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In all trials, what rebuttable presumptions do we start with?

1. Jury is fair, competent, and unbiased
2. Witness will be fair, rational, and speak a knowable language
- Cross examination rebuts this presumption

When is evidence admissible?

When it is relevant, material, and competent.

When is evidence relevant?

evidence is relevant if it has any tendency to make a material fact probable or less probable
-Material: does it relate to an issue at trial?

When is relevant evidence inadmissible?

Rule 401 is a liberal policy, but if the the court determines that the probative value of the evidence is substantially outweighed by pragmatic factors it is inadmissible:
i. Danger of unfair prejudice
ii. Danger of jury confusion
iii. Misleading
iv. Undue delay
v. Waste of time
vi. Unduly cumulative

What is the difference between direct and circumstantial evidence?

Direct evidence: requires no inferences
Circumstantial evidence: requires some inference

When is evidence competent?

if it does not violate an exclusionary rule

In criminal case, can the Defense introduce evidence of an alternate perpetrator if the P has strong forensic evidence?

Yes. Holomes

Is evidence concerning another time, event, or person admissible?(similar accident or injury evidence)

generally no because it is irrelevant or its relevance its outweighed by prejudice

When is similar occurrence(accident or injury) evidence admissible?

1) Plaintiffs accident history- usually inadmissible to show litigiousness of P, but is admissible if the causation of the Ps injuries is at issue
2) Similar accidents caused by same event or condition- evidence that D has been involved in prior accidents is generally inadmissible to show fault
3) Person's intent is at issue:
4) Comparable Sales:
a) Relevant to property sales
5) Habit (rule 406): habit of a person our routine of a business is relevant to circumstantial evidence to show how person or business or person acted on event of litigation
a) Different from character evidence(not admissible)
b) Habit- repetitive to a particular set of circumstances
6) Industrial or Business Routine- reliable

How can you determine relevance of evidence?

Who is offering the evidence?
• Pay attention to who is offering the evidence to determine the story they are trying to tell
What story is being told?
• Nothing gets you to the answer faster than determining relevance first
Relevance: does it tend to prove a point related to that story?
• Relevant evidence is that which has ANY TENDENCY to help prove a material fact

When does a limiting instruction get used for evidence?

Evidence admissible for one purpose but not another gets in subject to:
Rule 105. Limited Admissibility
• When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly.
• 403 balancing test, if requested

How does a court determine if relevant is inadmissible?(Rule 403 balancing test)

1. Determine probative value
• 2 components
-Persuasive force
-Need for evidence at that point

2. Determine negative effects
-Can we mitigate the negative effects?
-Unfair prejudice: stuff that leaks from irrelevant evidence and prejudices rational disposition of case
-Look at Other negative effects: also look at confusion of the issues, misleading jury, undue delay, waste of time

3. Balance probative value v. negative effects- very much subject to decision of trial judge

Is evidence of liability insurance admissible?

Rule 411
• Is NOT admissible to show negligence
• Is admissible for other purposes(ownership)

Can a defendant introduce evidence that P received benefits from insurance to offset damage paid by Defendant?

Collateral benefit rule--NOT IN FED RULES
o The fact that P has received benefits (e.g. from insurance) cannot be used to offset damages paid by D

Are collateral sources of evidence admissible in breach of contract cases?

Collateral sources may be admitted "if it is relevant to demonstrate the extent of the plaintiff's actual loss that was caused by the breach"

If P claims that P injuries were worsened because P could not afford medical treatment can D introduce evidence that P had insurance?

Yes, b/c P has opened the door on the issue

What is the rule of Completeness?

• When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which fairly out to be considered contemporaneously with it
 If you only show part of the evidence, other side may require it to be put in context of full story
 Writings: opponent can object and require entering the full writing to show full context
 Oral conversations: must wait until cross-examination
- No Federal Rule, but there is caselaw

What do you need in order to preserve an evidentiary issue for appeal?

1. a ruling by the trial court
2. definitely rejecting the objection or motion
3. which was raised in a timely manner
4. and supported with specific grounds
5. on the record
6. the trial court was wrong in rejecting the specific grounds and in not granting the objecting party
7. the error harmed the objecting party

What are the two types of trial court rulings on an objection?

2 types:
1.Sustained/Overruled
2.Curative ruling
• Such as instructing jury to disregard or asking for mistrial

What practical steps should you take to preserve an error for appeal?

•We preserve error IF THE LAST THING THE JUDGE SAID IS "NO"
 Ask for (in this order):
1. Strike the testimony
• If granted, say "not enough"
2. Instruction to the jury
• If granted, say "not enough"
3. Refusing a curative instruction waives the issue for appeal
• If judge offers curative instruction, you have to accept it and then ask for mistrial
4. Motion for mistrial
• Sometimes, to get a NO, you have to ask for a mistrial
• Difference in GA law: have to renew motion for mistrial if last thing judge said wasn't "no"

Can you object to a party's direct testimony on your cross?

No.
• If you hear objectionable testimony on other side's direct, you must object before your cross
• You have to make all of your curative objections at the same time
 Can't ask for a mistrial a half hour later

Can you bring up another ground for an objection on appeal?

No. If you mention one grounds but not another, you're stuck with that grounds on appeal

What can a party do if their evidence has been objected to and the judge sustains the objection?

They make an offer of proof.
 Good offer of proof has 3 parts:
• Disclose what witness would say
• Explain to judge why it's admissible under rules
• Explain to judge how error of not allowing evidence would be HARMFUL
• i.e. How important the evidence is

Once a court makes a definitive ruling on the record, does a party need to renew an objection or offer of proof?

No. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

When can error be predicated upon a ruling which admits or excludes evidence?

A substantial right of the party is affected and
1) Objection - In case the ruling is one admitting evidence, a timely objection or motion to strike appears of record, stating the specific ground of objection, if the it was not apparent from the context; or
2) Offer of proof - In case the ruling is one excluding evidence, the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked

What is a motion in limine?

pretrial motion on evidence

What are three uses of a motion in limine?

1. Nail-down use
 Get judge to rule evidence is inadmissible and force opposing counsel to instruct their witnesses of this order
• Increases chances of mistrial if there's a slip-up
2. Negotiation use/Strategy Use
 Settlement/ plea-bargaining negotiations may be affected by knowing if certain evidence is admissible
 sometimes an issue will significantly affect outcome of case, so you can use MIL to know outcome and build your case
3. Heads up motion
 May want to prepare judge for difficult issue
 Worst time to bring up difficult issue is in the heat of trial

What are questions of admissiblity?

• Preliminary questions concerning
1. the qualification of a person to be a witness,
2. the existence of a privilege, or
3. the admissibility of evidence
-shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges.
(b) When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

Can the jury hear hearings on the admissibility of confessions?

No.

Can you question an accused on issues in the case other than that presented in a preliminary matter?

No

What is a technical objection and who gets do decide its ruling?

Technical objection: doesn't go to relevance
• 104a: judge has sole authority to decide technical objections

What is a relevancy based objection and who gets to decide its ruling?

Relevancy-based: this isn't what it's claimed to be, so it has no bearing
• 104b: judge and jury share duty to decide relevance issues

What is the test to determine if relevance is destroyed by an objection?

if the objection is True does that make the evidence irrelevant?
1). Yes, this is a relevance based 104b objection
2). No, it is still relevant but inadmissible under FRE104a

ii. Judge will let the evidence go to the jury if a "reasonable jury" could find that, based on what the evidence shows

What are the three kinds of evidence?

Testimonial
• Sworn from witness stand or Out of court statements
Documentary
• Electronic docs, hard copies
Real evidence
• Objects e.g. cocaine seized from house; OJ's glove
***All three are subject to formal proof

How can you get evidence in without formal proof?

stipulations

What are admissions in Judicio?

binding and conclusive answers given to court orally or in writing.
see FRCP 36: demand other side admit or deny certain facts

What is judicial Notice?

getting the judge to instruct the jury that something is true.

What kinds of facts can you get judicial notice of?

• A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned

When is judicial notice discretionary?

• A court may take judicial notice, whether requested or not.

When is judical notice mandatory?

• A court shall take judicial notice if requested by a party and supplied with the necessary information.

When can a judge take judicial notice

• Judicial notice may be taken at any stage of the proceeding.

How should the jury be instructed about judicial notice?

the court shall instruct the jury to accept as conclusive any fact judicially noticed.
In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed.

What facts do not need to be proven in court or though judical notice?

Rule 201: don't need to prove:
- legislative facts: laws, regulations, pleading, motions for a case
 Facts generally known in community
 Facts capable of accurate and ready determination by a reliable source
• Almanac rule- Source's accuracy can't reasonably be questioned
• Must produce almanac, etc.
• e.g. how many miles from Atlanta to Macon?
 Technical processes, etc. that have been vetted by other courts sufficiently

What is authentication?

proving that object is what it is claimed to be
-Keep low 104b hurdle in mind
•Judge can deem inadmissible if unreasonable to find authentic
 Judges err on the side of letting the jury decide

What is foundation?

preliminary factual showing you need to make to get an item into evidence

Foundation evidence: conditional evidence builds on this

how do you authenticate distinct real evidence?

o Distinct Real Evidence: recognizable to witness
• All you need to authenticate is testimony of someone who knows what it is
• Making the item distinct- policeman can put his initials on the murder weapon, then can identify it at trial by his initials

how do you authenticate fungible real evidence?

o Fungible Real Evidence: one bag of cocaine looks like any other bag
• Chain of Custody- this is how we keep track of identity and integrity of item
 Bag it and tag it- put in labeled bag
 Usually only need 2 witnesses for chain of custody
• Seizing officer
• Someone from the lab to testify about routine practice and can explain why they follow that practice
• When an organization has a routine practice for doing something, that is circumstantial evidence that the procedure was followed
• Just need to ask witness what the practice is and if they followed it

Do you need an eyewitness to prove evidence of a habit or routine practice?

No.
Rule 406. Habit; Routine Practice
• Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice.

Does a proponent of scientific evidence need to offer it to an opposing party to test it?

Yes

How do you authenticate non-public documents?

1. Can get a witness to identify it
• e.g. Is this your signature?
2. Subscribing witness: ask the person who created it or saw it crated
• It's hearsay to say that a letter is from the President just because it says so
• Letterhead not enough
3. Circumstantial evidence
• Judge decides if enough of these clues combined could lead reasonable jury to find authenticity (104b)
• Content of document may give clues as to where it's from
• Conduct can be corroborative
• Email: look at header info- shows IP address of sender

How do you authentic public documents?

Public documents only need certification

What are the 3 tiers of public documents?

• In-state documents (GA documents in GA courts)
 In GA, we'll allow GA docs without a seal

• Federal/ sister state documents
 Once we go outside the state or to fed court, gotta have a seals
• Seal is how document is authenticated
• All you need is one simple seal since probability of forgery is low

• Foreign documents
 Need multiple layers of seals
• Point is to certify accuracy of lower seals

What types of documents are considered public documents?

(1) Domestic public documents under seal.
(2) Domestic public documents not under seal.
(3) Foreign public documents.
(4) Certified copies of public records.

What is the Best Evidence Rule?

a party that is seeking to prove the contents of the writing must either produce the original writing or provide an acceptable excuse for its absence.
o Rationale: Let the document speak for itself

What does the Best Evidence Rule apply to?

Applies only to writings, includes films, photographs, x-rays and sound recordings.

What exception is made the best evidence rule?

W has personal knowledge of a fact that exists independent of writing which records the fact

Are duplicates admissible under the best evidence rule?

Yes.

When are duplicates not admissible under the best evidence rule?

a) if genuine question is raised to original, then duplicate is not admissible
b) Unfair to use duplicate- like using fuzzy or black and white copy of color

What is the voluminous Evidence Rule

you can use summary or chart provided the originals are available for inspection and originals would be admissible

Can summaries be used under the best evidence rule?

No

What are reasonable excuses for not using the best evidence(original or duplicate)

1) Cannot obtain with legal process
2) Original is lost or cannot be found with due diligence
3) Original has been destroyed without bad faith.

What is the continuing witness rule?

if writing is nothing more than a written version of witness testimony, it does NOT go back into the jury room
-e.g. transcript of deposition, summary of expert findings, etc.
-Other forms of physical evidence do go back with jury
-Must object to keep it from going back with jury

How can receiving phone calls be authenticated?

Receiving
• If caller is familiar to recipient, can ask if they recognized voice
• If caller is a stranger, may be able to prove identity by showing the caller know things only the purported caller would know
• Need to point out to jury that many forms of modern communication can be hacked and used to frame someone

How can outgoing phone calls be authenticated?

Calling
• Calling the number assigned to the purported recipient can create a presumption that the recipient was that person when combined with other evidence (self-id, voice id)

How can photos and videos be authenticated?

Authenticate photos by asking witness if it's a FAIR AND ACCURATE DEPICTION of what he saw
o Videos authenticated the same way
o Gruesome photo of murder scene is usually not unfair prejudice
• But can't show pictures after autopsy
 More gruesome than how victim was found
• Decomposed body found weeks later could be unfairly prejudicial

What is the Silent Witness Rule?

Automated video systems can be authenticated by witness with knowledge of how system works plus date and time component to video
• Must show:
 That video recorded a certain place
 How the camera works
 How the date and time works
 How the tape was collected
 How police/party came into possession
 Procedure (battery, maintenance, collecting tapes)

What are trial aids? are they admissible into evidence?

Trial aids: powerpoints, whiteboard, timelines
o Used to illustrate witness's testimony

Are NOT EVIDENCE! not even demonstrative evidence
• These are simply memory aids
o Must be based 100% on admissible evidence

What is Demonstrative Evidence? What are 3 requirements for it?

Something substantially similar to relevant evidence
3 Requirements
• Must be based on admissible evidence
• Must be substantially similar to thing depicted in all relevant ways
• Must be helpful to trier of fact

When can photos and videos be demonstrative evidence?

Can be real or demonstrative evidence
 Pictures taken at time of incident or shortly after are real evidence
 Pictures of area taken later may be demonstrative

What is needed to have a computer simulation as demonstrative evidence?

•Need expert witness to answer questions about simulation
•How it was created, what variables were used, etc

How do courts handle videotape reenactments?

 Court may be afraid of videos- they may be overly persuasive
• Fairness: state typically has more resources
• Usually not allowed unless verbal testimony doesn't accurately describe it (Pickern?)
• Rule applies in criminal but not civil cases

How do courts handle day in the life films?

 Courts balance necessity of jury learning about consequences of injury with prejudice to D
1. Video needs to meet same criteria as witness on the stand
2. Must vet to exclude inadmissible evidence
3. Court can limit the production
•Very powerful: can't allow TOO MUCH emotion
•No music, camera angles, zoom, etc.
•No split screen showing P as athlete on one side, a cripple on the other
4. Bifurcation of trial is one way to deal with this
• One trial for liability one for damages

Can a judges or jurrors testify at trial?

No. Judge and jurors can never testify

Under what circumstance can a juror testify?

Post-trial, can get affidavits from jurors and motion for new trial if outside influences affected verdict

True or False: Jurors are generally presumed incompetent

False. They are presumed competent

When can a child be considered competent to testify at trial?

When a judge determines their competence based on a seperate hearing. Typically, only very young children who cannot understand oath are precluded.

True or False: Children and presumed competent if victim of violent/ sexual crime

True

What standard is used to determine if a person is an incompetent juror based on a mental disease?

High standard- people with mental diseases are capable to testify(with help) if they can tell a valid story and be cross examined.

May a W testify without personal knowledge of a matter?

A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. This rule is subject to the provisions of rule 703, relating to opinion testimony by expert witnesses.

True or False: Interpreters are not subject to the provisions of the rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation.

False. Interpreters are subject to provisions to being an expert translator and affirm to make a true translation.

What control does a court have over interrogation of Ws?

(1) make the interrogation and presentation effective for the ascertainment of the truth,
(2) avoid needless consumption of time, and
(3) protect witnesses from harassment or undue embarrassment.

What is the Continuing witness rule?

document does not go out with jury

What is the scope of cross examination?

Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination

What is a leading question?

leading questions suggest what their desired answer is

Can a party use leading questions in their direct examination of w?

No.

Why can't a party ask leading questions on direct examination?

Reasons not to allow on direct
•Fear was the educated lawyers would trick witness
•We want to hear witness testify, not counsel
It is disastrous to lead witness on direct
•Jury wants to hear witness's story from their own mouth
•Not very persuasive if counsel is leading
•You may not want to bother objecting to this

What exceptions are granted for allowing leading questions on direct examination?

1.Minimally competent witness
2.Child, retard, poor communicator, witness with poor English skills
3.To aid exhausted memory or nervous memory
4.To develop testimony
5.To fill in the blanks if they skip part of story
6.Hostile witness
• Asking to treat as hostile witness is asking permission to use leading questions
• Sometimes it only becomes clear after examination has begun that witness is hostile
7. Adverse witness
• The other party, for example
• We assume they're hostile
• Okay to ask leading questions to lay foundation

Can you ask leading questions on cross examination?

Yes. On cross, to lead you must have
•A good faith basis the fact is true AND
•A good faith basis witness has personal knowledge

What is a narrative question objection?

Narrative: so open-ended it encourages rambling
e.g. "tell me about your experience"

What is an Argumentative question objection?

asks witness to agree with certain conclusions that are for the jury
•Sounds like a piece of closing argument wrapped around a leading question

What is a Badgering witness objection?

aggressive questioning

What is a Compound questions objection?

Can only ask one question at a time
•May not be clear which question is being answered

What is a Asked and Answered objection?

Can't drive point home through repetition
• Can't pretend you didn't hear
This only applies to one side
-On cross, you can ask the same question asked on direct

What is an Assuming facts not in evidence objection?

•Can't leapfrog a fact and assume it in the next question
•Can ask on cross, but need good faith basis to believe fact is true and witness has knowledge to answer question
•e.g. "Have you stopped beating your wife?"

What is a No foundation objection?

•Must show witness has personal knowledge
•Also must lay foundation to admit certain evidence

What is a Misstating evidence objection?

•Must be alert to misstatements of prior testimony
Clever counsel will slip in extra facts

What is a Testimonial objection?

•Can object to counsel testifying if they make a statement instead of asking a question
 You can cut a witness off if you ask a "yes or no" question and they start giving a politician answer

What limitation is there on giving a W an aid to help them remember something?

None. Can give witness ANYTHING we think will help them remember
 Can be a picture, object, anything!
 Witness can't keep it while testifying

Can opposing counsel see the aid you give your witness?

Yes. Other side can ask to see what witness was given
-Can use the thing given to impeach witness on cross
-Only opponent can get your thing into evidence
-Do not give your witness anything you don't want the jury to see!

What procedure do you need to follow to give your W a memory aid?

-First must establish they don't remember
-Next ask for permission to give writing to witness
-Then ask witness to read it
-Get it back from witness
-Finally, ask if it helped refresh his memory
-Then ask your question again

What is a past recollection recorded?

memorialization of information by witness at a time when memory was fresh

What procedure do you have to follow to use a past recollection recorded to aid your W?

1.First have to establish they don't remember
2. Second have to establish they either
• Prepared document OR
• Adopted it as true when memory was fresh
3. Third have to establish that to the best of their knowledge, document is true and accurate
4.Then admit into evidence
•Witness can then keep it and read from it
-Subject to continuing W rule. Can't go out with jury

Can a party request that a certain W not hear testimony of another W?

Yes. Rule 615 Sequestration of Witnesses
At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses, and it may make the order of its own motion

What Ws cannot be excluded from hearing testimony of other Ws?

(1) a party who is a natural person, or
(2) an officer or employee of a party which is not a natural person designated as its representative by its attorney, or
(3) a person whose presence is shown by a party to be essential to the presentation of the party's cause, or
(4) a person authorized by statute to be present.
- In GA a victim or a V's family of a criminal offense always as the right to be present in any court.

What are the requirements to introduce lay opinion testimony into evidence?

1. Rationally based on witness's perception
•Must be based on personal knowledge
•Has to be a rational opinion based on facts
•Can't be speculation- PLAINLY INADMISSIBLE
2. Helpful to trier of fact
3. Not based on technical or specialized knowledge

What is the ultimate issue rule?

Ultimate Issue Rule: not allowed to invade province of jury (common law rule)

What is not lay testimony is inadmissible?

-Speculation
-Legal opinions on relevant issues
-However, okay if legal issue is not in question at trial
-Opinions based on facts outside the ken of the average juror

What is Hearsay(HS)?

out of court statement made by a person orally or in writing used to prove the truth of the matter asserted in the statement.
-HS is inadmissible unless an exception applies
-Policy: inability of Declarant(D) to be cross-examined

What steps do you need to follow to determine if a statement is hearsay or not?

1. Is the statement relevant?(always need)
2. Would the RELEVANCE of the out of court statement ask the trier of fact to assume the declarant was not LYING OR MISTAKEN? Yes: Hearsay

3. Would the statement be RELEVANT is a way that is INDEPENDENT OF ITS TRUTH OR FALSITY? Yes: Nonhearsay

What types of statements are non-hearsay for their objective effect?

1. Effect on hearer
•Rule 105: admit statement subject to limiting instruction plus 403 analysis if requested
2. Verbal act: statement has objective legal effect
3. Verbal part of an act: conduct is relevant but without words that accompanied it, the act is ambiguous
4. Explains conduct- Explains why police officer did what he did, etc

What is the test for evaluating if a statement is admissible as nonhearsay for its objective effect on the hearer?

1. Describe nonhearsay relevance
•The out of court statement is relevant for the mere fact that it was said because it proves __xyz___ (motive, notice, etc.).
2. Strip away questions of credibility and see if statement still relevant
•Assume declarant had no idea what he was saying; would it still be relevant for the reason in the blank above?
•If Yes, Category 1 nonhearsay
•If we assume declarant was an android programmed to make the statement, we strip away questions of veracity and perception

When is an OOCS nonhearsay demonstrating something relevant about declarant's state of mind?

1. When it proves knowledge
-An ASSERTION of knowledge is hearsay, but a DEMONSTRATION of knowledge is not hearsay
-If we have independent evidence that something is true and declarant says it, we know he knew it
2. When it demonstrates a feeling

What is the test for determining if a statement is nonhearsay demonstrating something relevant about declarant's state of mind?

1.Is out of court statement known to be false?
a. Yes: Cat 2 nonhearsay
•We know it's false- we are trying to show he is lying for some reason
•It demonstrates state of mind- they're hiding something
b. No: Go to next step

2. Declarant's statement suggests he believed or knew ____x_____.
3. Assuming [the x factor above] is UNCONTROVERTIBLY TRUE, is the statement still relevant to prove something or is it merely cumulative?
a. Yes: Category 2 Nonhearsay
b. No: Hearsay

Are prior inconsistent statements subject to the HS rule?

-In GA admissibe for substantive and impeachment purposes
-in FRE, only admissible for impeachment, must give limiting instruction

What requirements are there to use a prior inconsistent statement over a HS objection?

Must be made at official proceeding under oath
-W must have an opportunity to explain or deny the statement

Are prior consistent statements subject to the HS rule?

 If other side challenges witness's credibility, you may offer prior consistent statement to deflect credibility challenge
 Must be relevant to specific credibility attack
 Can't use to repeat testimony to bolster witness

is an out of court identification of a testifying witness admissible over the HS rule?

Yes, but Out of court identifier MUST testify
-Law has always allowed prosecution to say that witness identified perpetrator previously

Can HS within HS be admissible?

must find an exception for each level of hearsay
o Start with the inside statement first and work your way out

Can non-verbal conduct be considered HS?

Yes. Can be hearsay if offered to prove truth of matter asserted
-constitutes a statement only if INTENDED AS AN ASSERTION
o If it is ambiguous as to whether an assertion was intended, it probably gets in

Can implied assertions be admitted over a HS objection?

Yes if it is statement not offered for its literal truth but to prove an underlying assumption

How do you determine if an implied assertion is admissible as nonhearsay

o Proponent is offering statement to prove declarant believed ____x____
•x= inference proponent wants jury to draw
•e.g., x= Joe is a good shot with a rifle

o Assuming x is false, did the declarant have to be lying or mistaken?
• e.g. If Joe is NOT a good shot, did declarant have to be lying or mistaken?
 MUST be lying or mistaken: high standard
• Shows how tight statement is to inference
 If tight connection --> Hearsay

Can exaggerations be considered hearsay?

Yes because they can be used to communicate a fact.
e.g. Declarant said Joe can shoot a tick off a running jaguar at 100 yards
 Obviously not being offered to prove literal truth, but still easily supports an inference the Joe is a good shot
•Declarant must have been lying or mistaken if Joe is actually a terrible shot with a rifle

Are letters hearsay?

Yes. Wright v. Tatum

Can a question be considered HS?

A question may also be an assertion
•e.g. Declarant said have you ever seen someone shoot a rifle as well as Joe?
 If Joes isn't a good shot, declarant must necessarily be lying or mistaken

Will an assertion get in if its intent is ambiguous?

Yes. e.g. Declarant said you should go hunting with Joe
 One possible inference is that Joe is a good shot
• But is this what declarant meant to communicate?
• If so: hearsay
• If not: nonhearsay
• There are many other possible inferences
 Would get in as nonhearsay because no real risk of lying, even though there is a risk we may draw the wrong inference

According to the Zenni case, can evidence of reieveing phone calls be HS?

Yes.  No other relevance than to prove caller thought he was calling a betting parlor

What is an admission?

out of court statement by party, offered by opponent

Are admissions admissible?

Admissions are super-admissible
•The admission rule trumps some other rules
Admissions admissible over hearsay objections
•It would be silly to say you can't cross examine yourself
Doesn't have to be based on personal knowledge
•It would be silly to say "I didn't know what I was talking about"
•Personal opinion gets in

What are admissions in judicio? Admissible?

•Admission in Judicio: admissions made in formal proceedings
Not only admissible, but conclusive and binding

What is an evidentiary admission? admissible?

• Evidentiary Admission: simply a statement of party offered by opponent
Admissible, but not conclusive and binding

Can a criminal D offer admissions of the state?

No

Do admissions have to be against a party's interest?

No. As long as opponent wants it in evidence, that's enough
 Still must be relevant

What is a personal admission? Admissible?

Admission by party-opponent. The statement is offered against a party and is the party's own statement, in either an individual or a representative capacity or one the party adopted.
- admissible as long as relevant

What is an adoptive admission?

Rule 801(d)(2)(B) a statement of which the party has manifested an adoption or belief in its truth

What are the two types of adoptive admissions?

•Express adoption of what someone says
•Admission by silence

What are the 3 foundational requirements for getting an admission by silence into evidence?

1. Party hear and understood statement
2. Situation would demand denial if statement false
•Experience tells us that a person would normally object
•Failure to deny basically confirms statement is true
3. No other rational explanation for silence except that statement was true

What is an agency admission?

When an agent of party makes admission

What is the requirement of an agency admission?

•Person must be authorized to make statement under 801(d)(2)(C)

may criminal defendants offer statements of agents of the state?

Same rule in GA and FRE, but expressed in GA rule

What are the requirements for admitting employee statements as agency admissions?

•Statement by agent or employee
•while the were employed or an agent
•Subject matter has to fall within the scope of his employment

Are subsequent remedial measures allowed into evidence to show negligence?

NO.

What limited uses may subsequent remedial measures be used for?

The other limited uses-- must be in dispute
• Ownership/control
• Feasibility
-If D doesn't contest the feasibility of an alternative design, P can't bring it up
-Must be careful experts don't accidentally contest feasibility
-Claiming industry standard opens door

Does firing an EE count as a subsequent remedial measure?

Yes

is a subsequent remedial measure before a P's injury admissible

Yes.
e.g. P1 has accident -> design change -> P2 has accident
• P1 CANNOT use design change
• P2 CAN use design change
• If design change happened BEFORE P's accident, it is not a SUBSEQUENT measure, so he can use it

Can a subsequent remedial measure be included into evidence if it was involuntary?

Yes..e.g., P driver has accident near construction site, sues for improper signage. State highways dept orders them to put up signs.
•This would not be excluded as SRM
•It wasn't a voluntary measure; it was ordered by a 3rd party

In GA, are subsequent remedial measure admissible in product liability cases?

Yes.
-Not in FRE.
-State JDs are split

are offers to compromise admissible?

No. Settlements offers not admissible when:
(1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and
(2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority.

What are some permitted uses of offers of compromise?

proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution.

Are offers to pay medical bills admissible?

No

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