Only $2.99/month

Evidence Barbri Amp

Terms in this set (202)

The prosecution may test the character witness by cross-examination regarding the basis for his opinion or knowledge of the reputation that he has testified about. Under Federal Rule 405(a), cross-examination inquiry is allowable as to whether the opinion witness knows of, as well as whether he has heard of, SPECIFIC INSTANCES of the party's misconduct. Thus, "Have you heard that the defendant punched his boss?" would be a permissible question because it tests the character witness's knowledge of whether the defendant is peaceful.

"Did you know that the defendant lied on his job application?" would not be a permissible question because this character witness has testified to defendant's character for peacefulness, not honesty.

Like any other witness, a character witness's CREDIBILITY MAY BE IMPEACHED. Under the Federal Rules, subject to discretionary control of the trial judge, a witness may be interrogated upon cross-examination with respect to an act of misconduct only if the act is probative of truthfulness (i.e., is an act of deceit or lying). Therefore, "Weren't you arrested for assaulting a police officer last month?" is an impermissible question. Assaulting a police officer is not an act that is probative of truthfulness; thus, the character witness cannot be impeached with this prior bad act.

Prior convictions are admissible to impeach a witness under certain circumstances. However, convictions of misdemeanors that do not involve dishonesty or a false statement are not admissible to impeach a witness. Thus, "Weren't you convicted of misdemeanor public drunkenness two years ago?" is not a permissible question.
Unlike PHOTOGRAPHS, an X-RAY PICTURE generally cannot be authenticated by testimony of a witness that it is a correct representation of the facts. Therefore, a different procedure of authentication is necessary. First, it must be shown that the process used is accurate (as to X-rays, the court will usually take judicial notice of this). Then it must be shown that the machine itself was in working order and the operator was qualified to operate it. Finally, a custodial chain must be established to forestall the danger that the evidence has been substituted or tampered with.

In general, a WRITING may be authenticated by any evidence that serves to establish its authenticity. The Federal Rules do not limit the methods of authentication, but rather list several examples of proper authentication.All that is necessary under the Federal Rules of Evidence is proof sufficient to support a jury finding of genuineness.

A writing may be authenticated by circumstantial evidence. For example, the rules for ancient documents and reply letters involve authentication by circumstantial evidence. Any proof tending in reason to establish genuineness is sufficient.

The genuineness of a DOCUMENT may be admitted through the discovery process, through stipulation at a pretrial conference, or by a failure to deny an allegation in a pleading.

A WRITING may be authenticated by testimony of one who sees it executed or hears it acknowledged. Modern statutes eliminate the common law necessity of producing a subscribing witness, unless specifically required by statute. If testimony of a subscribing witness is required (e.g., in authenticating a will), his denial or failure to recollect the execution of the writing does not preclude authentication by other evidence.
The best evidence rule expresses a preference for the original writing. However, secondary evidence of a writing, such as oral testimony regarding the writing's contents, is permitted if it has been shown that the original is unavailable for some reason other than the serious misconduct of the proponent.

The best evidence rule does not apply to writings that are collateral (i.e., ones of minor importance) to the matter in controversy.

When it would be inconvenient to examine a voluminous collection of writings, recordings, or photographs in court, the proponent may present their contents in the form of a summary, chart, or calculation. However, the originals or duplicates must be made available for examination and copying, and the judge may order them to be produced in court.

An original is the writing or recording itself or any counterpart intended by the person executing it to have the same effect as an original. A duplicate is an exact copy of an original, e.g., a carbon copy or photocopy. Duplicates are admissible to the same extent as originals in federal courts, unless (i) a genuine question is raised about the original's authenticity, or (ii) under the circumstances, it would be unfair to admit the duplicate in place of the original.

If the proponent cannot produce the original writing or recording in court, he may offer secondary evidence of its contents in the form of copies (e.g., handwritten copies, which would not be considered duplicates because they are not exact copies), notes, or oral testimony about the contents of the original if a satisfactory explanation is given for the nonproduction of the original.

If the opponent has custody of the original, secondary evidence is not automatically admissible. To justify the admissibility of the secondary evidence, there must be a showing of the opponent's custody, service of a timely notice to produce, and the opponent's failure to produce the original in court. Where the pleadings give notice to the opposite party that he will be charged with possession of the writing, service of the notice to produce is unnecessary.

A proponent may prove the contents of a writing, recording, or photograph through the testimony, deposition, or written admission of the party against whom it is offered, and need not account for the nonproduction of the original. However, it is generally held that the contents of a writing, photograph, etc., cannot be proved simply by out-of-court oral admissions of the party against whom such evidence is offered (unless of course the original is otherwise accounted for).
In some circumstances, real evidence may be authenticated by a witness's testimony that the object is what the proponent claims it is

If the object has significant features that make it identifiable upon inspection, a witness may authenticate the object by recognition testimony—i.e., a witness's testimony that the object is what the proponent claims it is.

Real evidence may be authenticated by establishing a chain of custody, but may also be authenticated by other means (e.g., recognition testimony.

If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must show that it has been held in a substantially unbroken chain of possession but does not need to negate all possibilities of substitution or tampering.

An object that is significant in the case must be shown to be in substantially the same condition at trial. Moreover, the object must be logically helpful or reliable in tending to prove the proposition in issue.

Real evidence may be authenticated by establishing a chain of custody, but may also be authenticated by other means (e.g., recognition testimony).

If the evidence is of a type that is likely to be confused or can be easily tampered with, the proponent of the object must show that it has been held in a substantially unbroken chain of possession but does not need to negate all possibilities of substitution or tampering.

The judge decides whether some auxiliary policy or principle outweighs the need to admit the real evidence. Such policies limiting the use of real evidence frequently concern physical inconvenience of bringing the object into the courtroom, indecency or impropriety, or undue prejudice where the probative value of the object or exhibit is outweighed by the danger of unfair prejudice.
It may be offered into evidence by the adverse party.

Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence.

Unlike the adverse party, the party using a memorandum to refresh the witness's recollection has no right to offer it into evidence.

When a memorandum is used at trial to refresh a witness's recollection, it may be used solely to refresh her recollection and need not be authenticated.

There is no signature requirement for a memorandum used to refresh the witness's recollection.

A. Present Recollection Revived—Refreshing Recollection - NONHEARSAY
A witness may use any writing or thing for the purpose of refreshing her present recollection. She usually may not read from the writing while she actually testifies, since the writing is not authenticated, is not in evidence, and may be used solely to refresh her recollection. The writing is intended to help her to recall by jogging her memory. The sworn testimony must demonstrate a present recollection.

B. Past Recollection Recorded—Recorded Recollection - HEARSAY EXCEPTION
Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if a proper foundation is laid for its admissibility. This use of a memorandum as evidence of a past recollection is frequently classified as an exception to the hearsay rule. The foundation for receipt of the writing into evidence must include proof that:

(i) The witness at one time had personal knowledge of the facts recited in the writing;

(ii) The writing was made by the witness or made under her direction or that it was adopted by the witness;

(iii) The writing was timely made when the matter was fresh in the mind of the witness;

(iv) The writing is accurate (i.e., witness must vouch for the accuracy of the writing); and

(v) The witness has insufficient recollection to testify fully and accurately.

Remember that, under the Federal Rule, if admitted, the writing may be read into evidence and heard by the jury, but the document itself is not received as an exhibit unless offered by the adverse party. [Fed. R. Evid. 803(5)]
Only if the ground stated was the correct one

An objection may be either general ("I object") or specific ("Objection, hearsay"). Because HEARSAY was STATED as the ground for the objection, this was a SPECIFIC OBJECTION. If a SPECIFIC objection is SUSTAINED and the evidence is excluded, the ruling will be UPHELD ON APPEAL ONLY IF THE GROUND STATED WAS THE CORRECT ONE , unless the evidence excluded was NOT COMPETENT and could not be made so.

If a SPECIFIC objection is SUSTAINED and the evidence is excluded, the ruling will NOT BE UPHELD ON APPEAL IF THERE WAS {ANY} GROUND FOR THE OBJECTION. RATHER, the GROUND STATED must have been the CORRECT ONE.

As stated above, the hearsay objection is NOT a general objection.

Specificity of Objections -
An objection may be either general ("I object") or specific ("Object, hearsay"). The importance of whether an objection is general or specific lies in the extent to which each type preserves the evidentiary issue on appeal. The following rules apply:

1) General Objection Sustained
If a general objection is sustained and the evidence excluded, the ruling will be upheld on appeal if there was any ground for the objection. In the absence of specificity in the trial court, it will be assumed that the ruling was placed upon the right ground.

2) General Objection Overruled
If a general objection is overruled and the evidence admitted, the objection is not available on appeal unless the evidence was not admissible under any circumstances for any purpose.

3) Specific Objection Sustained
If a specific objection is sustained and the evidence is excluded, the ruling will be upheld on appeal only if the ground stated was the correct one, unless the evidence excluded was not competent and could not be made so.
Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue.

The expert must possess reasonable certainty or probability regarding his opinion. Absolute certainty is not required. However, if the opinion of the expert is a mere guess or speculation, it is inadmissible.

The opinion of an expert witness may embrace the ultimate issue in the case. Federal Rule 704(a) and the modern trend repudiate the traditional prohibition on opinions embracing the ultimate issue in the case. The rule provides: "An opinion is not objectionable just because it embraces an ultimate issue."

Under Federal Rule 703, the expert may base an opinion on facts not known personally but supplied to him outside the courtroom, and such facts need not be in evidence or even of a type admissible in evidence, as long as the facts are of a kind reasonably relied on by experts in the particular field. However, if the facts are of a type inadmissible in evidence, the proponent of the expert opinion must not disclose those facts to the jury unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect.

Under Federal Rule 702, expert opinion testimony is admissible if the subject matter is one where scientific, technical, or other specialized knowledge would help the trier of fact understand the evidence or determine a fact in issue. This test of assistance to the trier of fact subdivides into two requirements:

(i) The opinion must be relevant, and
(ii) The methodology underlying the opinion must be reliable.
To prove a prior inconsistent statement by extrinsic evidence, certain requirements must first be met. It is NOT ENOUGH that the prior inconsistent statement cast doubt on the witness's CREDIBILITY. Instead, the statement must be RELEVANT to the case; i.e., it CANNOT BE A COLLATERAL MATTER. Furthermore, the witness generally MUST BE GIVEN AN OPPORTUNITY TO EXPLAIN OR DENY her statement at some point during trial. There are certain EXCEPTIONS to this FOUNDATIONAL REQUIREMENT. For instance, if the inconsistent statement was made by a hearsay declarant, the declarant may be impeached despite the lack of a foundation.

To prove the statement by extrinsic evidence, certain requirements must first be met: (i) a proper foundation must be laid; and (ii) the statement must be relevant to some issue in the case, i.e., it cannot be a "collateral matter."

1) Laying a Foundation
Extrinsic evidence of the witness's prior inconsistent statement is admissible only if the witness is, at some point, given an opportunity to explain or deny the allegedly inconsistent statement. (The opportunity need not come before introduction of the statement under the Federal Rules.) This foundation requirement may be dispensed with, however, where "the interests of justice otherwise require" (as where the witness has left the stand and is not available when his prior inconsistent statement is discovered). [Fed. R. Evid. 613(b)] The courts generally agree that inconsistent statements by a hearsay declarant may be used to impeach the declarant despite the lack of a foundation (obviously, where the declarant is not a witness no foundation could be laid anyway). [Fed. R. Evid. 806]
The United States Supreme Court recognizes a federal privilege for communications between a licensed social worker and his client or a psychotherapist (psychiatrist or psychologist) and his client. Thus, the federal courts and virtually all of the states recognize a privilege for this type of confidential communication. In most particulars, this privilege operates in the same manner as the attorney-client privilege.

The physician-patient privilege is a STATUTORY PRIVILEGE, but has not been adopted in all jurisdictions. However, in a substantial number of jurisdictions, a physician (and, in some jurisdictions, a dentist or nurse) is foreclosed from divulging in judicial proceedings information that he acquired while attending a patient in a professional capacity, which information was necessary to enable the physician to act in his professional capacity.

When a client is examined by a doctor at the attorney's request, the communications involved between the client and doctor (and the doctor and attorney) are not covered by the physician-patient privilege because no treatment is contemplated. However, these communications are covered by the attorney-client privilege because the examination is necessary to help the client communicate her condition to the attorney. This privilege would be waived if the doctor were later called as an expert witness by the same client.

The Supreme Court has held that there is no constitutional protection for a journalist's source of information, so the existence of the privilege is limited to individual state statutes, which have been recently growing in number. Less than half of the states have enacted statutes protecting the journalist's source of information, and the protection ranges from an absolute privilege to one qualified by the need for disclosure in the public interest.
can be asserted as to matters that took place before the marriage

The privilege lasts only during the marriage and terminates upon divorce or annulment. If a marriage exists, the privilege can be asserted even as to matters that took place before the marriage.

Spousal immunity is not held by both spouses jointly. In federal courts, only the witness-spouse may invoke the privilege against adverse spousal testimony. Thus, one spouse may testify against the other in criminal cases, with or without the consent of the party-spouse, but the witness-spouse may not be compelled to testify, nor may she be foreclosed from testifying (except as to confidential communications). Some states (e.g., California) follow the federal view. In some state courts, the privilege belongs to the party-spouse. Thus the witness-spouse may not be compelled to testify, and she may be foreclosed from testifying if the party-spouse asserts the privilege.

The privilege lasts only during the marriage and terminates upon divorce or annulment.

Spousal immunity may be invoked in CRIMINAL cases only. When the privilege of spousal immunity is invoked, a married person whose spouse is the defendant in a criminal case may not be called as a witness by the prosecution, and a married person may not be compelled to testify against his spouse in any criminal proceeding.

Remember that there are two separate privileges related to marriage: spousal immunity and the marital communications privilege. This question is testing your knowledge of spousal immunity.
if the source of information or other circumstances indicate the record lacks trustworthiness

One requirement of the business records exception is that the record must be made in the course of a regularly conducted business activity. Certain records, however, are found to be prepared "in anticipation of litigation." In the case of Palmer v. Hoffman, the United States Supreme Court held that a report made by a railroad company following an accident was inadmissible because it was prepared in anticipation of litigation, and railroading, not litigating, was the railroad's primary business.

The Federal Rules have dealt with the problem of records prepared "in anticipation of litigation" by granting the trial court discretion to exclude any business record if the source of information or other circumstances indicate the record lacks trustworthiness.

Many courts have interpreted the rule of Palmer v. Hoffman narrowly, and exclude reports prepared in anticipation of litigation only when the report was prepared primarily for litigation and the author of the report had a strong motive to misrepresent. However, the Federal Rules do not follow this view.

The Federal Rules do not give the court discretion to exclude a record prepared in anticipation of litigation when there is any in-court testimony that conflicts with what is stated in the business record. Rather, the Federal Rules follow a more flexible standard and give the court discretion to exclude such records if the source or information or other circumstances indicate that the record lacks trustworthiness.
On the issue of whether the lock on an apartment door was broken, a neighbor testifies that the plaintiff told her that the lock was broken.

Hearsay is an out-of-court statement offered to prove the truth of the matter asserted. In these examples, you must look at the purpose in offering the evidence. When the issue is whether the lock is broken, the plaintiff's statement to the neighbor that the lock was broken is hearsay; it is an out-of-court statement offered as proof that the lock was broken.

When the issue is whether the landlord knew the lock was broken, the neighbor's testimony that plaintiff told the landlord that the lock was broken is not hearsay. Although the statement was made out of court, it is offered to show that the landlord had notice of the broken lock, not to show that the lock was broken.

When the issue is whether the lock was broken on a particular day, the neighbor's testimony that she saw a locksmith working on the lock is not hearsay. Certain conduct is a substitute for words and thus could be hearsay, but the locksmith's work is nonassertive conduct. It was not intended as any kind of statement.

When the issue is whether the landlord agreed to lease the apartment to the plaintiff, the plaintiff's statement to the landlord that he will rent the apartment if the landlord will fix the lock and the landlord's reply are not hearsay because the evidence is not being offered to prove that the landlord will fix the lock; it is offered to show that there was an agreement between the parties.
On the issue of whether Declarant went to church on Sunday, a witness testifies that on Monday Declarant said, "I went to church yesterday".

The Federal Rules define hearsay as a statement, other than one made by the declarant while testifying at the current trial or hearing, offered in evidence to prove the truth of the matter asserted.

When the issue is whether Declarant went to church on Sunday, the witness's testimony that on Monday Declarant said, "I went to church yesterday" is hearsay. The out-of-court statement is being offered to prove the truth of the matter asserted (i.e., that Declarant went to church on Sunday).

When the issue is whether Defendant made a defamatory statement, the witness's testimony that Defendant said, "Plaintiff is a thief" is not hearsay. There are certain utterances to which the law attaches legal significance (e.g., words of contract, defamation, bribery, cancellation, permission). Evidence of such statements (sometimes called "legally operative facts") is not hearsay because the issue is simply whether the statements were made. The statement is not being offered for its truth (i.e., that Plaintiff is a thief) but to show that the defamatory statement was made.

When the issue is whether Declarant is insane, the witness's testimony that Declarant said, "I am Bigfoot" is not hearsay. Statements by a declarant that serve as circumstantial evidence of the declarant's state of mind are not hearsay. Such statements are not offered to prove the truth of the matter asserted but only that the declarant believed them to be true. The most common examples of this type of nonhearsay are evidence of insanity and evidence of knowledge.

When the issue is whether Plaintiff is truly injured, testimony by Defendant's witness that Plaintiff said, "I'm not really injured" is not hearsay. Although it is an out-of-court statement offered to prove the truth of the matter asserted (i.e., that Plaintiff is not really injured), it is also an statement by an opposing party (i.e., a statement made by a party and offered against that party), which is considered nonhearsay under the Federal Rules.
witness was not under a business duty to transmit the information to Officer

To be admissible, a business record must be made in the regular course of any business, where it was the regular course of such business to make the record at the time of the transaction or within a reasonable time thereafter. Also, the record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant.

Witness's statements are inadmissible under the business records exception because Witness was not under a business duty to transmit the information to Officer. To fall under the exception, the business record must consist of matters within the personal knowledge of the entrant or within the personal knowledge of someone with a business duty to transmit such matters to the entrant.

Generally, POLICE REPORTS are NOT admissible against a CRIMINAL defendant under the business records exception. However, police reports MAY be admissible as business records in CIVIL cases.

One requirement of the business record exception is that the entrant must have had some duty to make the entry as part of her employment (i.e., records kept as a hobby do not qualify). Here, Officer was under a business duty to draft the police report because she is employed by the police department and it is part of a police officer's job to draft such reports. Under the Federal Rules, the business records exception applies to every "business, organization, occupation, or calling, whether or not for profit." Thus, the police department is considered a business.

The fact that Officer and Witness are available does not affect the record's admissibility. For the business record to be admissible, the person who made the entry need not be unavailable as a witness.
A portion of the police report containing the responding officer's observation that defendant was intoxicated on the night in question, to prove the defendant was intoxicated.

Although there are hearsay exceptions for public reports and business records, police officers' observations contained in police reports are inadmissible against the defendant in CRIMINAL cases.

The defendant's birth certificate would fall under the hearsay exception for records of vital statistics. Records of births, deaths, and marriages are admissible if the report was made to a public office pursuant to requirements of law.

The Federal Rules specifically provide that judgments of felony convictions are admissible as exceptions to the hearsay rule in both criminal and civil actions to prove any fact essential to the judgment. Note, however, that the rules barring character evidence still apply. This hearsay exception merely provides a means of proving the facts upon which a conviction is based when such facts are independently admissible either to prove specific acts of misconduct on the issue of a person's motive, intent, absence of mistake, etc., or as proof of prior acts of sexual assault or child molestation in cases alleging sexual assault or child molestation.

The defendant's statement, "I did it, I killed him," is not hearsay at all because it is an admission of a party (the defendant). Although traditionally an exception to the hearsay rule, an admission by a party-opponent is considered nonhearsay under the Federal Rules.
Authorized spokesperson; partner; co-conspirator; principal-agent

An admission (i.e., statement attributable to an opposing party) is frequently not the statement or act of the party against whom the admission is offered at trial. A party can be held vicariously liable for statements made by people with the following relationships to the party:

Authorized Spokesperson
The statement of a person authorized by a party to speak on its behalf (e.g., statement by company's press agent) can be admitted against the party as an admission.

Principal-Agent
Statements by an agent concerning any matter within the scope of her agency or employment, made during the existence of the agency or employment relationship, are admissible against the principal. Therefore, if a truck driver-employee has an accident while on the job and admits that she was negligent, this admission may be introduced against her employer even if she was not authorized to speak for the employer.

Partners
After a partnership is shown to exist, an admission of one partner, relating to matters within the scope of the partnership business, is binding upon her co-partners since, as to such matters, each partner is deemed the agent of the others.

Co-Conspirators
The Supreme Court has held that admissions of one conspirator, made to a third party in furtherance of a conspiracy to commit a crime or a civil wrong, at a time when the declarant was participating in the conspiracy, are admissible against co-conspirators.

In contrast, statements of a party are not receivable against her co-plaintiffs or co-defendants merely because they happen to be joined as parties to the action.