Evidence IV

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  1. 701--Lay Witness Opinion
    701. Non-Technical Opinions:

    • 1)  Rationally based on W's perception;
    • 2) Helpful to the jury's understanding the testimony or a fact in issue;
    • 3) Not technical/specialized knowledge. (even experts can have lay opinions)

    701= Lay Opinions.
  2. 702--Expert Testimony
    702. Qualified expert W may testify in the form of an opinion if:

    1) Helpful to trier of fact (understand evidence or det.some fact)

    2) Based on Sufficient facts/data;

    3) the Product of Reliable principles & methods (daubert hearing)

    4) Reliably applied principles/methods to facts of the case.

    *expert--anyone who specializes, understands, by skill, experience or training..etc..* qualify by foundation; stipulation; judicial notice.

    *reliable Methods/Principles: (1) tested? (2) peer reviewed; (3) known error rate: (4) relevant community acceptance?(5)formulated w/an eye toward litigation?

    702--Expert Witness
  3. 702. Qualifying an Expert W
    1) Foundation (through a series of qs) + Voir Dire by opponent + Impermetur (judicial finding)

    2) Stipulation (if both parties agree)

    3) Judicial Notice (generally known in jx. or accurately and readily determined by sources cant be reasonably questioned.). [R. 201 ]
  4. 703. Basis of Expert Testimony.
    1) Personal Knowledge, or made aware of; (any fcts/data);

    2) relevant field experts would rely on same fcts/data to form opinion;

    3) if facts/data is inadmissibleproponent may disclose ONLY if Probative value of helping jury evaluate experts' opinion Substantially Outweighs Prejudicial Effect.

    4) Opponent (R.705) can always force disclosure.

    703-Basis of Opinion (experts)
  5. 704--Ultimate Issue Opinion
    • Opinion on ultimate issue is okay, Unless:
    • --no legal conclusions or No Legal jargon.

    • If Criminal Case +
    • Expert W+
    • Mental State/Condition is element of charged offense+
    • = Must not state opine on whether Δ did or did not have the state/or condition.

    704--Ultimate Issue Opinion.
  6. 705--Disclosure of Basis of Expert's Opinion
    1) Exp. may Opine, w/out disclosing basis; [unless CT]

    2)Cross → can force disclosure.

    705--Disclosure of Basis.
  7. 901--Authenticating of Evidence
    901(a)= Proponent MUST offer sufficient evidence supporting finding evidence is what he claims; [prima facie ]

    *parties can always stipulate.

    901(b)(1)--Testimony of W w/Knowledge

    • --chain of custody relevant if evidence is fungible (nt unique)(even if problem w/chain, still admitted if no signs of tampering]
    • --Photo/video = any W/ familar enough w/underlying scene + accurately portrays scene at relevant time.

    • 901(b)(2)--Lay Opinion of Handwriting
    • *Lay W familiar w/handwriting before Litigation. [must]

    • 901(b)(3)--Comparison (expert or trier of fact)
    • *w/verified sample.

    • 901(b)(4)--Distinctiveness + Circumstances;
    • --response letter that references the original sender's letter...example,

    • 901(b)(5)--Opinion about Voice
    • *any W.
    • *regardless of how/when the W became familiar w/the voice.

    901. Authenticating Evidence
  8. 902. Self-Authenticating Evidence
    902(1)--Signed+ Sealed + Government Docs.

    902(2)--Signed + Certified + Public Office record.

    902(3)--Public Foreign Docs + Foreign official Signed + Consular Certified.

    902(4)--Certified copy of any official record.

    902(5)--Official Publications by Public office (driver's handbook).


    902(7)--Trademarks/signs/labels + fixed in course of business + indicating ownership/control.

    902(11)-- Business Record (regularly kept+ regularly recorded activity+ made at or near the time by insider).

    • 902(12)--Certified + Foreign record of + Regularly Conducted Activity.
    • *Only in Civil Cases;
    • *Only if signing falsely if foreign country subjects signer to criminal penalty.
  9. Certification + Hearsay + 6th Amendment.
    Hearsay must be authenticated + satisfy a hearsay objection + and if testimonial in nature → declarant must be subject to cross.
  10. 1002--Best Evidence Rule
    • Original (writing/ recording/ photo ) is required+
    • to prove its content. (purpose).
    • *unless exception applies.
    • 1003--Duplicates;
    • 1004--Other Evidence;
    • 1005--Public Records;
    • 1006--Summary;
    • 1007--Party's own Statement against him

    1002--Original Required to prove Content.
  11. 1001--Best Evidence Defined
    • Original = writing/recording itself OR counterpart intended to have same effect;
    • *if electronically stored info → any printout.
    • *photo/video = any print/negative/dvd.

    *Duplicate = counterpart + produced by mechanical process + accurately reproduces original. (no handwritten/handcopied copies).
  12. 1003--Duplicates Exception
    • A duplicate is admissible like an original, unless:
    • 1) original's authenticity is genuinely questionable;
    • 2) circumstances make admission of duplicate unfair.

    1003--Duplicates Exception to Best Evidence Rule.
  13. 1004--Other Evidence (testimony/hand copy) Exceptions
    Original is not required & other evidence may be admissible if COURT determines (R. 1008) :

    1) Lost or Destroyed; (No proponent bad faith)

    2) No Judicial Process help; (in foreign jx)

    3) Opponent Control; (opponent controls+ has notice of its importance + refuses to produce);

    4) Collateral Issue. (minor circumstantial or impeachment issue).

    1004--Other Evidence Exception to best Evidence.
  14. 1005--Public Record Copy proves Content
    • Copy +
    • Official Public Record +
    • Certified, or testified to be correct by W who compared it to original.

    * Ct--determines if factual conditions are met. (r. 1008)

    1005--Public Record Copy
  15. 1006--Summaries to prove Content
    • Summary/Chart/calculation+
    • voluminous subject +
    • Must make available (originals or duplicates) to all parties+
    • Court can order production in court.

    1006--Summary exception to Best Evidence Rule.
  16. 1007--Party's Own Statement Against him (exception to best evidence rule)
    May prove content of writing/recording/photo by w/out the original if:

    • 1) Testimony/Deposition/Written Statement;
    • 2) of party against whom it's being offered.

    1007--party's own statement to prove content + if offered against him.
  17. 1008--Court & Jury Roles:
    Ct = decides if factual conditions are satisfied to admit "other evidence"

    • Jury determines whether:
    • 1) writing/recording/photo ever existed;
    • 2) one produced is an original;
    • 3) other evidence accurately reflects content.

    1008--Court/Jury Roles
  18. Best Evidence RoadMap
    1) Writings; Recordings; Photographs?

    • 2) Purpose Offered is to prove its Content?
    • [*this is broader than hearsay, which is offered to prove its content + truth of the content].

    • 3) Must Introduce O/G, unless:
    • 1003--Duplicates.
    • 1004--Other Evidence (if 1 of 4 circumstances occur)
    • 1005--Copy of Public Records
    • 1006--Summary
    • 1007--Testimony or Statement of Party
  19. Presumptions
    Permissive--allow juries to infer one fact fomr another + comes w/ jury instruction. ("may" language by the judge only).

    • Mandatory (rebuttable):
    • * Bubble Bursting (burden of Production)
    • -once P introduces evidence as to each element of his claim = D must introduce ANY contrary evidence.

    * ONLY in Civil Cases.
  20. 606(b)--Inquiry into validity of Verdict/Indictment
    • 1) Once Verdict/Indictment is handed down →
    • 2) Prohibited:
    •        * Testimony of Matters that Inhere in the Jury Room:
    •        * Affidavits; nor other Evidence.
    • a) statement/incident in the jury room;
    • b)effect of anything on his or norther's vote;
    • c)any juror's mental process.

    • Exceptions:
    • * Non-Jury persons can testify.
    • * Extraneous prejudicial information + improperly brought to jury's attention
    • * Improper Outside influence on any juror;
    • --originates outside the jury room + can only ask to describe source not how it affected the juror's thought process.
    • * Mistake entering the verdict.
Card Set:
Evidence IV
2014-04-25 18:27:19
Evidence Law

Evidence IV
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