Evidence Carpenter PDF

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Evidence Outline  Lay Witnesses o FRE 601: Competency to Testify in General  Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. o FRE 602: Need for Personal Knowledge  A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. o FRE 701: Opinion Testimony by Lay Witnesses  If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is:  A. Rationally based on the witness’s perception;  B. Helpful to clearly understanding the witness’s testimony or determining a fact in issue; and  C. Not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. o FRE 704: Opinion on an Ultimate Issue  A. In General—Not Automatically Objectionable: an opinion is not objectionable just because it embraces an ultimate issue.  B. Exception: in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. o U.E. 23: Two Lay Witness Rules: FRE 602 and FRE 701  Firsthand knowledge rule—FRE 602.  Witness needs to have personal knowledge of the events that they’re testifying about.  Firsthand knowledge isn’t just about what they saw, it extends to all senses.  If a witness is uncertain about something and says something like “I think,” “I believe,” or “I’m not positive” it goes to the weight of the evidence not the admissibility of the evidence.  Typically, the witness supplies proof of firsthand knowledge. o Can be the witnesses own testimony or can be inferred from the testimony.  Standard of Proof: Prima Facie o Trial judge decides whether a witness has firsthand knowledge by looking at whether sufficient evidence to support a finding of firsthand knowledge has been introduced.  Relationship to Hearsay Rule o In many cases the firsthand knowledge rule and the hearsay rule overlap.  Example: if a witness’s testimony that the defendant committed a bank robbery is based only on the statement of another person, both rules are violated. o If a witness has no personal knowledge of a robbery but the witness does have personal knowledge that the robber said “I robbed the bank,” the testimony concerning the statement is admissible based on the party opponent exception to the hearsay rule.  Opinion rule—FRE 701  Hypotheticals to help understand when the opinion rule applies:

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o A, B and C are in a room together. Before leaving the room, C sees A heading toward B with a clenched fist. When he comes back to the room, he sees B wiping blood from his face.  Since the witness as out of the room at the time the blow was struck, she has no personal knowledge and FRE 602 governs. 701 does not apply in this situation. o A and B both saw a bank robbery take place. A testifies, “the defendant was the robber.” B testifies, “In my opinion, I believe that the defendant was the robber.”  FRE 701 isn’t implicated here. Also, FRE 602 says that the witness doesn’t have to be positive for the statement to come into evidence —that issue goes to the weight of the evidence. o A witness can testify in the following ways:  “The defendant acted like he was insane during the robbery”  “The defendant acted in a bizarre manner and spoke incoherently”  “The defendant was running around naked and screaming that he was the Governor of Arkansas”  Rule 701 is a rule of preference as to the form of testimony, not a rule of exclusion.  If opposing counsel objects to the first two options and the judge strikes those statements, the offering party can rephrase the question and ask the witness to tell the jury specifically what the witness saw—aka option 3.  Also, if the first two statements are admitted, cross examination is available.  Aka this rule is flexible. Common Law: Lay witnesses can testify to facts and not opinions, inferences or conclusions. However, there's the “shorthand rendition rule” or “collective facts” exception: o Permits opinions concerning the identity of persons, things, and handwriting; size, color, and weight of objects; times and distance; mental state or condition of another; insanity and intoxication; affection of one person for another; physical condition of another, such as health or sickness; and values of property. FRE 701 is a rule of preference and not exclusion: o Primary sensory impressions are preferred to opinions, conclusions, or inferences drawn from those impressions  Ex: he was staggering and falling all over the place instead of he was drunk. o Exclusion is just the only way to bring forth more concrete testimony when it is possible to do so.  If an objection on the grounds of “opinion” is sustained, counsel can just rephrase the question, asking for more specific information.  Ex: I testify: “the defendant was drunk” and the other side objects. The lawyer questioning me can just ask how I knew he was drunk and then I’d say “because he was staggering and falling all over the place.” The opinion of a non expert is admissible if: o Its rationally based on the witness’s perception

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o Embodies the firsthand knowledge rule requiring that lay opinion testimony be both  Based on the witness’s first-hand perceptions and  Rationally derived from those first-hand perceptions  Ex: Cant testify about someone’s state of mind based on one interaction with them but if you have known them for years and you are talking about discrete matters then you’re probably good. o Helpful to a clear understanding of the witness’s testimony or to the determination of a fact in issue  The court considers several factors when deciding if an opinion is helpful:  The ability of the witness to express herself o The more articulate, the less need for an opinion  The importance of the issue to which the opinion relates o The more crucial the issue, the more important it is for the witness to supply, if possible, the underlying facts.  A witness’s use of common terms that also have a specific legal meaning such as “rape” and “insanity” should be explained.  If attempts are made to introduce meaningless assertions which amount to little more than choosing up sides, exclusion for lack of helpfulness is called for by the rule o Ex: an opinion as to fault in a tort case should be excluded on this basis. o Not based on scientific, technical, or other specialized knowledge within the scope of FRE 702 (expert testimony rule). Overlap between Lay and Expert Opinions: o Rule 701 specifies that the witness’s opinion cant be based on scientific, technical or specialized knowledge within the scope of 702 (expert testimony)  Purpose of this is to prevent a party from conflating expert and law opinion testimony thereby conferring an aura of expertise on a witness without satisfying the reliability standard for expert testimony. o A witness can testify as both a fact witness and an expert. The federal rules distinguish between lay and expert testimony not lay and expert witnesses.  Major difference between the two types of witnesses:  Lay witness is using his opinion as a composite expression of his observations otherwise difficult to state  The expert is expressing his scientific knowledge through his opinions. The opinion rule should rarely be applied to extrajudicial statements, such as those that fall within a recognized hearsay exception or are used for impeachment. o If an opinion is contained in an out of court statement and the declarant isn’t available, the opinion rule operates as a rule of exclusion, rather than of preference, because there's no opportunity to rephrase and get more concrete information. o If an objection to trial testimony on the grounds of opinion is sustained, counsel can rephrase the question and get a more concrete answer.

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o UE 24.06 (through A): Ultimate Issue Rule—FRE 704  FRE 704 abolishes the “ultimate issue” prohibition, under which a witness was precluded from giving an opinion on the ultimate issues in a case  Doesn’t mean that all ultimate issue opinions are admissible. Just means that their admissibility is governed by FRE 701 (lay opinions) and 702 (expert opinions) both of which require the opinion to be helpful. o This means that these rules would protect against the admission of an opinion that would just be telling a jury what result to reach because that wouldn’t be helpful. Tangible Things o FRE 901(a)&(b)(1): Authenticating or Identifying Evidence  A. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claim is.  B. The following are examples only—not a complete list—of evidence that satisfies the requirement  1. Testimony of a Witness with Knowledge: Testimony that an item is what it is claimed to be. o UE 26.07: Real and Demonstrative Evidence  Real Evidence: tangible evidence that is historically connected with a case.  Before physical objects are admissible, the offering party must establish that they are in “substantially the same condition” as at the time of the crime or accident.  Identifying real evidence can be done in two ways: o Establishing that the evidence is “readily identifiable” o Establishing a “chain of custody”  The links in the chain of custody are those person who had physical custody of the object.  Persons who had access to, but not possession of, the evidence are not links.  If there's a missing link it can still come in if there's sufficient proof that the evidence is what it purports to be.  Standard of proof (prima facie): offering party must introduce “evidence sufficient to support a finding that the item is what its proponent claims”  Demonstrative Evidence: evidence, such as a model which is merely illustrative.  Diagrams, models, maps, blueprints, sketches are allowed if they’re substantially accurate representations of what the witness is trying to describe.  In court exhibitions: like the plaintiff showing scars or amputated limbs, etc.  Jury views—issues with this rest with the trial judge under Rule 403 and 611(a). o UE 27.08: Photographs, Computer Animations, Computer Simulations, Voice Identification, Telephone Conversations.  Photographs: Foundation for admissibility of a photo is laid by establishing that the photo is an “accurate and faithful representation” of the scene or object depicted.  Anyone who has firsthand knowledge of the scene or object may lay the foundation.  “Silent witness theory’: the process that produced a photo can be used to authenticate it.  Videotapes: authenticated by a showing that they accurately depict the scene which they purport to portray.  Computer animations: a higher burden is required for the admissibility of recreations of the event at issue.

Computer simulations; type of scientific evidence and thus require a more elaborate foundation to establish reliability.  Voice identification: FRE 901(b)(5) provides for the identification of a person’s voice by someone familiar with that voice  Telephone Conversations: FRE 901(b)(6) provides for the authentication of telephone conversations.  Outgoing and incoming calls must be distinguished o Incoming calls are not covered by this rules.  Rule applies only to telephone calls made by the witness to the person or number in question  Sound Recordings: admissible under several theories/ methods of authentication  901(b)(5): voice recognition by a witness familiar with a person’s voice  901(b)(9): the process or system used to produce the recording is shown to be reliable. o UE 28.01: Authentication of writings: FRE 901-903  Documents are generally not self authenticating; someone must first lay the foundation for admissibility  Laying the foundation: an authenticating witness must testify o Ex: the detective who obtained the confession could testify that she saw the accused sign the document.  FRE 901 deals with authentication. A document can be authenticated under the rule but be inadmissible for other reasons  Ex: it fails to satisfy hearsay rule, best evidence rule, or because its probative value is substantially outweighed by its prejudicial effect (FRE 403). Relevance o FRE 401: Test for Relevant Evidence. Evidence is relevant if:  A. it has any tendency to make a fact more or less probable than it would be without the evidence; and  The fact is of consequence in determining the action  (this is shortened to consequential fact) o FRE 402: General Admissibility of Relevant Evidence. Relevant evidence is admissible unless any of the following provides otherwise:  The U.S Constitution  A federal statute;  These rules; or  Other rules prescribed by SCOTUS  Irrelevant evidence is not admissible o FRE 104(b): Relevance That Depends on a Fact:  When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. o FRE 403: Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons  The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. o UE 9.01: Overview of Relevancy Rules  If the evidence isn’t relevant, it should be excluded  If the evidence is relevant, the next step focuses on whether some other evidentiary rule requires exclusion. 

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Special Relevance Rules came up because in some situations, an issue recurs so frequently that the courts develop categorical rules  FRE 404, 405, and 412-15 deal explicitly with character  FRE 406 governs habit evidence o UE 9.02: Consequential (“material”) facts defined  FRE 401 embraces two concepts: relevancy and materiality:  To be admissible evidence must be both relevant and material  Relevancy: describes the relationship between an item of evidence and the proposition it is offered to prove.  Materiality: describes the relationship between that proposition and the issues in the case—i.e. the consequential or material facts.  The consequential facts in a particular case are a matter of substantive law (with the exception of the credibility of witnesses): o The elements of a charged crime o The elements of a cause of action o The elements of an affirmative defense o Damages in a civil case  The pleadings may remove some of these elements; for example, if the complaint alleges negligence and the answer does not deny negligence but asserts contributory negligence as a defense, negligence is off the table; it is no longer an issue in the case.  Examples:  In a rape prosecution, assume the accused proffers evidence tending to show that the alleged victim consented. Because “lack of consent” is an element of common law rape, the evidence relates to a consequential (material) fact. In contrast, the same evidence would not be material in a statutory rape prosecution because lack of consent is not an element of statutory rape. o UE 9.03: Relevancy defined  Relevant evidence: evidence having any tendency to make the existence of a material or consequential fact more or less probable than it would be without the evidence.  Doesn’t require the evidence make a material fact “more probable than not”—that would be preponderance of the evidence. Just requires that the fact be more probable with the evidence than without it. o Ex: introducing evidence of a motive doesn’t alone establish that it was more probable than not that the person committed the murder. But the person killing someone is more probable with the motive than without it.  The terms relevance and probative value are used synonymously in evidence law.  Relevancy (Admissibility) v. Sufficiency:  Although the evidence as a whole must be sufficient to satisfy a party’s burden of production and thus send the issue to the trier of facts (aka to avoid a directed verdict), each item of evidence need only advance the inquiry. o Not all evidence is created equal. Some are more probative than others. Some evidence is relevant but by itself would not be sufficient to convict beyond a reasonable doubt.  Basis for Relevancy Determination  In determining relevancy, the trial judge must depend on logic, as informed by experience or science  The judge does not consider the credibility of witnesses when making relevancy determinations. 

o The judge determines the probative value of evidence as “if true” Direct or Circumstantial Evidence:  Problems of relevancy typically involve circumstantial rather than direct evidence.  EX: if you see the paperboy deliver the newspaper to your house in the morning, you have direct evidence of delivery. In contrast, if you look out your window one early winter morning and observe footprints in the snow, you have circumstantial evidence of delivery. You must draw a further inference to reach the conclusion that the newspaper has been delivered. o Direct evidence requires no process of inference—drawing to go from the evidence to a material fact.  Direct evidence carries with it credibility problems (maybe the witness didn’t accurately see, wasn’t wearing their glasses, hates the suspect, etc). o In contrast, fingerprints are a type of circumstantial evidence because an expert usually cannot tell when they were left; thus, an inference concerning the time the fingerprints were deposited is required. Yet, the fingerprints are often extremely persuasive.  “Inference upon inference” rule:  An inference cant be stacked upon another inference—mostly this rule is rejected but it still comes up sometimes  “Background” Evidence:  Evidence that doesn’t involve a disputed issue o UE 9.04: Admissibility of Relevant Evidence: Rule 402  Relevant evidence is admissible in the absence of a rule of exclusion and irrelevant evidence is inadmissible.  Some of these rules of exclusion appear in the FRE, the Constitution (evidence taken against right to counsel or right to not incriminate, etc). o UE 7.03: Conditional Relevancy: FRE 104(b)  Problems of conditional relevancy are to be distinguished from problems of logical relevancy.  Ex: the written confession of a murder defendant is logically relevant; it has probative value in establishing the identity of the person who committed the murder. The relevancy of the confession, however, depends (or is conditioned) upon a fact—whether the accused wrote or signed the confession, an authentication issue. o The issue of logical relevancy is decided by the trial judge under relevancy rules 104(a) and 401. o The issue of authentication involves a conditional relevancy issue and is treated differently under 104(b).  The trial court does not decide such questions using the preponderance of the evidence standard, as the court does under FRE 104(a). Rather, the trial court determines only if sufficient evidence has been introduced “to support a finding that a fact exists.” In effect, this is a prima facie standard. The difference is between preponderance of evidence and evidence sufficient for a jury to find a fact by a preponderance of the evidence (super subtle) o UE 9.05: Rule 403 “Balancing”—The granddaddy objection of them all  FRE 403 specifies the conditions under which a trial court is permitted to exclude relevant evidence. It requires a three step process  1. Judge must determine the probative value of the proffered evidence 

2. The court must identify the presence of any of the enumerated dangers (unfair prejudice, confusion of evidence, or misleading the jury) or considerations (undue delay, waste of time, or needless presentation of cum...