I. Initial Analysis

I.  Initial Analysis

1. Questions to Ask:

a.  Case = Civil or Criminal

b.  Issue = What are actual charges?

c. Legal Elements = What are included? i.e. Honesty of ∆

d.  Defense Elements = What are necessary? i.e. Aspects of Self-Defense

e.  Parties = Who are they?

f.  Witnesses = Who are they & what connection?

g.  Which party raises Claim?

h.  HOW WILL EVIDENCE BE USED IN CLOSING?

2. Types of Evidence:

a.  Direct – 1st Hand experiences

b.  Circumstantial

c. Indirect – 3rd person thoughts

1.  Expert Opinions

2.  HEARSAY

3. Motion In Limine

a.  Get things in/out BEFORE trial

4. “Harmless error” – whether or not, i.e. viol. of hearsay rule ‘matters’

II.  Methods of Proof

1. Judicial Notice à Rule 201

a.  Facts “not” subject to a reasonable dispute:

1.  Generally known w/in jurisdiction as true, OR

2.  Capable of ready/accurate determination by sources that can’t be reasonably questioned

2. Stipulations à No Rule...Common Practice

a.  Two Types:

1.  Facts

i)  “Agree” that presented facts are accepted to be TRUE

2.  Testimony

i)  Counsel ‘agrees’ to accept what a witness would say

A)  Does NOT mean agreed as TRUE

B)  Perhaps stipulate to avoid “full power” of testimony

i)  Sometimes, being “read” dulls to jury

ii)  State v. Colwell – Offer to stipulate to expert is only an offer and may be rejected as strategy

3.  Requests for Admission (CIVIL ONLY)

i)  During Pre-Trial, party offers and opp. may accept/admit

A)  Fact is read to jury

III.  Chapter 100 Rules

1. Rule 103 -> Objections, Timeliness, Specificity (Motion in Limine)

2. Rule 104 -> Prelim Q’s: Court decides if Q’s exist for certain evidence

3. Rule 105 -> Limited Admissibility

a.  Evidence admitted only for CERTAIN purposes

b.  JURY INSTRUCTIONS for limits of evidence

4. Rule 106 -> Partial writing/recording offered

a.  Opposing party may admit whole text to show the full context of chosen statement

IV.  RELEVANCE – Chapter 400

1. ANY TENDENCY to assist fact-finder (Rule 401)

a.  402 – What is/isn’t relevant

b.  Types of Evidence: Ultimate, Intermediate, Evidentiary

1.  State v. Poe: Graphic slides used...held that graphic nature had no probative value and used only to outrage, not educate

c. Statistical Relevance: Generally ‘context-sensitive’

2. UNFAIR PREJUDICE – RULE 403

a.  Probative value is FAR OUTWEIGHED by prejudicial impact

b.  PERMISSIVE RULE – Item may be excluded (judge decision)

1.  see Old Chief: Gov’t may put on case they desire...can’t be forced to accept ∆’s stipulation so ∆ avoids harmful evidence

c. IF a lesser prejudicial piece of evidence exists with a comparable probative value...it MUST be used instead

3. Habit/Routine Practice – Rule 406

a.  “Adequacy of Sampling” & “Uniformity of Response”

b.  “habit” may be used to show what someone likely did based on what they usually do

c. Must be shown to be a particular, specific response

4. Subsequent Remedial Measures – Rule 407

a.  POST-injury, ∆ acts that, if done PRIOR to injury, extremely less likely that injury would occur

b.  NOT ADMISSIBLE as proof that ∆ was at fault

c. But COULD be admissible to show:

1.  Ownership (I fixed gate...therefore I own the gate)

2.  Control

3.  Feasibility of safety measures

4.  Impeachment

i)  See Wal-Mart: lied about moving soap after π hurt...therefore okay to introduce to show the lie

d.  DESIGN DEFECTS – policy favors the rule, otherwise no one would upgrade any products

1.  Products are analyzed at MOMENT product was in hands (Duchess & “interlock”)

e.  Repairs by 3rd Party

1.  Okay -> can’t be ∆ admitting guilt if someone else took steps

5. Offer to Compromise – Rule 408

a.  NO GOOD when used to prove liability, or the amount of a claim that was in dispute, or to impeach prior inconsistent statement

b.  Permitted: IF, not covered by above...i.e. witness bias/prejudice, negating ‘delay’ arg.

6. Medical Expenses – Rule 409

a.  Offering to pay NOT ADMISSIBLE for liability

b.  EXCEPTION: Funeral Expenses

7. Liability Insurance – Rule 411

a.  Whether ∆ = insured is NOT RELEVANT/ADMISSIBLE

1.  Unless offered for: agency, control, bias, etc.

8. Sex Offenses & Rape Shield – Rules 412-415

a.  412 – Past behavior = no good

b.  413-414 – Criminal & Similar Crimes (Assault/Molestation)

c. 415 – Civil & Similar Crimes

V.  CHARACTER (Generally)

1. 404(a) General Rule:

a.  CIVIL: NOT ADMISSIBLE

b.  CRIM: ONLY if ∆ introduces first (State may cross-ex)

1.  404(a)(1)

2.  ∆ may attack victim for self defense purposes too

i)  404(a)(2)

2. OTHER ACTS – 404(b)

a.  “Other Acts” NO GOOD for character evidence, but may be for:

1.  Motive, Opportunity, Intent, Prep, Plan, ID, Knowledge, etc.

2.  See Zackowitz -> Owning guns as proof of dangerous character...NOT ADMISSIBLE

3. 405 – PROVING CHARACTER

a.  Reputation & Opinion

1.  On cross...may ask about specific moments

2.  “You say they’re a good person...did you know about the time they did THIS?”

b.  HOWEVER...if specific character trait is ESSENTIAL to crime....

1.  Specific Acts may be referenced

VI.  WITNESS TYPES

1. Lay Witnesses

a.  Opinions & Inferences = Acceptable (Rule 701)

1.  Appearance of something (He was dirty in jeans)

2.  ID (It was the ∆)

3.  Conduct (He was acting all shady)

4.  Competency (The guy was an idiot)

5.  “Degree” of something (Bright as the sun outside!)

b.  Opinions must be:

1.  Rationally based on perception

2.  Helpful to clear understanding of testimony

3.  PERSONAL KNOWLEDGE (Rule 602)

c. May use terms for “clear understanding”

1.  i.e. he was walking “like he was drunk”

2. Expert Witnesses

a.  Specialized knowledge to assist trier of fact

1.  ONLY if necessary to help clear up confusion

2.  Must be QUALIFIED:

i)  Sufficient facts/data

ii)  Result of reliable principles & methods

iii)  EXPERT RELIABLY applied methods to facts

b.  The Daubert Requirement (Add to 702)

1.  Info must assist triers of fact

2.  Is opinion based on reliable methodology?

3.  Extra Daubert Factors (i.e. acceptance, rate of error, hypo...)

c. Expert’s Basis for Opinion (Rule 703)

1.  May gather facts BEFORE or AT trial

2.  Don’t have to discuss “reasonable” facts

i)  i.e. Dr. doesn’t have to discuss prior patients/experience

d.  Certifying an Expert:

1.  Use a voir dire for opposing party to accept “expert”

3. The ULTIMATE ISSUE (Rule 704)

a.  Lay/Expert may give opinion on total issue (∆ did it)

b.  704(b) – NO EXPERT can discuss mental state for crime

4. Disclosing Facts for Expert Research (Rule 705)

a.  Don’t have to discuss facts...but may have to disclose on cross

5. “LEARNED TREATISES” – Rule 803

a.  Can READ parts of a document, if:

1.  Opp. uses it against expert’s statements

2.  Expert uses doc for the opinion

b.  However...doc isn’t accepted into evidence (under this exception)

VII.  PRIVILEGES – Chapter 500

1. Spouses – Protect info between spouses

a.  WORDS during marriage = PROTECTED

1.  May NEVER testify (Even after DEATH)

b.  Private Words before = OPTION to disclose by spouse on stand

c. Deeds before = OPTION

d.  Non-private Words before = OPTION

e.  Deeds during = OPTION

1.  Divorce = N/A -> MUST testify to deeds during

f.  Non-Private during = OPTION

g.  AFTER DIVORCE: N/A

1.  However, words before divorce = STILL protected

2. Other Occupations generally protected

a.  Doctors, lawyers, religious figures, therapists, etc.

3. 5th Amendment

a.  Any info that could serve as link in chain for criminal prosecution

VIII.  HEARSAY – CHAPTER 800

1. Out-of-court declaration offered for the truth of matter asserted

a.  i.e. “He told me that he saw Jane shoot Billy.”

b.  Offered as proof that Jane shot Billy

2. Non vs. Not

a.  Non-Hearsay: NOT OFFERED for TOMA

b.  Not Hearsay: Offered for TOMA, but under an EXCEPTION

3. Statements NOT HEARSAY -> Rule 801

4. Prior Statements by Witness – 801(d)(1)

a.  Prior inconsistent statement (under oath)

b.  Prior consistent against idea that claim was recently made-up

c. Prior statement of ID

5. Party Opponent – 801(d)(2)

a.  Words of ∆ are generally admitted here

1.  Any statements from ANY time

b.  Offered AGAINST a party, and:

c. Actual statement, or adoption, or authorized/agency statement

d.  Co-conspirator statement 801(d)(2)(e)

1.  BEFORE arrest: used against BOTH ∆’s

2.  AFTER arrest: conspiracy = SEVERED

i)  Statements may be used ONLY against the one who made the statement

3.  Made within FURTHERANCE of conspiracy

4.  Basically...Agency theory at work

IX.  HEARSAY – IMMATERIAL (803)

1. SPOKEN Hearsay

a.  Present sense impression

1.  “while” things are happening

2.  i.e. I’m walking into the office

b.  Excited Utterance

1.  Made while “UNDER STRESS” of the startling event

c. Then existing mental/emotional/physical condition

1.  i.e. “I’m going to see X”

2.  Plans are included here (“I plan to....”)

2. WRITTEN Hearsay

a.  Recorded Recollection

1.  Prior statement by witness (adopted by witness)

2.  May be read...but not admitted into evidence

i)  Except by opposing party

b.  Refresh Recollection – Rule 612

1.  Witness may review past statement

3. BUSINESS RECORDS

a.  “Regularly Conducted Activity” – 803(6)

1.  By custodian...or OTHER qualified witness

2.  Must be regular for THAT COMPANY (not profession)

3.  911 Call NOT ADMISSIBLE (see Padilla)

i)  Records were created by “outside” actor (civilian) as told to the staff...therefore not an “internal record”

b.  “Absence” of Entry – 803(7)

1.  If regularly kept...absence may come in

2.  Must be regular for THAT COMPANY (not profession)

c. PUBLIC Records – 803(8)

1.  Generally admissible unless can be SHOWN to be untrustworthy

X.  WITNESS RULES/EXCEPTIONS

1. BIAS

a.  No Rule governing Bias

b.  Witness may be ‘impeached’ regarding possible bias

2. Prior Convictions (609)

a.  MAY BE INTRODUCED in Criminal Case

1.  If “severe” enough

2.  And OTHER than ∆

b.  May be introduced in ANY case against ANY WITNESS

1.  If element of crime is DISHONESTY

3. Character for the “Truth”

4. Inconsistent Statements

5. Lack of Knowledge / Improper Foundation

XI.  AUTHENTICATION – Chapter 900

1. How to authenticate?

a.  Evidence sufficient to support a finding that the “item” IS what the proponent claims it to be

2. Judge says yes/no ; JURY decides weight

3. Methods

a.  Readily Identifiable

b.  Chain of Command (Trace through all facets)

4. ILLUSTRATIONS OF IDENTIFICATION

a.  Testimony of Witness with Knowledge

1.  It’s a car

b.  Nonexpert handwriting opinion

1.  I’m the father, I know my son’s handwriting

c. Distinctive Characteristics

1.  Appearance, contents, etc. taken with circumstances

5. Authentication & Photographs

a.  If digitally ENHANCED – Proof that enhancing is reliable/accurate

b.  If digitally CONVERTED – How photo was converted & why reliable

6. Phone Conversations

a.  “I called #, he answered and said “It’s me.” = AUTHENTIC

b.  “I got a call and he said “It’s me.” = NOT Authentic

XII.  “BEST EVIDENCE” RULE – Chapter 1000

1. Only for writings...not for ‘testimony’

2. i.e. if a LEASE is the issue for a trial....

a.  the ACTUAL lease should be available/introduced

b.  Not just ‘discussed’

XIII.  CONFRONTATION CLAUSE – 6th AMEND.

1. Right to be confronted by the witnesses

2. Crawford v. WA

a.  TESTIMONIAL HEARSAY that is acquired when NO OPPORTUNITY is available for cross-ex = NOT ACCEPTABLE

3. What is Testimonial?

a.  Statement given that a witness could reasonably believe that statement would be used at an upcoming/future legal/criminal action

1.  i.e. statement given to police after the emergency ended

2.  HOWEVER, “during” emergency, statement is needed to assist police respond and therefore may not be testimonial

ANALYTICAL OUTLINE

I.  Cause of Action

1. Know what they are for individual action

2. i.e. intent? Honesty? Etc.

II.  Relevance

1. Personal knowledge of witness (602)

a.  If no...might not be relevant

2. Opinion Admissible? (701)

a.  If no...maybe not relevant.

3. Is statement hearsay?

a.  If yes...maybe not admissible

4. Is evidence a “different act” from action at trial?

a.  If so...check admissibility (403-404)

b.  Maybe a different purpose? (404(b))

III.  Lay Opinion – 701

1. Based on Personal Knowledge?

2. Necessary for a “clear understanding” of witness testimony?

IV. Expert Testimony – 702

1. Is methodology reliable? (Daubert)

V.  Said/Written out of court à Hearsay implicated – 800 Rules

1. Hearsay

a.  Was statement a “declaration”?

b.  Is it offered for TOMA?

1.  If both = hearsay...otherwise, not relevant

2.  Or limited admissibility applies and/or overly prejudicial

VI. If “III” satisfied...

1. Is statement BY A PARTY (or agent)?

a.  If yes = Admissible against party as PARTY ADMISSION

2. Is it under oath and inconsistent with other in-court testimony?

a.  If yes = ADMISSIBLE for impeachment & for truth

VII.  If “III” not satisfied...

1. Is declarant immaterial? à Rule 803 Exceptions

2. Is declarant unavailable (and proven) à Rule 804 Exceptions

VIII.  Witness Special Rules

1. Impeachment by Prior Convictions – Rule 609

2. Impeached by Bias (if relevant)

3. Impeached by character for “untruthfulness” – Rule 608

4. Impeached by prior inconsistent statement

a.  But info is admitted only to show that witness lied

5. Impeached by lack of personal knowledge (602)

IX. If an exhibit...must be AUTHENTICATED (Chapter 900)

1. Doc must be proven that it really is what it’s supposed to be

2. Personal knowledge and/or recognition = acceptable

3. SOME documents are SELF-AUTHENTICATING

X.  If evidence = writing, and CONTENTS are AT-ISSUE (Chapter 1000)

1. Original Evidence / Best Evidence rule applies

XI. Judge vs. Jury

1. Judge = decisions of whether something is admissible

2. Jury = How much a piece of evidence is controlling

XII.  Limited Admissibility & Jury Instructions

1. Evidence may only be used for the reasons it is accepted

2. Jury must follow specific instructions on how to use certain pieces of evidence