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Roles of Judge
- Trier of law.
- Gatekeeper of evidence
Role of the jury
- The trier of fact.
- Weight and credibility of evidence
Challenging an evidentiary ruling
- (1) the error affects a substantial right of the party and (2) the party notifies the judge of the error.
- Once objection, issue preserved on appeal.
Objection/Motion to strike
- When evidence comes in.
- Counsel provides specific grounds for the objection.
Offer of proof
- When evidence is excluded.
- To preserve on appeal, counsel must explain relevance and admissibility.
Plain error doctrine
- Failure to object not fatal to appeal
- (1) Error must be so obvious that objection is not necessary, and
- (2) a substantial right is affected.
Rule of Completeness
- Introduction of an omitted portion of the writing or statement based upon fairness.
- Opposing counsel can wait until cross to bring in the omitted portion.
- The courts acceptance of a fact as true without requiring formal proof.
- Must be adjudicative facts, not legislative facts.
- At the request of an attorney or sua sponte.
Facts not subject to reasonable dispute because accurate and readily determinable.
Procedure for judicial notice
- At any time during the trial or on appeal, except that a criminal defendant cannot request judicial notice for the first time on appeal.
- Must take judicial notice.
Opposing party and judicial notice
Right to object and be heard.
Effect of judicial notice - civil
Juries must accept the fact as true.
Effect of judicial notice - Criminal
Juries may choose to accept the fact as true.
Prosecution/plaintiff presents case, then defendant presents case, then plaintiff/prosecution gets rebuttal witnesses.
Can a court call its own witnesses or question witnesses?
Mode of Direct examination
- Must be relevant.
- Leading questions are forbidden unless foundational questions, witnesses with trouble communicating and hostile witnesses.
- MD: any relevant matters - very broad.
Mode of Cross-examination
- Limited to the scope of the direct examination, and the witness credibility (always at issue).
- May ask leading questions.
Suggest the answer in the question.
Require multiple answers - aren't allowed.
Questions that assume facts not in evidence
Intended to provoke an argument - not allowed
Questions that call for a conclusion or opinion that the witness is not qualified to give
Lay witness giving expert opinion. Not allowed.
Repetitive questions which have been asked and answered
Generally impermissible, but may be permitted by the court.
Witnesses shall be excluded or sequestered on motion of a party or sua sponte to prevent contamination.
Who can't be excluded from a trial?
A criminal party, an officer of corporation, an expert witness and victims may not be excluded.
Burden of production
A party has a burden to present enough evidence that a trier of could infer that each fact had been proved.
location, offense, venue, identification of defendant and date of alleged crime
Standard of proof - civil case
preponderance of the evidence, more likely than not, except for fraud, which is clear and convincing evidence.
Standard of proof - Criminal case
beyond a reasonable doubt.
- May be overcome if contrary evidence is presented.
- Shifts burden of production to opposing party, but not burden of persuasion.
May not be challenged.
- Relevant evidence is probative and material.
- Probative - tendency to make a fact more or less probable in the absence of that fact.
- Material - something of consequence in determining the action.
Sufficiency of Evidence
Evidence need not prove a single element but may build with other evidence to prove an element
- Relevant evidence excluded when:
- Probative value is substantially outweighed by the danger of
- (1) unfair prejudice,
- (2) confusion of issues,
- (3) misleading the jury,
- (4) undue delay or
- (5) needless presentation of cumulative evidence.
- Must be substantial.
Cure for admission of irrelevant evidence
To allow other irrelevant evidence to cure the prior evidence.
The proper foundation must be laid for relevant evidence, and failure to lay proper foundation may be objected to.
General information about a persons character is not admissible to prove conduct in conformity with that character.
Character Evidence - Civil case
- Character evidence allowable when:
- (1) character is an essential element of the claim or defense or
- (2) character is at issue.
Character Evidence - Criminal case
- The prosecution cannot introduce character evidence.
- The defendant may present positive character evidence to show that it is inconsistent with the type of crime being charged.
- Must be pertinent to the crime charged.
What type of character evidence can be introduced in criminal cases by the defendant?
- Reputation or opinion evidence which relates to the same character trait.
- Not specific conduct.
Opening the door
When defendant introduces evidence of his good character, prosecution may introduce evidence of the defendant's bad character
Character Evidence - the Victim
- Opinion or reputation evidence.
- Evidence of the victim's character that is relevant to one of the defenses asserted.
- Prosecution may offer good character evidence after attack, but not prior.
Character Evidence - Prior Bad Acts
- Prior bad acts not admissible to prove conduct conforming to the prior bad act.
- This is an act of specific conduct. It is permitted to prove MIMIC.
- Reasonable advanced notice must be given to the defendant of the intent to use at trial.
motive, intent, and absence of mistake, identity and common plan.
Prior Bad Acts - Civil cases
- Admissible as an element of a claim/defense.
- May be proven by reputation, opinion or specific instances of conduct.
Prior Bad Acts - Criminal cases
- When door is opened, or prior bad acts may be proven by reputation or opinion --- not specific acts of conduct
- May be proven by MIMIC.
- Prior bad acts may be used to cross examine a character witness.
- Acts of the person.
- Admissible to prove conduct in conformity on a particular occasion.
- Acts of an organization.
- Admissible to prove conduct in conformity on a particular occasion.
Competency of Witnesses
- Presumed competent unless proven otherwise.
- Competency is weight of the testimony, not the admissibility.
Presumed to be incompetent to testify.
A non-expert witness must have actual knowledge of their testimony, and may not speculate or hypothesize.
Witness must take an oath or affirmation.
Child as a witness
Court determines competency based upon intelligence, ability to distinguish between truth and falsehood and understanding the importance to tell the truth.
Dead man statute
- (1) a party that has a financial interest in a civil case is
- (2) prohibited from testifying about
- (3) a communication or transaction
- (4) with a dead person
- (5) whose estate is party to that suit and
- (6) the communication is adverse to the estate.
- Only if using state law.
MD Dead man's statute.
- Calling the witness' credibility into question.
- (1) bias
- (2) character for untruthfulness
- (3) inability to perceive what they are testifying about
- (4) prior inconsistent statements or
- (5) another contradictory witness or evidence.
- None in MD - may impeach your own witness.
- None in FRE.
Impeaching a Witness' Character for Truthfulness
Witness character for truthfulness can be impeached by reputation evidence, opinion or specific instances.
Allowed, but not before the witness has been attacked.
Extrinsic evidence of specific instances of untruthful conduct
- * Not admissible to attack a witness' truthfulness.
- * On cross, specific instances can be asked about when regarding the truthfulness of the witness or another witness who the first witness testifies about.
- * Lawyer must have a good-faith belief in the prior misconduct
- * Lawyer may not cross-examine about an arrest (the underlying conduct is fair game).
Convictions of Prior Crimes
Prior conviction of crime permitted to impeach a witness character for truthfulness.
Misdemeanors and felonies for crimes of dishonesty
- 10 year restriction
- WHEN WITNESS IS DF.
- MD is 15 years.
When prior conviction is related to the crime
- 10 year restriction
- WHEN WITNESS IS DF.
- MD is 15 years.
When witness is not the defendant
- Subject to Rule 403.
Conviction of Prior Crime more than 10/15 years
- Party seeking to introduce the evidence shows:
- (1) probative value substantially outweighs risk of unfair prejudice, and
- (2) reasonable notice is given.
A conviction is not...
- a pardon, annullment, later finding of innocence or rehabilitation.
- Pendency of appeal does not bar, but the pendency is also admissible.
MD: pendency of appeal
Prior conviction admissible.
How else might you get a prior conviction into evidence?
- Witness testimony
- Extrinsic evidence (record of conviction).
Impeachment through Prior Inconsistent Statements
- Permitted to do.
- Need not be sworn.
- Statement must be shown to opposing counsel, but not witness
Impeachment for Bias
- Bias always relevant.
- (1) relationship to the party or victim,
- (2) interest in outcome of case, and
- (3) witness has an interest in testifying.
Impeachment for Sensory Competence
A witness may be impeached by showing a witness has a deficiency to perceive, recall or relate information.
Impeachment of Hearsay Declarants
- May use any evidence which would have been admissible had the declarant testified.
- Applies similarly to a co-conspirator, agent or authorized spokesperson.
Rehabilitation of Witnesses
- A witness who has been impeached can be rehabilitated by explanation on redirect.
- Reputation evidence about truthfulness
- Opinion evidence about truthfulness
- Prior consistent statement
Impeachment of religious opinions or beliefs
Inadmissible to attack or support a witness credibility, but may be used to show bias or interest.
Impeachment by Contradictory evidence
A witness may be impeached by evidence which is contradictory to the witness testimony.
Impeachment re: Collateral Issues
Generally, one may not impeach the credibility of a witness by introducing extrinsic evidence on a collateral matter.
Present recollection refreshed
- A witness may examine any item to refresh the witness present recollection.
- A witness may not use the object or item while testifying, and the item is not introduced into evidence by examining counsel.
Opposing counsel's rights to present recollection refreshed
- Right to see and inspect the refreshing item
- Right to introduce the item into evidence.
- Struck in criminal cases if the prosecution does not present the item, and mistrial is declared.
Past Recollection Recorded
- A memorandum or record regarding a matter about which a witness once had knowledge but now has insufficient recollection upon which to testify.
- The recorded recollection may be admitted into evidence, but the witness may not testify about the recollection.
Opinion Testimony and Lay witnesses
Generally a witness may not testify about an opinion except where (1) common sense/rational (2) which is based upon perception and (3) helpful to clear the understanding of a fact at issue. May not be scientific, technical or specialized.
Expert Witness & Subject matter requirements
To testify, the court must find that the subject matter of the testimony is (1) reliable scientific, technical or specialized and (2) relevant will help the trier of fact understand evidence or a fact.
Qualification of Expert
- (1) witness is qualified by possessing knowledge, skill, experience, training or education,
- (2) the testimony is based on sufficient facts or date,
- (3) testimony is the product of reliable principles and methods the data need not be admissible to testify upon, and
- (4) witness applied those principles and methods to the facts of the case.
What can form the basis of the expert's opinion?
- Personal observations
- Data that was provided.
Expert Testimony and Frye: MD
Whether the process or technique is generally accepted within the relevant scientific community
What can an expert witness give an opinion on?
- Opinion on an ultimate issue, such as a state of mind
- No opinions about whether a criminal defendant had the requisite mental state to commit a crime.
Tangible evidence: Authentication
- Must be authenticated to show that it is the object that it claims to be.
- Personal knowledge can be used when a witness has familiarity with the object.
- Distinctive characteristics not common to other objects can be used.
Chain of custody
Authentication when a witness verifies the whereabouts from collection to trial.
Tangible evidence: Documentary Evidence
May be authenticated by (1) stipulation by the parties, (2) testimony of an eyewitness, or (3) handwriting verification.
Reply letter doctrine
- (1) written response to an original communication
- (2) which is unlikely to have been forged by another.
Tangible evidence: Handwriting verification
- (1) by comparison, where an expert witness or trier of fact compares the writing to another genuine writing, and
- (2) by a non-expert witness with personal knowledge of handwriting who recognizes the handwriting.
Tangible evidence: Self-authenticating documents
- Do not require extrinsic proof of authenticity.
- No attesting witness is generally required to authenticate.
MD: self-authenticating documents
- Certified copies of public records
- Business records kept in the ordinary course of business
- Chemist's analyses
- Health care records.
Tangible evidence: Oral Statements
Voice identification can be authenticated by (1) any person who has heard the voice at any time even if for the purpose of litigation regardless of the medium.
Telephone conversation Authentication
- (1) recognized the speakers voice,
- (2) speaker knew facts that only a particular person would have known,
- (3) caller dialed the number believed to be the speakers and the speaker identified himself upon answering
- (4) caller dialed a business number and spoke to the person about regular business.
Tangible evidence: Best Evidence Rule
- Original document is not required.
- Only when (1) genuine question of authenticity of the original arises or (2) where it is unfair to admit the duplicate (incomplete).
- Duplicate may be admissible when one party controlled the original document and failed to produce it.
Privileges: Confidential Communication
- Potential evidence which an individual has the right to hold the evidence secret and cannot be forced to provide the information.
- Must be confidential and will be destroyed if made in the presence of an unrelated third party.
Waiver of privilege
The holder of the privilege may waive the privilege by (1) failing to timely assert it, (2) voluntarily disclosing it or (3) by contract.
- Criminal case
- Spouse cannot be compelled to testify in criminal proceedings against the spouse.
- Majority - Witness spouse is privilege holder.
- Minority - Either spouse is privilege holder.
- Events prior to or during the marriage.
- Terminates upon end of marriage.
Spousal immunity - MD
- Witness spouse is privilege holder.
- Child/spousal abuse exception - if crime of child abuse or spousal abuse cannot be invoke more than once.
Confidential marital communications
- Communication made between spouses while they are married is privileged.
- Privilege is held by either spouse.
- Only applicable to communications during the marriage.
- Applies to both civil and criminal cases.
- Survives the end of the marriage.
When is confidential marital communication not invocable?
- One spouse sues the other
- One spouse is charged with a crime against the other
- One spouse is charged with a crime against the children of the other.
Attorney Client Privilege
- (1) a confidential (2) communication (3) made for the purpose of obtaining legal advice is privileged.
- Confidential intent to be confidential, third parties typically kill privilege.
- Underlying facts are not privileged, but the communication is what is privileged.
- Exceptions where privilege does not exist (1) communications which aided a crime/fraud, (2) dispute between attorney and client, (3) communications between co-clients of the same attorney who are now adverse.
In the event of inadvertent disclosure, there is no waiver of privilege if holder (1) took reasonable steps to prevent disclosure, and (2) took reasonable steps to rectify disclosure.
Physician Patient Privilege
- Communication made for purposes of obtaining medical treatment
- Patient is the holder of the privilege.
- Not privileged under federal or MD state law.
Psychotherapist Patient Privilege
- Communication made for purposes of obtaining mental health treatment.
- Made to psychiatrist, psychologist, licensed social worker.
- Federal and MD state law.
- Patient is the privilege holder.
When can't you invoke Psychotherapist/Patient Privilege?
- (1) patient's medical is at issue,
- (2) court ordered exam, or
- (3) criminal proceeding against the patient.
Privilege against Self-Incrimination
- 5th Amendment right not to testify
- Current testimony only
- Not physical characteristics (looks) or mannerisms (sound of voice).
- Corporations do not hold.
- No privilege if danger of incrimination has been removed.
Defendant's Failure to Take the Stand
- Criminal - prosecutor cannot comment or ask jury to draw inference.
- Civil - opposing counsel may comment and ask jury to draw inference.
Apply only the compelled statements
Clergy Penitent Privilege
- Communications made by congregant to a member of the clergy is privileged on two requirements:
- (1) Established church of any denomination
- (2) Person seeking spiritual advice or consolation
- The clergy member holds privilege.
Accountant Client Privilege
- May be recognized by state statute functions like A/C privilege.
- MD recognizes for all confidential communications except for those pertaining to bankruptcy and criminal proceedings.
Professional Journalist Privilege
No federal privilege; only available by state statute.
MD Professional Journalist Privilege
- Qualified privilege
- Overcome if shown by clear and convincing evidence that the evidence is:
- (1) relevant,
- (2) cannot be obtained through due diligence and
- (3) overriding interest in public disclosure.
- Against disclosing the identity of an informant in a criminal case
- Communication of official information by or to public officials.
- (1) mediation and
- (2) Union employee/representative provided communication was made during union representation.
Subsequent Remedial Measures
- Inadmissible to prove negligence, defect or culpable conduct.
- Admissible to show ownership/control or for impeachment.
Compromise Offers of Settlements
- Inadmissible to prove a disputed claim, an amount or for impeachment.
- Admissible if waived, to show bias, prejudice, obstruction or negate claim of delay.
Offers to Pay Medical Bills
- Inadmissible for prove liability for plaintiffs injuries.
- Any comment or statement accompanying the offer is admissible.
- Withdrawal of guilty pleas
- nolo contender pleas
- statements made while negotiating with the DA
- statements made in plea proceedings are not admissible
- Except where fairness dictates, perjury hearings or when the defendant knowing and voluntarily waives his right.
MD: are plea negotiations admissible?
May be admissible on appeal to circuit court from the district court.
- Evidence of insurance or lack of insurance is not admissible to prove negligence or wrongful conduct.
- It is admissible to show agency, ownership, control, or witness bias/prejudice.
A victim's sexual behavior or predisposition is not admissible in civil/criminal proceeding involving sexual misconduct either for impeachment or substantive purposes.
Rape Shield - criminal case
- To prove source of semen or source of injury, prove consent of victim or offered by prosecution.
- 14 days before trial, notice required to opposing party.
Rape Shield - civil case
- Only admissible if victim places it into controversy
- Sexual behavior is admissible if probative value substantially outweighs any unfair prejudice (burden on defendant).
- 14 days before trial, notice required to opposing party.
Defendants prior sexual conduct
- FRE: yes
- MD: no
- Admissible for sexual assault, rape or child molestation.
- Evidence may be used for propensity.
- 403 balance involved.
- Not limited to convictions permits for prior arrests or unreported incidents to be admitted.
- No time restriction - same 14 day pretrial notice.
An out of court statement that is offered to prove the truth of the matter asserted.
Statements that are not offered to prove the truth of the matter asserted are not hearsay
Questions aren't hearsay because
No matter is being asserted.
Legally operative facts aren't hearsay
- Statements offered to prove that the statement itself was made, regardless of truth.
- These include statements which show the effect on the listener, or to show the declarants mental state or state of mind.
Statements made to impeach aren't hearsay because...
Not offered for their truth, but to show inconsistency.
Hearsay: Prior Inconsistent Statements
- Prior inconsistent statements are not hearsay
- Always admissible to impeach.
- May be admitted as substantive evidence.
Prior inconsistent statements are admissible as substantive evidence when:
- *(1) previously made under penalty of perjury, and
- *(2) inconsistent with present testimony.
Prior consistent statements
- Only admissible to rebut a charge or claim that the declarant is fabricating or recent motive to fabricate the statement to the court.
- Admissible regardless whether under oath or not.
- Must have been said before declarant had reason to fabricate the statement.
Prior statements of identification
Prior statements of identification are admissible as substantive evidence.
- Prior out-of-court statement made by a party (or representative) to the current litigation that is offered by the opposing party against that party is not hearsay.
- Statement may be admitted even if not based on personal knowledge or within that partys normal scope of knowledge.
- Admissible if made during discovery, by stipulation or during a proceeding.
- May be amended.
Withdrawn guilty plea
A statement made by a third party that a person expressly or impliedly adopts as his own.
Adoption by Silence
Adopted if (1) party was present and understood statement, (2) party had ability and opportunity to deny it, and (3) a reasonable person similarly situated would have denied it.
803 Exceptions to Hearsay
Exceptions available regardless of availability of the declarant.
Present Sense Impression
- A statement describing or explaining an event or condition that is made while or immediately after the declarant perceived the event.
- Must be a description of the event.
- A statement made about a startling event or condition while the declarant is under the stress of excitement caused by the event.
- Must relate to the event, but can be a bystander.
Statements of mental, emotional or physical condition
- A statement of the declarants then existing state of mind, emotional, sensory or physical condition used to show the declarant acted in conformity therewith.
- State of mind: present intent, motive, plan
- Physical condition: to prove the condition existed, and not cause of condition.
Statements made for purposes of medical diagnosis or treatment
- Admissible and can include statements of past or present symptoms.
- May be admissible if it goes to cause of the injury.
- Focus on the purpose of the statement.
- Admissible evidence when (1) the record is made about a matter that the witness once knew about, (2) the record was made or adopted by the witness when the matter was fresh in her mind, (3) the record accurately reflected the witness knowledge, and (4) witness now cannot recall the events well enough to testify, even after consulting the writing while on the stand.
- Record is read into evidence, but may only be entered as an exhibit by the opposing party.
- Not excluded as hearsay if (1) record is kept in the course of regularly-conducted business activity, (2) making of the record was regular ractice, and (3) record was made by someone with knowledge at or near the time of the record. Must by authenticated by custodian, qualified witness or self-authentication.
- If lacking in trustworthiness, may be inadmissible look for records prepared in anticipation of litigation.
- Absence of a record may be admissible to prove that the event did not occur. Admissible if record is usually kept for that matter.
- Admissible when it is a record/statement of a public office/agency that sets out (1) duties of office or agency, (2) obeservations of a person who has a duty to report the observation, or (3) factual findings of a legal investigation in a civil case (or criminal case against the government).
- May be excluded if it is deemed untrustworthy.
- Absence of a record which is usually kept, absence is admissible to show that the matter did not occur.
Admissible if (1) expert relied on treatise during examination and (2) publication is established as a reliable authority by expert, another expert or by judicial notice. If admitted, statement is read into evidence.
Judgment of previous conviction: 803
Admissible if (1) judgment entered after trial or guilty plea (2) which is punishable by death or imprisonment greater than one year and (3) evidence is offered to prove any fact essential to sustain the judgment.
- Unavailable if declarant
- (1) testimony is privileged,
- (2) refuses to testify despite a court order,
- (3) lacks memory on the subject matter,
- (4) dead/sick/physical or mental disability, or
- (5) absent and cannot be made to appear.
- If witness is (1) unavailable to testify, (2) statement was given at previous hearing or deposition and (3) opposing party had opportunity and similar motive to develop testimony through examination.
- Grand jury testimony does not qualify.
Admissible if (1) unavailable, (2) declarant believed death was imminent when she made the statement and (3) statement pertains to the cause or circumstances of death.
Statement against interest
- Admissible if (1) unavailable, (2) statement is against the declarants self-interest and (3) reasonable person would not have made the statement unless he believed it to be true.
- Against self-interest exposes pecuniary or proprietary interest, or exposes the declarant to civil/criminal liability.
- If criminal liability, corroborating of trustworthiness is required.
Statement of Personal or Family History
Admissible evidence when the declarant is unavailable.
Declarant unavailable due to wrongdoing
- Statement offered against a party who is wrongfully responsible for the declarants unavailability is admissible.
- Act need not be criminal
- Must be deliberate and with intent to prevent witness from testifying.
Hearsay within Hearsay
Multiple layers of hearsay are admissible when all layers fall within a hearsay exception.
Constitutional Limitations on Hearsay - Confrontation Clause
Testimonial statement is admissible against a criminal defendant only if (1) declarant is unavailable and (2) defendant had the opportunity to cross-examine the declarant prior to trial.
- Testimonial statement is a statement made to police with the intention of aiding criminal prosecution.
- It is not a statement made to police with the purpose of enabling police to provide assistance to someone.
Unavailability, Hearsay and Criminal Cases
Unavailability must be due to defendant causing the unavailable with intent.
Constitutional Limitations on Hearsay - Face to Face Confrontation
Generally, face-to-face confrontation between defendant and witness required unless important public interest such as protecting a child.
MD: Admissibility of Traffic Tickets
Payment of the fine is a choice to exercise a statutory right to pay the fine without appearing in court and is not equivalent to a guilty plea and not an admission.
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