Fre 103 Appellate Review of Evidentiary Questions

FRE 103--- APPELLATE REVIEW OF EVIDENTIARY QUESTIONS

FRE 103—ruling is not prejudicial unless a substantial right of a party is affected.

On an objection or motion to strike MUST state the specific ground unless it is obvious from the circumstances (PLAIN ERROR). An appellate court will refuse to review.

Last you could claim ineffective assistance.

AC will only review if 1) preserved the issue for appeal, 2) party persuades the AC that the TC committed error in admission or exclusion, 3) must affect a substantial right.

If the witness answers before you object get a motion to strike. TC decision gets abuse of discretion. If the TC makes an error of law that will be under a de novo standard.

FRE 601—competency of witnesses in general

Every person is competent to be a witness except by these rules. However in civil actions w respect to an element of a claim or defense to which state law supplies the rule of decision, the competency of that witness is determined according to state law.

Fre 605-- Competency of judge jurors and attorneys

Judge may not testify as a witness. No objection needed to preserve the point.

FRE 606—Competency of juror as a witness

a)—juror cant testify at the same trial. If juror is called opposing side can object out of presence of the jury

b)—inquiry into validity of verdict or indictment. Juror may not testify as to any matter or statement occurring during the course of the jury deliberations EXCEPT that a juror may testify on the question whether extraneous prejudicial information was improperly brought to jury’s attention or whether any outside influence was improperly beared on a juror.

In diversity—state law may supplement competency. Maybe competent but not credible. Under federal rules an atheist is competent to testify.

CL disqualified atheists and children. Evidence of religion is not admissible to prove credibility. 606a is an exception to 103a requiring timely objection because of influence on jurors. Rule 605 is an even more complete exception because obvious error of law.

Rule 606 b does not permit internal deliberation to be the subject of testimony because we want finality in cases and not to have to poll every juror.

Dead mans law—it would be unfair for a living person to testify to conversations with a dead person who could not contradict—congress found that states should be allowed to enforce this if they want.

Baliff testimony not barred by 606. Juror testimony must be about outside influence (flipping coin to decide not outside influence). Jurors will always bring in their own personal knowledge so not a ground for reversal.

Witness recollection refreshed thru hypnosis--

Courts have dissenting views. Some hands down don’t allow, some allow if the other side can rebut and test the credibility to the jurors. Some let in hypnosis but have to be careful about what was known before hypnosis and after. Under cali rule 795 admissible if it meets certain criteria. No detailed federal rule, mostly 601 governs. The rock case says a state cannot have a categorical rule not allowing a D from testifying post-hypnosis.

FRE 602—The Personal Knowledge Requirement

Witness may not testify unless evidence sufficient to support a finding is introduced that the witness has PK of the matter. Evidence may be the witnesses own testimony. This rule is subject to rule 703 relating to opinion testimony by expert witnesses.

Rule 703 EXCEPTION allows an expert witness to testify based on facts she did not perceive w her own senses.

The least reliable testimony is by someone who didn’t perceive the event.

As long as it is possible from the evidence he had PK you allow it, if the jury would find that he had personal knowledge would that be supportable. Unless the evidence is so one sided that there is no way a rational juror would think this person had personal knowledge than you allow it.

A witness who once remembered something but no longer does, does NOT have PK.

PK means not only having been there, but also being able to communicate it. Old people who cant talk don’t have PK. May serve some other function such as demonstrative evidence.

You can have PK even if you have a bad view as long as you perceived the event.

FRE 603—Oath requirement. Affirmation does not invoke God.

FRE 901—REQUIREMENT OF AUTHENTICATION OR IDENTIFICATION

a)requirement of authentication as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims.

b)Illustrations of authentications. These are not a limiting exhaustive list though.

Usually evidence is either testimony or some form of tangible evidence. This rule basically has to do w tangible evidence. Whether the evidence is satisfied is a 104b question. However evidence contesting the authenticity may still be admitted. How much credit to give this evidence is a jury question. Claim about the item of evidence must be consistent w the item’s relevance.

The most common way to authenticate is to call a witness with PK of the item to testify that the item is what they claim it to be.

Demonstrative evidence—does not depict the real object; but merely illustrates the witness testimony about them. (photo) Photo can be real evidence if offered as evidence of the actual event in question not merely a witness testimony about those events.

Authentication through chain of custody—an items unique appearance might allow the witness to say that is def the gun I saw w/o being the person that collected the gun because its identifiable. However when there is no identifiable mark they can only testify that this is what I saw looks like. To prove this is the same item you have to establish a chain of custody.

Cant have a long break in the chain of custody. Ex—cop etches initials into a gun probably enough to authenticate unless this is common practice and could have been another cop w another gun.

The standard is sufficient to support a finding which is an easy standard to meet. As long as a reasonable juror would possibly believe its authentic.

FRE 902—SELF AUTHENTICATING

Extrinsic evidence is not needed to prove authenticity. Documents w seals, copies of public records, official publications, newspapers. No evidence other than the evidence itself.

FRE 1002—REQUIREMENT OF ORIGINAL (BEST EVIDENCE RULE)

If you are trying to prove the contents of a writing, recording or photograph then you have to use the original. If you want to prove the contents you have to use the thing itself—that is the requirement of this rule. The best evidence of its content is the thing itself. A persons recollection is not as good as the thing itself.

EXCEPTIONS-- FRE1003-- a duplicate of the original is OK (printouts). FRE 1004-- Original is not required and other evidence of contents of a writing (testimony) is admissible if originals are lost or destroyed, original is not obtainable, original is in possession of opponent, or the collateral(not closely related to a controlling issue).

FRE 1006—Summaries are ok if the contents are voluminous.

In order to make a BER objection the witness must be testifying to facts they claim are based on the writing, photo, or recording. If they don’t mention it than cant object on BER. As long as they are testifying about the contents you can object.

A duplicate will not be admissible when a genuine question of authenticity is raised ie that’s not my signature.

Admissible if the evidence was destroyed by the opponent. Opponent would have to have the original though since hes the one that destroyed it.

FRE 201—JUDICIAL NOTICE OF ADJUDICATIVE FACTS

To get JN the fact must not be subject to reasonable dispute and meet the 2 reqt below. Governs only the JN of adjudicative facts.

The question is what kind of facts to we dispense w the formal requirements of proof.

What does JN mean—facts that will be deemed true w/o requiring formal proof. There are 2 categories of these facts that qualify.

• Facts that are generally known w/in the territory of the TC
• Capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned.

A fact can be JN if not subject to reasonable dispute because of the 2 elements above.

In a criminal case court shall instruct the jury it may but is not required to, accept as conclusive any fact judicially notices. The JN may not be deemed conclusive.

The court must take JN if the party supplies the court with the necessary information. Court must provide the adverse party an opportunity to argue JN. JN can be taken on appeal.

The rule does not govern the JN of law. Court hesitate to do this. Interpret statutes. Courts regularly take JN of domestic (same state) law and federal law. Not other states. Foreign nation goes to a jury. No municipal law.

Legislative facts—are those which have relevance to legal reasoning and the lawmaking process. Courts must be permitted to take JN of legislative facts. Legislative facts are not indisputable. The court will take a stand based on lawyer arguments. Law of evidence doesn’t touch this.

You could take JN that a technology (breathalyzer) is sound but not JN of the results. If the judge personally knows something that is not enough to take JN.

FRE 401—RELEVANT EVIDENCE

Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable than it would be w/o the evidence.

FRE 402—RELEVANT EVIDENCE IS GENERALLY ADMISSIBLE; IRRELEVANT EVIDENCE INADMISSIBLE.

Has to be a material fact. Its either relevant or its not. No such thing as very relevant.

Method for analyzing all evidence cases/ always start w these 3 questions

1. Start with the obvious question what is the evidence
2. What is it offered to prove/reason that the proponent is offering
3. Is it relevant for that purpose/ if not then rule 402 says it is not admissible

How weak can the generlization be before the evidence is not relevant.

When you don’t believe it is true than not relevant. If the generalization is only true half the time the evidence is still relevant—you refute this with probably value.

4 things to test the accuracy of what people are saying (testimonial infrimties)

1. Perception is one thing that affects the accuracy of the witnesses testimony, makes you think you saw something you didn’t. Possibility of a misperception. Witness competency is also perception.
2. Sincerity of the witness.
3. Ability to communicate/ narration. We are interpreting what the person is saying into its meaning. They say something really means something else.
4. Memory—between the event and the trial.

The jury has to decide about what evidence is relevant. If certain testimony goes to discredit a witnesses testimony like it was raining might raise one of the testimonial infirmities, that’s relevant.

In California only relevant if it goes to a disputed issue.

FRE 403—EXCLUSION OF RELEVANT EVIDENCE ON GROUNDS OF PREJUDICE, CONFUSION OR WASTE OF TIME

If the probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

One kind of prejudice is unfair if the evidence is likely to be given more weight than it is entitled to. This is inferential prejudice

Evidence that encourages the jury not to apply its reasoning power but convict the person based on other circumstances this is unfair prejudice because it leads the juror to lawlessness – nullification prejudice.

Evidence that has lower probative value doenst need to have as much prejudice in order to exclude it.

A TC doesn’t is error to say something isn’t accurate, must say assuming this is true how much value does it have and how much harm does it cause.

Could be a waste of time If the other side concedes a point.

Not all 403 issues reviewed under an abuse of discretion. If completely miss the law then de novo. Very rare they reverse a 403.

UNDISPUTED FACTS

Where a D admits a fact, the P desire to present the case they want is outweighed by prejudice. Ie—D admits hes an ex-felon you cant show hes an exfelon and admit his prior crimes.

PROBALISTIC EVIDENCE

The probability of several things occurring together is the product of their separate probabilities. Chance of flipping a coin heads 2 times in a row is 50% x 50% which is 25%. So three times in a row is 50% x 50% x 50%. – product rule.

FRE 104—PRELIMINARY QUESTIONS OF FACT

A)—preliminary questions re. Qualification of person to be a witness, existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions in B. In making that determination the court is not bound by the rules of evidence except those w/ respect to privileges.

B)—when the relevancy of the fact depends upon fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

C)—hearings on the admissibility of confessions are always done by the court.

As a consequence the rule 104 starts with

Judges decide preliminary facts and not jurors. Preliminary questions concerning the admissibility of evidence shall be determined by the court. This is the basic default rule.

There is an exception so when is it safe to leave the determination of preliminary facts to the jury

This goes to 104 b—the exception relevance conditioned on a fact.

• when the relevancy of evidence is conditioned upon the fulfillment of a conditon of fact
• the court shall admit it upon, or subject to
• the intro of evidence sufficient to support a finding of the fulfillment of the condition.

If part 1 of this is not met then its not in this rule. The first phrase tells you whether you have a conditional relevancy problem, 2 and 3 phrase tell you what to do. There is evidence already in the record or the attorney will present evidence later.

When there is a conditional relevancy the court still has a role to play, a filter but with large holes if there is evidence sufficient to support a finding (104b) or there will be evidence later. If the victim dies by stabbing then the statement we found a machete in the garage would be let in because there is evidence (the victim died by stabbing) sufficient to support a finding.

The admissibility standard under 104 a is preponderance of the evidence. Preliminary facts are always preponderance in civil or criminal or even constitutional.

Hypo

Prosecution of d for stealing from v home. V testifies that one of the object stolen was a Ferrari. D object on relevancy grounds claiming v did not own a Ferrari.

The relevancy of the testimony is dependent on a fulfillment of a condition of fact which is that the v owned one. The court should say is there evidence sufficient to support a finding that the v owned a Ferrari and a statement made by the v that he owned one would be enough to let it in, leave it up to the jury after to decide the truthfulness.

Example – arguing about whether something is a dying declaration. Court must decide the preliminary fact of whether witness believed he was about to die.

One choice could be to let the statement in and tell them to ignore it if they find he wasn’t on his deathbed.

The other choice is for the court to decide this preliminary issue itself and only allow the jury to hear it if the courts finds this and all the other requirements are met.

The first options problem would be to require the jury to ignore relevant evidence if it finds the preliminary facts not true. 104a-- The evidence is relevant even if preliminary fact that he thought he was dying was not true because it helps the fact finder determine who killed the witness. This is irrational to ask of a juror. The TC will decide preliminary facts necessary to the admission of certain evidence. The court is not confined to admissible evidence when making this determination.

Second example—where jurors allowed to decide preliminary questions. 104b

D denies killing P. Officer’s testimony he found a large dagger in D house is only relevant if victim was killed by stabbing. If that fact is true evidence of the dagger increases the possibility that D was the killer. It is not necessary for the judge to decide the factual decision on how the victim was killed.

Here if the courts says only consider the testimony about the knife if you find the victim was killed by stabbing the jury could probably do that. The evidence is not a technical rule it is common sense. As long as the P has provided evidence sufficient for a reasonable juror to find the victim died from a stab wound the jury should be allowed to decide this. – this is called conditional relevancy. Its only relevant if the preliminary fact (V died from stabbing) is true. ---104b.

Whether a witness has personal knowledge is a question left to the jury. Authenitcation is also treated as conditional relevancy.

The court must decide things under 104a under a preponderance of the evidence standard or more likely than not. Court may use any evidence it wants even inadmissible except privileged. The court can take the very statement itself into account. If the proponent only came w the statement itself to support the existence of preliminary facts, at CL no under FRE unclear.