Evidence Outline Goldwasser RELEVANCY & PROBATIVE VALUE

Transcription

1 Evidence Outline Gldwasser RELEVANCY & PROBATIVE VALUE FRE 401 Relevant evidence is any evidence having any tendency t make the existence f any fact that is f cnsequence t the determinatin f the actin mre prbable r less prbable than it wuld be withut the evidence. Relevancy is the sum f tw different cncepts: Materiality 1. Relates t whether the evidence is ffered upn a matter prperly in issue 2. Sme issues are always material credibility f witnesses 3. relatinship between the pint being ffered and the element necessary. f cnsequence t the determinatin f the actin Prbativeness 1. Evidence must lgically tend t prve the prpsitin fr which it is ffered 2. Prbativeness is a matter f sense, lgic, and experience The evidence must nt make the prpsitin substantially mre likely than nt but nly smewhat mre likely than nt. FRE Only relevant evidence is admissible 2. The evidence must bear a sufficient relatinship t the maters in dispute 3. The evidence must tend t prve r t disprve any prpsitin 4. Circumstantial v. Direct Evidence a. Direct is believed, establishes an essential element f the case b. Circumstantial an essential element nt s immediate and may require intervening inferences FRE 105 Where evidence is admissible fr ne purpse (r as t ne party), it is nt rendered inadmissible slely because it is imprper r irrelevant fr sme ther purpse. FRE 403 Evidence may be excluded it its prbative value is substantially utweighed by the danger f: Unfair prejudice refers t the danger that evidence might suggest an imprper basis upn which the jury culd decide the case. The test is nt whether the evidence is detrimental, but whether it is s unfairly prejudiced as t substantially utweigh its prbative value. Evidence can trigger a respnse that has nthing t d with its lgical cnnectin t a fact f cnsequence. A single item f evidence can generate several different inferences and be used by the jury in mre than ne way.

2 This rule prhibits the use f prir specific acts t prve actin in cnfrmity with the character. Cnfusin f the issue evidence cnfuses the issues when it fcuses the jury s attentin t clsely n a factual issue that is nt central t the utcme f the case. Such issues are called cllateral. Misleading the Jury A risk that a jury may give a piece f evidence mre weight than it deserves Undue delay Waste f time Needless presentatin f cumulative evidence With 403 yu must asses the prbative value by examining: 1. Strength f the underlying inferences 2. Certainty f the starting pint a. Judges may nt cnsider the credibility f witnesses, it is the jury s jb t determine the weight; the judge nly determines the relevancy 3. Need When an item f evidence has a prper relevant use t prve a fact f cnsequence but als creates the risk f an imprper use, the judge may give a limiting instructin that directs the jury t cnsider the evidence nly fr its prper use. FRE 104 The fferr f the evidence has the burden f prf. 104(a) Where the preliminary fact relates t the legal admissibility f the ffered evidence (e.g., the qualificatins f an expert), the issue is determined by the judge. The prpnent f the evidence must establish a preliminary fact by a prepnderance f the evidence. Examples With experts, the prpnent must persuade the judge the expert pssesses expert qualificatins With hearsay, the prpnent must persuade the judge f the existence f any facts essential t bring the evidence within sme hearsay exceptin With duplicates, the prpnent must shw by a prepnderance f the evidence the riginal was lst 104(b) Where the preliminary fact ges t relevancy, credibility, r weight f the evidence, the trial judge initially determines nly whether there has been a minimal shwing f the preliminary fact. The ultimate determinatin f the preliminary fact is fr the jury. Only admissible evidence may be reviewed 104(c) Hearings Hw d yu decided between 104(a) & 104(b)? If the evidence is abslutely irrelevant withut the preliminary fact, then 104(a) r 401 applies If the evidence is relevant withut the preliminary fact, then 104(a) applies

3 LAYING THE FOUNDATION FOR PROOF FRE 601 Witness cmpetence 104(a) Every persn is cmpetent t be a witness except where state law supplies the rule f decisin. Example, in a diversity case where state law supplies the rule, a child witness t be cmpetent wuld have t meet the 3 required elements under cmmn law. Test fr cmpetency is the minimum cmpetency test Requires persnal knwledge (FRE 602) Requires declaratin t testify truthfully (FRE 603) Dispense with strict cmpetency requirements and let the jury weigh the evidence. (104(b)) FRE 604: Interpreters may be used FRE 901: Authenticatin f Exhibits All exhibits must be shwn t be what they are claimed t be befre they can be admitted int evidence. Real evidence dcuments, writings, vice samples, physical evidence Demnstrative evidence explanatin evidence (visual aids, charts, maps, etc.) FRE 901(a) establishes the evidentiary standard that the prpnent f an exhibit must satisfy fr the judge t admit the exhibit. There is a relevancy thery requirement there must be a cnnectin between the item and the parties r events in the case. There must be evidence sufficient t supprt a finding. Evidence upn which the judge thinks a jury culd reasnably find a fact t be mre likely true than nt. FRE 901(b) sets frth illustratins f the kinds f fundatin facts that the drafters f FRE believe shuld satisfy that standard. There must be sme authenticity and identificatin Real evidence tangible items Tw principle methds f identificatin: Witness may recgnize item Chain f custdy t ensure n ne has tampered with the evidence. BEST EVIDENCE RULE FRE 1002 T prve the cntents f a writing, the riginal must be prduced, unless it is shwn t be unavailable. Situatins where best evidence rule des nt apply: Merely t prve that a writing existed Merely t prve that a statement was made

4 Where the cntents f the writing are cllateral t the issues being litigated FRE 1004 Situatins where the best evidence rule des apply: Where the writing itself has independent legal significance Wrds f a cntract, deed, etc. Where the writing is ffered int evidence t prve an event Where the testimny is reliant n the writing, nt reliant n persnal knwledge 2 layers f best evidence rule Best evidence Hearsay Example: Witness is listening t plice scanner and hears that red and (speeding) blue car gt int an accident at the crner f Maple and Cedar. Witness lives at this intersectin and ges t her windw and sees the cars in the intersectin. At trial, witness is prduced by the Π and asked t testify as t what she heard n the plice scanner. This wuld be inadmissible as hearsay. Her testimny as t what she heard was an ut-f-curt statement ffered t prve its truth. She is testifying as t the speeding blue car, but she didn t see the blue car speed, she nly saw them after they crashed at the intersectin. Hw abut the best evidence rule? It desn t apply because there was n writing, recrding, r phtgraph. FRE 1003 Duplicates and phtcpies are admissible and treated as riginals unless there is a dispute as t the authenticity f the riginal r it wuld be unfair t admit the duplicate CHARACTER EVIDENCE (RELEVANCY) FRE 404(a) Character evidence is evidence f hw a persn generally behaves, r behaved n sme ther ccasin. Character evidence (evidence f a persn s character r trait r a pattern f bad cnduct) is nt admissible fr the purpses f prving actin in cnfrmity therewith n a particular ccasin. Plicy Peple dn t always act within their character Juries might be unduly swayed Exceptins: Where character is an essential element f a claim, defense, r cause f actin, character evidence is admissible Defamatin cases Child custdy cases Where knwledge f the character f anther is at issue, character evidence is admissible Self-defense

5 Negligent entrustment Where the accused pens the dr under FRE 404(a)(1) Δ may ffer evidence f gd character by reputatin r pinin evidence, nt specific acts, t prve his inncence and the prsecutin may rebut with negative traits Bad character f the victim T shw the victim acted in cnfrmity with character, then cnduct wuld tend t prve Δ s inncence Reputatin and character evidence In civil actins, 404(1) prhibits the use f character evidence t shw cnfrmity, but it may be used in a civil case if the civil actin is based n culpable cnduct prscribed by criminal law. FRE 404(b) Evidence f ther crimes and acts is admissible when it is ffered t shw smething ther than character. KIPPOMIA Knwledge Intent Plan Preparatin Opprtunity Mtive Identity Absence f mistake r accident There must be ntice f using these ther crimes and acts Specific trait t be prved must be in issue Where evidence f ther crimes are admissible t shw KIPPOMIA, it need nt be shwn that anyne was actually cnvicted, just that the ther acts ccurred. Character evidence has lw prbative value, is highly prejudicial. FRE 405 Where character evidence is admissible, all 3 frms f character evidence may be used as prf f character. Specific acts can nly be admitted by: By inquiry during crss-examinatin f a witness giving reputatin r pinin evidence (405(a)), r In cases where character r character trait is an essential element f a charge FRE Sex crimes these rules verride 404(b) and allw specific acts f sexual assault t prve a persn s character r prpensity fr engaging in such miscnduct t shw actin n a particular ccasin.

6 413: When a criminal defendant is accused f sexual assault, the prsecutin may intrduce evidence that the defendant cmmitted ther such crimes t shw his prpensity t cmmit sexual assault 414: Same as 413 but fr when a criminal defendant is charged with child mlestatin 415: Same as 413 but fr civil cases invlving sexual assault r child mlestatin This evidence is still subject t 403 balancing THE OTHER RELEVANCY RULES FRE 406 Evidence f a persn s habit r the rutine practice f an rganizatin is relevant t prve that the cnduct f the persn r rganizatin n a particular ccasin was in cnfrmity with the habit r rutine practice. FRE 407 Evidence f subsequent remedial measures is inadmissible t prve negligence r culpable cnduct in cnnectin with the event: Exceptins: T prve wnership r cntrl T shw an attempt t cnceal r destry evidence Fr impeachment f testimny as t the safety f the cnditin T shw precautinary measures were feasible Ratinale: Subsequent repairs d nt lgically establish prir lack f care Admitting such evidence wuld tend t discurage beneficial changes frm being made after an accident FRE 408 Evidence that a Δ has paid r ffered t pay mney in a settlement f a disputed claim against her is nt admissible t fix liability as between the parties Public plicy t encurage ut f curt negtiatins. Exceptins: T prve bias r prejudice f a witness T cntrvert a cntentin f undue delay by ne f the parties T prve that a party attempted t bstruct a criminal investigatin FRE 409 Evidence that a Δ paid r ffered t pay medical, hspital bills is nt relevant t prve the Δ s liability fr injuries. But admissins f fact accmpanying ffers t pay medical expenses are admissible. The admissin f fact is admissible but the statement regarding ffer t pay medical bills is nt. FRE 411 Evidence that a persn was insured is nt admissible t the issue f whether a persn acted negligently r wrngful. It is admissible fr ther purpses than t prve the Δ liable.

7 HEARSAY Hearsay is an assertin made r dne by smene ther than a testifying witness n the stand that is ffered int evidence t prve the truth f the matter asserted. Apprach t hearsay: 1. Is the statement ffered t prve the truth f the matter asserted? a. Is the statement relevant fr any purpse ther that des nt require accepting the truth f the matter asserted? 2. Is the statement is hearsay, is it nnetheless admissible under and exceptin r exemptin t the hearsay rule? Exemptins statements ffered fr their truth but still nt cnsidered hearsay Exceptins statements acknwledged t be hearsay but still admissible Pay clse attentin t the facts fr suggestins f exceptins Be sure that all the technical requirements f an exceptin are met befre deciding that the exceptin des in fact apply Cncerns: reliability, sincerity, perceptin and memry prblems The hearsay rule is nt applicable where evidence f the ut-f-curt wrds r actins is ffered nly t shw that the statement was made r that it had a certain effect n a listener r bserver, rather than t prve the truth f the matter asserted. FRE 801 Statement Declarant Hearsay Includes assertive cnduct actins that are the equivalent f wrds are treated as hearsay if the wrds wuld be hearsay Nnassertive cnduct is nt treated as hearsay and is admissible nt nly t shw the declarant s state f mind but als t prve the truth f the matter asserted (there are n issues f trustwrthiness) FRE 801(d): Hearsay Exemptins 1. Prir incnsistent statements by witness 801(d)(1)(a) a. Statement incnsistent with testimny given at trial b. Made under ath and in a prceeding c. Prir incnsistent statements nt swrn are nly admissible t impeach 2. Prir cnsistent statements by witness 801(d)(1)(b) a. Cntents f statements are cnsistent with what was given at trial

8 b. Used t rebut an express r implied charge f recent fabricatin r imprper influence r mtive n the part f the witness 3. Witness s prir statement identifying a persn 801(d)(1)(c) a. Statement identifies a persn b. Statement may be either cnsistent r incnsistent with trial testimny c. Statement must have been made after declarant perceived that persn. 4. Admissin by party-ppnent 801(d)(2) a. Direct admissin (a) i. Statement is made by a party and that statement is against the interest f the party, althugh it didn t have t be against the interest when it was made 1. Δ cmes up t Π after car accident and says, It was my fault. b. Admissin by cnduct r silence (Adpted Admissin) (b) i. Judge decides under 104(a) whether the party s cnduct des manifest the belief. ii. Π suing frmer emplyer after lngterm expsure t a chemical causing leukemia. Δ denies chemical was unsafe and they knew there was any special danger caused by expsure. Π ffers a reprt cmplied by Δ t a federal agency detailing the harmful effects f the chemical. Upn bjectin, it will be admissible. 1. At trial, they deny danger. But reprt they cnducted says it is. This is the incnsistency. c. Authrized admissin (c) i. A statement f any persn specifically authrized by a party t speak d. Vicarius admissin (d) i. Statement f an agent r emplyee made during the existence f the relatinship and cncerning a matter within the scpe f emplyment e. C-cnspiratr s admissin (e) FRE 803: Hearsay Exceptins Availability f Declarant Immaterial Can be invked whether the declarant is available r nt Always a requirement f 1 st hand knwledge Credibility may be attacked as if the declarant was available Judges have n discretin as t admit r nt admit this evidence 1. Present sense 803(1) a. Gverned by 104(a) i. Can use the statement t determine preliminary facts b. Event r cnditin c. Describe/explain d. While perceiving/immediately thereafter i. Time frame element while perceiving r immediately thereafter (10 minutes is t lng). Strict requirement. e. Persnal knwledge required 2. Excited utterance 803(2) a. Gverned by 104(a)

9 b. Startling event c. Statement relates t starting event d. Statement made while under stress f excitement caused by startling event 3. Then existing mental, emtinal, r physical cnditin 803(3) a. Statement cntents existing state f mind, etc. at the time f the statement b. Statements f intent, pain, bdily health c. Hillman case d. Lk fr the present tense verbs e. May be made t any persn, nt necessarily t a physician f. Past mental state regarding a declarant s will is permitted. i. I revked my will last week 4. Statements fr purpses f medical diagnsis r treatment 803(4) a. Statements made fr the purpses f medical diagnses/treatment b. Describes medical histry, past/present symptms c. Reasnable pertinence d. May be made t any persn e. Declarant need nt be the persn seeking treatment herself parent can make statement abut a child f. Severance i. Declarant says, That speeding car hit me and brke my leg. Can yu sever the speeding aspect frm the physical cnditin? Yes. The statement that the car hit declarant and brker her leg is admissible but the fact the car was speeding wuld nt be. 5. Past Recllectin Recrded 803(5) a. Where a witness memry has failed t been refreshed, the witness may read int evidence statements frm a writing prvided: i. The witness nce had persnal knwledge abut the matter; And ii. The mem r writing itself must have been made by the witness r adpted by her at a time when it was fresh in her memry b. As a prerequisite, refreshing (handing a writing t a witness and taking it back, then witness testifies frm wn memry) must have been attempted and failed. 6. Recrds f regularly cnducted activity 803(6) a. Tw main issues: i. Sptting and cntending with multiple hearsay issues ften with business recrds. ii. Dealing with trustwrthiness cncerns seems t meet the requirements but we are fighting, because smene was thinking abut litigatin when making the recrds. 7. Public Recrds and Reprts 803(8) a. Basic Requirements: i. Statement is in the frm f a recrd r reprt frm a public ffice r agency ii. The cntents f the recrd include: 1. Activities f the ffice/agency 2. Matters bserved & reprted pursuant t duties impsed by law but nt in criminal cases, r

10 3. Factual findings resulting frm an investigatin authrized by law, but nt against the defendant in a criminal case. 8. Absence f Public Recrd r Entry 803(10) 9. Final judgment 803(22) a. Evidence f a final judgment entered after a trial r a guilty plea t a felny are admissible as a hearsay exceptin AND OTHER EXCEPTIONS FRE 804: Hearsay Exemptins--Declarant Must Be Unavailable **Remember definitin f unavailable May arise in the fllwing frms: Assertin f a privilege Refusal t testify Lack f memry Absence due t death, illness, r injury Absence frm the curt s jurisdictin 104(a) decisin 1. Frmer testimny 804(b)(1) a. Statement must be in a frm f testimny given at a hearing r depsitin. b. Criminal trial, the party against whm the statement is being ffered must have had an pprtunity and similar mtive t develp testimny i. Opprtunity 1. If party was present but had n meaningful pprtunity t develp testimny prir testimny may be inadmissible. 2. Opprtunity includes direct, crss, r redirect examinatin. There is really nthing t cmplain abut unless the judge unduly restricted direct/crss/redirect examinatin. ii. Mtive 1. Similar mtive des nt mean identical mtive. 2. Questiner must be n the same side f the issue f bth prceedings and a substantial interest in prevailing n the issue. c. Civil trial party against r predecessr 2. Dying Declaratin 804(b)(2) a. Statement cncerns the cause f circumstances f what the declarant believes is impending death. i. Includes identificatins f perpetratr and descriptins f accidents f past events that led up t the mrtal injury r disease. b. Statement is made while the declarant believes death t be imminent i. There is a lack f hpe fr recvery ii. Likelihd f sincerity iii. 104(a) cncern c. Statement is ffered in a hmicide prsecutin r a civil case. 3. Declaratins Against Interest 804(b)(3) a. Cntent f statement was made i. Against pecuniary r prprietary interest f declarant ii. Culd subject declarant t civil r criminal liability

11 iii. Culd render invalid a claim held by declarant b. A reasnable persn wuldn t have made such statement unless it was true c. There must be crrbrating evidence that indicate trustwrthiness f the ffered statement d. Declarant must have had 1 st hand knwledge (This is different frm 803(b)(3) Party Admissins. Party admissins have many mre fundatinal requirements and it applies t statements made by anyne, nt just a party, and is typically nt ffered against the persn wh made the statement (and wh is unavailable) against smene else.) 4. Statements abut Persnal r Family Histry 804(b)(4) a. Cntent must cncern declarant s wn persnal r family histry; r b. Statement cncerns the persnal r family histry f ne whm the declarant is related r was intimately assciated 5. Frfeiture by Wrngding 804(b)(6) a. Statement must be made by declarant wh was a witness r ptential witness b. Statement must be ffered against a party c. Party must have engaged in wrngding that was intended t, and did, prcure the unavailability f the declarant as a witness r ptential witness 6. Residual Exceptin FRE 807 a. Statement must have circumstantial guarantees f trustwrthiness b. Guarantees shuld be equivalent t the exceptins in Rules 803 and 804 c. Statement is ffered fr material fact d. Statement is mre prbative n the pint fr which it is ffered than any ther evidence that can be secured thrugh reasnable effrts e. Admissin will serve the general purpses f the rules and the interests f justice f. Ntice is given t the ppnent. MULTIPLE HEARSAY FRE 805 Example: Π is in hspital, Π s mther testifies as t a nurse s statement f what the dctr tld her abut the Π s cnditin. Fr multiple hearsay t be admissible, each layer must be separately admissible, either under an exceptin r a frm f nn-hearsay. Dctr s statement culd be a business recrd Nurse s statement might be hearsay but pssibly the statement is made t the nurse t shw state f mind, knwledge, ntice. IMPEACMENT AND REHABILITATION OF WITNESSES FRE (a) Opinin and Reputatin Evidence a. (a)(1) limits evidence t prve character fr truthfulness r untruthfulness b. (a)(2) reputatin r pinin testimny regarding a witness s gd character fr truthfulness is nt admissible until the witness s character has been attacked. Bringing frth prir cnvictins, bad acts (b) Specific Instances f Cnduct a. If they lie, yu have t accept the answer.

12 b. Prhibits the use f extrinsic evidence f a witness s specific acts t prve character fr truthfulness t shw dishnesty r hnesty n the witness stand. It des permit inquiry int a witness s wn acts during the examinatin f that witness. The examiner is bund by the answer f the witness. c. Specific acts must relate t character fr truthfulness. FRE (a) General Rule a. Permits impeachment fr cnvictins f serius crimes and fr crimes f dishnesty and false statements. b. There is n prhibitin against the use f extrinsic evidence. c. Balancing test fr civil defendants FRE 403 (prejudice must substantially utweigh prbative value) d. Balancing test fr criminal defendants Reverse 403 (prbative value must substantially utweigh prejudice) i. Cnduct reflecting n truthfulness during the time during release frm imprisnment and giving testimny shuld be an imprtant part f the prbative value determinatin. ii. Murder cnvictins are mre likely admissible fr witnesses wh are iii. nt criminal defendants. Dishnesty and false statement cnvictins are autmatically admissible withut regard t balancing and withut regard t the seriusness f the crime. e. The rule is justified by the belief that prir cnvictins, even if they are based n activity that des nt relate very directly t truthfulness, may be especially relevant t the questin f the witness s general credibility. i. A persn f generally bad mral character is mre likely t lie than a persn f generally gd mral character. ii. Mst prir cnvictins under (a) are likely t be mre prejudicial than nn cnvictin bad acts admissible under (b) (b) Time Limit a. All prir cnvictins falling within the scpe f 609(a) are subject t the reverse FRE 403 balancing test if FRE 609(b) if they fall utside the 10-year time perid specified in that subsectin typically nt permissible b. There must be sufficient ntice that prir cnvictins will be used FRE Crss examinatin is limited t matters n direct examinatin and matters affecting the credibility f the witness 611(b) 2. (a)(2) reputatin r pinin testimny regarding a witness s gd character fr truthfulness is nt admissible until the witness s character has been attacked. Bringing frth prir cnvictins, bad acts. a. Questins addressing issues f scpe f direct examinatin i. Example: Π testifies he was bitten withut prvcatin by a brwn German Shepard with a white paw. Π calls Δ as an adverse witness and nly asks 1 questin: D yu wn a brwn German Shepard with

13 a white paw. Δ answers yes. Δ attrney asks Δ that dg is gentle and never bites withut prvcatin. Π bjects. It shuld be inadmissible subject t curt s discretin b/c Δ s answer ges beynd direct examinatin. 1. When ne party asks the ther party as an adverse witness and asks nly ne questin, the party is limiting the scpe f the testimny t that ne questin. The nly issue brught up was wnership. b. Leading questins i. Generally nt allwed n direct examinatin except when: 1. Preliminary backgrund infrmatin 2. Examinatin f expert witnesses 3. Child witnesses 4. Hstile r adverse witnesses 5. T refresh recllectin (FRE 612) a. Memry may be refreshed by leading questins r writings either while testifying r befre testifying. b. Limitatins i. Witness must testify withut lking at the writing (can have a mment t refresh but attrney must take the writing back). ii. Oppsing cunsel has an abslute right t inspect the dcument, t crss examine using the dcument, and intrduce relevant prtins f the writing. iii. Witness need nt have made writing herself. iv. Writing need nt be admissible in evidence. FRE Prir incnsistent statements (FRE 613) a. Mst cmmn frm b. Fundatin requirements i. Witness must be affrded an pprtunity t explain r deny the statement (fr extrinsic evidence, nt necessary fr intrinsic) 1 May be affrded after crss-examinatin, nt necessarily n crss examinatin. 2 Cmmn law extrinsic evidence f a prir incnsistent statement was inadmissible unless the witness was asked n ii. crss-examinatin whether she made the statement. Oppsing party must be given change t interrgate witness abut extrinsic evidence c. Any inquiry in permitted regardless f its relevancy, but the witness respnse is limited by the cllateral matter rule. i. Witness testifies Δ s sweater was green. On crss, witness is asked if she tld X the Δ s sweater was blue and she says n, then X cannt be called t refute witness answer. d. Even the credibility f a hearsay declarant can be impeached.

14 Intrinsic impeachment evidence brught ut frm the muth f the witness herself Extrinsic impeachment all ther evidence nt frm the muth f the witness (cntradictry evidence frm ther witnesses discrediting the testifying witness) Cllateral Matter rule an issue nt material t the issue being litigated Cllateral evidence used t discredit a witness may be inquired int n crss examinatin intrinsically prir incnsistent statement Extrinsic evidence n the same questin with regard t cllateral matters may nt be intrduced. Witness testifies Δ is a hnest man. On crss, witness may be asked if he knw Δ cmmitted 3 burlgaries. This in intrinsically. Π s witness testifies that Δ drve thrugh the intersectin and was wearing a green shirt. Δ cannt then bring frth a witness t testify that Δ was wearing a blue shirt. This is extrinsic evidence and nt admissible. 4 methds f impeachment 1. Sensry defects a. G t the credibility f a witness b. Manner f impeachment may be intrinsic questining r extrinsic evidence regarding the inability f the witness t see r remember c. Fundatin requirement prir questining as t the sensry deficiency (d yu nrmally wear glasses?) befre intrducing extrinsic evidence i. A persns religius beliefs are inadmissible t impeach credibility (610) 1. Bias a. 4 ways t shw bias i. Interest in the utcme ii. Ecnmic r marital relatinship iii. Hstility r favritism iv. The fee paid t an expert witness b. Manner may be intrinsic questining r extrinsic testimny c. Fundatin requirements curt is very lenient, ask the witness abut the facts that frm the basis fr the bias d. Bias is always material and never cllateral 2. Character a. 4 ways t impeach using character evidence i. Reputatin and pinin evidence (FRE 608(a)) 1. At cmmn law, nly reputatin was allwed 2. Prf is limited t the character trait f untruthfulness ii. Bad act impeachment (FRE 608(b)) 1. Questins n crss examinatins may inquire int prir uncnvicted acts relating t truthfulness. a. On crss, witness is asked if he embezzled mney frm his emplyer. It relates t truthfulness. This is prper. b. Witness is asked if embezzled and witness says n. N ther witnesses may be called t cntradict this answer

15 because such evidence wuld be extrinsic evidence n a cllateral matter and wuld be excluded under the cllateral matter rule. 2. Limited t gd faith questining. iii. Felny cnvictins (FRE 609(a)) 1. Crimes punishable by death r imprisnment > 1 year. 2. May be admissible t impeach prvided the curt determines the prbative value utweighs the prejudicial effect. This is a balancing test FRE Shuld bear n truthfulness. iv. Crimes bearing n untruthfulness (FRE 609(a)) 1. Cnvictin f crimes invlving false statements r dishnesty. 2. Either a felny r misdemeanr 3. Judge has n discretin t exclude such prf. v. Ten year rule (FRE 609(b)) 1. Cnvictin f a crime under FRE 609 (a) is inadmissible t impeach if mre than 10 years has elapsed after the cnvictin unless the curt determines that the prbative value utweighs the prejudicial effect. It prbably wn't cme in but it might. 2. Impeachment using a cnvictin mre than 10 years ld requires advance written ntice t the ppsing party. b. Hw t impeach with a cnvictin i. Asking the witness (intrinsically) ii. Offering a certified cpy f the cnvictin (extrinsically) 3. Prir incnsistent statements (FRE 613) a. Mst cmmn frm b. Fundatin requirements i. Witness must be affrded an pprtunity t explain r deny the statement. 1. May be affrded after crss-examinatin, nt necessarily n crss examinatin. 2. Cmmn law extrinsic evidence f a prir incnsistent statement was inadmissible unless the witness was asked n crss-examinatin whether she made the statement. c. Any inquiry in permitted regardless f its relevancy, but the witness respnse is limited by the cllateral matter rule. i. Witness testifies Δ s sweater was green. On crss, witness is asked if she tld X the Δ s sweater was blue and she says n, then X cannt be called t refute witness answer. d. Even the credibility f a hearsay declarant can be impeached. LAY AND EXPERT TESTIMONY FRE 701 Lay pinin 1. Generally, lay witnesses cannt ffer testimny pinin 2. Nn-expert witness may testify in the frm f pinin r inferences if they are a. Ratinally based n the perceptin f the witness AND

16 b. They are helpful t a clear understanding f the testimny (leads t relevancy) c. Must have persnal knwledge d. Scpe permissible t talk abut: i. Speed and ther physical measurements (height, weight, clr) 1 Nt t say car was driving recklessly, bridge was prperly cnstructed imprper frms f lay pinins. Legal cnclusins must be avided. ii. Identity f a persn iii. Sensry descriptins (sund, smell, taste) iv. Value f prperty v. Familiarity with ne s handwriting vi. Sanity, Emtinal State (happy, sad), Irratinal Behavir 1 But nt mental incmpetence vii. Physical cnditin (appeared drunk, was intxicated, but nt alchlic r schizphrenic require expert pinins) FRE 702 Qualificatins f Expert Witness 1. Must have special knwledge, skill, training, educatin, r experience 2. Opinin must be helpful r assist the fact-finder 3. Must be within the expert s field f expertise a. Expert truck mechanic may nt give an pinin as t the speed f tw vehicles at the pint f impact. Yu wuld need an expert n accident recnstructin. Daubert: 1. Evidence must be scientifically valid 2. Reasning/Methdlgy behind evidence can prperly be applied t facts in case Facts curts cnsider: 1. Is the thery/technique tested/testable? 2. Has it been subjected t peer received? 3. Ptential Errr rate? 4. Generally accepted? 5. Technique develped independent f litigatin? FRE 703: Bases f Expert Opinin 1. May base pinin n: a. Facts perceived by her r made knwn t her at r befre the trial i. Testimny by a crner as t the findings f an autpsy ii. Facts abut a fatal accident made knwn t the expert at trial despite iii. her lack f persnal knwledge Lay vs. pinin: expert need nt have persnal knwledge, but a lay witness must have persnal knwledge b. Facts reasnably relied upn by experts in the particular field i. An expert pinin may be based n facts nt in evidence r n inadmissible hearsay FRE (a): a. An expert witness may testify as t an ultimate issue

17 i. Cntrary t cmmn law rule (b): a. Limited t criminal cases b. An expert may nt give an pinin as t whether a criminal defendant did r did nt have a particular mental state cnstituting an element f the crime charged r a defense theret. FRE 705: Crss Examinatin f Experts 1. An expert need nt give the reasns fr her pinin n direct examinatin. a. She may be required t disclse such facts n crss-examinatin.