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 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
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
In criminal case, can the Defense introduce evidence of an alternate perpetrator if the P has strong forensic evidence?
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
-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?
• 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?
• 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?
• 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 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 you question an accused on issues in the case other than that presented in a preliminary matter?
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?
• Sworn from witness stand or Out of court statements
• Electronic docs, hard copies
• Objects e.g. cocaine seized from house; OJ's glove
***All three are subject to formal proof
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 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?
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.
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
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
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
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?
• 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 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
• 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
Under what circumstance can a juror testify?
Post-trial, can get affidavits from jurors and motion for new trial if outside influences affected verdict
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.
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 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
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
• 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 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?
-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
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
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
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 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
What limited uses may subsequent remedial measures be used for?
The other limited uses-- must be in dispute
-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
is a subsequent remedial measure before a P's injury admissible
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?
-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.
when are confessions of a criminal D admissible?
when they are voluntary. Rule of completeness applies
what rights do criminal D's have?
• Right to remain silent (5th Amend), if violated, then not admissible.
• Right to counsel (6th Amend)
What two steps does a confession by a criminal D have to go through?
1. judge decides whether or not there was a Miranda violation
2. the jury then will be asked to decide whether confession was voluntary
When does Miranda apply?
1. When an alleged is arrested.
-Once RP in citizen's shoes beleieves he is arrested, he must be read Miranda Rights
2. when an alleged is stopped and questioned
Can Police officers lie about what evidence they have against a D during interrogations?
Yes, but cannot lie about severity of charges
If a suspect talks for a while, but stops and invokes Miranda, can P use this?
Yes. However, they can't say what the last question was before suspect stopped cooperating
Can evidence of a plea bargain be used against a D?
inadmissible under any circumstances
o Once plea deal is struck, D will go before judge and plead guilty
Can a D withdraw a guilty plea baragain?
Yes, D can withdraw guilty plea anytime up until sentencing
What must be shown for a statement to be inadmissible for being a plea bargain and not an admission?
Under both GA & Fed rules, it must be clear that D is being offered a deal and they have power to make such a deal
Can an admission by a conspirator be used against his co-conspirator?
No. Burten Problem.
If Al said "Bob and I robbed the bank"
•Admissible against Al
•But not admissible against Bob
•Confrontation clause issues: Al can't be compelled to cross-examination by Bob
Are interlocking confessions admissible against both co-Ds?
Yes. If both Al and Bob confessed, admission by one can be used by the other.
When can interlocking confessions not be used?
More incriminating confession
•If Al's confession is more incriminating than Bob's, then the other things that Al said that digs the hole deeper for Bob are inadmissible
If All comes home and tells his GF "Bob and I robbed the bank" is this admissible?
yes. Under the co-conspirator rule or Statements against criminal interest
What are requirements to get a statement in furtherance of conspiracy into evidence against an co-conspirator over the HS rule?
•Declarant had to be MEMBER of conspiracy
•Statement had to be made DURING the conspiracy
•Statement had to be IN FURTHERANCE of the conspiracy
What is a statement against criminal interest?
Statement so far against criminal interest, he wouldn't say it if it wasn't true
Is a statement against criminal interest available when D can testify?
NO. Only available when declarant unavailable to testify
What is testimonial HS rule?
the prosecution may not use a HS statement against the criminal D at trial if the
1) HS is testimonial,
2) the declarant is unavailable, and
3) the defendant has not had an opportunity to cross-examine the declarant.
what are the two situations when we might see testimonial HS?
•Statements TAKEN by state actors, then reported to court
•Statements made by individuals UNSOLICITED to prosecutorial agents
How can you determine if a statement was testimonial or not?
if the primary purpose of the statement was the investigation and collection of evidence concerning a crime, the statement is testimonial.
If, on the other hand, the primary purpose of taking the satement was to deal with an ongoing emergency, the statement is nontestimonial. nontestimonila statements are admissible against the accused IF they satisfy the HS rule.
What are opportunities for a D to cross-examine a Declarant to overcome confrentation clause issue?
---NOT GRAND JURY bc there is no cross-examination
What is the forfeiture exception to the HS rule?
HS is admissible against a party whose wrongdoing made the W unavailable if the court finds that the party intended by his conduct to prevent the W from testifying. By making the W unavailable through his own actions, the D waives/forfeits both his HS and 6h amendment objections.
In what situations will HS be admitted when the D is unavailable to testify at trial?
2) Out of jurisdiction
3) Illness or death
4) Lack of memory
5) Can't be located with due diligence
What is the former testimony exception to the HS rule?
former testimony of unavailable W if given at a former deposition or proceeding against a party who on the prior occasion had an opportunity and motive to cross examine and develop the testimony of that witness
What is the statement against interest exception to the HS rule?
1) Declarant is unavailable
2) Statement is against the declarant's pecuniary(money), proprietary(property), or penal(criminal) interest at the time statement was made
3) any person can make such statement
4) personal knowledge of statement is required
What is the dying declaration exception to the HS rule?
1) declarant is unavailable to testify
2) who believes death is imminent and certain and
3) Statement concerns the cause or circumstances of declarants death.
Can use in all civil cases, but only in homicide criminal cases.
What is the res gestae exception to HS rule?
Things done during/near the events in question.
- Declarant's are probably so caught up in events of act that they wouldn't have time to fabricate a lie.
What are HS exceptions where unavailability of D is not required?
1. present sense impression
2. exited utterance
3. Then existing mental, emotional, or physical condition
what is the present sense impression exception to the HS rule?
A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.
-Contemporaneous statement or IMMEDIATELY after
-About event in external world
Policy: D didnt have time to fabricate, forget, or be influenced
what is the excited utterance exception to the HS rule?
statement concerning a startling event and made while declarant is still under the stress of excitement caused by the event.
-Duration: As long as the stress of the event goes on, we'll continue to include statements
-Subject matter- Statement must be about event-
Rationale: excitement produces spontaneous rather than deliberate expressions. Spontaneous=trustworthy
what is the present state of mind exception to the HS rule?
statement concerning the declarant's then existing state of mind, feelings, or emotions or physical condition.
Includes the declarant's then-existing statement of intent to do something in the future.
• As long as these statements are in the PRESENT TENSE, they get in
• Anything that is BACKWARD-LOOKING is not included
Can a statement incorporating someone else's intent with own be admitted over HS objection?
No. would have to remove part including other person's intent
What is the Medical Treatment HS exception?
statement made to medical personnel concerning any matters pertinent to medical diagnosis or treatment. Includes:
1) Present symptoms
2) Past symptoms
3) General cause of declarant's condition
Do Statements from the healthcare provider to the PAT or to another provider fall under the Medical treatment exception to the HS rule?
No. This exception does not cover statements from the medical health care provider and the PAT or from one health care provider to another. The exception is only a ONE-WAY street, but Can be from someone who has patient's best interests in mind
What is the pas recollection recorded HS exception?
1) Showing the writing to the W fails to jog the W's memory
2) W had personal knowledge at a former time
3) The writing was made W by himself or was adopted by the W
4) The W's writing or adoption occurred close in time to the event recorded(fresh in the mind of W)
What are the elements of the business record exception?
1) Records of any type of business (can include public business like police)
2) Records were made in the regular course of business
3) The business regularly keeps this type of record
4) The record was made at or about the time the event recorded(contemporaneous)
5) The contents of the record consist of either of two things
a) Information observed by EEs or
b) Statement that falls within an independent HS exception
- Policy: businesses depend on honest and accurate record keeping to thrive so court can trust them.
Do judges have discretion to exclude business records?
Yes if it is untrustworthy.
Also, the court may redact portions if they are inadmissible under the exception
How do you lay foundation to get business records into evidence?
1. Need to get a "qualifying W" to testify to the 5 elements of the exception. OR
(The qualifying W need not be the author of the report, can be records custodian, or any other knowledgeable person with the business)
2. Obtain a written certification under oath(affidavit) attesting to elements of business records HS exception. (with advance notice to opposing party)
Can lack of a record be used to prove that an incident did not occur?
Yes, if it is shown that records of such type are ordinarily kept.
What is the public records HS exception?
803(8)Public records are admissible if they set four:
A. The activities of the office or agency itself (easiest to get in) or
B. Matters pursuant to a duty imposed by law
C. Govt. report containing findings of fact or opinions resulting from an investigation authorized by law
Are police reports prepared for prosecutorial purposes and government investigations admissible under public records HS exception?
No, but Routine, mundane records, not for purposes of prosecution OK
True or false: public records pursuant to a duty imposed by law and govt. investigations containing findings of fact or opinions from an authorized investigation are NOT admissible to criminal D's and civil litigants.
False. 803(8) B & C are available to D and also to civil litigants UNLESS they are untrustworthy
what requirements are there for a public investigation to get in as a public record?
1. agency doing investigation cannot be involved in the investigation or have any interest
2. the report must be complete
3. Due Process- report must be trustworthy and accurate.
What are the catch all requirements for a statement to get in over a HS objection?
3. Notice to opposing party
How can you impeach a HS statement?
the credibility of the declarant may be attacked by any evidence which would be admissible for those purposes if declarant had testified as a witness.
Why are experts used?
they have Scientific, technical or specialized knowledge that will be helpful the jury
what are the five basic requirements to admit an expert's testimony into evidence?
1. Expert must be qualified in the field/
2. opinion must be within their qualification
3. opinion must be based on adequate data
4. opinion must be based on reliable theories of evidence
5. opinion must assist the trier of fact
what steps do you need to take to admit expert evidence?
1. qualify expert
2. show how expert is basing opinion.
What are the Daubert Requirements?
Opinion based on reliable facts or data from case
Opinion based on reliable theories and principles
what can an expert use to base her qualifications?
1. personal knowledge
2. facts admitted at trial
3. facts not admitted, but reasonably relied upon in field
Can Experts testify about facts not admitted at trial and not reasonably relied upon in her field?
if the info is not reasonably relied upon, must ask if the info is critical to reaching expert's opinion, if yes- admissible.
If opinion from facts not admitted at trial and not reasonably relied upon in her field is admitted, can HS which facts are based on be admitted?
Presumption is EW may not disclose in jury trial, but may in bench trial bc judge can differentiate bw valid and invalid HS.
in jury trial, the HS may be admitted if the probative value substantially outweighs prejudice. Judge may give limiting instruction to not accept HS an only opinion.
what are the two daubert motions?
1. expert did not use a reliable field of expertise
-Novel or controversial science "not ready for courtroom"(purely theoretical, rejected by majority of scientists, not peer reviewed/replicable)
2. expert did not apply the expertise reliably
- Expert did not follow the procedures that make the science generally reliable
-expert went too far
who is the gatekeeper to determine if an Expert Witness is not using reliable theories or procedures?
What are factors the judge should look at to test reliability?
• Testability- can we test these theories?
• What is the potential margin of error?
• Has it been subjected to unbiased peer review?
• Is this theory generally accepted?
• Is the opinion based on research expert has conducted independent of the litigation?
• Has the expert employed the same care in reaching his litigation-related opinions as he employs in his regular professional work?
• Has the expert adequately accounted for obvious alternative explanations?
• Has the science been applied in the proper way?
What can opposing counsel do after foundation has been laid for an expert?
1. no objection
2. object that he's not an expert
3. conditional acceptance- limited area of expertise
4. voir dire the EW
Can an expert rely purely on the testimony of another expert?
NO. Can partially rely on other expert's opinion, but can't rely solely on it
Can journals and reports be admitted into evidence?
Yes. by showing that XYZ is routinely relied on in business or public
Can you admit the contents of a treatise or other authoritative text on direct?
no, only on cross of expert
If a expert uses a treatise can opposing council impeach EW with contradictory authoritative treatise?
Can a court appoint an expert?
Yes. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection.
In GA does Daubert apply to criminal cases?
No. WTF? uses Harper, a lower standard for scientific evidence?
Can an expert testify as to the ultimate issue of the case?
Yes. but cannot testify to opinions jury can decide for themselves or opinions phrased in legal terms.
What did the Collins case say about probabilities?
•Need to be careful about focusing on probability
Wee need to focus on truth
If we focus on probability, we accept a certain margin of error and wrongfully convict some people
What is the general rule re: Character Evidence?
Propensity inference is a prohibited use of character evidence bc it can prejudice jury
How does character evidence prejudice a party?
•Misdirection- If D has long criminal history, jury may just convict him because they don't wan him on the streets; not necessarily convicting him for THIS crime
•Surprise/Burden on other party to have to defend his whole life
•Overvaluing- jury overvalues weight of criminal past
What are exceptions to the Character Evidence rule?
1. Person's character is an essential element in the case.
2. When accused's good character has been offered by the accused, the accused's bad character may be offered to rebut
3. When the accused points out a pertinent character trait of victim, character trait of the accused can be introduced
4. When Character of Witness for untruthfulness is introduced, character for truthfulness can be introduced in rebuttal
what are the two types of character Ws?
o To prove character of party: 405
o To prove character of another witness: 608
Can a D introduce evidence of own good character?
Yes, but opens the door and P may bring in bad character evidence
how may a D bring in character of own good character?
reputation and opinion only on direct
- no specific instances
How may an P bring in bad character evidence if D has opened the door?
reputation, opinion, or specific acts
what are situations where a character trait is an essential element of a claim?
defamation, parental fitness, etc
-very few cases
when D opens door and prosecution rebuts, can P go outside the scope of the door D opened?
no. can only enter the door that D opened. can be wide or narrow
if D's witness denies knowing specific bad acts of D can prosecution introduce evidence extrinsic evidence of the bad acts?
No, prosecutor must accept W's answers and hope they change their answer later.
True or false: Prosecution does not need a good faith basis to ask specific ?s about specific acts of D.
False. P needs good faith basis
May a D introduce a pertinent character trait of the V on direct?
yes, but must point to a legal defense to be relevant (self-defense)
what happens if D introduces pertinent character trait of the V on direct
-P can rebut with good character evidence of V or same bad character evidence of D.
True or false: In homicide cases, if defendant offers evidence of any kind that victim was the first aggressor, prosecution may introduce evidence of the victim's character for peacefulness.
True. IN HOMICIDE cases
what is the rape shield law?
in both criminal and civil cases, where the defendant is alleged to have engaged in sexual misconduct, the following evidence about the victim is ordinarily inadmissible:
-opinion or reputation evidence about the victim's sexual propensity, or
-evidence of specific sexual behavior or attitudes of the victim.
What are the exceptions to the rape shield law?
if the P offers evidence that semen or physical or mental injury to the V corroborates the charge of rape, the accused may offer evidence that someone other than D was the source of semen or injury to the V.
If the accused admits sexual contact with the V, but claims CONSENT, then the accused may offer evidence of his prior, consensual sexual activity with the V.
May the prosecution bring in evidence of D's past crimes?
If the only purpose propensity then no, but if it is used to show something specific about the crime (motive, knowledge) it may be admissible
What are the most common non-character purposes of past crimes?
Absence of mistake or accident
How may P introduce evidence of D's past crimes?
-by any evidence that proves the crime occured and shows its non character relevance
-conditional relevancy standard--prosecution need only produce sufficient evidence from which a reasonable juror could conclude that D committed the other crime.
to admit evidence of prior crime what will court evaluate?
1. relevance for alternative purpose
2. sufficient evidence that D committed prior wrong with preponderance of evidence
3. 403 balancing test.
If evidence of other crimes or acts is admitted is it considered character evidence?
No, even if it bears on character, thus the defense does not have to open the door.
May P introduce evidence of prior similar sexual misconduct in case in chief?
Yes. Can be for any relevant purpose including propensity
Are similar occurences admissible to prove that a party acted similarly on a prior occasion to how the party acted on the occasion in question.
No, but if offered for another relevant purpose they are admissible, subject to a limiting instruction.
True or False: Similar injuries caused by a THING, not a person, are admissible if relevant.
True, their relevance is determined by substantial similarity
May evidence of industry custom be admitted?
Yes. Evidence of how others in the same trade or industry have acted in the recent past may be admitted as evidence as to how a party in the instant litigation should have acted. Ie as evidence of the appropriate std. of care
May habbit or routine practice be admitted?
Yes, is admissible as circumstantial evidence of how the person or business acted on the occasion at issue in the litigation.
Habbit is repetitive, invariable, automatic, and SIMPLE( wearing seatbelt=simple, driving=complex)
What are the four types of impeachment?
veracity(criminal, liar, lied before, prior inconsistent statement)
How can a party impeach through contradiction?
cross-examiner may confront a W with facts that contradict what the W said on direct. if the W admits she made a mistake or lied, she has been impeached by contradiction. However, if she sticks to her story, then
-can be impeach with facts on non-collateral info
=cannot be impeach with facts on collateral info, thus cross-examiner cannot do anything else, but keep question.
Is bias or prejudice ever collateral?
Specific bias is never-->admissible
General is collateral(inadmissible) unless its is extraordinary(admissible)
When is a W's truthfulness at issue?
when they testify and their statement is admitted into evidence
What foundation is needed for a character W to testify?
the character W has spoken to people in subject W's community and asked about the subject's reputation for truthfulness or knows from personal experience that Subject W is untruthful.
what types of past crimes may be admitted to impeach a W?
1) conviction of truth crime (crimin falsi) (misdemeanor or felony)
2. In no crimin falsi, must be a felony and court may exclude if probative value is outweighed by danger of unfair prejudice.
what are the time limitations for introducing prior crimes for impeachment?
must be 10 years for both categories. If more than 10 years, the conviction may not be used for impeachment unless the proponent provides pre-trial notice and the judge finds the probative value substantially outweighs the prejudice.
What does a cross-examiner need to ask question that W has lied before about a matter unrelated to this case?
needs good faith basis and permission of trial court.
If W does not admit to lying in the past about an unrelated matter, may cross-examiner introduce extrinsic evidence?
no, the prior incident is collateral and thus counsel must accept W's answer.
When is a prior inconsistent statement admissible for its substantive and impeachment use?
-the prior statement is admissible under the HS rules; or
-the prior statement was made under oath at a trial or other legal proceeding.
Do you need to give a W a chance to admit, deny, or explain a prior inconsistent statement used for impeachment?
Yes, unless the statement is made by a party opponent.
once a W's credibility has been attacked may a character W be used to present reputation or opinion evidence to rehab W's truthful character?
what does the Atty-client privilege cover?
1) Confidential communications
i.. Does not apply to clients knowledge of underlying facts, pre-existing docs, or physical evidence.
ii. client must intend confidentiality
2) Between atty and client
i. Atty- must be member of bar or persons client reasonably believes are members of the bar
ii. Client- current client or person seeking to be client on initial consultation
3) If the communication was made during professional legal consultation
i. Oral or written
ii. Must be during legal consultation, not business or social purposes
what is the joint client rule
if two or more clients with a common interest consult the same attorney, their communications with counsel concerning the common interest are privileged as to third parties. but if the joint clients later dispute with each other concerning the common interest, the privilege does not apply as between them.
who is considered an ATTY under the atty-client privilege rule?
member of the bar or person that client reasonably believes is member of the bar.
Also includes agents of the attorney.
who can waive the atty-client privilege?
the client(after clients death it continues and only the estate can waive it.
what is a subject matter waiver?
a voluntary waiver of the privilege as to some communications will also waive the privilege as to other communications that concern the same subject matter.
what is an inadvertent waiver?
an inadvertent disclosure of a privileged communication will not waive the privilege so long as the privilege-holder took reasonable steps to preserve the confidentiality of the communication.
What are two exceptions to the atty-client privilege?
i. Future crime or fraud- no privilege to cover up future crime or fraud
ii. implied waiver- If clients put legal advice in issue, it then becomes an implied waiver and is admissible
what is the MD-PAT privilege?
not in Fed or GA.
same as atty-client
PAT waives privilege when the PAT expressly or impliedly puts physical condition in issue.
What is the mental health care privilege?
not in Fed or GA.
same as atty-client
PAT waives privilege when the PAT expressly or impliedly puts physical condition in issue.
what is the Spousal immunity marital privilege?
Spousal immunity: available in criminal cases only. Spouse cannot be compelled to testify about anything against a Defendant spouse
1) Protect marital harmony during trial
2) Applies to W spouse, not Defendant spouse
3) W can waive this privilege and still testify
what is an exception to the Spousal immunity privilege?
Crimes against children(not in GA) and sometimes the testifying spouse.
what is the spousal confidences privilege?
in ANY type of case, a spouse's confidential communications to his or her spouse are protected.
The communicating spouse hold this privilege?
Exception: Crimes against children(not in GA) and sometimes the testifying spouse.
What are the other privileges?
based on atty-client model
News Reporters' Privilege
Self-Incrimination (both chapters)
How do the federal rules and GA rules differ on Res Gestae?
GA does not admit statements of a person's intent to prove that he acted in accordance with that intent. Such statements are admissible under FRE.
How do the federal and GA rules differ on prior consistent out of court statements?
FRE-HS, but admissible to logically rebutt credibility
How do GA and FRE differ on admissions by agents?
GA-must be authorized by principle to make statement
How does the business record exception differ in GA than FRE?
1. In GA no opinions, FRE allows
2. GA you can admit only through foundation, FRE can admit through foundation or affidavit
how does the GA public records exception differ from FRE?
GA uses the general business record exception. Does not allow matters observed and reported pursuant to factual fidnings from authorized investigations.
how does the GA rule differ on learned treatises?
In GA, EW may refer to treatise but it cant be read direct, Fed allows it in direct if it is reliable authority. Both allow on cross.
How do GA an FRE differ on experts?
daubert only applies in civil cases, not criminal
-In civil cases, experts may base opinion on inadmissible facts, if they are reasonably relied upon in the field, but the inadmissible facts may not be disclosed to a jury in most instances.
In criminal cases, the fact that expert based opinion on HS goes to weight not admisibility
how does the ga rule on statement of co-conspirators differ?
In ga, conspiracy to conceal is presumed as long as perpetrators are avoiding arret and prosecution.
Fed- post crime statements only in furtherance of conspiracy.
How does GA's rule for similar transactions differ?
GA rule broader to introduce past crimes and wrongs. Can admit "bent of mind" or "course of conduct." Fed does not allow.
How does the GA rule on plea bargains differ?
Fed only protects plea discussions with prosecutor
GA protects that and confessions to police if it was induced "by the slightest of hope or benefit" but not if the benefit was collateral.
how does GA differ on impeachment by prior instances of lying?
GA does not allow impeachment of a W by asking the W about prior instances in which the W lied if the prior instances are collateral to the factual isues in the subject case. The fed allows this on cross with trial judge's permission.
How does GA differ re: notice prior inconsistent statement?
GA- have to show W statement first
Fed-do not have to, but have to give them opportunity to explain
How does GA differ re: admitting prior inconsistent statement?
GA- can admit for substantive or impeachment
FRE- impeachment only unless made under oath
how does GA differ re: the best evidence rule?
GA- cannot use photocopies, must have original
FRE- can have copies, unless party has specific reasons to use original.
Summarize Beech Aircraft Corp. v. Rainey
The question was whether opinions, evaluations and conclusions are included within the phrase "factual findings resulting from an investigation made pursuant to authority granted by law." under Public Records HS exception...Rainey held that they are.
Summarize Williamson v. United States
Criminal Confessions: The fact that a person is making a broadly self- inculpatory confession does not make more credible the confession's non-self-inculpatory parts(other D's)
Summarize People of Territory of Guam v. Shymanovitz:
-Man charged with criminal sexual conduct with children
-Magazines found that involve sex with minors.
Most courts would and should keep out adult homosexual material but would keep in the material that directly coincided with charges.
Summarize the Michelson v. US holding:
ii. Michelson holds that there must be a good-faith basis to believe facts raised on cross are, in fact, true.
Crawford v. Washington:
• Every time hearsay offered at trial, we have to analyze whether it's testimonial
Look at this early in analysis
• No hearsay exception trumps Constitution
Davis v Washington
iv. Primary Purpose Test (Davis)
a. if the primary purpose of the statement is for the statement to be used to prosecute, it is Testimonial Hearsay and inadmissible even if the statement may in fact be used to prosecute and declarant knew of the possibility at the time
b. if not it is not testimonial hearsay and is admissible if it falls in a hearsay exception