Evidence Attack Outline PDF

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Attack outline Issue Spotter: IF YOU THINK OF IT, SAY IT 1. LOOK FOR STATEMENTS FROM THE PAST 2. Relevance? a. Material b. Probative 3. Personal knowledge? 602 a. Do the witnesses have personal knowledge? i. 911 operator does; they’re on the call ii. Person talking about what they had personal knowledge 4. Hearsay? a. Exclusions? b. Double? 5. Character propensity? a. Using past dealings to prove current act in question? Have they done it before? b. Prior acts? i. Dishonesty? ii. Stealing? c. MIMIKCOP? 6. Lay / Expert opinion? a. Improper lay opinion? Would it help the jury to hear their lay opinion? i. Is it particularized knowledge? Previous experience? 7. Confrontation Clause? a. Testimonial? i. MIXED? b. Bruton i. Due Process violation 8. 403 Unfair prejudice?

911 operator  The 911 transcript is hearsay because it was created outside the courtroom and is being offered to prove the truth of the matter as asserted within it.  However, the operator’s statements could be offered for the impact on the listener, rather than for the truth of the matter as asserted. o Public records exception: The transcript may not come in under the public records exception because the operator is employed by the police, and some jurisdictions may consider that adversarial. Because adversarial statements are not allowed to be offered against criminal defendants under this rule, it would likely not work here. o Recorded recollection: It also would likely not come in as a recorded recollection because it has not been indicated that the operator has stated that he doesn’t recall the conversation or matter. o Computer generated: It could possibly be argued that this transcript was generated by a computer, and because computers don’t “make statements,” one could say

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that this isn’t hearsay. Nevertheless, because there are not enough facts indicating this, this would likely not work. Moreover, the operator’s words would be independent statements as well. Get in questions under effect on listener; wide open questions to solicit answers Less important anyways, you want the caller’s testimony

Relevance: 1. Who is offering the evidence? 2. What is the fact the proponent seeks to prove? 3. Is that fact material? 4. What is the evidence offered? 5. Is this evidence sufficiently probative? 6. (Is there a conditional relevance problem?) a. Preponderance of the evidence (104(b); Huddleson) 7. Is the evidence relevant? Rule 403 Weighing 1. What risks are at play? a. Unfair prejudice; i. Is the fact at issue? ii. Relative monetary positions (Commonwealth v. Serge) 1. Computer generated animation (CGA) iii. Against the prosecution? b. Confusing the issues; c. Misleading the jury; d. Undue delay; e. Wasting time; or f. Needlessly presenting cumulative evidence. 2. Effectiveness of rule 105 limiting instruction? 3. IS IT SUBSTANTIALLY OUTWEIGHED? a. WHY? 4. Permissive; abuse of discretion a. Sometimes will not order a new trial if they find it to be harmless, despite being unfairly prejudicial. State v. Bocharski 5. Evidentiary alternative? a. Stipulation 403 Considerations 1. Evidence of flight – US v. Meyers Factors a. From the defendant’s behavior to flight (that they're fleeing) b. From flight to consciousness of guilt (they're fleeing bc they feel guilty) c. From consciousness of guilt to consciousness of guilt concerning the crime charged; and (they feel guilty for the crime they're being charged for and not some other crime) d. From consciousness of guilt concerning the crime to actual guilt of the crime charged. (they're feeling guilty about the crime charged because they are guilty)

e. Also: i. Are there priors or other reasons to leave? ii. Time? 2. Probability evidence: can’t be admitted when it has a shaky/unverified foundation 3. Stipulations: a. You can ensure a fair trial by entering into stipulations > US v Jackson a. Status crime: Rule 403's probative value should be assessed by comparing evidentiary alternatives; party’s concession should be noted Specialized Relevance Highly relevant but excluded because they are unfairly prejudicial 1. 407 Subsequent remedial measures are not admissible to prove: Negligence; culpable conduct; a defect in product or its design; or a need for warning or instruction. a. BUT court may admit this evidence for another purpose, such as impeachment – or if disputed – proving ownership, control, or the feasibility of precautionary measures 2. 408 Compromise offers and negotiations: can’t admit statements during settlement negotiations to prove: prove liability, lack of liability, or amount of damages. a. Does not apply when trying to prove something other than liability, such as proving the bias or prejudice of a witness, effort to obstruct investigation b. LIMITATIONS ON IMPEACHMENT: can’t impeach for prior inconsistent statement: i. Offering valuable consideration for claim AND ii. Conduct/statement in negotiations about civil claim 1. Doesn’t apply in criminal w/ public officer c. Were you roped into settlement? 3. 409 Payment of medical expenses to prove liability for injury 4. 411 presence or lack of Liability insurance to prove negligence a. Admissible for bias, prejudice, agency, ownership, and control i. Can explain If you need to prove lack of litigious nature – Williams b. RISK TO PARTY – 403 – Williams v. McCoy 5. 410 Pleas, plea discussions, and related statements: not admissible AGAINST

DEFENDANT who made plea: a. Guilty plea later withdrawn b. Nolo Contendre c. Statement during proceeding for those pleas i. Can get in if ∆ opens door to what prosecutor said or if in a perjury case d. Statement with prosecution attorney if it doesn’t result in plea or withdrawn plea i. Can get in if ∆ opens door to what prosecutor said or if in a perjury case e. Biaggi: you can introduce evidence of rejection prosecution’s immunity offer; evidence not offered against ∆

Character Propensity 1. Generally, you can’t admit evidence of a person’s character or character trait to prove that on a particular occasion they acted in accordance with that trait. 404(a)(1). a. Applies to criminal and civil, but see the carveouts for criminal below b. There are no exceptions for reputation evidence in civil cases, except for reputation for dishonesty for a witness. See 404/608 generally. 2. Is there another reason why this evidence may be admitted, beyond character propensity? a. Motive b. Identity i. Identity must be at issue – People v. Zackowitz c. Absence of Mistake i. Husband “drowning” wife in bath tub d. Intent i. More powerful when ∆ says they didn’t mean to do it. e. Knowledge f. Common plan or scheme i. Ex. OJ attacked his wife before. Him later killing her was a part of him trying to manipulate and control her. g. Opportunity h. Preparation i. Others: i. Modus Operandi “MO” – Crime was done in such an idiosyncratic way that nobody else could have done it. ii. Narrative integrity/ res gestae: prior act is necessary to tell proponent’s case theory or witness’s testimony of a key issue. It wouldn’t make sense without it. iii. Inextricably intertwined: Prior act is a part of the overall transaction; similar to common plan or scheme. iv. Doctrine of chances: Unusualness of occurrence + number of times it occurred = what are the chances? v. 406 Habit/Routine Practice 1. NO BAD HABITS 3. Criminal ∆ exceptions a. Criminal can open door for his own pertinent trait through reputation/opinion. Prosecution can respond with R/O. i. Criminal defendants may offer evidence of his own pertinent trait. 404(a) (2)(A). However, that evidence may only take the form of reputation or opinion evidence. FRE 405. ii. After criminal opens door, prosecution may respond by offering its own evidence to rebut that trait through reputation or opinion evidence. 404(a) (2)(A); 405. b. Criminal ∆ can open door for VICTIM’s pertinent trait through R/O.

i. A criminal defendant may offer evidence of the victim’s pertinent trait, such as violent tendencies, but only through reputation or opinion evidence. FRE 404(a)(2)(B); 405. ii. After the criminal opens the door, the prosecution can then respond by offering evidence to rebut it, such as the victim’s peacefulness, or show the defendant’s same trait, such as the defendant being aggressive. 404(a) (2)(B). c. Homicide case: If ∆ opens door and says victim was first aggressor, prosecutor may respond with evidence of victim’s peacefulness (reputation/opinion) 404(a) (2)(C); 405. d.

Impeachment 1. Question W’s perception, memory, or narrative accuracy about the incident in question. a. Includes questions about eyesight, hearing, passage of time (age), memory. b. Assumption is that W is mistaken about his/her testimony about this event. i. Not a character propensity attack; just attacking the perception at this time. 2. Question W’s version of the truth (or lie) in this particular incident in question. a. Includes question about conflicting evidence, prior inconsistent statements, and evidence of bias/motive to lie(informing through what lens the witness saw the events in question) i. Prior inconsistent statement, see 613 rule statement on extrinsic evidence b. A party is free to impeach a witness’s perception, memory and mental state on the night in question through any type of evidence (subject to 401-403.) i. EXTRINSIC EVIDENCE ALLOWED c. Assumption is that W is lying now or lied then; says little about W’s general propensity to lie. d. 3. Questions W’s character propensity to lie  404(a)(2)(C)  607-609 a. Cross examiner can inquire about a specific act that sheds light on truthfulness as long as there is a good faith basis for asking. i. Have you lied or is there another act of dishonesty? 1. Stealing from employer is meh ii. No extrinsic evidence 608(b) iii. BUT COULD IT BE SOMETHING ELSE? 1. E.g. Motive from practice exam Specific Acts – 404(b) 4. 404(b)(1): can’t introduce specific acts for character propensity 5. 404(b)(2): You can introduce evidence specific acts for MIMIKCOP’s 6. You can’t introduce extrinsic evidence of specific acts to show the witness is lying 608(B)

a. You can inquire into specific acts if its probative of truthfulness, but you have to accept it 608(B) 7. You can introduce countering evidence to show that Specific Instances: a. Except for FRE 609 (prior convictions), extrinsic evidence is not admissible to attack or support witness’s character for truthfulness. 608(b) b. Specific 8. 609: Evidence of criminal conviction a. Can introduce extrinsic evidence regardless if it has been rebutted or not Extrinsic Evidence  Can use extrinsic evidence for bias  No extrinsic evidence for prior lies

Hearsay 1. Is the statement considered hearsay? a. Is there a statement? i. Hearsay includes oral statements, written statements, and non-verbal conduct intended as an assertion. b. Who made the statement? c. Where was the person when he/she made the statement? d. Who is offering the statement? e. What fact is the party trying to prove with the statement? f. Is there a nonhearsay reason for admitting this statement? i. Prove statement’s impact on listener ii. Prove a legal right or duty triggered by (or offense caused by uttering the statement iii. Impeach the declarant’s later, in-court testimony 2. Conclusion: a. Because this is an out of court statement made for the truth of the matter as asserted, there is a hearsay problem. Consequently, it should be inadmissible unless it is accompanied by an exception or an exclusion. 3. Is there a hearsay exclusion? (NOT HEARSAY) a. Party’s own statement: Under FRE 801(d)(2)(A) b. Adoptive admission: Under FRE 801(d)(2)(B), i. Person heard and understood accusation; ii. He/she was at liberty to respond; iii. Circumstances naturally called for a response; AND 1. Were they incarcerated/handcuffed/mirandized? 2. Would circumstances really call for a response here? iv. He/she failed to respond (or failed to deny). c. Authorized statement: d. Agent/Employee Statement: Under FRE 801(d)(2)(D), statements made by the opposing party’s agent or employee within the scope of that relationship and while it existed are considered not hearsay.

i. Judges should raise a preliminary question under 104(a) Mahlandt v. Wild Canid Survival. e. Coconspirator statement: Under FRE 801(d)(2)(E), statements that are made 1) by a coconspirator 2) during conspiracy and 3) in furtherance of conspiracy are considered not hearsay. i. The previous points should be resolved by a 104(a) pretrial hearing and proved by a preponderance of the evidence – Bourjaily ii. Conspiracy ends when the coconspirator is incarcerated, so you can’t admit statements under this rule after they have been Mirandized. f. NO PERSONAL KNOWLEDGE REQUIREMENT FOR ANY OF THEM: Mahlandt v. Wild Canid 4. Declarant available exclusions a. Is the declarant available? b. Prior inconsistent statement > must be made at trial, hearing, proceeding i. Extrinsic evidence 613 c. Prior consistent statement to rehabilitate d. Identification i. Identification must be at issue 5. Declarant unavailable a. Is declarant unavailable? i. Preliminary question under 104(a) ii. Exempted from privilege iii. Refuses to testify iv. Doesn’t remember v. Death or infirmity vi. Can’t be procured vii. Wrongfully caused unavailability? b. Former testimony i. Was the testimony given at a trial, proceeding, or deposition? ii. Did the opposing party have an opportunity and motive to develop the testimony? c. Dying declaration i. Homicide or civil case? ii. Declarant dead iii. Did the declarant have personal knowledge when making the statement? iv. Did the declarant believe his/her death was imminent?? v.

Confrontation Clause 1. Hearsay? a. OOC + TOMA? b. Not hearsay under 801(c)(3) > no CC problem 2. Hearsay Exclusion?

a. No hearsay exclusion > inadmissible hearsay > CC problem b. There is a hearsay exclusion/exception > admissible under hearsay rules 3. Offered against ∆ in criminal case? a. Offered in civil case or against prosecution? i. Yes > no CC problem b. Offered against ∆ in criminal case? i. Yes > CC problem 4. Confrontation Clause problem established a. Declarant appears for CE at trial > No CC problem i. (CA v. Green) b. Declarant unavailable to testify and ∆ had past chance to CE > No CC problem i. (CA v. Green; Crawford) c. Statement is not “testimonial” > i. The Confrontation Clause offers no protection against admission of nontestimonial statements, even if unreliable. Whorton v. Bockting d. Forfeiture by wrongdoing? e. CC rights waived?

Expert Testimony 1. Proper qualification a. Are they an expert? b. Are they qualified to opine on what they’re talking about now? 2. Proper Topic a. Does it help the jury? b. Does the expert give a legal opinion and intrude upon the judge? c. Does the expert give a conclusion on an ultimate issue such that the jury’s role is subverted? i. Mens rea ii. Credibility iii. Negligence iv. Reasonable force d. Does the expert make a credibility determination on one of the key players? 3. Sufficient Bases? a. What kind of knowledge was used? i. Personal Knowledge: what they personally observed ii. Before hearing: Perhaps through an investigation if others would rely on it iii. At hearing: testimony and exhibits b. Hearsay? c. Hearsay disclosure? i. Reverse 403 under 703 ii. Effectiveness of limiting instruction 1. Consider information’s probative value in assisting jury to evaluate expert opinion vs. Risk of prejudice of jury’s potential misuse of the information for substantive purposes. a. Does jury really need this information?

2. Also consider whether the inadmissible facts will come up under cross examination. RB 178.

Expert 2 1. Does the expert have proper qualification? (702) a. Are they an expert? i. Resume, training, experience, publications (in this field)? b. Are they qualified to give an opinion on the subject matter of this case specifically? 2. Is the expert opining on a proper topic? (702(a), 704) a. What is the topic here? b. Does the testimony assist the trier of fact? Is this a topic beyond the average ken of the jurors? (702(a), 704) i. Is it helpful?I c. Did expert reach an ultimate issue? (704) i. Okay in civil. d. Legal Opinion or intrusion upon judge? 3. Did the expert have sufficient bases? (702(b), 703) a. Personal knowledge b. During hearing c. Before Hearing i. Hearsay ii. Can underlying hearsay get in? 1. Reverse 403 4. Is the expert’s testimony the “product of relevant and reliable methods”? a. Reliable Basis? i. Daubert factors for assessing whether expert testimony has reliable basis (by a preponderance of evidence) NONEXHAUSTIVE; BRING IN ANYTHING ELSE YOU FIND RELEVANT 1. Has the expert’s technique/theory been challenged in an objective sense, or whether it is a subjective, conclusory approach that cannot be reasonably tested for reliability? 2. Has the expert’s technique/theory been subject to peer review and publication? 3. Is there a known or potential rate of error of the technique or theory when applied? 4. Are there standards and controls that have been maintained? 5. Has the technique/theory been generally accepted in the scientific community (Frye)? ii. Other Factors (Daubert, Kumho/Other) 1. Whether the experts are proposing to testify about matters growing naturally and directly out of research they have conducted independent of the litigation or whether they have developed their opinions expressly for the purpose of litigation.

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a. Kumho: he was engaged to look at photos of the tire before the litigation. He wasn’t publishing that prior to the leg Whether the expert has unjustifiably extrapolated from an accepted premise to an unfounded conclusion. a. Does the reasoning make sense? Kumho Whether the expert has adequately accounted for obvious alternative explanations. a. There were insufficiently repaired punctures, a lot of miles on that could account for it. Whether the expert is being as careful as he would be in his professional work outside his paid litigation consulting. a. He only looked at photographs and then inspected it for three hours. In a factory setting, he would run tests on it beyond that. Whether the field or expertise claimed by the expert is known to reach reliable results for the type of opinion the expert would give. a. Has he ever used this test/method before, perhaps in a controlled setting? Does it produce reliable answers?

6. b. Relevance/Fit? i. Is the testimony “relevant to the task at hand” and “logically advance a material aspect of the proposing party’s case?” 1. Consider governing substantive standard in seeing whether it’d “assist the trier of fact”...