Evidence Book and Class Notes

Chapter 2 Notes: TYPES OF COURTROOM EVIDENCE Evidence Defined. Testimony, writings, material objects or other things presented to the senses that are offered to prove the existence or non existence of a fact presented during the trial. California Evidence Code §140 (West 1995).

It is presented to the triar of fact. Exception (NOT EVIDENCE) – * Questions & statements made by the attorneys and judges. * Exhibits that are identified, and not offered or received into evidence * Objections are not evidence * Anything you see or hear outside of the courtroom Parties – individuals or organizations who oppose each other. Victim – the entity to whom the crime was committed against another Six Categories: I. Oral Testimony – given by witnesses speaking from the witness stand A. Three types of Oral Testimony i. Fact Witness (a.k.a. Eyewitnesses) – Testify about the facts related to lawsuit * must have first-hand knowledge ii. Expert Witness – has specialized knowledge to interpret evidence and explain to jury * No first-hand knowledge of the lawsuit is needed * No first-hand knowledge of the party or witness iii. Character Witnesses

* No first-hand knowledge of the lawsuit is needed * Can give information about the good or bad character of a witness or party * Must have first-hand knowledge of a party or witness * Best Example: A Bloody Knife presented in a stabbing case II. Real Evidence – any physical evidence that a party claims played a direct role I controversy that is authenticated and makes the story more concrete or believable.

III. Documentary Evidence – any type of writing or recording of information prepared by parties, eyewitnesses and some by experts.

IV. Demonstrative Evidence – sometimes physical but, unlike real evidence, is not an object that played a role in the disputed events. B. Parties illustrate concepts or facts to the jury using common types of demonstrative evidence - charts, tables, pictures, maps and graphs C. Is a re-creation or imitation of some aspect of the controversy, which could open it to abuse iv. PROBLEMS W/DEMONSTRATIVE EVIDENCE

* The evidence true nature may be misrepresented of what happened in the presentation of the re-created evidence or interaction reenacted. a. Too dramatic and distracts the jury from the facts v. Look-up case United States v. Wilson, 70 F. App’x 120, 123 (4th Cir. 2003) The defense lawyer wanted use demonstrative evidence to show that what would happen if the prisoner was call that no live person would answer – it was not allowed by judge, who cited that it is irrelevant b/c there was no evidence that the related prisoner ever attempted to make the call.

V. Stipulations – when both parties agree on a fact, they can stipulate that the fact is true for purposes of the litigation D. The parties must agree to its exact language E. The judge will introduce the evidence to the jury, by reading the stipulation in court F. Problems: irrelevance to controversy

VI. Judicial Notice – A fact is “generally known” or “accurately and readily determined” by consulting an unimpeachable source – See Rule 201. G. It is a fact is indisputably true vi. Example – Boston is in the state of Massachusetts

Photographs and Videos – it can be taken with cell phones, video cameras and cameras. H. It is either real or demonstrative evidence. vii. Real Evidence – when a photo or video depicts the events of a controversy directly * Example: Footage from a bank security camera that captured a robbery on tape or a cell phone are depictions of the actual incident. viii. Demonstrative Evidence – Footage illustrates an aspect of the dispute *

Example: Footage presented of photos taken of crime scene to help jury understand the placement of the victim’s body or a video to show a disabled persons difficulty in performing daily activities Look up United States v. Myers, 972 F.2d 1566 (11th Cir. 1992). 1. Oral Evidence given by arresting officer James sought to be admitted to show defendant Officer Myers was justified in grabbing the prisoner Yanz by the neck to get him to stop screaming, due to being warned by officer James that Yanz was shouting obscenities continuously enroute to station.

Also that upon arrival to station that Yanz appeared drunk, continued to yell obscenities and challenge officers to fights further shows that defendant was justified for grabbing victim by his neck. 2. Oral Evidence offered by Office Fleming sought to be admitted that Yanez cooperated with the officers and that defendant used stun gun and only after that did Yanez start yelling and egging on officer. First had eyewitness evidence further shows Yanez did not provoke the use of stun gun but was defending himself from defendant’s use of stun gun and that such use was unnecessary. 3. Stun Gun

a. Real Evidence introduced Myer’s stun gun because it was used in the actual controversy further shows that this was the stun gun used by defendant. b. Demonstrative Evidence in which Officer Fleming demonstrates how Myers had used the stun gun further shows that Myers used the stun gun to inflict bodily harm to victim.

4. Oral testimony of a Fact Witness – Chief Everett (Supervisor)advised defendant when stun gun was purchased that it was unauthorized to use on prisoners (should not have had gun in first place). He had personal knowledge of the policy and defendant further proves that policy states the use of the stun gun was against the victim’s rights.

5. Oral testimony by an expert testimony –Lt. Welch, 19-yrs exp on force that the bruises on Yanez were from a stun gun. He had 19-yrs exp on force and was familiar with stun gun bruises further prove that the stun gun had enough battery power to hurt victim.

6. Oral testimony by an expert opinion – Officer Baker that there were more effective methods to handle unruly prisoners like Yanez w/out using stun gun that the officers were trained to use. Also that said use of stun gun was overkill. He had personal knowledge of def.’s use of stun gun and police procedure further proves that the stun gun was used in error by officer

7. Oral testimony by victim – he testified of the circumstances of his arrest, his behavior (verbal & physical) and defendants’ use of the stun gun. First-hand knowledge of incident further proves that the use of the stun gun was unreasonable.

Meyers was convicted for a police officer’s use of unreasonable force violation – 18 U.S.C. § 242 (1996), a civil rights statute that punishes individuals who act “under color of any law” to deprive any person of any rights, privileges, or immunities secured or protected by the Constitution.”

Ask if a connection has to be inferred to connect evidence to controversy – Circumstantial/Direct Evidence? No legal distinction does not have any legal effect only used in court by trial lawyers and judges. Both types can support a verdict in both Civil and Criminal Law Cases. No inferences is not the goal, but as few as possible to get jury to connect puzzle to get a favorable decision in the case.

Circumstantial Evidence – is proof of a chain of facts and circumstances indicating the existence of a fact that requires the jury to make an inference connecting the evidence with a disputed fact. Example: A person who testifies that he saw the def. washing blood off his hands shortly after the victim was killed offers circumstantial evidence of the same fact. Inference Connections: (1) The blood came from the victim; (2) the def. got the blood on his hands when he killed the victim, rather than when he tried to aid the victim or perform some other act.

Direct Evidence – is the testimony of a person who asserts or claims to have actual knowledge of a fact, such as an eyewitness that requires no inferential bridge: it directly establishes a contested fact. Example: An eyewitness, who saw the defendant plunge a dagger in victim’s chest, further proves directly that the defendant killed the victim.

See Brandon L. Garrett, Judging Innocence, 108 Colum. I. Rev. 55 (2008).

Chapter 3 – 4 W’s of Federal Evidence

Why – To prevent any and all information the parties believe would be helpful to their case. Also, to balance the weight of evidence, so that people with more money will not be able to convince irrelevant evidence through expensive expert testimony or may compromise important social policies.

1. To protect the jury from misleading information 2. To eliminate unnecessary delay and promote efficiency 3. To protect a social interest, such as a confidential relationship 4. To ensure that evidence is sufficiency reliable

Who – Congress, Supreme Court and other evidentiary rulings

Where – Rules 101 and 1101 tells where rules apply.

Rule 101 – These rules apply to proceedings in United States Courts. The specific courts and proceedings to which the rules apply , along with expectations, are set out in Rule 1101.

Rule 1101 – Applicability of the Rules

(a) To Courts and Judges. These rules apply to proceedings before all trial and appellant courts, including tax courts – exception Supreme Court and some agencies.

* United States district courts; * United States bankruptcy and magistrate judges; * United States courts of appeals;

* The United States Court of Federal Claims; and * The district courts of Guam, the Virgin Islands, and the Northern Mariana Islands.


Rules 1101

(b) To Cases and Proceedings. These rules apply to: any proceeding that resembles a trial; exception it does not apply to every stage of adjudication only the main event: the trial. Example: in Summary Contempt the judge does not need to present evidence against a witness, who displays contemporous behavior to find the individual in contempt.

* Civil cases and proceedings, including bankruptcy, admiralty and maritime cases; * Criminal cases and proceedings; and * Contempt proceedings, except those in which the court may act summarily

(d) Exceptions. These rules – except for those on privilege – do not apply to the following:

1) The court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility (Relieves judges the responsibility to apply rules of evidence) 2) Grand-jury proceeding; and (Is this b/c the evidence gathering is more advanced that a the rules do not apply) 3) Miscellaneous proceedings such as; and any that resemble these: a. Extradiction or rendition;

b. Issuing an arrest warrant, criminal summons or search warrant c. A preliminary examination in a criminal case; (the evidence presented is to demonstrate “probable cause of a case prepared for trial” not to prove guilt/innocence.) d. Sentencing;

e. Granting or revoking probation or supervised release; and f. Considering whether to release on bail or otherwise

(c) Rules of Privilege. The privilege apply to all stages of a case or proceeding. (Overriding Rule to invoke privileges guaranteed – such as grand jury)

Example Grand jury investigating securities fraud of George Bluth subpoenas Lucille Bluth, who invokes spousal privilege by using Rule 1101(c).

Ch. 4 Structure of a Trial

1. Pretrial Motions * Motions in limine – “at the threshold” or pre-trial objection used by to exclude an opponent’s piece of evidence or to secure permission to introduce a potentially contested piece of their own evidence. It is a tactical advantage for the trial lawyer. * First. Knowing ahead what evidence will and will not be excluded can help the attorney plan trial strategy. * Second. Since motion is made pre-trial, the attorney may state all reasons for or against the exclusion of evidence as well thought out legal argument, w/out the rushed decision that the judge must make during trial. *

Third. Losing a motion in limine – allows attorney to loose often w/out the jury hearing/knowing it. However if the same loss of exclusion happens during the trial the jury will assume that this was a loss and it was important evidence that deserves special attention.

* Motions to suppress – used in criminal cases to claim that the evidence was legally obtained, * Suppressed evidence does not violate the Federal Rules of Evidence (Does Not Apply). * Opposing attorney wants the Judge to rule in its favor to ensure evidence cannot be used in the main event – the trial. * Summary Judgment – used in civil cases to state there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P.56(c) *

Judge uses evidentiary rulings to deal with these motions * Often if the key piece of evidence is inadmissible summary judgment is justified. * Some evidence (documents & other exhibits are required to be objected to before trial begins under Fed.R.Civ.P.26(a)(3).

2. Jury Selection – * Attorneys call this “Process voir dire” that means “to tell the truth” or “give a true verdict.” * An important stage of every jury trial

3. Opening and Closing Statements * opening statements * Before evidence is presented lawyers from each side give an opening statement to the jury. * Good opening statements – * Tell a compelling story * Reflects the evidence that will unfold during trial * Gets jurors on your side from the onset * Each lawyer gives an often uninterrupted themed overview or compelling story of the evidence that they plan to present, explain used to create a map or framework for why the jury should discount evidence presented by its opposition. *

The lawyer who has the burden of proof is the one who gives opening statement first the defendant has the more difficult task of dislodging the framework set by the prosecution/plaintiff attorney. (If we are innocent until proven guilty why is that court rules allow your accuser to say what you did wrong in court then make you defend it as untrue. * Prosecutor in a Criminal Case

* Plaintiff in a Civil Case * Opening statement do not give irrevocable juror support only support the case for the juror to refer throughout the presenting of evidence. * closing statements * Both parties use this time to sum up their case presented to argue and convince jury to ignore the opponents case presented. * The attorneys can use exhibits of visual aids or oral statements but no other witnesses.

See carol tarvis & elliot aronson, mistakes were made (but not by me) why we justify foolish beliefs, bad decisions And hurtful acts (2007).

4. Cases-in-Chief * Prosecutor in a criminal case completes presentation of its case – evidence, documents, demonstrations and witness testimony – Defense may move for judgment of acquittal. Meaning the judge must believe from case presented by the accuser that it will not stand on its own to prove to the jury that the defendant is guilty of crime accused (Jesus Move – Woman you have no accusers of adultery). *

Plaintiff in a civil case completes presentation of its case evidence, documents, demonstrations and witness testimony – Defense may move for a judgment as a matter of law. Meaning the judge must believe from case presented by the accuser will not stand on its own merits (Jesus Move – Woman you have no accusers of adultery). *

5. Rebuttal and Rejoinder * Rebuttal – * Plaintiff/Prosecutor uses this to directly attack the defendants case presented only – no new issue only related evidence. * Defendant uses this to respond only to Plaintiff/Prosecutor Rebuttal only. * Rejoinder –

* Is the act of introducing the new related evidence used to attack the opponent’s case.

6. Jury Instructions * No set time for judge to give instructions, usually giving when relevant. Usually repeated after closing arguments. 7. deliberations * Time given to jury to weigh all evidence presented to forge a verdict. During this time the jury may ask judge for clarifications and further instructions. 8. verdict * The signifies the end of the trial where the judge will enter the verdict and at that time post-verdict motions may be entered, such as an appeal. * Appeals can be filed by all parties in a suit except the prosecutor.

9. non-jury trials operates the same as above minus jury selection, instruction and deliberations.

Class 2| Wednesday5/22| Chapter 5: Raising &Resolving Evidentiary Objections40-54Problem Set 5Chapter 6: Relevance55-68Chapter 7: Prejudice, Confusion, or Waste of Time69-84Chapter 8: Fitting the Rules Together85-87|


Motions in Limine and to Suppress – allows a part to attack – or defend – key pieces of evidence before trial. FYI – It is important to know the rules to defend/challenge a position persuasively to effectively represent your client. Rule 103 – Rulings on Evidence. It outlines the steps taken by attorney to object to evidence during trial so that appellate court may review ruling. (Know your end result to determine steps to get there.) Knowing the end will make it simpler for attorney to challenge and defend a piece of evidence. a. Preserving a Claim of Error

. A party may claim error in a ruling to admit or exclude evidence only 1) Raising objections to challenge opponent’s evidence. i. If the ruling admits evidence, a party, on the record: A. Timely objects or moves to strike; and

1. Make Objection and a Motion To Strike together i. Before the opponent introduces potentially inadmissible item into evidence emerges fully. * Example: The prosecutor calls an incompetent witness, the defense will object to that witness testifying; or the defense asks a witness an irrelevant question, the prosecutor will object to the question. 2. Timely manner

ii. Is to object as soon as the ground for objection is known or reasonably should be known iii. If trial attorney fails to object promptly, an appellate court will not consider the evidentiary challenge iv. Objections should be done timely after the proffer of testimony so as to allow the district court an adequate opportunity to correct any error. (It’s a long shot and attorneys don’t push this envelope often.) v.

Example – When a defense lawyer waited to object to admit evidence after the jury was dismissed was considered far too late to make an objection and the judge overruled objection. The appellate court agreed that under the circumstances the defense attorney waited too late to object. The court affirmed the conviction even though the evidence was determined incriminating, because his attorney failed to make a timely objection. B. States the specific ground, unless it was apparent from the context 3.

Gives notice to trial lawyers for the basis for an objection vi. The opponent can try to cure any defect in the evidence and, vii. The judge can more easily rule on admissibility. 4. If trial attorney does not offer specific grounds for an objection, an appellant court will not consider the evidentiary challenge. viii. If the opposing attorney sees multiple grounds for objecting to evidence, then the attorney should raise each of those specifics * If you do not raise all specifics you will not be able to object later in appeal if issue was not raised in trial court.

a. Example: The attorney raised objections to the testimony of arresting officer on two points. In appeal the defense attorney brought up a third point of objection. The appeals court refused to consider that issue further, because the attorney did not raise this point in trial court. Even though he did raise the objection timely and specifically – he did not specifically raise it on this issue. United States v. Gomez-Norena, 908 F.2d 497, 500-01 (9th Cir. 1990). * If the attorney objects to just a part a document or testimony, the attorney must designate the portion of the document or testimony to which they object. If it is the entire document or testimony, the attorney may object to the whole. 5. Example:

The attorney failed to make a specific objection to a cross-examined witness question and objection was denied by the judge. The verdict returned against the defendant. The objection was generic and did not point to a specific reason and thus the appellate court refused to consider any error in the testimony.

Owens v. Patton 925 F.2d 1111, 1114. 6. The attorney will always object plus one (objection – hearsay; beyond the scope) then when recognized by judge, the attorney will cite specific rules and judge authority. 2) Defending Evidence – if the ruling evidence, a party informs the court of substance by an offer of proof, unless the substance was apparent from the context. ii. Is the offer of proof to show judge what the evidence entails. iii.

The opponent fails to make this offer, then he waives any objection on appeal iv. Judges have discretion to determine the form in which attorneys offer of proof. C. Formal offer must be made unless it is apparent from the context, but it is advised that the attorney make at least a brief offer of proof to buttress (rules & judges authority supporting your position) their argument for admissibility and to clarify the record for appeal. b. Maintaining Objections - Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitely on the record – either before or at trial – a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

3) At trial objection, judges rules and allows the trial to continue and preserves any further arguments for appeal 4) Motions in Limine – rules definitively to obtain decisions on key evidentiary issues before finalizing their trial strategies v. When the judge rules on a Motion in Limine, the losing party need not repeat any objection or offer of proof at trial. c. The court may direct that an offer of proof made in question-and-answer form 5) An attorney may demonstrate with the witness the actual questions that would be asked and answered

d. Shielding the Jury – Preventing the jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means 6) This keeps jurors from witnessing the debate and risk them being confused or misled by the legal arguments the litigants make to the judge concerning inadmissible evidence. 7) Initial objection is made in front of jurors, but they are usually not privy to extensive explanation needed for judge to rule on objection. vi. Shielding is done two ways

D. The attorneys “approach the bench” preventing the jury from overhearing the discussion; or E. The judge dismisses the jury so attorneys may present a detailed offer of proof. e. Response by judge.

8) She can sustain the objection and exclude all of the evidence 9) She will overrule it and admit all of the evidence 10) She will admit some of the challenged evidence, while excluding other portions vii. Written documents, the judge may direct a party to redact (eliminate) portions of the document violating an evidentiary rule and admitting the rest of the document viii. Topics or questions, the judge may direct a party to avoid them in their examination of a witness, to allow witness to testify on other matters. 11) The judge gives a curative instruction that tells jury to disregard evidence sometimes explaining why the evidence is misleading or inappropriate to consider. 12) Rule 105 – Limiting Evidence That Is Not Admissible Against Other Parties or for Other Purposes – If the court admits evidence that is admissible against a a party or for a purpose – but not against another party or another purpose the court, on timely request must restrict the evidence to its proper scope and instruct the jury accordingly. ix. The judge must give clear instruction limiting the circumstances evidence may be used. F. Example: In a defective product case, the plaintiff introduced the evidence of a loose screw in machine. The judge gave the jury instructions that evidence original condition and is only admitted to show its condition at the time of the accident. They should “disregard the loose screw because it had nothing to do with the cause of the explosion.” The appellant judge’s decision and his use of a limiting instruction in this case. Raney v. Honeywell, Inc., 540 F.2d 932, 935-36 (8th Cir.1976). G. Common Use – demonstrative evidence.

7. Example: Case charging defendant with embezzlement along with 8 others who plead guilty. The government prepared a series of charts outlining the charges in the indictment and the evidence supporting each charge. The defendant objected to the use of materials. The trial judge admitted materias and gave jury limiting instruction to explain the charts themselves were not evidence. The court of appeals affirmed this practice noting that there is an established tradition… that permits a summary of evidence to be put before the jury with proper limiting instructions. United States v. Scales, 594 F.2d 558, 561-64 (6th Cir. 1979). H. Not popular amongst lawyers because it focuses jury on certain inadmissible evidence; the potential harm of highlighting such evidence and the jury misinterpreting the proper use evidence that they would not have noticed previously. f. On Appeal.

13) Judges have a substantial right to discretion to adhere to rules of evidence rulings 14) Rarely reverses a trial court ruling; unless x. Judges have an abuse of discretion standard to most claims of evidentiary error xi. Only reversible if error is not harmless, “it must be evidence substantially to the cause of verdict I. Rule 103(e) Taking Notice on Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. 8. Courts rarely find plain errors, especially in civil lawsuits (if civil lawsuit most likely not a plain error). 9. It must be clear and obvious under current law; affects (a party’s) substantial rights; and… would seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected. Tompkins v. Cyr. 202 F.3d 770, 779 (5th Cir. 2000). United States v. Olano, 507 U.S. 725 (1993). Ch. 6 Relevance. the first hurdle in determining the evidence admissibility. I. Rule 402.

a. general admissibility of relevant evidence; relevant evidence is admissible unless any of the following provides otherwise; * The United States Constitution (has a liberal approach to admissibility) * A federal statute

* These rules; or * Other roles prescribed by the Supreme Court. b. If evidence is relevant, it is admissible unless a specific rule, statute, or constitutional provision bars its admissibility. c. If the evidence fails the relevance test IN RULE 401, the court cannot admit it.

II. RULE 401. TEST FOR RELEVANT EVIDENCE. Evidence is relevant if: d. It has any tendency to make a fact more or less probable then it would be without the evidence; and * Any tendency – shows leniency embracing evidence that could shift a fact finder’s view of the facts even the smallest degree; from .01 to 100%. * Fact more or less probable – A piece of evidence is relevant as long as it makes some fact of consequence “more or less probable.” 1. Example: The evidence entered to show that Walsh was not drunk even though the results of a blood alcohol test, taken shortly after the accident – show he had an elevated blood alcohol level. The neighbor, a lay witness gave eyewitness testimony that Walsh appeared sober and he walked straight shortly before accident. Although the evidence offered by the neighbor of Walsh is less persuasive it is relevant and has passed the test of pushing the triar of fact closer to finding the fact that he was not drunk more possible and the fact that he was drunk less possible. Thus the judge would allow the evidence as relevant, unless there is a specific rule, statute or constitutional provision that bars this evidence. Walsh v. New London Hosp., 856 F.Supp.22(D.N.H. 1994). e. The fact is of consequence in determining the action. * The fact being proven must be related to the cause of action or the fact must matter to someone who is trying to decide the case to be relevant. * The fact need not be in dispute or even if it addresses a matter that the opponent concedes. 2. Example: Judge Old Chief case – the defendant wished to stipulate that he had a felony, without disclosing the facts of the felony. The prosecution refused, because the facts of the felony could act as evidence that the defendant had committed a similar act previously. It is as the discretion of the opposing party to accept a stipulation not a requirement. * Irrelevant prior misdeeds are inadmissible, as they do go to assisting t triar of fact to rendering a verdict on the current cause of action. 3. Example: When MC Hammer was sued by the group “Legend” for copyright infringement he attempted to introduce evidence that the group “Legend” had done the same practice of sampling previously, and thus had “Unclean Hands.” The group “Legend” objected as this was irrelevant evidence to the current cause of action. The prior misdeed of the group “Legend” having “Unclean Hands” moves the degree to prove “Legend” is more or less probable of copyright infringement. This evidence is of no consequence to show MC Hammer’s acts of copyright infringement is more or less probable. Thus the judge will most likely not allow this evidence to be admitted as it does not prove the fact that MC Hammer cause of action of sampling an industry practice that legend is more or less probable of committing is more or less probable. * Evidence that is too far removed from the cause of action are inadmissible as irrelevant evidence. 4. Example: Barios is suing for discrimination in terminating her, but introduces evidence of sexual harassment from 10 years prior to the current cause of action. The judge rules evidence inadmissible due to even if relevant, of the significant time gap of ten years between when the alleged sexual harassment claim occurred, go, in relation to the current cause of action of disability discrimination. EEOC v. Dupont De Nemours & Co., No.Civ. A. 03-1605, 2004 WI, 2347556 (E.D.La.Oct. 18, 2004). * Negative Evidence. Showing what was wrong to prove what is right. Judges often reject this type of evidence at their discretion. 5. Example: Fuesting had a large marijuana field on his property discovered by the government, who charged him with possession of marijuana with intent to distribute. He wanted to introduce evidence of his banking habits through introduction of bank statements showing the lack of large deposits and withdrawals. This was to prove that he did not intend or distribute the marijuana. The judge would most likely exclude this evidence, finding that there are many reasons of why there are no large transactions in Fuestings account. * Hindsight. When looking at facts today and not as they occurred the victim may feel they overreacted and courts try to instruct jury in the matter that the must deal with the facts that occurred at the time of the cause of action. 6. Fact pattern will involve on individual using deadly force against another. The standard in these cases is subjective feeling of threat that one is in imminent danger of bodily harm and not an objectionable one. 7. Example: Police Officer pulled over a Gary and Buckworth, who they thought were robbers that had just robbed a plant store. Sherrod made a quick movement into his pocket and the officer Berry shot Sherrod instantly. The evidence too be entered was that Berry was unarmed. The judge rejected this evidence because it didn’t matter that the victim was unarmed it was the officers perception that he may be and was about to cause imminent bodily harm at issue. It would be reasonable for anyone in the place of the officer to believe that he needed to defend himself at the time of crime. * Opening the Door. Irrelevant evidence sometimes becomes relevant to rebut claims made by another party. 8. Example: Used Philadelphia Movie – where the defendant in cross-examination using a mirror up to face that the partners of the firm did not fire him because they knew he had aids. The evidence was to point to knowledge and it pointed to the lesions that were on his face at the time of termination. However the lesions on his face had healed by trial. The plaintiff attorney allowed it not sure where the defense attorney was going with the use of the mirror (You should object immediately and have opponent lay the framework introducing demonstrative evidence especially or line of questioning.) Once the defense attorney got the answer she wanted that you couldn’t see the lesion on his face, the plaintiff attorney used the same demonstrative evidence to prove that the lesions that were on his face at the time were visible. He had plaintiff show court his lesions on chest that were like the ones that were on his face at the time of termination. The defense attorney opened up the flood gates that they had knowledge of the plaintiff’s medical condition visually and moved to prove that they were more liable for the cause of action (Wrongful Termination) than once stated in evidence they presented. * Case-by-case Determination. The judge as the discretion on ruling on evidence on a case-by-case basis; just because the same judge when presented with the same evidence pattern rule to admit may rule to reject in the second case. Upheld by Supreme Court in 2008. CHAPTER 7 – PREJUDICE, CONFUSION, OR WASTE OF TIME (LAST NET BEFORE FISH ARE CAUGHT OR LET GO – LAST HURDLE TO CROSS ) I. RULE 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: * Judges have the discretion to exclude problematic evidence – “court may exclude” – evidence that is accepted in one case may not be accepted evidence in another case. * Advantage - Appellate courts rarely reverse R.403 rulings * Disadvantage - The attorneys have an opportunity to use persuasive advocacy – convince the judge to their point of view.

i. Unfair Prejudice 1. Lure[s] the fact finder into declaring guilt [or liability] on a ground different from proof specific to the offense charged. Unfairness is that the evidence will tempt the jury to decide the case on the grounds different from those the law demands. 2. Substantially Outweighed

a. If the probative value and unfair prejudice are evenly balanced, or even if unfair prejudice somewhat outweighs probative value, the evidence must be admitted; assuming the jury will weigh evidence appropriately. i. Probative value

1. Designed to test or prove somebody or something or a fact is more or less likely. 2. The more significant the evidence can show a fact more or less likely, the more likely it will be ruled admissible by the judge. b. The rule tilts firmly toward admissibility and judges actions under this rule is not an even-handed one. 3. Unfair – all evidence is prejudicial in the sense that the party offering the evidence in the sense that the party offering the evidence hopes that it will damage the opposing side. 4. Five Factors used to Determine Unfair Prejudice c. The extent to which the evidence will arouse emotions or irrational prejudices among the jurors. Judges are more likely to exclude emotional charged evidence. d. The extent to which the jury might overvalue the evidence – gives evidence that is slightly relevant and give it undue weight. e. The strength of the connection between the evidence and the elements of the case. Judge are most likely admit closely related to essential elements of a case, even if it is highly emotional. f. Whether the advocate can prove the same facts through less prejudicial or confusing means – the judge is less likely to admit evidence g. Whether it would possible to reduce prejudice or other harm once the evidence is introduced – Judges will do this by redacting information or giving jury special instructions limited scope of the use of the evidence before admitting evidence. If judge feels this is not possible, the judge will reject evidence. 5. Damaging Evidence. Counsel cannot simply state that it will damage their case – IT’S PERSUASIVE EVIDENCE – DOING ITS JOB! h. Example: Perez-Gonzalez participated in a riot where he was caught on tape destroying government property. The prosecution is seeking to enter the videotape. Defense objects saying that it is unfairly prejudicial. Judge dismissed objection and admitted the videotape in evidence. This is because this evidence was properly authenticated and PG was able to cross-examine reporters who filmed the tape. The tape had probative value to prove the fact that PG is more likely to be the cause of the act by showing PG in the act of destroying the governmental product. 6. Videos and Photos. They show an emotional punch that verbal testimony rarely conveys – A picture is worth a 1,000 words! i. Questions to determine admissibility of Videos & Photographs ii. Are these visual techniques legitimate attempts to make a crime or injury “real” to the jury? iii. Do these images and videos risk inflaming juror emotions to the point where the jury feels compelled to hold someone responsible for a terrible wrong and chooses the defendant simply because he or she is convenient? iv. Do these images only give an indication of how the crime occurred or who was responsible; or just get jury emotional? 3. Example: Children came home to find their Mom murdered. Prosecution sought to enter photo evidence that showed the children’s hand prints in the blood. The judge rejected this evidence citing that they offered nothing further to show who was responsible or how the crime occurred. Noting that it would just incite an emotional reaction from jury. United States v. McRae, 593 F.2d 700, 707 (5th Cir. 1979).

v. Professor not get your most gruesome pics/videos in first. 7. Socially Undesirable Behavior. Parties sometimes attempt to introduce evidence of an opponent’s unconventional lifestyle, hoping that the jurors’ biases will lead them to view the opponent negatively. j. If the evidence is not related, such as a person sexual orientation in a car accident is irrelevant. k. Example: Bailie Broadcasting School was charged with embezzlement of Perkin Loan funds. The government introduced evidence of their opulent (exorbient) lifestyle as proving the fact of the cause of action was more likely committed by the Bailies’. Bailies’ objected citing it was unfairly prejudicial against wealthy people. The judge allowed evidence and court of appeals affirmed. It is due to the fact that the evidence established the Bailies’ motive for embezzlement, which is a direct link to the elements of the crime accused the probative value outweighed the fact that it was unfairly prejudice against wealthy lifestyle. 8. Flight – introduced often show an admission of guilt. Judges use their discretion mostly in these cases.

9. Stipulations - Old Chief and Stipulation – felon-in-possession statute. Sometimes the stipulation is enough, but not where there is a better way to enter evidence. Used to introduce detailed evidence despite a defendant’s offer to stipulate. So it allows the defendant say yes I committed a felony, but not the details of the felony. However, the prosecutor can draw similarities of the evidence from the felony to present consequence. Example: Def. used a knife in felony and the current victim died of a 2-inch gash from a knife. Defense will argue prejudicial, cumulative evidence, confusion and delay.

ii. Confusing the issues, misleading the jury iii. Undue delay, wasting time, or needlessly presenting cumulative evidence Class 3| Thursday5/23| Chapter 16: Refreshing a Witness’s Memory195-206Chapter 17: Impeaching Witnesses207-16[Brief discussion of subsequent remedial measures (Chapter 9) and Rule 408, governing statements made during civil settlement discussions.]Chapter 18: Using Prior Statements to Impeach217-35|


R.601 COMPETENCE TO TESTIFY Every person is competent unless the FRE provide otherwise – Presumption – to get on stand and relay what you perceive YOUNG CHILDREN, MENTALLY ILL MENTALLY COMPETENT W just needs to appreciate the duty to tell the truth and have a minimal competent – just give information and answer questions based on what they perceived. WHO CANNOT TESTIFY … R.605 – Presiding judge cannot testify and party does not have to object to preserve this error R.606 – Juror cannot testify at trial in which juror is empaneled and if a juror is called, court must give party an opportunity to object outside the jury’s presence *** If juror can be called a a subsequent trial, but cannot give testimony that would undermine verdict he/she rendered. R.603 – Must take an oath or affirmation

R. 602 – must have personal knowledge of the subject of the testimony * Matters they have seen, heard or otherwise sensed themselves * Implies W is capable of apprehending an event, recalling it and describing it to others * Established through minimal foundation testimony

* Exception EXPERT WITNESS – R. 703 Does not need personal knowledge. The Ct. should determine: * Should be relevant or non-collateral evidence – that will make the triar-of-fact believe that a fact is more/less probable (R. 402) * Should determine the EW testimony is reliable or generally accepted evidence (R. 403) – the triar-of-fact won’t overvalue evidence.

RULE 611: METHOD AND ORDER OF EXAMING WITNESS AND PRESENTING EVIDENCE a) Court controls method and order to avoid wasting time, protect witnesses and to effectively get at the truth of the matter b) Scope of cross-examination is limited to maters raised on direct and credibility of the witness – Cannot ask a question about things not asked in direct by OPC. c) Leading question are proper only on cross-examination unless: 1. Exceptions –

* Witness called in a Civil Case is an adverse party, * A witness identified with an adverse party; or (a relative, employee or manager) loyalty lies with the opposition * A hostile witness (when the witness refuses to answer the question properly – Attorney ask W were you there – Idk; attorney ask W did you see the car – I don’t remember) R.611 DIRECT EXAMINATION -

a) Establish Background Information and Identification questions 1. Why should we care about W being here in court 2. lay a foundation for personal knowledge

3. Ask open ended questions so W tells the story in his/her own words, narrative – there initial story 4. Some leading questions may be permissible to establish pedigree i. (background information); or

ii. orient W to relevant time and place Narrative of their story – with highlights of CROSS-EXAMINATION a) Leading question are allowed b) Scope is limited to matters raised on direct c) Can always question W’s credibility? 1. Probe their story and poke holes on their story. If you get them to drop the ball to drop – don’t try to nail them on it – b/c they will try to answer – lost effect. 2. Questions relating to credibility = impeaching the witness; when you catch them in a lie – Ask are you lying now or later. OBJECTIONS TO FORM (OF THE QUESTION) AND NOT THE (ACTUAL) QUESTION Child Support Case – examining father who has not paid child support. Receives a bonus but not entered in evidence. These rattle the other side to get W or even attorney off his game. * Argumentative – NO! NO! NO! NO! So YOU don’t pay child support becuase? * Asked and answered – If they answered the question once, no summary question of same facts * Assumes facts not in evidence – You didn’t establish information or no information given by opposing counsel; * Beyond the scope

* Calls for narrative * Speculative, Calls for speculation – Gives an information to answer question * Compound Question - Asking too many questions at once * Badgering the Witness * Improper Characterization/Misstates – Giving general information beyond personal knowledge * Testimony * Leading – You can’t lead must let the witness answer themselves. * Non-Responsive – Answering the question w/out answering the question asked. * Vague R. 615 COURT CAN CALL OR EXAMINE WITNESSES – Use when you examine a group of witnesses closely related in some way – sequester them so they cannot benefit from using Parties can object at the time or at the 1st opportunity outside the jury’s presence Sequestering (Excluding) Witnesses – once you ask for this Upon request of a part the court MUST sequester witnesses except:

A party or officer or EE of a corporate party cant always stay Persons the party can show are essential to the party’s case Any person authorized by statute to be present *In criminal cases = victim or victim’s next of kin; parent or guardian CHAPTER 16: REFRESHING A WITNESS’S MEMORY RULE 612: WRITING USED TO REFRESH A WITNESS’S MEMORY a. Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: 1. While testifying 2. Before testifying, if the court decides that justice requires the party to have those options. * Common to refresh witness b4 testimony b/c of time lapse or its considered human nature to forget * At Judges discretion adverse party is allowed a copy and attack * The Adverse Party is limited of what the witness see if reviewed before trial b. Adverse Party’s Options; Deleting Unrelated Matter … if the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. And portion deleted over objection must be preserve for the record. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case…

An adverse party is entitled to: 3. To have the writing produced at the hearing (a copy given) 4. To inspect it, 5. To cross-examine the witness about it, and * This is done to ensure that witness is not just reciting information just read as opposed to the spark in memory from reading the document * Opposing counsel does a “voir dire”- to examine the witness through a series of questions of their recollection. 6. To introduce in evidence any portion that relates to the witness testimony, even irrelevant information; You cannot introduce the item used and don’t use things that might damage your client.

c. Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness testimony or – if justice so requires – declare a mistrial. Advantage – more effective witness. Disadvantage – opens up the witness to additional questions or bring attention to addition information to opposition or adverse party. The writing is now entered evidence that may have not been otherwise inadmissible. 7. (LET CLIENT CREATE ITEM – MAKE COPY W/UR NOTES SEPARATELY!) if the item has non-relevant or unfairly prejudicial. Information w/in you can ask for redactment, but Judges most likely reject request. The Writing

The most effective way for attorney to accomplish this is by use of a document prepared by witness themselves or by an insurance agent/police officer from information given directly from witness. It can be anything a document or an item - even a photo (a picture of the event will help you me remember) news article, electronically stored (voicemail – hearing the voice reminds you of the type of messages they left) information or a photograph. As long as, it meets Rule 101(b)(6); any object that counsel uses to revive a witness’s memory: a song, a scent, a photograph, an illusion; as stated by Judge Learned Hand. TRICK QUESTION ON EXAM – YOU CAN USE ANYTHING!!! The only limit to the document rule is:

1) The jury’s perception; and 2) Opposing counsels Rule 612 rights – reproducible and usable. Counsel may ask witness questions to jar memory, but the witness seems less credible. For attorney to assist witness they must A. Establish that W doesn’t recall the answer to a question * THE WITNESS SAY THEY CAN NOT REMEMBER THE ANSWER TO THE QUESTION; witness initiates assistance needed. Not the attorney offering it to the witness. B. Describe the writing/item to be used to refresh W’s recollection and ask if it would refresh W’s recollection * The witness says the writing will “refresh her recollection.” Best way to assist the witness so they will still be effective to the jury as a credible witness. C. Hand it to them and give copy to opposing counsel

* The attorney ask witness ask whether the writinghas refreshed their recollection to ensure that the witness only testifies only about what they remembers – not about the things they read but can no longer recall. The adverse counsel now wants to introduce the evidence

If the producing party claims the writing/item includes unrelated matter, the court MUST Conduct an in camera review (In judges chambers) Delete/redact unrelated mater Order the remainder delivered to adverse party *If portions are deleted/redacted over the objection of the adverse party = must be preserved for the record. CHAPTER 17 – IMPEACHING WITNESS I. IMPEACHMENT – R. 607 you may attack W’s credibility, even if you called witness. a. Tries to show W is deficient in one of the competence capacities * Perception – W doesn’t tell severity or the whole story to make them look bad

* Memory – they don’t remember what actually happen * Narration – not specific facts W GIVES THEIR VIEW OF THE FACTS * Sincerity – b/c of a relation your Mother, Sister, Fiancé II. Impeaching Witnesses

b. Offensive techniques – You didn’t get it quite right, please disregard * Rebut the evidence – introduce evidence that contradicts the testimony of W (W said light green, your W says light was red) * Complete the story – you said you went to the bank, but you didn’t go in right

* Clarify ambiguous testimony– he struck her violently make them explain * Use expert testimony – the W is x 75% of the time

c. Defensive techniques – You are being in their face w/questions * Show impaired – on medication or was drinking alcohol excessively

* Show inconsistencies – W’s testimony is internally inconsistent or contradicts earlier statements. * Show bias – W is loyal to family member, Employer or group * Attack W’s character for truthfulness – show W is generally an untruthful person (W childhood friend says W is a known liar since age 9. III. Methods of Impeachment

d. Attack narrative ability – highlight ambiguities in testimony e. Attack perception f. Attack memory g. Attack sincerity * Show prejudice, bias, interest or corruption * Show that W’s testimony is improbable * Compare W’s testimony to prior inconsistent statements * Contradict W’s testimony with established facts * Show that W has an untruthful character 1. Reputation or opinion evidence, prior truthful acts or prior convictions IV. Sincerity h. Prejudice = against an whole group i. Bias = W has a specific affinity or dislike for a particular person j. Interest = W has a stake in the outcome of the case k. Corruption = improper interest in the case (you helped the judge rig election SCANDAL) CH. 9 – 13 ALLOW THIS EVIDENCE TO BE ENTERED FOR IMPEACMENT FOR SINCERITY CHAPTER 9 – SUBSEQUENT REMEDIAL MEASURES

I. R. 407 – SUBSEQUENT REMEDIAL MEASURES a. When measures are taken which would’ve made earlier injury or harm less likely, evidence of SRM is not admissible to show; * Negligence, culpable conduct, product or design defect or need for warning or instruction 1. You can’t use the fact that someone promised to pay medical * Want to prevent additional injuries

* Juries may overvalue post-incident conduct. b. BUT – evidence of SRM may be admitted for another purpose * Impeachment

* If disputed – ownership, control or feasibility of precautionary measures (paid tree service to fix tree, but they don’t own/control property) c. Most of the ligation concerns * “What is a measure” – fix cause of action that corrects what is thought to have caused the injury – design defect, product or policy/procedure * “What is subsequent” – after the initial injury, not after purchase. Exception when a previous injury is on record that happened after his purchase before his injury. CHAPTER 10 – SETTLEMENTS AND OFFERS TO COMPROMISE

I. R. 408 Compromise Offers and Negotiations a. No party can introduce evidence of settlement offers/acceptances OR conduct statements made during negotiations b. Only applies to claims c. If parties dispute some aspect of the claim if they agree as to liability and damages then R.408 doesn’t apply d. Only applies to compromise negations e. Only excludes evidence if offered for these purpose * Prove/disprove the validity or amount of a claim * Impeach W by PIS or contradiction CHAPTER 11 – MEDICAL EXPENSES

I. A. If you promise to pay Medical Hospital or Similar Expense it is not an admission of guilt 1. Furnishing, offering or promising to pay these expenses resulting from an injury is NOT admissible to prove liability for the injury * Limited to these type expenses – Car Insurance, Medical Malpractice and sometimes Indemnity Insurance ( * If you admit guilt or negligence when you offer it is admissible CHAPTER 13 – LIABILITY INSURANCE

II. Liability insurance B. Evidence that a person did/did not have liability ins is NOT admissible to prove negligence or other wrongdoing 1. Insurance that covers specified types damages owed to other people – * Car Insurance

* Medical Malpractice Insurance * Indemnity Insurance (sometimes companies make a one-time or temporary agreement with the company they are acquiring or merging with to handle damages that incur in the interim period of ownership transfer – Judges are split on deciding if this type insurance is) 2. Insurance that covers self damage; such as Health Insurance that pays your damages only not covered.

C. BUT IS ADMISSIBLE to show: 2. Bias, That you have interest in protecting the well-being, existence of or your interest in a specific individual or corporation. 3. prejudice, The views against an entire group or type of organization

4. Agency, 5. control or ownership – whether you own or control property or business; if you have no control or ownership you wouldn’t have paid for the Liability Insurance.

CHAPTER 18 – USING PRIOR STATEMENTS TO IMPEACH A WITNESS I. TWO TYPES OF INCONSISTENT STATEMENTS a) Extrinsic evidence – is any evidence other than testimony from the witness currently on the stand 1. Evidence that W testimony is inconsistent from a new W or introduction of new evidence, not evidence from W you are seeking to impeach. b) Collateral Matter – if evidence entered only seeks to impeach W, in contrast if it proves a fact and/or impeaches a witness it is non-collateral matter. Can W hear opposed to Non-Collateral Matter (Relevant Issue to prove case) is the blue truck that hit your client. 2. R. 611 – prohibit use of extrinsic evidence to merely impeach W, because it interrupts the orderly presentation of evidence. If there is not a high probative value (evidence that proves a fact) it not allowed. 8.

9. NON-EXTRINSIC EVIDENCE (more likely important) ON A NON-COLLATERAL MATTER IS ALLOWED. W said in police report that it was a blue truck that hit the V. The police state they could not find the blue truck and is allowed under R. 403 the probative value helps your client and is not prejudicial against them. 10. EXTRINSIC EVIDENCE ON A COLLATERAL MATTER IS NOT ALLOWED UNDER R.613 AND 403 11. EXAMPLE: W testifies that she saw one person get hit in court, but in statement to police or to your W she said it was another person who got hit. It is both extrinsic if your W has to testify and a collateral matter b/c it impeaches the witness and does not prove a fact. It is barred from use under R.403 – causes delay and confusion that substantially outweighs its probative value; also R.611 it disrupts the orderly presentation of evidence. Must be non-collateral matter that proves a fact and/or impeaches the W. W might bring in other extrinsic evidence of impairment that has a strong probative value and not subject to R.403 and R.411. II. R. 613 PRIOR INCONSISTENT STATEMENTS (PIS)

c) Showing or Disclosing the Statement During Examination. When examining a witness a witness about the witness’s prior statement. 3. A party need not show it or disclose its contents to the witness 4. But the party must, on request, show it or disclose its contents to an adverse party’s attorney(OPC). (This can happen just before cross-examination, so that the opposing attorney cannot prepare the witness) * You can ask them about the statement

* They get a chance to admit/deny * Example * Isn’t it true that you said it was a blue truck * She answers no – YOU MUST STOP!!! – DO NOT BRING IN EXTRINSIC EVIDENCE unless… * You reiterate the question forcing them to explain – Extrinsic Evidence * The OPC assist W in explaining away this evidence

* OPC has no right see the PIS prior to cross-exam (SURPRISE!!!) * Even if you don’t have a printed statement, but must be good faith reason to bring up this evidence d) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only 1. If the witness is given an opportunity to explain or deny the statement and adverse party is given an opportunity to examine the witness about it, or * Usually occurs during cross-examination of a witness in which the attorney may inform the opposing counsel of the intended line of questioning. * The opposing counsel has opportunity to re-direct and allow W to explain or deny further * Evidence is usually presented while W is on stand, the problem with introducing this evidence once W has left stand * MUST ASK W ABOUT EXTRINSIC EVIDENCE TO LAY FOUNDATION BEFORE BRINGING IN ANOTHER W TO DISPUTE OR EXPOSE THE INCONSISTENT STATEMENT 2. If justice requires (Rarely happens – Ex. Death occurred) * Exception is designed for cases of unavailability * W becomes unavailable after testifying but before the PIS can be introduced – Judges are reluctant to apply this exception * Lawyers tend to show the PIS to avoid any possibility of exclusion in the event W becomes unavailable e) Evidence introduced solely to delay and confuse under R.403 is prohibited.

f) Tangential issues are irrelevant factual inconsistent statement of W, while on the stand. It is barred from use under R.403 delay outweighs the probative value to current claim of action. Even if factual the inconsistencies, the attorney is not allowed to bring this information out in trial. III. Consistent statements are used to show your client in consistent in their testimony. IV. Only introduced for impeachment not to prove or disprove the matter of guilt/innocence – Counsel should ask for an opposing council

Look for posting of assignment due – pick two methods to use DUE AT 9AM TUES, MAY 28TH.

Class 4| Tuesday5/28| Chapter 19: Revealing Untruthful Character on Cross236-46Video “The Art of Cross Examination”Chapter 20: Using Criminal Convictions to Impeach247-67Chapter 21: Reputation/Opinion Evidence 268-76Chapter 22: Cross-Examining the Character Witness277-82|

CHAPTER 19 – REVEALING UNTRUTHFUL CHARACTER ON CROSS-EXAMINATION I. R.404. Character Evidence: Crimes or Other Acts a) Character Evidence. 1. Prohibited Uses. Evidence of a person’s character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. * Untruthfulness is a character trait R.404(a)(1) prohibits a party from arguing that, because the witness is a generally untruthful person, the witness probably lied on the stand (i.e., acted in conformity with that trait while testifying in the courtroom)

2. Omitted 3. Exceptions for a Witness. Evidence of a witness’s character may be admitted under Rules 607, 608 and 609. * R. 607 you may attack W’s credibility, even if you called witness. i. Tries to show W is deficient in one of the competence capacities 1. Perception – W doesn’t tell severity or the whole story to make them look bad 2. Memory – they don’t remember what actually happen 3. Narration – not specific fact