Evidence Outline - Chevigny

DEFINITIONS:

• “Direct Evidence”: evidence which, if believed, resolves a matter in issue.

• “Circumstantial Evidence”: evidence which, even if believed, does not resolve the matter at issue unless additional reasoning is used to reach the proposition to which the evidence is directed.

• “Extrinsic Evidence”: evidence other than the testimony of the witness

I. Introduction

A. basically a common law subject

1. codified in some places (FRE, California, - not in NY)

a. codification has become less formalistic and more political

i. FRE 413-415 sex rules one example - completely in conflict with traditional rules

B. “Foundation”: logical chain of circumstances connect item to case

1. witness lays foundation for own testimony by taking stand and acting competent

C. tension between trial as version of truth and trial as attempt to prove something

1. separation between trier of fact (jury) and law officer (judge)

a. role of judge is to determine admissibility

i. FRE 104 (b) - “conditional relevancy”

b. jury determines weight

1. review of evidence decisions by higher courts makes evidence seem incorrectly important/ dispositive

2. question is whether enough evidence presented to meet burden of proof - not whether it is true or false

D. adversarial system

1. test evidence presented by other party

a. parties control proceedings - determine what evidence will be introduced

E. formal introductions - have to make record of trial so it may be appellable

1. demeanor of witnesses not recorded but may play a role

II. Relevancy - must be “probative” (relationship between piece of evidence and factual proposition to which evidence addressed) and “material” (link between the factual proposition which the evidence tends to establish and the substantive law)

A. FRE 401 - “relevant evidence”

1. it is not supposed that every witness can make a home run - Ad. Comm. Note

A. FRE 402 - all relevant evidence is admissible

B. FRE 403 - relevant evidence may be excluded if its probative value is outweighed by its prejudicial value

C. “conditional relevancy”

1. probative value depends on satisfying the basic requirement of relevancy in FRE 401 + the existence of some matter of fact - Ad. Comm. Note FRE 401

2. see FRE 104(b) supra

E. Adamson

1. physical evidence

a. fingerprints on inside of door - strongest evidence

b. stocking tops at ’s apartment - relevant because victim was missing part of stockings

i. even though they were not the same stockings

2. hearsay

a. witness heard  offering to sell diamond ring on street after crime - relevant because circumstances indicate it is a stolen ring & victim known to wear a diamond ring

F. Von Bulow

1. evidence

a. husband says he hired caretaker and cared about his wife

i. relevant because he expresses concern for his wife (“weak”)

b. chauffeur testifies he drove her to many doctors and pharmacists

i. relevant because hypochondriac and may have been self-medicating and OD.

ii. also could be interpreted that she was concerned about health

c. businessman testifies husband earned little and wife was rich

i. relevant to show circumstantial evidence of motive

d. doctors testified both comas caused by insulin injections

i. relevant to show it was not an accident

e. Miller testified husband could earn a large salary eventually

i. relevant to show no motive

f. O’Neil testified wife told her of insulin

i. relevant to show knowledge on part of victim and capability of administering herself

g. medical assistant testified wife said she tried to kill herself after coming out of coma

i. relevant because…

h. Sanders said O’Neill did not work with wife

i. relevant to show she was not in studio at time she claimed and did not have conversation when she did with wife

G. evidence in criminal case is relevant if it proves an element of the crime (murder)

1. physical and temporal access to victim

2. injury to victim

3. access to weapon

4. intent shown by circumstantial evidence

III. Objections

A. FRE 103(a)(1): must specify grounds for objection

1. allows for corrective action at time

2. necessary for grounds of appeal

IV. Real Evidence

A. authentication - first step

1. FRE 901: must be the unique object AND must prove something

2. must show the chain of possession and that it is in same condition

a. not relevant if different object

b. exception - if object recognized no need for chain of custody

3. generally bureaucratic paper trail to trace

a. not inadmissible if mess-up - merely goes to weight

5. objecting that object was planted on  does not make it inadmissible - merely goes to weight

6. if evidence excluded

a. make “offer of proof” - explain substance of evidence to court

i. what witness would have said

6. Eisentrager: must establish it is “reasonably certain” to be the sample

7. Amaro: blood sample unaccounted for over 36 hours not admitted - “wrongly decided”

8. Woolley: standard for authentication lower in civil cases

A. Tiffany

B. Anderson

1. do not know whether this is same bottle of wax

2. do not know if wax has changed consistency

a. would need to discuss this to admit

V. Demonstrations

A. in general

1. tangible evidence that illustrates a matter of importance in the litigation

2. “must be relevant and substantially similar” - notes

B. authentication

1. must show the demonstrative object fairly represents or illustrates what is alleged to be illustrated

C. reenactment: Wanoskia

1. another woman used to illustrate gun could not be held 18” from head

a. “substantial similarity” to actual events

2. no testimony on length of victim’s arms

a. expert was qualified to estimate length of victim’s arms

b. that actual measurement not taken goes to weight rather than admissibility

D. video of reenactment: Fusco

1. “video of a reenactment is not a reenactment - it is a video” - notes

2. court does not admit video

a. too many unseen variables

i. driver knew danger was coming in video

ii. perhaps took many takes

3.  attempted to introduce to prove “general scientific principles”

a. court finds this method is too prejudicial to be used for this

i. could instead put on expert to say this would not happen

ii. could bring in mechanism or model and explain how it works

4. advantages of video

a. know what is coming before it happens

b. vivid for jury

5. foundation for video

b. someone with possession of film must identify it (film-maker)

c. someone must testify the camera is capable of recording the event

d. someone must say it is accurate representation of events filmed (complete and unaltered)

i. driver of car could hardly verify this

ii. bystander could possibly testify to this

iii. film-maker would be best

E. photographs: Knihal

1. photos originally construed as diagrams (Knihal view)

a. not admitted here because not part of testimony by a witness

b. would not use photographer to introduce if using as diagram - rather someone explaining what was in photo

c. to introduce as diagram these days - must be very simple photo

2. modern view: may allow photos as a silent witness

a. record of actual events in case

b. photographer would introduce by stating the reliability of the camera & that it was not altered

3. gruesome photos may not be admitted after FRE 403 prejudice found

F. automatic video: Alexander (bank video) & police video

1. may introduce by testifying videocamera is operable and works on its own & that film is unaltered

2. additional for police video: testimony it is procedure to turn on camera for each stop

G. “Day in the Life” film: Bannister

1. used to show extent of injuries - relevant to show what damages are allowed

a. FRE 403: probity highest and prejudice lowest if limited to typical daily activities

i. also cognizant that film may outweigh other testimony

2. 2 issues

a. admissibility of film as relevant

b. admissibility of actions of subject

i. need testimony of person

ii. need medical testimony

3. introduced by film-maker

a. must testify camera is operable (that it runs at correct speed, etc.)

b. because has been edited, editor or film-maker must testify what exactly was filmed and describe how it was edited

i. relation between film and life as he saw it

ii. Cisarik: opposing counsel has right to review and utilize unused portions

H. film of actual events: Eisenberg

1. court did not overturn conviction based on testimony directly contradicted by video

a. admitted video

b. film spliced and out of order

2. most courts follow this line of not making video conclusive proof (although it was in Abscam case)

a. Rodney King: what happened before video started?

3. difficult to use news films because cameraman often will not remember well enough to testify if it accurate

I. audiotape: Branch

2. jury must hear foundation

3. bare minimum for foundation for record of conversation:

a. testimony about this being correct conversation: when/ where & testimony about correct voices

b. testimony it is complete record of relevant parts

i. tape ran continuously (or not)

ii. sequestered since then - unaltered

a. testimony that machine is operable and capable of making recording

b. testimony about conditions under which it was made

i. not an essential element - but should show conversation is spontaneous (not coerced)

3. if part of tape missing

a. evidence does not have to be perfect - but must report any problems to the court

b. if missing piece makes it more confusing than probative court will exclude it

c. generally admissible if not intentionally distorted

VI. Documents

A. like “real evidence” unless meant as diagram

B. FRE 902: certain documents are self-authenticating

1. prima facie admissible - although may be proven false

2. used to be very hard to admit document: Green Giant

a. had to show evidence independent of document proving authorship

b. unlikely trade document is false because of trademark laws

C. FRE 901: authentication

1. may be authenticated by author

a. pre-trial stipulation

b. author may take stand and admit authorship

3. may be authenticated by witness who observed the writing

4. qualified witness may give opinion of ownership

a. may be lay witness

i. must be familiar with handwriting of author

ii. not permitted to fortify testimony by comparing in court

b. may be expert witness

i. allowed to fortify testimony by comparison to another sample because this is his job

D. Reply-Letter Doctrine

1. if person will not identify own letter it can be tied to him by person who sent letter requesting the reply

a. applied to phone calls also

E. Best Evidence Rule

1. when offering writing for its contents must present the original - unless unavailable for some reason other than the serious fault of the proponent

2. applies only to writings and equivalent evidence (recorded communications)

3. FRE 1002: best evidence rule

a. FRE 1001: applied to photographs, videos, writings, etc.

b. FRE 1003: photocopies admissible to same extent as original unless “unfair”

1. Seiler: drawing inadmissible because not original - did not predate “Empire Strikes Back”

2. exceptions:

a. question?

VII. Testimonial Evidence

A. “Competency”: evidence never admissible until given foundation by competent witness (2 requirements for competency below)

1. FRE 602: witness must have personal knowledge

a. Schneiderman: witness must be able to perceive, relate, remember (must be “questionable” on cross-x)

4. FRE 603: witness must take oath

5. competency presumed today (FRE 601) - much more questionable and important at common law

6. communication:

b. Schneiderman: better to let incapacitated person take the stand and allow jury to determine weight of evidence

c. White: woman could communicate only by motion - jury unable to determine credibility

5. perception & memory:

a. depends on time of exposure; how important; how it fits into your social schema

i. fit event into your world as you think it ought to go - depends on prejudicing and stereotyping

b. people are responsive in ways they do not recognize

i. teacher with gifted students example

c. single witness has frozen memory and investment in not backing down

d. how to bring out such failings at trial

i. increasingly allow expert testimony at trials about fallibility of memory

6. children are presumed competent

a. possible problems

i. suggestible

ii. will tell story to please adult

iii. will freeze story once it is told

iv. “likely similar to adults” - Chevigny

b. Michaels: court reverses because investigators and prosecutors used coercive methods of interrogating the children

i. absence of spontaneous recall

ii. repeated leading questions

iii. multiple interviews

iv. ongoing contact with peers and references to their statements

v. use of bribes

vi. failure to document initial interview sessions

c. McGuff Statute

i. must record the initial interview with a child

ii. interviewer must be a neutral expert

iii. videotape may be used as child’s testimony

iv. problem: lends artificial air of certainty to testimony

B. Opinion & Expert Testimony

1. FRE 701 - opinion testimony by lay witness (2 requirements)

a. must be rationally based on the perception of the witness

i. Gladden: opinion should be allowed if only slight opportunity to observe - allow jury to determine if sufficient

c. must be helpful to clear understanding of the witness’ testimony or the facts in issue

d. opinion admitted without laying foundation - cross-x will establish foundation

e. Learned Hand in Central Railroad: nearly everything we state is mixture of opinion and fact

2. FRE 702 - expert testimony

a. will have hearing without the jury to determine if meet FRE 702 requirements

b. most experts have experiential expertise rather than scientific knowledge

c. Model Code: do not have to ask expert hypothetical question (Rabata)

i. expert can testify as to ultimate issue: what he thinks actually happened

d. testimony does not need to have foundation - but expert will state basis regardless so his opinion will seem valid

i. opponent will cross-x

ii. both sides have motive to draw out basis of opinion

e. Daubert: interprets standards of FRE 702 for scientific knowledge

i. must be scientific knowledge - this means it must be tested

• has it been published (not dispositive)

• rate of error

• general acceptance (point of the case is this isn’t dispositive)

ii. must help jury understand evidence - this means it must have a valid scientific connection to the inquiry

f. evidence presented

i. DNA evidence still questioned (Chischilly)

g. can expert testify on obscenity standard?

i. can have expert if he would assist the jury

VIII. Examination of a Witness

A. In General

1. FRE 611 - no leading questions on direct

a. harder to examine credibility of witness when he is just answering “yes” or “no”

b. Straub: essential question: does Q suggest A?

i. other factors besides words used considered

a. permitted on cross-x

i. witness would not suggest alternate scenarios to his story

ii. may not pack question with information designed to convey information to trier

2. misleading questions

a. “when did you stop beating your wife?”

b. can not answer question without attacking premise of Q

3. argumentative questions

a. arguing the case to the trier at a premature stage behind guise of questioning for sake of information (in most instances)

4. should witness testify in uninterrupted narrative? (discussion p. 338-39)

B. Refreshment of and Recorded Recollection

1. Riccardi: past recollection recorded v. present recollection refreshed

a. past recollection recorded: offering past list for the truth of its contents

b. present recollection refreshed: witness refreshes present recollection

i. primary evidence is not the writing

• do not have to establish reliability of writing before used to refresh

ii. may be cross-xed

1. FRE 612 & 613 - opponent may examine writing used to refresh (see if relevant or includes more)

2. FRE 803 (5) - writing used to refresh memory is exception to hearsay

C. Cross Examination

1. FRE 611(b): limited to matters subject of the direct examination and matters affecting credibility of the witness

2. denial of Due Process if not allowed in criminal case

a. must be allowed in civil case as well

3. Finch:

a. FRE 611[c]: can lead because hostile witness even though direct

b. examination of what happens if cross-x not limited

4. if “door is opened” on direct - a subject may be explored in depth on cross (Siegel)

D. Impeachment - putting testimony in question

1. In General

a. FRE 607 - allowed to impeach own witness

b. rules that make things admissible trump those that make them inadmissible: prior statement of bad act admissible (despite FRE 608(b)) & prior inconsistent statement which is hearsay is admissible

1. “Incompetency”: witness is unable to observe, has weak memory, or communicates poorly

2. “Bias”

a. must lay foundation for bias before introducing extrinsic evidence - only may introduce extrinsic evidence if witness denies it

i. Abel: must ask witness about membership in liars organization

• if admitted no extrinsic evidence

• if denied may call other to stand to testify on membership

b. bias is never a “collateral” issue - it may always be proven by extrinsic evidence if denied

4. “Criminal Record”

a. only used to put in question his testimony - danger is that jury will use it for substantive purposes

b. at common law could ask about convictions to reflect on credibility

c. some convictions more probative than others

i. crimen falsi (crimes of falsehood) (Cree)

• including breach of trust (embezzlement, criminal fraud)

• counterfeiting, filing false tax returns, or not filing (for some)

ii. disregard for interests of society (Sandoval)

• disorderly conduct

• would have to be a felony under FRE 609

iii. majority of courts say theft crime are not probative

iv. addictions NOT probative - not calculated acts

d. FRE 609: crime must be less than 10 years old

i. passage of time makes less probative

e. FRE 609: crimen falsi usable for cross-x without balancing test (no discretion to keep out)

i. for others must be a) felony and b) probative value must outweigh prejudice

f. similarity of crimes makes them more prejudicial

i. “legal falsehood - actually very probative” - Chevigny

g. for  prejudice must merely “outweigh” probity (609) - for other witness prejudice must “substantially outweigh” probity (403)

i. danger to accused is much greater

h. court considers underlying facts

i. crimes which were plead down from

ii. whether crime was done in deceitful way

j. other factors:

i. importance of ’s testimony

ii. centrality of credibility issue

k. FRE 609: juvenile adjudications are not admissible against 

5. “Bad Acts”

a. admitted at discretion of court

b. misconduct which has not led to conviction: lying on job application, tax evasion, embezzlement

i. FRE 608(b): only those prior acts which are probative of truthfulness

ii. more troubling because have not been the subject of independent proof beyond a reasonable doubt

c. no extrinsic evidence: only through cross-x (FRE 608)

i. if witness denies no other methods used to prove

ii. can be introduced under other purposes though: bias, prior inconsistent statement, incapacity

d. prosecutor must have good faith basis for asking about act