Evidence August 18, 2008: RELEVANT EVIDENCE www.gpoaccess.gov 5 PART TEST 1. Relevance 2. Competent Source 3.

. Proper Foundation (someone that can testify as to how the evidence was obtained and what was used. The basis for how something is supoorted) 4. Hearsay Problems 5.Does 403 deny admissibility for lack of jury understanding of evidence (prejudice, confusion, waste of time). FRE 401 : Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. The relevance of evidence is the first aspect to be determined before evidence can be introduced into a trial. FRE 402: Relevant evidence is generally admissible; irrelevant evidence is inadmissible" (www.law.cornell.edu). Rule 402 obviously states that relevant evidence is GENERALLY admissible. Of course, there are several exceptions to that. FRE 403: relevant evidence can be inadmissible if the prejudice outweighs the probative value, the evidence confuses the jury, or if it is a waste of time. Many times irrelevant evidence can turn into relevant evidence. 801 -Hearsay: any out of court statement (he said, she said, I said,), even in a prior court proceeding (not in the current court where case is being tried). Offered to prove the truth of the matter asserting therein (Dan is a Jerk) is it being offered to prove that Dan is a Jerk, if not then its not hersay. Parties own statement(Statements can be offered by either party of each other and is not considered hersay.) (Inadmissible if hearsay is not P or D statements being offered by either party and the person must have personal knowledge of the events (ex: I told you, you told her, she tells the court = hearsay, I tell the court = admissible cuz one of the parties if offering the testimony of a person with personal knowledge of the events. Agents statements Co-conspirators statement made in during the course or in furtherance of the conspiracy. Inconsistent with declarants testimony Consistent with declarants testimony Identification purposes

Testimony must be given by a competent witness (rules of evidence say that all witnesses are competent). Judge determines a witnesss competency. Witness must be able to: Perceive Understand Remember Communicate SCOPE OF EXAMINATION: Direct Examination: recall the story, ask questions that elicit the story. To find out if the witness has personal knowledge of a situation Leading question: suggest the answer to the question Misleading question: tricks witness in conceding what he/she does not mean. Argumentative: trying to make a person remember (refresh/recollect) something that they clearly cant. Narrative: is at discretion of the court, tella short story intead of answering direct questions. Keeps facts from being distorted. Objection of narrative is usually based on lacke of tother party to have an opportunity to prevent irrelevant or incompetent statements. (present hearsay problems.) Non Leading question: do not use Who What When Where Why Describe Cross Examination: What can I ask about: are questions that allow parties to determine character of witness. Never ask open ended questions, only yes or no. NEVER ASK WHY. BCD: Bias: reason to lie, you are being paid, you have a benefit in the case. Credibility: can be deciphered in many ways. Subject matter of the direct: Impeachment: Impeachment of witness can occur if:

1. 2. 3. 4.

there is a prior criminal conviction prior bad act probative of truthfulness General character for truthfulness becomes an issue when a witness takes the stand. Prior inconsistencies to testimony (subject to 403)

If a question can be answered yes or no it may be leading (but not all yes or no is leading some questions can be preliminary). Narrow the question down to the precise incident that is witnessed. Redirect examination: as of right only significant new matter that is raised on crossexamination Cooperation agreements: are they admissible? Loaded by the government, coerce to cooperate. Rules to follow: cant up credit a witnesses testimony until the credibility has been attacked (discredited). Drawing a sting: hit hard first dump in the middle, hit hard with a finish. If there is harmful evidence then on direct ask questions to put info in your own terms. Ex: past record less then 10 years, you know its going to come up. So get it in on your own terms. Motion in Limine: a motion prior to trial on a ruling for evidence to be admitted. Lay Witness can only provide their opinion to the following types of evidence ( 5S): Speed: Do you know how fast they were going Signature: do you know what their handwriting looks like Sobriety: were they drunk or sober Sanity: Is the person sane. Speech: do u know what the persons voice is like Expert testimony requires a combination of BEET: Background Education Experience Training Aid the juries understanding of the evidence. Hearsay Contd admission by silence = Co-conspirators: any out of court statement made in the course of or in furtherance of the conspiracy is admissible. Circumstantial evidence: links of small pieces of information that together provide strong evidence against a defendant. Color photos v. black & white photos: color photos are not more relevant than b&w. color will only prejudice the jury against the defendant when showing gruesome photos to sway the emotions of jury. Stipulation Conceding

Corpus delecti Objections during trial preserve them for appeal. Evidence not properly received by the court and admitted cannot be displayed. Jurors cannot go out and review extrinsic evidence Characteristics/demeanor of defendants cannot be altered without their consent. September 8, 2008 Anderson v. berg Can a judge re-open a case, yes with the proper foundation. Judge has wide discretion as to how trial is conducted (not necessarily fair). Evidence that is presented to test fair comparison must be a substantially similar recreation. Video when adding voice causes parties to do a hearsay analysis. A day in the life films of cases: misuse of the evidence can be prejudical if the film depics overly sympathetic, exaggerated. Evidence of voice analysis: must be supported by someone who actually knows the person voice. Must lay the foundation. Authenticating evidence of a writing: you must show that something is what it purports to be. Some items become self authenticating because they bare the trademark of the company. Self authenticating information focuses on trademarks and finding something to establish proof evidence belongs to defendant. Foundation for tape recording: p.188 Foundation of record admission: (paper or computer): must show entry was made at or near the time of the event. By a person with knowledge of the event Made and maintained in the regular course of business Routine practice to keep and maintain these records Diaries and journal entries can become part of a business record. Are these kinds of records selfauthenticating excluding the foundation factor. Foundation must be trustworthy, authentic, genuine. September 15, 2008

Best Evidence Rule: Must be able to provide the original of writing, recording, or other document to prove its contents or must have a justifiable reason why document cant be provided (good faith v. bad faith efford) (Best way to prove evidence being presented in a document, offering contents in document into evidence) Ex: had a letter and lost it, trying to prove best evidence rule. (rule 1004: admissibility of other evidence) Mass Rule: must provide original document, unless can explain why orig. not avail. Self authenticating documents raise hearsay problems (rule 902) Expert to confirm signature Get acknowledged originals and compare to item in evidence. Opinion of expers is with degree of certainty. Expert testimony is bias: ie paid working for plaintiff, does work only for specific attorneys. During discovery signatures are obtained to make comparison Hypnosis as testimony: inadmissible, unreliable, bias to cross and eliminates meaningfulness of cross. Duplicate Originals: BER applies Voice Recordings: BER applies Dead Man Statute: doesnt apply in federal cases. Lips of living sealed if its that of the dead. Mass statute encourages dead to speak from the grave. Statement made in good faith with knowledge of decedent. Must look at the state in which case is being tried to determine if dead man statute will hinder or help the case. Truthfulness: Must affirm an obligation to tell the truth. September 22, 2008 (see handout for information on character evidence, habit and impeachment.) How far can an attorney go to stretch the truth? Can he. If you do take head cuz when things go wrong u r the first person to get thrown under the bus! REFRESHING RECOLLECTION: What can be used to refresh recollection? ANYTHING a sent a song a picture. It doesnt matter what triggered the recollection, it matters that you remember. The opponent has a right to examine what was used to refresh when the witness is on the stand. Prior to being on the witness stand what was used is subject to courts discretion. Hearsay exception: read or play into evidence a writing or recording of past recollection.

Past recollection recorded (REQUIRES DECLARANT BE AVAILABLE. The thing is important evidence (writing or recording): Had recollection, reduced to writing or recording, it was truthful at the time, looking at it now does not help to refresh recollection, here it is. The witness must read it into evidence. Because the witness does not remember all he can do is read the document or play the recording as his testimony. The party opposing the proof must offer the physical document or recording into evidence. HEARSAY EXCEPTIONS 803: Availability of Declarant is immaterial (spontaneous exceptions) Present sense impression: A statement made after any event or condition immediately of what was perceived immediately after. Excited Utterance: startling event made under stress or excitement caused by event or condition Statements for the purpose of diagnosis or treatment: If the statement is made in order to get medical treatment then it is admissible: I was hit with a bat by my husband and I think he broke my arm and leg. Present Mental State: Hillmon doctrine: statements to show intent of the partys action in the future are admissible. Pheaster Case: Statements that presume the action intended by the the 3rd party. 804 Declarant Unavailable (unavailability exceptions require DEBI) Statement Against then existing Penal/Pecuniary Interest; must be against interest at the time statement was made, not at the time it was offered. In Cole, the husband was dead, made a statement against his pecuniary interest. The wife wanted to offer the testimony, she won the case. There should be some corroboration to the statements that exculpates one party and inculpates the speaker in order to make it against pecuniary interest. Dying Declaration: must show that the person has belief of imminent death. oh my god im dying and so and so did this to me. Former testimony: subject to cross-examination at the time the statement was given. By you or someone with same interest in the statement. Opportunity for cross, not actual cross.

803 8: Official records and reports Business Records: It has to be about the business of the business. made in the regular course of business, before the action began, usual course of business to make entries at or near the event, entries made in good faith trustworthyPractice of business to rely on records. 233 section 78 business records statute in mass. 233 section 79 medical statute in mass Police records: are problematic in criminal cases due to 6th amendment right to confront. If admissible, the hearsay in the report would have to be excluded (hearsay upon hearsay: totem pole exception.). 1st can the report be admissible as business record or report? 2nd are the statements within the report admissible or inadmissible? excludes police matters observed by police officers or other law enforcement in criminal matters due to bias or adversarial character. Exception to business record or report: factual findings (opinions and conclusions) as to what happened: Trustworthiness of person making report requires knowing some background information of the individual creating the report. Does this person have expertise in the area reporting? Hospital records: show length of stay and why admitted. What about non controversial diagnosis: A diagnosis is opinion. What about a routine diagnosis, ex: admitted for two days to reset an open fracture. Can be observed by another person. Emergency room records: lay foundation to say why it is medically relevant, if no administration of treatment is had. Beyond the Subpoena power: You must make an attempt to find the witness. The court will ask if you have made an attempt to contact those within the jurisdiction and those outside you better send a letter, make a phone call, keep records of attempts to contact, etc. Make an effort to procure the witness. Confrontation clause: Crawford & 6th amend: make accusatory out of court statements are inadmissible if the accuser is unavailable because of right to confront your accuser. (criminal cases). Only if cross can be had will the statement be admissible. After Crawford: if criminal and admissible under exception, if witness is unavailable then may be a violation of 6th amendment confrontation clause. Co-defendants cause 6th amendment right to confrontation problems when they implicate the other defendant.