VI. HEARSAY (ART. VIII)
A. INTRO
1. Rationale
The reason for excluding hearsay is that the adverse party was denied the opportunity to cross-examine the declarant; i.e., the party had no chance to test the declarant’s perception, his memory, his sincerity, and his ability to relate.
a. Lack of cross-examination of declarant at time statement made
What matters is that a declarant was not subject to cross-examine by an opponent when he made the statement in issue. The declarant and witness can be the same person.
2. Procedural Issues
The trial judge decides the admissibility of hearsay evidence under FRE 104(a). See Bourjaily v United States, 483 U.S. 171 (1987). Failure to raise the hearsay objection in a timely manner is a waiver of the objection (FRE 103), and the evidence may be considered by the jury for whatever probative value the jury wishes to give it.
3. Constitutional issues
An exception to the hearsay rule does not by itself guarantee the statement will be admitted. It must still satisfy the other evidentiary limitations and exclusionary rules, including relevance, authentication, opinion, privilege, and the best evidence rule, to name a few. In criminal actions, hearsay must also pass 4th Amendment protections against unreasonable search and seizure, 5th Amendment limitations on self-incrimination, and the 6th Amendment right to confrontation and due process. (Laws of Evidence, p.360)
a. The Confrontation Clause of the 6th Amendment
“[I]n all criminal prosecutions, the accused shall enjoy the right to be confronted with witnesses against him.”
This Clause gives a criminal defendant the right to keep out of evidence certain out-of-court declarations, where the declarant is not available to be cross-examined in court. That is, the Clause allows a defendant to exclude a hearsay statement.
Admission of testimonial hearsay is barred unless the declarant is unavailable and the accused has had prior opportunity to cross-examine the declarant. See Crawford v. Washington, 124 U.S. 36 (2004).
b. The Compulsory Process Clause of the 6th Amendment
“[I]n all criminal prosecutions, the accused shall enjoy the right … to have compulsory process for obtaining witnesses in his favor.”
The Clause has been interpreted so broadly as to entitle the defendant to obtain and present all evidence helpful to his defense. Thus, it may render unconstitutional state or federal evidence rules that would restrict the defense’s ability to present exculpatory evidence. Even a well-established rule of exclusion may run afoul of the Clause, if its effect is to prevent the defendant from presenting relevant evidence.
Where constitutional rights directly affecting the ascertainment of guilt are implicated, the hearsay rule may not be applied mechanistically to defeat the ends of justice. See Chambers v. Mississippi, 410 U.S. 284 (1973).
Wednesday, September 28, 2011
Intro to the Federal Rules of Evidence - 47
H. Writing Used to Refresh Memory (FRE 612)
1. Meaning of writing
A “writing” can be anything for this purpose – an object, a sound, a gesture, a scent, a photo, etc.
2. Oral testimony
W may not read from the document used to refresh, but must testify from memory.
3. Need not be admitted
Authentication is not required.
4. Opposing party’s rights
A right to inspect it, right to cross examine W thereon, introduce it into evidence.
5. Recorded recollection distinguished
Refreshing recollection (FRE 612) must be distinguished from the hearsay exception for recorded recollection (FRE 803(5)).
EXAMPLE
Q: Mr. Williams, does your statement, which I’ve just handed to you, refresh your memory?
A: Yes.
Q: Who were the other people attending the meeting?
A: Well, there was Mr. Jones [looking at report], there was Ms. Williamson …
OPPOSING LAWYER: Your honor, we object. The witness is reading from his statement.
JUDGE: Sustained. Mr. Williams, please hand the statement back to your lawyer.
1. Meaning of writing
A “writing” can be anything for this purpose – an object, a sound, a gesture, a scent, a photo, etc.
2. Oral testimony
W may not read from the document used to refresh, but must testify from memory.
3. Need not be admitted
Authentication is not required.
4. Opposing party’s rights
A right to inspect it, right to cross examine W thereon, introduce it into evidence.
5. Recorded recollection distinguished
Refreshing recollection (FRE 612) must be distinguished from the hearsay exception for recorded recollection (FRE 803(5)).
EXAMPLE
Q: Mr. Williams, does your statement, which I’ve just handed to you, refresh your memory?
A: Yes.
Q: Who were the other people attending the meeting?
A: Well, there was Mr. Jones [looking at report], there was Ms. Williamson …
OPPOSING LAWYER: Your honor, we object. The witness is reading from his statement.
JUDGE: Sustained. Mr. Williams, please hand the statement back to your lawyer.
Intro to the Federal Rules of Evidence - 46
G. Rehabilitation
1. Direct answer to the impeachment evidence
Rehabilitation evidence must directly answer the impeachment evidence.
2. Good character for truthfulness (FRE 608(a)(2))
Once a witness’s character for truthfulness has been attacked, opinion or reputation evidence showing that the witness has a good character for truthfulness is admissible.
3. Prior consistent statement
i) Inadmissible
A waste of time because the inconsistency is not removed by the fact that W made more than one consistent statement.
ii) Exception
When impeached by allegation of improper motive (801(d)(1)(B)).
However, the rule makes these consistent statements substantive evidence rather than evidence merely affecting credibility.
EXAMPLE: (on cross)
Q: You say today that the defendant’s truck had the green light?
A: That’s right.
Q: One month ago you were hired by the defendant?
A: That’s right.
Q: So now you’re telling us that the defendant’s truck had the green light?
Q: Yes.
(on redirect)
Q: Let’s talk about what happened right after the accident. Did you talk to the police?
A: Yes.
Q: What did you tell the police about the light?
A: I told them the truck had the green light.
Q: That statement to the police, did that happen before you were hired by the defendant?
A: That happened almost a year before I got hired.
1. Direct answer to the impeachment evidence
Rehabilitation evidence must directly answer the impeachment evidence.
2. Good character for truthfulness (FRE 608(a)(2))
Once a witness’s character for truthfulness has been attacked, opinion or reputation evidence showing that the witness has a good character for truthfulness is admissible.
3. Prior consistent statement
i) Inadmissible
A waste of time because the inconsistency is not removed by the fact that W made more than one consistent statement.
ii) Exception
When impeached by allegation of improper motive (801(d)(1)(B)).
However, the rule makes these consistent statements substantive evidence rather than evidence merely affecting credibility.
EXAMPLE: (on cross)
Q: You say today that the defendant’s truck had the green light?
A: That’s right.
Q: One month ago you were hired by the defendant?
A: That’s right.
Q: So now you’re telling us that the defendant’s truck had the green light?
Q: Yes.
(on redirect)
Q: Let’s talk about what happened right after the accident. Did you talk to the police?
A: Yes.
Q: What did you tell the police about the light?
A: I told them the truck had the green light.
Q: That statement to the police, did that happen before you were hired by the defendant?
A: That happened almost a year before I got hired.
Monday, August 29, 2011
Intro to the Federal Rules of Evidence - 45
F. Religious Beliefs or Opinions (FRE 610)
FRE 610 provides that the nature of a witness’s religious beliefs or opinions is not admissible either to impeach or support the witness’s credibility.
FRE 610 provides that the nature of a witness’s religious beliefs or opinions is not admissible either to impeach or support the witness’s credibility.
Intro to the Federal Rules of Evidence - 44
6. Contradictory Facts
The purpose of impeachment by contradiction may be included in “for other purposes” under 404 (b).
Ethics rules are particularly important here. The cross examiner cannot suggest a contradictory fact unless he has a good-faith basis for doing so and can prove the fact when required to do so.
If the witness does not admit it, the cross-examiner must prove up the non-collateral facts with extrinsic evidence.
7. Mental or Sensory Perception Problems
There is no federal rule on this type of impeachment but plenty of cases.
A witness may be impeached by showing that he had no knowledge of the facts to which he testified, or that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. Such a showing can be made either on cross examination or by the use of extrinsic evidence.
The purpose of impeachment by contradiction may be included in “for other purposes” under 404 (b).
Ethics rules are particularly important here. The cross examiner cannot suggest a contradictory fact unless he has a good-faith basis for doing so and can prove the fact when required to do so.
If the witness does not admit it, the cross-examiner must prove up the non-collateral facts with extrinsic evidence.
7. Mental or Sensory Perception Problems
There is no federal rule on this type of impeachment but plenty of cases.
A witness may be impeached by showing that he had no knowledge of the facts to which he testified, or that his faculties of perception and recollection were so impaired as to make it doubtful that he could have perceived those facts. Such a showing can be made either on cross examination or by the use of extrinsic evidence.
Intro to the Fereal Rules of Evidence - 43
5. W’s Bias/ interest
Although there is no rule on bias in the Federal Rules, in the United States v. Abel, 469 U.S. 45, 51 (1984), the Supreme Court held that impeachment of a witness for bias was proper.
a. Rationale
Evidence that a witness is biased or has an interest in the outcome of a suit tends to show that the witness has a motive to lie.
b. Examples of bias
i) a friendly feeling: a personal relationship,
ii) hostility to a party
iii) self-interest in the outcome.
iv) a member of an organization
c. Foundation
i) Cross examination
The examiner may cross-examine the witness to show bias without laying any foundation.
ii) Extrinsic evidence
The FRE do not explicitly require a foundation – that is, only after the witness is asked about an alleged bias and denies it - before extrinsic evidence of bias may be introduced. Under FRE 611(a), however, a court my require at its discretion that a foundation be laid before the extrinsic evidence is introduced.
Intro to the Federal Rules of Evidence - 42
4. Prior Inconsistent Statement (FRE 613(b))
a. Requirements
i) Foundation
Before the statement may be introduced, the witness must be given a chance to deny having made it or to explain away the inconsistency.
But extrinsic evidence need not be shown to the witness before the inconsistency is revealed (FRE 613(a)).
1) Court’s discretion to dispense with the requirement of the chance to deny or explain :
“[I]f the interests of justice otherwise require.”
ii) No extrinsic evidence on collateral matters
iii) Parties not covered
The requirements of foundation and no extrinsic evidence on collateral matters apply only where the witness is not a party. If the witness is a party, his prior inconsistence statement is substantively admissible as an admission, since admission do not fall within the hearsay rule. See the last sentence of FRE 613 (b).
b. Method
i) on X-X
ii) Extrinsic evidence, subject to the collateral evidence rule (FRE 403).
c. 613(b) v. 801(d)(1)(A)
Prior inconsistent statements made under oath at a trial, hearing, or other proceedings are admissible for both their truth (as substantive evidence) and impeachment. But those not made under oath can be admissible only for impeachment.
Whenever a witness impeached with a prior inconsistent statement not made under oath, the judge must, on request of a party, instructs the jury to consider the statement only for the limited purpose of assessing the witness’s credibility and for no other purpose.
a. Requirements
i) Foundation
Before the statement may be introduced, the witness must be given a chance to deny having made it or to explain away the inconsistency.
But extrinsic evidence need not be shown to the witness before the inconsistency is revealed (FRE 613(a)).
1) Court’s discretion to dispense with the requirement of the chance to deny or explain :
“[I]f the interests of justice otherwise require.”
ii) No extrinsic evidence on collateral matters
iii) Parties not covered
The requirements of foundation and no extrinsic evidence on collateral matters apply only where the witness is not a party. If the witness is a party, his prior inconsistence statement is substantively admissible as an admission, since admission do not fall within the hearsay rule. See the last sentence of FRE 613 (b).
b. Method
i) on X-X
ii) Extrinsic evidence, subject to the collateral evidence rule (FRE 403).
c. 613(b) v. 801(d)(1)(A)
Prior inconsistent statements made under oath at a trial, hearing, or other proceedings are admissible for both their truth (as substantive evidence) and impeachment. But those not made under oath can be admissible only for impeachment.
Whenever a witness impeached with a prior inconsistent statement not made under oath, the judge must, on request of a party, instructs the jury to consider the statement only for the limited purpose of assessing the witness’s credibility and for no other purpose.
Friday, July 22, 2011
Intro to the Federal Rules of Evidence - 41
3. Conviction of Crime (FRE 609)
a. Rationale
a prior crime - > a propensity to break a rule - > likely to break this rule of truthful testimony.
b. Felonies not involving dishonesty or false statement (FRE 609 (a)(1))
i) Rationale
The danger of the jury’s misuse as substantive-propensity evidence of impeachment evidence.
ii) Balancing test
1) the nature of a prior crime: a crime bearing on veracity v. a crime of violence.
The heat-of-passion manslaughter < shoplifting; assault < burglary
2) the newest crime, the more relevant, the more likely to be in
3) the more similar, the more prejudicial, the less likely
4) W= the accused in a criminal case : likely inadmissible
Inadmissible even if its prejudicial effect only slightly exceeds its probative value (FRE 608(a)).
5) any other W: likely admissible
Inadmissible only if its prejudicial effect substantially outweighs its probative value (FRE 403).
c. Crimes of dishonesty and false statement (FRE 609(a)(2))
i) Definition
Crimes of FRE 609(a)(2) (crimen falsi) require an element of dishonesty or false statement.
For example, there are false statement, criminal fraud, embezzlement, false pretenses, forgery, counterfeiting, bribe. But shoplifting, robbery and receiving stolen goods are not crimen falsi, even though a particular defendant might have used dishonesty or false statement in committing the particular crime.
ii) Automatic admission
Neither hearsay nor the balancing test (403) rule applies.
d. Time limit (609 (b))
The older the conviction, the less probative value it has.
After 10 yrs of conviction or release, whichever is the later date, it is inadmissible unless probative values substantially outweighing probative value & notice.
i) No distinction between felonies and crimen falsi
e. Methods
i) on X-X
The opposing attorney (usually the prosecutor) may ask the witness during cross-examination to admit the fact of the conviction.
When the witness is being cross-examined about previous conviction, the questions must be asked in good faith (i.e., with a reasonable belief as to the existence of the conviction).
ii) extrinsic evidence
The cross examiner may introduce a certified copy of the prior judgment. No foundation need to be laid.
f. Juvenile adjudications (FRE 609(d))
A general rule is that juvenile adjudications are not admissible.
g. Effect of a pardon (FRE 609(c))
The effect of a pardon depends on the reason for it.
h. Appeals (FRE 609(e))
The fact that the prior conviction is being appealed does not make the conviction inadmissible, but the fact can be disclosed to the jury.
a. Rationale
a prior crime - > a propensity to break a rule - > likely to break this rule of truthful testimony.
b. Felonies not involving dishonesty or false statement (FRE 609 (a)(1))
i) Rationale
The danger of the jury’s misuse as substantive-propensity evidence of impeachment evidence.
ii) Balancing test
1) the nature of a prior crime: a crime bearing on veracity v. a crime of violence.
The heat-of-passion manslaughter < shoplifting; assault < burglary
2) the newest crime, the more relevant, the more likely to be in
3) the more similar, the more prejudicial, the less likely
4) W= the accused in a criminal case : likely inadmissible
Inadmissible even if its prejudicial effect only slightly exceeds its probative value (FRE 608(a)).
5) any other W: likely admissible
Inadmissible only if its prejudicial effect substantially outweighs its probative value (FRE 403).
c. Crimes of dishonesty and false statement (FRE 609(a)(2))
i) Definition
Crimes of FRE 609(a)(2) (crimen falsi) require an element of dishonesty or false statement.
For example, there are false statement, criminal fraud, embezzlement, false pretenses, forgery, counterfeiting, bribe. But shoplifting, robbery and receiving stolen goods are not crimen falsi, even though a particular defendant might have used dishonesty or false statement in committing the particular crime.
ii) Automatic admission
Neither hearsay nor the balancing test (403) rule applies.
d. Time limit (609 (b))
The older the conviction, the less probative value it has.
After 10 yrs of conviction or release, whichever is the later date, it is inadmissible unless probative values substantially outweighing probative value & notice.
i) No distinction between felonies and crimen falsi
e. Methods
i) on X-X
The opposing attorney (usually the prosecutor) may ask the witness during cross-examination to admit the fact of the conviction.
When the witness is being cross-examined about previous conviction, the questions must be asked in good faith (i.e., with a reasonable belief as to the existence of the conviction).
ii) extrinsic evidence
The cross examiner may introduce a certified copy of the prior judgment. No foundation need to be laid.
f. Juvenile adjudications (FRE 609(d))
A general rule is that juvenile adjudications are not admissible.
g. Effect of a pardon (FRE 609(c))
The effect of a pardon depends on the reason for it.
h. Appeals (FRE 609(e))
The fact that the prior conviction is being appealed does not make the conviction inadmissible, but the fact can be disclosed to the jury.
Intro to the Federal Rules of Evidence - 40
2. Non-Convicted Bad Acts on X-X (FRE 608(b))
a. Probative of truthfulness/untruthfulness
A prior unconvicted bad act may come in only if it expressly bears on truthfulness.
b. Method
A prior bad act may be proved only through cross-examination, not through other extrinsic evidence (e.g., a second witness, documents). In other words, the cross-examiner must take the witness’ answer.
c. Self-incrimination
Where the accused takes the stand in his own defense and speaks on direct only about the present crime, as a constitutional matter, the accused does not waiver his right to claim the privilege when asked about prior bad acts that have nothing directly to do with the present charged offense and are relevant only to credibility.
d. Discretion of the judge
The court weighs the probative value of the evidence against the prejudice that results to the opposing party. The exercise of this discretion will rarely be reversed on appeal.
a. Probative of truthfulness/untruthfulness
A prior unconvicted bad act may come in only if it expressly bears on truthfulness.
b. Method
A prior bad act may be proved only through cross-examination, not through other extrinsic evidence (e.g., a second witness, documents). In other words, the cross-examiner must take the witness’ answer.
c. Self-incrimination
Where the accused takes the stand in his own defense and speaks on direct only about the present crime, as a constitutional matter, the accused does not waiver his right to claim the privilege when asked about prior bad acts that have nothing directly to do with the present charged offense and are relevant only to credibility.
d. Discretion of the judge
The court weighs the probative value of the evidence against the prejudice that results to the opposing party. The exercise of this discretion will rarely be reversed on appeal.
Intro to the Federal Rules of Evidence - 39
1. Character Evidence (FRE 608(a))
a. Methods
i) Opinion and reputation
A foundation must be laid showing that the character witness is acquainted with the principal witness’s reputation in the community (i.e., where the principal witness lives, works, or goes to school) or his personal relationship with the principal witness.
Reputation evidence must be related to the witness’s reputation in a neutral and generalized community.
ii) Specific instances
No extrinsic evidence permissible, but permissible on x-x.
Rationale: if the details of past lies were allowed, these details would be unduly prejudicial to D, and a lot of trial time would be used up while D’s counsel tried to show that D did not really lie on the prior occasions.
b. Limited admissibility
In conformity with FRE 105, the evidence may refer only to character of truthfulness (rehab.) or untruthfulness (impeachment).
c. Evidence of truthfulness
No bolstering until witness impeached.
It may be admitted only in rebuttal to evidence of untruthfulness.
EXAMPLE: compared to FRE 404.
The defense introduces evidence that the victim (who testified) is an untruthful person, or the prosecution introduces evidence the defendant (who testified) is an untruthful person.
Q (PROSECUTOR): Ms. Quigley, do you know the reputation for truthfulness of John Barnes, who testified earlier in this trial?
DEFENSE LAWYER: Objection, your honor. We didn’t open the door to this.
JUDGE: Overruled. Ms. Quigley, you may answer the question.
A: Yes.
Q: How have you come to know his reputation?
A: I’ve known him for years. He lives in my neighborhood, and the neighbors talk about him regularly.
Q: What is his reputation for truthfulness?
A: It’s bad. He’s known as someone whose word can’t be trusted.
Q: Why do the neighbors feel that way?
DEFENSE LAWYER: Objection. They’re trying to get into specific instances.
JUDGE: Sustained. Ask another question.
a. Methods
i) Opinion and reputation
A foundation must be laid showing that the character witness is acquainted with the principal witness’s reputation in the community (i.e., where the principal witness lives, works, or goes to school) or his personal relationship with the principal witness.
Reputation evidence must be related to the witness’s reputation in a neutral and generalized community.
ii) Specific instances
No extrinsic evidence permissible, but permissible on x-x.
Rationale: if the details of past lies were allowed, these details would be unduly prejudicial to D, and a lot of trial time would be used up while D’s counsel tried to show that D did not really lie on the prior occasions.
b. Limited admissibility
In conformity with FRE 105, the evidence may refer only to character of truthfulness (rehab.) or untruthfulness (impeachment).
c. Evidence of truthfulness
No bolstering until witness impeached.
It may be admitted only in rebuttal to evidence of untruthfulness.
EXAMPLE: compared to FRE 404.
The defense introduces evidence that the victim (who testified) is an untruthful person, or the prosecution introduces evidence the defendant (who testified) is an untruthful person.
Q (PROSECUTOR): Ms. Quigley, do you know the reputation for truthfulness of John Barnes, who testified earlier in this trial?
DEFENSE LAWYER: Objection, your honor. We didn’t open the door to this.
JUDGE: Overruled. Ms. Quigley, you may answer the question.
A: Yes.
Q: How have you come to know his reputation?
A: I’ve known him for years. He lives in my neighborhood, and the neighbors talk about him regularly.
Q: What is his reputation for truthfulness?
A: It’s bad. He’s known as someone whose word can’t be trusted.
Q: Why do the neighbors feel that way?
DEFENSE LAWYER: Objection. They’re trying to get into specific instances.
JUDGE: Sustained. Ask another question.
Intro to the Federal Rules of Evidence - 38
D. IMPEACHMENT
Impeachment of witness: to destroy W’s credibility showing mistaken or lying.
The FREs and case law recognize 7 categories of impeachment. The first five can be raised during cross-examination of lay witness.
1. Bias, interest, and motive (case law)
2. Prior inconsistent statement (FRE 613(b))
3. Contradictory facts (case law)
4. Prior convictions (FRE 609)
5. Prior bad acts (FRE 608(b))
6. Bad character for truthfulness (FRE 608(a))
7. Treaties (FRE 803(18): only during the X-X of experts.
Impeachment of witness: to destroy W’s credibility showing mistaken or lying.
The FREs and case law recognize 7 categories of impeachment. The first five can be raised during cross-examination of lay witness.
1. Bias, interest, and motive (case law)
2. Prior inconsistent statement (FRE 613(b))
3. Contradictory facts (case law)
4. Prior convictions (FRE 609)
5. Prior bad acts (FRE 608(b))
6. Bad character for truthfulness (FRE 608(a))
7. Treaties (FRE 803(18): only during the X-X of experts.
Monday, May 30, 2011
Intro to the Federal Rules of Evidence - 37
2. Opinion testimony by experts (FRE 702)
a. Requirements
i) Subject matter must be appropriate for expert testimony: “assist the trier of fact”
1) The opinion must be relevant (i.e., it must fit the facts of the case)
2) The methodology underlying the opinion must be reliable (FRE 702)
a) The opinion is based on sufficient facts or data
b) The opinion is the product of reliable principles and methods
c) The expert has reliably applied the principles and methods to the facts of the case
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
ii) Witness must be qualified as an expert (FRE 702)
iii) Opinion must be supported by proper factual basis (FRE 703, FRE 705)
1) Personal observation
Typical examples are the forensic chemist who analyzes and testifies about the nature of a controlled substance or the treating physician who testifies about the cause and extent of an injury.
2) Facts made known to expert at or before trial
An expert witness may testify about admitted evidence (record facts).
3) Facts made known to expert outside court
An expert may give an opinion based on information supplied to the expert outside the recorded facts, if of a type reasonable relied upon by experts in the particular field.
FRE 703 permits an expert to base an opinion on hearsay information, but it does not recognized a hearsay exception for this information (refer to the 3rd sentence of FRE 703).
b. Opinion may embrace ultimate issue (FRE 704)
Opinions on ultimate issues are allowed except when they relate to the mental state of a criminal defendant (FRE 704(b)).
c. Authoritative texts and treaties (FRE 803(18))
If admitted, the statements may be read into evidence but may not be received as exhibits (i.e., the jury never sees it.)
The treatise itself is not admissible as an exhibit under FRE 803(18).
EXAMPLE: (using treaties during the direct examination of experts)
Q: Dr. Spencer, as part of your evaluation of this case, did you rely on any treatise in your field?
A: Yes.
Q: Which one?
A; I relied in part on a standard treatise, Saunders on Obstetrics.
Q: Is Saunders on Obstetrics recognized as a reliable authority in your field?
A: Absolutely. It’s probably the most-used treatise in obstetrics today.
Q: Did you rely on any statement in Saunders on Obstetrics during your evaluation of this case?
A: Yes.
Q: Do you have that treatise with you?
A: Yes [holds up treatise], it’s been marked as Plaintiff’s Exhibit No. 3. I relied particularly on page 353, the section called “Disturbances in the Newborn – Asphyxia.” That’s the section I found particularly useful.
Q: Your honor, at this time we ask that Dr. Spence be allowed to read those statements from the treatise that he relied on in reaching his conclusions.
JUDGE: He may. Proceed.
Q: Dr. Spence, please read those statement.
A: On page 353 of the treaties, it says …
a. Requirements
i) Subject matter must be appropriate for expert testimony: “assist the trier of fact”
1) The opinion must be relevant (i.e., it must fit the facts of the case)
2) The methodology underlying the opinion must be reliable (FRE 702)
a) The opinion is based on sufficient facts or data
b) The opinion is the product of reliable principles and methods
c) The expert has reliably applied the principles and methods to the facts of the case
Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
ii) Witness must be qualified as an expert (FRE 702)
iii) Opinion must be supported by proper factual basis (FRE 703, FRE 705)
1) Personal observation
Typical examples are the forensic chemist who analyzes and testifies about the nature of a controlled substance or the treating physician who testifies about the cause and extent of an injury.
2) Facts made known to expert at or before trial
An expert witness may testify about admitted evidence (record facts).
3) Facts made known to expert outside court
An expert may give an opinion based on information supplied to the expert outside the recorded facts, if of a type reasonable relied upon by experts in the particular field.
FRE 703 permits an expert to base an opinion on hearsay information, but it does not recognized a hearsay exception for this information (refer to the 3rd sentence of FRE 703).
b. Opinion may embrace ultimate issue (FRE 704)
Opinions on ultimate issues are allowed except when they relate to the mental state of a criminal defendant (FRE 704(b)).
c. Authoritative texts and treaties (FRE 803(18))
If admitted, the statements may be read into evidence but may not be received as exhibits (i.e., the jury never sees it.)
The treatise itself is not admissible as an exhibit under FRE 803(18).
EXAMPLE: (using treaties during the direct examination of experts)
Q: Dr. Spencer, as part of your evaluation of this case, did you rely on any treatise in your field?
A: Yes.
Q: Which one?
A; I relied in part on a standard treatise, Saunders on Obstetrics.
Q: Is Saunders on Obstetrics recognized as a reliable authority in your field?
A: Absolutely. It’s probably the most-used treatise in obstetrics today.
Q: Did you rely on any statement in Saunders on Obstetrics during your evaluation of this case?
A: Yes.
Q: Do you have that treatise with you?
A: Yes [holds up treatise], it’s been marked as Plaintiff’s Exhibit No. 3. I relied particularly on page 353, the section called “Disturbances in the Newborn – Asphyxia.” That’s the section I found particularly useful.
Q: Your honor, at this time we ask that Dr. Spence be allowed to read those statements from the treatise that he relied on in reaching his conclusions.
JUDGE: He may. Proceed.
Q: Dr. Spence, please read those statement.
A: On page 353 of the treaties, it says …
Intro to the Federal Rules of Evidence - 36
C. OPINION TESTIMONY (ART. VII)
1. Opinion testimony by lay witnesses (FRE 701)
Lay opinions are allowed if they are helpful to the jury in its fact-finding.
a. When admissible
i) it is rationally based on the perception of the witness
ii) it is helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, &
iii) it is not based on scientific, technical, or other specialized knowledge; if so based, it would need to the requirements of expert under FRE 702.
b. Examples
i) general appearance or condition of a person: “elderly,” “about 60 years old,” “strong,”
ii) state of mind : “angry,” “was joking”
iii) matters involving sense recognition : “heavy,’ “red,” “bulky,” “tasked like whisky”
iv) voice or handwriting identification (FRE 901(b)(2), 901(b)(5))
1. Opinion testimony by lay witnesses (FRE 701)
Lay opinions are allowed if they are helpful to the jury in its fact-finding.
a. When admissible
i) it is rationally based on the perception of the witness
ii) it is helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, &
iii) it is not based on scientific, technical, or other specialized knowledge; if so based, it would need to the requirements of expert under FRE 702.
b. Examples
i) general appearance or condition of a person: “elderly,” “about 60 years old,” “strong,”
ii) state of mind : “angry,” “was joking”
iii) matters involving sense recognition : “heavy,’ “red,” “bulky,” “tasked like whisky”
iv) voice or handwriting identification (FRE 901(b)(2), 901(b)(5))
Intro to the Federal Rules of Evidence - 35
B. METHODS OF EXAMINATION OF WITNESSES (FRE 611)
1. Judicial Control of Trial (FRE 611(a)
FRE 611(a) is written in broad terms. Among other things, the trial judge has the authority to
reopen the case, alter the order of proof, permit the recall of a witness, and grant continuances. In addition, the judge may authorize special methods to deal with child witnesses and set time
limits for the presentation of evidence. The court’s control also extends to jury issues, such as
the use of exhibits in the jury room, jury questioning, and jury note-taking.
2. Scope of Cross-examination (FRE 611 (b))
Under the rule, cross examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses.
EXAMPLE
Q (CROSS-EXAMINER): Let’s now turn to the events after the board meeting on June 1, and specifically to the meeting on June 15. At that next meeting, didn’t you …
OPPOSING LAWYER: Objection. Beyond the scope. We didn’t go into that meeting on direct.
JUDGE: Sustained. Counsel, I’ll give you leeway to go into that meeting, but you’ll have to do it as if on direct.
3. Leading Questions
Leading questions are prohibited on direct examination because it is thought that a witness is particularly susceptible to suggestion under question by the party calling the witness. A leading question is one that would cause the reasonable person to believe that the question is seeking one specific answer rather than another, i.e., the one wanted by the questioner.
Exceptions to no leading question on direct (FRE 611(c)):
1) when necessary to develop a witness’s testimony
2) when the witness is hostile
3) when the witness is an adverse party
4) when the witness is identified with an adverse party.
EXAMPLE
Q: The right was red when the two cars collided, right?
A: Yes.
Q: And it was dark at the time?
A: Yes.
Q: Raining?
A: Yes.
Q: No street lights on that corner?
A: Right.
Q: And you were over 100 feet from the corner when the two cars collided, isn’t that true?
A: Yes.
4. Other common objections
There are numerous trial objections that are not specifically referenced in the FRE. Some of the more common are:
Argumentative questions: are leading questions that reflect the examiner’s interpretation of the facts.
“Why were you driving so recklessly?”
Misleading: one that cannot be answered without making an unintended admission.
“Do you still beat you wife?”
Assuming facts not in evidence: questions that assumes that a disputed fact is true when it has not been established in the case.
In case where there is no evidence that D had been drinking, “After D finished his fifth beer, he got up and went to his car, didn’t he?”
Compound questions: requiring a single answer to more than one question.
“Did you see and hear the intruder?”
Nonresponsive answers: a witness’s response must address only the specific question asked by the examining attorney; otherwise the testimony is subject to being stricken for non-responsiveness.
Q: Did you leave your house on Sept. 22?
A: I went to the dentist and then to the grocery store.
This answer is nonresponsive, as the question calls for a “yes,” or “no” response.
1. Judicial Control of Trial (FRE 611(a)
FRE 611(a) is written in broad terms. Among other things, the trial judge has the authority to
reopen the case, alter the order of proof, permit the recall of a witness, and grant continuances. In addition, the judge may authorize special methods to deal with child witnesses and set time
limits for the presentation of evidence. The court’s control also extends to jury issues, such as
the use of exhibits in the jury room, jury questioning, and jury note-taking.
2. Scope of Cross-examination (FRE 611 (b))
Under the rule, cross examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses.
EXAMPLE
Q (CROSS-EXAMINER): Let’s now turn to the events after the board meeting on June 1, and specifically to the meeting on June 15. At that next meeting, didn’t you …
OPPOSING LAWYER: Objection. Beyond the scope. We didn’t go into that meeting on direct.
JUDGE: Sustained. Counsel, I’ll give you leeway to go into that meeting, but you’ll have to do it as if on direct.
3. Leading Questions
Leading questions are prohibited on direct examination because it is thought that a witness is particularly susceptible to suggestion under question by the party calling the witness. A leading question is one that would cause the reasonable person to believe that the question is seeking one specific answer rather than another, i.e., the one wanted by the questioner.
Exceptions to no leading question on direct (FRE 611(c)):
1) when necessary to develop a witness’s testimony
2) when the witness is hostile
3) when the witness is an adverse party
4) when the witness is identified with an adverse party.
EXAMPLE
Q: The right was red when the two cars collided, right?
A: Yes.
Q: And it was dark at the time?
A: Yes.
Q: Raining?
A: Yes.
Q: No street lights on that corner?
A: Right.
Q: And you were over 100 feet from the corner when the two cars collided, isn’t that true?
A: Yes.
4. Other common objections
There are numerous trial objections that are not specifically referenced in the FRE. Some of the more common are:
Argumentative questions: are leading questions that reflect the examiner’s interpretation of the facts.
“Why were you driving so recklessly?”
Misleading: one that cannot be answered without making an unintended admission.
“Do you still beat you wife?”
Assuming facts not in evidence: questions that assumes that a disputed fact is true when it has not been established in the case.
In case where there is no evidence that D had been drinking, “After D finished his fifth beer, he got up and went to his car, didn’t he?”
Compound questions: requiring a single answer to more than one question.
“Did you see and hear the intruder?”
Nonresponsive answers: a witness’s response must address only the specific question asked by the examining attorney; otherwise the testimony is subject to being stricken for non-responsiveness.
Q: Did you leave your house on Sept. 22?
A: I went to the dentist and then to the grocery store.
This answer is nonresponsive, as the question calls for a “yes,” or “no” response.
Intro to the Federal Rules of Evidence - 34
V. TESTIMONIAL EVIDENCE (ART. VI & ART. VII)
Oral evidence given under oath.
A. COMPETENCY (FRE 601)
FRE 601 provides that all witnesses are competent.
Even those adjudged insane are not necessarily disqualified because a test for insanity differs a standard for witness competency.
1. Federal question cases
The FREs require personal (firsthand) knowledge (FRE 602) and an oath (FRE 603).
a. Personal Knowledge (FRE 602)
i) Foundation - own Testimony
Evidence of personal knowledge may consist of the W’s own testimony such as “I saw the light and it was green.” However, simply stating “The light was green,” requires the foundation that the witness saw the light.
ii) Equivocating W
a witness’s expression of uncertainty is not ground for exclusion so long as the witness had an opportunity to observe.
“I think,” “As I recall,” or “Probably,” etc. equivocation goes to the weight, not admissibility of testimony. Weight is for the jury to consider.
iii) Standard of Proof: Prima facie
The trial judge does not decide whether or not a witness has firsthand knowledge by a preponderance of evidence (the usual standard), but only whether sufficient evidence to support a finding that firsthand knowledge has been introduced, i.e., a prima facie standard. In effect FRE 602 is a specialized application of the conditional relevancy principle of FRE 104(b).
EXAMPLE
Q (LAWYER): What color was the light at Main and Elm when the two cars collied?
A: It was red for the Main Street traffic.
Q: How do you know?
A: Because Mary Smith saw the crash and she told me.
OPPOSING LAWYER: Objection, your honor. No personal knowledge.
JUDGE: Sustained.
b. Oath Requirement (FRE 603)
FRE 603 requires witnesses to swear or affirm to the truthfulness of their testimony. The purpose of the oath is merely to add a stimulus to truth-telling. And a perjury prosecution requires the taking of an oath.
c. Judge as a witness (FRE 605)
The judge presiding at the trial may not testify in that trial as a witness.
d. Juror as a witness (FRE 606)
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.
e. Expert witnesses (FRE 702 – 706)
2. Diversity cases
Federal courts honor a state rule of competency in diversity cases.
Oral evidence given under oath.
A. COMPETENCY (FRE 601)
FRE 601 provides that all witnesses are competent.
Even those adjudged insane are not necessarily disqualified because a test for insanity differs a standard for witness competency.
1. Federal question cases
The FREs require personal (firsthand) knowledge (FRE 602) and an oath (FRE 603).
a. Personal Knowledge (FRE 602)
i) Foundation - own Testimony
Evidence of personal knowledge may consist of the W’s own testimony such as “I saw the light and it was green.” However, simply stating “The light was green,” requires the foundation that the witness saw the light.
ii) Equivocating W
a witness’s expression of uncertainty is not ground for exclusion so long as the witness had an opportunity to observe.
“I think,” “As I recall,” or “Probably,” etc. equivocation goes to the weight, not admissibility of testimony. Weight is for the jury to consider.
iii) Standard of Proof: Prima facie
The trial judge does not decide whether or not a witness has firsthand knowledge by a preponderance of evidence (the usual standard), but only whether sufficient evidence to support a finding that firsthand knowledge has been introduced, i.e., a prima facie standard. In effect FRE 602 is a specialized application of the conditional relevancy principle of FRE 104(b).
EXAMPLE
Q (LAWYER): What color was the light at Main and Elm when the two cars collied?
A: It was red for the Main Street traffic.
Q: How do you know?
A: Because Mary Smith saw the crash and she told me.
OPPOSING LAWYER: Objection, your honor. No personal knowledge.
JUDGE: Sustained.
b. Oath Requirement (FRE 603)
FRE 603 requires witnesses to swear or affirm to the truthfulness of their testimony. The purpose of the oath is merely to add a stimulus to truth-telling. And a perjury prosecution requires the taking of an oath.
c. Judge as a witness (FRE 605)
The judge presiding at the trial may not testify in that trial as a witness.
d. Juror as a witness (FRE 606)
A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting.
e. Expert witnesses (FRE 702 – 706)
2. Diversity cases
Federal courts honor a state rule of competency in diversity cases.
Saturday, April 30, 2011
Intro to the Federal Rules of Evidence - 33
6. The judge & jury (FRE 1008)
a. Judge
The judge decides any factual questions that are essential to decide the technical application of this rule under 104(a).
For example, (1) whether a particular item of evidence is an original; (2) whether a particular item is a duplicate under FRE 1001, and therefore presumptively admissible under FRE 1003; (3) whether the original has been lost or destroyed, as provided in FRE 1004(1); and (4) whether the evidence related to a collateral matter or rather to a controlling issue under FRE 1004(4).
b. Exceptions by the jury
There are 3 exceptions: (1) whether the original ever existed; (2) whether a writing, recording, or photograph produced at trial is an original; (3) whether the evidence offered correctly reflects the contents of the original.
a. Judge
The judge decides any factual questions that are essential to decide the technical application of this rule under 104(a).
For example, (1) whether a particular item of evidence is an original; (2) whether a particular item is a duplicate under FRE 1001, and therefore presumptively admissible under FRE 1003; (3) whether the original has been lost or destroyed, as provided in FRE 1004(1); and (4) whether the evidence related to a collateral matter or rather to a controlling issue under FRE 1004(4).
b. Exceptions by the jury
There are 3 exceptions: (1) whether the original ever existed; (2) whether a writing, recording, or photograph produced at trial is an original; (3) whether the evidence offered correctly reflects the contents of the original.
Intro to the Federal Rules of Evidence - 32
5. Priority
a. Originals
FRE 1001 defines an original as the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. Thus, the rule employs an intent test to determine whether a writing is an original.
Example: D writes a handwritten letter to X possibly defaming P. D then hands the letter to his secretary, who retypes it and sends the types version. At P’s libel suit against D, it is the derivative types version, not the handwritten version, which is the original that must be produced if available.
b. Types of secondary evidence in exceptions
i) Duplicates
They should be exactly w/in the statutory meaning – an exact copy of an original (FRE 1001(4) & FRE 1003). Any copies produced manually, whether by typing or handwriting, are not duplicates.
Admissible even though the original is available, unless (1) a dispute as to the authenticity of the original, or (2) unfair in the circumstances to admit the duplicate instead.
ii) Certified copies of public records (FRE 1005)
Purpose: to prevent the loss or absence of public records due to litigation.
iii) Voluminous writings – summaries (FRE 1006)
iv) Other exceptions (FRE 1004) – the offering party’s choice.
Satisfactory foundations are needed: (1) originals lost or destroyed; (2) original not obtainable; (3) original in possession of opponent; (4) collateral matters.
a. Originals
FRE 1001 defines an original as the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. Thus, the rule employs an intent test to determine whether a writing is an original.
Example: D writes a handwritten letter to X possibly defaming P. D then hands the letter to his secretary, who retypes it and sends the types version. At P’s libel suit against D, it is the derivative types version, not the handwritten version, which is the original that must be produced if available.
b. Types of secondary evidence in exceptions
i) Duplicates
They should be exactly w/in the statutory meaning – an exact copy of an original (FRE 1001(4) & FRE 1003). Any copies produced manually, whether by typing or handwriting, are not duplicates.
Admissible even though the original is available, unless (1) a dispute as to the authenticity of the original, or (2) unfair in the circumstances to admit the duplicate instead.
ii) Certified copies of public records (FRE 1005)
Purpose: to prevent the loss or absence of public records due to litigation.
iii) Voluminous writings – summaries (FRE 1006)
iv) Other exceptions (FRE 1004) – the offering party’s choice.
Satisfactory foundations are needed: (1) originals lost or destroyed; (2) original not obtainable; (3) original in possession of opponent; (4) collateral matters.
Intro to the Federal Rules of Evidence - 31
4. What constitutes “proving the content of a writing”?
a. Applicability of the rule
i) Written transactions
The rule applies where the writing is a legally operative or dispositive instrument such as a contract, will, or divorce decree.
ii) Written method of proof
The rule applies where the knowledge of a witness concerning a fact results from having read it in the document.
b. Inapplicability of the rule
i) Existence, execution, etc.
If all that is proved is that a writing exists, was executed, or was delivered, the best evidence rule dose not apply.
ii) Incidental records
The fact that there happens to be a writing memorializing a transaction does not mean that the transaction can only be proved by introduction of the writing.
iii) Collateral writings (FRE 1004(4))
The rule does not apply to writings of minor importance to the matter in controversy. The test of collateralness is likely to take into account: centrality of the writing to the major issues of a litigation; complexity of the relevant features of the writing; and existence of a genuine dispute as to the content of the writing.
a. Applicability of the rule
i) Written transactions
The rule applies where the writing is a legally operative or dispositive instrument such as a contract, will, or divorce decree.
ii) Written method of proof
The rule applies where the knowledge of a witness concerning a fact results from having read it in the document.
b. Inapplicability of the rule
i) Existence, execution, etc.
If all that is proved is that a writing exists, was executed, or was delivered, the best evidence rule dose not apply.
ii) Incidental records
The fact that there happens to be a writing memorializing a transaction does not mean that the transaction can only be proved by introduction of the writing.
iii) Collateral writings (FRE 1004(4))
The rule does not apply to writings of minor importance to the matter in controversy. The test of collateralness is likely to take into account: centrality of the writing to the major issues of a litigation; complexity of the relevant features of the writing; and existence of a genuine dispute as to the content of the writing.
Intro to the Federal Rules of Evidence - 30
3. Only writings and other recorded communications
a. Photographic evidence
The FRE explicitly expand the best evidence rule to include all photographs (photographs, x-rays, movies, etc.) whose contents are to be proved.
Photos are generally not offered to prove their contents, so the best evidence rule usually does not apply regardless of when the item is deemed to be a writing. But occasionally, photos are offered to prove their contents.
Pictorial evidence – photos, x-rays, movies.
i) “illustrative of what witness saw” method
A foundation for the admissibility of photographs is generally laid by establishing that the photograph is an “accurate and faithful representation” of the scene or object.
ii) “Silent Witness” theory
In cases of x-rays, surveillance tapes, and ATM photographs and the like, the process that produces the photo is authenticated (FRE 901(9)). It is called the silent witness theory of admission, because once the process is shown to be reliable, the picture or movie speaks for itself as to its contents.
The content of a photographer is being proved, for example, to establish its obscene nature or to identify a person in a photo taken by a bank surveillance camera. In such cases, FRE 1002 bars testimony or other evidence of content in lieu of producing the photograph itself. (§10.3, p.1505)
X- rays
The best evidence rule is applied, but in a limited extent that FRE 703 allows an expert to give an opinion based on matters not in evidence, and that hospital records admissible under FRE 803(b) commonly contain reports interpreting X-rays by the staff radiologist, who qualified as an expert. (ACN. 1002)
b. Sound recordings
When a sound recording is introduced for the purpose of proving the recording’s content, the best evidence rule applies.
a. Photographic evidence
The FRE explicitly expand the best evidence rule to include all photographs (photographs, x-rays, movies, etc.) whose contents are to be proved.
Photos are generally not offered to prove their contents, so the best evidence rule usually does not apply regardless of when the item is deemed to be a writing. But occasionally, photos are offered to prove their contents.
Pictorial evidence – photos, x-rays, movies.
i) “illustrative of what witness saw” method
A foundation for the admissibility of photographs is generally laid by establishing that the photograph is an “accurate and faithful representation” of the scene or object.
ii) “Silent Witness” theory
In cases of x-rays, surveillance tapes, and ATM photographs and the like, the process that produces the photo is authenticated (FRE 901(9)). It is called the silent witness theory of admission, because once the process is shown to be reliable, the picture or movie speaks for itself as to its contents.
The content of a photographer is being proved, for example, to establish its obscene nature or to identify a person in a photo taken by a bank surveillance camera. In such cases, FRE 1002 bars testimony or other evidence of content in lieu of producing the photograph itself. (§10.3, p.1505)
X- rays
The best evidence rule is applied, but in a limited extent that FRE 703 allows an expert to give an opinion based on matters not in evidence, and that hospital records admissible under FRE 803(b) commonly contain reports interpreting X-rays by the staff radiologist, who qualified as an expert. (ACN. 1002)
b. Sound recordings
When a sound recording is introduced for the purpose of proving the recording’s content, the best evidence rule applies.
Intro to the Federal Rules of Evidence - 29
C. BEST EVIDENCE RULE – ORIGINAL DOCUMENT RULE (ART. X)
1. Rationale
The exact words of a writing should be presented to the court because of a hazard of inaccuracy in common methods of approximating the contents of a writing and a great risk of error of oral testimony based on memory.
2. Requirements
a. Original documents
The original document must be produced, rather than using a copy or oral testimony about the document.
b. Prove the content of a writing
The rule applies only where what is to be proved is the content of a writing.
c. Excuses (FRE 1004)
The rule does not apply if the original is unavailable because it has been destroyed, is in the possession of a third party, or cannot be conveniently obtained, and the unavailability is not due to the serious fault of the proponent.
1. Rationale
The exact words of a writing should be presented to the court because of a hazard of inaccuracy in common methods of approximating the contents of a writing and a great risk of error of oral testimony based on memory.
2. Requirements
a. Original documents
The original document must be produced, rather than using a copy or oral testimony about the document.
b. Prove the content of a writing
The rule applies only where what is to be proved is the content of a writing.
c. Excuses (FRE 1004)
The rule does not apply if the original is unavailable because it has been destroyed, is in the possession of a third party, or cannot be conveniently obtained, and the unavailability is not due to the serious fault of the proponent.
Thursday, March 24, 2011
Intro to the Federal Rules of Evidence - 28
e. Self-authentication
While authenticating witnesses generally must be called for evidence offered under FRE 901(b), FRE 902 dispenses with that requirement.
Like FRE 901, FRE 902 addresses only whether or not evidence is sufficiently authenticated to be admissible. At trial, the opponent may introduce evidence contesting authenticity, and the trier of fact makes the ultimate determination.
i) Exclusive category.
ii) Justification
The requirement of authentication can be met by the appearance of a doc. together with past experience which suggests that such docs usually are what they appear to be.
iii) Presumption of authenticity
1) No extrinsic evidence required: such as an authenticating witness.
2) The opposing party may introduce evidence attacking the authenticity before the jury (FRE 104 (e)).
While authenticating witnesses generally must be called for evidence offered under FRE 901(b), FRE 902 dispenses with that requirement.
Like FRE 901, FRE 902 addresses only whether or not evidence is sufficiently authenticated to be admissible. At trial, the opponent may introduce evidence contesting authenticity, and the trier of fact makes the ultimate determination.
i) Exclusive category.
ii) Justification
The requirement of authentication can be met by the appearance of a doc. together with past experience which suggests that such docs usually are what they appear to be.
iii) Presumption of authenticity
1) No extrinsic evidence required: such as an authenticating witness.
2) The opposing party may introduce evidence attacking the authenticity before the jury (FRE 104 (e)).
Intro to the Federal Rules of Evidence - 27
d. Some examples of methods of authentication (FRE 901(b))
FRE 901(b) lists examples that relate for the most part to documents, with some attention given to voice recognition and computer printouts.
i) Admissions
ii) Testimony of eyewitness
iii) Handwriting verifications
1) Non-expert opinion (FRE 901(b)(2))
2) Comparison of writings (FRE 901(b)(3))
iv) Voice identification (FRE 901(b)(5))
The most common identification of a speaker.
v) Process or system (FRE 901(b)(9))
For example, tape recordings are authenticated most commonly under FRE 901(b)(9). It is generally sufficient to establish the identity of a speaker and to show that the device was capable of making a true recording and was in goo order, the operator was qualified to operate it and did so properly, no changes were made in the recording, and the tape was properly preserved.
vi) Photographs, videotapes
Although photographs are most commonly authenticated under FRE 901(b)(1) by testimony of a witness with knowledge, they can also be authenticated under FRE 901(b)(9) by showing the process by which they were made. Use of the latter provision is generally required for photographs offered under the silent witness doctrine.
EXAMPLE 1
Q (LAWYER): Mr. Smith, did you see the robbery that happened in the parking lot on the northeast corner of Main and Elm Streets on June 1, 2005 at 8:00 in the evening?
A: I sure did. I was right in my attendant booth.
Q: Do you remember how the lot looked at the time?
A: Sure.
Have the exhibit marked, show it to the opposing counsel, ask permission to approach the witness, and show the exhibit to the witness.
Q: I’m showing you what was just marked State’s Exhibit No. 2. Take a look at it for a moment. [Witness looks at it.] Does that diagram fairly and accurately show the layout of the parking lot as it looked on June 1, 2005?
A: Yes.
Q: Would using this diagram help you in explaining what you saw, heard, and did when the robbery happened?
A: I sure would.
LAWYER: Your honor, we offer State’s Exhibit No.2.
OPPOSING LAWYER: No objection, your honor.
JUDGE: State’s Exhibit No. 2 is admitted.
EXAMPLE 2
Q (LAWYER): Dr. Williams, you’re the doctor who treated Jane Curtis?
A: Yes.
Q: You did the surgery on her lower left leg?
A: Yes.
Q: As part of your treatment of Ms. Curtis, did you have x-rays taken?
A: Yes, both before and after the surgery.
Have the exhibit marked, show it to opposing counsel, ask permission to approach the witness, and show the exhibits to the witness.
Q: Dr. Williams, I’m handing you six x-rays marked Plaintiff’s Group Exhibit No. 6A through 6F. please examine them for a moment. [Doctor looks at x-rays.] Do you recognize them?
A: Yes, I do.
Q: What do you recognize them to be?
A: These are the x-rays I had taken of Ms. Curtis the day I performed the surgery on her lower left leg. 6A through 6C are the x-rays before the surgery and 6D through 6F are the postsurgery x-rays.
Q: How is it you know that these are in fact the x-rays of Ms. Curtis taken on June 1, 2005?
A: I examined her. I know the condition of her leg and what fractures she had. I did the surgery and I know the pins and screws I used to repair the fractures.
Q: Was the x-ray machine in proper working order?
A: Yes.
Q: Do Exhibits 6A through 6C fairly and accurately show the condition of Ms. Curtis’s leg before the surgery?
A: Yes.
Q: Do Exhibits 6D through 6F fairly and accurately show the condition of Ms. Curtis’s leg after the surgery?
A: Yes.
LAWYER: Your honor, Plaintiff offers Group Exhibit 6A through 6F in evidence.
OPPOSING LAWYER: No objection, your honor.
JUDGE: Plaintiff’s Group Exhibit 6A through 6F is admitted. Continue with your examination.
Once the x-rays are in evidence, they can be displayed to the jury and the doctor can explain what the x-rays show.
FRE 901(b) lists examples that relate for the most part to documents, with some attention given to voice recognition and computer printouts.
i) Admissions
ii) Testimony of eyewitness
iii) Handwriting verifications
1) Non-expert opinion (FRE 901(b)(2))
2) Comparison of writings (FRE 901(b)(3))
iv) Voice identification (FRE 901(b)(5))
The most common identification of a speaker.
v) Process or system (FRE 901(b)(9))
For example, tape recordings are authenticated most commonly under FRE 901(b)(9). It is generally sufficient to establish the identity of a speaker and to show that the device was capable of making a true recording and was in goo order, the operator was qualified to operate it and did so properly, no changes were made in the recording, and the tape was properly preserved.
vi) Photographs, videotapes
Although photographs are most commonly authenticated under FRE 901(b)(1) by testimony of a witness with knowledge, they can also be authenticated under FRE 901(b)(9) by showing the process by which they were made. Use of the latter provision is generally required for photographs offered under the silent witness doctrine.
EXAMPLE 1
Q (LAWYER): Mr. Smith, did you see the robbery that happened in the parking lot on the northeast corner of Main and Elm Streets on June 1, 2005 at 8:00 in the evening?
A: I sure did. I was right in my attendant booth.
Q: Do you remember how the lot looked at the time?
A: Sure.
Have the exhibit marked, show it to the opposing counsel, ask permission to approach the witness, and show the exhibit to the witness.
Q: I’m showing you what was just marked State’s Exhibit No. 2. Take a look at it for a moment. [Witness looks at it.] Does that diagram fairly and accurately show the layout of the parking lot as it looked on June 1, 2005?
A: Yes.
Q: Would using this diagram help you in explaining what you saw, heard, and did when the robbery happened?
A: I sure would.
LAWYER: Your honor, we offer State’s Exhibit No.2.
OPPOSING LAWYER: No objection, your honor.
JUDGE: State’s Exhibit No. 2 is admitted.
EXAMPLE 2
Q (LAWYER): Dr. Williams, you’re the doctor who treated Jane Curtis?
A: Yes.
Q: You did the surgery on her lower left leg?
A: Yes.
Q: As part of your treatment of Ms. Curtis, did you have x-rays taken?
A: Yes, both before and after the surgery.
Have the exhibit marked, show it to opposing counsel, ask permission to approach the witness, and show the exhibits to the witness.
Q: Dr. Williams, I’m handing you six x-rays marked Plaintiff’s Group Exhibit No. 6A through 6F. please examine them for a moment. [Doctor looks at x-rays.] Do you recognize them?
A: Yes, I do.
Q: What do you recognize them to be?
A: These are the x-rays I had taken of Ms. Curtis the day I performed the surgery on her lower left leg. 6A through 6C are the x-rays before the surgery and 6D through 6F are the postsurgery x-rays.
Q: How is it you know that these are in fact the x-rays of Ms. Curtis taken on June 1, 2005?
A: I examined her. I know the condition of her leg and what fractures she had. I did the surgery and I know the pins and screws I used to repair the fractures.
Q: Was the x-ray machine in proper working order?
A: Yes.
Q: Do Exhibits 6A through 6C fairly and accurately show the condition of Ms. Curtis’s leg before the surgery?
A: Yes.
Q: Do Exhibits 6D through 6F fairly and accurately show the condition of Ms. Curtis’s leg after the surgery?
A: Yes.
LAWYER: Your honor, Plaintiff offers Group Exhibit 6A through 6F in evidence.
OPPOSING LAWYER: No objection, your honor.
JUDGE: Plaintiff’s Group Exhibit 6A through 6F is admitted. Continue with your examination.
Once the x-rays are in evidence, they can be displayed to the jury and the doctor can explain what the x-rays show.
Intro to the Federal Rules of Evidence - 26
b. Demonstrative evidence
The evidence is authenticated by a sponsoring witness who can testify that it fairly represents some aspect of the case.
c. Standard of proof – reasonable jury/ prima facie standard (FRE 901(a))
The requirement or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a find that the matter in question is what its proponent claims
Even if the authentication requirement is met, the opposing party can challenge the authenticity of the evidence. And a jury is free to measure the value of the evidence.
The evidence is authenticated by a sponsoring witness who can testify that it fairly represents some aspect of the case.
c. Standard of proof – reasonable jury/ prima facie standard (FRE 901(a))
The requirement or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a find that the matter in question is what its proponent claims
Even if the authentication requirement is met, the opposing party can challenge the authenticity of the evidence. And a jury is free to measure the value of the evidence.
Intro to the Federal Rules of Evidence - 25
2. Methods of authentication
a. Real evidence
i) Readily or uniquely identifiable
if the item has a unique, one-of-a-kind characteristic, this method can be used. The sponsoring witness merely testifies that the object he originally saw has a specific unique character, and that the item shown to him in court bears that same unique identifier.
Example: D is charged with stabbing V to death. W is a police officer who inspected the crime scene shortly after the killing occurred. After W testifies about beginning the inspection of the crime scene, the following testimony would authenticate the knife as the murder weapon.
PROSECUTOR: What did you do during the inspection?
WITNESS: I looked for any evidence of what had killed the deceased.
PROSECUTOR: what did you find?
WITNESS: I found a knife next to the body, which was a pearl-handled switchblade about ten inches long, coated with a sticky red substance.
PROSECUTOR: what did you do then?
WITNESS: in the case of a comparatively inexpensive object like this one, I mark it for identification by scratching my initials and the date into the handle.
PROSECUTOR: I show you People’s Exhibit No. 1 for identification. What is it?
WITNESS: It’s the knife I found.
PROSECUTOR: How can you tell that that’s what it is?
WITNESS: As I said, I marked my initials and the date on the handle. They’re right there.
PROSECUTOR: Has the Exhibit changed since you found it?
WITNESS: No, it seems to be in the same condition I found it.
PROSECUTOR: Your honor, I now offer People’s Exhibit No. 1 for identification into evidence as People’s Exhibit No. 1.
COURT: It will be received.
ii) Chain of custody
This method is used when one of the elements for ready identifiability is absent.
A key reason for the elaborate chain-of-custody method is to prevent tampering with evidence.
a. Real evidence
i) Readily or uniquely identifiable
if the item has a unique, one-of-a-kind characteristic, this method can be used. The sponsoring witness merely testifies that the object he originally saw has a specific unique character, and that the item shown to him in court bears that same unique identifier.
Example: D is charged with stabbing V to death. W is a police officer who inspected the crime scene shortly after the killing occurred. After W testifies about beginning the inspection of the crime scene, the following testimony would authenticate the knife as the murder weapon.
PROSECUTOR: What did you do during the inspection?
WITNESS: I looked for any evidence of what had killed the deceased.
PROSECUTOR: what did you find?
WITNESS: I found a knife next to the body, which was a pearl-handled switchblade about ten inches long, coated with a sticky red substance.
PROSECUTOR: what did you do then?
WITNESS: in the case of a comparatively inexpensive object like this one, I mark it for identification by scratching my initials and the date into the handle.
PROSECUTOR: I show you People’s Exhibit No. 1 for identification. What is it?
WITNESS: It’s the knife I found.
PROSECUTOR: How can you tell that that’s what it is?
WITNESS: As I said, I marked my initials and the date on the handle. They’re right there.
PROSECUTOR: Has the Exhibit changed since you found it?
WITNESS: No, it seems to be in the same condition I found it.
PROSECUTOR: Your honor, I now offer People’s Exhibit No. 1 for identification into evidence as People’s Exhibit No. 1.
COURT: It will be received.
ii) Chain of custody
This method is used when one of the elements for ready identifiability is absent.
A key reason for the elaborate chain-of-custody method is to prevent tampering with evidence.
Intro to the Federal Rules of Evidence - 24
B. AUTHENTICATION
1. Authentication
All real and demonstrative evidence must be authenticated before it is admitted. That is, it must be shown to be genuine. This means that the object must be established to be what its proponent claims it to be (FRE 901(a)).
a. Real evidence
It the object is real evidence, authentication usually means showing that the object is the object that was involved in the underlying event.
For example, the actual knife used in the stabbing; a contract signed by P & D; a tape recording a conversation in which D tried to bribe a public official .
b. Demonstrative evidence
If the evidence is demonstrative, authentication usually means showing that the object fairly represents or illustrates what it is claimed to represent or illustrate.
For example, proof that a diagram offered in evidence really shows the position of the parties and witnesses at the time of the murder.
1. Authentication
All real and demonstrative evidence must be authenticated before it is admitted. That is, it must be shown to be genuine. This means that the object must be established to be what its proponent claims it to be (FRE 901(a)).
a. Real evidence
It the object is real evidence, authentication usually means showing that the object is the object that was involved in the underlying event.
For example, the actual knife used in the stabbing; a contract signed by P & D; a tape recording a conversation in which D tried to bribe a public official .
b. Demonstrative evidence
If the evidence is demonstrative, authentication usually means showing that the object fairly represents or illustrates what it is claimed to represent or illustrate.
For example, proof that a diagram offered in evidence really shows the position of the parties and witnesses at the time of the murder.
Intro to the Federal Rules of Evidence - 23
IV. REAL AND DEMONSTRATIVE EVIDENCE
A. REAL EVIDENCE V. DEMONSTRATIVE EVIDENCE
1. Real evidence
Real evidence is a tangible object that played some actual role in the matter that gave rise to the litigation. For example, a knife used in a fatal stabbing.
2. Demonstrative evidence
Demonstrative evidence is tangible evidence that merely illustrates a matter of importance in the litigation. For example, maps, diagrams, models, summaries and other materials created especially for the litigation.
3. Significance of distinction
The foundation requirements needed to authenticate the two types of evidence are different.
A. REAL EVIDENCE V. DEMONSTRATIVE EVIDENCE
1. Real evidence
Real evidence is a tangible object that played some actual role in the matter that gave rise to the litigation. For example, a knife used in a fatal stabbing.
2. Demonstrative evidence
Demonstrative evidence is tangible evidence that merely illustrates a matter of importance in the litigation. For example, maps, diagrams, models, summaries and other materials created especially for the litigation.
3. Significance of distinction
The foundation requirements needed to authenticate the two types of evidence are different.
Monday, February 7, 2011
Intro to the Federal Rules of Evidence - 22
F. PRIVILEGE AGAINST SELF-INCRIMINATION
1. Holders
The privilege applies not only to criminal defendants, but also to any other person who is asked to give testimony that may incriminate him.
For example, witnesses in grand jury proceedings, congressional investigations, other people’s criminal trials, a civil proceeding, pre-trial discovery proceedings (depositions), questioning by the police.
2. Requirements
a. It is asserted by an individual.
b. the communication sought is testimonial.
c. the communication is compulsory.
d. the communication might incriminate the witness.
1. Holders
The privilege applies not only to criminal defendants, but also to any other person who is asked to give testimony that may incriminate him.
For example, witnesses in grand jury proceedings, congressional investigations, other people’s criminal trials, a civil proceeding, pre-trial discovery proceedings (depositions), questioning by the police.
2. Requirements
a. It is asserted by an individual.
b. the communication sought is testimonial.
c. the communication is compulsory.
d. the communication might incriminate the witness.
Intro to the Federal Rules of Evidence - 21
E. HUSBAND-WIFE PRIVILEGE
1. Spousal Immunity
a. Rationale
To promote marital harmony: requiring one spouse to testify against the other tends to break up the marriage.
b. Privilege not to testify in criminal cases
i) Federal Courts – privileges belongs to witness-spouse
Trammel v. U.S., 445 U.S. 40 (1980)
ii) State courts – privilege belongs to party-spouse
c. Immunity may be asserted only During marriage
This immunity applies only if the parties are still married at the time of a trial, but applies to statements made before the marriage took place.
d. Exceptions
Crimes against the other spouse or the children of either.
2. Privilege for Confidential Marital Communication
a. Rationale
To promote marital harmony by encouraging the exchange of confidences between spouses.
a. Privilege not to testify in civil/criminal cases
b. both spouses as holders
c. privilege may be asserted after divorce
It applies even if the parties are no longer married by the time of the trial. But it covers only statements made during the marriage
d. Exceptions
Suits between spouses (e.g., a divorce suit), prosecution for crimes against other spouse/ the children of either, communications made for the purpose of planning or committing a crime.
1. Spousal Immunity
a. Rationale
To promote marital harmony: requiring one spouse to testify against the other tends to break up the marriage.
b. Privilege not to testify in criminal cases
i) Federal Courts – privileges belongs to witness-spouse
Trammel v. U.S., 445 U.S. 40 (1980)
ii) State courts – privilege belongs to party-spouse
c. Immunity may be asserted only During marriage
This immunity applies only if the parties are still married at the time of a trial, but applies to statements made before the marriage took place.
d. Exceptions
Crimes against the other spouse or the children of either.
2. Privilege for Confidential Marital Communication
a. Rationale
To promote marital harmony by encouraging the exchange of confidences between spouses.
a. Privilege not to testify in civil/criminal cases
b. both spouses as holders
c. privilege may be asserted after divorce
It applies even if the parties are no longer married by the time of the trial. But it covers only statements made during the marriage
d. Exceptions
Suits between spouses (e.g., a divorce suit), prosecution for crimes against other spouse/ the children of either, communications made for the purpose of planning or committing a crime.
Intro to the Federal Rules of Evidence - 20
D. ATTORNEY-CLIENT PRIVILEGE
A client has right not to disclose and the right to prevent his lawyer from disclosing any confidential communication between the two of them relating to the professional relationship.
1. Client as Holder
Only the client has the right to invoke and waiver the privilege. The attorney may, however claim the privilege on behalf of the client.
2. Duration of privilege outlives duration of attorney-client relationship.
In Swindler & Berlin v. United States, 524 U.S. 399 (1998), the court held that the federal attorney-client privilege survives the death of the client.
3. Non-applicability of privilege
a. Legal aid in advice in aid of future wrongdoing
b. Claimants through same deceased client
c. Dispute between attorney and client
4. Attorney’s work product protections
An attorney is protected from being required to disclose certain information that he obtains while preparing for a lawsuit.
a. Qualified protection
Documents prepared in anticipation of litigation may be discovered by the other side under certain circumstances under FRCP 26(b)(3).
b. Absolute immunity for mental impressions, conclusions. Etc.
Some materials are so much the product of the lawyer’s own thinking that they receive what is essentially an absolute work product immunity under FRCP 26(b)(3).
A client has right not to disclose and the right to prevent his lawyer from disclosing any confidential communication between the two of them relating to the professional relationship.
1. Client as Holder
Only the client has the right to invoke and waiver the privilege. The attorney may, however claim the privilege on behalf of the client.
2. Duration of privilege outlives duration of attorney-client relationship.
In Swindler & Berlin v. United States, 524 U.S. 399 (1998), the court held that the federal attorney-client privilege survives the death of the client.
3. Non-applicability of privilege
a. Legal aid in advice in aid of future wrongdoing
b. Claimants through same deceased client
c. Dispute between attorney and client
4. Attorney’s work product protections
An attorney is protected from being required to disclose certain information that he obtains while preparing for a lawsuit.
a. Qualified protection
Documents prepared in anticipation of litigation may be discovered by the other side under certain circumstances under FRCP 26(b)(3).
b. Absolute immunity for mental impressions, conclusions. Etc.
Some materials are so much the product of the lawyer’s own thinking that they receive what is essentially an absolute work product immunity under FRCP 26(b)(3).
Intro to the Federal Rules of Evidence - 19
B. GENERAL CONSIDERATIONS
1. Specific relationship
2. Holder
3. Confidentiality
4. Waiver
C. FRE 502 – LIMITATIONS ON WAIVER
1. Two major purposes
1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product — specifically those disputes involving inadvertent disclosure and subject matter waiver.
2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery.
(ACN)
2. Summary of each subsection
(a) waiver limited to the disclosed party
(b) no waiver if inadvertently disclosed & reasonable steps taken
(c) apply more protective law between state and federal law
(d) once protection order, forever protection order
(e) an agreement for the parties only, part of an order against every one.
(f) if protected against waiver in federal court, then protected in state court.
1. Specific relationship
2. Holder
3. Confidentiality
4. Waiver
C. FRE 502 – LIMITATIONS ON WAIVER
1. Two major purposes
1) It resolves some longstanding disputes in the courts about the effect of certain disclosures of communications or information protected by the attorney-client privilege or as work product — specifically those disputes involving inadvertent disclosure and subject matter waiver.
2) It responds to the widespread complaint that litigation costs necessary to protect against waiver of attorney-client privilege or work product have become prohibitive due to the concern that any disclosure (however innocent or minimal) will operate as a subject matter waiver of all protected communications or information. This concern is especially troubling in cases involving electronic discovery.
(ACN)
2. Summary of each subsection
(a) waiver limited to the disclosed party
(b) no waiver if inadvertently disclosed & reasonable steps taken
(c) apply more protective law between state and federal law
(d) once protection order, forever protection order
(e) an agreement for the parties only, part of an order against every one.
(f) if protected against waiver in federal court, then protected in state court.
Intro to the Federal Rules of Evidence - 18
III. PRIVILEGES (ART. V)
Around 1973, in the midst of the Watergate incident, the Rules drafted by the U.S. Supreme Court under the enabling act went to Congress. Nixon was claiming executive privilege. Acutely sensitive on the matter of legislative prerogative, Congress held hearings and prepared committee reports, scrutinized the Rules, and changed them substantially. The deletion of privilege rules was one of them.
Privileges differ from other rules of evidence. They are intended to promote some policy that is external to the goals of a trial. Most other evidence rules are designed to enhance the search for truth and thus for fact-finding process. Privileges hinder than goal by excluding relevant evidence.
A. GOVERNING LAWS (FRE 501)
1. Federal Law
The U.S. Constitution (5th Amend. Privilege against self-incrimination), Act of Congress, the FREs, federal common law : psychotherapist/social worker – patient (Jaffe v. Redmond, 518 U.S. 1 (1996)); attorney-client; spousal privilege.
2. Diversity cases
In diversity cases, the existence and scope of a privilege is decided by the law of the state whose substantive law is being followed.
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
The states vary greatly on what privileges they recognize. All recognize the husband-wife and attorney-client privileges, most by statute. All recognize a privilege for certain government information. Nearly all recognize some kind of physician-patient and clergyman-penitent privileges. Three other privileges are recognized only in a minority of states: journalist-source, parent-child, and accountant-client.
Around 1973, in the midst of the Watergate incident, the Rules drafted by the U.S. Supreme Court under the enabling act went to Congress. Nixon was claiming executive privilege. Acutely sensitive on the matter of legislative prerogative, Congress held hearings and prepared committee reports, scrutinized the Rules, and changed them substantially. The deletion of privilege rules was one of them.
Privileges differ from other rules of evidence. They are intended to promote some policy that is external to the goals of a trial. Most other evidence rules are designed to enhance the search for truth and thus for fact-finding process. Privileges hinder than goal by excluding relevant evidence.
A. GOVERNING LAWS (FRE 501)
1. Federal Law
The U.S. Constitution (5th Amend. Privilege against self-incrimination), Act of Congress, the FREs, federal common law : psychotherapist/social worker – patient (Jaffe v. Redmond, 518 U.S. 1 (1996)); attorney-client; spousal privilege.
2. Diversity cases
In diversity cases, the existence and scope of a privilege is decided by the law of the state whose substantive law is being followed.
Erie R. Co. v. Tompkins, 304 U.S. 64 (1938).
The states vary greatly on what privileges they recognize. All recognize the husband-wife and attorney-client privileges, most by statute. All recognize a privilege for certain government information. Nearly all recognize some kind of physician-patient and clergyman-penitent privileges. Three other privileges are recognized only in a minority of states: journalist-source, parent-child, and accountant-client.
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