Trial Techniques: Everything You Should Know Before Proceeding To Trial (Almost)

Transcription

1 The Chicago Bar Association/Young Lawyers Section Presents: Trial Techniques: Everything You Should Know Before Proceeding To Trial (Almost) Wednesday, September 19, :00-6:00 p.m. The Chicago Bar Association 321 S. Plymouth Court Level of Instruction: Basic Presented by: YLS Executive Council Committee Also Available: DVD Rental, Archived Webcast, Written Materials Your case is at issue and discovery is now complete. The only thing left is to prepare for trial. However, what exactly does that mean and what are the differences between State Court and Federal Court trials? This seminar will teach you the differences between the rules of evidence and discovery. Additionally, you will be able to walk away knowing how to effectively use your discovery at trial as well as how to properly prepare witnesses. SPEAKERS: Patricia C. Bobb, Patricia C. Bobb & Associates Terri L. Mascherin, Jenner & Block LLP Victor P. Henderson, Henderson Adam, LLC MODERATOR: Paul Ochmanek, Jr, Esq.; Second Vice-Chair, Young Lawyers Section

2 TABLE OF CONTENTS Trial Techniques: Everything You Should Know Before Proceeding to Trial (Almost) September 19, 2012 Preparing Your Case with the Trial in Mind... CBA3 What Does the Jury Expect from Expert Witnesses... CBA9 Expert Witnesses... CBA13 New Illinois Rules of Evidence... CBA25 How Do I Get This Thing Into Evidence?... CBA39 CBA1

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4 9/19/2012 Preparing Your Case with the Trial in Mind YLS September 19, 2012 Patricia C. Bobb Victor P. Henderson Terri L. Mascherin Effective Witness Preparation Wendy Muchman Effective Witness Preparation Essential part of any matter before a tribunal Integral to lawyer s role as an advocate and adversary Must remain faithful to ethical obligations to truth What does that mean? CBA3 1

5 9/19/2012 Restatement 116 Interviewing and Preparing a Prospective Witness Preparation consistent with this rule includes: Discussing witness s role and effective demeanor Discussing witness s recollection and probable testimony Revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness s recollection of events in that light Discussing applicable law Reviewing factual context win which witness s observations or opinions will fit Reviewing documents or other physical evidence that may be introduced Discussing probable lines of hostile cross-examination Restatement 116 Witness preparation may include rehearsal of testimony Lawyer may suggest word choice to make witness s meaning clear Restatement 117-Compensating a Witness May not offer to pay witness compensation in excess of witness s expenses May not pay witness contingent on content of witness s testimony ti May not pay witness compensation prohibited by law CBA4 2

6 9/19/2012 Restatement 120- False Testimony or Evidence Knowingly counsel or assist a witness to testify testify falsely or otherwise offer false evidence Relevant RPC Client Lawyer Relationship Rule 1.2(d) Scope of representation and Allocation of Authority Advocate Meritorious Claims - Rule 3.1 Candor to Tribunal - Rule 3.3 Fairness to Opposing Party and Counsel - Rule 3.4 Maintaining the Integrity of the Profession Misconduct - Rule 8.4 Rule 1.2(d) Shall not counsel or assist a client to engage in conduct that lawyer knows is criminal or fraudulent but may discuss legal consequences of any course of conduct with client and may counsel client on meaning of the law See Comment 9-There is a critical distinction between presenting an analysis of legal aspects of questionable conduct and recommending the means by which a crime or fraud might be committed with impunity CBA5 3

7 9/19/2012 Rule 3.3(a)(1)-Candor to Tribunal Shall not knowingly present any false statement of fact or law to tribunal Shall not fail to correct a false statement of material fact or law previously made to tribunal by lawyer Rule 3.3(b)-Candor to Tribunal Shall not offer evidence the lawyer knows to be false. If lawyer, lawyer s client, or witness called by lawyer offers material evidence and lawyer comes to know of falsity, lawyer shall take reasonable remedial measures, including, if necessary disclosure to tribunal. Duties in 3.3(a) and 3.3(b) apply to conclusion of proceeding Lawyer need not have participated in fabrication of evidence to violate Rule-need only offer it Rule 3.3 Offering Evidence Duty not to offer evidence lawyer knows is false is premised on lawyer s obligation as officer of court to prevent the trier of fact from being misled by false evidence- Comment 5 If lawyer knows the client intends to testify falsely or wants to introduce false evidence, lawyer should seek to persuade client evidence should not be offered. If persuasion is ineffective and lawyer continues with representation, lawyer must refuse to offer false evidence Comment 6 CBA6 4

8 9/19/2012 Rule 3.4(b)-Fairness to Opposing Party and Counsel Lawyer shall not falsify evidence or counsel or assist a witness to testify falsely Arises most commonly in cases involving lawyers preparation of witnesses to testify often described as witness coaching or horse shedding the witness Rule 3.4(b)-Fairness to Opposing Party and Counsel Rule says witness but applies equally to clients, clients are witnesses Lawyer violates Rule by advising or counseling a witness to testify falsely-witness does not actually have to testify falsely Rule 8.4(a)(4) Lawyer shall not engage in conduct involving dishonesty, fraud, deceit, or misrepresentation CBA7 5

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10 9/19/2012 What Does the Jury Expect From Your Witness? Terri L. Mascherin Jurors expectations of witnesses Poised under pressure Straightforward Easy to understand Consistent Sending an important message Jurors want a witness they can trust Copyright 2009, R&D Strategic Solutions, LLC Privileged and Confidential Attorney Work Product Common testimony strategies that don t work Attack or trying to prove you are smarter than the attorney Anger, resentment, escalation Withdrawal Trying to talk your way out of it / not listening Interrupting Using jargon, highly technical speech Answering with an explanation rather than an answer Resisting the obvious Targeting the wrong audience Copyright 2009, R&D Strategic Solutions, LLC Privileged and Confidential Attorney Work Product CBA9 1

11 9/19/2012 Why traditional preparation fails Memorizing is encouraged No focus on messaging g or coping strategies t Emphasis on style over substance Fear and anger is ignored Copyright 2009, R&D Strategic Solutions, LLC Privileged and Confidential Attorney Work Product Approaching preparation with the end in mind What do you want jurors to take away from your testimony? What questions do you think jurors need you to answer? What does the other side want to get from you? What do you think will get in the way of your testimony? What do you have to / need to concede? What questions / areas are you likely to have difficulty answering? Are there things other plaintiff witnesses have done / said that concern you? Copyright 2009, R&D Strategic Solutions, LLC Privileged and Confidential Attorney Work Product An effective witness delivers the right message while under attack Develop home base messages. - Simple word or sentence that represents a core theme of testimony. - Consistent with the overall themes of the case. - Idea the audience must hear, remember, and use. Practice delivering messages while under attack. Copyright 2009, R&D Strategic Solutions, LLC Privileged and Confidential Attorney Work Product CBA10 2

12 9/19/2012 Strategies for handling difficult questions Admit-deny - Question is part true and part false - Start with: while, although, even though - Admit first, then strong denial Sorting the junk mail - Personal attack/exaggerated statement - Ignore attack and let go of emotion - Reframing with If you are asking about - Simple no, or I disagree may be enough Copyright 2009, R&D Strategic Solutions, LLC Privileged and Confidential Attorney Work Product Strategies for handling difficult questions Learning to stand your ground - Conclusions that cross the line or are totally wrong - Use few words to deny conclusion Winning the tug-of-war by letting go of the rope - Questions that are simple and easy to answer - To give answers that cannot be denied or do not matter - The sooner you let go, the faster you regain control Copyright 2009, R&D Strategic Solutions, LLC Privileged and Confidential Attorney Work Product CBA11 3

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14 Expert Witnesses Lise T. Spacapan Terri L. Mascherin Expert Issues Retention Disclosure Expert Depositions Challenges to Experts The Expert at Trial CBA13 1

15 Retention of Experts Expert must have: Necessary professional skills: scientific, technical, experience in field. Strong academic background. University-based, degrees, publications. Good witness skills. A good teacher and communicator to simplify your technical story on direct examination. Intelligent and credible to deal honestly and effectively with cross-examination. Is local flavor an issue in this venue? Retention of Experts To find the right expert: Search relevant literature in the field. Obtain recommendations from other experts with whom you have worked and legal colleagues. Search the internet and databases. Retention of Experts Comprehensive Proprietary Databases: (Their compilations of expert witness information are listed in the Legal Reference materials section of their Litigation area of law directory.) (Their database of expert witness information is called Profiler.) (Defense Research Institute ( DRI ) members can search by expert name or topic and keyword, view the expert's profile, areas of expertise, a listing of any pertinent documents, as well as a listing of previous inquiries on that expert by other DRI members.) (Association of Trial Lawyers of America ( ATLA ) members can search for information on plaintiff and defense expert witnesses including names and addresses of ATLA members who used or faced them and the experts' CVs.) CBA14 2

16 Retention of Experts Search Engines Experts (Many of the listed experts are legitimate, but most people listed on this service paid for the privilege.) Retention of Experts To find the right expert (cont.): Read prior testimony and publications of expert. Research what she writes and what others write about her. Meet with the expert. Ask the hard questions. Disclosure: Who to Disclose? Ill. Sup. Ct. Rule 213(f)(2) and (3) (2) Independent Experts: A person giving expert testimony who is not the party, the party s current employee, or the party s retained expert. (3) Controlled Expert Witnesses: A person giving expert testimony who is the party, the party s current employee, or the party s retained expert. F.R.Civ.P. 26(a)(2) (A)... A party must disclose to the other parties the identity of any witness it may use at trial to present evidence under Federal Rule of Evidence 702, 703, or 705. CBA15 3

17 Disclosure: Who to Disclose? FRE 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training or education, may testify thereto in the form of an opinion or otherwise, if: (1) The testimony is based upon sufficient facts or data, (2) The testimony is the product of reliable principles and methods, and (3) The witness has applied the principles and methods reliably to the facts of the case. Disclosure: What to Disclose? F.R.Civ.P. 26(a)(2)(B) A written report prepared and signed by the witness, which includes: Complete statement of all opinions and the bases and reasons for those opinions; Data or information considered by the witness in forming the opinions; Any exhibits to be used as a summary of or support for the opinions; and Qualifications of the witness, including List of all publications in the last 10 years; Compensation to be paid; List of all other cases in which the witness has testified as an expert at trial or by deposition in the last four years. Disclosure: What to Disclose? Ill. Sup. Ct. Rule 213(f)(2) and (3) Independent Experts: A party must identify the subject on which the witness will testify and the opinions the party expects to elicit. An answer is sufficient if it gives reasonable notice taking into account the limitations on the party s knowledge.... Controlled Experts: A party must identify: (1) The subject matters on which the expert will testify; (2) The conclusions and opinions of the witness and the bases therefor; (3) Qualifications of the witness; and (4) Any reports prepared by the witness about the case. CBA16 4

18 Disclosure: What to Disclose? MAKE FULL DISCLOSURES! Identify all opinions and bases in report to assure that you will be permitted to elicit opinions at trial. In many cases the expert opinion is barred because a party failed to adequately disclose. If you don t disclose in report, MUST disclose in deposition. F.R.Civ.P. 26(a)(2)(D): Disclosure: When to Disclose? As ordered by the Court, but not later than 90 days before trial. Any rebuttal testimony must be disclosed 30 days after the disclosure made by the other party. Disclosure: When to Disclose? Ill. Sup. Ct. Rule 213(f): To obtain opposing party s expert disclosures, party must serve 213(f) interrogatories seeking the identity of witnesses. The timing of the disclosure may be dictated as follows: By order of the court. Twenty-eight (28) days after served with 213(f) interrogatories. Ill. Sup. Ct. Rule 213(d). Initial response may simply be that it is too early to identify experts, and you will supplement at a later date. All disclosures must be made no later than 60 days before trial. Ill. Sup. Ct. Rule 218(c). CBA17 5

19 Expert Depositions: Opposing Expert Retain your own expert to consult with you. Work with your expert to identify the relevant treatises or authorities in the field and study them. Study the written disclosure, and understand the key assumptions. Consider a motion to compel in advance of the deposition if the written disclosure is inadequate. Questions should focus on the basics: Expert Depositions: Opposing Expert Who? What? Where? Why? When? Don t give away your strategy Expert Depositions: Opposing Expert Box in the expert s testimony. Ask the expert to articulate each and every opinion he holds in the context of the case. Your job is to prevent him from having enough leeway to add opinions at trial. Do the same for the bases of the expert s opinions. Have her identify all the literature on which she relies as well as documents that form the bases of her opinions. Identify important materials that the expert DID NOT review. CBA18 6

20 Compensation of Experts Expert Depositions: Opposing Expert Ask the expert s hourly rate; total compensation for the work; and whether there is any contingent amount involved. Ask how much of his total compensation is tied to legal consulting v. practicing underlying discipline. Be mindful that your own experts will be asked the same questions. Compensation of Experts Expert Depositions: Opposing Expert F.R. Civ. P. 26(b)(4)(E) Payment. Unless manifest injustice would result, the court must require that the party seeking discovery: (i) pay the expert a reasonable fee for time spent in responding to discovery under Rule 26(b)(4)(A) or (D); and (ii) for discovery under (D), also pay the other party a fair portion of the fees and expenses it reasonably incurred in obtaining the expert's facts and opinions. Courts have noted that the party seeking compensation for its expert has the burden of establishing the reasonableness of the expense, and there are limits on the amount of expert preparation time that is compensable. Consider making an agreement with opposing counsel regarding expert fees for both sides. Expert Depositions: Opposing Expert Often the best approach is to methodically walk through the expert s report. Be persistent in asking follow-up questions. Don t be intimidated by expert condescension. Explore grounds to challenge expertise or methodology. Goals of expert depositions: Understand expert s opinions, so you can attack on cross-examination at trial. Box in the expert CBA19 7

21 Expert Depositions: Your Expert If all opinions and bases are NOT disclosed in written report, your expert MUST be prepared to disclose them at deposition. Prepare: Make the expert review and articulate her opinions and the bases for them. Prepare for Cross-Examination: Discuss other side s theory and opinions. Consider whether to provide expert bad documents and facts. Advantage: Allows expert to be prepared to explain it away during deposition or trial, i.e., that fact or document is not on point. Disadvantage: If your expert has reviewed it, she cannot duck from it on crossexamination. Challenges to Experts: Federal Standard Daubert The Supreme Court charged trial judges with the responsibility of acting as gatekeepers to ensure that any and all scientific testimony or evidence admitted is not only relevant, but reliable. Daubert v. Merrell Dow, 509 U.S. 579 (1993) Challenges to Experts: Federal Standard Daubert [T]he trial judge must determine at the outset... whether the expert is proposing to testify to (1) scientific knowledge that (2) will assist the trier of fact to understand or determine a fact in issue. This entails a preliminary assessment of whether the reasoning or methodology underlying the testimony is scientifically valid and of whether that reasoning or methodology properly can be applied to the facts in issue. We are confident that federal judges possess the capacity to undertake this review. Daubert, 509 U.S. 579 (1993) CBA20 8

22 Challenges to Experts: Federal Standard Daubert Reliability Factors: 1. Technique or theory has been tested; 2. Technique or theory has been subjected to peer review; 3. Technique s or theory s potential or known rate of error; 4. Existence and maintenance of standards and controls; and 5. Technique or theory has been generally accepted in the scientific community. Challenges to Experts: State Standard Frye Just when a scientific principle or discovery crosses the line between the experimental and demonstrable stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be recognized, and while the courts will go a long way in admitting experimental testimony deduced from a well-recognized scientific principle or discovery, the thing from which the deduction is made must be sufficiently established to have gained general acceptance in the particular field in which it belongs. Frye v. United States, 293 F.1013 (D.C. Cir. 1923) Challenges to Experts: NEW RULES OF EVIDENCE: ILLINOIS REMAINS A FRYE STATE Ill. Rule of Evidence 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs. CBA21 9

23 Challenges to Experts: Daubert/Frye Hearing Inform the court at earliest opportunity that you want a Daubert/Frye hearing. If motion is granted, your client may be entitled to summary judgment. Hearing options: Evidentiary hearing in advance of trial. Hearing on papers only (deposition testimony and affidavits). Submission of your own expert opinions is optional. Relevance Challenges to Experts: Other Bases to Challenge Conflict of Interest or Violation of Confidential Obligation Failure to Disclose Expert or Opinions The Expert at Trial Use an expert when you need expertise, i.e., when something is truly beyond the knowledge of a jury. E.g., loss profit models, medical causation. CBA22 10

24 The Expert at Trial FRE 703. Bases of Opinion Testimony by Experts The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert s opinion substantially outweighs their prejudicial effect. The Expert at Trial FRE 705. Disclosure of Facts or Data Underlying Expert Opinion The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on crossexamination. Use expert to tell your fact story. The Expert at Trial: Your Case Expert witnesses are often much more critical to the case than the fact witnesses. If the case is complicated and/or the factual history is lengthy, an expert can coherently pull together a large part of your case. If the fact witnesses are missing, the expert may be able to fill in the gaps. CBA23 11

25 The Expert at Trial Through expert introduce evidence that is typically inadmissible. If evidence is something that expert typically relies upon, he can rely upon it to form his opinion and testify about it in court. See, e.g., FRE 703. The Expert at Trial: Cross Examination Get the bases before the deposition Use your own experts to analyze data Drill down into details of studies or facts Read the expert s publications and testimony Don t be intimidated by the expert CBA24 12

26 9/19/2012 New Illinois Rules of Evidence Erin R. Schrantz Ryan K. Harding The New Rules Supreme Court Committee created and charged with codifying laws of evidence Why? Rules of evidence scattered among statutes and common law New Rules Effective January 1, 2011 What The New Illinois Rules Are NOT: The IL Rules are not a wholesale adoption of the FRE The IL Rules do not resolve all issues and conflicts.... CBA25 1

27 9/19/2012 What The New Rules Do Achieve: 1. Codification: Codify clear Illinois principles of evidence 2. Modernization: Adopt non-controversial developments in evidentiary i law 3. Recommended Changes: (i) evidentiary principle not adequately addressed by prior IL law or (ii) prior IL law not reflect current policy Rule 404. Character Evidence New Rule consistent with prior Ill. law Also largely consistent with federal rule of evidence ( FRE ) Both bar character evidence to prove action in conformity therewith New Rule and FRE differ in exceptions: New Rule excludes FRE exception providing that if accused offers evidence of character trait of victim, prosecution may offer evidence of same character trait of accused New Rule allows victim s character for peacefulness (to rebut that victim was first aggressor) to be admitted in homicide and battery cases; FRE allows in homicide cases only. New Rule and FRE make circumstances in which victim s character can be admitted subject to different bodies of law (Rule 412 vs. Ill. Rape Shield Statute) Rule 404. Continued New Rule and FRE bar admission of other crimes, wrongs, or acts to prove character in order to show action in conformity therewith, but allow such evidence for other purposes However, New Rule allows such evidence to extent permitted under referenced Ill. statutes; No such allowance under FRE New Rule also has broader disclosure requirement for prosecution than FRE CBA26 2

28 9/19/2012 Rule 405. Proving Character Major change from prior Ill. law Prior Ill. law allowed only reputation testimony to prove character New Rule adds Opinion testimony as means for proving character New Rule now largely consistent with FRE Both allow character to be proved with reputation and opinion testimony Both allow proof of character by specific instances IF character is essential element of claim, charge, defense New Rule and FRE differ in scope of inquiry into specific instances of conduct New Rule permits inquiry into specific instances of victim s prior violent conduct when defendant raises self-defense in criminal homicide/battery cases and conflict as to whether victim was first aggressor FRE permits inquiry into relevant instances of conduct on cross Rule 608. Evidence of Character of Witness New Rule also adds OPINION evidence as a means for attacking or supporting the character of a witness Like FRE, the evidence must refer to witness s character for truthfulness or untruthfulness And evidence of truthful character is only admissible after that trait has been attacked Rule 608. Continued Key distinctions between New Rule and FRE At court s discretion, FRE permits inquiry into specific instances of conduct on cross regarding witness s character for truthfulness But FRE bars use of extrinsic evidence to prove specific instances of conduct to attack or support a witness s character for truthfulness (other than conviction of crime) New Rule omits any reference to use of specific instances of conduct CBA27 3

29 9/19/2012 Rule 406. Habit; Routine Practice New Rule and FRE are identical Both provide that habit evidence is relevant to prove that conduct on a particular occasion was in conformity therewith, regardless of presence of eyewitnesses Prior Ill. law Habit evidence admissible ONLY in absence of direct evidence After federal rule enacted, inconsistency across Ill. courts on whether habit evidence admissible where direct evidence available Rule 407. Subsequent Remedial Measures [Reserved] Committee s proposed rule is largely consistent with federal rule Both bar evidence of measures taken after an injury to prove culpable conduct Unlike federal rule, committee s proposed rule also seeks to bar evidence of measures taken after manufacture of a product but prior to an injury to prove culpable conduct Proposed rule has been reserved because point (2) above is subject of pending Ill. Sup. Ct case (Jablonski v. Ford Motor Co.) Court heard arguments on November 18, 2010 More to come Rule 408. Compromise And Offers To Compromise Under New Rule and FRE, statements made in course of settlement negotiations regarding claim are inadmissible to prove claim OR to impeach with prior inconsistent statement (may be admissible for other purposes) Unlike FRE, New Rule (1) makes bad faith permissible purpose and (2) expressly states that evidence otherwise discoverable is not barred Prior Ill. law allowed statements made in settlement negotiations to be admitted CBA28 4

30 9/19/2012 Rule 410. Inadmissibility Of Pleas, Plea Discussions, And Related Statements New Rule generally makes withdrawn guilty pleas, pleas of no contest, and statements made in course of plea discussions/proceedings inadmissible against defendant in criminal cases Consistent with prior Ill. law Two key distinctions with FRE: New Rule does not condition exclusion of certain statements on whether made to prosecutor New Rule makes statements inadmissible in criminal cases only Rule 607. Who May Impeach Under New Rule and FRE, any party may impeach New Rule unique in that party calling witness must show affirmative damage before it can impeach with prior inconsistent statement (unless statement admissible substantively) Example:DenialofpriorID Policy: Prevent admission of favorable statement Codifies prior Ill. law Rule 609. Impeachment By Evidence Of Conviction Of Crime Under New Rule, Witness may be impeached with prior conviction subject to Rule 403 Must be felony or crime of dishonesty Must be used within 10 yrs of prior conviction or release from confinement (whichever is later) Juvenile adjudications generally not admissible Prior Ill. law unclear whether juvenile adjudications could be used to impeach Juvenile Court Act appears to allow impeachment with juvenile adjudications New rule not intended to resolve issue People v. Villa may shed light CBA29 5

31 9/19/2012 Rule 609. Continued Key differences between New Rule and FRE New Rule uses same balancing test (Rule 403) regardless of witness FRE uses different balancing test depending on witness FRE limits juvenile adjudications exception to criminal cases; no such limitation under New Rule Rule 613. Prior Statements Of Witnesses Prior Ill. law required prior statement be shown to witness before questioning New Rule eliminates requirement Consistent with FRE Rule 702. Testimony By Experts The general acceptance Frye standard for new or novel methods or principles remains the law of the land. IRE 702: Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance.... Limited role of trial judge No Frye-plus-reliability standard CBA30 6

32 9/19/2012 IRE 702 Compared to Federal Rule 702 Federal Rule 702 and Daubert: Rejected the general acceptance standard as too rigid and austere FRE 702 Greater role for the trial judge as gatekeeper of admissible expert testimony Rule 703. Bases Of Opinion Testimony By Experts Consistent with FRE 703, Illinois Rule states that facts or data upon which an expert bases his or her opinion: (i) may be made known to the expert at or before the hearing; and (ii) need not be admissible in evidence IF the facts of a type reasonably relied upon by experts in that field. Illinois Rule does NOT include the last sentence of FRE 703: inadmissible facts or data shall not be disclosed to the jury unless the court determines their probative value outweighs their prejudicial effect. Why? Duplicative the Rule 403 standard which applies to all proffered evidence, including experts Rule 704. Opinion On Ultimate Issues Same language as FRE 704: Testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. One exception: Illinois Rule permits experts to opine on the mental state of criminal defendant; consistent with prior IL law Federal Rule rejects that approach Expert witnesses may not opine on whether a defendant in a criminal case had the requisite mental state constituting an element of a crime or defense. CBA31 7

33 9/19/2012 Rule 801. Hearsay Defined Illinois Rule 801(c): Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Identical to FRE 801(c) Definitions of Statement and Declarant are also identical to FRE 801(a) and (b) 801(d). Non-Hearsay: Prior Inconsistent Statements FRE 801(d)(1): A statement is not hearsay if: the declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is inconsistent with the declarant s testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition Illinois Rule 801(d)(1): Substantively the same as Federal Rule, but applies only to criminal cases Difference is consistent with prior IL law (codifies 725 ILCS 5/ of Criminal Code) IRE 801(d)(1)(A) 801(d)(1)(A) language reflects statutory scheme of IL Criminal Code To be admissible as substantive evidence, the prior inconsistent statement must be based on declarant s personal knowledge, and (a) statement is proved to have been written or signed by declarant, OR (b) declarant acknowledged under oath making the statement, OR (c) the statement was accurately recorded. CBA32 8

34 9/19/2012 FRE 801(d)(1)(B). Prior Consistent Statement FRE 801(d)(1)(B) provides that a statement is not hearsay if the prior statement is consistent with the declarant s testimony and is offered to rebut a charge of recent fabrication, improper influence or motive. E.g. Becky testifies that she saw Tom hit Jack first in the bar brawl.... Illinois Rules did NOT adopt this provision Under Illinois common law (People v. Walker, 211 Ill. 2d 317, 344), prior consistent statements like this are admissible only for corroborative value not admissible as substantive non-hearsay evidence. 801(d)(2). Admission by Party Opponent Both IRE and FRE provide that a statement is non-hearsay if the statement is offered against a party and is: (A) the party s own statement, or (B) a statement adopted by the party, or (C) (D) (E) a statement by a person authorized by the party to make the statement, or a statement by the party s agent within scope of agency, or a statement by a coconspirator of a party during course of or in furtherance of the conspiracy 2 Differences between IRE and FRE 801(d)(2) IRE adds another category: (F) a statement by a person, or a person on behalf of any entity, in privity with the party or jointly interested with the party. Represents a codification of IL law IRE deletes requirement in FRE that the contents of the statement shall be considered but are not alone sufficient to establish the declarant s authority in (C), agency in (D), or a conspiracy in (E) Illinois common law requires evidence independent of the statement to prove the existence of these relationships IRE is consistent with the common law and reflects stricter foundation requirement than the FRE counterpart CBA33 9

35 9/19/2012 Rule 803(1). Present Sense Impression Exception Federal Rule 803(1): A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter is not excluded by the hearsay rule. E.g. I saw that car run the red light and hit the pedestrian... IRE 803(1) is Reserved because Illinois common law does not recognize the present sense impression as an exception to the hearsay rule. Rule 803(3). State of Mind Hearsay Exception One instance where Committee specifically recommended, and IL Supreme Court approved, a change to IL evidence law Under common law, IL courts imposed 2 unique requirements for state of mind evidence: (1) declarant is unavailable to testify, and (2) the trial court must find that there is a reasonable probability that the statement is truthful New IRE 803(3) eliminates those requirements and is now substantively the same as Federal Rule 803(3) Illinois Rule 803(3) now expressly states what is implicit in the Federal counterpart: A statement of the declarant s then existing state of mind cannot be used to prove the state of mind of another declarant. Rule 803(4). Statements For Purposes of Medical Diagnosis or Treatment Both IRE and FRE 803(4) provide a hearsay exception for statements made for purposes of medical diagnosis or treatment, and describing medical history, symptoms, or the cause of them. Key Differences: IRE 803(4)(A) makes clear that statements made to a doctor consulted solely for the purpose of preparing for litigation or to obtain trial testimony are not within the exception IRE 803(4)(B) codifies rule related to specific sex offenses case law suggests that statements made to physicians in these cases may be within the exception even if the statement is not purely made to obtain medical treatment CBA34 10

36 9/19/2012 Rule 803(6) and 803(8). Business and Public Records IRE 803(6) provides that records made by a person with knowledge and kept in the course of a regularly conducted business activity not excluded by the hearsay rule. Makes a structural change to prior Illinois common law by eliminating civil / criminal division and instead divides among topic like Federal Rules: 803(6) business records 803(8) public records Substantively same as FRE with two exceptions rooted in common law: (i) excludes medical records in criminal cases and (ii) excludes police accident reports Rule 803(16). Statements in Ancient Documents IRE recognizes an exception for statements in a document in existence 20 years or more the authenticity of which is established. Now identical to FRE 803(16), but modernizes common law requirement that: ancient documents be 30 years old, and and pertain to real property Rule 803(18). Learned Treatises RESERVED Federal Rule recognizes hearsay exception for statements contained in published treatises, etc. -- established as a reliable authority -- when those statements are relied upon by an expert or used to cross-examine an expert. Illinois law does not recognize a hearsay exception for learned treatises Illinois Rules do NOT include this exception but have Reserved this Rule number. CBA35 11

37 9/19/2012 Rule 804. Hearsay Exceptions When Declarant is Unavailable IRE 804 enumerates exceptions to the hearsay rule when a declarant is unavailable : former testimony statements under belief of impending death statements against interest statements of personal or family history forfeiture by wrongdoing Definition of unavailable is same for Illinois Rule 804(a) as the Federal Rule Rule 804. Hearsay Exceptions for Unavailable Declarant Key Differences between IRE and FRE: (1) Illinois criminal code recognizes a number of additional hearsay exceptions that are not reflected in the new IRE 804(b); it is not clear whether the courts will continue to apply these exceptions (2) IRE 804(b)(1) (Former Testimony) differentiates between evidence and discovery depositions; former testimony in discovery deposition only admissible under this rule in very limited circumstances (See IL S. Ct. Rule 212(a)(5) (3) IRE 804(b)(2) (Dying Declaration) only recognizes the exception in homicide cases; federal rule is not so limited (4) IRE 804(b)(3) (Statement Against Interest) -- a statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless it passes trustworthiness requirement. The 1000s. Content of Writings, Etc. Rules are substantially identical to prior Illinois law and federal law except as noted below. Rule Admissibility of Other Evidence of Contents. No longer have degrees of secondary evidence IRE 1004 does away with common law rule that a party offering secondary evidence show it used reasonable efforts beyond available judicial process to obtain originals possessed by third parties. Rule Testimony or Written Admission of a Party Identical to FRE: Provides that testimony or written admission may be used to prove the contents of a document. Prior Illinois law did not recognize this rule. IRE 1007 modernizes Illinois law to be consistent with other jurisdictions. CBA36 12

38 9/19/2012 Things to Keep in Mind.... To the extent a statutory rule is not reflected in the New Rules, that does not mean the New Rules supersede or abrogate it. (See IRE 101) FRE 502 Equivalent? Cook County Hearsay Rule Resources: Illinois Supreme Court s website: ( Illinois Supreme Court Committee Commentary on the New Rules The Illinois Rules of Evidence: A Color-Coded Guide Containing the New Rules, by Gino L. DiVito, Member, Special Supreme Court Committee on Illinois Evidence CBA37 13

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40 HOW DO I GET THIS THING INTO EVIDENCE? Terri L. Mascherin Exhibit is relevant Qualifying witness is competent Exhibit is authenticated Qualifying witness is competent Witness has first hand knowledge of exhibit because he or she saw the exhibit or knows the facts underlying the exhibit Need not be author or recipient Take into account who will be the most effective witness to introduce the exhibit, and how it will fit into your direct examinations. CBA39 1

41 Exhibit is authenticated FRE 901: Satisfied by evidence sufficient to support a finding that the exhibit is what its proponent claims. FRE 902: Some exhibits are self-authenticating: (1) domestic public documents under seal (patents, deeds); (2) domestic public records not under seal but certified by a public officer; (3) certified foreign public records; (4) certified copies of records required by law to be filed or recorded; (5) official publications; (6) newspapers and periodicals; (7) trade inscriptions (tags, labels); (8) acknowledged documents (notarized documents, like a will); (9) commercial paper; and (10) anything else Congress provides by legislation. Putting a Letter into Evidence Letter is relevant Witness wrote the letter or caused it to be created Witness saw the final version of the letter Witness signed the letter Original letter was placed in a properly addressed and post-marked envelope, bearing a proper return address Envelope was put in the mail (or given to a courier service, or sent via fax to a number known to be the recipient's) If a copy is being offered, the copy is a true and accurate copy of the original. Original letter and envelope were never returned to sender. CBA40 2

42 is relevant Putting an in Evidence Witness typed the (or received it) Witness addressed to recipient s address (or received an with party s address as sender) Witness sent was not returned as undeliverable (or other proof of receipt) Copy of was kept (either on paper or electronically) Copy is a true and accurate copy of what was sent (or received) CBA41 3

43 Putting a Signed Instrument in Evidence Document is relevant Document bears a signature (or is handwritten) Signature is that of the party or his/her/its agent Document is in the same condition now as when it was executed Putting a Business Record in Evidence (FRE 803(6)) Witness is the custodian or other qualified witness anyone with sufficient knowledge about the record and the business's record-keeping practices Record is a memorandum, report, record or data compilation in any form Record was made by a person with knowledge of the facts or was made from information transmitted by a person with knowledge of the facts Record was made at or near the time of the acts, events, conditions, opinions or diagnoses appearing on it (for computer records, establish that data was entered at or near the time) Record was made as part of the regular practice of that business activity Record was kept in the course of regularly conducted business activity. CBA42 4

44 Putting a Summary of Voluminous Documents in Evidence (FRE 1006) Underlying records or sources of data are voluminous Underlying records or sources have been made available to the other side for inspection in advance of trial. Putting in Evidence a Summary of Evidence Produced at Trial Witness is familiar with all evidence that is summarized in chart (typically, an expert). Relate each fact on the summary to testimony or documents already in evidence. CBA43 5

45 Putting Real Evidence into Evidence Exhibit is relevant Witness recognizes exhibit Witness knows what the exhibit looked like on the relevant date. Exhibit is in the same condition or substantially the same condition now as when the witness saw it on the relevant date. CBA44 6

46 When Real Evidence Cannot be Positively Identified Show that the exhibit has been in one or more person's continuous, exclusive and secure possession, or Show that the exhibit was in a uniquely marked, sealed, tamper-proof container at all times May require more than one witness Putting a Photograph Into Evidence Photograph is relevant Witness is familiar with object or scene photographed h at relevant date (and time, if necessary) Photograph fairly and accurately depicts the scene (or object) as it appeared at that time. CBA45 7

47 Putting a Map or Diagram into Evidence Exhibit is relevant Witness is familiar with the scene or object represented by the exhibit at the relevant date (and time, if important) Exhibit is useful in helping the witness explain his/her testimony Exhibit is reasonably accurate or to scale. Introducing a Demonstrative Exhibit Prepared by witness or at his or her direction Information depicted on the exhibit is accurate Exhibit would assist the witness in explaining his or her testimony CBA46 8

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