How should be approach an Evidence question?
1. underline the cause of action
2. Situate the Proceeding (are we on direct, cross, redirect, def-witness, P's witness, etc?)
3. Determine the purpose for which the evidence is being offered (is substantive, for impeachment, or for character or credibility?)
What are the 3 main Substantive Areas tested on the MBE?
Character evidence (5 ques) Impeachment (5 ques) Hearsay (12 ques)
Where do the Fed. Rules apply, and where don't they apply?
Apply: All civil and criminal trials and proceedings in Fed. court. Also, bankruptcy and admiralty
don't apply: Preliminary Question of Fact, Grand Jury Proceedings, Preliminary Hearings, Sentencing and Probation Hearings, Obtaining A Warrant, Bail Proceedings
Requirements for an Appellate Court to reverse a trial court's decision:
Where a ruling ADMITS evidence, a TIMELY AND SPECIFIC objection must be made to preserve the issue for appeal. If there is a general objection (i.e., "I object") the issue is not preserved for appeal
If an error is made during an objection, but it is not prejudicial to the outcome, then the harmless error rule applies. What is the harmless error rule?
Harmless error is if the jury would have reached the same verdict had the error not occurred.
What preliminary questions of admissibility must be determined by the court?
1. Competency - witness qualifications 2. Admissibility - whether or not hearsay exception applies 3. Privilege - attorney/client, husband/wife
Conditional Relevancy 104(b)
Where the admissibility of one item of evidence is conditioned on the relevancy of another item of evidence. Once that condition is met, the judge shall admit the evidence.
ex: one letter says girl is cool, but a photocopy says she's a fool. THE RELEVANCY OF THE P.C. IS CONDITIONED ON THE RELEVANCY OF THE LETTER SO THE JUDGE WILL ADMIT AND LET THE JURY DECIDE
Limited admissibility 105
If evidence is admitted as to one party or for one purpose but inadmissible as to another party or for another purpose the court shall restrict the evidence to its proper scope and instruct the jury accordingly. Counsel must request a limiting instruction.
ex: If a defendant is being impeached with his former convictions, we allow the jury to decide whether it believes the defendant. The prior convictions are admissible to challenge defendant's credibility, but not as substantive evidence of defendant's guilt. The jury is not allowed to use those prior convictions to determine the defendant's criminal disposition
Remainder of or Related Writings or Recorded Statements (Rule 106
WHERE A PARTY INTRODUCES PART OF A WRITING OR RECORDING, THE ADVERSE PARTY MAY IMMEDIATELY INTRODUCE ANY OTHER WRITING OR PART OF THE WRITING WHICH IN FAIRNESS OUGHT TO BE CONSIDERED
Judicial Notice Rule 201
a substitute for proof where the court excepts certain adjudicative facts as true without requiring formal presentation of evidence (science, geography, calendars, etc)
Type of Judicial Notice
1. Commonly Known Facts: Not subject to reasonable dispute, generally known within the jurisdiction (water boils at 212F, capital of Texas is Austin)
2. Facts that are readily ascertainable and cannot be disputed: fact which are capable of accurate and ready determination by resort to sources of unquestionable accuracy (Radar, blood test, DNA profiling, interest rates)
When is the taking of Judicial Notice mandatory, and when is it permissible?
Permissible: The judge may not take judicial notice of a fact merely because it is within her knowledge
Mandatory: 201d - when requested by a party, and supplied with the necessary info.
Can one contradict once fact has been judicially noticed?
NO CONTRADICTORY EVIDENCE IS PERMITED ON THAT ISSUE
HIGHLY TESTED: The effect of a jury instruction on judicial notice (civil and criminal)
1. A civil jury MUST ACCEPT A JUDICIALLY NOTICED FACT IS CONCLUSIVE
2. A criminal jury MAY ACCEPT A JUDICALLY NOTICED FACT AS CONCLUSIVE
Presumptions in General and Civil Actions and Proceedings (Rule 301):Burden of Production... Ex:
Plaintiff presents a prima face case for negligence but fails to prove the element of damages. Plaintiff did not meet his burden of production.
Burden of Persuasion
The degree to which evidence must be proven. Ex: Prosecution has the burden of production and persuasion to prove every element of murder beyond a reasonable doubt that defendant committed the murder. Then in most jurisdictions and in federal courts, if the defense raises an insanity defense, the burden of production shifts to the defendant to prove insanity by a POTE (Model Penal Code and most state courts) or by clear and convincing evidence (federal court. standard)
3 levels to the Burden of Persuasion
1. Lowest - preponderance of the evidence
2. Intermediate - Clear and Convincing
3. High - Beyond a reasonable doubt
How do presumptions function as a shortcut to evidence:
Presumption arises where one set of facts, once established, give rise to another set of facts (which are called presumed facts)
Bubble Bursting Theory (Thayer Theory):
ONCE THE OPPONENT PRESENTS SUFFICIENT EVIDENCE THAT THE PRESUMED FACT IS NOT TRUE, THEN THE PRESUMPTION DISAPPEARS FROM THE CASE AND THE BUBBLE BURSTS (SOMEONE MISSING FOR 6 YEARS, PERSON IS DEAD, BUT EVIDENCE CAN BE BROUGHT IN TO BURST THE BUBBLE)
EVIDENCE WHICH TENDS TO MAKE THE EXISTENCE OF ANY FACT MORE PROBABLE OR LESS PROBABLE THAN IT WOULD BE WITHOUT THE EVIDENCE
3. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time (Rule 403). 6 ways to exclude relevant evidence:
1. the danger of UNFAIR PREJUDICE 2. MISLEADING the jury. 3. considerations of UNDUE DELAY 4. WASTE OF TIME 5. needless presentation of CUMULATIVE EVIDENCE
2 MBE TIPS CONCERNING RELEVANCY
1. Most 403 objections are properly overruled
2. 403 balancing test favors admission
Relevancy: In negligence and product liability cases, evidence of prior or subsequent accidents may be relevant to prove (4), but the prior accident must have occurred*:
1. A dangerous condition existed 2. a product was defective 3. the cause of the accident, or 4. notice of a dangerous condition
*under SUBSTANTIALLY SIMILAR CONDITIONS (SIMC) SUBSTANTIAL IDENTITY OF MATERIAL CIRCUMSTANCES
Entering evidence to show consciousness of guilt: How is it relevant, and what examples have been seen on MBE?
Relevant to show a guilty mind.
Fleeing the scene, threats by the D against a witness, hiding from the police, using an alias, failing to submit to a blood alcohol test
Direct v. Circumstantial
D: no inference is required "i saw the D shoot him"
C: an inference is required to connect it to a conclusion of fact
"I didn't see the D shoot the V, but I heard gunshot, and saw D running down the alley"
Character Evidence in CIVIL CASES 404: when can you use it, and what 3 forms can you use?
Character evidence is inadmissible to prove conduct in conformity therewith. Exception WHERE CHARACTER IS IN ISSUE. All 3 forms of character may be admitted: 1) REPUTATION , 2) OPINION and 3) SPECIFIC ACTS
Specific Cases of actions in Civil Cases where character is an issue:
Defamation, Child Custody, Negligent Intrustment, Negligent Hiring, Fraud or Misrepresentation
Character Evidence in Criminal Cases:
It is rare for character evidence to be relevant unless fraud cases
Rules for Character Evidence in Criminal Cases: 404(a)(1)
1. The prosecution may not initially introduce evidence of defendant's bad character: D HAS TO OPEN THE DOOR FIRST.
2. Testimony about a pertinent trait of the defendant (good character): THIS OPENS THE DOOR
3. Once the door to character evidence has been opened (rebuttal), the prosecution may rebut with reputation or opinion
How might the prosecution cross the D's witness concerning the D's character?
did you know the D committed 3 robberies in the past year? (proper question) Specific acts maybe inquired into on cross of the D's witness
FRE 404(a)(2): Testimony about a pertinent trait or character of a victim (bad character): How can D get it in?
D MAY OFFER EVIDENCE OF THE BAD CHARACTER OF THE VICTIM TO SHOW HE ACTED IN SELF-DEFENSE AND THE P CAN DO THE SAME, BOTH USE OPINION AND REPUTATION
What if the D doesn't attack the victim's character, but merely states he acted in self-defense?
The victim may only offer evidence of his peacefulness
In a homicide case, may the D offer specific acts against the victim?
Yes, the D's fear of the victim isn't addressing any pertinent trait of the victim's character.
FRE 404b "Evidence of character may be admissible when offered for a purpose other than to show... (complete)
What is MIAMI KOPPS?
...conduct in conformity with one's character"
Circumstantial evidence of other crimes, wrongs or acts is generally inadmissible, but may be offered to prove: Motive, Intent, Absence of Mistake, Identity, Knowledge, Opportunity, Preparation, Plan or Scheme
The 404b Exception can be simplified to MIMIC.
Motive, Intent, absence of Mistake, Identity, or Common plan or scheme
MIMIC character evidence never comes in to . . . (complete)
show criminal disposition or propensity of the evidence
When might the MIMIC evidence (other acts) have occurred and still be admissible under this rule?
before, during, or after the date of the offense
Habit: Routine Practice 406: Rule, in what forms is it admissible, and what key words to look for:
Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove conduct in conformity of the habit.
Admissible in the form of OPINION or SPECIFIC ACTS.
Key: ALWAYS, AUTOMATICALLY, REGULARLY, INSTINCTIVELY, WITHOUT FAIL, HABITUALLY
Subsequent Remedial Measures (SRM) (Rule 407). What can't it be entered to show, and what can it be entered to show? Whats the public policy.
Evidence of SRM is inadmissible to prove NEGLIGENCE, CUPABLE CONDUCT, DESIGN DEFECT, OR A NEED FOR A WARNING
Exceptions: TO SHOW OWNERSHIP OR CONTROL, TO IMPEACH, TO SHOW FEASIBILTY OF PRECAUTION
PP: to encourage people to fix dangerous conditions and make products safe
SMR: Feasibility of Precautions
If defendant claims "a different accelerator design was not feasible" to prevent such accidents, evidence that defendant did make subsequent changes to make the design of the accelerator safer is ADMISSIBLE to refute defendant's claim: WOULD APPLY IN NEGLIGENCE AND PRODUCT LIABILITY CASES
Compromise and Offer to Compromise 408 (Offer to Settle) - 3 points
1) an offer to settle is inadmissible
2) Judge Determines whether they are compromised negotiations
3) Must be a dispute as to an amount or fault, but an offer will be admissible as an admission if both fault and damages are admitted (statement offered against party opponent)
408 Offer to Settle: Exceptions
1. offers to settle can be admitted to show bias or prejudice 2. to negate a contention of undue delay, or 3) to show efforts to construct a criminal investigation
408 Offer to Settle: Severance (COMMON ON MBE)
There is no severance. Ex: X & Y have a car accident. Assume the facts state there's a dispute as to fault between the 2 parties. X says to Y, "I may have been driving a little too fast (admission), but you went through the red light. Anyway, I'm willing to settle this matter with you." Result:
NEITHER THE ADMISSION OR SETTLEMENT OFFER WILL BE ADMITTED
409 Payment of Medical and Similar Expenses: Rule, and is there severance?
Evidence of an offer to pay medical bills is inadmissible to prove liability of any injury
Ex: "Redaction Rule" same hypothetical as last card. This time defendant says, "I may have been driving a little too fast (admission), but you went through the red light. Anyway, I'm willing to pay your medical bills (409)." Result: THERE IS SERVANCE UNDER RULE 409, SO ADMISSION WILL COME IN WHEN COMBINED WITH OFFERS TO PAY MEDICAL BILLS
Inadmissibiliity of Pleas, Plea Discussions, and Related Statements 410: Rule, when does it apply, and when it doesn't apply.
A PLEA AND ANY STATEMENT MADE DURING PLEA NEGOTIATIONS BY A D, IN A CIVIL OR CRIMINAL PROCEEDING, WILL BE INADMISSIBLE AGAINST THE D IN A LATER PROCEEDING
Applies: 1. pleas of guilty later withdrawn 2. pleas of nolo contendere 3. offers to plea guilty
Doesn't Apply: 1. statements made to police
Liability Insurance Rule 411: Rule, severance,
Evidence that a person was not insured is inadmissible to prove negligence or fault
Ex: Following an accident, defendant says, "It was my fault (admission), but don't worry, I have plenty of insurance." Result: YES YOU CAN SEVERE. IT WAS MY FAULT WOULD BE ADMITTED
Is there an exception to Rule 411 concerning insurance against liability?
Evidence of insurance against liability may be admitted for another purpose, such as: PROOF OF AGENCY, OWNERSHIP OR CONTROL, BIAS OR PREJUDICE OF A WITNESS
Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (Rule 412) Rape Shield Law:
IN ANY CIVIL OR CRIMINAL PROCEEDING INVOLVING ALLEGED SEXUAL MISCONDUCT, EVIDENCE OFFERED TO SHOW THE ALLEGED VICTIMS SEXUAL BEHAVIOR, PREDISPOSTION, AND HISTORY IS EXCLUDED. REPUTATION AND OPINION EVIDENCE IS INADMISSIBLE
Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition (Rule 412) When is evidence admissible? and what constitutes sexual behavior?
Evidence will not be admissible unless: 1.) notice is given to the opposing party, 2.) unless evidence is reviewed in chambers, and 3) unless evidence alleges sexual misconduct
S.B: actual sexual/physical conduct, contraceptives, fantasies, etc.
Under 412, in what 3 cases are specific acts admissible?
1. past acts with D which tend to show consent, 2. past acts with other men, to show the D was not the source of the semen, and 3. evidence is permitted if exclusion would violate any constitutional right of the D
In civil cases, how might evidence offered to prove the sexual behavior or predisposition of any alleged victim be admissible?
absent any other reason of admissibility, there will be a balancing test to see if the probative value substantially outweighs the harm to the victim or the danger of unfair prejudice to any party
Rule 413-415 How are specific acts treated in criminal and civil child molestation cases? What are the two limitations?
SPECIFIC ACTS BY THE D ARE ADMISSIBLE AND THEY MAYBE CONSIDERED AS THEY BARE ON ANY RELEVANT MATTER. A prior conviction is not required. Merely needs to meet the preponderance of the evidence
Limitation: 1. subject to judges discretion, and 2. D gets notice
Privilege Generally (Rule 501) - what law governs privileges and why?
ONLY COMMON LAW PRIVILEGES ARE RECOGNIZED AS INTERPRETED BY THE FEDERAL COURTS. THE FED RULES OF EVIDENCE DO NOT CONTAIN A LIST OF RECOGNIZED PRIVILEGES DUE TO DISAGREEMENT IN CONGRESS. Governed by common law, subject to superseding state law.
How are privileges handled differently in civil cases, compared to federal question cases and criminal cases?
Civil: this would be diversity actions, the privilege of a witness is determined by state law
In Federal Question cases and criminal cases: the privilege of a witness is determined by common law.
Privilege under Common Law:
Except as otherwise provided by the constitution or statute or by these or other rules promulgated by the state, no person has a privilege to: 1) refuse to be a witness 2) refuse to disclose any matter 3) refuse to produce an object or writing
What are the 4 Confidential Communication Privileges recognized in federal court and all 50 states?
Husband/wife, Attorney/Client, Psychotherapist/Patient, Clergy/Penitent
6 Key Privilege Issues:
1. was there a protected relationship 2. was there communication 3. is it confidential 4. who is the holder of the privilege 5. has there been a waiver of the privilege 6. exceptions
Lawyer/Client: who is the holder of the privilege and what does it mean?
CLIENT IS THE HOLDER, AND MAY REFUSE TO DISCLOSE CONFIDENTIAL COMMUNICATIONS MADE FOR THE PURPOSE FOR SEEKING PROFESSIONAL LEGAL ADVICE OR SERVICES. THE CLIENT MAY PREVENT OTHERS FROM DISCLOSING THAT INFORMATION ALSO
What constitutes confidential communications?
oral and written Communications are privileged, observations are not
Pre-existing document not privileged, work product is
3 types of 3rd Parties that wouldn't waive confidentiality under the Lawyer/Client Privilege:
Essential 3rd Parties: SOMEONE WHO IS FURTHERING SOME PURPOSE OF THE RELATIONSHIP.
Attorney Representatives: peo hired by attorney to assist (accountant, investigator, doctor, etc)
Eavesdroppers: as long as they are unknown
How is a client?
ANY PERSON WHO IS SEEKING PROFESSSIONAL LEGAL SERVICES, OR CONSULTING WITH A POSSIBILITY OF OBTAINING SUCH LEGAL SERVICES
How might one Waive the privilege Rule 502"
Not asserting the privilege in a timely manner.
But a waiver generally operates as a partial waiver. The privilege is waived only to the extent to permit reasonable scrutiny by the opposing party.
Total waiver occurs only if waiver was intentional and disclosed and undisclosed info concerns the same subject matter
What must a client do if he has inadvertently waived his privilege?
1. the client must not have intended to do so, 2. take reasonable steps to protect info, and 3. take timely steps to remedy the waiver
what the client/attorney privilege wont protect:
1. future crime or fraud, 2. suits b/t attorney and client, 3. Joint Client Exception: two clients hire the same attorney, there earlier communications are no longer privileged
Physician/Patient Privilege: How do the 50 states view this and who does it apply to, who doesn't it apply to?
All 50 states have a privilege (Jackie v. Redman) it extends to license social workers, psychologists, mental health specialist, psychiatrist, marriage counselors. IT DOES NOT APPLY TO EDUCATIONAL AND VOCATIONAL COUNSELORS
Exceptions to the Physician/Patient Privilege:
1. statements made reguarding commitment proceedings 2. statements dealing with court ordered examinations 3. when medical condition is part of the claim 4. future crime or fraud
PROTECTS ALL COMMUNICATIONS REGUARDLESS OF CONFIDENTIALITY BOTH DURING AND BEFORE MARRIAGE. INCLUDES TESTIMONY, IMPERSSIONS, AND OBSERVATIONS
Key Characteristics of Spousal Privilege
(i) This is much broader than the marital communications privilege.
(ii) Under this rule, a testifying spouse may refuse to testify against her spouse.
(iii) It only applies in the following circumstances:
a) IN CRIMINAL CASES
b) AND BOTH DURING AND BEFORE MARRIAGE, BUT DIVORCE WIPES OUT PRIVILEGE
Exceptions to Spousal Privilege
1. suits b/t the spouses
2. suits involving a child of either spouse
Marital Communications Privilege (MCP) Key Points:
(a) The privilege can be asserted by
(i) EITHER SPOUSE
(b) The privilege applies in: BOTH CIVIL AND CRIMINAL CASES
(c) It only protects particular kinds of communications:
(i) CONFIDENTIAL COMMUNICATIONS, CONDUCT INTENDED BY THE PARTIES TO BE CONFIDENTIAL PROTECTED ONLY DURING MARRIAGE, BUT DIVORCE HAS NO EFFECT ON THOSE COMMUNICATIONS MADE DURING THE MARRIAGE
(ii) COMMUNICATIONS IN FRONT OF RELATIVES OR OLDER CHILDREN ARE NOT PROTECTED
(iii) MAJORITY: OBSERVATIONS ARE NOT PROTECTED
Exceptions to the Marital Communication Privilege:
1. crimes committed by one spouse against the other or against children
2. divorce proceedings
3. Joint participant exception: HUSBAND IS CHARGED WITH TAX FRAUD BUT THE WIFE ASSISTED HIM. SHE MAYBE COMPELLED TO TESTIFY AS TO ANY CONFIDENTIAL INFO ABOUT THIS
PROTECTS CONFIDENTIAL COMMUNICATIONS FROM PENITENT TO CLERGYMAN IN HIS CAPACITY AS SPIRITUAL ADVISOR. Either might assert the privilege b/c both are holders
Every person has a privilege to refuse to disclose his vote, unless compelled by state election laws.
A person has a privilege to refuse to disclose any trade secret he owns or to prevent others from disclosing such information unless concealment will create fraud or injustice.
Secrets of State and Other Official Info
(1) A secret of state is a government secret relating to national security or international relations.
(2) The privilege applies to intergovernmental opinions and policy decisions, investigatory files, and other government materials.
Identity of Informer (Fed and State Govt. v. the Press)
(1) Both the U.S. and the individual states have a privilege to refuse to disclose the identity of a person funneling information vital and relevant to law enforcement.
(2) Only the government can assert this privilege, not THE PRESS .
(3) MBE note: STATES WEN THE OTHER WAY HAVE SHEILD LAWS
president has Rite to refuse to disclose matters of national security. Exception: showing of special need
5th Amendment Privilege Against self-incrimination
This privilege applies only to: EVIDENCE THAT IS TESTIMONIAL IN NATURE. TANGIBLE EVIDENCE IS NOT PROTECTED
(b) Presentation of real and demonstrative forms of evidence are not protected. Ex: BLOOD, HAIR, OR HAND WRITING SAMPLES, LINEUPS, PHOTO IDS, FINGER PRINTS, ETC
How mite one Waive a Privilege?
(1) WAIVER CAN OCCUR EXPRESSLY WHENEVER THE HOLDER VOLUNTARILY DISCLOSES THE INFO
(2) OR IT CAN OCCUR IMPLIABILY BY FAILURE TO TIMELY OBJECT TO TESTIMONY
Can the opposing party comment on one choosing to take the 5th?
Criminal: No, no adverse interest may be drawn for failure to take the stand
Civil: yes... ex: In a custody case, if an attorney asked a parent whether she sold heroin, the parent could assert the Fifth Amendment privilege. However, the opposing party could then draw attention to the fact that the privilege had been asserted with regard to the question of heroin selling.
General rule of competency 601
Every person is competent to be a witness. Special witnesses are: children, insane witness, an attorney, an alcoholic/addict
But judge can't testify
Dead Man's Statute
there is no federal dead man statute, but it disables any witness from testifying about a transaction involving a decedent (you can still be tested on it. b/c if state has such a statute the Fed. Court will apply it under Erie Doctrine)
Lack of Personal Knowledge 602
A WITNESS CAN ONLY TESTIFY TO MATTERS ABOUT WHICH HE HAS PERSONAL KNOWLEDGE
lay witness: must have personal knowledge
Expert witness doesn't need it
Oath or Affirmation 603
A WITNESS MUST DECLARE TO TESTIFY TRUTHFULLY EITHER ABOUT OATH OR AFFIRMATION IN A FORM A TO AWAKEN THE CONSCIOUS. if he doesn't, judge wont allow testimony
Inquiry into the validity of a verdict or indictment [Rule 606(b)
(1) A juror may not testify as to the manner in which the jury reached its decision. Affidavits by jurors are also excluded.
(2) This Rule includes:
(a) ANY STATEMENTS MADE DURING DELIBERATIONS
(b) IT CANNOT INCLUDE THE THOUGHT PROCESSES OF THE JURY
(c) VOTES TAKEN TO REACH THE VERDICT
d. Examples where a juror's testimony will be excluded:
(1) A JUROR MISUNDERSTOOD THE EVIDENCE OR INSTRUCTIONS
(2) THE JURY REACHED ITS VERDICT IMPROPERLY
(3) JURORS DRANK ALCOHOL AND SMOKED MARIJUANA DURING
(4) ONE JUROR PHYSICALLY BULLIED ANOTHER TO WIN VOTE
(5) ONE JUROR FEEL ASLEEP
A juror may testify as to:
1) extranious prejudicial information improperly brought to the jurors attention
2) whether any outside influence was improperly brought to bare on any juror
3) any clerical or secretarial error
Examples where a juror's affidavit will be admitted:
(1) A juror may be questioned regarding whether or not someone brought in a newspaper article about the case.
(2) A JUROR MADE AN AUTHORIZED VISIT TO THE SCENE
(3) A JUROR ACCEPTED A BRIBE
(4) A JUROR CONDUCTED HIS OWN OUT OF COURT EXPERIMENTS
(5) THREATS OF HARM THAT ARE MADE AGAINST THE JURORS FAMILY
(6) COMMUNICATION BY THE JUROR WITH COURT PERSONALE
(7) A JUROR BROUGHT A BIBLE INTO THE COURTROOM READING PASSAGES SUGGESTING GUILT
Who may impeach 607?
The credibility of a witness may be attacked by any party, including the party calling him.
e.g., where the witness' testimony _SURPRISES and DAMAGES the examining party.
Collateral Matter Rule:
EXTRINSIC EVIDENCE ON COLLATERAL MATTERS IS INADMISSIBLE TO IMPEACH. GENERALLY APPLIES TO BAD ACT IMPEACHMENT AND PRIOR INCONSISTENT STATEMENTS.
Extrinsic v. Intrinsic:
INTRINSIC: ANY QUESTION FROM ANSWERED BY THE WITNESS ON THE STAND. ALL OTHER EVIDENCE IS EXTRINSIC.
Methods of Impeachment
1. bias (always admissible)
2. Sensory defects (can't observe, communicate, hear, remember, etc) this evidence is always material, never collateral
3. Prior inconsistent statements 613
4. Character (a. reputation/opinion, b. bad acts, c. felony convictions, d. convictions involving dishonesty
Character and Conduct of Witness Rule 608
A witness' character for UNTRUTHFULNESS is always material and may be attacked by using REPUTATION OR OPINION evidence.
(1) Either party may call a witness in both civil and criminal cases.
(2) Example: Plaintiff testifies on direct. Defendant then calls an extrinsic witness to testify, "Plaintiff has a bad reputation in the community for truthfulness."
(3) A witness' character for TRUTHFULNESS can be shown by REPUTATION OR OPINION evidence only if the witness' credibility for truthfulness has first been attacked.
Rule 608(b) - Bad Act Impeachment:
Specific instances of the conduct of any testifying witness that are probative for their truthfulness are admissible for attacking or supporting the witness' credibility.
1. Must be a question 2. On cross 3. and inquires into prior unconvicted acts that bare untruthfulness or truthfulness
Limitations on Bad Act Impeachment:
(a) MUST BE PROBATIVE OF TRUTHFULNESS
(b) ASKED IN GOOD FAITH
(c) BAD ACTS CAN'T BE TOO REMOTE IN TIME
(d) ONLY QUESTIONS OF FACT ARE ALLOWED
(e) JUDGE HAS DISCRETION TO EXCLUDE
What happens if the witness lies about the specific instance?
Extrinsic evidence is inadmissible to prove the prior dishonest act... the examiner is bound by the witnesses answer
Impeaching Witness or Defendant w/ Felony Conviction 609a1:
Witness: A felony conviction is subject to the Rule 403 balancing test (i.e., excluded if the probative value is substantially outweighed by unfair prejudice).
Defendant: the conviction will be admitted if the prosecution shows the probative value outweighs the prejudicial effect.
Impeachment with Crime Involving Dishonesty 609a2
Crimes involving dishonesty or false statement include both felonies and misdemeanors.
THIS TYPE OF CONVICTION IS ADMISSIBLE AS A RIGHT as long as IT IF NO MORE THAN 10 YEARS OLD
609b 10 year rule:
CONVICTIONS MORE THAN 10 YRS OLD ARE INDAMISSIBLE TO IMPEACH UNLESS THE PROBATIVE VALUE SUBSTANTIALLY OUTWEIGHS THE PREJUDICIAL AFFECT, AND NOTICE MUST BE GIVEN TO OPPOSING PARTY. the 10 year limit is either based on the conviction date, or release from confinement date
Juvenile Adjudications against Witness and Defendant:
inadmissible against he accused, but subject to the court's discretion for all other witnesses. Judge must make sure its NECESSARY for the interest of justice, and NOTICE must be given to opposing party
Religious Beliefs or Opinions:
a witness's religious beliefs are inadmissible to impare or enhance credibility
Mode and Order of Interrogation and Prosecution (Rule 611a)
THE JUDGE SHALL CONTROL THE EXAMINATION OF WITNESSES AND PRESENATION OF EVIDENCE TO AFFECTIVELY ASCERTAIN THE TRUTH AND PREVENT THE HARRASSMENT OF WITNESSES
5 circumstances where leading questions might be appropriate on direct
1. hostile or adverse witnesses 2. child witnesses 3. to gain preliminary background info 4. refresh recollection 5. on cross-examination
Writing used to Refresh Memory Rule 612 (4 key points)
1. proponent may not introduce the writing as evidence 2) hearsay nor best evidence rule apply 3) authentication is not required 4) writing, photo, further questioning, or other form of evidence will suffice
What may adverse party do with writing to refresh?
inspect it, cross with it, can show writing to jury for comparison, introduce relevant portions into evidence
Steps to refresh:
1. Give a copy to the judge, opposing counsel 2. mark it as an exhibit 3. hand to witness to silently read 4. take it back 5. ask him to testify independently of writing
Where privileged material is used to refresh, what will the court rule?
The court will rule a waiver has occured and allow the adverse party to inspect.
Prior Statement of Witness 613
Under this rule, a prior inconsistent statement (PINS) is not "sworn" and is admissible only to impeach.
613 and Prior Inconsistent Statements
PINS may be ORAL OR WRITTEN, ITS CONTENTS NEED NOT BE SHOWN TO THE WITNESS AT THE TIME, BUT ON REQUEST CONTENTS MUST BE SHOWN TO OPPOSING COUNSEL.
613 Foundation Requirement for PINS
Extrinsic evidence of a prior inconsistent statement by a witness may be admissible provided the witness is AFFORDED AN OPPORTUNITY TO EXPLAIN OR DENY THE EVIDENCE. THE FOUNDATION JUST NEEDS TO BE LAID AT SOME POINT. UNLESS THE INTEREST OF JUSTICE REQUIRES OTHERWISE
613 If the witness admits making the PINS
Extrinsic evidence is inadmissible but the witness much explain the answer
613 If the PINS relates to a collateral matter
Extrinsic evidence is inadmissible and examiner is bound by answer
613 However, a prior inconsistent statement can be offered substantively in 3 cases:
(a)IF A PARTY MAKES THE INCONSISTENT STATEMENT (ADMISSION)
(b) IF IT IS SWORN PRIOR INCONSISTENT STATEMENT
(c) IF PIN IS CONTAINED IN AN HEARSAY EXCEPTION (SOMETHING ABOUT OFFERING IT AS A BUSINESS RECORD)
614 Calling and Interrogation of Witness by the Court: How may the court call a witness and whats the outcome?
COURT/JUDGE ON ITS OWN MOTION MAY CALL WITNESSES AND ALL PARTIES MAY EXAMINE ALL WITNESSES CALLED BY THEY COURT. Court may also interrogate any witness called by a party.
615 Exclusion of Witnesses: Rule?
AT THE REQUEST OF A PARTY THE COURT SHALL ORDER WITNESSES EXCLUDED SO THAT THEY CAN NOT HEAR TESTIMONY OF OTHER WITNESSES. PURPOSE IS TO PREVENT FABRICATION, PROTECT CHILD WITNESS
615 Doesn't authorize exclusion of:
1. a party/party representative 2. a person whose presence is deemed essential 3. Most Recent Exam: An attorney can't be excluded 4. or any person exempted by statute
615 Whats the remedy for violation of 615?
MISTRIAL, OR TO HOLD THE WITNESS IN CONTEMPT, BUT THE COMPLAING PARTY MUST SHOW MORE THAN HARMLESS ERROR
701 Opinion Testimony of a lay witness
If the witness is not testifying as an expert, any testimony he gives that is an opinion or an inference must be:
(1) RATIONALLY BASED ON THE PRECEPTION OF THE WITNESS (a) The testimony must be based on personal knowledge.
(2) MUST BE HELPFUL
What is the acronym for the proper scope (examples) of non-expert opinion? and list the examples
Value of a person's own land, Emotional state for others, Measurements (speed of a vehicle), Physical states (testify to height, intoxication), Sensory descriptions (smell, color, taste, sound) Sanity of a testator
What would be an improper scope of lay witness opinion?
Opinions stated in conclusory terms are not appropriate.
EXAMPLE: THE PLAINTIFF WAS CONTRIBUTORIALY NEGLIGENT, A CONTRACT EXISTED, THE DEF ASSUALTED THE VICTIM
(1) Legal conclusions must be avoided. CAN'T TESTIFY THAT SOMEONE IS AN ADDICT, ALCHOLIC, ETC
702 Expert Testimony: what are the requirements? whats the acronym? and how are these qualifications determined?
Special Skills, Knowledge, Education, Experience, Training.
The judge determines qualifications by POTE (Rule 104).
Can the opposing party question the expert?
yes, THE OPPOSING PARTY MAY VOIR DIRE THE EXPERT OUTSIDE THE PRESENCE OF THE JURY
What are the appropriate subject matters for calling an expert?
1.scientific 2. technical 3. or other specialized knowledge
What are the 4 methods to determine whether the opinions are based on the reliability of scientific tests?
1) other expert testimony 2) Stipulation - parties can stipulate that they will allow a polygraph 3) judicial notice 4) general acceptance in a community
How to determine the reliability of scientific tests?
Reliability of Scientific Tests - The trial court acts as a "gatekeeper".
The MBE follows Daubert v. Merrill Dow (1993). Mnemonic TAPE
Daubert factors include:
(1) T TESTING
(2) A ACCEPTANCE
(3) P PEER REVIEW
(4) E ERROR - THEY LOOK AT THE DEGREE OF ERROR
703 Basis of Opinion Testimony for Experts: What are the three?
Personal Knowledge at or before trial, Facts presented to the expert at trial (hypothetical questions), Facts presented to the expert outside of court (reports from other people)
Reasonable Reliance Rule:
these out-of-court facts must be of the type reasonably rlied upon by other experts in the particular field and include: (a)ASSUMED FACTS
(b) FACTS NOT IN EVIDENCE
(c) INADMISSIBLE HEARSAY
An arson expert might rely on conversations with other people, including firefighters, as the basis for his testimony. This would typically be hearsay.
703 Balancing Test
a. Underlying data that is otherwise inadmissible at trial cannot be revealed unless
(1) the proponent shows the probative value of the evidence substantially outweighs its prejudicial effect (a) A limiting instruction may be required (FRE 105).
(2) USED WHENEVER THE EXPERT OPINON DEALS WITH FACTS OR DATA THAT CONSIST OF OTHERWISE INADMISSIBLE HEARSAY
(3) burden is on proponent
703 BALANCING TEST FAVORS EXCLUSION NOT ADMITED UNLESS EXPERT CAN SHOW IT OUTWEIGHS. OPPOSITE 403
704 Opinion on Ultimate Issue and Experts:
GENERALLY AN EXPERT MAY GIVE AN OPINION OR INFERANCE WHICH EMBRACES AN ULTIMATE ISSUE
Examples you mite see where expert give opinion on ultimate issue: also, what they can't give an opinion on:
1) EXPERT CAN TESTIFY TO CAUSE OF ACCIDENT, ILLNESS, CAUSE OF DEATH
2)WHETHER A PRODUCT IS UNREASONABLY DANGEROUS OR DEFECTIVE
3)WHETHER A DOCUMENT IS FORGED
4)WHETHER D IS INSANE OR NOT
5)STANDARD OF CARE IN A MALPRACTICE ACTION
6) OUTCOME OF A DNA TEST IN PATERNITY SUIT
Examples (impermissible): 1) CAN'T TESTIFY THAT SOMEONE WAS CONTRIBUTORILY NEGLIGENT, D INTENDED TO SELL DRUGS, ETC. 2) legal conclusions regarding content of law
704(b) Limitation on Expert Opinion and Ultimate Issue:
AN EXPERT MAY NOT GIVE AN OPINION AS TO WHETHER DEFENDANT DID OR DID NOT POSSESS THE MENTAL STATE WHICH CONSTITUTE AN ELEMENT OF THE CRIME CHARGED
EXAMPLE (Improper expert opinion):
Defendant is charged with possession of narcotics with intent to distribute. An expert witness may not give an opinion on the ultimate issue that defendant "intended to distribute" narcotics.
Proper Expert Opinion concerning an Ultimate Issue:
(1)CIVIL (TESTATOR WAS IN SOUND MIND AND KNEW THE NATURAL OBJECTS OF HER BOUNTY)
(2)CAN GIVE OPINION TO MENTAL STATE
Disclosure of Facts or Data Underlying Expert Opinion 705
1. An expert may testify and give reasons without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may, however, be required to disclose these facts on cross-examination.
2. This rule serves to avoid using an expert as a conduit for inadmissible evidence and helps to limit the use of hypothetical questions.
Court-Appointed Experts 706
1. The court may, on its own, or at the request of either party, MAY appoint expert witnesses.
2. An appointed expert witness must ADVISE THE PARTIES OF HIS FINDINGS
and must ALLOW EITHER PARTY TO DIPOSE HIM. An appointed expert may BE CALLED TO TESTIFY and BE CROSSED by either party.
801 Hearsay: Rule and the 3 types of Assertion
AN OUT OF COURT STATEMENT OTHER THAN ONE MADE BY THE DECLARANT MADE WHILE TESTIFYING AT TRIAL OFFERED TO PROVE THE TRUTH OF THE MATTER ASSERTED
1) an oral 2) written 3) or conduct intended to be, an assertion
Examples of Assertive Conduct, and examples of whats no assertive conduct:
Assertive conduct is hearsay. CONDUCT INTENDED TO COMMUNICATE AS A SUBSTITUTE FOR WORDS
(1)POINTING A FINGER TO GIVE DIRECTIONS
(2)SHAKING YOUR HEAD "YES" OR "NO"
(3)SMILE, OR WINK
(4)SKETCH BY SKETCH ARTIST
Non-assertive conduct is non-hearsay. CONDUCT NOT INTENDED TO COMMUNICATE
(1)VIDEO TAPE SHOWING D'S DEMEANOR
(2)D WALKING WITH A LIMP OR UNSTEADY GATE
(3)D SPEAKING WITH SLURRED SPEECH
(4)D HIDING FROM POLICE, OR HIDING EVIDENCE, FLEEING THE
A statement must be a human statement: Examples of NON-Statements, and one example of statement
not one made by an animal or machine.
EXAMPLES: NOT STATEMENTS
(1) ALARM CLOCK
(2) EVERYTIME THE CHURCH BELL RINGS
(3) RADAR CHECKING SPEED
(4) WIND SPEED MEASUREMENTS
(5) A TIME OR TEMPERTURE DISPLAY
(6) A TALKING PARROT AND A BARKING DOG
........STATEMENT: A COMPUTER PRINT/OUT WITH ENTERED HUMAN DATA ON IT - - - EMAIL
Boyfriend is shot to death and his girlfriend goes to his house the next day to retrieve her belongings. She is apprehensive and sees a neighbor in the street and asks a neighbor to accompany her in the house. The boyfriend's parrot, upon seeing the neighbor, squawks "he did it." Can the girlfriend testify to what the parrot said?
No - inadmissible as irrelevant because animals do not make statements.
Same facts as above except the dead boyfriend has a pet dog. The boyfriend's dog, upon seeing the neighbor, and runs into the corner and cowers in fear. Can the girlfriend testify to the dog's behavior?
Yes - admissible as circumstantial evidence of defendant's guilt.
How to analyze a hearsay question: 4 parts, what are the ways you can use evidence if it s not hearsay under part 3?
1. Isolate the statement.
2. Determine who is the declarant.
3. Determine the purpose for which the evidence is being offered.
a. For its truth = hearsay (go to step 4)
b. Not for its truth = not hearsay
(1) To impeach
(2) Rule 801(d)
(3) Verbal acts
(4) State of mind
4. Apply the hearsay exceptions: 23 EXCEPTIONS UNDER 803, 4 UNDER 804, AND 1 UNDER 807
Non-Hearsay Purposes: state of mind... Example included
CIRCUMSTANTIAL EVIDENCE OFFERED TO SHOW (1) KNOWLEDGE, 2) INTENT 3) ATTITUDE OR 4) BELIEF EITHER OF THE DECLARANT OR OF THE LISTENER
...... state of mind is often a fall back position where hearsay exceptions fail
Ex: Plaintiff slips on the steps of a business, because the steps were icy. Plaintiff then sues the business. A witness overheard someone mentioning to the business owner that he should take care of the slippery steps. Declarant's statements would be admissible to show that the owner had notice of the dangerous condition. THIS IS A TEST ON THE KNOWLEDGE OF THE LISTENER
Verbal Acts which are NON-HEARSAY
The words themselves can give rise to a cause of action. Words that have INDEPENDENT LEGAL SIGNIFICANCE
a. Transactional words WORDS OF A CONTRACT, WORDS OF OFFER OR ACCEPTANCE, WORDS OF A DEED, WILL, WORDS OF DONATIVE INTENT
b. Tortious words ACTUAL DEFAMATORY WORDS THEMSELVES IN A LIABLE OR SLANDER ACTION. GIVE RISE TO THE CAUSE OF ACTION
c. Other examples OF VERBAL ACTS NON-HEARSAY: SOCIAL GREETINGS, SIGNS (KEEP OFF THE GRASS), LICENSE PLATES, POLICE BADGE, LUGGAGE TAGS
801(d) Statements which are not hearsay CA PPP Rule
1. C - co-conspirator's statements
2. A - Admissions
3. P- prior sworn inconsistent statements
4. P - PINS
5. P - PRIOR Identification
Co-conspirator's statements under 801(d). Rule and requirements:
Statements of co-conspirators, whether or not a conspiracy is charged, can be used against all other co-conspirators, even if they are not aware that a conspiracy exists.
(a) Existence of a conspiracy is a preliminary fact that must be proven to the court by a preponderance of the evidence.
(b) WHETHER THE DECLARANT WAS A MEMBER OF THE CONSPIRACY
(c) WHETHER THE STATEMENT WAS MADE IN FURTHERANCE OF
(d) WHETHER THE STATEMENT WAS MADE DURING THE EXISTANCE OF THE CONSPIRACY
801(d) Admissions .. 4 types
There are 4 other types of admissions.
(a) Direct admission
(b) Adoptive admission - either by conduct or silence
(c) Authorized admission
(d) Vicarious admission
Direct Admission: Rule and Characteristics
A statement of a party offered against him by his opponent
(i) STATEMENT OF FACT OR OPINION
(ii) PERSONAL KNOWLEDGE IS NOT REQUIRED FOR AN ADMISSION (PARTY SAYS, "I GUESS IT WAS MY FAULT)
(iii) THE PARTY NEED NOT BE AVAILABLE
Civil: defendant testifies "I was speeding" at plaintiff's personal injury trial.
Criminal: defendant confesses and testifies, "I robbed the bank."
Adoptive Admissions: Rule and Characteristics
there must be evidence sufficient to show the party heard and understood the statement and adopted it as her own.
EXAMPLE (Adoptive admission):
Distributor says, "I want you to sell these drugs for me." Defendant reaches out his hand and takes the drugs
(i) an admission by silence requires that a reasonable person would have denied the statement .
(ii) Caveat: MBE - ADMISSION BY SILENCE DOES NOT APPLY WHERE THE DEFENDANT HAS BEEN GIVEN MARANDA WARNINGS.
A statement by a party's agent or representative
Lawyer for client, CEO for compnay
AGENCY CAN BE EXPRESSED OR IMPLIED.
Employee Admissions: (Vicarious Admissions)
A statement of a party's employee offered against the party by the opponent. The statement must be made 1) DURING THE EXISTENCE OF THE RELATIONSHIP
and must concern a matter 2) WITHIN THE SCOPE OF EMPLOYMENT
EXAMPLE: Employee is driving employer's truck while making a delivery and he has an accident with plaintiff. Plaintiff sues employer for personal injury under theory of respondeat superior. Eyewitness (plaintiff witness) offers employee's statement made at the scene. "Gee, I guess I had too many beers at lunch." Result: VICARIOUS ADMISSION (STATEMENT OF THE EMPLOYEE, OFFERED AGAINST THE EMPLOYERS, OFFERED BY PARTY OPPENANT, SCOPE OF EMPLOYMNET B/C HE WAS MAKING A DELIVERY
Admissions v. Hearsay Exceptions
Admissions are preferred. Always choose admissions if its a close call.
Can an admission be offered in the form of a question?
Yes, "do you really expect me to believe that?" is an admission that I don't believe that.
Admission by Silence: Defendant steals expensive wrist watch. The next day friend comes by and says, "That's a really nice watch you've got. You must have stolen it." Defendant remains silent.
A LOT OF AUTHORITY WOULD say no ADMISSION CAUSE REASONABLE PERSON WOULD HAVE HAD NO REASON TO DENY IT
3 types of Prior Statements defined as hearsay exemptions:
PINS, Prior consistent statements, and Prior Identifications.
A prior inconsistent statement is permitted to be offered for its truth if: it is "sworn" - SWORN MEANS SUBJECT TO PENALTY OF PERJURY AT A TRIAL, DEPOSITION, OR OTHER PROCEEDING
Ex: Grand jury PINS, come in under 801d. Coroner's inquest PINS: comes in under 801d and to impeach. Affidavit PINS: not a trial, deposition, or proceeding so this comes in under 613 only to impeach.
Prior Consistent Statements 801(d)(1)(b)
RARE, GENERALLY OFFERED ON RE-DIRECT
(a) A prior consistent statement is permitted to be offered for its truth if: offered to rebut a charge of recent fabrication or improper influence subject to the 2 above-mentioned requirements, PLUS: 3) PCS MUST PRE-DATE THE ALLEGED MOTIVE TO FABRICATE (IT WILL BE VERY RARE FOR PCS TO BE THE CORRECT ANSWER ON THE EXAM)
Prior Identifications 801(d)(1)(c)
A prior statement of identification of a person made after perceiving him.
(i) The declarant: HAS TO TESTIFY AT TRIAL AND THE DECLARANT MUST BE
SUBJECT TO CROSS
(ii) Identification of the defendant in a lineup, show-up, photo ID; sketch.
Example ques for Prior IDs: Declarant identifies defendant in a lineup but fails to appear at trial to testify. May police officer who was present at the lineup testify to declarant's prior ID?
NO, THE DECLARANT HAS TO BE THERE TO TESTIFY, IT WOULD BE A HEARSAY AND CONFRONTATION PROBLEM
Example Ques for Prior Id: Defendant is on trial for bank robbery and the eyewitness to the crime says that the bank robbery was committed by a man with red hair. Defendant shows up at trial with shaved head. Prosecutor calls jailer to testify that when defendant was first brought to jail he had red hair.
Admissible to explain discrepancy
What are the hearsay exceptions where the declarant's availability is immaterial?
1) Present Sense Impression, 2) Excited Utterance,
3) Then Existing Mental, Emotional, or Physical Condition,
4) Statements for Purposes of Medical Diagnosis or Treatment Rule
5) Recorded Recollection Rule "past recorded Recollection"
6) Records of Regularly Conducted Activity
7) Absence of Entry in Records
8) Public Records and Reports
9) Records of Vital Statistics
10) Records of Religious Organizations
11) Marriage, Baptismal, and Similar Certificates
12) Family Records
13) Records of Documents Affecting an Interest in Property
14) Statements of Ancient Documents
15) Market Reports, Commercial Publications
16) Learned Treatises
17) Reputation Among Associates, Family Members Concerning Personal or Family History
18) Reputation Concerning Boundaries or General History
19) Reputation as to Character
20) Judgement of Previous Conviction
21) Judgement as to Personal, Family, or General History, or Boundaries
Present Sense Impression 803(1)
(a) A statement DESCRIBING OR EXPLAINING an event or condition made WHILE OR IMMEDIATELY AFTER PRECIEVING IT
(ii) PERSONAL KNOWLEDGE IS REQUIRED
(iii) DECLARANT NEED NOT BE KNOWN OR AVAILABLE
(iv) UNEXCITED UTTERANCE
(v) ORAL OR IN WRITING (911 TAPE)
Excited Utterance 803(2)
(a) A statement relating to a STARTLING EVENT made while the declarant was UNDER THE STRESS OF EXCITMENT caused by the event or condition.
(ii) PERSONAL KNOWLEDGE
(iii) Unlike present sense impression, DOESN'T HAVE TO BE IMMEDIATE, JUST STILL NEEDS TO BE UNDER THE STRESS
Then-Existing Mental, Emotional, or Physical Condition Rule 803 (3)
(a) A statement of declarant's then-existing physical, emotional, or mental condition is admissible if relevant to show declarant's state of mind.
(b) Includes statements to prove intent, plan, motive, design, mental feeling, pain, or bodily health
(i) STATEMENT DOESN'T HAVE TO BE MADE TO A MEDICAL PERSON
(ii) STATEMENT OF INTENT (HILLMAN DOCTRINE) FORWARD LOOKING STATEMENT OF INTENT "I'M GOING TO COLORADO)
(d) This exception does not include:
(i) PAST SENSATIONS - YOU HAVE TO LOOK FOR THE PRESENCE TENSE OF A VERB (ii) Statements of memory or belief are generally inadmissible.
Witness says, "I believe defendant embezzled money from the company."
Will Exception to 803(3)
Will Exception: Statement by testator is admissible. E.g. Testator says, "Yesterday I revoked my will so my ex-husband will get nothing."
Statements for Purposes of Medical Diagnosis or Treatment Rule 803 (4)
(a) Includes statements made for purposes of medical diagnosis or treatment describing medical history or past or present symptoms, pain or sensation or the cause thereof as reasonably pertinent to diagnosis or treatment.
(i) Statement can be made to any medical personnel or family member
(ii) Caveat: IT ONLY GOES ONE WAY, NOT BOTH WAYS.
STATEMENTS FROM DOC TO PATIENT IS NOT INCLUDED UNDER THIS EXCEPTION.
(c) The statement must be one which is useful for diagnosis and treatment.
EXAMPLES: STATEMENTS THAT ADMIT FAULT ARE NOT
(i) After a car accident, "I was hit from behind."
(ii) "I was hit from behind by guy in blue car, license plate XJU187."
(iii) "The car ran the red light and hit me as I was ridding my bike." "IF HE SAID A CAR HIT ME IT WOULD BE OK"
(iv) "I was stabbed with a knife." THIS IS OK
(v) "Defendant stabbed me" NOT OK
Recorded Recollection Rule 803 (5) - "Past Recollection Recorded"
(a) Used where the witness has a present memory problem. Prerequisite: Refreshing (Rule 612) by a Leading Question or a Writing must have been attempted and failed.
(i) WITNESS MUST LACK CURRENT MEMORY OF THE EVENT
(i) THE MEMORANDUM MUST HAVE BEEN MADE WHILE THE MEMORY WAS STILL FRESH IN THE MIND
(ii) Authentication - Witness must testify the Writing accurately reflects the witness' prior knowledge, i.e., Witness made or adopted the statement.
iii) Writing/record is READ into evidence but the writing itself is NOT received as an exhibit unless offered by the adverse party.
Cooperative report under 803(5)
Declarant makes a statement to a second declarant who makes the statement to a third declarant.
EXAMPLE:Husband sees a man who commits a crime running to his vehicle. Husband tells his wife to call 911. Husband yells to his wife the license plate number, the wife tells the license plate number to the 911 operator, who then recites it back to the wife, who then recites it back to the husband for verification. THIS IS AN EXAMPLE OF COOPERATIVE REPORT, IF HE CAN'T BE REFRESHED, THEN THE GUY WOULD JUST BE GIVEN THE DOCUMENT TO READ IT ALOUD
Rights of an Adverse Party under 803(5)
(i) THEY CAN INSPECT THE WRITING
(ii) CROSS WITH IT
(iii) SHOW IT THE JURY FOR COMPARISON PURPOSES
(iv) OPPOSING COUNSEL AND INTRODUCE RELEVANT PORTIONS INTO EVIDENCE, SUBSTANTIVE EVIDENCE, NOT JUST TO IMPEACH
Records of Regularly Conducted Activity FRE 803 (6) "Business Records Exception" (BRE)
A memorandum, record, report of acts or events made at or near the time by a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business to make such a record or report, as shown by the testimony of the custodian or other qualified witness, provided the information does not lack trustworthiness.
What does the Mnemonic RRAP stand for under 803(6)?
R - KEPT IN THE REGULAR COURSE OF BUSINESS
R - ROUTINE PRACTICE
A - AT OR NEAR THE TIME
P - PERSONAL KNOWLEDGE
Under 803(6) What are the requirements for "Made in the regular course of business?"
(i) Made in the regular course of business. Not: INCLUDE A
PERSONAL DIARY, CALENDAR, PERSONAL CHECKING STATEMENT
(ii) Foundation witness: NEED NOT HAVE PERSONAL KNOWLEDGE OF THE CONTENTS
(iii) Trustworthiness determined: BY THE JUDGE FED RULE 104
(iv) Caveat: The records in question may not be made solely in
anticipation of litigation.
(v) EXAMPLES that satisfy "routine practice":
POLICE ACCIDENT REPORT, SALES RECIPT, HOSPITAL
RECORDS, PAYROLL RECORDS,
(vi) Authentication: RECORD HAS TO BE MADE OR TRANSMITTED BY A PERSON WITH KNOWLEDGE (CUSTODIAN OR OTHER QUALIFIED WITNESS
(vii) Caveat: Melendez-Diaz v. Mass (2009)
CRIMINAL CASE DEALING WITH A LAB REPORT OFFERED
AGAINS THE D, THE PERSON WHO PREPARED THAT LAB
REPORT MUST BE ABLE TO BE CROSSED DUE TO THE
CONFRONTATION CLAUSE. THIS IS FOR LAB REPORTS ONLY
In a hospital, a doctor does dictation about a patient's progress. Someone else records the dictation and puts it into the medical records. Such a record will be admissible.
If a person keeps a stamp collection and every time she gets a new stamp, she records it, this practice will constitute a business record.
Absence of Entry in Records FRE 803 (7) and (10)
(a) Evidence that a matter is not included in records or data compilations kept in accordance with the business or public records Rules, may be admitted to prove the non-occurrence of the event or the non-existence of the matter.
(b) Foundation: Witness must testify he is FAMILIAR with the records, that he DILIGENTLY SEARCHED, and that he FOUND NO RECORD .YOU NEED THESE WORDS EXACTLY
(c) MBE EXAMPLE: Defendant claims he registered with the county as a sex offender. County records official called to testify. Official needs to testify he is familiar with records, diligently searched and there is no record of registration.
Plaintiff claims he ordered a briefcase from a company, while the company claims it did not receive the order. The company can offer into evidence the list it keeps of all orders received to prove that plaintiff's order was not there.
Public records and reports FRE 803 (8)
(a) Similar foundation as business records, except proponent need not show the record was routinely made at or near the time.
(b) Includes records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth:
(i) ACTIVITIES OF A PUBLIC OFFICE OR AGENCY e.g., RECORDS OF THE WEATHER BUREAU
(ii) MATTERS OBSERVED PURSUANT TO DUTIES IMPOSED BY LAW AS TO WHICH THERE WAS A DUTY TO REPORT e.g., CERTIFIED TAX RECORD (W-2 FORM)
a) This category does not include (in criminal cases)
POLICE REPORTS IN CRIMINAL CASES ARE INADMISSIBLE
AGAINST DEFENDANT. HOWEVER, IT CAN BE OFFERED BY THE ACCUSED AGAINST THE PROSECUTION
(iii) in civil cases, FACTUAL FINDINGS FROM AN OFFICIAL
INVESTIGATION PURSUANT TO AUTHORITY GRANTED BY LAW
PROVIDED THE FINDING ARE TRUSTWORTHY
MBE Example: report by the Federal Bureau of Mines as to the
cause of a gas tank explosion.
Records of Vital Statistics FRE 803 (9)
Records or data compilations of BIRTHS, DEATHS, MARRIAGES are admissible if THE REPORT WAS MADE TO A PUBLIC OFFICE PURSUANT TO REQUIREMENTS OF LAW
Family Records FRE 803 (13)
Statements of fact concerning personal or family history contained in A FAMILY BIBLE, GENOLOGY CHARTS, INSCRIPTIONS ON FAMILY PORTRAITS, ENGRAVINGS ON A TOMBSTONE,
Statements in Ancient Documents FRE 803 (16)
Includes statements in a document in existence 20 years or more whose authenticity is established.
Market Reports, Commercial Publications FRE 803 (17)
(a) Includes statements of objective facts, not opinions
(b) Examples: A TELEPHONE DIRECTORY, CREDIT REPORTS, RETAIL SALES CATALOG, KELLY BLUE BOOK, YELLOW PAGES, WALL STREET JOURNAL,
MBE Example: the price of a particular stock (IBM) on May 12, 2010
Learned Treatises FRE 803 (18) "Expert Exception"
(a) Includes statements made in "Treatises"
e.g., ANY TYPE OF A TEXTBOOK, A JOURNAL, PERIODICAL, LEGAL HORNBOOK,
(i) Foundation STATEMENTS FROM THE TREATIES MAY BE READ INTO EVIDENCE ONCE AUTHORITATIVENESS HAS BEEN ESTABLISHED.
AUTHORITATIVENESS IS FOUND FROM JUDICIAL NOTICE,
EXPERT WITNESS, PARTIES STIPULATION
(ii) Subject area: MASH: MEDICINE, ART, SCIENCE, HISTORY
(c) Learned treatises are often offered to contradict or impeach an expert witness on cross-examination.
(d) Caveat: The treatise being used must be read to the jury.
Reputation Among Associates, Family Members Concerning Personal or Family History FRE 803 (19)
A witness may testify as to his name or date of birth without having to rely on his birth certificate.
Judgment of Previous Conviction FRE 803 (22)
(a) Final judgments of previous convictions for felonies are admissible.
(b) A certified copy of the final judgment is needed.
(c) The judgment cannot be used except as to the accused.
Judgment as to Personal, Family, or General History, or Boundaries
Final judgments, if essential to a particular case, are admissible.
804(b) 5 areas not excluded if the declarant is unavailable.
1) Former Testimony
2) Statements under the belief of Impending Death
3) Statements Against Interest
4) Statement of Personal or Family History
5) Forfeiture by Wrongdoing
To recall what constitutes unavailability, remember PRISM:
1) Privilege - Assertion OF A PRIVILEGE BASED ON THE JUDGE'S RULING, 2) Refusal - Refusal to testify despite a court order, 3) Incapability - which is due to death, or physical, or mental illness, 4) Subpoena - absent despites a good faith attempt 5) Memory - lack of memory
Former Testimony Rule 804(b)(1)
(a) May be used for its truth if:
(i) declarant made the statement under oath
(ii) given by a witness IN THE SAME OR A DIFFERENT PROCEEDING OR IN A DEPOSITION
Note: The former action must involve the _SAME SUBJECT MATTER BUT, not necessarily the _SAME CAUSE OF ACTION. EXAMPLE: In the first case, Plaintiff (whistle blower) sues former employer for wrongful termination. Employer deposes Plaintiff who states, "Defendant covered up structural defects" in its jet engines. In the second case, Plaintiff (pilot) sues same defendant for products liability when defective engine malfunctioned. Pilot wants to offer the whistle blower's deposition testimony in Pilot's case.
Result: FORMER TESTIMONY EXCEPTION APPLIES
(iii) the party against whom the evidence is being offered must have had __AN OPPORTUNITY AND SIMILAR MOTIVE TO EXAMINE THE WITNESS _ to examine the witness and develop the testimony, on direct, cross-examination, or redirect.
(b) A deposition of a witness taken in a civil case may be admissible in a criminal case arising out of the earlier civil case.
(c) Note: Preliminary hearing: Testimony against the accused from a preliminary hearing MAY be admitted as former testimony at trial if: THE PLAINTIFF WITNESS IS UNAVAILBLE B/C THE OPPORTUNITY AND SIMILAR MOTIVE TEST IS GENERALLY SATISFIED
Grand Jury testimony:____NO, IT WOULDN'T WORK HERE. NO OPPORTUNITY TO CROSS WITNESS, CONFRONTATION CLAUSE PROBLEM
Statements Under Belief of Impending Death Rule 804(b)(2) "Dying Declaration" - Requirements and Mnemonic
Cause of death, Unavailable declarant, Belief of death, Admissible only in a homicide or civil case.
(i) C CAUSE OF DEATH
(ii) U UNAVAILABLE DECLARANT
(iii) B BELIEF DEATH IS IMMENANT
(iv) A ADMISSIBLE ONLY IN ANY CIVIL CASE OR CRIMINAL
Caveat: _ATTEMPTED MURDER IS A NON-HOMOCIDE CRIMINAL CASE AND YOU CAN'T HAVE A DYING DECLARATION
FRE 104 - JUDGE DETERMINES IF THE DECLARANT BELIEVED HER DEATH WAS IMMENANT
MBE EXAMPLE: Sketch
Victim shot, bleeding profusely, coughing up blood ( B ); police arrive and ask "Who did this? Victim grabs pen and paper and draws sketch of man with crooked nose and scar on this face ( C ). Then victim dies ( U ). Defendant is charged with murder. ( A ) Result:
Statements Against Interest 804(b)(3) v. Admission
Admission - personal knowledge not required
SAI - personal knowledge is required.
Requirements for SAI 804b3
2) Non-party (almost all the time)
3) Statement has to be against interest when made
"I wasn't sure of the boundary line of my property when you built the dividing wall"
statement against propriety interest
Where the defendant offers an exculpatory statement against the declarant's penal interest in order to prove his innocence, the additional element of _____________ is required to insure _____________.
CORROBORATION _ TRUSTWORTHINESS
Ex: Defendant is on trial for bank robbery, but the bank's video camera appears to show X committed the crime. X is called to testify but asserts his 5th Amendment privilege and refuses to testify. Defendant then calls Witness to testify X told him that he did in fact commit the crime. Witness' testimony will be
Unavailable, Non-Party, and Statement against penal interest, it comes in, but you need corroboration
Statement of Personal or Family History, 804(b)(4) "Pedigree Exception"
Statement concerning the declarant's own relationship BY BLOOD, ADOPTION, OR MARRIAGE or other similar fact of personal or family history.
A woman finally tracks down her biological father after years of searching. Father says to her, "I've been waiting 30 years for this day. Here's my girl." Father dies. The Estate refuses to recognize the daughter as an heir. Result: COMES IN UNDER 804B
Forfeiture by Wrongdoing 804(b)(5)
(a) A statement offered against a party who has engaged in wrongdoing that was intended to procure the unavailability of the declarant as a witness will be admissible (even if it would usually be barred by the Hearsay Rule).
EXAMPLE: Eyewitness gives statement to police. Accused then causes witness to disappear; witness' statement will be admissible.
(b) This rule does double duty in criminal cases:
B/C HEARSAY OBJECTION IS FOREFIETED, AND THE D'S CONFRONTATION RIGHTS ARE FOREFEITED (GYLES V. CAL.)
6th Amendment Confrontation Clause
In a criminal case where the declarant is unavailable, "testimonial" hearsay statements will be inadmissible unless the defendant is given an opportunity to cross-examine the declarant.
Testimonial Evidence in this context refers to situations where:
THE PRIMARY PURPOSE OF THE POLICE INTEROGATION IS TO PROVE PAST EVENTS RELEVANT TO LATER CRIMINAL PROSECUTION,
(i) _PUBLIC RECORDS USED AGAINST DEFENDANT
(ii) STATEMENTS DURING INTERROGATION
(iii) COLLECTING INFO FROM INFORMANT
(iv) LAB REPORTS
(v) PRIOR TESTIMONY AT A PRELIMNARY HEARING BEFORE A GRAND JURY OR AT A FORMER TRIAL
WHERE IT IS TO AID POLICE DURING AN ONGOING EMERGENCY SITUATION
EXAMPLE: Defendant throws beer bottle at victim's (declarant's) car on the highway and is swerving erratically. Victim calls 911. Defendant is apprehended and charged with DUI. At defendant's trial, victim fails to appear. The 911 tape is offered. The tape will be admitted as a present sense impression.
Ongoing emergency v. police building their case:
ONCE THE EMERGENCY IS OVER AND POLICE START BUILDING THEIR CASE THEN CONFRONTATION CLAUSE WILL APPLY.
Hearsay within Hearsay 805
When faced with 2 (or more) out-of-court statements, both the __PRIMARY _ statement and the _INCLUDED_ statement must have a separate basis for admissibility. Otherwise, the entire statement is inadmissible.
Attacking and Supporting Credibility of Declarant 806
Impeachment of a hearsay (out-of-court) declarant.
A hearsay declarant's credibility may be attacked and the declarant may be impeached through bias, prior conviction, PINS, etc.
MBE EXAMPLE: Girlfriend calls 911 and says, "My boyfriend just pulled a gun on me." Defendant (boyfriend) is later charged with assault. Girlfriend does not attend the trial. Her 911 tape is admitted _PRESENT SENSE IMPRESSION__. Then defendant calls neighbor to testify that girlfriend (declarant) told him one month after the incident, "Boyfriend never had a gun that day." IMPEACHING GIRLFRIEND BY PRIOR INCONSISTENT STATEMENT RULE 806
Residual Exception 807 CATCH-ALL
NOTE: THIS IS GENERALLY A WRONG ANSWER CHOICE
A statement not otherwise covered by an exception to the hearsay rule is nevertheless not excluded by the hearsay rule under certain circumstances:
(1) THE STATEMENT MUST BE MORE PROBATIVE ON POINT THAN ANY OTHER EVIDENCE
(2) THE STATEMENT MUST CONTAIN CIRCUMSTANTIAL GUARANTEES OF TRUSTWORTHINESS EQUVIALENT TO OTHER EXCEPTIONS
(3) The party must give notice to the opposing party.
(4) The statement must concern a material issue.
(5) The judge ultimately determines whether, in the interest of justice, the statement should be admitted.
EXAMPLE: A statement made by a child victim to an adult regarding an act of sexual abuse/ molestation/rape may be admissible if the child (declarant) is unavailable and the statement is necessary and trustworthy.
Authentication - what is it
as a condition precedent to admissibility, it requires evdience sufficient to support a finding that the matter in question is what its proponent claims it to be.
Real Evidence may be authenticated by:
1) testimony from personal knowledge by showing familiarity with the object
2) Distinctive Characteristics
3) Chain of custody
4) Photograph: must be accurate portrayal of what it depicts
Documents may be authenticated or identified by: (3)
1) someone who had first-hand knowledge of the document
2) Circumstantial evidence - doctrine can be used to authenticate the fact that a respondent's reply was written by him: I write you a letter, you (respondent) reply back to me by letter
3) Ancient Documents: A writing is sufficiently authenticated as an AD if the proponent shows the judge the writing is MORE THAN 20 YEARS AND FOUND IN ITS PROPER PLACE
Examples of what mite constitute someone with first-hand knowledge:
1) the custodian 2) one who prepared the document 3) an eyewitness to the signing of the document 4) Opinion by an expert witness (handwriting) 5) By the jury
3 ways to authenticate handwriting:
Lay person with familiarity,
Comparison by an expert,
Comparison by the trier of fact
caveat: FAMILIARITY WITH HAND-WRITING CANNOT BE ACQUIRED SOLELY FOR THE PURPOSES OF LITIGATION
Authenticating Voice ID
All voices must be identified when a phone conversation or recording is offered in evidence.
(1) Generally, direct evidence is offered by testimony of a witness who recognizes the voice.
Authenticating Telephone Calls:
a. A showing the call was made to the number assigned.THEN THE CALL IS ASSUMED THAT HAVE GONE TO THAT PERSON
b. A showing the call was made from an assigned number.THEN THE CALL IS ASSUMED TO HAVE COME FROM THE PERSON ASSIGNED THAT NUMBER
c. The speaker has a knowledge of specific facts known only to him.
d. In the case of a business, THERE HAS TO BE A SHOWING THE CALL WAS MADE TO THE BUSINESS AND THE CONVERSION RELATED TO BUSINESS REASONABLY TRANSACTED
may testify to describe how a scientific or technical method produces a specific result and may show how such a process is accurate.
AN EXPERT MAY AUTHENTICATE UNDER DALBERT OR FRY
Certain documents need no foundation witness to prove they are genuine. Rule 902 lists 12 areas, 6 of which are sometimes tested on the MBE. Mnemonic: CONTAC
C- Certified Documents,
O- Official Publications,
N- News Paper and Periodicals
T- Trade Inscriptions
A- Acknowledges Documents (notarized documents, accompanied by a certificate of acknowledgement executed in the manner provided by law.
C- Commercial Paper (negotiable instruments, bills)
(1) documents bearing a seal of the United States, or of any state, district, commonwealth, territory, or possession thereof (public documents under seal) .
(2) certified documents bearing no seal, if a public officer certifies under seal that the signer has official capacity to sign and that the signature is genuine.
Conviction record, official transcript from a university or law school
(3) certified foreign documents: GENUINENESS OF THE SIGNATURE AND THE AUTHORIZED PERSON'S OFFICIAL POSITION REQUIRED
(4) certified copies of (official) public records
(a) must be filed or recorded in a public office and certified as correct by either the custodian or other qualified person - could include document under Public Records Exception FRE 803 (8).
TRADE INSCRIPTIONS (SIGNS, TAGS, LABELS, WHICH ARE AFIXED IN THE ORDINARY COURSE OF BUSINESS, INDICATING OWNERSHIP CONTROL OR ORIGIN) LABEL ON A CAN OF GREEN GAINT PEAS
NOTARIZED DOCUMENTS, ACCOMPANIED BY A CERTIFIC OF ACKNOWLEDGEMENT EXECUTED IN THE MANNER PROVIDED BY LAW
Subscribing Witness' Testimony Unnecessary (Rule 903)
The testimony of the subscribing witness is not necessary to authenticate a writing unless required by the laws of the governing jurisdiction.
When analyzing writings, the issues the proponent must overcome regarding admissibility are included in the following mnemonic: OPRAH
1. O - ORIGINAL WRITING RULE
2. P - IS THE DOUMENT PRIVILEGED
3. R - IS IT RELEVANT
4. A - IS IT AUTHENTIC
5. H - DO ANY HEARSAY PROBLEMS ARISE
Original Document Rule/Best Evidence (Rule 1002) is
To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is required, except as otherwise provided in these rules or by Act of Congress.
The "Best Evidence Rule" applies only where: (2 discussed)
1) Legally operative documents (LOD)
Where the writing has independent legal significance THE WRITING ITSELF CREATES OR DESTROYS A LEGAL RELATIONSHIP
EXAMPLES: CONTRACT, WILL, DEED, MORTGAGE, LEASE, DRIVER'S LICENSE, MOVIE IN AN OBSENTITY ACTION, PHOTO IN PORN ACTION, WRITTEN LIABEL, DIVORCE DECREE
2) Where the testimony is reliant on the writing, not on personal knowledge.
ex: Doctor testifies, "The x-ray of plaintiff's lungs shows distension characteristic of emphysema." No personal knowledge independent of X-ray, BER applies, X-ray must be provided.
What is independent source rule? Examples
Where a fact to be proved has a source independent from the writing (i.e., the fact occurred regardless of whether the writing exists), then the contents are NOT in issue and the BER does not apply.
a) SALES RECIEPT IS NOT REQUIRED TO SHOW GOODS AND SERVICES WERE PAID FOR
(b) BIRTH CERTIFICATE NOT NEEDED TO SHOW YOU ARE 25, THE FACT THAT YOU ARE 25 IS INDEPENDENT OF THE CERTIFICATE
(c) DEATH CERTIFICATE
(e) Caveat: IF HOWEVER, THE WITNESS TESTIFIES "MY RECORDS SHOW I PAID THE BILL THEN THE RECIEPT WOULD BE REQUIRED" IFTHE RECEIPT IF OFFERED AS EVIDENCE TO PROVE SALE, THEN IF WOULD BE REQUIRED. BUT IF HE SAYS "I REMEMBER PAYING THE BILL" THEN YOU DON'T NEED THE RECEIPT
Plaintiff sues defendant for breach of contract. The issue is the price of a television set. Plaintiff testifies, "I paid $800 for the TV." Defendant objects claiming the BER required production of the receipt. How should the court rule?
The IDR APPLIES THE FACT THAT THE PESON BOUGHT THE TVs EXIST INDENPENDENTLY OF THE RECEPT
Examples of How BER applies:
- If you are trying to prove that a film is obscene, the film is the subject matter. It must be seen before the issue can be determined.
- Whether the terms of the contract said X or Y. The actual language of the contract is at issue. Must produce the contract.
- Image from a surveillance camera from a bank. In order to tie identification of the thief to the camera, it must become a part of the case.
- Plagiarism - We must produce the original document and the document as copied.
- Malpractice - If a doctor misread an X-ray, we must see the X-ray.
There are 3 substitutes for an original:
Duplicate Copy, Certified Copy of a Public Record, Summaries of Voluminous Records
Admissibility of Duplicates 1003
(1) A duplicate is admissible to the same extent as an original unless there is a genuine question of authenticity. THERE ARE NO DEGREES OF SECONDARY EVIDENCE UNDER THE FEDERAL RULES
(2) A duplicate is any counterpart that accurately reproduces the original. ANY NEGATIVE OR PRINT OF A PHOTOGRAPH IS VIEWED AS AN ORIGINAL
1004 The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if mnemonic LOCS applies.
a. Lost - WHERE ALL THE ORIGINALS HAVE BEEN LOST OR DESTROYED UNLESS THE PROPONENT LOST OR DESTROYED THEM IN BAD FAITH
b. Opponent - WHERE THE OPPONENT HAS POSSESSION OF THE ORIGINAL AND HAS REFUSED TO DELIVER IT
c. Collateral - THE CONTENTS ARE NOT RELATED TO A CONTROLING ISSUE
d. Subpoena - WHERE ORIGINAL CAN'T BE OBTAINED BY ANY AVAILABLE JUDICIAL PROCEDURE.
Public Records (Rule 1005)
The contents of an official record may be proved by copy, certified as correct in accordance with Rule 902 or by witness testimony upon comparison with the original.
1. The contents of voluminous writings, recordings or photographs that cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation.
2. The originals shall be made available for examination, copying (or both) by other parties at a reasonable time and place. The court may order production in court also.
a. SHOWING THAT THE ORIGINALS THEMSELVES WOULD BE ADMISSIBLE HEARSAY
b. OPPONENT MUST BE GIVEN REASONABLE PRE-TRIAL ACCESS
c. SUMMARIZES MUST BE PROPERLY AUTHENTICATED BY THE PREPARER
Large 500-person law firm was being sued for falsifying billable hours over a ten year period. Judge ordered the office manager to prepare a computer printout of all the names of the attorneys and all the billable hours in the ten-year period. She took the voluminous data and inputted into her computer and gave the judge a printout. That computer printout processed human input. The question asked will it be admissible? A) admissible under the business record exception; B) admissible as summaries of voluminous records. The answer was B.
Testimony or Written Admission of Party (Rule 1007)
Contents of a writing may be proved by the testimony, deposition, or admission of the opposing party without accounting for the nonproduction of the original writing.
Functions of Court (Rule 1008)
Compare: The judge determines preliminary facts - Rule 104(b)
a. whether the BER applies to a writing
b. whether a writing is an original or a duplicate
c. whether "good cause" exists for nonproduction of the original
d. whether summaries are admissible
e. IT IS A JUDGE DECISION WHENEVER ADMISSIABLEITY DEPENDS ON THE FULFILLMENT ON THE CONDITION OF FACT