule 103(a)(1) Timeliness²opponent must object in a timely fashion at first reasonable opportunity -Rule 103(a)(1) Specificity²must state a ground for objecting; preserve for appeal: party must show on appeal that it did everything that it could to inform the court of the evidence rule in question and of its application to the evidence in question.
-Motions In Limine²a means by which parties can anticipate evidence issues that are bound to arise and have them dealt with CONFONTATION CLAUSE 6th Amendment -Applies in all criminal cases²no confrontation clause problem if hearsay declarant testifies at trial and can be cross examined about his own hearsay statements. -If hearsay declarant is unavailable to testify at trial introduction of hearsay is admissible only if reliable and reliability is established in one of two ways: (1) is statement part of a firmly rooted hearsay exception, or (2) does hearsay statement have particularized guarantees of reliability? -If declarant is available but is not produced law is more problematic WITNESSES -Competency²two issues which come to bear on a witness¶ competency 1. Personal Attributes: Things which affect a witness¶ ability to see, hear, relate, and to remember; none of these things under the FRE make the witness incompetent, although they can be used against the witness to weaken the strength of their testimony; in some jurisdictions witness must have capacity. -Must have personal knowledge unless you are an expert -adjudication of insanity does not make a witness incompetent to testify 2. Status: A presiding judge in the case may not be called as a witness; Juror cannot testify in a case in which the juror is sitting -Examination: 1. Direct: Leading question²a question which suggests the answer the witness is supposed to give. -If the examiner can determine that the questioner desires one answer over the other than it is leading. -Generally not allowed in direct unless they refer to preliminary matters not in dispute (name, address, etc.); sometimes you can lead to jog memory or when witness is having difficulty in testifying. -Adverse party non-friendly witness may use leading questions in direct then b/c they are not susceptible to being misled. 2. Cross: Leading questions are usually acceptable except when the party is friendly to the cross-examiner. -Witness usually impeached on cross examination -Cross limited to matters raised on direct examination; new subject areas are generally off limits, but discretion to limit is up to judge 3. Present Recollection Refreshed: you may use anything to get the witness to the point where they say ³Ah yes, now I remember.´ -Usually you do this through a document, but there is a danger in this b/c the witness who examines a document may just be reading what¶s on the document and using that -Opponent is allowed to inspect the document 4. Past Recollection Recorded: Occurs when despite your best efforts to refresh her memory the witness still can¶t recall what occurred; Requirements: -Eyewitness must testify that he at one time had personal knowledge of what occurred -Eyewitness must testify that he has insufficient recollection to testify fully and accurately about the event -Must testify that he made a statement of the event when it was fresh in his mind -Statement/letter accurately reflected her personal knowledge at the time
-Limitation: A letter which qualifies as a past recollection recorded may not be introduced as an exhibit. -Impeachment: 1. Rule 607Any party may attack credibility of a witness. 2. 5 Methods for attacking a witness¶ credibility; BICCC A. Bias²no rule; Witness may be impeached by showing that he has some reason independent of the merits of the case to favor one side over the other; sometimes there is a foundational requirementFRE does not have a foundational requirement B. Inconsistent Statements²Rule 613, 801(d)(1)(A), 806; Statements made that are now inconsistent with trial testimony may be used to impeach the witness; you may use hearsay to impeach b/c it detracts from the testimony; Cannot use impeachment to get otherwise inadmissible evidence in front of the jury; 2 requirements for inconsistent statements to qualify as non hearsay and be used for truth of statement and impeachment (1) Witness must be available for cross examination about prior inconsistent statement, (2) Prior inconsistent statement must have been made (a) under oath, (b) under threat of perjury, (c) must have been made at previous hearing, proceeding, or deposition C. Capacity²no rule; show defects on the witness¶ perceptual or testimonial capacity; insanity, psychological abnormality, drunk; may use extrinsic evidence, not restricted to questions about incapacity you may use other evidence to show incapacity D. Character²Rule 404(a)(3), 608, 609²character evidence may be used to impeach a witness in 3 ways: (1) Opinion or reputation testimony: proponent of witness may not bring opinion or reputations testimony until the witness¶ character has been attacked, (2) Evidence of specific acts of the witness that did not result in conviction, (3) Show witness has been convicted of certain crimes E. Contradiction²no rule²when will the impeaching party be allowed to introduce extrinsic evidence for the purpose of contradicting some aspect of the witness¶ testimony: Extrinsic evidence will not be permitted for the purpose of showing contradiction if the contradiction goes to a collateral matter -Bolstering and Rehabilitation 1. Bolstering²building up the credibility of the witness before they are attacked; G/R unless your witness has been attacked you may not bolster witness¶ credibility by introducing evidence of their truthful character. 2. Rehabilitation²Simple rule: the rehabilitation technique that you use must match the impeachment technique that was used; e.g. if your witness is attacked for showing a lack of capacity then try to show capacity, if shown to be biases try to show that witness is no longer biased. WRITINGS -Authentication: Rule 901 -G/R: One who seeks to introduce evidence of a particular fact, or item of proof, must generally give evidence of those circumstances which made this factor item relevant to some issue in the case. -Standard of admissibility is simply enough evidence for a reasonable jury to find that the thing is what it is purported to be -Documents²personal knowledge easiest way to authenticate; Circumstantial evidence: (1) Identifying handwriting of author² expert, lay, or jury comparison of writings, (2) Ancient documents²doubtful that someone forged something and then brought it out later for use in trial; document must be 20+ years
old, free of suspicion, found where usual documents are kept, (3) Voice Authenticating²personal knowledge, (4) Telephone conversation²when authenticating witness is the one who place the call, you can identify the other caller if you properly dialed and the person identifies themselves, (5) Self Authentication² CONTAC: Commercial paper, Official publication, Newspapers and periodicals, Trade inscriptions, Acknowledged documents, Certain public records, (6) Reply Letter Authentication²letter in reply has enough information that it is clear that it is in response to another letter. -Parties should stipulate to the authenticity before trial -Best Evidence Rule/Contents of Writings: Rule 1001-1008 -G/R: Requires only that when a party seeks to prove the contents of the writing, recording, or photograph the party must use the original. -Analysis: 1. What is meant by proving content? a. Where the legal rights or obligations arise directly from the writing, recording, or photo; or contracts, lease, copyright; does not apply where the writing is only evidence of a fact, e.g. receipts showing payment, transcripts. b. Where a party is relying on the writing to prove something in the writing; ³I know I paid b/c my records show´ best evidence will apply 2. What qualifies as a writing? 3. What qualifies as an original? 4. What are the exceptions? a. Unless a genuine question is raised about the authenticity of the original, a duplicate can be used in place of the original b. Public records c. Summaries of voluminous records²other party should get notice of use of summary d. If original is not available through no fault of the proponent any evidence of its contents may be used; Unavailability: lost or destroyed. e. Contents of the writing don¶t go to the issue of writing OPINION TESTIMONY/EXPERTISE AND EXPERTS -Lay Witness: Called b/c they have personal knowledge of the fact of the case Rule 701 1. CL²Lay witness not allowed to give opinion testimony 2. FRE²Lay witnesses may give testimony if (1) Opinion must be rationally based on the witness¶ perception, (2) having the lay witness testify in the form of an opinion must be helpful to clear understanding of the witness¶ testimony or to a clear determination of a fact in issue. 3. Lay testimony may not be based on technical, scientific, or other specialized knowledge, which forms the basis of expert testimony. -Expert Witnesses Rule 702 1. Qualification²Before an expert can give an opinion she must be shown to possess the specialized knowledge for which she is testifying; qualified by ³knowledge, skill, experience, training, or education.´ Supp. Pg. 120; Offer testimony as to expert¶s education, experience, etc. opposing party may cross examine on qualifications; decided by the court as preliminary matter generally. 2. Subject matter of Expert testimony²which areas are appropriate for expert testimony: FRE has a broad standard, allow
expert testimony as to scientific, technical or other specialized knowledge; Admissibility of all scientific evidence is governed by Rule 702 i.e. must be related to an issue in the case. 3. Judge¶s Role as Gatekeeper²Must only admit scientific testimony which is reliable; qualification of expert witness is 104(a) job of the judge using Daubert Factors/Threshold test: (1) Whether the theory or technique has been or can be tested, (2) Whether the theory or technique has bee subjected to peer review and publication, (3) The known or potential rate of error and whether there exists a means for controlling its operation, (4) The extent to which the theory or technique has been accepted, (5) Is there too great of an analytical gap between conclusion and data upon which the expert relied, (6) Is the evidence reliable and relevant? General acceptance in the Frye Test is now just a factor; Rule 702 Reliability Test: (1) Testimony is based upon sufficient fact or data, (2) Testimony is the product of reliable principles and methods, and (3) Witness has applied the principles and methods reliability to the fact of the case. 4. Basis of Expert¶s Opinion²based on Judge¶s discretion the expert need not give basis for opinion first, may give opinion then explain basis; personal knowledge of facts in the case; hypothetical questions base on the assumed truth of facts proved in court and presented in the question; Facts perceived by or made known to the expert at or before the hearing: facts upon which the expert based his opinion need not actually be admissible in evidence so long as they are a type reasonably relied upon as experts in the same field, and whether or not it can be disclosed to the jury depends on whether the probative value outweighs its prejudicial effect -Ultimate Issue 1. Not a valid objection in Federal Court that an answer goes to an ultimate issue. 2. Lay and Expert witness testimony is only admissible if it is helpful 3. Still valid only under Hinckley rule²expert witnesses may not testify as to whether the individual had the mental state that constitutes an element of the crime charged PRIVILEGES -Privileges controlled by CL using experience and common sense; State substantive law governs when in diversity cases. -Analysis 1. Is there a privileged relationship? a. Is there a relationship which is beneficial and worth promoting by society 2. Was the communication germane to the relationship? 3. Was the communication confidential? 4. Is the holder asserting the privilege? 5. Whether the holder has waived the privilege? 6. Are there an exceptions to the privilege? -2 types 1. Confidentiality/Communication Privilege a. Most common ones are: Attorney/client, husband/wife, psychotherapist/patient, clergyman b. Policy: Want to foster what the state deems to be beneficial for society; holder can refuse and prevent others from communicating under this c. Attorney/Client Privilege Rule 503: (1) Is there a relationship² look to prof. resp. ABA rules²note corp./entity issues; (2) Was
the communication germane to the relationship; (3) Was it confidential²if the communication is confined to the attorney and the client then it is privileged; (4) Who is the holder of the privilege²the client, and the lawyer can do it on behalf of the client; (5) Has there been any waiver²can¶t waive if client discloses to another privileged individual; (6) Exceptions: Crime/Fraud, communications relevant to malpractice suit, joint clients. d. Doctor/Patient²Psychotherapist/patient (recognized by fed. Ct) Rule 504: Exceptions²if physical or mental issue is at issue, proponent cannot assert privilege. e. Clergy f. Marital Privilege Rule 505: (1) Communications made during the marriage and allows one spouse to refuse to testify against the other spouse in criminal trial, (2) communications prior to and after marriage don¶t count, (3) testimonial privilege applies only in criminal cases 2. Other Privileges a. Parent/child²Only 4 states recognize this privilege because: (1) Not clear that children are any more likely/ unlikely to discus private matters w/parents if privilege exists, (2) parents have a duty to children and a right to report/turn in their child if it is in the child¶s best interests, (3) High social costs b. News Reporter²No privilege and its not a 1st amendment violation to ask a reporter to turn over documents because the 6th amendment rights of accused supersede. c. Informer Privilege²identity of the informer must be disclosed if informant¶s testimony may be helpful/relevant to the accused; Balance the defendant¶s right in preparing their defense v. public interest in protecting law enforcement capabilities. d. 5th Amendment Privilege²Privilege violation when: compulsion, testimonial evidence, self-incrimination; Rationale: its unfair to force a person to choose between perjury, self-incrimination, and contempt of court
2. What does the statement assert?²look at declarant¶s intent when making the statement; Statements that make assertions: ³That car was going too fast!´ ³He¶s driving like a bat out of hell!´ ³Whoa! Where¶s he rushing to?´; Statements that DO NOT make assertions: ³Did you see Janet¶s breast at halftime?´ ³Tackle that man!´; Generally, command and questions for info are not meant to assert anything. 3. Are we using the statement to prove that what it asserts is true?crucial question: What is the statement being used to prove? If evidence is being used to prove what the declarant meant it to say, then it is hearsay. 4. Even if the statement is being offered to prove the truth of the matter asserted, is it admissible under some exception to the hearsay rule? -Simple Hearsay Test: If the fact that the statement was made is relevant, even if the facts in the statement are not relevant, then the statement is NOT HEARSAY. 1. G/R²The hearsay rule is NOT APPLICABLE, under any definition of hearsay, where evidence of the OOC words or actions is offered only to show that the statement was made or that it had a certain effect on a listener or observer, rather than to prove the truth of the facts asserted. -Hearsay problem only arises when you have a witness testifying to an out of court statement and the probative value of this statement depends on the credibility of the declarant/the person who made the out of court statement. General Non-Hearsay -Knowledge of the Hearer: does the probative value of the statement depend on its effect on the hearer and not on the truth of the statement -Circumstantial Evidence of State of Mind: from the statement you infer the state of mind; if it is direct evidence as to state of mind then it is hearsay; e.g. father saying son is a douche offered to prove he intended to disinherit son is circumstantial evidence of father¶s state of mind. -Verbal Act of Independent Legal Significance/Utterances as Operative Fact: Independent of the truth or falsity of the statement, the fact that the statement was made has independent legal significance, and it is admissible; credibility of declarant when they said words is irrelevant, e.g. ³I accept,´ making a promise, slander, libel, marriage vows. Common Law v. FRE -Explicit Verbal Assertion: E.g. To prove that it is raining: W testifies that D said ³its raining outside.´ = Hearsay -Non-Verbal Conduct Intended as an Assertion: E.g. the sign or gesture is introduced to show that someone intended to communicate something; D make gesture of opening umbrella-same as verbal conduct; Hearsay under both CL and FRE -Non-Verbal Conduct not Intended as an Assertion: E.g. W testifies that I knew it was raining b/c I saw D open his umbrella as he stepped out; CL says hearsay, but FRE says not hearsay because nothing was asserted. -Non-Assertive Verbal Conduct: E.g. W testifies that before D left, he asks, ³Does anyone have an umbrella´; D did not mean to assert that it was raining, but we can infer that it was raining b/c implicit in his statement is his belief
that it was raining; Hearsay under CL, but FRE says its not b/c nothing asserted. -Verbal Assertion used Inferentially: E.g. to prove its raining W testifies that D before leaving says ³dang I forgot my umbrella´; statement being offered to prove not that D forgot his umbrella, but that it is inferentially raining; Hearsay under CL, but not under FRE. Hearsay w/in Hearsay²analyze each statement separately -E.g. W testifies that G told him that D told G that X shot V -Multiple hearsay is acceptable if you have an exception for each layer of hearsay Hearsay Exceptions -Unavailability: Established in 5 ways, PRIMA 1. Privilege²pleading the 5th 2. Refuses to testify 3. Ill, infirm, DEAD 4. Memory²declarant testifies to a lack of memory 5. Absent²proponent of the witness cannot get the declarant to appear BAD SPLITS PEPPI F/DIFF²requires a showing that Declarant is unavailable to testify -Business Records²Rule 803(b): if record is good enough for business to rely on, then it should be admissible as evidence -Requirements for a record to qualify: 1. If it was the regular practice of the business to keep such records 2. Record must be made in the regular course of business 3. Record must be made at or around the time of the event 4. Record must be made by an employee with personal knowledge of the event or made upon information provided by someone with a business duty to report the information -Admission (Statement) by Party Opponent²Rule 801(d)(2) -Most important exception; Always look to this one first -A party may not object on hearsay grounds when his opponent offers any statement made by that party; e.g. P may offer any statement made by D and vice versa -Limited Admissibility²a statement made by a party opponent is admissible only as evidence against the party who made the statement; important for multi-party litigation -Adoptive Admissions²a statement of which the party has manifested an adoption of belief in its truth -Failure to deny is an implied admission -Implied admission by silence is hearsay under CL, but not under FRE -Authorized Admission²A statement by a person authorized by the party to make a statement. 1. Must concern a subject within the scope of the agency relationship 2. Must have been made while that relationship existed -Vicarious Admission²statement made by party¶s agent or employee; Requirements: (1) must concern a matter within the scope of agent¶s employment, (2) statement must be made while the speaker is still an agent or employee
-Co-Conspirator Admission; Requirements: (1) declarant and party against whom it is admitted were co-conspirators, (2) statement was made during the conspiracy, (3) statement was made in furtherance of the conspiracy -Dying Declarations²Rule 804(b)(2) -Requires a showing that D is unavailable to testify -FRE allows dying declarations in all civil and criminal cases -Requirements: (1) Declarant must be unavailable Rule 804(a)(1), (2) declarant must believe that death is imminent (doesn¶t have to actually die, just believe they are going to die), (3) statement must concern the causes or circumstances that declarant believes to be his impending death, (4) Does the D have personal knowledge of the facts asserted? -Spontaneous Statements²Rule 803(2) Excited Utterance/Rule 803(1) Present Sense Impression -Statement made before D has had time to think about what he is going to say 1. Excited Utterance²Statements made while declarant is under the stress caused by a startling even or condition and the statement must relate to the starling event or condition; must be made before the declarant had time to think about the statement; 3 part analysis: (1) Was there an exciting event or condition? (2) Was the D under stress of the excitement caused by exciting even or condition? (3) Does the statement relate to the exciting even or condition? 2. Present Sense Impression²Statements that explain or describe an event or condition and are made while the declarant is perceiving the event or immediately after; spontaneity of the statement promotes trustworthiness, person who heard the statement can verify its truth; 2 part analysis: -Public Records²Rule 803(8) -Records setting forth the public agency¶s own activities -Record setting fort the areas which the agency is required by law to observe and report -Reports which set forth factual findings which result from authorized governmental investigations -Learned Treatise²Rule 803(18) -Requirements: (1) May only be used to the extent that they are called to the attention of the expert on cross or are relied upon by expert in direct, (2) Treatise must be established as reliable authority by witness, judicial notice. -Statements admitted under this exception can only be read into the record not admitted as evidence -Interest, Declaration Against²Rule 804(b)(3) -People normally do not say things adverse to their own interests unless they are true. -Requirements: (1) D must be unavailable, (2) under common law, statement must be against civil and pecuniary interest only, FRE creates declaration against penal interest in addition to civil or pecuniary interest (Statement against penal interest may be offered to exculpate an accused only when corroborating circumstances clearly indicate the trustworthiness of the statement).
-Testimony, Former²Rule 804(b)(2) -Requires a showing be made that D is unavailable to testify -When the out of court statement that is being offered was itself testimony in another hearing. -Requirements: (A) D must be unavailable (B) Party against whom the testimony is now being offered must have had the opportunity and the motive to develop the testimony in the former trial or hearing. -Analysis: (1) Who is the former testimony now being offered against? Is it fair to use testimony against this party? (2) Did the party against whom the statement is being offered have the opportunity to develop the testimony in the first hearing? (3) If yes to 2, then did the party against whom it is now being offered have similar motive to develop the testimony in the second trial as it did in the first trial? -FRE²in civil cases, former testimony may be admissible if a predecessor had motive as opportunity to cross examine -Statement of Mind of Condition²Rule 803(3)/Statements for purposes of medical diagnosis or treatment²Rule 803(4) -Statements relating to D¶s then existing mental, emotional, or physical exception -Exception includes a then existing intent to do something in the future if offered to prove declarant actually carried through with his plans. Statements of memory or belief may not be used to prove the fact remembered or believed, ³X poisoned me.´ (Caveat: With wills statement can be reverse looking). -Statement for Purpose of Medical Diagnosis or Treatment: (1) Can be used to admit issues of past medical history, (2) statement must be made for the purpose of getting treatment or diagnosis, (3) statement of cause of pain is admissible but must be related to the condition; 3 part analysis: (1) Was the statement made for the purpose of seeking medical diagnosis or treatment? (2) Does the statement describe medical history, or past or present symptoms, pain or sensations, or the cause or external source of the injury? (3) Was the statement reasonably pertinent to obtaining medical diagnosis or treatment? -Past Recollection Recorded²Rule 803(5) -Occurs when despite your best efforts to refresh her memory the witness still can¶t recall what occurred -Requirements: (1) Eyewitness must testify that he at one time had personal knowledge of what occurred, (2) eyewitness must testify that he has insufficient recollection to testify fully and accurately about an event, (3) must testify that he made a statement of the event when it was fresh in his mind, (3) statement/letter accurately reflected her personal knowledge at the time, (4) Limitation: a letter which qualifies as a past recollection recorded may not be introduced as an exhibit. -Equivalent²Residual Catchall²Rule 807 -Even if the hearsay doesn¶t fall within one of the established exceptions it will be admissible if it possesses certain qualities of trustworthiness. -Requirements: (1) Must not be covered by rule 803 or 804, (2) It must be trustworthy, (3) it must be offered as evidence of a
material fact, (4) It must be more probative on point for which the proponent can procure through reasonable efforts, (5) Admission of evidence must serve the interests of the public, (6) Opposing party must be provided with notice of the proponent¶s intended use of the statement before trial. -Prior Inconsistent Statements²Rule 613, 801(d)(1)(B): Statement made that are now inconsistent with trial testimony may be used to impeach the witness; You are not asking the jury to believe that hearsay statement is true, only that the statement was made and it is different than what they are saying now; Limiting instructions will probably be needed; Use of extrinsic evidence to show that witness made a prior inconsistent statement under FRE: (1) Witness must be given an opportunity to admit or deny or explain the statement, and (2) opposing counsel must have an opportunity to question the witness about the statement. -Prior Consistent Statements²not admissible -Identification -Statements of prior identification of a person made after perceiving the person is defined as non hearsay by FRE -Forfeiture²Rule 804(b)(6) -Requires a showing be made that D is unavailable to testify -D who kills a key witness loses the right to object to that dead witness¶ hearsay statements CHARACTER EVIDENCE -3 step analysis: What, May, How 1. What is the evidence being offered to prove? -Why does a party want to admit character evidence? a. Character evidence may go to an element of the claim or defense; Rule 405(b) b. Circumstantial evidence you want to show that D conduct was in conformity with character (violent personality, dishonest, etc.); trying to get the jury to infer that the actions of D were in conformity with character; generally NOT admissible because probative value v. prejudicial effect mitigates admission; Rule 404(a) 2. May character evidence be used to prove this? -Character as an element²character evidence is admissible in this instance 3. If so, how may character evidence be introduced? -Element: a. Reputation²tends to show that the person¶s reputation is in accordance with character b. Opinion²³I¶ve known D for 20 years and he is a violent person.´ c. Specific instances of conduct²proof that D lied on many occasions to prove dishonest character. -Conduct in Conformity with character on particular occasion EXCEPTIONS to general rule a. Rule 404(a)(1)²D may introduce evidence of a pertinent trait of his own character to prove innocence; restricted to the crime at issue: -Rule 405(a) How to prove he acted in conformance with character: Reputation and opinion testimony only on specific acts. -Rule 404(a) If D puts evidence of character/reputation in the prosecution may rebut by: Calling its own reputation and
opinion witnesses Rule 405(b); Cross-examine D¶s reputation witness b. Rule 404(a)(2)² If D¶s defense is that victim was aggressor D may admit evidence of victim¶s violent character as evidence that the victim acted in conformity with character on this occasion -Rule 405(b) D may only use reputation and opinion evidence; Caveat: rape shield rules²alleged victim¶s sexual behavior and sexual reputation generally no admissible unless: Rule 412(a), 412(b)(1)(A), 412(b)(1)(B), 412(b)(1)(C). -Rule 404(a)(2) In Homicide cases only, prosecution can call reputation and opinion witnesses to victim¶s peaceable character b/c victim is not there to tell his side of the story. -Rule 404(a)(1) Prosecution can rebut by offering reputation and opinion evidence of D¶s bad character but no specific instances of conduct. c. Rule 412-15 Evidence of similar crimes in sexual assault cases, child molestation, and civil cases in which damages are based on D¶s sexual assault or child molestation -Other Crimes Evidence²Rule 404(b): as long as the proponent can demonstrate that the evidence is relevant other than to prove conduct in conformance w/character is not rendered inadmissible. -Other crimes Evidence admissible if goes to show: MIAMI COP 1. Motive²e.g. killing of a witness 2. Identity²when identity of the person who committed the crime is at issue: other similar crimes, distinctive method of committing the crime. 3. Absence of Mistake²Specific acts evidence introduced to show that there was not mistake on D¶s part 4. Intent²Evidence of other bad act is admissible to prove D in fact possessed criminal intent 5. Common plan or scheme²Not meant to show that D is the type to commit this crime rather meant to show crime was part of a larger scheme 6. Opportunity²capacity to commit the crime; has disabled alarms before 7. Preparation²Introducing evidence that D stole morphine to show preparation to kill elderly residents with it -Habit²Rule 406 -Habit evidence is admissible to show that the person acted in conformity with the habit or routine practice -Habit: regular response to a repeated specific situation; character refers to generalized trait -Test to see if its habit: Is it specific enough? Does conduct occur with regularity? Person must have engaged in the conduct a sufficient number of times with sufficient regularity so that we can say the person does it invariably -Business habit²custom and routine practice OBJECTIONS -Rule 104 Not the judge¶s job to stop introduction of evidence, just an empire -Rule 103 Timeliness and Specificity Requirements -Rule 103(a)(1) Timeliness²opponent must object in a timely fashion at first reasonable opportunity -Rule 103(a)(1) Specificity²must state a ground for objecting; preserve for appeal: party must show on appeal that it did everything that it could to inform the court of the evidence rule in question and of its application to the evidence in question.
-Motions In Limine²a means by which parties can anticipate evidence issues that are bound to arise and have them dealt with CONFONTATION CLAUSE 6th Amendment -Applies in all criminal cases²no confrontation clause problem if hearsay declarant testifies at trial and can be cross examined about his own hearsay statements. -If hearsay declarant is unavailable to testify at trial introduction of hearsay is admissible only if reliable and reliability is established in one of two ways: (1) is statement part of a firmly rooted hearsay exception, or (2) does hearsay statement have particularized guarantees of reliability? -If declarant is available but is not produced law is more problematic WITNESSES -Competency²two issues which come to bear on a witness¶ competency 1. Personal Attributes: Things which affect a witness¶ ability to see, hear, relate, and to remember; none of these things under the FRE make the witness incompetent, although they can be used against the witness to weaken the strength of their testimony; in some jurisdictions witness must have capacity. -Must have personal knowledge unless you are an expert -adjudication of insanity does not make a witness incompetent to testify 2. Status: A presiding judge in the case may not be called as a witness; Juror cannot testify in a case in which the juror is sitting -Examination: 1. Direct: Leading question²a question which suggests the answer the witness is supposed to give. -If the examiner can determine that the questioner desires one answer over the other than it is leading. -Generally not allowed in direct unless they refer to preliminary matters not in dispute (name, address, etc.); sometimes you can lead to jog memory or when witness is having difficulty in testifying. -Adverse party non-friendly witness may use leading questions in direct then b/c they are not susceptible to being misled. 2. Cross: Leading questions are usually acceptable except when the party is friendly to the cross-examiner. -Witness usually impeached on cross examination -Cross limited to matters raised on direct examination; new subject areas are generally off limits, but discretion to limit is up to judge 3. Present Recollection Refreshed: you may use anything to get the witness to the point where they say ³Ah yes, now I remember.´ -Usually you do this through a document, but there is a danger in this b/c the witness who examines a document may just be reading what¶s on the document and using that -Opponent is allowed to inspect the document 4. Past Recollection Recorded: Occurs when despite your best efforts to refresh her memory the witness still can¶t recall what occurred; Requirements: -Eyewitness must testify that he at one time had personal knowledge of what occurred -Eyewitness must testify that he has insufficient recollection to testify fully and accurately about the event -Must testify that he made a statement of the event when it was fresh in his mind -Statement/letter accurately reflected her personal knowledge at the time
-Limitation: A letter which qualifies as a past recollection recorded may not be introduced as an exhibit. -Impeachment: 1. Rule 607Any party may attack credibility of a witness. 2. 5 Methods for attacking a witness¶ credibility; BICCC A. Bias²no rule; Witness may be impeached by showing that he has some reason independent of the merits of the case to favor one side over the other; sometimes there is a foundational requirementFRE does not have a foundational requirement B. Inconsistent Statements²Rule 613, 801(d)(1)(A), 806; Statements made that are now inconsistent with trial testimony may be used to impeach the witness; you may use hearsay to impeach b/c it detracts from the testimony; Cannot use impeachment to get otherwise inadmissible evidence in front of the jury; 2 requirements for inconsistent statements to qualify as non hearsay and be used for truth of statement and impeachment (1) Witness must be available for cross examination about prior inconsistent statement, (2) Prior inconsistent statement must have been made (a) under oath, (b) under threat of perjury, (c) must have been made at previous hearing, proceeding, or deposition C. Capacity²no rule; show defects on the witness¶ perceptual or testimonial capacity; insanity, psychological abnormality, drunk; may use extrinsic evidence, not restricted to questions about incapacity you may use other evidence to show incapacity D. Character²Rule 404(a)(3), 608, 609²character evidence may be used to impeach a witness in 3 ways: (1) Opinion or reputation testimony: proponent of witness may not bring opinion or reputations testimony until the witness¶ character has been attacked, (2) Evidence of specific acts of the witness that did not result in conviction, (3) Show witness has been convicted of certain crimes E. Contradiction²no rule²when will the impeaching party be allowed to introduce extrinsic evidence for the purpose of contradicting some aspect of the witness¶ testimony: Extrinsic evidence will not be permitted for the purpose of showing contradiction if the contradiction goes to a collateral matter -Bolstering and Rehabilitation 1. Bolstering²building up the credibility of the witness before they are attacked; G/R unless your witness has been attacked you may not bolster witness¶ credibility by introducing evidence of their truthful character. 2. Rehabilitation²Simple rule: the rehabilitation technique that you use must match the impeachment technique that was used; e.g. if your witness is attacked for showing a lack of capacity then try to show capacity, if shown to be biases try to show that witness is no longer biased. WRITINGS -Authentication: Rule 901 -G/R: One who seeks to introduce evidence of a particular fact, or item of proof, must generally give evidence of those circumstances which made this factor item relevant to some issue in the case. -Standard of admissibility is simply enough evidence for a reasonable jury to find that the thing is what it is purported to be -Documents²personal knowledge easiest way to authenticate; Circumstantial evidence: (1) Identifying handwriting of author² expert, lay, or jury comparison of writings, (2) Ancient documents²doubtful that someone forged something and then brought it out later for use in trial; document must be 20+ years
old, free of suspicion, found where usual documents are kept, (3) Voice Authenticating²personal knowledge, (4) Telephone conversation²when authenticating witness is the one who place the call, you can identify the other caller if you properly dialed and the person identifies themselves, (5) Self Authentication² CONTAC: Commercial paper, Official publication, Newspapers and periodicals, Trade inscriptions, Acknowledged documents, Certain public records, (6) Reply Letter Authentication²letter in reply has enough information that it is clear that it is in response to another letter. -Parties should stipulate to the authenticity before trial -Best Evidence Rule/Contents of Writings: Rule 1001-1008 -G/R: Requires only that when a party seeks to prove the contents of the writing, recording, or photograph the party must use the original. -Analysis: 1. What is meant by proving content? a. Where the legal rights or obligations arise directly from the writing, recording, or photo; or contracts, lease, copyright; does not apply where the writing is only evidence of a fact, e.g. receipts showing payment, transcripts. b. Where a party is relying on the writing to prove something in the writing; ³I know I paid b/c my records show´ best evidence will apply 2. What qualifies as a writing? 3. What qualifies as an original? 4. What are the exceptions? a. Unless a genuine question is raised about the authenticity of the original, a duplicate can be used in place of the original b. Public records c. Summaries of voluminous records²other party should get notice of use of summary d. If original is not available through no fault of the proponent any evidence of its contents may be used; Unavailability: lost or destroyed. e. Contents of the writing don¶t go to the issue of writing OPINION TESTIMONY/EXPERTISE AND EXPERTS -Lay Witness: Called b/c they have personal knowledge of the fact of the case Rule 701 1. CL²Lay witness not allowed to give opinion testimony 2. FRE²Lay witnesses may give testimony if (1) Opinion must be rationally based on the witness¶ perception, (2) having the lay witness testify in the form of an opinion must be helpful to clear understanding of the witness¶ testimony or to a clear determination of a fact in issue. 3. Lay testimony may not be based on technical, scientific, or other specialized knowledge, which forms the basis of expert testimony. -Expert Witnesses Rule 702 1. Qualification²Before an expert can give an opinion she must be shown to possess the specialized knowledge for which she is testifying; qualified by ³knowledge, skill, experience, training, or education.´ Supp. Pg. 120; Offer testimony as to expert¶s education, experience, etc. opposing party may cross examine on qualifications; decided by the court as preliminary matter generally. 2. Subject matter of Expert testimony²which areas are appropriate for expert testimony: FRE has a broad standard, allow
expert testimony as to scientific, technical or other specialized knowledge; Admissibility of all scientific evidence is governed by Rule 702 i.e. must be related to an issue in the case. 3. Judge¶s Role as Gatekeeper²Must only admit scientific testimony which is reliable; qualification of expert witness is 104(a) job of the judge using Daubert Factors/Threshold test: (1) Whether the theory or technique has been or can be tested, (2) Whether the theory or technique has bee subjected to peer review and publication, (3) The known or potential rate of error and whether there exists a means for controlling its operation, (4) The extent to which the theory or technique has been accepted, (5) Is there too great of an analytical gap between conclusion and data upon which the expert relied, (6) Is the evidence reliable and relevant? General acceptance in the Frye Test is now just a factor; Rule 702 Reliability Test: (1) Testimony is based upon sufficient fact or data, (2) Testimony is the product of reliable principles and methods, and (3) Witness has applied the principles and methods reliability to the fact of the case. 4. Basis of Expert¶s Opinion²based on Judge¶s discretion the expert need not give basis for opinion first, may give opinion then explain basis; personal knowledge of facts in the case; hypothetical questions base on the assumed truth of facts proved in court and presented in the question; Facts perceived by or made known to the expert at or before the hearing: facts upon which the expert based his opinion need not actually be admissible in evidence so long as they are a type reasonably relied upon as experts in the same field, and whether or not it can be disclosed to the jury depends on whether the probative value outweighs its prejudicial effect -Ultimate Issue 1. Not a valid objection in Federal Court that an answer goes to an ultimate issue. 2. Lay and Expert witness testimony is only admissible if it is helpful 3. Still valid only under Hinckley rule²expert witnesses may not testify as to whether the individual had the mental state that constitutes an element of the crime charged PRIVILEGES -Privileges controlled by CL using experience and common sense; State substantive law governs when in diversity cases. -Analysis 1. Is there a privileged relationship? a. Is there a relationship which is beneficial and worth promoting by society 2. Was the communication germane to the relationship? 3. Was the communication confidential? 4. Is the holder asserting the privilege? 5. Whether the holder has waived the privilege? 6. Are there an exceptions to the privilege? -2 types 1. Confidentiality/Communication Privilege a. Most common ones are: Attorney/client, husband/wife, psychotherapist/patient, clergyman b. Policy: Want to foster what the state deems to be beneficial for society; holder can refuse and prevent others from communicating under this c. Attorney/Client Privilege Rule 503: (1) Is there a relationship² look to prof. resp. ABA rules²note corp./entity issues; (2) Was
the communication germane to the relationship; (3) Was it confidential²if the communication is confined to the attorney and the client then it is privileged; (4) Who is the holder of the privilege²the client, and the lawyer can do it on behalf of the client; (5) Has there been any waiver²can¶t waive if client discloses to another privileged individual; (6) Exceptions: Crime/Fraud, communications relevant to malpractice suit, joint clients. d. Doctor/Patient²Psychotherapist/patient (recognized by fed. Ct) Rule 504: Exceptions²if physical or mental issue is at issue, proponent cannot assert privilege. e. Clergy f. Marital Privilege Rule 505: (1) Communications made during the marriage and allows one spouse to refuse to testify against the other spouse in criminal trial, (2) communications prior to and after marriage don¶t count, (3) testimonial privilege applies only in criminal cases 2. Other Privileges a. Parent/child²Only 4 states recognize this privilege because: (1) Not clear that children are any more likely/ unlikely to discus private matters w/parents if privilege exists, (2) parents have a duty to children and a right to report/turn in their child if it is in the child¶s best interests, (3) High social costs b. News Reporter²No privilege and its not a 1st amendment violation to ask a reporter to turn over documents because the 6th amendment rights of accused supersede. c. Informer Privilege²identity of the informer must be disclosed if informant¶s testimony may be helpful/relevant to the accused; Balance the defendant¶s right in preparing their defense v. public interest in protecting law enforcement capabilities. d. 5th Amendment Privilege²Privilege violation when: compulsion, testimonial evidence, self-incrimination; Rationale: its unfair to force a person to choose between perjury, self-incrimination, and contempt of court
