EVIDENCE OUTLINE FRIEDLAND I. RELEVANCY (400s) a. 401 Relevant Evidence (definition) i. Probative 1.

1. Makes something more or less likely ii. A fact of consequence 1. Related to the case, i.e. element or cause of action a. More likely that. b. 402 Relevant Evidence generally admissible; Irrelevant evidence Inadmissible (Exclusion) i. Must be relevant, if not, it gets kicked out. c. 403 Exclusion of Relevant Evidence (weigh evidence) i. May be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading to the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence 1. Seesaw little man v. heavy man ii. Evidence that is particularly susceptible to exclusion 1. Probability evidence (likelihood of another person with the same characteristics committing the crime charged) a. Variety of defects 2. Lose your lunch (extremely violent crimes) a. Improper to offer evidence that so blinds the jury to the facts of the case that the jury makes an emotional determination. 3. Novel scientific evidence a. Will be excluded if it is not substantially similar to what it intends to recreate. 4. Similar events, happenings or occurrences a. Prior events, happenings and occurrence often occur under widely disparate circumstances i. Exceptions 1. Prior dealing, industry customs, causation, value of land, rebut claims of impossibility d. 404 & 405 Character evidence (Trait or disposition) i. Propensity evidence 1. Offered to show that a person with a particular trait or disposition is more likely to have acted in conformity with that character trait on a particular occasion. (Once a thief, always a thief) ii. Door #1 (Propensity) (Indirect) (404a & 405a)

1. CRIM a. Must be a criminal case 2. DEF a. Defense must go first 3. PRO a. Must be pertinent to the case b. Only about reputation and opinion 4. SAC a. Specific acts on cross 5. NEWRO a. Rebuttal Witness i. Reputation and Opinion iii. Door #2 (Direct) (In Issue) (405b) 1. SEND a. Seduction, Entrapment, Negligent Hiring, Defamation 2. ROSA a. Reputation, Opinion, and Specific Acts iv. Door #3 (Other Acts) (Indirect) (404b) 1. MIMIC GC a. Motive, Intent, Mistake, Identity (signature quality), Common scheme or plan, Guilty Conscience e. 406 Habit Evidence (Inclusion) i. Regular response to a repeated, specific stimulus. ii. Habit denotes a special kind of semi-reflexive or automatic behavior that occurs only in response to a specific stimulus iii. Predictable causes and effects 1. Look for the words always, reflexively, automatically, and invariably f. 407 SRM (Exclusion) (Fix it rule) i. Evidence of subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product ii. Exception 1. Does not require exclusion when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. g. 408 Compromise (Settle it rule) i. Elements 1. Must have a dispute 2. Negotiation if a. Ill do X if 3. Excludes negotiations a. All discussions and admissions ii. Exceptions

h.

i.

j.

k. l. m. n.

1. Exclusion does not apply to otherwise discoverable documents produced during the negotiations. Furthermore, the exclusion of compromises and offers to compromises takes only when a disputed claim exists. 409 Medical Expenses (Big Heart rule) i. Elements 1. Evidence that someone has furnished or offered to pay medical expenses is excluded, 2. But not any factual statements that may have been made in conjunction with such offer or payment 410 Pleas i. Elements 1. Must have a criminal case 2. Applies to statements made by prosecutors as well as defendants 3. Offers to plead guilty are excluded only if later withdrawn. If the offers to plead guilty are not later withdrawn, they may serve as an admission of culpability or guilt in a later case. However, if a defendant pleas nolo contendere in a criminal case, the plea is not considered to be an admission of guilt and cannot be used as such in later cases. 411 Liability i. Exclude any mention of the existence of liability insurance, or the lack thereof, to show culpability or wrongful behavior. However, the existence of liability insurance may be offered for other purposes such as showing bias or prejudice of a witness, proof of agency, ownership or control. 412 Rape/Sexual Assault i. GET NOTES ON THIS 413 Evidence of similar crimes in Sex Assault cases 414 Evidence of similar crimes in Child molestation cases 415 Evidence of similar act in civil cases concerning sex assault or child molestation

II.

WITNESSES (600S) Relevant to what

Impeaching a Witness

Proving Issues in the case

a. Proving issues in the case i. Relevancy ii. Character iii. Hearsay iv. Writing v. Privileges b. Impeaching a witness i. To impeach someone, that someone has to testify, therefore to impeach the defendant, the defendant must testify No preemptive strikes 1. Must look to see if person has testified or is currently doing so 2. After a witness is directly attacked you can rehab the witness a. If witness questioned on a prior statement, you will be able to rehab to make the answer sound more complete and accurate. ii. Stop # 1 1. Questions the witness a. Intrinsic b. CBC BATS Some related to rules others are just case law made i. Contradictions 1. Usually against prior testimony a. Didnt you leave your office at 7 instead of 5 like you just testified? ii. Bias 1. Arent you dating the defendant? iii. Convictions (609) 1. Felonies or Fraud iv. Bad Untruthful Acts (608b) 1. Must just be acts of fraud No conviction needed 4

a. Did you forged three checks last year? v. Testimony ability 1. Perception, Memory, Narration, Sincerity a. Isnt it true that you need glasses to drive? vi. Statements; Prior Inconsistent (613a) 1. Self-contradiction. 2. Need a prior statement made to another person. a. Didnt you tell Bill right after the accident that you didnt see the whole thing? iii. Stop # 2 If witness says no to any CBC BATS, may use this if not collateral (meaning must be important to case) i. Ex. Testifying that Defendant was wearing blue sneakers instead of white sneakers 2. New Evidence a. Extrinsic b. BAT CRO i. Bias ii. At issue impeachment coincided with the issue (prior inconsistent statements) (noncollateral matters) blue sweater instead of red sweater iii. Testimony deficiencies iv. Convictions, v. New Reputation or Opinion witness (608a) c. 607 Impeachment i. The credibility of a witness may be attacked by any party, including the party calling the witness 1. Could lessen the sting d. 608b Specific instance of conduct i. Must be your act 1. Cannot say werent you arrest, charged, fired, fined, etc. for so and so. 2. Can say Isnt it true you stole a million dollars from your corporation. e. 609 Convictions i. Felonies 1. Must be punishable by more then 1 year, irrelevant whether the person actually served that year. 2. 10 year limit 3. Balance Tests

a. 403 applies to all witness except for the criminal defendant who takes the stand i. Probative value is substantially outweighed by the danger of unfair prejudice b. Straight Balance Test for Criminal defendant i. Probative value of admitting this evidence outweighs its prejudicial effect of the accused ii. Fraud 1. Evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment 610 Religious Beliefs i. Cannot use this to attack a witnesses credibility 612 Writing used to refresh memory i. Can use anything to refresh memory and jury cannot hear the witness read it ii. Items used to refresh do not have to be admitted into evidence 613 Prior statements of witness i. Want to lock witness into statement they just made and then bring up prior statement. 614 Calling and interrogation of witnesses by the court i. Can object if it can be made at that time or at the next available opportunity when the jury is not present. 615 Exclusion of Witness (Invoking the rule) i. Exclude witnesses from the courtroom

f. g.

h. i. j. III.

COMPETENCY (601 606) a. 601 General Rule of Competency i. Witness must have relevant information and must be able to tell the truth b. 602 Personal Knowledge i. Witness must have personal knowledge c. 603 Oath or Affirmation i. Swear or Affirm to tell the truth d. 604 Interpreters i. Can have an interpreter but interpreter must be considered an expert e. 605 Competency of Judge as witness i. Presiding judge may not testify in that trial as a witness. No objection needed. f. 606 Competency of Juror as witness i. No juror can testify as a witness in the trial for which the juror is testifying Must object g. Dead man statutes

IV.

V.

VI.

i. No Fed Evd Rule because of Erie, state law applies (Florida has one) 1. When oral communications with a dead person offered against that dead person or an incompetent person prohibited but can be rebutted DIRECT EXAMINATION a. No leading questions i. Except for preliminary matter, hostile witness, issue not in dispute, child or older person, lack of memory b. Ask questions like i. Who, what, where, when, how, why Questions that describe CROSS EXAMINATION a. Can ask leading questions i. Short questions ii. Be brief 3 pts point iii. Do not Argue iv. Yes Questions v. Pace and control vi. Know answer to the questions you ask. OPINIONS AND EXPERT TESTIMONY (700S) a. 701 Lay Witness i. Rationally based (I saw Neptune- no) on perception of the witness and helpful to clear understanding of the witnesss testimony ii. Cannot speculate iii. Must be in the realm of common experience iv. No experts b. 702 Experts i. Can testify to hypotheticals ii. Based on sufficient facts and data iii. Reliable principles and methods iv. Need reliable science (judge determines reliability c. 4 Requirements to allow experts to testify Each have separate test i. Reliable scientific theory or technical ii. Reliable application must be proper testing iii. Assist the Jury iv. Qualification d. Why call experts i. Complex issues, assist judge or jury, validity or legitimatecy, powerful, and experience substitutes e. Expert and testifying i. Must qualify them, (i.e. lay a foundation) 1. Experience (length and quality) 2. Education (degrees) 3. Training (courses) 4. Peer review, active member in associations, awards, media interviews, testified prior, published

VII.

5. Voir Dire 6. Then offer them as a an expert in 7. Basis of testimony must be reliable 8. Direct 9. Cross f. Scientific Evidence i. Gained general acceptance in the particular field in which it belongs ii. Daubert Factor Test 1. Tested 2. Peer review/Published 3. Potential rate of error 4. Maintenance of standards and control 5. Generally accepted in the scientific community 6. Testifying about matters growing naturally and directly independent of litigation or whether they have developed their opinions expressly for testifying 7. Accounted for obvious alternative explanations 8. Whether expert is being as careful as he would be in his regular professional work outside of his paid litigation consulting 9. Whether the field of expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give g. 704 Opinions on Ultimate issue i. A Assist Juror 1. Shrink cannot testify as to mental state because it confuses the jury ii. B Hinckley 1. Can talk about diagnosis at time and no opinions h. 703 Bases of Opinion testimony by experts i. Testify to hearsay as well ii. Medical chart if they reasonably relied on iii. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect. i. 705 Disclosure of facts or data underlying expert opinion i. No need to testify to underlining facts - 2 a reasonable medical certainty ii. Disclosure basis of opinion depends must disclose if ordered by court or on X HEARSAY (800S) a. Generally unreliable and generally excluded because i. Not under Oath

ii. No demeanor iii. No Cross examination b. Overview i. Door #1 1. The four elements ii. Door #2 1. Four elements are met but Free Pass iii. Door #3 1. Hearsay but reliable iv. Door #4 1. Hearsay and unreliable Flush it c. Elements of Hearsay Door # 1 i. Out of Court 1. Not on the stand and not testifying ii. Declarant 1. Source of statement, can even be the witness testifying iii. Statement 1. Generally an assertion about a fact 2. 3 Forms of Assertion a. Nonverbal conduct i. Usually not a statement Unless Intended to communicate depends on the conduct b. Oral or Written iv. Offered TOMA 1. Content of the statement is helpful to proving the case 2. Must connect and must relate v. Not offered for TOMA 1. Notice/warning 2. Operative Facts a. Facts that has independent legal significance i. Conspiracy, defamation, deed, wills, trust. Contract 3. Prior Inconsistent Statements a. Impeach or TOMA depends on elements of the statement 4. Res gestae a. Background to complete the story even if they are statements 5. Insanity a. State of mind of the declarant 6. Verbal Act a. Explains and must be contemporaneous statements d. Free Pass Door #2 i. Prior Statements by witness not hearsay 1. Prior Inconsistent statements

a. Under Oath b. Other proceeding 2. Prior Consistent Statements a. To rebut a charge of recent fabrication (Fish story) 3. Prior I.D. by a witness ii. Admissions by Party-Opponent 1. Admission is a. Statement by a P.O. b. Offered against that party (must be across the V) 2. Doesnt relate to opinion or first hand knowledge 3. Because adversary system allows you to explain it 4. If a party makes any statement it is usually considered an admission 5. Special admission Binding judicial admission admitted in the pleadings (if admitted it binds that party iii. Five types of Admissions 1. Parties own Statement 2. Adopted admission a. Silence or Yeah, thats right 3. Authorized spokesperson 4. Agency admission a. Watch for outside scope of employment b. Must be made during the existence of the relationship c. Must also show there is an agency relationship and prove they are an agent 5. Co-conspirators admission a. 2 requirements i. Statement made during and in furtherance of conspiracy ii. The content of the statement shall be considered but are not alone sufficient to establish the declarants authority (need more facts) e. Rule 803 Door 3 Is hearsay but fits in under an exception i. PSI 1. Describes 2. During or Right After 3. Should have an identified person not an unknown bystander ii. EU 1. Relates to a. Use that as the initial point 2. While excited 3. Look at content 4. Answering a ? is less spontaneous 5. Watch for time frame

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iii.

iv.

v.

vi.

vii.

6. Should have an identified person and not an unknown bystander SOM 1. Describes within a. My. b. Im feeling c. I intend to 2. Must be a present statement NOW 3. Hillman Rule a. Present and inward looking i. Does not come in for a second person just person who said it MDT 1. Cant talk about fault 2. Can be for pain 3. Can talk about cause of 4. Can go to doctor after filing suit 5. Psychiatry less credible PRR 1. First try Rule 612 (refresh memory) 2. Elements a. Recorded i. Made or adopted b. Forgot c. Cant remember, if remember then rule 612 d. Fresh e. Accurate 3. Failure of memory is a prerequisite 4. Contents of statement can be read into evidence if elements are met. Only the other party can offer the writing into evidence Business Records records of regularly conducted activity 1. PARRT a. P must have Personal Knowledge i. Can be part of a business chain b. A At or near time Fresh c. R Regularly conduct business activity i. Must be part of the business, i.e. relate to the business d. R Regularly conducted i. Record is made often e. T Trustworthy i. Judge decides 2. Cannot be made solely for purpose of litigation Absence of entry in records kept in accordance with Business records

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viii. Government Records public records and reports 1. Activities of the office or agency 2. Matter observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding criminal cases or in civil actions against the Gov in criminal case 3. Factors to consider a. Timeliness of investigation b. Skill of officials c. Motivation or problems ix. Record of vital statistics x. Absence of public record or entry xi. Record of religious organizations xii. Marriage, baptismal and similarly certificates xiii. Family records xiv. Records affecting an interest in property xv. Statements in documents affecting an interest in property xvi. Statement in ancient documents xvii. Market reports and commercial publications xviii. Learned treaties xix. Reputation concerning personal or family history xx. Reputation concerning boundaries or general history xxi. Reputation as to character xxii. Judgment of previous conditions xxiii. Judgments as to personal, family or general history or boundaries f. 804 Door 3 Declarant unavailable i. Unavailable is defined as 1. Privilege, persists in refusing to testify despite a court order, lack of memory of statement (good faith), death or physical or mental illness, absent and proponent of statement has been unable to procure attendance ii. Former Testimony 1. 5 Elements a. Need 2 hearings (former and present one) b. Opportunity to cross (in the former hearing) c. Similar Motive in the first and second hearing d. Unavailable iii. Dying Declaration 1. 4 Elements a. Believe death is imminent (but dont have to die) b. About cause or circumstance of impending death c. Homicide or Civil Case i. Look for what defendant is charged with d. Unavailable iv. Statement against Interest 1. 5 Elements

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VIII. IX.

X.

a. Statement was against declarants money or property interest or tended to subject him to civil or criminal liability or render invalid his claim against another b. A reasonable person in declarants position would not have made the statement unless he believed it to be true c. Knew the statement was against his interest when made d. If statement exposes Declarant to criminal liability but is offered to exculpate an accused, there was corroborating circumstances indicting trustworthiness. e. Unavailable v. Statement of personal or family history 1. Elements a. Statement concerns declarants own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, etc of personal or family history regardless of personal knowledge OR b. Statement as to someone other then Declarant is made by a member of the family or someone intimately associated with it. c. Unavailable. Confrontation Clause Authentication a. Real tangible Items involved in the case played an actual or direct role in the incident i. - DoWaH 1. Do you recognize it? 2. What is it? 3. How do you recognize it? 4. Substantially the same condition as you saw it b. Representative evidence which is intended to demonstrate or represent a fact or condition i. DoWaH ii. FAR 1. Far and accurate representation (exact time and location c. Demonstrative d. 902 Self Authentication i. Not usually subject to forgery 1. Newspaper, Pepsi label Best Evidence Rule (1001) a. About writing to be proven at trial i. Important to the case or legally operative documents (deeds/contracts)

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XI.

XII.

1. Witness sole knowledge is a writing should read the report b. Does the rule apply? c. Do you have original or substitute i. Lost, opposing party, duplicates (must not be doctored and must be trustworthy) Privileges a. Marriage i. Adverse spousal testimony privilege special immunity) 1. Testifying witness hold the Immunity 2. Married at the time of the trial 3. Must be a criminal case ii. Confidential communication 1. Either the D or testifying witness can asset privilege 2. Any type of case 3. Married at the time of information iii. P extends even after spouse dies iv. Exceptions 1. state can force you if a. crime against spouse or child or waiver b. Atty/Client i. Consultation ii. Must have basis for believing someone is a atty (reasonable believe) iii. Only for legal advice iv. Atty cannot hold onto evidence v. Can be required to give name of D and name of an atty Proof Problems a. Too Much J. Notice (201) proof beyond dispute i. Type of facts not disputed sun comes up in the east ii. Mostly in civil cases but in criminal case, judge can say might find b. Too Little Presumption i. Inference you may find ii. Rebuttal presumption 1. if one party lays foundation the other party may rebut if not issue stays in the case if you find letter mailed, you find mail received iii. Irrebuttable presumption 1. Rule of law

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