evidence factors

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stac8199
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79498
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evidence factors
Updated:
2011-04-13 22:28:06
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evidence
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rule factors/tests
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  1. gordon factors (FRE 609)
    • 1. impeachment value of prior crime
    • 2. recency/remoteness of prior offense
    • 3. extent/nature of the overall record
    • 4. similarity b/t past crime and charged offense
    • 5. importance of defendent's testimony
    • 6. centrality of the credibility issue
  2. FRE 609 Analysis
    • 1. who is the witness?
    • 2. what was the punishment for the offense?
    • 3. did offense involve dishonesty or false statements?
    • 4. when was the conviction or release from confinement?
    • 5. what balancing test, if any, applies?
  3. types of inconsistency
    • 1. direct inconsistency
    • 2. prior silence or less detailed prior statement
    • 3. prior claim of lack of memory
    • 4. current claim of lack of memory
    • 5. omissions of details previously related
  4. extrinsic evidence is substantively admissible if 3 conditions are met (FRE 801(d)(1)(A))
    • 1. D testifies at trial/hearing
    • 2. D is subject to cross concerning the statement
    • 3. inconsistent statement was made under oath subject to penalty of perjury at a trial, hearing, other proceeding, or deposition
  5. extrinsic evidence permissible to impeach:
    • 1. when the evidence is relevant to a material issue in the case
    • 2. to prove the W bias toward one of the litigants
    • 3. to rebut factual assertions made by W on direct
    • 4. to cure a W misleading statement as to the extent of his troubles with the law
  6. impeachment analysis
    • 1. What is the evidence?
    • 2. Is it offered to support the credibility of a W?
    • - If so, has credibility been attacked?
    • 3. Is it offered to impeach the credibility of W?
    • - if so determine the method of impeachment and ask if it is relevant and admissible under the rule governing this method
  7. summary chart factors
    • 1. length of trial
    • 2. complexity of the case
    • 3. number of exhibits and W
  8. leading question close case factors
    • 1. context in which the question is asked
    • 2. tone of voice employed
    • 3. body language/conduct of L
  9. 3 instances when leading questions are permissible on direct
    • 1. when W is unable to convey the info meaningfully in response to non-leading questions
    • 2. when questions relate to preliminary or other undisputed matters
    • 3. when the W is an adverse party, identified with an adverse party, or is hostile to the calling party
  10. subsequent remedial measures are admissible when offered to show/prove
    • 1. feasibility
    • 2. impeachment
    • 3. ownership or control
    • 4. to rebut a defensive theory based on the condition of the accident scene
    • 5. where the D has destroyed the relevant object, allegedly as a remedial measure
  11. FRE 408 analysis - compromise and offers to compromise
    • 1. is there a claim?
    • 2. was the claim disputed as to validity or amount?
    • 3. what is the evidence offered to prove?
    • 4. statement or conduct?
    • 5. made in compromise negotiations?
  12. FRE 410 does not protect:
    • 1. statements to police
    • 2. statements made after plea has been finalized
    • 3. statement made w/o intent to negotiate a plea
    • 4. statements made during negotiations that result in final plea of guilty
  13. character evidence analysis
    • 1. what is the item of evidence?
    • a) opinion as to character trait?
    • b) reputation of character trait?
    • c) specific acts?
    • 2. what is it offered to prove?
    • a) essential element of the charge, claim or defense?
    • b) propensity to behave in a certain way?
    • c) non-propensity use?
    • 3. is it relevant for that purpose?
    • 4. if offered to prove conforming conduct, is it:
    • a) character of the accused offered by accused?
    • b) character of the victim offered by the accused?
    • c) character of truthfulness of witness?
    • 5. If it isn't character evidence, is it:
    • a) evidence of other crimes, wrongs or acts offered to prove a fact other than character?
    • b) evidence of a habit?
    • c) evidence of similar events?
  14. FRE 403 balancing test regarding 404(b)
    • 1. strength of the evidence of other crime
    • 2. need for the evidence
    • 3. proximity in time of the other crime
    • 4. degree of similarity of the other crime
    • 5. efficacy of the limiting instruction
  15. 5 step inquiry for determining admissibility of uncharged misconduct evidence
    • 1. offered for proper purpose
    • 2. relevant to prove FRE 404(b) fact in question
    • 3. PV not << PE
    • 4. can jury understand and follow the limiting instruction
    • 5. has the proponent offered ESSF by jury by PoE the "bad act" did occur and D was involved?
  16. habit v. non-habit factors
    • 1. frequency of the given behavior
    • 2. regularity of the behavior
  17. testimonial infirmities
    • 1. perception
    • 2. memory
    • 3. sincerity
    • 4. narration
  18. safeguards to minimize testimonial infirmities
    • 1. oath
    • 2. demeanor
    • 3. cross-examination
  19. recognizing hearsay
    • 1. is there a statement?
    • 2. who is the declarant?
    • 3. where was the statement made?
    • 4. why is it offered (to prove TOMA or some other purpose)?
    • 5. even if it is hearsay, is there an exception or exemption that applies?
  20. elements of hearsay
    • 1. statement
    • 2. of the declarant
    • 3. made other than while testifying at the trial or hearing
    • 4. offered to prove the TOMA
  21. TOMA determination
    • 1. which party is offering the statement?
    • 2. how is the statement relevant to that party's case?
  22. utterances and conduct which are not hearsay
    • 1. words of indpt legal significance or "verbal acts"
    • 2. value of the evidence derives from the fact that the words were spoken, not from the TOMA
    • 3. offered to show their effect on the listener
    • 4. circumstantial evidence of the D's then existing state of mind
    • 5. words/conduct aren't assertive or are assertive of something other than what they are offered to prove
  23. elements of co-conspirator statements
    • 1. conspiracy existed
    • 2. D was member of the conspiracy
    • 3. person against whom the statement is offered was a member of the conspiracy
    • 4. statement made during pendancy of conspiracy
    • 5. statement furthered the goals of the conspiracy
  24. prior witness statement requirements (801(d)(1))
    • 1. D must testify
    • 2. D must be subject to cross concerning the prior statement
  25. prior inconsistent statement requirements (801(d)(1)(A))
    • 1. statement inconsistent with W testimony at trial
    • 2. statement given under oath at a trial, hearing, other proceeding, or deposition
  26. prior consistent statement requirements (801(d)(1)(B)
    • 1. statement consistent with W testimony at trial
    • 2. offered to rebut an express or implied charge of recent fabrication or improper influence/motive
    • 3. statement made before the alleged fabrication or improper motive/influence arose
  27. statements of prior ID requirements (801(d)(1)(C))
    • 1. D must testify
    • 2. D must be subject to cross concerning the statement
    • 3. statement must be one of identification of a person made after perceiving the person
  28. present sense impression elements (803(1))
    • 1. event/condition must have occurred
    • 2. statement must describe that event/condition
    • 3. D made the statement while perceiving the event/condition or immediately thereafter
  29. Excited Utterance requirements (803(2))
    • 1. startling event or condition
    • 2. statement relates to that event/condition
    • 3. D was under stress of excitement caused by event/condition when made the statement
  30. time period of stress factors for excited utterance
    • 1. lapse of time b/t event and declaration
    • 2. age of the D
    • 3. physical and mental state of D
    • 4. characteristics of the event
    • 5. subject matter of the statements
  31. 4 categories of statement covered by 803(3)
    • 1. statements of present bodily condition
    • 2. statements of present state of mind/emotion offered to prove a state of mind/emotion of D that is in issue in the case
    • 3. statements of then present state of mind offered to prove subsequent conduct of D in accordance with the state of mind
    • 4. state of mind statements of testators
  32. 803(3) requirements
    • 1. must be a statement of D's condition
    • 2. conduct sought to be proven by the statement must be relevant
  33. 803(4) foundation - medical diagnosis and treatment
    • 1. made for purposes of medical diagnosis or treatment
    • 2. describing medical history, past or present symptoms, pain, sensation, cause, or source
    • 3. reasonably pertinent to diagnosis or treatment
  34. recorded recollection requirements - 803(5)
    • 1. W had knowledge in the past
    • 2. present knowledge is insufficient to permit the W to testify accurately and fully
    • 3. memo/record made or adopted while the matter was fresh in W memory
    • 4. memo/record accurately reflects the W prior knowledge
  35. records of regularly conducted activity foundation - 803(6)
    • 1. memo, record, report, or data compilation
    • 2. of acts, events, conditions, opinions, or diagnoses
    • 3. made at or near the time of events recorded
    • 4. by or from a person with knowledge
  36. laying the foundation for records of regularly conducted activity - 803(6)
    • - custodian
    • - qualified witness
    • - certification IAW FRE 902(11), 902(12), or other statute
  37. when D is unavailable - 804(a)
    • 1 claim of privilege
    • 2. refusal to testify
    • 3. lack of memory
    • 4. death or physical/mental infirmity
    • 5. absent and unable to locate
  38. physical/mental infirmity issues - 804(a)(4)
    • 1. how important is the testimony?
    • 2. how long will the D be unavailable?
    • 3. are there ways to get the testimony short of calling the W to the courthouse?
    • judge has wide discretion
  39. formal testimony foundational requirements - 804(b)(1)
    • 1. unavailable under 804(a)
    • 2. D must have testified as W at another trial, hearing, other proceeding, or deposition
    • 3. criminal case?
    • a) opportunity to develop testimony by direct, cross, or redirect; AND
    • b) same or similar motive
    • c) by same party against whom offered
    • 4. civil case?
    • a) opportunity
    • b) same or similar motive
    • c) by party against whom offered or its predecessor in interest
  40. dying declaration foundation - 804(b)(2)
    • 1. D unavailable under 804(a)
    • 2. case is civil action or homicide prosecution
    • 3. statement made while D believed death was imminent
    • 4. statement must concern the cause or circumstances of what D believed was impending death
  41. statement against interest factors - 804(b)(3)
    • 1. timing of the statement and relationship b/t D and accused
    • 2. whether statement was made voluntarily after miranda warnings
    • 3. whether there is evidence that the statement was made in order to curry favor with authorities
    • 4. any apparent motive for the OoC D to misrepresent the matter
    • 5. general character of the speaker
    • 6. whether other ppl heard the OoC statement
    • 7. whether statement was made spontaneously
    • 8. availability of D as W
  42. statement against interest foundation - 804(b)(3)
    • 1. D unavailable pursuant to 804(a)
    • 2. when the statement made:
    • a) was contrary to D pecuniary interest?
    • b) was contrary to D proprietary interest?
    • c) rendered a claim D had against another invalid?
    • d) subjected D to criminal or civil liability?
    • 3. under circumstances a RPP wouldn't have made the statement w/o believing it was true
  43. forfeiture of wrongdoing foundation - 804(b)(6)
    • 1. a statement
    • 2. D must be unavailable
    • 3. party against whom statement is offered engaged or acqueisced in conduct that was wrongful
    • 4. wrongful conduct was intended to and did procure D unavailability

    • preponderance standard applies
    • need not be criminal
  44. factors bearing upon circumstantial evidence of trustworthiness (807)
    • 1. whether statement was made under oath
    • 2. whether it concerned matters w/in the D PK
    • 3. whether the D recanted the statement
    • 4. whether there is evidence that D is unreliable
    • 5. whether other evidence seriously undermines the content of the statement
  45. residual exception requirements - 807
    • 1. reliability
    • 2. materiality
    • 3. probative value
    • 4. interests of justice
    • 5. notice
  46. hearsay analysis in criminal cases
    • 1. is the statement hearsay?
    • - if not, admit
    • 2. if so, is there an exception?
    • - if no, exclude
    • 3. if so, is the statement testimonial?
    • - if not, admit
    • 4. if so, is the D subject to cross at trial?
    • - if so, admit
    • 5. if not, is there an exemption or exception?
    • - if so, admit
    • 6. if not, did the accused have an opportunity to cross when the statement was made?
    • - if so, admit
    • - if not, exclude
  47. nontestimonial statement (davis)
    • 1. made in the course of police investigation
    • 2. primary purpose of interrogation to enable police assistance to meet ongoing emergency
    • objective test
  48. testimonal statement (davis)
    • 1. no ongoing emergency
    • 2. primary purpose of interrogation is to establish/prove past events
    • 3. those events potentially relevant to later criminal prosecution

    objective test
  49. CC and Crawford v. Washington --> testimonal hearsay offered against criminal D is admissible if:
    1. the declarant testifies at trial

    or

    • 1. declarant is unavailable
    • 2. D had prior opportunity to cross examine the declarant
  50. if statement is testimonial, the CC excludes it UNLESS:
    • 1. offered for a non-hearsay purpose
    • 2. statement isn't hearsay under 801(d)(2)
    • 3. FRE 804(b)(2) or (6) applies
    • 4. D also testifies at trial
    • 5. D is unavailable and defendant had prior opportunity to cross examine D when statement was made
  51. effect of erroneous rulings elements - 103(a)
    • 1. error
    • 2. affecting a substantial right of the party
    • 3. timely objection or offer of proof
  52. effect of erroneous rulings factors - 103(a)
    • 1. whether erroneously admitted evidence was primary evidence relied on
    • 2. whether aggreived party was nonetheless able to present the substance of its claim
    • 3. existence and usefulness of curative jury instructions
    • 4. extent of jury argument based on tainted evidence
    • 5. whether erroneously admitted evidence was merely cumulative
    • 6. whether other evidence was overwhelming
  53. plain error elements - 103(d)
    • 1. an error
    • 2. clear and obvious under current law
    • 3. affects the defendant's substantial rights
    • 4. would seriously affect the fairness, integrity, or public reputation of judicial proceedings if left uncorrected
  54. 3 step process for appeal of evidence issues
    • 1. party must perserve the issue for appeal
    • 2. party must pursuade the appellate court that the trial court committed an error in the admission or exclusion of evidence
    • 3. party must convince the court that the error substantially affected a right of that party
  55. Lack of Personal Knowledge elements - 602
    • 1. perception
    • 2. comprehension
    • 3. recollection
    • 4. communication
  56. personal knowledge inquiry - 602
    • 1. personal knowledge as to what?
    • 2. relevance of that "what" to the case?
    • 3. excluded by any other rules?
  57. authentication/identification analysis - 901
    • 1. what does the proponent claim the evidence to be?
    • 2. is it relevant to the issue in question?
    • 3. what foundation is necessary?
    • 4. who would you call to lay the foundation?
    • 5. what questions would you ask?
  58. FRE 1002 Requirement of Original only applies when:
    • 1. a writing is itself the thing to be proved OR
    • 2. a party seeks to prove a matter by using a W as evidence of it
  59. scope of BER limited in 2 ways
    • 1. doesn't apply to evidence about tangible items other than writings, recordings, and photos
    • 2. doesn't apply to all evidence concerning writings, recordings, and photos...just to that evidence offered to prove the content of these
  60. admissibility of other evidence of contents permitted when (FRE 1004)
    • 1. original is lost or destroyed
    • 2. original not obtainable
    • 3. original in possession of opponent
    • 4. collateral matters
  61. 3 factors for determining collateralness (FRE 1004(4))
    • 1. centrality of the writing to the principal issues of the litigation
    • 2. complexity of the relevant features of the writings
    • 3. existence of a genuine dispute as to the contents of the writing
  62. judicial notice "kinds of fact" test - FRE 201(b)
    • 1. indisputability
    • 2. fact is generally known or verifable
  63. getting facts to the jury
    • 1. testimony
    • 2. real evidence
    • 3. demonstrative evidence
    • 4. demeanor evidence
    • 5. stipulations
    • 6. judicial notice
  64. relevance requirements - 401
    • 1. evidence must be probative of the proposition it is offered to prove; AND
    • 2. proposition to be proved must be one that is of consequence to the determination of the action
  65. general principles of relevance
    • 1. relational concept
    • 2. can't be regulated in detail
    • 3. turns on logic, NOT emotion
    • 4. tied up with the problem of evaluating circumstantial evidence
    • 5. relevant doesn't mean admissible
    • 6. relevance not destroyed by lack of disputed facts
  66. articulating relevancy...tell the court
    • 1. the item of evidence or testimony offered
    • 2. fact, issue, or conclusion this proof seeks to establish
    • 3. why that fact is of consequence to this action
    • 4. how the offered proof has any tendency to establish that fact
  67. relevancy analysis
    • 1. what is the item of evidence?
    • 2. what is the fact of consequence?
    • 3. how does that evidence have any tendency to prove the fact of consequence?

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