Evidence in a Nutshell
Authors:
Rothstein, Paul F. / Raeder, Myrna S. / Crump, David
Edition:
6th
Copyright Date:
2012
20 chapters
have results for Evidence in a Nutshell
Preface: Using This Book Sixth Edition 14 results (showing 5 best matches)
- Legions of law students have successfully used Evidence in a Nutshell (1) to study for exams, (2) as optional outside reading during the Evidence course, or (3) as a course-book assigned by the professor. The book is designed to promote understanding and remembering of any Evidence course you might be taking in any law school today. Student-friendly features include:
- [T]he rules of evidence…are motivated … by a distrust of juries as “rational triers of fact” … The judge’s job in admissibility questions is to decide, as Rothstein’s Nutshell finely puts it, when “the trial will be better off without the evidence.”
- Is there one key concept that can unlock all the complexities of Evidence? Maybe not entirely, but here we turn to the world’s leading cultural anthropologist, who, as part of his examination of legal institutions, concluded this about the rules of evidence, quoting an earlier edition of this Nutshell:
- This is the sixth edition of the original ROTHSTEIN’S EVIDENCE IN A NUTSHELL, which proved enormously successful. Rothstein, a law professor at Georgetown University in Washington, D.C., is nationally known for his ability to make difficult points of law clear through his writings, lectures, and media appearances. For the most recent editions, Prof. Rothstein has been joined by an equally talented team: law professors Myrna Raeder and David Crump, prolific writers and award winners in their own right.
- The present authors individually went on to other Evidence and Evidence reform efforts, like the panel amending the Uniform Rules of Evidence. The three combine experience teaching law students, lawyers, bar review courses, and judges; writing books and articles; trying both sides of civil and criminal cases; briefing and arguing cases on appeal (including to the Supreme Court); and drafting and amending evidence rules on the state and federal level. First and foremost, however, the authors are very experienced teachers of Evidence to , the people for whom this book is primarily written, and who have contributed valuable insights over the years into how students come to understand things. These insights have helped enormously to make the book a staple at the nation’s law schools.
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Copyright Page 4 results
- Nutshell Series, In a Nutshell
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Chapter 1. Interpreting the Rules and Other Basics: Offers, Objections, and the Judge’s Function 124 results (showing 5 best matches)
- The study of Evidence is the study of the legal regulation of proof of facts and the inferences and arguments that arise from such proof, in the trial of a civil or criminal lawsuit. While evidence law was originally almost entirely decisional law, it is now mainly codified in statutes and rules of court. The most influential codification of evidence law has been the Federal Rules of Evidence (“F.R.E.”), 28 U.S.C.A. (Rules Appendix). This code was adopted by Congress to govern proceedings in federal courts, effective July 1, 1975. See F.R.E. 101. The enacted rules were based largely on a draft prepared by the Rules Advisory Committee, a distinguished panel of lawyers, judges, and evidence scholars. The draft was approved and transmitted to Congress by the Supreme Court. However, since several rules were significantly changed by Congress, care must be taken when reading the Advisory Committee’s Notes. Moreover, since 1975 there have been a number of substantive rule changes, as well as
- The study of Evidence law is primarily the study of rules of exclusion. It should yield insights, however, into other matters as well, such as tactical arguments to triers of fact. For example, in a jury trial, when evidence is objected to, arguments may be made to the judge by the two lawyers in an effort to show that the legitimate probativeness or reliability of an objected-to piece of evidence is or is not below the point where it is desirable to admit it. If the argument for exclusion fails, the same arguments often may be resurrected in the lawyers’ final summation to the jurors at the end of the trial, to induce jurors to discount or increase the weight they ascribe to the piece of evidence. There is not, however, always an overlap of factors relating to admissibility and those related to weight. For example, the existence or not of a confidential marital or professional relationship may determine whether a piece of evidence is admissible or privileged, but may have no...
- Of perhaps more impact, however, is the informal appellate practice of giving trial judges in bench trials a greater benefit of the doubt. Appellate courts treat erroneous exclusion of evidence in the same manner as they do for jury trials. But with respect to evidence alleged to have been erroneously they indulge a presumption that, if there was sufficient competent evidence to support the findings, the trial judge, being knowledgeable of the law, relied on competent evidence only, whatever else may also have been heard at trial. This presumption sometimes prevails even in the face of an expression by the trial judge of an erroneous view of which evidence was admissible. The presumption would thus be overcome only when there is a clear indication or expression that the judge actually on inadmissible evidence.
- Rules of evidence may or may not be enforced in administrative proceedings, depending upon the administrative tribunal’s particular adjective law. Privilege, however, is usually recognized. The law or regulations of a number of federal agencies have incorporated the Federal Rules of Evidence, at least to some extent, either expressly or by reference to “the rules that govern evidence in non-jury trials in Federal District Courts” or similar language, often with certain exceptions. Section 556(d) of the Administrative Procedure Act does not require the F.R.E. to be applied and appears more receptive to evidence. As a practical matter, a large number of agencies find the Federal Rules of Evidence influential in carrying out the general mandate that reliable evidence be used. Some authority has developed in various jurisdictions that administrative agency rulings on evidence may not be more restrictive, or more prone to exclude, than the rules applicable in courts.
- In federal courts, trial judges are allowed to give jurors their views as to weight of the evidence. This power of the judge was codified in an original draft of the Federal Rules of Evidence as a power to “fairly and impartially sum up the evidence and comment to the jury upon the weight of the evidence and the credibility of the witnesses” at the close of all the evidence and argument of counsel, so long as the judge also “instructs the jury that they are to determine for themselves the weight of the evidence and the credit to be given to the witnesses and that they are not bound by the judge’s summation and comment.”
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Chapter 5. Privileges 232 results (showing 5 best matches)
- In all but three places there is no deference to state evidence law in federal court in the Federal Rules of Evidence. Deference to state evidence law is found in similar form in the three places: Article III (presumptions), Article V (privileges), and Article VI (competency of witnesses). In Articles III (presumptions) and VI (competency of witnesses), when federal evidence law is to govern, the federal evidence law is specifically prescribed. For privileges, however, it is left to common law development. Article V. In these areas of express deference to state evidence law, the state evidence law governs only in a civil case and even then only when the matter sought to be proved is an “element” of a “claim or defense” as to which state law supplies the “rule of decision.” (Although the subsequent restyling deleted the word “element,” no substantive change was intended.)
- Evidence obtained as a result of violation of the federal constitutional prohibition against unreasonable searches and seizures (contained in the Fourth and incorporated in the Fourteenth Amendment) cannot be admitted as substantive evidence in the prosecution’s case-in-chief in a federal or state criminal case against the person whose rights were invaded. Thus, there will be not only whatever ordinary civil, criminal, administrative, and equitable sanctions are provided for violation of constitutional rights, but also a quasi-privilege to exclude evidence.
- If an asserted privilege is erroneously sustained, the aggrieved party may complain on appeal of the exclusion of relevant evidence. The erroneous denial of the privilege, however, is more problematic. Relevant evidence has been admitted. The party who as a result loses the lawsuit arguably has suffered no legally cognizable harm (if she is not also the privilege holder). Relevant evidence has come in against her. If she the privilege holder (client) she would be able to appeal. What is the duty of the witness (say, the lawyer or the client) in this situation? Since the client has a remedy (appeal), some courts hold the witness has a duty to testify in response to the trial judge’s erroneous order and is correctly held in contempt for refusal to do so. But if the client is not a party, the situation is otherwise.
- Most rules of evidence, including privilege, on occasion may render inadmissible, relevant evidence offered on behalf of a criminal defendant, that could help raise a genuine reasonable doubt concerning defendant’s guilt. At some point, such exclusion may trench on the defendant’s constitutional right to present information in defense, under the confrontation, compulsory process, or due process clauses of the Constitution.
- Contentions that defendant’s rights are being infringed are most likely to be raised and sustained in areas like privilege or rape shield where, arguably, exclusion of relevant evidence is based at least in part on furthering extrinsic social policies rather than furthering, as under Rule 403, the accuracy or functioning of the fact-finding process. But cf. , supra, suggesting that even fostering social policies may sometimes be an acceptable basis for curtailing defense evidence. See generally on the right to introduce defensive evidence and its limits in today’s law, Imwinkelried & Garland, Exculpatory Evidence: The Accused’s Constitutional Right to Introduce Favorable Evidence (3d ed. 2004).
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Chapter 7. Opinions, Experts, and Scientific Evidence 230 results (showing 5 best matches)
- Just what was included in the special category of expert evidence called scientific evidence deserving special additional scrutiny was never very clear. It seemed to include (a) evidence which may have a scientific aura of infallibility to a jury (the so-called “black box” mystique as in drug and alcohol intoxication tests and radar speed clocking); (b) evidence it is difficult for a judge or jury to evaluate; (c) evidence with which the judiciary has little historical experience (such as animal studies, or epidemiological, toxicological, or pharmacological evidence, used to show the potential of substances to cause cancer or birth defects in humans); (d) evidence that is novel (such as DNA identification or new forms of blood serology); (e) evidence that was invented for the particular case (e.g. uniquely designed tests or a tailored re-analysis of older scientific findings); or (f) evidence deemed to usurp something in the peculiar “heartland” province of the fact-finder (like lie...
- test may act in exactly the opposite way once the evidence has been generally accepted. It would seem that the more accepted a technique, the fewer experts there are to point out the shortcomings of the evidence to the jury. Additionally, the relevant “field,” if construed narrowly, may consist of the very people who have an interest in the use of the technique in litigation.
- Syndromes of victims often are used to explain how individuals react to events in ways which may not be obvious or familiar. This evidence provides a social science framework for jurors to better interpret the actions of the person suffering from the syndrome, which actions may look to a lay person to be inconsistent with being a victim. In addition to its use for evaluating credibility, victim syndrome evidence also may be offered as direct evidence of a crime or defense. Some courts permit an expert to testify that the person suffers from the syndrome. Others allow only an opinion that the behavior is consistent with the syndrome. Still others allow only a generalized description of the syndrome, its causes and effects, prohibiting any type of opinion concerning the individual in question. Finally, depending upon the syndrome, there are courts that tend to exclude such evidence altogether.
- Courts have split on the question in paternity cases, of when a jury must find in accord with the obvious conclusions from traditional serology (blood-type) comparisons offered in their conclusive aspect (that this individual could not be the father), where there is only lay evidence pointing to a contrary conclusion, no contrary blood evidence, and no evidence directed at impugning the reliability of the procedure in the particular case. Some courts have allowed the jury almost complete freedom in this regard. On what theory might a jury disregard such apparently conclusive evidence? What about assault or rape cases? With respect to paternity, this area is becoming increasingly controlled by statutes.
- When should a problem with the evidence be a matter of admissibility and when merely a matter of weight? When can the jury be counted on to be sophisticated enough to handle it? When can we count on the tools of the adversary system such as cross-examination, argument, counter-evidence, and judicial instructions, to get the jury into a position to do a satisfactory job? While these are central questions in all of evidence law, they are exacerbated in the expert testimony area, where we have subjects unfamiliar to jurors—particularly (but not only) when the expert gets into matters of science.
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Chapter 4. A Special Relevancy Vs. Counterweights Problem Area: Similar Acts, Character, Propensity 258 results (showing 5 best matches)
- In many instances in this chapter, the evidence is admissible to prove only one of two or more things it could be taken as indicating by a jury. Sometimes the evidence might be quite damaging to a party, if received. Yet the judge may feel the danger of impermissible use is not great enough to exclude the evidence altogether, feeling that a cautionary instruction limiting the evidence to the permissible use is sufficient. The attorney resisting the evidence may then wish to consider the possibility of offering to stipulate to or concede the fact the evidence is admissible to prove, in the hope that this will eliminate the only theory of admissibility of the evidence. See, e.g., the Supreme Court decision in
- There are several exceptions in subsection (b) of the Rule. Specific instance evidence may be admissible if offered to prove that the source of semen, injury or similar physical evidence is not the defendant. In this situation, we might note incidentally, the evidence is not offered on a propensity theory. In addition, there is an exception for prior specific instances of behavior with the same defendant (which often will be more clearly relevant to consent than when the behavior is with another, even though both involve a propensity theory); an exception for any evidence required by the Constitution to be admitted; and an exception for civil cases (which admits the evidence if its probative value substantially outweighs any “harm to any victim” or “unfair prejudice to any party”—a kind of reverse and expanded Rule 403 test—but reputation evidence is admissible only if placed in controversy by the alleged victim).
- The Supreme Court held, broadly, that a trial judge is not required to make a preliminary finding that the government has proved by a preponderance of evidence that defendant committed earlier offenses, before submitting them to the jury under Rule 404(b). Instead, the evidence is admissible if there is, in the trial judge’s view, merely sufficient evidence to support a jury finding (by a preponderance) thereof. The Court did not say whether the jurors should be that they must find this in order to use the evidence.
- a judge to admit prior conduct that resulted in an acquittal. It only permits it. It establishes that there is no per se exclusion of such evidence. In specific cases, the introduction of such evidence is dependent on surviving the Rule 403 balancing test on the particular facts, a matter on which trial judges are given great leeway.
- Even aside from notice provisions, “rape shields,” by making certain defense evidence inadmissible, can sometimes operate to deprive a defendant of evidence that legitimately contributes to his defense and raises a logical reasonable doubt as to his guilt. Whether this handicap to defendants outweighs the benefits to society from a rape shield law is the subject of some continuing debate. At some point restrictions on defense evidence can run afoul of constitutional mandates such as due process, compulsory process, or confrontation. When these constitutional mandates kick in to command the reception of evidence for the defense, they would override a contrary evidentiary exclusion contained in, for example, a rape shield, even if the evidentiary exclusion made no express exception, as Rule 412 does, for constitutionally mandated evidence.
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Chapter 11. Authentication, Exhibits, and the Best Evidence (Original Writing) Rule 84 results (showing 5 best matches)
- In regard to authentication, a police officer may have to relate how he seized the gun now offered in evidence from the defendant, tagged it with the officer’s initials, placed it in an evidence locker, and retrieved it for court. On occasion, more than one witness will be necessary to prove such a relatively secure sequence, called a “chain of custody,” for an item.
- If the attorney later wishes to “introduce the exhibit into evidence” after laying whatever legal predicate is necessary, and if the exhibit is held admissible, counsel then, again by simple request spoken aloud, “offers in evidence Plaintiff’s Exhibit No. 1,” and if it is admitted by the judge, it becomes Plaintiff’s Exhibit No. 1 in evidence, no longer merely for identification, before the jury. The court reporter will enter a notation either on an exhibit list or on the exhibit itself that says that it is in evidence, not merely marked for identification. In the alternative, in some courts the judge’s ruling itself appearing on the record is sufficient. A wise attorney will try to assure the ruling appears in the record in any event, so no misunderstanding arises later. In a multi-exhibit case, it is also wise to keep a running list of all exhibits to be used at trial, with two separate columns opposite each, one column to check off when the exhibit is marked for identification,...
- Authentication is required of documents whether they are offered as legal instruments themselves having legal consequences (as, e.g., a contract, deed, or will), or as evidence of (recital of) facts that are in issue. The latter, of course, would also require a hearsay exception or exemption. It is also important to realize that a document that has satisfied the authentication requirement is only rebuttably presumed authentic. In addition, even an authentic document may violate, and be attacked under, other evidence rules. Typically, when one considers the admissibility of a document, one must address authentication, best evidence, hearsay, and in criminal cases the right to confront witnesses. Other rules may also be applicable, such as Rule 403, or those relating to privileges, offers of compromise, insurance, character, safety measures, etc. Almost any rule of evidence may apply in a given case.
- The best evidence rule is not a general rule requiring the best available evidence of all facts sought to be proved in lawsuits. Instead, it is a narrow rule, that only applies when the contents of a writing are in issue.
- On a more basic point, it is worth repeating that there is no general rule that only the best available evidence of a fact sought to be proved is admissible—no universal best evidence rule. Indeed, “the best evidence rule” requires only the best of available alternative proofs of the contents of a writing. This doctrine is best viewed as an exclusionary rule, forbidding evidence other than the writing. Most other facts may be proved by the best evidence available to the party, or by the worst, or anything in between, at the party’s option, so long as the other rules of evidence are complied with. To make this crystal clear, the tendency is growing to refer to the best evidence rule as the “original documents rule” and to drop the phrase “best evidence.” See F.R.E. Article X and the Advisory Committee’s Notes thereto.
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Chapter 2. Judicial Notice, Presumptions, and Burdens: Substitutes for Evidence 50 results (showing 5 best matches)
- In every case, for every issue, there is a burden of production of evidence (or burden of going forward with the evidence), and a persuasion burden. Discharging, or preventing the discharge of, these burdens is the goal of introducing evidence. There also is a burden of pleading, which defines which party must raise the issue in the pleadings.
- A party has the burden of when, if he allows the evidence to stay as it is, the issue will be concluded against him as a matter of law. For example, at the close of the prosecution’s evidence in a murder case, and again at the end of all of the evidence, the judge can direct an acquittal unless some reasonable juror could find beyond a reasonable doubt that the defendant killed the victim. In the absence of evidence meeting this standard, the prosecutor has failed to carry the burden of production. Thus, the state will suffer an adverse judicial ruling establishing that fact without the aid of the jury.
- In this view, the presumption continues in the case even if there is contrary evidence, by shifting the burden of persuasion. This theory would shift to our defendant the burden of persuading the jury by defendant’s evidence of non-delivery. Under some versions of this view, this might happen only if the base fact of proper mailing is believed by the jury or is otherwise necessarily established. In other words, assuming the evidence of the basic fact (proper mailing) satisfies the jury, the defendant would have the burden of disproving the presumed fact (i.e., proving non-delivery) by a preponderance of the evidence. In our hypothetical case, defendant’s evidence that the mail clerk “doesn’t remember” delivery probably would raise a jury issue, even though it is not terribly strong. Under the instruction that would be given, that the burden is on defendant to prove non-delivery if the jury finds proper mailing, the jury might well legitimately decline to find in defendant’s favor,...
- In civil cases, the jury is instructed to accept the judicially noticed fact as true. In criminal cases, Rule 201(f) (restyled rule) mandates that the jury be told it is not required to accept any judicially noticed fact as conclusive. Arguably this provision means that in a criminal jury trial, the court cannot take judicial notice of a true adjudicative fact at any time after it instructs the jury. Thus, in federal court, if a prosecutor forgot to introduce evidence or obtain judicial notice that a bank was federally insured, or that a park, prison or military base was federal in nature, there would technically be no evidence on a jurisdictionally required element, and the omission arguably could not be cured after, e.g., a guilty verdict. The result would be an acquittal. This principle would create some anomalous acquittals (with retrial perhaps impossible owing to the constitutional prohibition of double jeopardy which operates when there was insufficient evidence to establish...
- One view is that the presumption, and, under one version, even the common-sense notion underlying the presumption, disappears from the case completely. Thus, the presumption plays no role after the introduction of the defendant’s evidence of non-B, and the case is to be determined exactly as if it and perhaps the common-sense notion never existed. A party who depended upon the presumption could lose as a matter of law unless the other evidence, unaided by the presumption or its common-sense equivalent, furnishes sufficient proof. This treatment of presumptions, in one or other of its variants, has sometimes been called the “bursting bubble” theory. Presumptions have been likened to “bats of the night,” called out only when the issue is obscured by darkness. They “take flight” in the “light of real proof.” In our hypothetical case, defendant’s evidence that the mail clerk does not remember delivery is weak—but it is some evidence rebutting the presumed fact. In the absence of other
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Chapter 3. Relevancy, Its Counterweights, and Related Exclusionary Rules 133 results (showing 5 best matches)
- Sometimes evidence is relevant only if certain other facts are also put in evidence. If those facts are not yet in evidence, a conditional ruling of admissibility may result, based upon the offering counsel’s representations that the evidence will be “connected up” by what will be introduced in evidence later. If counsel defaults on the promise, and the proper motion is made, the evidence may be stricken or a mistrial declared, depending on the degree and remediable nature of the prejudice.
- can also occur. For example, in the same case, evidence of a White police detective’s anti-Black racist comments was deemed potentially prejudicial in both our senses because (1) the evidence might (in the judge’s view) cause the predominantly Black inner-city jury to leap too readily to the conclusion the detective might plant evidence, or lie on the stand, against the Black defendant (although some argue that the jurors’ readiness to do this was indeed the experienced and accurate level of response and the White or affluent community’s view the myth) and (2) the evidence supported a suggestion of acquittal based not necessarily on doubt of guilt but on the “improper basis” of disapproving of police conduct. Thus only a limited amount of this evidence was admitted. As the calculus calls for, the judge attempted to let in only enough of this evidence to achieve what the judge felt was the accurate amount of effect on the jury in view of the judge’s notion of the predilection of...
- The first category of prejudice (“exaggeration”) embraces cases where evidence is excluded because of concern with its over-persuasiveness before the jury on the issue for which the evidence is offered. Such evidence is sometimes called “misleading.” If judges or rule-makers were scrupulously to make the computation called for, they would be required to estimate what probability the jury would ascribe (a) having the benefit of the piece of evidence and (b) without it. They would then have to decide what probability a wholly rational trier-of-fact would ascribe if given the piece of evidence. In general, only when exclusion rather than admission would cause the real jury to come closer to the probability ascribed by the wholly rational trier in receipt of the evidence, should the evidence be excluded. Our concept of the role of the jury would seem to require that there be a rather large disparity before exclusion.
- “Immateriality” is the term used by some common-law authorities to indicate that a particular piece of evidence is relevant to a proposition of fact, but that the proposition itself is not an issue under the substantive law, the pleadings, or other mechanisms that set the issues. For example, there may be evidence very relevant to establishing contributory negligence, but contributory negligence may not be a defense or limiter on liability under the law governing a workers’ compensation action (where the injury and its job-relatedness is all that need be found). The evidence of contributory negligence would be “immaterial” and therefore “irrelevant.” The same might be true of evidence of contributory negligence in a tort negligence case in a jurisdiction where contributory negligence a legal defense but has not been properly pled by the defendant or where it has been conceded away by her or her lawyer in some binding fashion during pretrial stages.
- Evidence of a plaintiff’s or defendant’s wealth or poverty bears a resemblance to insurance evidence, but has not been sufficiently manifest in recurring situations to result in a codified rule. Such evidence frequently is excluded for reasons similar to those operable in the insurance area, except where roughly similar exceptional circumstances swing the balancing factors toward admissibility. For example, if there is a dispute as to whether A bought an expensive item for her own account, or as agent for , the relative strengths and weaknesses of their wealth might be received to illuminate this issue. Similarly, a legitimate claim for punitive damages might justify reception of otherwise forbidden financial evidence.
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Chapter 6. Witnesses: Competency, Examination, and Impeachment 159 results (showing 5 best matches)
- On occasion in a criminal case, an item of evidence specifically contradicting an exculpatory fact testified to by the criminal defendant, may be subject to some constitutional rule that prohibits its introduction by the prosecution as substantive evidence and thus prohibits it in the prosecution’s case-in-chief before the defendant testifies. For example, a witness or piece of tangible evidence may have been obtained pursuant to a violation of defendant’s constitutional search and seizure rights (Fourth Amendment). Can it come in as impeachment after the defendant testifies?
- Rule 608(a)
- There are other forms of impeachment. For most of them, there are no special rules. Imagination and the judge’s discretion under F.R.E. 403 or its state analogue, are often the only limit on what can be done in a particular case by way of attacking a witness’ credibility, provided that the attacking evidence does not transgress the normal rules of evidence such as the hearsay rule or privileges.
- Evidence contradicting the witness is admissible only if it would have been independently admissible for a substantive purpose, regardless of the contradiction. (There are a few exceptions to this, as where a witness testifies to a fact important to his or another’s credibility. See Collateral Matter Rule, immediately infra.) If the evidence satisfies this requirement, its proponent will then be permitted to argue both its impeachment and its substantive value to the jury. The impeachment aspect of the evidence may permit its introduction during rebuttal where otherwise it might be confined to the case-in-chief.
- Extrinsic impeachment is evidence elicited not by cross-examination of the witness-to-be-impeached, but rather through the testimony of independent witnesses (or perhaps tangible evidence such as documents), attacking the credibility of the witness being impeached. There are a few, but only a few, instances in which impeachment is limited to cross-examination of the same witness. The examiner in these situations must “take the answer” that the witness gives on cross-examination into the incident. Extrinsic evidence in such cases is prohibited even if the witness denies the wrongdoing and there is extrinsic evidence to the contrary. But “take the answer” does not necessarily mean the first answer: some “badgering” may take place, but the effort must stop with examining the witness.
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Appendix. Federal Rules of Evidence 461 results (showing 5 best matches)
- (a) Permitted Uses.
- (a) Permitted Uses.
- (a) In General.
- In a civil case, the court may admit evidence offered to prove a victim’s sexual behavior or sexual predisposition if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. The court may admit evidence of a victim’s reputation only if the victim has placed it in controversy.
- (a) Permitted Uses.
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Chapter 8. Hearsay: The Basic Theory, Rationale, and Constitutional Considerations 278 results (showing 5 best matches)
- “Admitting statements deemed reliable by a judge is fundamentally at odds with the right of confrontation. To be sure, the Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination.”
- Though the link between the hearsay rule and the Confrontation Clause is now somewhat severed, the two still share some common philosophies and effects. They both frequently have the effect of screening out evidence that is unreliable. But that is not always the case. In some instances they exclude from evidence material that is reliable, even when better evidence cannot be obtained. And on occasion they permit evidence of little reliability, even when better evidence would seem to be at hand. Both these occurrences raise the risk that a falsity will be found. This happens because the two rules are concerned in part with what is moral, ethical, or fair, or unconditionally commanded by the constitution, which may in some instances diverge from what is conducive to accuracy. Having the witness to the facts on the stand for confrontation and cross-examination (as both rules require) is to some extent an end in itself, aside from its effect on fact-finding accuracy. The law feels this...
- In general theory, most authority agrees that if this evidence is to stand on a better footing than the evidence in the original hypothetical, it should be taken care of as an exemption or exception only.
- (6) An observation that people turned up their collars and wrapped their coats around themselves, offered to prove it was cold on that occasion, (a) where the evidence shows this action was done to express to another (say someone in a window) that it was cold, or (b) where there is no evidence it was done for such purpose.
- X (plaintiff) charges Y (defendant) with slander. The slander allegedly uttered by Y is “X stole a watch.” X (plaintiff) introduces witnesses (Ws) who testify that they heard Y (defendant) say this, in order to prove the utterance of the slander. While this is evidence of an out-of-court statement, it is not offered to prove the truth of the matter stated by defendant—that plaintiff stole a watch—but rather merely to show that defendant said it. Indeed, plaintiff must avoid establishing its truth, or the defendant will have a valid substantive defense (the defense of truth). The evidence is offered to show that the statement was made, not that it was true. The veracity, credibility, accuracy, sincerity, etc., of the defendant in reporting plaintiff’s thievery is not at all relied upon by the plaintiff in offering this evidence. Indeed, plaintiff would like to show just the reverse of these, and to make Y and Y’s statement look as untrustworthy, unfounded, and malicious as possible....
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Chapter 9. Hearsay Rule Modifications for Admissions and Witnesses’ Prior Statements 150 results (showing 5 best matches)
- “Admission of a Party” (restyled without change in meaning as “An Opposing Party’s Statement”) means any statement that can be used against the party. It need not embrace more than a minor link in the chain of evidence against the party, and it need not have been against the party’s interest when made. Indeed, it may have been beneficial and self-serving. For example, a puffed statement by the party valuing property for a loan can be used as an admission of its worth. Remember, all we mean when we say something is within the admissions doctrine is that it is receivable in evidence; it can be countered before the jury with other evidence, argument, or even the human experience of the jury; it is not “binding” or irrefutable; and will weigh whatever, if anything, the jury thinks it is worth, together with the other evidence in the case. But, practically speaking, juries usually find it quite credible.
- The quoted phrase from the rule (hearsay is a statement “the declarant does not make while testifying”) is a little misleadingly drafted because it may suggest, if read in a certain way, that statements of our type (2) (previous statements by the testifying witness), admissible, if the witness’s current testimony on the witness stand makes exactly the same statement. That is not so. The former statement must be viewed as an additional, independent piece of evidence, and since that independent piece of evidence is a piece of evidence other than a statement made by the declarant while testifying at the trial, it is still hearsay and inadmissible. It does not matter that it states exactly the same thing as the other piece of evidence, the current testimony. (We will note later that there are some narrow exemptions from this in a special provision.)
- Under the common-law system (at least after its developmental phase), all the necessity and trustworthiness in the world in a particular case would not get the hearsay in if the evidence did not come within the narrow, literal terms of an exception. There were a few opinions to the contrary (mostly dictum in decisions supportable on more conventional grounds such as the availability of an established exception). Later, these minority expressions formed the basis for the “catch-all” or “residual” hearsay exception in the Federal Rules of Evidence.
- Thus, a jury might find implied admissions of fault or adverse fact in certain circumstances where parties make bribes (or bribe attempts) to witnesses; suppress or destroy evidence; flee; fail to adduce certain evidence that should be peculiarly available to them (this may have other evidential force, too); take safety measures after an injury; offer to compromise or settle a claim; assert privilege, etc., all depending on the facts.
- The Court in held that Rule 104(a) prescribes the procedure for all such preliminary determinations. As a result, inadmissible evidence including hearsay—indeed the very piece of hearsay that is itself in question—may be consulted in determining whether the prosecution has met its foundational burden by a preponderance of the evidence, the Court said. This “bootstrapping” feature of the F.R.E., which now apparently applies to all Rule 104(a) determinations, was a sharp break from prior law which required the foundation for the statement to be established by independent (though not necessarily admissible) evidence. Some courts had deemed sufficiency of the foundation to be a jury issue.
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Chapter 10. Exceptions to the Hearsay Rule 333 results (showing 5 best matches)
- When is “Self–Serving” an Objection?
- The “catch-all” exception in its current form may be summarized as follows: If special necessity for the evidence and special trustworthiness equivalent to the standard exceptions can be shown, the provision empowers the judge to create an ad hoc exception to admit a particular piece of hearsay evidence in a particular case, provided that adequate advance notice has been given, including particulars of both the statement and its declarant. Available alternative proof is to be considered in deciding necessity, and the evidence is to be compared with evidence admissible under other exceptions in deciding trustworthiness.
- Under this hearsay exception relevant hearsay expressing that the declarant is “angry,” “sleepy,” or “in pain” is commonly admitted. In a personal injury case, for example, the plaintiff may offer what sometimes is called (perhaps unjustly) moan-and-groan evidence, consisting of testimony of bystanders or those visiting him in the hospital, or working or living with him in the days, months, or years after the infliction of the injury, recounting the injured person’s complaints. This, of course, is to maximize damages. The evidence is admissible unless barred by some other rule of evidence than the hearsay rule. Of course, weight of evidence is a separate question.
- , 290 U.S. 96 (S.Ct.1933) illustrates the metaphysical lengths to which the hearsay rule and its exceptions can go. The statement of the deceased that “Dr. Shepard has poisoned me” was admitted in the trial court under the “dying declaration” exception to the hearsay rule, in a prosecution against Dr. Shepard for killing the deceased. The Court of Appeals held that the declaration did not meet the requirements of a dying declaration, since there was no evidence of a consciousness of impending death, but that the admission of the evidence could now be sustained on the theory that the declaration showed a “state of mind” not bent on suicide in answer to the defense of suicide. The Supreme Court reversed, holding that (a) under the theory upon which the evidence was admitted, the jury was not and could not have been instructed that the statement was evidence of this state of mind only and not more directly evidence that Dr. Shepard poisoned deceased; (b) defendant could not be faulted...
- Thus, the business records hearsay exception was born, after a somewhat tortuous history, as an amalgam of statutes and case law even before the advent of the Federal Rules of Evidence. The doctrine as stated above is basically the doctrine as now contained in the Federal Rules of Evidence, Rule 803(6).
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Detailed Outline and Table of Contents 110 results (showing 5 best matches)
- The Defendant’s Option to Offer Character Evidence on a “Pertinent Trait”: the “Mercy Rule” Allowing “Good Guy” Evidence
- What Is “Scientific Evidence”? An Amorphous Category of Expert Evidence Singled Out for Special Rigorous Treatment
- The Prosecution’s Rebuttal of the Defendant’s Character Evidence: F.R.E. 404(a)(2)(A) (restyled)
- Character and Similar–Acts Evidence in Civil Cases
- Similar Acts Evidence in Civil Cases: F.R.E. 404(b)
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Summary Outline 18 results (showing 5 best matches)
- Character and Similar–Acts Evidence in Civil Cases
- Role of Rules Beyond Exclusion of Pieces of Evidence From Juries: Non–Jury & Administrative Trials; Appeals; Judge & Attorney Comment
- Chapter 2. Judicial Notice, Presumptions, and Burdens: Substitutes for Evidence
- Permissible Uses of Character as Substantive Circumstantial Evidence
- Procedural Issues Raised by Similar Acts Evidence
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Index 334 results (showing 5 best matches)
- Publication Date: December 8th, 2011
- ISBN: 9780314278333
- Subject: Evidence
- Series: Nutshells
- Type: Overviews
- Description: The newest (restyled) version of the Federal Rules of Evidence, reproduced in the appendix, are the anchor of this single-volume Nutshell, with some state variations noted where important. The text summarizes significant U.S. Supreme Court decisions, including the latest Confrontation Clause cases; additional leading cases; forefront expert and scientific evidence developments; and principal schools of evidentiary thought. It includes practical implementation as well as scholarly approaches, and pays attention to the litigation process as a whole and interdisciplinary cross-pollination where helpful.
