Contents. Dedication... v. About the Author... xvii. Acknowledgments... xix. Foreword... xxi. Preface... xxv A Note about Primary Sources...

Transcription

1 Dedication... v About the Author... xvii Acknowledgments... xix Foreword... xxi Preface... xxv A Note about Primary Sources... xxvi Chapter 1 Trial Process and Procedure... 1 The Role of the Trial Judge in a Family Law Proceeding... 1 Format of a Family Law Trial... 3 Theories and Themes... 4 Opening Statement... 5 Direct Examination... 6 Cross-Examination... 7 Closing Argument... 9 Ethical Considerations Chapter 2 The Fundamentals of Evidence What Is Evidence? History of the Federal Rules of Evidence Purpose of the Rules Rules of Admissibility vii

2 viii Contents Direct versus Circumstantial Evidence Relevance Reliability of the Evidence Witness Testimony Tangible Evidence (Exhibits) Other Considerations of Admissibility: Hearsay Privilege Original Writing Rule Objections to Evidence Effective Use of Evidence Planning Use of a Proof Chart Chapter 3 Relevance Rule 401. Test for Relevant Evidence Rule 104. Preliminary Questions Circumstantial Evidence Conditional Relevance of Circumstantial Evidence Relevance of Background Information The Relevancy-Balancing Test Practice Points Chapter 4 Evidencea of Character and Habit Rule 404. Character Evidence; Crimes or Other Acts Character Evidence Defined Methods of Proving Character Admissibility of Habit Evidence Practice Points Chapter 5 Other Miscellaneous Relevancy Issues Rule 408. Compromise Offers and Negotiations Permissible Uses of Settlement Negotiations Withdrawn Plea or Plea of No Contest... 52

3 ix The Rape Shield Rule Evidence of Sexual Misconduct in a Civil Proceeding Practice Points Chapter 6 Hearsay Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay Rule 802. The Rule against Hearsay Hearsay Defined Nonverbal Communication as Hearsay Who Is the Declarant? Nonassertive Out-of-Court Statement Prior Inconsistent Statement Made under Oath Is Not Hearsay Prior Consistent Statement Admissible as Not Hearsay Admissions of a Party Opponent Judicial Admissions Distinguished from Evidentiary Admissions Testimonial Admissions by a Party Opponent Statement of Third Person Imputed to Party Adoptive Admissions Admission by Silence Admission by Conduct Practice Points Chapter 7 Hearsay Exceptions Rule 803. Exceptions to the Rule against Hearsay Regardless of Whether the Declarant Is Available as a Witness Rule 806. Attacking and Supporting the Declarant s Credibility Rule 807. Residual Exception Present Sense Impression... 85

4 x Contents Excited Utterance Then-Existing Mental, Emotional, or Physical Condition (the State of Mind Exception ) Statement Made for Medical Diagnosis or Treatment Recorded Recollection Records of Regularly Conducted Activity (Business Records Exception) Computer-Generated Business Records Religious and Family Records Records of Documents Affecting an Interest in Property 104 Ancient Documents Market Reports and Similar Commercial Publications Learned Treatises Reputation Evidence Judgments FRE 804 Hearsay Exceptions That Require Witness Unavailability Exceptions Prior Testimony Dying Declaration Statements against Interest Admissions Distinguished from Declarations against Interest Statement of Personal or Family History Forfeiture by Wrongdoing Hearsay within Hearsay: FRE Impeaching the Out-of-Court Declarant: FRE The Residual Exception: FRE Expert Testimony Rule Practice Points Chapter 8 Judicial Notice and Presumptions Rule 201. Judicial Notice of Adjudicative Facts

5 xi Rule 302. Applying State Law to Presumptions in Civil Cases Judicial Notice Defined Presumptions Burden of Proof Presumption Distinguished from Burden of Proof Practice Points Chapter 9 Authentication of Writings and Other Tangible Evidence Rule 901. Authenticating or Identifying Evidence Rule 902. Evidence That Is Self-Authenticating Authentication of Real Evidence Authenticating Photographs Authentication of Writings Authentication by Identification of Handwriting Authentication of Writings by Other Means Authentication of Electronic Communications Websites and Social Media Computer-Generated Documents Demonstrative Aids Summaries Public Records or Reports Ancient Documents Self-Authentication of Real Evidence Necessity of Subscribing Witness Practice Points Chapter 10 Original Writing Rule and the Rule of Completeness Rule Definitions That Apply to This Article Rule Admissibility of Duplicates Rule Admissibility of Other Evidence of Content 181

6 xii Contents Rule Remainder of or Related Writings or Recorded Statements Rule Testimony or Statement of a Party to Prove Content Original Writing Rule Use of Duplicates Exceptions to the Requirement for Introduction of Original Document Secondary Evidence Defined Collateral Writings Public Records Use of an Admission to Prove Content of a Writing The Rule of Completeness Practice Points Chapter 11 Competency of Witnesses Rule 601. Competency to Testify in General Rule 104. Preliminary Questions Rule 603. Oath or Affirmation to Testify Truthfully Rule 701. Opinion Testimony by Lay Witnesses Rule 605. Judge s Competency as a Witness Questions of Witness Competency In-Camera Proceedings Oath or Affirmation Requirement of Firsthand Knowledge of the Witness Lay Opinion Testimony Expert Opinion Differentiated Opinion on the Ultimate Issue Use of Interpreters Competency of the Judge or Lawyer as Witness Practice Points

7 xiii Chapter 12 Evidentiary Privileges Rule 501. Privileges in General Rule 502. Attorney-Client Privilege and Work Product; Limitations on Waiver Privilege against Self-Incrimination Remedies for Opposing Party Invoking the Fifth Amendment Privilege Waiver of the Privilege Attorney-Client Privilege Professional Relationship Defined Production of Documents Containing Privileged Communications Impact of the Presence of a Third Party on the Privilege 222 Waiver of Attorney-Client Privilege Inadvertent Waiver Intercepted Correspondence and Privilege Disclosures in Fee Petition Matters to Which the Attorney-Client Privilege Does Not Apply Work-Product Doctrine Physician-Patient Privilege Patient Privacy and HIPAA Waiver of Physician-Patient Privilege Marital Privileges Practice Points Chapter 13 Expert Witnesses Rule 702. Testimony by Expert Witnesses Rule 704. Opinion on an Ultimate Issue Rule 706. Court-Appointed Expert Witnesses Subject Matter of Expert Testimony The Role of the Expert The Expert s Assignment

8 xiv Contents Reliability of Scientific Expert Testimony Reliability of Nonscientific Expert Testimony Using Expert Testimony Qualifying the Expert The Factual Basis of the Expert s Testimony The Expert s Opinion Admission of the Expert s Report Direct Examination of the Expert Cross-Examination of the Expert Practice Points Chapter 14 Examination of Witnesses Rule 607. Who May Impeach a Witness Rule 608. A Witness s Character for Truthfulness or Untruthfulness Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence Leading Questions Foundation for Testimony Refreshing Recollection Use of Nonadmitted Documents Cross-Examination Generally Scope of Cross-Examination Request to Examine a Witness for Voir Dire Impeachment of Witnesses Scope of Redirect and Re-Cross Examination Judicial Questioning of Witnesses Exclusion of Witnesses Practice Points Chapter 15 Tendering Exhibits, Objections, and Offers of Proof Rule 103. Rulings on Evidence

9 xv Objections to Exhibits Objections Generally Responding to Objections Timing of Objections Objections during Opening Statement or Closing Argument Offers of Proof Plain Error Rule; Harmless Error Rule Practice Points Chapter 16 Procedures for Streamlining Admission of Evidence Requests to Admit Facts and Genuineness of Documents Concluding Comments Appendix The Federal Rules of Evidence Article II. Judicial Notice Article IV. Relevance and Its Limits Article X. Contents of Writings, Recordings and Photographs Foundations