EVIDENCE OUTLINE

I. NATURE OF ADJUDICATIONA. The Relationship between Law, Fact and Proof

B. Methods of Determining Law and Fact1. Stipulation

a. favored as a means to shorten, clarify or settle litigation2. Judicial Notice (accepting a matter of law or fact w/out formal proof)

a. Adjuticative v Legislative Facts: Adjudicative are the facts concerning the immediate parties. Legislative facts are ordinarily general and do not concern the immediate parties, they have relevance to legal reasoning.

b. Rule 201- p. 783, Judicial Notice of Adjudicative Facts: A fact not subject to reasonable dispute in that it is (1) generally known w/in the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. Note: a judge’s personal knowledge is not important, it is what would be widely or generally known

3. Proofa. In Re Gault

C. The Functions of the Participants1. In General

a. Party presentation means:i. Parties must produce evidence in the proper order.ii. In order to preserve issues on the record for consideration on

appeal, there must be a timely, specific objection, and in the event the evidence is excluded there must be an offer of proof. Error alleged must be reversible or plain error, not harmless error.

iii. Party must prove the case.2. The Parties

a. Proper Orderi. moving party presents evidenceii. opposing party states its defense and offers evidenceiii. rebuttal evidence is presented

b. Objectionsi. Rule 103- p. 781, (a) Effect of Erroneous Ruling: Error may not be

predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected and there is a timely objection made and an offer of proof. (c) make offer of proof outside of hearing of the jury, (d) nothing in the Rule precludes taking notice of plain errors affecting substantial rights.

c. Parties are Responsible for Proving their Casei. Usually, plaintiff has burden of proving the case. If judge cannot

decide party with burden of proof loses.

3. The Courta. Roles of the Judge

i. ruling on admissibility of evidenceii. controlling the presentation of evidenceiii. judge may independently present evidence, but may not testify in a

trial at which he is presidingb. Rule 104(a): p. 782, Judge decides preliminary questions concerning

qualification of a person to be a witness, the existence of a privilege, or admissibility of evidence. (b) Relevancy Conditioned on Fact: When the relevancy of evidence depends upon the fulfillment of a condition of fact the court shall admit it upon or subject to the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (c) needs to be done outside the hearing of the jury (d) the accused does not by testifying upon a preliminary matter become subject to cross-examination on other issues

c. Rule 611(a): p. 795, Court shall exercise reasonable control over the mode and order of witnesses and evidence so as to make interrogation effective, avoid needless consumption of time, and protect witnesses from harassment.

d. Rule 614: p. 796, (a) Court may call witnesses on its own motion (b) Court may interrogate witnesses, (c) objection to the calling of witnesses by the Court or interrogation by it may be made at the time or at the next opportunity when the jury is not present.

e. Rule 605: p. 792, If judge is presiding he cannot be a witness4. The Jurors

a. Not error to let jurors interrogate witnesses, but it is unadvisable.b. Rule 606: p. 792, (a) A member of the jury may not testify as a witness

during the trial in which the juror is sitting. The opposing party shall be afforded an opportunity to object outside the presence of the jury. (b) Juror may not testify as to any matter or statement occurring during deliberations or to the affect of anything upon any jurors mind or emotions or anything controlling the jurors mental processes. Juror may testify as to whether extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence had an effect upon the juror.

II. JUDICIAL NOTICE

A. Distinguished From Personal Knowledge1. Judicial notice requires a fact be generally known w/in the territorial

jurisdiction of the trial ct or it is capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned.

2. Also see Rule 201 above3. Martel test: Whether such notoriety attaches to the fact involved as to make it

improper to assume its existence without proof.

B. Law1. No Federal provision for Judicial notice of law.2. Oklahoma has 2201 which provides for mandatory judicial notice of common

law, constitutions, and public statutes. 2201 (b) provides for discretionary judicial notice of the law for private acts. 2201 (c) says judicial notice is a question for the court, not the jury.

C. Adjudicative Facts1. See Federal Rule 201 above.2. Oklahoma 2202: A judicially noted adjudicative fact shall not be subject to

reasonable dispute. It shall be either: (1) generally known or (2) capable of accurate and ready determination.

D. Summary of Judicial Notice1. Legislative v adjudicative: If the Court looks outside the record to make a

determination of a rule of law it is a legislative fact and does not matter whether the fact is the subject of dispute. Adjudicative facts must be indisputable to be judicially noticed. That is they must have some common notoriety or be verifiable facts.

2. Civil v Criminal cases: In civil cases judicial notice is binding on the jury and can be noted for the first time on appeal. In criminal cases judicial notice is not binding and cannot be noted for the first time on appeal.

III. EVIDENCE, PERSUASION AND PROOF

A. THE MEANING OF PROOF1. Definition of Proof: the conviction or persuasion of the mind of the trier of

fact by the exhibition of evidence of the reality of the fact alleged. EVIDENCE + PERSUASION = PROOF

2. Burden of Producing Evidence: Model Code of Evidence Rules 1(2)- The burden of producing evidence of a fact means the burden which is discharged when sufficient evidence is produced to support a finding that the fact exists.

3. Burden of Persuasion of a fact: 1(3) The burden which is discharged when the tribunal, which is to determine the existence or non-existence of the fact, is persuaded by sufficient evidence to find that a fact exists.

B. Allocating the Burden of Persuasion and of Producing Evidence1. Burden of persuasion cannot shift, burden of production can shift.2. As a general rule, the burden of persuasion rests always on the party to whom

it is first allocated, whereas the burden of production shifts back and forth since both parties produce evidence.

3. Primary purpose of the burden of persuasion is to enable the trier of fact to determine who should win or lose when the case is very close.

4. Normally statute or judicial precedent will est. which party has the ultimate burden of persuasion. If this is not so look to these three tests:a. burden of persuasion is on the party who must est. the affirmative

proposition. The problem is that language can be manipulated to state most propositions either positively or negatively.

b. Burden of persuasion is on the party to whose case the fact in question is essential

c. Burden of persuasion is on the party pleading a fact, Whinery likes this one5. If BOP is unclear the court must consider these factors:

a. The ultimate burden of persuasion is normally allocated to the plaintiffb. The extent to which a party’s contention departs from what would be

expected in light of ordinary human experience.

C. Degree of Persuasion Required1. Standards of Proof

a. Preponderance of the Evidence- more probable than notb. Clear and Convincing Evidence- highly probably truec. Beyond a Reasonable Doubt- almost certainly true (required in criminal

and juvenile proceedings)2. Direct v Circumstantial Evidence

a. Direct evidence does not require an inference. It is direct evidence because the jury can reach a conclusion w/out having to infer. They must only evaluate the credibility of the witness.

b. Circumstantial evidence is evidence which, even if believed, does not resolve the matter at issue unless additional reasoning is used to reach the proposition to which the evidence is directed. If a witness said he saw the other light and it was green then the evidence is circumstantial b/c the jury must infer the opposite light was red.

D. The Effect of Affirmative Defenses on the Allocation of the Burdens of Persuasion and Producing Evidence1. Civil Cases

a. The affirmative defense casts on the party making it the burden of proving that fact. Usually means that when in doubt the jury must find against the defendant on the affirmative defense issue.

b. The defendant must:i. plead the affirmative defenseii. introduce evidence of the defenseiii. Ultimately bear the risk of non-persuasion

2. Criminal Casesa. Ultimate burden of persuasion rests on the prosecution, with the exception

of true affirmative defensesb. True affirmative defenses are those defenses which consists of facts which

exonerate the defendant or reduce the degree of the crime, but which do not require the defendant to disprove an essential element of the state’s case.

c. The degree of persuasion required to prove an affirmative defense will vary depending on the affirmative defense. It is not necessarily going to be the Beyond a Reasonable Doubt standard.

d. Oklahoma considers the following true affirmative defenses:i. self defenseii. alibiiii. duressiv. intoxication

E. Sufficiency of the Evidence1. The Theoretical Basis

a. Judge regulates the burden of producing evidence and decides if there has been enough evidence presented by the party who has the ultimate burden of persuasion to justify giving the case to a jury.

b. The issue is how much evidence must the party introduce to justify taking up the jury’s time to resolve the dispute.

c. McNaughton Standard: Judge asks could a reasonable juror find the existence or non-existence of a fact. This uses a persuasion chart with 51% (POE), 75%(C&C), and 99%(BRD). This test also uses the 10-25, 25-80, 60-95 range chart to show the burden of producing evidence ranges that are required by the parties to avoid a directed verdict.

2. The Legal Standardsa. Current Rule: Is there sufficient evidence that a reasonable juror could find

that a fact exists beyond a reasonable doubt? (Virginia v Jackson)b. Conclusions to draw:

i. there is no directed verdict for the state in a criminal caseii. there is no statute which requires a directed verdict for the

defendant

3. Policy Considerationsa. Statistical evidence is not enough. The evidence presented must lead to an

actual belief in the truth of the fact asserted.

IV. PRESUMPTIONSA. Nature and Validity

1. Presumptions are created by a rule of law, which can be statutory or by judicial decision.

2. Rebuttable presumption is the only acceptable use of the word presumption. It is a presumption which can be rebutted by evidence, but if the defendant does not rebut the presumption and does nothing, then it is accepted and defendant loses.

3. We have presumptions as a matter of policy, fairness and procedural convenience.

4. Model Code of Evidence Rule 701 (1): Basic Fact: refers to the fact or group of facts giving rise to a presumption

5. Model Code of Evidence Rule 701 (2): Presumption means that when a basic fact exists, the existence of another fact must be assumed whether or not the other fact may be rationally found from the basic fact. Presumed fact means the fact which must be assumed.

6. Model Code of Evidence Rule 702: Establishment of a Basic Fact: The basic fact of a presumption may be established in an action by the pleadings or by stipulation of the parties whereby judicial notice, or by evidence which compels a finding of the basic fact, or by a finding of the basic fact from the evidence.

7. Wigmore Majority View: Presumptions allocate the burden of producing evidence, but the burden of persuasion is still on the plaintiff.

B. Effect of Presumptions in Civil Cases1. Rule 301: p. 784, Presumptions in General in Civil Actions and Proceedings:

adopts the Wigmore view that ultimate burden of persuasion does not shift, just the burden of producing evidence.a. Under 301 the defendant must rebut by producing evidence. If he does not,

then a directed verdict for plaintiff will be given.b. Whinery thinks the better policy would be to shift the burden of persuasion

and the burden of producing evidence in some situations, as a matter of policy.

2. Rule 302: p. 784, Applicability of State Law in Civil Actions and Proceedings: State law determines whether or not a presumption exists.

3. 12 OS 2303: p. 254, Combines the above two rules. If the basic facts of presumption have no probative value of the presumed facts then only the burden of producing evidence is shifted. If they do have probative value (tend to prove the presumed fact) then the presumption shifts not only the burden of production but also the ultimate burden of persuasion. a. Test of probative strength is more probable than not.

C. Effect of Presumptions in Criminal Cases1. In the criminal context the presumption only shifts the burden of producing

evidence.2. Rule 303 (b) is proposed. Judge is not authorized to direct the jury to accept

the presumption.3. 12 OS 2304 (b): p. 261, Oklahoma equivalent to Rule 303, has been accepted4. 12 OS 2304 (c): p. 261, Judge must give instruction in criminal cases that the

jury can accept the basic facts as proof of the presumption, but they are not required to do so. The judge shall also instruct the jury that the existence of the presumption must be proved beyond a reasonable doubt.

D. Inconsistent Presumptions1. Model Code of Evidence Rule 701 (3): When facts are inconsistent to prove a

presumption, the weightier of the evidence will be used.2. Model Code of Evidence Rule 704 (2): 3. 12 OS 2305: p. 269, If two conflicting presumptions arise the court shall apply

the presumption which is founded on the weightier considerations of policy and logic. If there is no such preponderance both presumptions are disregarded.

V. RELEVANCY AND ITS LIMITSA. The Parameters of Relevancy

1. Relevancy exists as a logical relationship between an item of evidence and a fact of consequence sought to be proved.

2. To determine the fact of consequence look at:a. substantive law governing the resolution of the controversyb. substantive law in relation to the pleading in the casec. consider procedural rules applicable to the formation of pleadings

3. Rule 401: p. 784, Definition of Relevant Evidence: a. Any evidence tending to make b. A fact of consequence to the determination of the actionc. More or less probable than it would be without the evidence.

4. Most courts err in favor of admission5. Two questions to be asked:

a. What is the fact of consequence?b. Does the evidence tend to make the fact more/less probable?

6. Rule 402: p. 784, Irrelevant Evidence Inadmissiblea. All relevant evidence is admissible, except as provided by the:

i. Constitutionii. Acts of Congressiii. The Supreme Court pursuant to statutory authority

b. Irrelevant evidence is inadmissible.7. Direct v Circumstantial Evidence: usually no problems arise in regards to

relevancy and direct evidence, the problem comes when the evidence is indirect or circumstantial.

8. Evidence is still relevant even if it is based on a chain of inferences, so long as there are not too many inferences and the inferential links are sound.

9. Real v Demonstrative Evidence: Real evidence is evidence that is connected with or related to an issue of fact in the case, and it must be authenticated. Demonstrative evidence describes evidence a witness testifying uses to explain testimonial evidence. Demonstrative evidence requires less relevancy because it is not offered to prove the Fact of Consequence, merely offered to explain other testimony.

10. You can look to extraneous factors to determine relevancy. These factors include the time, place or circumstances of the events.

B. Balancing Relevancy Against Unfair Prejudice1. Balancing Tests

a. Rule 403: p. 785, Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion or Waste of Time: Relevant evidence may be excluded if its probative value is substantially outweighed by:i. unfair prejudiceiii. confusion of the issuesiv. misleading the juryv. undue delayvi. waste of timevii. unnecessary culmination of evidenceviii. adds unfair prejudice

b. Unfair prejudice must have an undue tendency to suggest a decision on an improper basis.

c. Weinstein view: err on the side of admissibility, give evidence its maximum probative value and minimum prejudicial value (in line with the rule)

2. Standards of Reviewa. unless trial judge acted arbitrarily or irrationally the decision of that court

on the issue of relevancy will not be disturbed3. Unfair Prejudice and Associated Harms

a. In Oklahoma Ritchie v State adopted Dolan’s view of erring on the side of exclusion of the evidence.

b. Oklahoma Wall v State case seems to suggest we have now adopted the Weinstein view.

4. Effect of Stipulationsa. A party cannot preclude another party from introducing damaging evidence

by stipulating to the fact at issue. A party will still be allowed to introduce evidence to prove a stipulated fact. The court does not have to accept the stipulation if it robs evidence of fair and legitimate weight.

C. Limited Admissibility1. Rule 105: (2106 in Oklahoma) p. 783, Limited Admissibility: When evidence

is admissible to prove on issue, but is irrelevant as to another a party can request a limiting instruction. The judge shall instruct the jury as to the scope of the evidence.

2. Judge can give this instruction sua sponte, or of their own motion. 3. Limiting Instruction required when requested.

VI. FORMALIZED RULES OF RELEVANCYA. Character

1. Character v Reputation: Character is what a person is; reputation is what people say he is and how you prove what he is.

2. Rule 404: p. 785, Character Evidence Not Admissible to Prove Conduct; Exceptions; a. Evidence of a person’s character or trait of his character is not admissible

to prove that he acted consistently or inconsistently with the action at issue, except:i. Evidence offered by the accused about his character or by the

prosecution to rebut that evidenceii. Evidence offered by the accused about the victim’s character or by

the prosecution to rebut that evidence. Or evidence offered by the prosecution to prove the victim’s peacefulness where the defendant claims self defense.

iii. Evidence of the character of the witness provided in Rules 607-609b. Evidence of other crimes may not be admissible to prove character, but

may be admitted to prove an action in conformity with:i. motiveii. opportunityiii. planiv. knowledgev. identityvi. absence of mistake or accident

3. Rule 405: p. 785, Methods of Proving Charactera. Reputation and Opinion: In all cases where character evidence is

admissible, testimony may be made as to reputation or by testimony in the form of opinion.

b. Specific Instances of Conduct: Where character is an essential element of the charge, claim or defense, proof may be made of specific instances of that person’s conduct.

4. Character Explained and Distinguisheda. Character is a generalized description in respect to traits such as honesty,

temperance, or carefulness. Habit is more specific and designates a regular practice of a certain type of conduct or reflex behavior in a specific set of circumstances.

5. To Prove a Matter in Issuea. Character only becomes an issue when the character or reputation of the

defendant is at issue. b. If it is admissible under Rule 404, there are two ways to prove it under

Rule 405.i. Rule 405 (a): establish character through reputationii. Rule 405 (a) and Rule 701: establish character by opinion

testimony. Under Rule 701 the testimony must be (1) rationally based on perception of witness and (2) helpful to clear understanding of the issues.

6. To Prove Conduct in Civil Casesa. A party in a civil case cannot offer evidence of character to bolster his case,

even when charged with committing a legal wrong, unless the character is at issue. Look to elements of the cause of action.

b. Exception: Character evidence is admissible when in order to win a case or get the damages requested, the plaintiff has to prove the same elements as if it were a criminal case.

7. To Prove Conduct in Criminal Casesa. Of the Accused

i. Character evidence is admissible if the accused puts it at issue. The prosecution can then rebut the same.

ii. Unless the defendant has introduced evidence of his character the prosecutor can only use specific instances of conduct if the character of the defendant is an essential element of the charge.

iii. If defendant introduces character witnesses, the prosecution may cross examine those witnesses, but they must have a good faith belief that the defendant’s character is bad.

iv. Note the defendant can still object to the character evidence under Rule 403, by arguing that it is unfairly prejudicial.

b. Of the Victimi. Rule 404 (a)(2) allows the defendant to use character evidence of

the victim. Character evidence of the victim is not admissible unless the accused puts a relevant trait of the victim at issue or the prosecution uses it to rebut the same. In homicide cases, evidence of a character trait of the peacefulness of the victim can be offered by the state to rebut evidence that the victim was the aggressor.

ii. Rule 412: p. 788, Victim’s Past Behavior in Sexual Offense Cases: Reputation or opinion evidence of past behavior of the victim is not admissible. Any other evidence to show sexual behavior is not admissible unless: (1) constitutionally required, or (2) evidence of the defendant not being the source of semen or consent with the defendant.

B. Other Crime Evidence to Prove Conduct1. In General

a. Rule 404 (b) does not allow evidence of other crimes, wrongs or acts to prove the character of a person to show conformity. However, it is admissible to show other purposes and the rule is construed broadly.

b. Oklahoma has a similar but slightly modified approach as set out by 220 OS 2404(b) and Burke v State, p. 314. Guidelines for admission of other crimes, wrongs or acts are:i. Give notice of intent to introduce other crimes evidence within ten

days, no notice required if used in rebuttalii. At the time the evidence is offered, the prosecutor must specify

which exception it is offered underiii. There must be a visible connection between the offense the

defendant has been charged with and the offense sought to be proved (extrinsic offense).

iv. Must show that the other crime is important to show the state’s burden of proof and that the evidence is not cumulative and not unfair or prejudicial.

v. The evidence need not be proven beyond a reasonable doubt, must only be clear and convincing.

vi. Must give limiting instruction to the jury.vii. An in-chambers hearing to determine the admissibility of the

evidence if it is offered in rebuttal.2. Used for Proper Purposes

a. Motive: prior acts of physical abuse are admissible to show a motive for the crime

b. Intent: Where intent is an element of the crime, other crime evidence is admissible.

c. Preparation, Plan: A showing of preparation is likely to reveal the defendant’s state of mind. For instance, to show purposefulness and to negate the possibility of accident. While the existence of a common plan or scheme is not generally an element of the crime, it tends to show the defendant’s intent, motive, identity or other actual element of the crime charged. All that is required is that this evidence be reasonably strong, circumstantial evidence of some element of the crime charged.

d. Knowledge: Other crimes evidence may be used to show by similar acts that the act in question was not performed inadvertently, accidentally, or without guilty knowledge.

e. Identity: The prosecution’s theory is that the other crimes by the accused are so similar in method to the crime charged that they all bear his “signature”. Two requirements must be met: (1) the accused must deny participation in the charged crime and (2) the methods involved in the other crimes must be so very similar to those used in the crime charged that the similarity is substantially probative of identity.

3. Other Purposesa. Evidence of other offenses is admissible if relevant for any other purpose,

other than to show mere propensity or disposition on the part of the defendant to commit the crime. This evidence may still be excluded for undue prejudice.

4. For Defensive Purposesa. Other crimes, wrongs or acts evidence may be used defensively, for

example to show coercion or duress.

C. Habit and Routine Practice1. Rule 406: p. 786, Evidence of habit is relevant to prove conduct on a

particular occasion in conformity with habit. To introduce habit as character evidence one needs to show:a. Frequency with which behavior in question is committedb. Regularity of behavior over a sufficiently long time spanc. Similarity between prior behavior and the behavior which is relevant in a

particular case

D. Subsequent Remedial Measure1. Rule 407: p. 786, Generally, evidence of subsequent remedial measure is

inadmissible to prove negligent or culpable conduct. There are exceptions where evidence of subsequent remedial measures are admissible:a. Ownershipb. Controlc. Feasibility of precautionary measuresd. Impeachment

2. Strict Liability: The majority rule is that the exclusionary rule applies to exclude evidence of subsequent remedial measures under strict liability claims. However, the 10th Circuit follows the minority rule that the evidence is admissible.

E. Compromise1. Rule 408: p. 786, Evidence of compromise or offers to compromise are

inadmissible to prove liability for, or invalidity of the claim or its amount. The rule does not apply if the evidence is admitted to:a. prove biasb. prove prejudice of a witnessc. negate a contention of undue delayd. prove an effort to obstruct a criminal investigation or prosecution

F. Medical Expenses1. Rule 409: p. 787, Offers or payment of medical expenses is not admissible to

prove liability.2. Under 403 (a) admissibility of the statements is determined by the judge.

G. Offers to Plead and Withdrawn Pleas of Guilty1. Rule 410: p. 787, Plea discussions with an attorney or prosecuting attorney in

civil and criminal cases are not admissible. The following are not admissible in any civil or criminal case:a. plea of guilty that is later withdrawnb. plea of no contest c. Any statements made in the course of plea discussions

i. However, note that such statements are admissible in a criminal proceeding for perjury or false statement if the statement was made by the defendant, under oath, on record and in the presence of counsel.

H. Summary1. To be admissible evidence must be:

a. relevant (Rules 401-402)b. not fall within any rule limiting the admission of evidence (Rules 404-413)c. probative value must not be outweighed by unfair prejudice (Rule 403)

VII. TESTIMONIAL EVIDENCEA. COMPETENCY TO BE A WITNESS

1. General Rulesa. Rule 601: p. 791, General Rule of Competency: Every person is assumed

competent to testify, unless otherwise specified by the rules. In civil actions and proceedings with respect to an element of a claim or defense as to which state law supplies the rule of decision the competency of the witness is determined by state law.

b. Rule 605: p. 792, Competency of Judge as a Witness: Judge can’t testify as a witness when he is presiding at trial. No objection is needed to preserve the point.

c. Rule 606: p. 792, Competency of Juror as Witness: Jurors can only testify as to:i. extraneous prejudicial information ii. outside influences

d. Rule 604: p. 792, Interpreters: Interpreter must be qualified as an expert and take an oath or affirmation to do a true translation. See Rule 702 for expert qualifications.

2. Oath or Affirmationa. Rule 603: p. 792, Oath or Affirmation: Every witness is required to take an

oath or affirmation that they will testify truthfully.

B. Relationship of Competency Rule to the Rules Requiring Personal Knowledge1. Every witness is presumed competent to testify unless it can be shown that he

does not have personal knowledge or the capacity to recall or that he does not understand the duty to testify truthfully.

2. In Oklahoma children testifying still have to meet the personal knowledge requirement, but the specific age or mental capacity of the child doesn’t matter.

C. Necessity of Personal Knowledge1. Rule 602: p. 791, Requires the witness to have personal knowledge of the

events he is testifying to. Includes three requirements:a. observation of the eventb. memory or recallc. communication: ability to communicate what they remembered or

observed2. Observation

a. must have first hand knowledge of the event3. Remember

a. Important issue in this category is child testimony. Courts must determine the competency of a child in relation to their ability to accurately remember the events. Factors to be considered include:i. Ageii. Intelligenceiii. Circumstances surrounding the eventiv. Time Spanv. Nature and extent of pre-trial review of testimonyvi. Does the child understand the difference between telling the truth

and telling a lie?vii. The judge may inquire into some foundational questions.

b. Hypnosis testimony: Cannot have a per se rule barring hypnosis testimony, must be reviewed on a case by case basis

4. Communication/ Relatea. The ability to relate is usually a question of credibility for the jury if the

witness can observe and remember. Factors that go into determining credibility include: (1) the time of the event; (2) the time of the trial.

b. Witness must be able to communicate well enough to be cross examined.

VIII. REAL AND DEMONSTRATIVE EVIDENCEA. Defined and Distinguished

1. 3 conditions of admissibility:a. Authenticb. Relevance outweighs unfair prejudicec. Real Evidence is within the perceptive abilities of the trier of fact.

2. Real Evidence- directly involved, has independent probative value, requires authentication

3. Demonstrative Evidence- serves as a visual aid to the comprehension of testimonial evidence, doesn’t have to be authenticated.

B. Identification1. Rule 901(a): p. 806, Requirement of Authentication or Identification: Requires

authentication or identification as a condition precedent to admissibility. You must produce sufficient evidence to support a finding that the matter in question is what the proponent claims it to be. Authentication usually refers to writing and identification usually refers to other forms of real evidence.

2. Note you may have to qualify a person as an expert under Rule 702 and then have them testify to authenticate the evidence.

3. Samples, to be admissible, must be shown to reflect the condition of the substance at the time involved in the issue.

C. Relevancy and Unfair Prejudice1. Note: Rule 403 is another issue to be considered when dealing with real and

demonstrative evidence.

D. Perception of the Trier of Fact1. All evidence must be within the perceptive capacity of the trier of fact. (touch,

taste, see, hear, etc)

E. Various Types of Real and Demonstrative Evidence and their Use1. Demeanor

a. Defendant’s demeanor on the stand is real evidence. b. In order for the defendant’s demeanor off the stand to be considered there

must be some direct reference to it to properly placed it before the jury.c. Attorneys can counsel on how to conduct yourself, but cannot create a false

demeanor.2. Views

a. Taking of views is permissible in OK in both criminal and civil cases, but care should be taken to make sure the view occurs under the same conditions as the incident at trial.

b. Rule 606: If jurors take an unauthorized view it could be grounds to set aside the verdict.

3. Demonstrationsa. Admissible if the demonstration could not be faked

4. Experimentsa. To be admissible, there must be an identity of the conditions between the

litigated event and the condition under which the experiment is performed.

5. Reproductions of an Eventa. Must be sure no change in condition has taken place.b. Photographs must be accurate depictions of the conditions at the time of

the incident in question.c. 7 Requirements for authenticating tape recordings:

i. machine was capable of making a recordingii. operator was competentiii. accurate representationiv. no changes or deletions or additionsv. preserved properlyvi. speakers are identifiedvii. conversation is voluntary and in good faith without any kind of

inducement 6. Blackboards, Maps, Models and Similar Aids

a. Remember to take a picture of any diagrams, etc you use so they can be viewed later.

IX. WRITINGA. Authentication

1. Self Authenticationa. Rule 902: p. 807, Some writings are self-authenticating so therefore

require no independent evidence. Ten categories:i. domestic public documents under sealii. domestic public documents not under sealiii. foreign public documentsiv. certified copies of public recordsv. official publicationsvi. newspapers or periodicalsvii. trade inscriptionsviii. acknowledged documentsix. commercial and related documentsx. presumptions under Acts of Congress

2. Extrinsic Evidencea. Required Evidence

i. Rule 901 (a): p. 806, The authentication or identification requirement is satisfied when a proponent introduces evidence sufficient to support the matter in question is what it proposes to be.

b. Typesi. Rule 901 (b)(1): can authenticate by testimony of a witness with

knowledgeii. Rule 901 (b)(2): non-expert can testify as to the genuineness of

handwriting based on familiarityiii. Rule 901 (b)(3): comparisons by the trier of fact or by an expert

witness of specimens which have been authenticated to those which have not

iv. Rule 901 (b)(5): Identification of a voicev. Rule 901 (b)(6): Telephone conversationsvi. Rule 901 (b)(8): Ancient Documentsvii. Rule 901 (b)(9): Processes or Systemsviii. Rule 901 (b)(10): Methods provided by statute or rule

B. Best Evidence or Original Writing Rule1. Defined and Distinguished

a. Rule 1002: p. 809, Requirements:i. To prove the contentii. Of a writingiii. The original is requirediv. Unless failure to produce the original is supported by secondary

evidence of the contents.b. Rule 1004 outlines the situations in which no original is required

2. To Prove the Content of a Writinga. Must distinguish between testifying as to a fact or as to the content of a

writing. If you are just testifying about a fact the Best Evidence Rule does not need to be invoked. However, if you are testifying as to the content of a writing, the Best Evidence Rule does need to be invoked.

b. Analysis:i. How central is the evidence to the Fact of Consequence?ii. Is a written reproduction of the words readily available?iii. How difficult is it to produce the writing in court?

3. Original of the Writing is Requireda. Rule 1001 (1): Writings and recordings consist of letters, words or

numbers set down by handwriting, typewriting, etc.b. Rule 1001 (2): Photographs include still photos, X Rays, Videos, and

motion pictures.c. Rule 1001 (3): Defines term original as it applies to writings and

photographsd. Rule 1001 (4): Defines a duplicatee. Rule 1003: Duplicate is admissible unless it a genuine question is raised as

to the authentication of the original or it would be unfair to admit the duplicate.

3. Explanations for Failure to Produce Original and Other Evidence of Contentsa. Rule 1004: p. 809, The Original is not required and other evidence of the

contents is admissible if:i. originals have been lost or destroyed in good faithii. no original can be obtained by any available judicial processiii. original is in possession of opponent who has been put on notice

and does not produce it at the hearingiv. collateral matters: the writing is not closely related to the

controlling issueb. American Rule: If there is no original, use the best copy. If no copy,

introduce testimony.

C. Public Records1. Rule 1005: Content of such record may be proven by a certified or otherwise

sworn copy. If such a copy is unobtainable by reasonably diligent efforts, other evidence of the contents may be given.

D. Summaries1. Rule 1006: A summary of a writing may be presented in the form of a chart,

provided that the original or duplicate originals are made available to the opponent.

E. Functions of the Court and Jury1. Rule 1008: When the admissibility of other evidence of contents of writing,

etc. under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is to be determined by the court. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing etc. is produced at trial is the original or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact.

X. THE RATIONALE AND MEANING OF HEARSAYA. Introduction

1. Hearsay involves two people, the declarant who is usually not present in court and the witness who is repeating the statement of the declarant.

2. The reason for excluding a statement as hearsay is that the person against whom the statement is offered is unable to confront and cross-examine the declarant under oath and expose weaknesses in his perception, memory or narration.

3. The Analytical Process: Six Step Testa. Is the statement a serial repetition? If yes there is a potential hearsay

problem. b. What is the statement offered to prove? This is a relevancy issue and

invokes Rule 401. You should consider how the statement relates to the fact of consequence for which it is offered.

c. Is the statement being offered to prove the truth of the matter asserted in the statement? If so, Rule 801 (c) defines this as hearsay and it is inadmissible.

d. If so, does the statement fall within one of Rule 801 (d)’s defined categories of non-hearsay?

e. Does the statement meet the foundational requirements of one of the exceptions to the hearsay rule?i. Unavailability of declarant is immaterial, Rule 803 (1-24)ii. Unavailability of declarant is required, Rule 804 (b)(1-5)

f. Does the statement meet the foundational requirements for admissibility under the residual exception to the hearsay rule? Is the statement extraordinarily reliable? Rule 803 (24), 803(b)(5)

XI. THE HEARSAY RULE AND ITS APPLICATIONSA. Definition of Hearsay

1. Rule 801: definitionsa. (a)- statement is (1) an oral or written assertion or (2) non-verbal conduct

of a person if it is intended as an assertionb. (b)- declarant- the person who makes the statementc. (c)- hearsay- a statement other than one made by the declarant while

testifying at the trial or hearing offered in evidence to prove the truth of the matter asserted.

2. Rule 802: Hearsay is not admissible except as provided by these rules or other rules prescribed by the Sup Ct pursuant to statutory authority or by Act of Congressa. Example: Affidavits are independently admissible under Federal law and

Oklahoma law3. Rule 805: Hearsay within hearsay: Not excluded under the hearsay rule if

each part of the combined statement conforms with an exception to the hearsay rule.

B. The Hearsay/ Non-Hearsay Issue1. Statements of Legal Significance

a. Statements offered to show legal consequences are non-hearsay, thus if the statement if offered to prove only some legal consequence it is properly admissible.

b. Example: Offering someone money to go to St. Louis is not hearsay b/c it is only offered to prove the words were spoken, not that the offeror intended to pay any money.

2. Statements of Declarant Affecting Othersa. Statements offered to show how the declarant statements affected the

witness is non-hearsay b/c they are introduced to prove only how they felt, not the truth of the statement.

3. Statements of Declarant's Knowledgea. Statements offered to show declarant’s knowledge are not hearsay.

4. Statements of Declarant’s State of Mind a. Statements may be introduced to show the declarant’s state of mind.

C. Conduct as Hearsay1. General Rule: Non verbal conduct is not a statement unless it is intended to be

an assertion.

D. The Implied Assertion1. The situation occurs when a fact is inferred from a statement, but not asserted

by it.2. If the conduct is not intended as an assertion, then it is not hearsay, and thus

admissible.3. If it is intended as an assertion then it is hearsay.4. Courts usually choose to deal with silence as hearsay in one of three ways:

a. ignore it completelyb. classify as non-hearsayc. treat it in a relevancy/ unfair prejudice way

XII. STATEMENTS DEFINED AS NON-HEARSAYA. Prior Statements of Witnesses

1. Rule 801 (d)(1): A statement is not hearsay if:a. The declarant testifies at the trial or hearing and is subject to cross-

examination concerning the statement and the statement is:i. inconsistent with the declarant’s testimony and was given under

oathii. consistent with the declarant’s testimony and is offered to rebut an

express or implied charge against the declarant of recent fabrication, improper influence, or motive

iii. One of identification of a person is made after perceiving the person2. Inconsistent Statements

a. Rule 801 (d)(1)(A) requires that when you seek to introduce evidence of inconsistent statements you must meet the foundational requirements.i. declarant testifies at trialii. subject to cross examinationiii. statement is inconsistent with declarant’s testimonyiv. statement was given under oathv. at a trial, hearing, other proceeding or deposition

b. Test for Inconsistency: Could a reasonable person find that a witness who believed the truth of his in-court statements would have been unlikely to make a prior statement inconsistent with that testimony.

3. Consistent Statements: Rule 801 (d)(1)(B)a. If you are offering the statement simply for rehabilitative purposes for a

witness who has been impeached, then it is not hearsay.b. If you are offering the statement to show consistency between an in court

testimony and an out of court statement, then it is not hearsay.c. If seeking to introduce the prior consistent statement for its substantive

content, or to prove its truth, then it is hearsay.d. Foundational Requirement:

i. declarant testifies at trialii. subject to cross examinationiii. statement is consistent with declarant’s testimonyiv. offered to rebut an express or implied charge against the declarant v. statement was made prior to the time a motive to falsify arose

e. Note a prior consistent statement need not be made under oath b/c it is already considered more inherently reliable.

4. Statements of Prior Identificationa. Rule 801 (d)(1)(C)- Statements of prior identification are admissible, even

if the prior identification was not under oath.

B. Admissions by Party-Opponent1. Rule 801 (d)(2): A statement is not hearsay if the statement is offered against a

party and is:a. the party’s own statement in either his individual or representative capacityb. a statement of which the party has manifested an adoption or belief in its

truthc. a statement by a person authorized by the party to make the statement d. a statement by the party’s agent or servant concerning a matter within the

scope of agency or employmente. a statement by a co-conspirator of a party during the course and in

furtherance of the conspiracyi. Note Bourjailly case said you are not required to have evidence

independent of the conspiracy to make statements admissibleii. Oklahoma case decided that hearsay statements alone are not

enough to establish the existence of a conspiracy

XIII. EXCEPTIONS TO THE HEARSAY RULE: AVAILABILITY OF DECLARANT IMMATERIALA. Miscellaneous Statements

1. Present Sense Impression and Excited Utterancea. Rule 803 (1): Present Sense Impression: A statement describing or

explaining an event or condition made by the declarant while perceiving the condition or event or immediately thereafter.

b. Rule 803 (2): A statement relating to a startling event or condition made while the declarant was under stress or excitement caused by the event or condition

c. Note that 803 (2) does not require that the statement be made immediately after the event or the condition b/c the stress of the event may last longer and is therefore admissible under 803 (2)

2. Statements of Mental or Physical Conditiona. Rule 803 (3): A statement of the declarant’s then existing state of mind,

emotion, sensation or physical condition, but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification or terms of declarant’s will.

b. Statements of intent as to future acts are admissible, but statements of belief or memory of past acts are inadmissible.

c. Probably, courts would admit statements that contain both past conduct and intent of future conduct.

d. Whinery says surveys are hearsay in the classic sense but fall within the 803(3) exception. Courts should look at the nature of the case and the need for the evidence, which would serve to guarantee the trustworthiness.

3. Statements for Purposes of Medical Diagnosis and Treatmenta. Rule 803(4): Statements for the purposes of medical diagnosis or treatment

and describing medical history or past or present symptoms, pain or sensations reasonably pertinent to diagnosis or treatment.

b. Note: Federal rule allows statements concerning the cause of the injury so long as they go to the diagnosis and treatment. However, the Oklahoma rule does not allow statements about the cause of the injury at all.

c. However, it may be arguable in OK that statements about the cause of the injury should be admissible if reasonably pertinent to the diagnosis or treatment.

d. If statements are regarding other doctor’s opinions the present doctor must have the records of that doctor as well.

B. Records of Regularly Conducted Activities1. Rule 803 (6) Regularly Conducted Activities: Foundational Requirements

a. Must be records of regularly conducted activityi. activity must occur regularly in the course of day to day activityii. record must be kept regularlyiii. record must be kept in the same manner

b. Record must be made at or near the time of the matter recordedc. Record must have been made by or information transmitted by a person

within the business with personal knowledge (doesn’t mean you have to produce the specific person who made the record)

d. What is the source of the information and is there a business duty to record the information?

e. Record must be trustworthy2. Rule 803 (7): The absence of an entry in the records described in 803 (6) may

be introduced to prove the non-occurrence or non-existence of a matter, if the matter was of a kind of which a report would have been made had it occurred.

C. Public Records and Reports1. Rule 803 (8) needs to be read with 803 (10). This makes three types of records

admissible.a. Records of public offices dealing with official activities of the office. Rule

803 (8) implies that these must be authenticated.b. Records of matters observed pursuant to a legal duty. The Rule excludes in

criminal matters reports by police and law enforcement people. 3 requirements:i. report must be based on first-hand information obtained by a

government agent in his official capacityii. the agent must have had an official duty to observe and report on

the event and conditioniii. the agency must have had an official duty to observe and report on

the event or condition, must be first hand information

c. Records of factual findings from investigation in civil actions and actions against the government unless the circumstances indicate a lack of trustworthiness

2. Rule 803 (10) provides that the absence of public record or entry may be proved by certification in accordance with Rule 902 or by testimony that a diligent search failed to disclose the record

3. OK 2308 (8) is more restrictive and will not allow investigative reports by police or law enforcement in either civil or criminal cases

4. OK 2308 (9) Vital statistics: Provides for admissibility of vital statistics

D. Recorded Recollection1. Rule 803 (5): Provides that if a witness can’t remember when they are

testifying a memorandum or record, that the witness has made or adopted at a time when the event was fresh in their memory and the statement must reflect the knowledge correctly, may be read into evidence, but the actual memo or record cannot be introduced as an exhibit unless offered by the adverse party.

E. Learned Treatises1. Rule 803(18): 2 Requirements for admission of learned treatises

a. must be relied upon by an expert in direct testimonyb. must be established as reliable authority

2. Still must be weighed for unfair prejudice

F. Other Exceptions1. See Rule 803 (11-23)

XIV. EXCEPTIONS TO THE HEARSAY RULE: UNAVAILABILITY OF DECLARANT REQUIRED

A. Definition of Unavailability1. Unavailability of the declarant is a foundational requirement that must be

satisfied before the Rule 804 (b)(1-5) exceptions can apply.2. Rule 804 (a): A declarant is unavailable when:

a. declarant is exempted by a ruling of the Ct on a ground of privilegeb. persists in refusing to testify concerning the subject matter of the

declarant’s statement despite an order of the Ct to do soc. Testifies to a lack of memory of the subject matter of the declarant’s

statement d. Unable to be present or to testify at the hearing because of death or then

existing physical illnesse. Is absent from the hearing and the proponent of the statement has been

unable to procure the declarant’s attendance by process or other reasonable means (must be a good faith effort to procure attendance)

B. Former Testimony1. Rule 804 (b)(1): Former Testimony of a declarant can be introduced when the

declarant is unavailable if the former testimony meets the following elements:a. Testimony or deposition in the same or different proceedingb. Opponent has opportunity and similar motive to develop the testimony on

direct, cross-exam, or redirectc. In civil cases, a party or predecessor in interest may testifyd. In criminal cases, the parties have to be the same

2. Factors in criminal context with regard to fair opportunity to cross examine:a. represented by counselb. opportunity to cross examinec. proceeding conducted in front of a judicial tribunal

3. Public Policy Considerations of Rule 804 (b)(1):a. high degree of trustworthiness b. used for substancec. b/c under oathd. deprives jury of demeanor and sincerity of the witness

C. Statement Made Under Belief of Impending Death1. Rule 804 (b)(2): Elements:

a. declarant unavailableb. statement made while declarant believed death was imminentc. concerning cause of circumstances of what the declarant believed to be

impending deathd. applicable in a homicide proceeding or in a civil action

2. Biggest problem is determining whether the statement was made at the time the declarant believed death was imminent

D. Statement Against Interest1. Rule 804 (b)(3) Elements;

a. declarant unavailableb. statement must have been made against the declarant’s pecuniary,

proprietary, or penal interests or tended to subject the declarant to civil or criminal liability, or render invalid a claim of the declarant against another

c. a reasonable person in declarant’s position would not have made the statement unless believing it to be true

d. However, a statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not without corroboration which clearly indicates the trustworthiness of the statement

2. Note difference between statements against interest and admissions. Admissions are made by a party and statements against interests are made by third persons.

3. Admissions need not meet the elements above to be admissible.

XV. EXCEPTIONALLY TRUSTWORTH HEARSAYA. The “New Approach” of Federal Rule 803(24) and 804(5)

1. Hearsay that is otherwise not admissible may be admissible if it possesses a fundamental requirement of reliability.

2. Rule 807 now encompasses this residual exception doctrine. Rule 807 provides that a statement not covered by 803 or 804 but having equivalent circumstantial guarantees of trustworthiness is not excluded by the hearsay rule if the court determines that (a) the statement is offered as evidence of a material fact (b) statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts, and (c) the general purposes of these rules and the interests of justice will be best served by admission of the statement into evidence.

3. Procedural Requirements: Proponent must make the statement known to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to meet it. You must also make known the name and address of the declarant.

XVI. CONFRONTATION AND THE HEARSAY RULEA. Calif v Green: An uncross-examined out of court declaration will generally be

admissible not withstanding the confrontation clause so long as the declarant is available in court to be cross-examined.

B. In the situation that a witness is unavailable statements will be admitted, with no violation of the confrontation clause, if the following requirements are met:1. Unavailability of declarant2. Indicia of reliability: prove this by:

a. statement falls within a firmly rooted exception to the hearsay rule ori. must be old and widely accepted, residual exception under 807

probably doesn’t satisfy thisb. shows particularized guarantees of trustworthiness based on the

circumstances that surround the making of the statement; 4 factors:i. spontaneity and consistent repetitionii. mental state of declarantiii. terminology used by declarantiv. appearance of lack of motive to fabricateNote: OK 2803 applies to testimony of children 12 years and younger describing acts of sexual conduct, uses the four above factors

XVII. RULES OF PRIVILEGEA. Rule 501: Privileges, p. 791B. Common law privileges recognized under federal law:

1. Required Reports Privilege2. Lawyer/ Client 3. Psychotherapist/ Patient4. Clerical5. Spousal6. Trade Secret7. Identity of Informer8. State Secrets9. Journalist Privilege10. Political Vote

C. Rationale: encourage communication in these relationships, protect privacy interests

XVIII. THE USE OF SPECIALIZED KNOWLEDGEA. Introduction

1. 6 Basic Issues to Confront when dealing with expert testimony;a. Will Expert Testimony assist the trier of fact? Rule 702b. Is the witness qualified? Rule 702c. What are the permissible bases for testimony of the expert? Rule 703d. What type of opinions may the expert present? (ultimate issue) Rule 704e. What effect is to be given to expert testimony? (evidentiary or conclusive)f. How is the issue involving specialized testimony to be decided?

B. Assisting the Trier of Fact with Specialized Knowledge1. 2 factors will operate to control the determination of admissibility:

a. What is the nature of the issue?b. What is the state of the art involved?

2. Nature of the Issuea. Rule 702: If scientific, technical or other specialized knowledge will assist

the trier of fact to understand the evidence or to determine a fact at issue, a witness qualified as an expert by knowledge, skill, experience, training or education may testify in the form of an opinion or otherwise.

b. Even though jurors have general knowledge of the subject, if expert’s testimony will assist them it is admissible. You should err on the side of admissibility.

c. Res ipsa doesn’t require expert testimony3. State of the Art

a. State of the art issues come into play when there is no prior authority admitting a specific type of expert testimony.

b. Frye standard: expert testimony meets the state of the art test when it involves a principle or science that is:i. generally acceptedii. within the scientific community from which it evolved

c. Reliability standard: McDonald case said Ct must draw a distinction between machines and experience. Ct said you should apply Frye standard to machines and a reliability standard when dealing with opinion.

d. Daubert v Merrell Dow case: Ct rejected Frye standard with regards to scientific knowledge and held Rule 702 is the proper standard. Ct laid down 4 factors to determine admissibility of scientific knowledge:i. Reliability- scientifically valid principles and methodology and

whether the underlying theory or technique has been testedii. Has the theory or technique been subject to peer review and

publication?iii. Known or potential rate of error of scientific technique- what kind

of standards within the discipline are controlling its operationiv. Is there general acceptance of the technique within the scientific

community to which it belongs? (Frye test)e. 1999 Sup Ct case said that there was no relevant distinction in Rule 702

between scientific knowledge and opinion so Daubert applies to all.f. Abuse of discretion is the appropriate standard of review on admissibility

of expert testimony.

C. Qualifications of the Expert1. Ways to qualify an expert:

a. knowledgeb. skillc. experienced. traininge. education

2. Note that 702 does not require formal training, sufficient experience in the field is enough.

D. Bases for Expert Testimony1. Rule 703: Bases of Opinion Testimony by Experts: The facts or data in the

particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the field in forming opinions or inferences the facts or data need not be admissible in evidence.a. Amendment adds “in order for the opinion or inference to be admissible.

Facts or data which are otherwise inadmissible shall not be disclosed to the jury unless their probative value is greater than their prejudice.”

2. A record of the facts or data upon which an expert renders an opinion must be made.

3. Rule 705: Disclosure of Facts or Data Underlying Expert Opinion: The expert may testify in terms of opinion or inference and give reasons therefore without prior disclosure of the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts on cross examination.

4. Note: an expert may not base his opinion on the opinions of other non-testifying experts b/c those experts are not subject to cross examination.

E. Opinions on the Ultimate Issue1. Rule 704:

a. Except as provided in subsection (b), testimony in the form of an opinion or inference, otherwise admissible, is not objectionable b/c it embraces an ultimate issue to be decided by the trier of fact.

b. No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime or defense. Such ultimate issues are matters for the trier of fact alone.

2. Gabus case in OK created an exception to 2704 finding that an expert may not render an opinion as to fault in an automobile accident case.

F. Determining the Issue of Fact1. When experts dispute a question of fact, it should be given to the jury to decide

based on the guidance by the experts.2. Rule 706: Court Appointed Experts: provides for court appointment of

experts, problem is compensation, look to 706(b); rationale for this rule is neutrality of expert

3. Oklahoma does not have this rule, simply provides for court appointed experts in specific statutes.

XIX. EXAMINATION, IMPEACHMENT AND REHABILITATION OF WITNESSES

A. Exclusion of Witnesses1. Rule 615: Exclusion of Witnesses: At the request of a party the court shall

order witnesses excluded so that they cannot hear the testimony of other witnesses and it may make the order of its own motion. This rule does not authorize exclusion of (1) a party who is a natural person or (2) an officer or employee of the party which is not a natural person designated as its representative by an attorney or (3) a person whose presence is shown by a party to be essential to the presentation of a party’s case.

2. Note 2615 is broader than this rule. 2615 prohibits exclusion of victims in criminal cases and representatives of children during the child’s testimony.

B. Examination of Witnesses1. Mode of Presentation

a. Rule 611: Mode and Order of Interrogation and Presentation: i. Control by Court: The court shall exercise reasonable control over

the mode and order of interrogating witnesses and presenting evidence.

ii. Scope of Cross Examination: Cross examination should be limited to the subject matter of direct examination and matters affecting the credibility of the witness. The court may permit inquiry into additional matters as if on direct examination.

iii. Leading Questions should not be used on the direct examination of a witness except as may be necessary to develop the testimony. Leading questions should be permitted on cross examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

2. Direct Examination- Form of Testimonya. testimony in narrative form is permissible, although note you have more

control over the witness if you ask questions that require short answersb. Leading Questions: see Rule 611 (c), standard of review is abuse of

discretionc. Refreshing the Recollection of Witnesses:

i. Writing Used to Refresh Memory: a writing can be used to refresh the testimony of a witness either prior to testimony or during. Adverse party has the right to request the writing be produced.

ii. Note standards for when recorded recollection may be used. 803(5)iii. Be sensitive here to work product privilege.

3. Cross-Examinationa. see Rule 611 (b)

4. Redirect and Recross Examinationa. limited to any new information brought out in the cross or on redirect

C. Impeachment of Witnesses1. Who May Impeach

a. Rule 607: The credibility of a witness may be attacked by any party, including the party calling the witness.

b. Webster case: Established a good faith standard which said that you can’t call a hostile witness on purpose in order to introduce impeachment evidence. You must have a good faith belief that the witness isn’t hostile.

2. Scope of Impeachment- In General: 6 categoriesa. You can call another witness to contradict the main witness.b. Test defects in capacity of the witness to observe, remember, or relate the

matters for which the testimony is offered.c. The bias of a witness due to emotional influences or hostility. d. Character of the witness, including character for truthfulness or

untruthfulness and specific conduct probative of truthfulness or untruthfulness. (Rule 608)

e. Conviction for the commission of a crime (Rule 609)f. Prior inconsistent statements of the witness (Rule 613)

3. Methods of Impeachment:a. cross examinationb. extrinsic evidence- must involve a non-collateral fact Note: bias is never a

collateral fact.4. Defects in Capacity to Observe, Remember or Relate

a. Rules 401, 403, and 611 are broad enough to allow an attack on the witness’ ability to observe, remember, or relate the event.

b. Sensory capacity is never collateral, cross examination and extrinsic evidence can be used.

c. Mental Illness or infirmary which affects the witness’ capacity at the time of the event or at the time of trial is a proper inquiry when testing capacity on cross examination. Note you still have to use Rule 403 balancing test.

d. Alcohol and drug use- proper inquiry, must be at time of event or time of trial

5. Contradictiona. cross and sometimes extrinsic evidenceb. Test for collateral v non-collateral evidence is: Does the evidence have an

independent purpose and independent ground for admission? c. Facts which meet this test:

i. Facts that are relevant to the substantive issue in the case.ii. Facts which are independently provable by extrinsic evidence apart

from the contradiction to impeach or disqualify the witness. Among these are facts showing bias, interests, conviction of crime, and want of capacity or opportunity for knowledge. Facts showing misconduct of the witness for which no conviction has been had are not within this second kind of facts, but are collateral and if denied on cross cannot be proved to contradict.

iii. Facts forming the background of the witness’ testimony.

6. Biasa. Describes the relationship between a party and a witness which might lead

the witness to slant his testimony in favor of the party b. can use cross examination or extrinsic evidencec. Rule 611(a) can be used to allow judge to limit how far the inquiry may god. Types of bias

i. favoritismii. animosityiii. self interest

7. Character and Conduct of Witnessa. Rule 608:

i. Opinion and Reputation Evidence of Character: The credibility of a witness may be attacked or supported by evidence in the form of opinion or reputation subject to these limitations: Evidence may refer only to character for truthfulness or

untruthfulness Evidence of truthful character is admissible only after the

character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise

ii. Specific Instances of Conduct of a witness for the purposes of attacking or supporting the witness’ credibility, other than conviction of a crime, may not be proved by extrinsic evidence. They may be inquired into on cross-examination Concerning the witness’ character for truthfulness or

untruthfulness Concerning the character for truthfulness or untruthfulness of

another witness as to which character the witness being cross examined has testified

8. Conviction of Crimea. Rule 609: Evidence of past convictions is admissible for impeachment

purposes against a witness or the accused when he is a witnessi. crime must be punishable by death or more than one year

imprisonmentii. unless it is a crime involving dishonesty or false statement, not

subject to the balancing testiii. with regards to a witness look at Rule 403 and usually err on the

side of admissibilityiv. with regards to the accused weigh the probative v the prejudicial

value and generally weigh on the side of exclusionv. Time limit: see 609(b) Ct can override 10 year limit, if the

probative value outweighs the unfair prejudice, err on side of exclusion

vi. Ordinarily limited to name of crime, time and place of conviction and sentence imposed

9. Prior Statements of Witnessesa. Rule 613:

i. When examining a witness concerning a prior statement, whether written or not, statement does not have to be shown to the witness, but on request must be provided to opposing counsel.

10. Religious Beliefs and Opinionsa. Rule 610

11. Rehabilitationa. not permitted unless the witness has been attackedb. Methods to rehabilitate:

i. introduce supportive evidence of the good character of the witness attacked

ii. introduce consistent statements of the witness who has been attacked