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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
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?
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
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
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
- 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
summary chart factors
- 1. length of trial
- 2. complexity of the case
- 3. number of exhibits and W
leading question close case factors
- 1. context in which the question is asked
- 2. tone of voice employed
- 3. body language/conduct of L
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
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
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?
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
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?
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
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?
habit v. non-habit factors
- 1. frequency of the given behavior
- 2. regularity of the behavior
- 1. perception
- 2. memory
- 3. sincerity
- 4. narration
safeguards to minimize testimonial infirmities
- 1. oath
- 2. demeanor
- 3. cross-examination
- 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?
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
- 1. which party is offering the statement?
- 2. how is the statement relevant to that party's case?
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
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
prior witness statement requirements (801(d)(1))
- 1. D must testify
- 2. D must be subject to cross concerning the prior statement
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
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
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
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
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
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
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
- 1. must be a statement of D's condition
- 2. conduct sought to be proven by the statement must be relevant
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
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
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
laying the foundation for records of regularly conducted activity - 803(6)
- - custodian
- - qualified witness
- - certification IAW FRE 902(11), 902(12), or other statute
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
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
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
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
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
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
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
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
residual exception requirements - 807
- 1. reliability
- 2. materiality
- 3. probative value
- 4. interests of justice
- 5. notice
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
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
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
CC and Crawford v. Washington --> testimonal hearsay offered against criminal D is admissible if:
1. the declarant testifies at trial
- 1. declarant is unavailable
- 2. D had prior opportunity to cross examine the declarant
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
effect of erroneous rulings elements - 103(a)
- 1. error
- 2. affecting a substantial right of the party
- 3. timely objection or offer of proof
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
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
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
Lack of Personal Knowledge elements - 602
- 1. perception
- 2. comprehension
- 3. recollection
- 4. communication
personal knowledge inquiry - 602
- 1. personal knowledge as to what?
- 2. relevance of that "what" to the case?
- 3. excluded by any other rules?
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?
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
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
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
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
judicial notice "kinds of fact" test - FRE 201(b)
- 1. indisputability
- 2. fact is generally known or verifable
getting facts to the jury
- 1. testimony
- 2. real evidence
- 3. demonstrative evidence
- 4. demeanor evidence
- 5. stipulations
- 6. judicial notice
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
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
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
- 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?