Evidence Flash Cards

8/6/2019 Evidence Flash Cards

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Determining Admissibility

(4 Steps)

1. Is the evidence relevant?2. Is there a proper foundation?

a. Ex: Competentwitness?b. Ex:Authenticity of evidence?

3. Is the evidence the proper form?4. Is the evidence beyond the application of, or within an exception to, one of the follow

exclu

sio

nary ru

les?a. Ex: Discretionary exclusion for prejudice? Policy-based exclusions? Hears

privilege, or parol evidence rule?

Relevance Definition &GeneralRule

Definition ofRelevance Evidence is relevantif it has any tendency to make a material more probable or less probable than it would be without the evidence

GeneralRule Relevant evidence is admissible.

Discretionary Exception to

Rule ThatRelevant Evidence isAdmissible

All relevant evidence is admissible unless the court makes a discretionary determinatthat the probative value of the evidence is substantially outweighed by pragmconsiderations.

Six Types ofPragmatic Considerations1. Danger of unfair prejudice (Unfair)2. Confusion of the Issues (Confusion)3. Misleading the Jury (Confusion)4. Undue Delay (Waste of time)5. Undue Delay (Waste of Time)6. Unduly Cumulative (Waste of Time)

What isRelevant? Must relate to time, event, or person inpresentcontroversy.

Generally, the evidence must relate to the time, event, or person involved in the preslitigation, otherwise the evidence is notrelevant.

Exceptions to the rule that

relevant evidence must relate

topresentcontroversy. (8)

Certain Similar Occurrences Are Relevant

1. Causation:Complicated issues of causation may be established by evidence concernother times, events, or persons.

a. Ex: Damage to nearby home to show blasting caused damage to Ps home.2. Prior False Claims or Same Bodily Injury:Evidence that someone has previously fsimilar claims is admissible to show that this claim is false.3. Similar Accidences Caused by Same Eventor Condition:Evidence of prior accidents

injuries caused by same event or condition is admissible to prove the existence of condition, that D knew about it, and that it caused the injury. Absence is generally admissible though.

4. Previous Similar Acts to Prove Motive or Intent: Similar conduct may be introducedprove partys present motive or intent when such elements are relevant.

a. Ex: History of school segregation to show motive to discriminate agaiminorities.

5. Sales ofSimilar Property: Used to prove value.6. Habit: Habit is a regular response to a specific set of circumstances. Habit is relevan

prove that the conduct of the person on a particular occasion was in conformity with t

habit.a. Tip: Words like instinctively and automatically indicate habit.7. Industrial or Business Routine:Evidence that a particular business had an establish

business routine is relevant as tending to show that particular event occurred.8. Industry Custom as Standard for Evidence ofCare: Industry custom may be offered

show adherent to or deviance from an industry wide standard of care.


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Habit Evidence v. Character

EvidenceCharacterSally is always in a hurry.

Bart is a drunk.

Jeff is a careless driver.

Lara is very conscientious about themaintenance of her car.

HabitSally always takes two stairs at a time.Bart stops atCharlies Tavern every night awork and has 4 beers exactly.Jeff never slows down for the YIELD sign onstreet.

Laura checks the breaks on her car evSunday before church.

Discretionary Exclusion ofRelevant Evidence

A trial judge has broad discretion to exclude relevant evidence if itsprobative value substantioutweighs the danger ofunfair prejudice, confusion ofissues, misleading the jury.

Exclusion ofRelevant Evidence

for Public Policy ReasonsGeneral RuleCertain evidence of questionable relevance is excluded because public pofavors the behaviors involved.

5 Public Policy Exclusions of

Relevant Evidence1. Liability insurance2. Subsequent Remedial Measures3. WithdrawnGuilty Pleas or Offers to Plead Guilty4. Settlement Offers or Negotiations5. Offers to Pay or payment ofMedical Expenses

Liability Insurance Exclusion INADMISSIBLE Not relevantfor the purpose ofnegligence or ability to pay a judgmen

ADMISSIBLE Permissible to show ownership or control, impeach, or aspartofan admission

y Ex:Evidence of liability policy if D claims he didnt own the land that P slipped and injurhimself on.

SubsequentRemedial MeasureExclusion (Plus NY Distinction)

INADMISSIBLE Evidence of repairs or other precautionary measures following an injurnot admissible to prove liability of a claim.

ADMISSIBLE To prove ownership, control, or to rebut a claim that precautions wunfeasible, or to prove destruction ofevidence.

NY DISTINCTION: In general, the rule for NY is the same except: SRMs are admissible iproducts liability suitbased upon strict liability for a manufacturing defect.

Settlement Offers orNegotiations Exclusion

INADMISSIBLE To prove liability for or invalidity of a claim that is disputedad to the validand the amount. Not even direct admissions of liability during compromise negotiations admissible. (Cf. offers to pay medical expenses which does not need a disputed claim but allostatement of fact).

ADMISSIBLE For all other purposes.

Ex: P and a third party hit by Ds truck. D settles with third party but doesnt settle withCannot introduce evidence ofsettlements because all settlementnegotiations are covered byrule!!

Withdrawn Guilty Pleas and

Offers to Plead Guilty

Exclusion

INADMISSIBLE For nearly all purposes.

ADMISSIBLE Not admissible

Offers to Pay and PaymentofMedical Expenses

INADMISSIBLE To prove culpable conduct. But, other statements of fact made during offer to pay medical expenses are admissible.

ADMISSIBLE For all other purposes (Cf. settlement offers which requires a disputed claim excludes statements of facts).

Character Evidence Character evidence may be offered as substantive evidence to1. Prove character when it is the ultimate issue of the case, or2. Circumstantial evidence of how a person probably acted.


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Form ofCharacter Evidence The purpose of the offer, and the nature of the case, or or all of the following methodsproving character may be available:1. Evidence ofspecific acts.2. Opinion testimony of a witness who knows the person3. Testimony as to the persons reputation the community.

Rule for Character Evidence in

CivilCases

General RuleCharacter evidence is not admissible in civil cases, regardless of whether i

offered by P or D.

Ex:A P in a suit involving a car accident may not introduce evidence that the D usually ireckless driver to prove that she was negligent at the time in question, nor may D ofevidence that she is a good driver.

Ex: Once a thief always a thief. Inadmissible character evidence.

Exceptions:Character is directly in issue (defamation; negligent hiring).

Rule for Character Evidence in

CriminalCasesGeneral RuleGenerally only accused can initiate. The accused can introduce evidenceher good character to show her innocence of the alleged crime.

How CriminalDefendantCan

Prove Character1. Witness Under the federal rules, a witness for the D may testify as to the defendants go

reputation in the community or his personal opinion concerning that trait.2. D Testifies DirectlyD does not put his character in issue merely by testifying.

puts his credibility in issue. In these cases, the prosecution is limited to impeachmevidence rather than substantive character evidence.

How Prosecution May RebutCriminalDefendants

Character Evidence

Prerequisite D must open the door by introducing character evidence first.1. Cross-Examining Character Witness Cross examine the character witness as per

basis of his testimony, including whetheror nothe knows orhas heardofspecific instancethe defendants misconduct.

a. Use of Specific ActsAny misconduct, including prior arrests, may be inquiabout while cross-examining Ds character witness.

i. Limit Limited to inquiryof the witness, she may notintroduce extrinevidence of misconduct. Be careful to distinguish asking a characwitness whether he is aware of prior arrests, and impeaching a witn

with their arrests, which is improper.2. Introducing Own Witness P may introduce a qualified witness to testify to the Ds b

reputation or give their reputations of the Ds character.

Evidence ofVictims Character

in CriminalCasesThe D may introduce reputation or opinion evidence of a bad character trait of the allegvictim when it is relevantto throw the Ds innocence.

Once the D has introduced evidence of the victims bad character the prosecution may rewith evidence of the (i) the victims good character, or (ii) the defendants bad character for same trait.

Exception Rape shield rule (see next slide).

Rape Exception to IntroducingCharacter Evidence ofVictims

Rule In any civil or criminal proceeding involving alleged sexual misconduct, evidence offeto prove the sexual behavior or sexual disposition of the victim is generally inadmissible.

y Subject to exceptions (see next slide)Exceptions toRape Shield Rule

in Criminal Cases

1. Source ofPhysical Evidence: In a criminal case, a victims sexual behavior is admissiblprove that someone other than the defendant is the source of semen, injury, or otphysical evidence.

2. Previous Contact Between P and D: Also, specific instances of sexual behavior betwthe victim and the accused are admissible for any reason by the prosecution and to proconsent for the defendant.


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Exceptions toRape Shield Rule

in Civil CasesEvidence of the victims sexual behavior is admissible if it is not excluded by any other rule aits probative value substantially outweighs the danger of harm to the victim and of unf

prejudice to any party.

Admissibility ofPrior Acts of

Misconduct

GeneralRuleEvidence of a persons prior acts of misconduct is inadmissible ifthe purposto prove solely to establish a criminaldisposition or badcharacter.

Bad Acts When Admissible

(2)

1. (Non-Propensity) When Relevant to Some Issue Other than the Ds CharacterDispositionMIMIC

M:MotiveI: IntentM:Mistake or AccidentI: Identification (m.o)C:Common plan or scheme

Prerequisites:a. In a criminal case, the prosecution must, provide reasonable notice prior to tria

the general nature of any of this type of evidence it intends to introduce.

b. There must be sufficient evidence to support a jury finding that D committed prior act,

c. Its probative value must not be substantially outweighed byPost-Requisites

a. Must still do 403 balancing test (must still weigh probative value vs. potenprejudice.

b. Court must give a limiting instruction.c. Must give pretrial notice of intent to produce MIMC evidence.

2. (Propensity) Prior Acts ofSexual Assaultor Child Molestation:Evidence of a Ds practs of sexual assault or child molestation is admissible in a case where the D is accusedcommitting an act of sexual assault or child molestation. The party intending to offer t

evidence must disclose it to the D 15 days before trial (or later with good cause).3. (Propensity) Prior Acts As Essential ElementofClaim:

Examples ofNon-Propensity

Uses ofCharacter Evidencey Ex: Prosecution wants to introduce evidence at Ds murder trial that the victim was

detective who testified against him at his trial (conviction) for armed robbery 4 years prAdmissible because this establishes Ds motive for killing victim, not his past acts

propensity.

y Ex: D is accused of killing her mother with an ax and the Defense argues that it wasaccident. P introduces evidence that D threw a knife at her mother a week prior duringargument. Admissible to show lack of mistake but not admissible to show propensityviolence.

y Ex: D is charged with armed robbery of a Wal-Mart in Syracuse earlier in the afternoonJuly 1. Defense:Alibi that he was in Chicago. P wants to introduce evidence that arounoon on July 1 D robbed a target and Sears in Syracuse in the same vicinity as Wal-MAdmissible for identification purposes, contradicts his alibi by placing him in the vicinity

the time ofthe crime.

Real/Demonstrative Evidence Actual physical evidence addressed directlyto the trier of fact. Real evidence may be dircircumstantial, original, or prepared (demonbstrative).


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Judicial Notice

y When/Howy Whaty Civil v.Criminal Distinction

y When/How:o The court may do itsuasponteo A party may formally requestit at any time, even on appeal.

y Whato Indisputable Factso Common Knowledge (notorious facts)o Easily Verifiable by Unquestionable Sources (Science Facts or almanac facts)

y Civil v. Criminal Distinction:Civil cases judicial notice is conclusive but in criminal cathe jury is instructed that they can but dont have to find it correct.

Real Evidence Actual or physical evidence addressed directly to the trier of fact. May be direct, circumstanoriginal or prepared (demonstrative).

Prerequisites for AdmissibilityofReal Evidence

1. Authenticationa. Testimony of a witness that she recognizes the object as what the propon

claims it is.b. Substantially Unbroken Chain ofCustody: Evidence that the object has b

held in a unbroken chain of possession.2. Same Condition: If the condition of the object is significant, it must be shown to be

substantially the same condition at trial that it was at the event at issue.3. Legal Relevance: Some policy or principal may outweigh the need to admit the r

evidence, like physical inconvenience for bringing it into the court, indecency, or undprejudice.

Admissibility ofVarious types

ofReal Evidence1. Reproductions & Explanatory Real Evidence:

a.Admissible: Photographs, diagrams, maps, or other reproductions admissible if their value is not outweighed by the danger of unfair prejudice

b. Permitted but not Admissible: Items used entirely for explanatory purpoare permitted at trial, but are usually not admitted into evidence.

2. Maps Charts, Models, Etc.:Admissible but must be authenticated.3. Exhibition ofChild in Paternity Suits:Exhibition of children is almost always allowed

show that it is the same race as the father.Courts are divided on whether or not physresemblance is permissible.

4. Exhibition of Injuries: Exhibition of injuries in a personal injury or criminal casegenerally permitted, but the court has discretion to exclude this if unfair prejudice wo

result.5. Jury View ofthe Scene: Permitted.6. Demonstrations: Permitted.

Documentary Evidence Documentary evidence must be relevantin order to be admissible.Authenticity of writingan elementof its relevancy.

Evidence ofDocumentaryAuthenticity

1. Pleadings/Stipulation:Awriting may be authenticated by pleadings or stipulation.2. Admission/Acted:Evidence that the party against whom it is offered has either admit

its authenticity or acted upon it as authentic.3. Eyewitness Testimony: Testimony of a witness who saw it executed or hears

acknowledged.4. Handwriting Verifications:Three methods:

a. Non-expertwith personal knowledge of the alleged writers handwriting.b. Opinion of an expertwho has compared the writing to samples of the mak

handwriting.c. Trier of fact may make a determination by comparison with a writingsampl

5. Ancient Documents:Evidence that it is:a. 20 years oldb. Condition indicates its free of suspicionc. Place where such writing would be kept.

6. Reply Letter Doctrine:Evidence that it was written in response to a communication sto the author.


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SelfAuthenticating Documents 1. Certified copies ofpublic records2. Officialpublications3. Newspapers and periodicals4. Trade inscriptions5. Acknowledged documents6. Commercial paper and related documents7. C

ertified business recordsAuthentication ofOralStatements

When a statement is admissible only when said by a particular person, then authenticatrequires the identityofthe person.1. Voice IdentificationA voice may be identified by the opinion of anyone who has he

the voice at any time, including after litigation has begun and for the sole purposetestifying.

2. Telephone Conversations Authentication if one of the parties to the conversattestifies:

a. Recognized the other partys voiceb. The speaker had knowledge of certain facts that only a particular person wo

havec. He called a particular persons number and a voice answered as that person

that persons residence, OR

d.

He called a business and talked with the person answering the phone abmatters relevant to the business.

Authentication ofPhotographs Admissible only if identified by a witness as a portrayal of certain facts relevant to the issue averified by the witness as a correct representation ofthose facts.

y Generally, it is not necessary to have the photographer verify he was taking a picturethe actual spot.

Unattended Camera: If a photo was taken when no person could authenticate the scenpresent, the photograph may be admitted upon a showing that the camera was propeoperating at the time and that the photograph was developed from film obtained from tcamera.

Authentication ofX-Rays Need more than someone saying that it is a fair and accurate representation. Need:1. Process used is accurate2. Machine was in working order3. Operator was qualified to use it4. Chain ofCustody

Best Evidence Rule (i.e.

Original DocumentRule)Rule: To prove the term s of a writing (including a recording, photograph, or x-ray) original writing must be produced ifthe terms of the writing are material.

Rule AppliesWhen: The rule applies to two situations:1. Legally Operative Instruments: When the writing is legally operative ordisposit

instrument;or2. Witness Only Knows From the Document: The knowledge of a witness concerning a

results from having read it in the document.


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When Best Evidence Rule Does

Not Apply

1. Fact to Be Proved Exists Independently of the Writing: The rule does not apply whthe fact to be proved has an existence independent of any writing.

a.Many writings record details of essentially non-written transactions. Otestimony of these facts may be given without the original writings recordthe event.

2. Writing is Collateral to Litigated Issue: The rule does not apply where the writing isminor importance (i

.e.collateral) to the matter in controversy

.3. Summaries ofVoluminous Records: The rule does not apply to summaries of volumin

records. It would be inconvenient to examine a voluminous collection of writings in coso the proponent may present their contents in the form of a chart or summary.

4. Public Records: The rule doesnt apply to copies of public records that are certifiedcorrect or testified to as correct.

Examples ofWhen bestEvidenceRule Applies vs.

When it Doesnt

Best Evidence Rule Applies

Nurse seeks to testify regarding thecontent of the medical record that sheread.

Party seeks to prove the contents of a

contract through witness testimony.

Best Evidence

Rule Doesnt Apply

Nurse who took vital signs may testify to themwithout producing the medical record.

Witness may testify directly that he is 30 years oland married, without producing the respective

certificates.

What qualified as an originalwriting?

Original, Defined: The writing itself or any counterpart intended to have the same effect.Film negatives/prints.

Duplicate, Defined: Any counterpart produced by any mechanical means that accuratreproduced the original. Ex: Photocopy, carbon copy, computer printouts.

Rule:A duplicate is admissible to the same extent as the original, unless:1. There is a genuine question about the authenticity of the original, or2. It would be unfair to admit the duplicate.NY Narrowing for Duplicates: Photocopies and other duplicates are acceptable substitutes

the original only ifthey were made in the regular course ofbusiness.

Handwritten copies are not duplicates or originals.

When will non-production ofthe original be excused?

A party does not need to produce the original (or an acceptable duplicate) if the original is:1. Lost or cannot be found with due diligence2. Destroyed without bad faith3. Cannot be obtained with legal process.

Who Makes Determinations of

Admissibility ofDuplicates,

Copies, or oral Testimony

Courtmakes determinations of fact regarding the admissibility of duplicates, other copies, aoral testimony as to the contents of an original . However, the FRE reserve the followquestions for the jury:1. Whether the original ever existed.2. Whether a writing, recording or photograph produced at trial is the original3. Whether the evidence offered correctly reflects the contents of the original.

Parol EvidenceRule Rule: If an agreement is reduced to a writing, that writing is the agreement and heconstitutes the only admissible evidence ofit.

y Extrinsic evidence of the negotiations areinadmissible .y Prior or contemporaneous negotiations are merged into the written agreement, and

thus inadmissible to vary the terms of the writing.


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Parol EvidenceRule Does Not

ApplyWhen . . .

Doesnt apply to exclude evidence of prior or contemporaneous agreements in the followcircumstances:1. Incomplete or Ambiguous Agreement:Admissible to complete an incomplete contrac

explain an ambiguity.2. Reformation of Contract: Doesnt apply when the party alleges facts (like mista

entitling him to reformation.

3.Challenge t

oValidity

ofCo

ntract:

Show that a contract isv

oid

orv

oid

able, or was msubject to a valid condition precedentthat has not been satisfied.4. Subsequent Negotiations: The rule only applies to negotiations prior to, or at the time

the execution of the contract. Parol evidence is admissible to show subsequemodification or discharge of the written contract.

BasicRules for Competency In order to be competent the witness must:1. Havepersonalknowledge of the matter.2. Declare he will testify truthfully.

Modern Limitations on

Competency1. Infancy Infants are competent if the trial judge determines so according to his capac

and intelligence.2. Insanity May testify, provided he understands the obligation to be truthful and has

capacity.3. Judges/Jurors Presiding judge and witness are incompetentto testify before the jury

which they are sitting.Dead Mans Statute

y Interested Partiesy Federal Application

Rule In a civil action, an interested party may not testify against a dead party, or abcommunications or transactions with a dead party.

Interested Party: Only if the outcome will have a legally binding effect on the persons rigor obligations.

Federal Application:Although the FRE doesnt have a Dead Mans statute, the MBE may test on it by telling you in the question that the case arises in a state with one.

Waiver ofthe Dead Mans

StatuteThe dead persons rights may be waived if:1. The decedents representative does notobject.2. The decedents representative testifies about the transaction.3. The decedents testimony is introduced.

NYWrinkle on the Dead MansStatute

The NY Dead Mans statute is similar to the rule in most other states but with one importexception.

Accident Exception: In an accidentcase on negligence, the surviving party may:

y Testify aboutfacts surrounding the accident (what the decedentdid), buty May nottestify about what the decedentsaid.Ex: P sues Ds estate after auto accident. D died shortly after. The P may testify timmediately afterthe accident D staggered as she approached. But, P may nottestify that D sso, sorry this was all my fault.

PresentRecollection Revived

(RefreshingRecollection)

Look at anything to refresh, but cant read directly from it.

W may use anywriting or thing for the purpose of refreshing her present recollection.usually may not read from the writing while she actually testifies because the writing is nauthenticated and not in evidence.


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PastRecollection Recorded

(Recorded Recollection)

If refreshing fails, may read the writing directly into evidence if a proper foundation

laid.

Foundation for PastRecollectionRecorded1. W had at one timepersonalknowledgeof the facts2. Writing was made by witness, under her direction, or adoptedby witness.3.

Writing was tim

elym

ad

e when the matter was fresh in Ws mind.4. Writing is accurate.

5. Witness has insufficient recollection to testify fully and accurately.Inspection & Use on Cross: Adverse party is entitled to have the writing produced at trialcross-examine the witness on the writing, and introduce portions relating to the witnetestimony into evidence.

PastRecollection Refreshed

vs. PastRecollection Recorded

PresentRecollection Refreshed

Any writing can be used, includingphotos.

Witness cannot read from the writing

while testifying.

There is no hearsay problem, becausethe writing is not offered into evidence.

PastRecollection

RecordedOnly a writing that meets 5 foundatiorequirements may be used.

The writing itself is read into evidence.

This is hearsay, but falls within a specific exceptto the hearsay rule.

GeneralRule for Opinion

TestimonyofLayWitnessesRULE: Opinion testimony oflay witnesses is inadmissibleunless the testimony is regardin1. Thegeneral appearance of condition of a person.2. Thestate of emotion of a person3. Matters involvingsense recognition4. Voice or handwriting identification5. Thespeedof the moving object6. The value of his own services7. The rational orirrational nature of anothers conduct8. Intoxication of another.Law Testimony is NOT Admissible: In general and with regard to whether one acted asagent or whether an agreement was made.

GeneralRule for OpinionTestimony from Expert

Witnesses

An expert may state an opinion or conclusion, provided:1. The subjectmatter is one where scientific, technical, or other specialized knowle

would assist the trier of fact(i.e. its relevant and reliable).2. The witness i s qualified as an expert (i.e. posses special knowledge, skill, experien

training, or education).3. The expert possesses a reasonable probability regarding his opinion, and4. The opinion is supported by aproper factual basis.

Proper Factual Basis for

Expert Opinion

1. Personal observation2. Facts made known to the expert at trial3. Facts not known personally but supplied to him outside the courtroom and of a ty

reasonably reliedupon by experts in the particular field.

Exception to the Admissibility

ofExpert Opinion

An expertmay render an opinion as to the ultimate issue in the case. Exceptin a crimicase where the Ds mental state is an essential element of the crime or defense, an expert mnot state an opinion as to whether the accused did or did not have the mental state in issue.


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ExpertCross Examination on

Text and TreatisesExpert may be cross-examined concerning contents of any publication established as a reliaauthority. Texts can be used to not only impeach experts but also as substantive evidesubject to the following limit:1. An expertmust be on the standwhen an except is read from a treatise; and2. The relevant portion is readinto evidence but is notreceived as an exhibit.

Cross-ExaminationScope

Restrictions

Scope1. The scope of direct examination, including all reasonable inferences that may be dra

from it2. Testing the credibility of the witness.Collateral MattersGeneral rule is that cross-examiner is stuck with whatever answers the witness gives him. Bcertain recognized matters of impeachment (bias, interest, or a conviction) may be developby extrinsic evidence because theyre sufficiently important.

Impeachment Defined Impeachment means the casting of an adverse reflection on the veracity (character truthfulness) of the witness.

y May Not Impeach on Collateral Matters: Where a witness makes a statement not direrelevant to the issue in the case, the rule against impeachment on a collateral matapplies to barhis opponentfrom proving the statementuntrue by extrinsic evidence or

prior inconsistentstatement.Prior Inconsistent Statements

for Impeachment

Impeachment By Prior Inconsistent Statements: The witness has made statemeinconsistent with his present testimony. The statementmustbe relevantto some issue in case.

Means ofProof1. Cross Examination2. Extrinsic Evidence (if not a collateral matter)Foundation: Witness must be given an opportunity to explain or deny the inconsiststatement.

y Exception: Inconsistent statements by hearsay declarants may be used to impedespite the lack of foundation.

y Exception: When justice requires (witnesses unavailable when inconsistent statemis discovered).

Prior Inconsistent Statements & Hearsay: Usually, prior inconsistent statements are hearadmissible onlyfor impeachment purposes. If however, the statement was made under oatha prior proceeding, it is admissible nonhearsay and may be admitted as substantive evidence

Bias or Interestfor

Impeachment

Bias or Interestfor Impeachment:Evidence that a witness is biased or has an interest in outcome of a suit tends to show that the witness has a motive to lie.

Means ofProof1. Cross Examination2. Extrinsic EvidenceFoundation:

y Witness must be asked on cross-examination about facts showing bias or interbefore extrinsic evidence is allowed.

y If these facts are admittedon cross-examination, admissibility of extrinsic evidencwithin the courts discretion.

y Tip: Watch for facts indicating that the foundation requirement for extrinsic evideof bias or interest has been fulfilled . Evidence that is otherwise inadmissible (arrests, liability insurance) may be introduced if relevant for these impeachmpurposes, provided the proper foundation is laid .


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Conviction ofa Crime for

ImpeachmentRule:Awitness may be impeached by proof of a conviction (arrest or indictment is not enoufor certain crimes.A pending appeal or review doesnt affect the availability for impeachmen

Types ofCrimes Allowed toUse for Impeachment

y Crimes Involving Dishonesty (No Discretion toCourt):Any crime requiring an acdishonesty or false statement.

y Felonies NotInvolving Dishonesty (Discretion):A witness may also be impeachedany felony that does not involve dishonesty but the court has direction not to allow itif:o Witness is Criminal D + Prosecution Cant Meet 403 Burden: Witness be

impeached is a criminaldefendantand the prosecution has not shown that convictions probative value outweighs its prejudicial effect.

o All Other Witnesses + Court Does 403 Balance: In the case of all otwitnesses, the court determines that the convictions probative valuesubstantially outweighed by its prejudicial effect.

y Juvenile Delinquency, Remote, or Defective Convictions:Never are admissible.Means ofProof1. Cross Examination2. Extrinsic EvidenceFoundation: None required

Prior Bad Acts for

Impeachment (Specific

Instances ofMisconduct)

Prior Bad Acts:AAn act of misconduct can only be asked about in good faith and onlyif probative on the issue of truthfulness (i.e. is an act of deceit or lying).

Means ofProof1. Cross ExaminationOnly: A specific act of misconduct, used to attack veracity (

propensity) can be elicited on cross, only.

Foundation: None required.

Arrests vs. Bad Acts:Asking about specific instances of misconduct does not include askaboutarrests. An arrest in and ofitself is not a bad act.Ex: You can ask if witness embezz

$, but not if he was arrested for embezzlement.Opinion or Reputation

Evidence for Truthfulness for

Impeachment

Opinion or Reputation for Truthfulness:A witness may be impeached by showing thathas a poor reputation for truthfulness.

y Includes reputation in business circles and in the community. Also includes persoopinion or reputation.

y NYWrinkle:Reputation only, notopinion.Means ofProof1. Calling OtherWitnessesFoundation: None required.

Sensory Deficiencies forImpeachment

Means ofProof:1. Cross Examination2. Extrinsic EvidenceFoundation: None required.


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Waiver ofPrivileges &

Exceptions

Losing the Privilege1. Voluntary (Explicit Waiver): Only the privilege holderhas the power to waive

privilege (because they own it).2. Subject Matter Waiver:Avoluntary waiver of the privilege as to some communicati

will also waive the privilege as to other communications if:a. The partial disclosure is intentional, andb.

The disclosed and undisclosed communications concern the same-su

bjmatter, andc. Fairness requires that the disclosed and undisclosed communications

considered together.3. Failure toClaim: Failure to claim privilege waives it.4. Waiver by Contract: Privileges may be waived by contract.Exceptions1. InadvertentWaiver: Privileged is not waived if it is done with no fault on the part of

privilege owner. This may happen because there wasa. Eavesdroppersb. Someone wrongfully waives the privilege.

2. Future Crime or Fraud:Example the client tells the attorney Help me make these brilook like business e

xpenses

.

3. Holder Puts the Content in Issue:Ex, D is in a tax fraud case claims that her attorney ther to do it; patient in a personal injury suit puts her physical condition into issue.

Attorney-Client Privilege Elements1. Confidential Communication2. Status:Client and attorney3. Purpose:Communication is for the purpose of obtaining legal advice.Definitions1. Attorney: Includes a member of the bar, as well as

a. Someone the client reasonably believes is a member of the bar, arepresents as such.

b. Any agentreasonably necessary to facilitate the provision of legal services Paralegals, translators, investigators, and accountants, i

fthey are helping attorney provide legal services).

2. Client: Includes a person seeking to become a client.3. Confidentially:Client mustintend confidentiality, so there is no confidentiality when:

a. The clientknows a third party is listeningb. The client asks the attorney to disclose to a third party

4. JointClientRule: If two or more clients with common interestconsult the same attorntheir communications concerning the common interest are privileged as to third parties

a. Limit: If they later have a dispute with each other concerning the comminterest, the privilege does not apply as between them.

Doctor-Patient Privilege Elements:1. Confidential Communications and information2. Status:doctor and patient3.

Purpose:Medical Treatment

Special Considerations1. Broad Construction ofDoctor Includes therapists, nurses, and doctors assistants.

a. NYWrinkle:Also includes social workers, dentists, podiatrists, and chiropracto2. Scope: Extends to include information acquired by the doctor (like tests results a

observations) in addition to communications from the patient.3. Psychotherapists:

a. Federal:Covers only psychotherapists.b. For the Bar:Apply doctor patient unless specifically told youre in federal court


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Marital Communications

PrivilegeApplication: Civil and criminal, communication only (as opposed to the substance of communication).

Elements1. Confidential communications2. Between married spouses3.

For the pu

rpo

se ofanything

Rationale: To encourage frank and open discussion among spouses.

Who Owns the Privilege: Either spouse may invoke the privilege, meaning that it canwaived only by both spouses.

Spousal Immunity (SpousalTestimonial Privilege)

Application:Criminal cases only(no criminal cases), testimony against the spouse.

Federal Rule: In a criminal case, the prosecution cannot compel the Ds spouse to tesagainst the D.

y NY:Notrecognized in NY.Rationale: To protect marital harmony.

Elements:1. Applies only to criminal cases.2. Covers only testimony againstthe spouse.3. So long as witness and defendant are currently married.4. May be waived by the witness spouse.Exceptions:Applicable to both spousal immunity and confidential communications privilege1. In furtherance offuture crime or fraud2. Acts those aredestructive to the family unit.

Hearsay Rule (Rule 801) Example:He toldme he hada gun.If offered to show that he really had a gun, it is hearsa

y Hearsay, Defined:Astatementother than one made by the declarant while testifyat trial or hearing, offered in evidence to prove the truth ofthe matter asserted.

y Hearsay is NOT Admissible: If a statement is hearsay and no exception to the rapplies, the evidence must be excluded upon appropriate objection.y Rationale forRule: The adverse party has no opportunity to cross the declarant.

Statement, Defined (for

Hearsay Rule)For the purposes of the hearsay rule, a statement is:1. An oral or written assertion, or2. Non-verbal conduct intended as an assertion (nod of the head).


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Four Principal Categories of

Non-Hearsay Purposes

1. Impeachment: Prior statement offered to show that the witness has been inconsistewithout necessarily being offered to prove the truth of the prior statement.

a. Limit: BUT, if the purpose of the prior statement is being offered to prove the trof the matter than it is inadmissible hearsay.

b. Example: W testifies for P that he saw the Dodge run the red light. Evidence thatold police a few days after the accident that it was actually the Pontiac that ran

red light.2. Verbal Acts: Words with independent legal significance(when the law attaches rig

and obligations to certain words simply because they are said) will not be hearsay.a. Types ofVerbalActs:

i. Words of offer, repudiation, and cancellation of contract.ii. Words that have the effect of making a bribe.

iii. Words that are themselves an act of perjury or a crimimisrepresentation or a defamation.

b. Example: Ps complaint alleges newspaper libeled him. Ps introduction of newspaper article saying that P stole a car. Admissible because libel is a verbalwith legal significance. Admissible verbal acts, nothearsay. The purpose is to shthe words were said, notwhetheror nottheyre true.

c. Example: To prove that P had permission to drive to Students car, may P tesover a hearsay objection

:A

s student handed me the keys to his car he said Ymay drive my car to Buffalo this weekend .Admissible verbal acts, nothearsay.purpose is to showtheyhad an agreement, theyhave legallyoperative effect.

3. To Show Effecton Person WhoHeard Or Read Statement: If a statement is relevsimply because someone heard it or read it, it is not hearsay.Ex, to show that someone notice or that someone had a reasonable belief.

a. Example: P sues after slipping on a banana peel in supermarket. Witntestimony: Several minutes before P fell, I heard another shopper tell the manathere was a banana peel on the floor.This is admissible non-hearsay, offeredshowthe notice on manager, notthatthe banana was actuallyonfloor.

4. Circumstantial Evidence of Speakers State of Mind: Statement that unintentionreveals something about the speakers state of mind is not hearsay . Ex, statemedemonstrating insanity, lies that demonstrate a consciousness of guilt, questions t

demonstrate a lackofknowledge.a. Example: D is charged with murder and he claims insanity. W for defense testithat two days before the killing, D said I am Elvis. Its good to be back. Thadmissible non-hearsay because the purpose is to reflectstate ofmind, notwhet

he is trulyElvis.

Key QuestionWhenDeterminingHearsay

Ask yourself: does it matter if the declarant is telling the truth? If the answer is no, then it is hearsay, because we dont really care about the declarants credibility .This shouldget youthe purpose for which the statementis being offered.

OutofCourt Statements Not

Hearsay Under the Federal

Rules (3)

1. Prior Statement ByWitness2. Admissions by Party Opponents3. Vicarious Admissions


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Prior Statement ByWitness

Hearsay RuleRule: Under FRE, prior statement by a witness is not hearsay if:1. (Not in NY)The prior statement is inconsistentwith the declarants in-court testimony a

wasgiven under oath in a formal proceeding. Note, police statements are never forproceedings.

a. Example: W testifies at deposition that the light was green . At trial, W testithat the light was red. May counsel introduce evidence of the deposit

testimony?i. FRE: YES, for BOTH impeachment purposes, AND for the substant

content under the prior statement by witness exception.ii. NY: YES for impeachment. No for substantive matters.

2. (Not in NY) The prior statement is consistentwith the declarants in-court testimony is offered to rebut a charge that the witness is lying or exaggerating because of somotive (and the statement as made before any motive to lie or exaggerate arose); or

3. The prior statement is one ofidentificationof a person made after perceiving him.a. NY Distinction: Hearsay exception for prior statements of identification app

only to criminalcases.Admissions by Party Opponent

Hearsay RuleRule:Admissions of a party opponent are not hearsay under the Federal Rules. To beadmission, the statement need not have been against the declarants interest when made, amay even be in the form of an opinion.

Ratio

nale:

You say it, youre stuck with it.Example: D charged with tax evasion in 2004. To prove it, P offers into evidence a l

application D submitted to bank in 2004. D objects that the loan application, which was filout with inflated numbers, was self-serving and unreliable. This is admissible hearsay becauis an admission by a partyopponent.

Vicarious AdmissionsHearsayRules

1. Co-PartiesAdmissible of co-parties are not receivable against other co-parties merbecause they happen to be joined as parties.

2. Authorized Spokesperson The statement of a person authorized to speak on its behcan be admitted against the party as an admission (e.g. statement by a companys PR firm

3. Agents Statements by an agent concerning a matter within the scope of the agency, mwhile the relationship exists, are not hearsay and may be admitted.

4. Co-ConspiratorsAdmissions of one conspirator, made to a third-party in furtherance conspiracy to commit a crime or civil wrong at a time when the declarant was participat

in the conspiracy, are admissible against co-conspirators.a. Limit Testimonial admissions of a conspirator are admissible against anot

conspirator only if there was an opportunity to cross examine the heardeclarant.

Hearsay Exceptions

UnavailabilityRequired (5)

1. Former Testimony: Statement made underoath at same or at other proceeding at whthe party against whom it is offered had motive andopportunity to develop testimony.

2. Statement Against Interest: Statement against declarants pecuniary, proprietary,penalinterestwhen made.

3. Dying Declaration: Statement made while declarant believed death was immineconcerning the cause of circumstances ofimpending death.

4. Statementof Personal or Family History: Statement of personal or family history (birth, death, marriage) made by a familymemberor one intimately associated with family.

5.

Statement Off

ered Against Party Pro

cu

ring Declarants Unavailability:

Statemenunavailable declarantofferedagainst party who procureddeclarants unavailability.


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Unavailability Definition

(Grounds) for Purposes of

Hearsay Rule

Grounds ofUnavailability1. Privilege2. Absence from Jurisdiction3. Illness or Death4. Lack ofMemory (NOT NY)5. Stubborn Refusal to Testify (NOT NY)Additi

onal NY Gr

ounds1. Declarant is 100+ miles from the court.

2. Declarant is a doctor.Former Testimony ExceptiontoHearsay

Prerequisite:UnavailabilityRule: Testimony of now unavailable witness, from prior hearing or deposition, is admissible1. Party against whom the testimony is offered or (in a civil case) the partys predecessor

interest was apartyin the former action.2. Former action involved thesame subjection matter(though need not be identical COA)3. Testimony was given under oath; and4. Party against whom testimony is offered had opportunityand similarmotive at pr

hearing to develop the declarants testimony.Rationale: If the line of questioning already occurred, and we cant get the live witness, thwed rather have the transcript from that as opposed to nothing.

Grand Ju

ry Testimo

ny No

t a Hearing

Because they do not provide opportunity for crossNY Distinction:Additional Requirements: (1) Criminal Trial Only; (2) Hearing on felocomplaint or a conditional deposition; (3) D and charge must be the same.

Statement Against Interest

Exception toHearsay

Prerequisite:UnavailabilityElements: Statements and collateral facts contained in the statement are admissible if:1. Statement is against declarantspecuniary,proprietary, orpenalinterest.2. Statement was against declarants interestwhen made.3. Declarant hadpersonalknowledge of the facts.4. Declarantknewthe statement was against herinterest when she made it.Extra Elements in Criminal Cases: When a criminal D wants to show innocence introducing anothers statements admitting the crime, corroborating circumstanindicating the trustworthiness of those statements are required.Limit:Covers onlyremarks implicating declarant, notthe whole conversation.

Dying Declaratio

ns Exceptio

ntoHearsay Prerequ

isite:U

navailability.Elements:A statement made by a now unavailable declarant is admissible if:1. In a homicidecase (civilor criminal),2. The declarantbelievedhis death was imminent(even if he survives); and3. The statement concerned the cause or circumstances of what he believed to be

impending death.NYWrinkle:Only criminal homicide cases (Cf. FRE, which allows in civil cases too).

Statements ofPersonal FamilyHistory Exception toHearsay

Prerequisite:UnavailabilityElements: Statements by a now unavailable declarant are admissible if1. Statement concernsbirths, marriages, divorces, relationships, genealogical status,2. The declarant is a member of the familyin question or intimately associated, and3. Statements based onpersonalknowledge of the facts or knowledge of family reputatio

Statements Offered Against

Party Procuring DeclarantsUnavailability Exception toHearsay (Forfeiture by

Wrongdoing)

Prerequisite:Unavailability

Elements:A declarants out of court statement may be offered against a party who:1. Intentionally, and2. Wrongfully3. Making (or acquiescence thereof) the declarantunavailable.4. Intentmust be specifically to prevent witness from testifying.NY Distinction:Burden ofProofRegarding PartysWrongdoing1. FRE: Preponderance2. NY:Clear & Convincing


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ListofHearsay Exceptions

When Declarants Availabilityis Immaterial (12)

1. Present State ofMind2. Excited Utterances3. Present Sense Impressions4. Declarations of Physical Condition5. Business Records6. Past Recollections Recorded7.

Official Records & Other Official Writings

8. Ancient Documents & Property Docs9. Learned Treatises10. Reputation11. Family Records12.Market Reports13. StatementsMade to Obtain Medical Car

(1) Present State ofMind

Exception toHearsay

A statement of a declarants then-existing state of mind, emotion, sensation, or physcondition is admissible. It is usually offered to establish a persons intent or circumstantial evidence that the intent was carried out. Except as to certain facts concernthe declarants will, however, a statement ofmemory or beliefis not admissible to prove truth of the matter.

(2) Excited Utterance

Exception toHearsay

Elements:1. The statement concerns astartling event2. And was made while the declarant was still under the stress caused by the event3. Rationale: Speaker is too freaked out to lie.ExcitedUtterance Factors1. Traumatic Event2. Relatively Short Passage of Time3.

VerbalC

lues (ex

clamations, yelling, etc.)(3) Present Sense Impression

Exception toHearsayWhat it Is:Comments made concurrently with the sense impression of an event that is necessarily exciting may eb admissible.Elements:1. The statementdescribes an event,2. And is made while the event is occurring, orimmediately thereafter.3. Rationale:Contemporaneousness declarant has no time to fabricate.4. NY Distinction: Requires corroborating evidence.Example: D on trial for stealing from Ps garden. P testifies that on the day of the robbery,neighbor called and said, Im looking out my window, and Im watching D take your priztomatoes. Admissible hearsay because itis apresentsense impression.

(4) StatementofThen-ExistingMental, Emotional, or Physical

Condition

Elements: This exception allows admission of:1. Acontemporaneous statement2. Concerning the declarants then existinga. Physical condition, or

b. State of Mind(includes emotions, mental feelings, intent or future plans).3. Does NOT Include: Statements ofmemoryabout apast condition.4. Does Include: Statements offuture plans. NY Distinctions:1. Physical Condition to Layperson: Declarant must be unavailable if its a statement ab

aphysical condition made to a layperson (and not a doctor).2. Future Intent to Prove ConductofThird-Party: If a statement offuture intentis offe

to prove the conduct of a thirdperson, New York requires:a. Corroboration (of the connection between the declarant and the third perso

andb. That the declarant is unavailable.

Example: Ps estate sues D life insurance company for nonpayment of proceeds upon Ps deDefense is suicide. D seeks to introduce a note found in Ps apartment in which she said:1. I was sad. Inadmissible because itis a statementofa memoryofa pastcondition.2. I am sad. Admissible underthen-existing emotional condition b/c its contemporaneous.3. Next week, Im going to end it all . Admissible because it is a statementofa then-exist

future plan.


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(5) BusinessRecords

Exception toHearsay

Elements:Allows admission of:1. Records of a business (any type, including public agencies)2. Made in the regular course of business (i.e. isgermane to the business or relates to w

the business does).3. Where the business regularlykeeps such records4. Made contemporaneouslywith the event recorded, and5.

The contents consists ofa. Information observedby the employee of the business, orb. A statement that falls within some other hearsay exception.

Caution Police Reports: While police reports may qualify as business records under socircumstances, remember that witnesses are not under a business duty to convey informatto the police. If this information doesnt get in here, trypublic records hearsay exception.Example: Pedestrian sues driver for recklessly running him down. At trial, P seeksintroduce the report of the officer, who arrived at the scene 10 minutes after the accident.report states:1. Upon arrival, I measured the skid marks 50 feet in length. Admissible as a regu

business record, made in the regular course of business, observed by the employcontemporaneously withthe event.

2. Another officer, who witnessed the accident, told met that Driver was driving nea60 miles per h

our.

Police Officer

A

Police Officer B

R

eport.A

dmissible as a regubusiness record, made in the regular course of business, observed by the emplocontemporaneously withthe event.

3. Bystander told me, I saw the accident and Driver ran through the ssign.BystanderOfficerRecord. Inadmissible because the bystander is notan employethe business.

4. Driver told me, I didnt see the stop sign. DriverPolice OfficerReport. Inadmissas a business record because the driver isnt a police officer, BUT gets in as a statem

againstinterest.

Hospital/Nurse Example ofthe

BusinessRecords Exception to

Hearsay

P taken to ER and treated by nurse. P sues D for negligence as cause of accident. D seekintroduce hospital record in which the nurse made the following notations immediately afexamining the P:1. Slight bruises on arms and legs. Nurse Report. Admissible as business rec

exception tohearsay rule.2. Patient says she feels no pain. P Nurse Report. Pto nurse is germane to medtreatment so itgets in underthatexception tohearsay. Nurse to reportgets in as busin

record exception.3. Patient says she ran a red light. P Nurse Report. Inadmissible. This is a pa

admission butitis notgermane to medicaltreatmentso itdoesntqualifyforthe exception

Laying the Foundation forBusinessRecords & Official

Records (Exception 5& 7)

Two Methods to Lay Foundation for BusinessRecords:1. Live Testimony:Call a knowledgeable witness who can testify to the five elements of

business records hearsay exception (called a custodian of records).2. Affidavit: Submit a written certification under oath attesting to the elements of busin

records hearsay exception.NY Distinction: Written certification may be used only in civilcases and only for the businrecords of a non-party.

(6) PastReco

llectio

n Reco

rdedException toHearsay If a witnesss memory cannot be revived (by refreshing), a party may introduce a memorandthat the witness made at or near the time of the event. The writing itself is not admissiblmust be read to the jury.


20/21

(7) Official Records/Official

Documents Exception to

Hearsay

Federal Elements:1. In addition to observations by employees of the public agency, may also include

a. The conclusions made by public employees after an officialinvestigation.i. Ex: Police officers conclusion about fault in an accident report.

2. Caution Police Reports: Police reports that do not qualify as business records mayadmitted as an official record. Even officers opinion and non-legal conclusions

admissible under this ex

ception. BUT

:a. Police reportmay NOTbe offered against a criminaldefendant, and

b. Statements of others within the report will be excluded unless they can geunder another hearsay exception.

NY Distinction: Rarely applies the public records exception to the hearsay rule.Example: Pedestrian sues driver for recklessly running him down. At trial, P seeksintroduce the reportofthe officer, who arrived at the scene 10 minutes after the accident.report states: Cause of accident: Drivers excessive speed and failure to yield rightway.Admissible because it is a conclusion aboutfault in a civil case. This is admissible in

federal courts, though would likely be inadmissible in NY.

Types ofOfficial

Records/Public Documents (4)1. Police Reports (see above)2. Records ofVital Statistics:Admissible if the report was made to a public officer pursu

to requirements of law.

3.

Statementof

Absenceof

Pu

blic Reco

rd:

Testimony from the custodian of public recothat she has diligently searched andfailedtofind a recordis admissible to prove the mawas not recorded, and inferentially that the matter did not occur.

4. Judgments: A certified copy of a judgment is always admissible proof thajudgmenthasbeenmade.

a. Felony Conviction Admissible: Felony conviction judgments are admissiin criminal and civil actions to prove any fact essential to the judgment.

i. Limit: In a criminal case, only used for this purpose against accused and it may not be used for impeachment purposes agaiother witnesses.

b. Prior Criminal Acquittal Excluded: The exclusionary rule is still appliedrecords of prior acquittals.

c. Judgment in Former Civil Cases Inadmissible: Inadmissible in a subsequcriminal proceeding and generally inadmissible in subsequent cproceedings.

(8) Ancient DocumentsException toHearsay

Elements:Admissible if it is authentic. Authenticity is inferredifthe document:1. Is at least20 years old.2. Is faciallyfree of suspicion.3. Is found where one wouldexpectit to be found.4. As are documents affecting an interestin property, regardless of age.NY Distinction: Document must be 30 years old.

(9) Learned Treatises

Exception toHearsay

Elements:Admissible assubstantive proofif:1. Called to the attention of, or relied upon by an expert witness; and2. Established as reliable authority by the testimony of that witness, other expert testimo

or judicial notice.

(10) Reputation Evidence

Exception toHearsay

Elements:Admissible under several exceptions to the hearsay rules, as evidence of:

1. Character2. Personal or family history3. Land boundaries, and4. A communitys general history.

(11) Family Records ExceptiontoHearsay

Statements of fact concerning personal or family history contained in family Bibles, jeweengravings, genealogies, tombstone engravings, are admissible.

(12) MarketReports ExceptiontoHearsay

Market reports and other published compilations are admissible if generally used and relupon by the public or by persons in a particular occupation.


21/21

(13) Statements for Medical

Treatmentor Diagnosis

Elements:Allows the admission of a statement:1. Made for thepurpose ofdiagnosis ortreatment.2. ConcerningpresentSymptoms,pastSymptoms, orgeneral cause ofmedial condition.3. But NOTstatements of faultor of the wrongdoers identity.Rationale: Patients have an incentive to be honest and accurate to get good medical care.NY Distinction: Does notapply to statements made solely for obtaining experttestimony.

Catchall Federal Exceptio

n to

Hearsay Rules Elements:

For a hearsay statement that is not covered by a particular ex

ception, under the Fit still may be admitted if:1. That the hearsay statement possesses circumstantial guarantees oftrustworthiness.2. That the statement be strictly necessary, and3. Thatnoticebe given to the adversary as to the nature of the statement.

Confrontation Clause Issuesfor Former Testimonial

Evidence AgainstCriminal Ds

Elements: Because the use of hearsay evidence in a criminal case may violate Confrontation Clause of the 6thAmendment, prior testimonial evidence against a crimidefendantis inadmissibleUNLESS:1. The hearsay declarant is unavailable, and2. D had opportunity to cross-examine the declarantat the time the statement was madWaiver: D forfeits his right of confrontation if he committed a wrongful act that was intendto keep the witness from testifying.Application:Additionally, hearsay rules and other exclusionary rules cannot be applied wh

such application would deprive the accused of her right to a fair trial or deny her rightcompulsory process.

Preliminary Determinations of

Admissibility (Judges Role vs.

JurysRole)

Generally: existence of preliminary or foundational fact is an essential condition to admissibility of proffered evidence.Judges Job vs. Jurys Job:1. Jury:Makes preliminary determinations ofrelevancyof proffered evidence.

a. Agencyb. Authenticity of a documentc. Credibility of a witnessd. Personal knowledge

2. Judge: Preliminary facts decided by the judge involve competencyof relevant evidence.a. Requirements for hearsay exceptionsb. Privilegesc. Ex

pert Testimonyd.Mental CompetenceWhat Evidence Judge May Consider When Making Preliminary Competency Findin

Trial judge is able to consider anyrelevant evidence even if it is not otherwise admissible.1. Limit: However, most state courts hold that the rules of evidence apply in preliminary

determinations as much as in any other phase of trial, thus judges may only consievidence thatis otherwise admissible.

2. Presence ofJury: Whether or not the jury should be excused during the preliminary determination is generally within the discretion of the trial judge.

Judges DiscretionaryPowers/Obligations

Throughout Trial

1. Judge may comment on the weight of evidence infederal courtbutnotinstate court.2. Judge may call andinterrogate witnesses on her own initiative.3. A trial judge has an obligation to rule promptlyon counsels evidentiary objections, a

upon request,state the grounds for her rulings.

4. A judge willrestrict evidence to itsproper scope and instruct the jury accordingly.Accused Testimony EffectonRight Against Self-

Incrimination

Rule:An accused may testify on any preliminary matter (ex, circumstances surroundingallegedly illegal search) without subjecting herself to testifying at trial.