Title Page 2 results
Preface 5 results
- This edition of the book attempts to do what all of the prior editions accomplished: to set out the law of Evidence in as complete and understandable a manner as possible in a work of moderate length. The authors have tried to be faithful to the pragmatic approach to analyzing evidence issues taken by the original author of this book, Dean Charles McCormick.
- Although the Federal Rules of Evidence and their state counterparts make up much of the basis for the law, many aspects still depend heavily on case analysis. The book attempts to meld rules and case law in a way that is useful for practitioners, scholars, the courts and students. As in prior editions, important cases containing helpful discussions of precedent and policy are noted in the extensive footnotes found in the practitioner’s edition.
- All of the authors of the Sixth Edition of the book have continued in this edition. Their responsibility for chapters has remained the same: Professor Edward Imwinkelried, Chapters 1–7, covering preparing and presenting evidence, examination of witnesses, procedure for admitting and excluding evidence, and competency; Professor Robert Mosteller, Chapter 12, privileges for governmental secrets and Chapters 24 to 34, dealing with the hearsay rule and its exceptions; Professor George Dix, Chapters 13–15, covering certain constitutional rights and privileges; Professor David Kaye, Chapters 16 to 20, dealing with relevancy considerations (including scientific evidence covered in Chapter 20); Professor Eleanor Swift, Chapters 21–23, dealing with real and demonstrative evidence and authentication and contents of writings; Professor Ernest Roberts, Chapter 35, judicial notice; and myself, Chapters 8–11, dealing with common law and statutory privileges and Chapter 36, the burdens of proof...
- This edition contains updates up to the present with regard to all of the matters covered in the book. The restyled Federal Rules have been incorporated into the discussion. Special note should be taken of the discussion of developments in the forensic science community that affect how expert findings can and should be presented in court (Chapter 20); developments modifying federal constitutional exclusionary requirements (Chapter 15); the increased use of electronic evidence and its impact on evidentiary rules (Chapters 21 and 22); and the continuing evolution of the Confrontation Clause jurisprudence arising from the
- On behalf of all of the authors, I hope that we have both continued the traditional excellence of this treatise and taken steps to bring it fully up to date in terms of both the law and the age of technology in which we now live.
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Chapter 34. Various other Exceptions and the Future of the Rules about Hearsay 59 results (showing 5 best matches)
- McCormick, Evidence, 3 Encyclopedia of the Social Sciences 637, 645 (1931, reissue of 1937).
- More than fifty years ago, Professor McCormick wrote, much in the Benthamic tradition:
- A second factor given varying significance by the opinions is the requirement of Rule 807(a)(3) that the statement must be “more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts.” Many courts interpret this as a general necessity requirement. However, it does not mean that the hearsay evidence must be essential. Indeed, some courts view the requirement as providing a basis for a trial court to evaluate the need for the statement in the case as compared to the costs of obtaining alternative evidence. Others view it as imposing a requirement of diligence. The requirement also has the effect of imposing a rough “best evidence” requirement on the exception in the sense that where live testimony of the declarant is available and the out-of-court statement is not superior, the exception cannot be used.
- Attacking and Supporting the Declarant’s Credibility—When a hearsay statement—or a statement described in Rule 801(d)(2)(C), (D), or (E)—has been admitted in evidence, the declarant’s credibility may be attacked, and then supported, by any evidence that would be admissible for those purposes if the declarant had testified as a witness. The court may admit evidence of the declarant’s inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination.
- Nevertheless, the controversy over the Model Code awakened a new interest in the improvement of evidence law. Accordingly, the Commissioners on Uniform State Laws, in cooperation with the American Law Institute and building on the foundation of the Model Code, drafted and adopted a more modestly reformative code, the Uniform Rules of Evidence. The American Bar Association approved this action.
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Chapter 7. The Competency of Witnesses 45 results (showing 5 best matches)
- McCormick, Handbook of the Law of Evidence § 81 (1954).
- The rules disqualifying witnesses with knowledge of relevant facts and mental capacity to convey that knowledge are serious obstructions to the ascertainment of truth. In the first edition of this treatise, Dean McCormick famously remarked, “The manifest destiny of evidence law is a progressive lowering of the barriers to truth.” For a century, the steady course of legal reform has been in the direction of sweeping away these obstructions. To that end all states should adopt Federal Rules of Evidence 601 to 606 or the similar provisions of the Revised Uniform Rules of Evidence. For its part, Congress ought to exercise the power to mandate these rules without qualification for diversity cases.
- At common law a few courts have abandoned the Mansfield rule, and permit jurors to testify to misconduct and irregularities which are ground for new trial. Under this so-called Iowa view, jurors may testify about “objective” facts and events occurring during deliberation—occurrences which are objective in the sense that other jurors could observe them and independently corroborate the juror’s testimony about the fact or event. To protect finality, these courts rely on a narrower doctrine excluding evidence of the jurors’ arguments during deliberations and evidence as to their own subjective motives, beliefs, mistakes, and mental operations. The juror cannot testify as to the subjective impact of the objective event on the juror’s state of mind; rather, the judge inquires whether the event was likely to affect a hypothetical reasonable juror. Federal and Uniform Rule of Evidence 606(b) generally accord with prior federal case law following the traditional, Mansfield doctrine.
- Even the jurisdictions which recognize the exclusionary rule differ over the scope of the rule. The points of controversy about the rule’s scope are: (a) whether it is limited strictly to evidence of non-access, or whether it reaches other types of evidence showing that someone other than the husband is the father; (b) whether the rule applies only in proceedings where legitimacy is in issue or extends to divorce suits where the question is adultery rather than the child’s legitimacy; and (c) whether it prohibits only the testimony of husband and wife on the stand, or also excludes evidence of the spouse’s previous out-of-court declarations. In view of the unsoundness of the rule, in each instance the courts should adopt the narrower view of the scope of the doctrine.
- Limiting the scope of the privilege in these various respects is a step in the right direction. The privilege is an archaic survival of a mystical dogma. The privilege reflects an outmoded social attitude toward marriage. The Supreme Court’s draft of Federal Rule of Evidence 504 would have abolished the privilege; and on the balance, the abolition of the privilege would probably be desirable.
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Chapter 15. The Privilege Concerning Improperly Obtained Evidence 216 results (showing 5 best matches)
- Challenges to relevant evidence on grounds that it was obtained in violation of nonconstitutional legal requirements raises several distinguishable concerns addressed in the next three sections. First is whether courts have legislatively-provided authority to exclude evidence on these bases. Second is whether courts have autonomous authority to exclude evidence on these grounds. Third is the content of any such exclusionary requirements as exist.
- The rule is generally based on the proposition that whatever incremental deterrence of official illegality accomplished by excluding this evidence would be outweighed by the costs involved. Among those costs is the loss of the opportunity to discourage unlawful and perhaps violent responses to questionable law enforcement activity or perhaps actually encouraging such responses. The Colorado court also commented that excluding such evidence would result in only minimal deterrence, apparently on the assumption that officers’ responses to attacks on them is unlikely to be affected by later admissibility or inadmissibility of evidence.
- Impeachment is permitted as long as there is some “inconsistency” between the otherwise inadmissible evidence and the defendant’s trial testimony. The Supreme Court has suggested that impeachment use must be “otherwise proper,” indicating that local rules limiting impeachment might somehow be incorporated into the federal constitutional exception. There is no basis or rationale for constitutionally requiring a state to follow its ordinary cross-examination and impeachment rules when evidence is offered. As a matter of nonconstitutional evidence law, there seems neither basis nor rationale for disregarding limits on impeachment simply because the witness is a criminal defendant and the evidence is inadmissible to prove guilt because of constitutional exclusionary requirements. On the other hand, there is no justification for applying a stricter standard than applies to other evidence offered to impeach.
- The exception might, as some courts have held, be limited to “derivative” as contrasted with “primary” or “direct” evidence. Under this distinction, direct or primary evidence is that which is actually discovered and seized during the illegal conduct. Derivative evidence, on the other hand, is evidence obtained later by means of information derived from illegal conduct. Some courts have limited the exception to evidence of the latter sort. If the exception is limited to derivative evidence, it becomes an exception not to the basic exclusionary requirement but only to the corollary that renders inadmissible all fruit of the poisonous tree. Most courts have refused to limit the exception to derivative evidence. Perhaps, however, they have failed to fully explore the possibility that such a limitation might be the most appropriate way of preventing the exception from effectively nullifying some or most of the legal requirements enforced by exclusionary requirements.
- This exception, unlike the “independent source” doctrine, does not rest on the lack of an actual causal link between the original illegality and the obtaining of the challenged evidence. Rather, the exception is triggered by a demonstration that the characteristics of that causal link are such that the impact of the original illegality upon the obtaining of the evidence is sufficiently minimal that exclusion is not required despite the causal link.
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Chapter 6. The Procedure of Admitting and Excluding Evidence 103 results (showing 5 best matches)
- A motion for an advance ruling on the admissibility of evidence is a relatively modern device for obtaining rulings on evidence even before the evidence is proffered at trial. The proponent of evidence can file an in limine motion to obtain an advance ruling that an item of evidence is admissible. However, in the vast majority of cases, the opponent files the motion to obtain an advance ruling that a particular item of evidence is inadmissible. The purpose of such motions may be to shield the jury from exposure to prejudicial inadmissible evidence or to afford a basis for strategic decisions. For instance, an advance ruling might help the counsel decide whether to mention an item of evidence during opening statement or advise her client whether to take the stand. Advance rulings on objections can be sought before or during trial prior to the presentation of the evidence. Although there is some old authority forbidding advance rulings, today the prevailing rule is that the judge has...
- As § 52 indicated, a failure to make a sufficient objection to incompetent evidence waives any ground of complaint as to the admission of the evidence. But it has another equally important effect. If the testimony is received without objection, the testimony becomes part of the evidence in the case and is usable as proof to the extent of its rational persuasive power. The fact that it was inadmissible does not prevent its use as proof so far as it has probative value. The inadmissible evidence, unobjected to, may be relied on in argument, and alone or in part it can support a verdict or finding. At the trial court level, a party may rely on the evidence to defeat a directed verdict motion; and on appeal, the party may use the evidence to uphold the legal sufficiency of the evidence to support a judgment. This principle is almost universally accepted. The Federal and Revised Uniform Rules of Evidence are silent on this subject but raise no doubt as to the continued viability of the...
- However, relevancy and probative worth stand on a different footing. If the evidence has no probative force or insufficient probative value to sustain the proposition for which it is offered, the lack of objection adds nothing to its worth; and the evidence will not support a finding. It is still irrelevant or insufficient. However, the failure to object to evidence related to the controversy but not covered by the pleadings, can informally frame new issues and impliedly amend the pleadings. When this occurs, the failure to object on the ground that the evidence is irrelevant to any issue raised by the original pleadings is waived, and the evidence can support the proponent’s position on the new informal issue.
- A defendant who preemptively introduces evidence of a prior conviction on direct examination may not challenge the admission of such evidence on appeal. Ohler attempts to avoid the well-established commonsense principle that a party introducing evidence cannot complain on appeal that the evidence was erroneously admitted by invoking the Federal Rules of Evidence 103 and 609. However, neither Rule addresses the question at issue here. She also argues that applying such a waiver rule in this situation would compel a defendant to forgo the tactical advantage of preemptively introducing the conviction in order to appeal the in limine ruling. But both the Government and the defendant in a criminal trial must make choices as the trial progresses.
- The most important influence encouraging trial judges to take a relaxed attitude toward evidence rules in nonjury cases is a doctrine recognized by most appellate courts. According to this doctrine, on an appeal from a bench trial, the receipt of inadmissible evidence over objection is ordinarily not ground for reversal if there was other, admissible evidence sufficient to support the findings. The judge is presumed to have disregarded the inadmissible evidence and relied on the admissible evidence. However, when the judge errs in the opposite direction by excluding evidence which ought to have been received, the judge’s ruling is subject to reversal if it is substantially harmful to the losing party. But some appellate decisions decline to apply the presumption when the evidence was objected to and the objection overruled. The judge’s action in overruling the objection suggests that the trial wanted to consider the evidence in question. Moreover, the presumption may be rebutted by...
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Chapter 26. Spontaneous Statements 42 results (showing 5 best matches)
- Defendants offered testimony that on or about March 5, 1879, Walters wrote to his sister that “I expect to leave Wichita on or about March 5, with a certain Mr. Hillmon.” An objection to this and similar evidence was sustained. The United States Supreme Court reversed on the ground that the evidence of the letters should have been admitted:
- Although the statement must describe a state of mind or feeling existing at the time of the statement, the evidentiary effect of the statement is broadened by the notion of the continuity in time of states of mind. For example, if a declarant asserts on Tuesday a then-existing intention to go on a business trip the next day, this will be evidence not only of the intention at the time of the statement, but also of the same purpose the next day when the declarant is on the road. Continuity may also look backwards. Thus, when there is evidence that a will has been mutilated by the maker, the declarant’s subsequent statements of a purpose inconsistent with the will are received to show his or her intent to revoke it at the time it was mutilated. Similarly, whether payment of money or a conveyance was intended by the donor as a gift may be shown by statements of intent existing at the time of the statement whether made before, at the time of, or after the act of transfer. The duration of...
- Declarations such as those involved here frequently include assertions other than state of mind. For example, the victim may assert that the defendant’s acts caused the state of mind. The truth of those assertions beyond the mental or emotional condition may coincide with other issues in the case, as where the defendant is charged with acts similar to those described. In such circumstances, the normal practice is to admit the statement and direct the jury to consider it only as proof of the state of mind and to disregard it as evidence of the other issues. Compliance with this instruction is probably beyond the jury’s ability and almost certainly beyond their willingness. Where substantial evidence has been admitted on the other act, probably little harm results. However, where the mental state is provable by other available evidence and the
- Acceptance of the use of statements of state of mind to prove subsequent conduct and recognition of occasions for its application by the courts have differed among types of situations. In will cases, for example, previous declarations of intention are received as evidence of the decedent’s later conduct when those acts are at issue. Such statements are admissible on issues of forgery, alteration, contents of a will, and whether acts of revocation were done by the testator. Despite early decisions to the contrary, or decisions greatly restricting their use, statements of intent to commit suicide have been admitted when offered by the accused in homicide cases to prove that the victim took his or her own life and similarly in insurance cases to show suicide. Historically, there has been some greater resistance, however, to admitting threats of a third person to commit the act with which the accused is charged as evidence that the act was committed by the third person and therefore not...
- The issue is made more difficult when the cooperative actions between the declarant and another are themselves at issue. For example, in the homicide prosecution of Frank, a witness testifies that on the morning of the killing the victim said, “I am going out with Frank tonight.” While this tends to prove the victim’s acts, it also tends to prove that the defendant “went out” with the victim, a fact very much in issue. Despite some rulings to the contrary, courts have generally admitted these statements. The result is that the statement is used as proof of the other person’s intent and as proof that this intent was achieved. The additional dangers present here have, however, prompted some courts to impose additional restrictions or requirements. These include: instructing the jury to consider the evidence only to prove the conduct of the declarant, requiring independent evidence to establish the defendant’s conduct, permitting the declaration to be used only to explain the declarant...
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Chapter 5. Impeachment and Support 131 results (showing 5 best matches)
- On the other hand, the color of the traffic light facing Apple is non-collateral; the color of the traffic light is itself relevant in the case. Thus, specific contradiction evidence that the light facing Apple Street was green is admissible. Likewise, if Bob denies on cross-examination having previously stated that the traffic light was green, extrinsic evidence of Bob’s prior inconsistent statement is admissible. Assuming Bob is then asked on cross-examination if he was wearing his glasses while driving, a yes answer may be contradicted by extrinsic evidence that his only pair of glasses was being repaired at the time of the accident. Evidence disputing the witness’s ability to gain personal knowledge of facts relevant in the case is non-collateral. Similarly, if Bob denied on cross-examination that his wife was related to the plaintiff, extrinsic evidence of that fact would be admissible. Evidence of the witness’s partiality is non-collateral. Extrinsic evidence offered to...
- Both at common law and under the Federal Rules, the general norm is that the witness’s proponent may not bolster the witness’s credibility before any attempted impeachment. For example, on direct examination it would be improper for the witness’s proponent to elicit the witness’s own testimony that the witness “always tells the truth.” Federal Rule of Evidence 608(a)(2) provides that the “evidence of [a witness’s] truthful character is admissible only after the character … has been attacked….” There are some exceptional situations discussed in § 47—fresh complaints and prior identifications—in which the witness’s proponent is permitted to bring out bolstering evidence on direct examination. However, as a general proposition, bolstering evidence is inadmissible. As of the time of the direct examination, it is uncertain whether the cross-examiner will attack the witness’s credibility; the counsel might later waive cross-examination or cross-examine solely for the purpose of eliciting...
- The solitary exception to this general rule applies when the witness’s testimony triggers the curative admissibility or “door opening” doctrine. Extrinsic evidence concerning a collateral matter may be admitted under the doctrine of “door opening.” The courts tend to admit evidence under this doctrine where the government seeks to introduce evidence on rebuttal to contradict specific factual assertions raised during an accused’s direct examination. Suppose, for example, that on direct examination, an accused witness made a sweeping, superlative assertion that he had “never” committed a deceitful act. That assertion is such a serious violation of the rules limiting bolstering evidence that on a curative admissibility theory, many courts allow the opposing counsel to both cross-examine about the assertion and later introduce extrinsic evidence rebutting the assertion. However, with this single exception, impeaching evidence of a witness’s other untruthful acts which have not resulted...
- Finally, vary the initial illustration. Again, on direct Bob testified that when he witnessed the accident, he was driving on the very street on which Piagano’s is located. Now the specific contradiction evidence is that Piagano’s Pizza Restaurant is situated on Main Street. If Bob was on Main, not Apple, as he approached the intersection, extrinsic evidence of the location of the restaurant would be admissible. In this variation of the illustration, an error as to the location of the restaurant brings into question the trustworthiness of Bob’s testimony on the historical merits of the case. Bob may have seen the light facing Main, not the light facing Apple. The location of the restaurant would be considered a “linchpin” fact, and extrinsic evidence would therefore be admissible to impeach Bob. A fact negating the assumption that the witness was in the right place at the right time to observe what he testified to is a classic example of a “linchpin” fact.
- On cross-examination, one of the purposes of every permissible type of impeachment is to test the witness’s credibility. The use of extrinsic evidence to contradict is more restricted due to considerations of confusion of the issues, misleading the jury, and undue consumption of time. If a matter is considered collateral, the counsel may be limited to intrinsic impeachment. In other words, the witness’s testimony on direct or cross-examination stands—the cross-examiner must take the witness’s answer; and contradictory extrinsic testimony, evidence offered other than through the witness himself, is barred. When the matter is not collateral, extrinsic evidence may be introduced to dispute the witness’s testimony on direct examination or cross.
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Chapter 17. Character and Habit 86 results (showing 5 best matches)
- Before turning to the details of the rules, it may be helpful to sketch two general considerations that are central to shaping and applying them. The first is the purpose for which the evidence of character is offered. If a person’s character is itself an issue in the case, then character evidence is crucial and skepticism of inferences from very general character traits to highly situation-specific conduct is less apposite. But if the evidence of character merely is introduced as circumstantial evidence of what a person did or thought, it is less critical. Other, and probably better, evidence of the acts or state of mind may be available, and the exclusionary rule creates an incentive to produce it. Furthermore, jurors may regard personality traits as more predictive of individual behavior than they actually are. Exclusion is therefore much more likely when the character evidence is offered solely to help prove that a person acted in one way or another. Thus, Federal Rule of
- A similar exception to the general rule pertained to the defense of consent in sexual assault cases. In the past, the courts generally admitted evidence of the victim’s character for chastity, although there were diverging lines of authority on whether the proof could be by specific instances and on whether the prosecution could put evidence of chastity in its case in chief. In the 1970s, however, nearly all jurisdictions enacted criminal “rape shield” laws “to protect rape victims from degrading and embarrassing disclosure of intimate details about their private lives, to encourage reporting of sexual assaults, and to prevent wasting time on distracting collateral and irrelevant matters.” The reforms ranged from barring all evidence of the victim’s character for chastity to merely requiring a preliminary hearing to screen out inadmissible evidence on the issue.
- The prosecution, as we saw in the preceding section, generally is forbidden to initiate evidence of the bad character of the defendant merely to rely on the generalization that a bad person is more likely to commit a crime. This rule, in turn, is a corollary of the more general proscription on the use of character as circumstantial evidence of conduct. Yet, when the table is turned and the defendant in a criminal case seeks to offer evidence of his good character to imply that he is unlikely to have committed a crime, the general rule against propensity evidence is not applied. In both situations, the character evidence is relevant circumstantial evidence, but when the accused chooses to rely on it to exonerate himself, the problem of prejudice is quite different. Now, knowledge of the accused’s character may prejudice the jury in his favor, but the magnitude of the prejudice or its social cost is thought to be less. Thus, the common law and the federal rules permit the defendant,...
- The rule against using character evidence solely to prove conduct on a particular occasion has long been applied in civil cases, especially when specific act evidence is proffered. Of course, we are speaking of specific acts other than those at bar. No doubt, evidence that someone acted negligently says something about that person’s character. But we are concerned here with character as circumstantial evidence, that is, as evidence of a propensity to behave in a certain way which, in turn, makes it more likely that such behavior occurred on the occasion in question. When this is the theory of admissibility, the character evidence is inadmissible, but a previous accident or negligent act that does something more than show character or predisposition may be admissible.
- See supra § 189. Some complications arise in assault and battery cases. When the issue is simply whether the defendant committed the act, the majority approach described above excludes defendant’s evidence of his character for peacefulness. But when the defendant pleads self-defense, he usually may show plaintiff’s reputation for turbulence if he proves it was known to him. The rationale is that the evidence then shows defendant’s reasonable apprehension, and therefore is not used to prove that plaintiff acted in conformity with the character trait. Of course, this is also not an instance of the defendant’s introducing evidence of his own good character. Likewise, since the exceptions described supra § 190 apply in civil as well as criminal cases, evidence of defendant’s bad character may be used to show malice to justify punitive damages. Finally, when there is a dispute as to who committed the first act of aggression, many courts, regardless of their alignment on the general...
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Chapter 16. Relevance 20 results (showing 5 best matches)
- In the law of evidence, truth matters. To facilitate judgments based on an accurate understanding of the facts, the system of proof presupposes that the parties may present to the court or jury all the evidence that bears on the issues to be decided. Of course, many rules, such as those involving privilege, hearsay, and judicial economy, limit this system of free proof and keep probative evidence from the finder of fact. Nevertheless, unless there is some such distinct ground for refusing to hear the evidence, it should be received. Conversely, if the evidence lacks probative value, it should be excluded. Federal Rule of Evidence 402 and the corresponding Revised Uniform Rule adopt these two axioms of the common law. These rules provide that “relevant evidence is admissible” unless excluded by other laws or rules and that irrelevant evidence “is not admissible.”
- In sum, relevant evidence is evidence that in some degree advances the inquiry. It is material and probative. As such, it is admissible, at least prima facie. But this relevance does not ensure admissibility. There remains the question of whether its value is worth what it costs. A great deal of evidence is excluded on the ground that the costs outweigh the benefits. Rule 403 of the Federal and Uniform Evidence Rules categorize most of these costs. This rule codifies the common law power of the judge to exclude relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.” Such factors often blend together in practice, but we shall elaborate on them briefly in the rough order of their importance. First, there is the danger of prejudice. In this context, prejudice (or, as the rule puts it, “...
- In addition to evidence that bears directly on the issues, leeway is allowed even on direct examination for proof of facts that merely fill in the background of the narrative and give it interest, color, and lifelikeness. Maps, diagrams, charts, photographs, videotapes, and computer animations can be material as aids to the understanding of other material evidence. Moreover, the parties may question the credibility of the witnesses and, within limits, produce evidence assailing and supporting their credibility.
- In short, to say that circumstantial evidence is irrelevant in the sense that it lacks probative value is to say that knowing the evidence does not justify any reasonable inference about the fact in question. Cases involving such evidence are few and far between. That more than one inference could be drawn is not enough to render the evidence irrelevant. Fleeing the scene of a crime, for instance, could mean that the defendant, being conscious of guilt for the crime charged, actually is guilty; or it could mean that defendant is innocent but fled to avoid being apprehended for some other reason entirely. However, the premise that, in general, people who flee are more likely to be guilty than those who do not is at least plausible, and as long as there is some plausible chain of reasoning that leads to the desired conclusion, the evidence is probative of that conclusion. As a result, most evidence seriously offered at trial has ...denominate evidence as devoid of probative...
- on the probability of will not be so apparent. A second approach considers the probability of the evidence given the hypothesis, P( ). Evidence that is more likely to arise when ; evidence that is less likely to arise under . Evidence of either type is probative of . But evidence that is just as likely to arise when ), and the evidence has probative value—it points toward not-
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Chapter 14. Confessions 157 results (showing 5 best matches)
- The factors considered in developing and formulating constitutional limits on the use of silence as the basis for tacit confessions have also been considered by courts addressing possible evidence law limits on this sort of evidence. This is particularly the case with what
- , the prosecution may under the trustworthiness approach use independent evidence of the crime to show a statement’s trustworthiness. Where such evidence is lacking, it added, the prosecution may rely on the same types of evidence used in other areas to bolster the credibility and reliability of an out-of-court statement:
- The close relationship between some requirements of admissibility and the weight that confession evidence is properly given in determining guilt have generated considerable disagreement on the role of judge and jury in resolving the various issues presented when the prosecution offers evidence of a defendant’s confession. Some of the issues, of course, are constitutional ones.
- the most obvious source of such a body of law would be trial courts’ authority to exclude evidence on the ground that its probative value is outweighed by its danger of undue prejudice. State courts have occasionally commented that defendants can challenge confessions on this basis and on rare occasions have reviewed admissibility under this approach.
- recognized, most appellate courts treat the corroboration requirement as applied on appellate review as relating to evidence sufficiency, perhaps as well as admissibility. Consequently, a convicted defendant who prevails on appeal is entitled to acquittal.
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Chapter 18. Similar Happenings and Transactions 26 results (showing 5 best matches)
- Should a party be permitted to cast doubt on the merits of the claim at bar by demonstrating that an opponent has advanced similar claims or defenses in other litigation? Inescapably, two conflicting goals shape the rules of evidence in this area. Exposing fraudulent claims is important, but so is protecting innocent litigants from unfair prejudice. The easy cases are those in which one goal clearly predominates. If the evidence reveals that a party has made previous, very similar claims and that these claims were fraudulent, then almost universally the evidence will be admissible despite the dangers of distraction and time-consumption with regard to the quality of these other claims, and despite the general prohibition on using evidence of bad character solely to show conduct on a given occasion. At the other pole, if the evidence is merely that the plaintiff is a chronic litigant with respect to all sorts of claims, the courts consider the slight probative value overborne by the...
- Inasmuch as there is no general danger of unfair prejudice inherent in evidence of other business transactions, strict rules or limits on admissibility are inappropriate. The courts should admit such evidence in all cases where the testimony as to the terms of the present bargain is conflicting and where the judge finds that the risk of wasted time and confusion of issues does not substantially outweigh the probative value of the evidence of the other transactions. Many jurisdictions therefore leave evidence of other contracts or business dealings to the trial judge to evaluate on a case-by-case basis.
- In cases alleging fraud or misrepresentation, proof that the defendant perpetrated similar deceptions frequently is received in evidence. Such admission is not justified on the theory of “once a cheat, always a cheat,” for that would contravene the ban on using character traits solely as propensity evidence of conduct on the occasion in question. Rather, at least one of three well entrenched alternate theories typically is available. To begin with, evidence of other frauds may help establish the element of knowledge—by suggesting that defendant knew that the alleged misrepresentation was false or by indicating that defendant’s participation in an alleged fraudulent scheme was not innocent or accidental.
- So far, we have discussed evidence of a party’s other claims introduced to raise a question about the instant claim or suit. Evidence of a witness’ past accusations or defenses introduced to attack the veracity of that witness presents comparable problems. In these situations, a litigant might seek to prove that the other accusations have been false as circumstantial evidence that the testimony just delivered is also false. Although this is a species of character evidence to show conduct, it usually will However, in keeping with the customary relaxation of the standard of admissibility on cross-examination, it is generally easier to elicit admissions about the other claims on cross-examination than to introduce the evidence by the testimony of the proponent’s witnesses.
- Since the value sought is what, on average, a willing buyer would have paid a willing seller, prices on other sales of a forced character, such as execution sales or condemnation awards for other tracts, generally are inadmissible. Many courts also exclude the condemnor’s evidence of prices it paid to other owners on the theory that sales made in contemplation of condemnation do not approximate the relevant market price. Other courts, following what seems the better reasoned view, allow such evidence in the judge’s discretion.
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Chapter 20. Experimental and Scientific Evidence 132 results (showing 5 best matches)
- At the outset, two preliminary points of clarification may be helpful. First, although the phrase “probability evidence” is a convenient shorthand for testimony or argument involving probability calculations, the term is something of a misnomer. The probabilities are not themselves evidence. They are numbers ranging from zero to one that may be used in drawing conclusions from the statistical or other evidence. The topic of this section is whether or when overtly attaching a probability number to identification evidence is permissible. A somewhat different question is whether statistical evidence alone is sufficient to support a verdict. Psychologists have detected an aversion to decisions based on “naked statistical evidence” under certain conditions, and philosophers and legal commentators have presented theories to justify or to counter the apparent opposition of some courts to verdicts that seem to rest exclusively on statistical evidence. Positions have ranged from denying that...
- There is also a strong argument for using a Bayesian approach to help the jury evaluate the evidence. Instead of viewing the evidence from the position of a laboratory, which, having nothing else to go on, is driven to such artifacts as using prior odds of one, the expert witness can adjust the focus to the trial, where other evidence is available to the decisionmaker. The expert could show the jury how the test results would affect not merely a prior probability of one-half, but a whole spectrum of prior probabilities. It could be made clear to the jurors that the purpose of this exposition is not to compel them to assign a prior probability to the other evidence in the case, but to permit them to gauge the strength of the positive test findings and to weigh these findings, along with the other evidence, in the manner that they think best. By using variable instead of fixed prior odds, the expert can display the statistical force of the evidence without attempting to quantify—on...
- jurisdictions have been forced to draw (and tempted to manipulate) an often obscure line between “scientific” evidence and other expert or lay testimony. Focusing at the outset on the costs and benefits of the particular evidence makes it less crucial to decide exactly when evidence is so “scientific” or “novel” that the special test for scientific evidence applies. Similarly, predictability is not easily attained in the face of ambiguity and disagreement as to how general the acceptance in the scientific community must be, who can speak for that community, and the particular field to which the scientific evidence belongs and in which it must be accepted. Although such issues arise under any effort to assess the probative value of scientific evidence, they are far less critical when a court can consider the number of fields in which a technique is used, the rigor required in those fields, and the degree of its acceptance in those fields, without having to label the technique as...
- Most courts applying the general scientific acceptance test to voice spectrographic evidence have held the evidence inadmissible. In fact, this evidence inspired some of the most spirited and thoughtful defenses of the general acceptance standard for scientific evidence. On the other hand, faith in the method and a belief that jurors will not find it overly impressive prompted some courts to bend the breaking point to conclude that the evidence should be admissible. Use of the technique has declined, however, and in jurisdictions, courts are increasingly likely to exclude the evidence. Whatever standard may be applied, it seems that unless further research makes the validity of the technique plainer, the courts will remain divided over or opposed to the admissibility of voice spectrographic identification.
- To deal effectively with scientific evidence, attorneys must know more than the rules of evidence. They must know something of the scientific principles as well. While they can rely on suitably chosen experts for advice about the more arcane points, they must have a sufficient grasp of the field to see what is essential and what is unnecessary detail and verbiage if they are to develop or counteract the evidence most effectively. In this chapter, we cannot explore in any depth the vast body of knowledge that comes into play in the forensic applications of science and medicine. Only a superficial sampling of a few areas will be attempted. We shall focus on some of the problems that can arise in making measurements and in interpreting data. Sections 204 through 207 deal with laboratory, clinical, or field tests (organized somewhat arbitrarily by scientific discipline) in which statistical analysis of the data does not play a major role. Sections 208 through 211 concern studies in...
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Chapter 3. The Requirement of Firsthand Knowledge: The Opinion Rule & Expert Testimony 98 results (showing 5 best matches)
- At common law, before posing a hypothetical question, the proponent must present admissible, independent evidence of every fact included in the hypothesis. However, that requirement for hypothetical questions is no longer in effect in jurisdictions following the Federal Rules of Evidence. The traditional requirement rests on the notion that if the opinion is premised on a fact which the jury, for lack of evidence, cannot find to be true, the jurors may not use the opinion as the basis for a finding. There must be admissible evidence supporting each assumed fact. Direct testimony is not required. It suffices if the fact is fairly inferable from the circumstances proved. Moreover, at common law the supporting evidence need not have been already adduced if the interrogating counsel assures the judge that it will be forthcoming.
- Initially, posit the 703 majority’s view that the utilization of a report under Rule 703 necessarily entails the use of the report as substantive evidence. If the majority is right, there may be an admissibility problem; there is a strong argument that the jury ought to be permitted to consider the resulting opinion only when there is admissible, independent evidence of the 703 facts. If such evidence is lacking, the judge should bar the opinion. As in the case of a hypothetical question, when the proponent attempts to introduce the opinion, the opponent should have a parallel right to object on the ground that there is no extrinsic, admissible evidence of the 703 facts. Even when the judge exercises discretion to allow the proponent to submit the admissible evidence later—again as in the case of a hypothetical question—on the opponent’s motion the judge should strike the opinion if the proponent rests without submitting the admissible evidence. At first blush, the view of the 703...
- [i]n an unusual move, four of the expert witnesses—representing both the prosecution and the defense—met to review the scientific evidence after they had already testified. The result of this meeting was a two-page consensus statement that addressed the inadequacy of the scientific evidence and the legal procedures for assessing [the] evidence. Although the statement itself was not accepted as evidence in the pretrial hearing, the substance of the consensus document was introduced by the defense’s recall of two prosecution expert witnesses to testify on its substance.
- As we have seen, at common law an expert could base an opinion either on personally known facts or facts stated in an hypothesis. However, those two bases do not exhaust the possibilities. The expert could also attempt to rest an opinion on third party out-of-court reports. However, the former majority view was that a question is improper if it calls for the witness’s opinion on the basis of reports that are inadmissible in evidence under the hearsay rule. The rationale for this view was that as a matter of logic, the jury could not accept the opinion based on the facts if the only evidence of the facts is inadmissible. This view applied even when the witness was asked to give an opinion, not merely on the basis of reports of this kind, but on those matters supplemented by the witness’s own observation. However, today there has been a strong case law trend toward a contrary view. (There is also a related, incipient trend in the cases toward the view that opinions based on out-of-...
- If trial judges must distinguish on the spur of the moment between “fact” and “opinion,” no two judges, acting independently, will always reach the same results. Of course, many questions have recurred and have customarily been classified as calling for either “fact” or “opinion”. But in a changing world there will be a myriad of new statements to which the judge must apply the distinction. Thus, good sense demands that the law accord the trial judge a wide range of discretion at least in classifying evidence as “fact” or “opinion,” and probably also in admitting evidence classified as opinion. Several courts have expressed this viewpoint. Federal Rule of Evidence and Uniform Rule of Evidence 701 reflect that the trial judge possesses such latitude.
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Chapter 1. Preparing and Presenting The Evidence 34 results (showing 5 best matches)
- After the jury selection, the attorneys present opening statements. During the statements, the attorneys preview their evidence for the jury. According to American Bar Association Model Rule of Professional Conduct 3.4(e), in opening a lawyer may not “allude to any matter that the lawyer does not reasonably believe … will … be supported by admissible evidence …” at trial. By far, the most common objection during opening statement is that a particular statement is argumentative. In this context, “argumentative” means that the statement is a conclusion which would be inadmissible under the evidence rules governing lay and expert opinion testimony. As a rule of thumb, an attorney may not make a statement during opening unless, under the witnesses to make the statement on the stand. The attorney might be uncertain ...his opponent may refer to a particular item of potential evidence in opening. If so, even before opening statement the lawyer can file a pretrial in limine motion seeking...on
- If the hearing will be a jury trial, the jury must be selected before the lawyers present their evidence. Depending on the jurisdiction, during the voir dire examination of the panelists the judge might permit the attorney to question them about potential items of evidence in the case. A panelist could conceivably have such an adverse reaction to the item of evidence that he would be challengeable for cause, or the attorney might want to employ a peremptory strike to remove him from the jury.
- If the trial continues, the next major phase is the defense case-in-chief or case in defense. The defendant now presents the witnesses and the tangible evidence supporting his case. At this stage the defendant produces evidence disputing the plaintiff’s or prosecutor’s claim. Thus, the defendant could present testimony that the alleged contract was never agreed on. Similarly, in a negligence case the defense might offer testimony that some bodily injury was not permanent as the plaintiff alleged. The defense can also support any properly pleaded affirmative defenses, such as fraud in the inducement of a contract sued on or the execution of a release of a personal injury claim. Here again each witness’s story on direct examination is subject to being tested by cross-examination and supplemented on re-direct. When the defendant has completed the presentation of his proof of affirmative defenses, if any, and her evidence rebutting the plaintiff’s or prosecutor’s claims, the defendant...
- After the opening statements, testimony begins. Under the usual order of proceeding at the trial, including a trial under the Federal Rules of Evidence, the plaintiff or prosecutor, with the burden of establishing his claim, first introduces the evidence to prove the facts necessary to enable him to recover or obtain a conviction. This initial phase is called the plaintiff’s or prosecutor’s case-in-chief. For instance, in a Contract lawsuit, the plaintiff would introduce evidence relating to the formation of the contract, his fulfillment of the conditions to the defendant’s duty, the defendant’s breach of duty, and the amount of damages caused by the breach. At this stage the plaintiff calls all the witnesses on whom he relies to establish these facts, together with the pertinent documents. The documents are formally offered into evidence when they have been authenticated by a sponsoring witness’s testimony. During this stage, each witness is initially questioned by the plaintiff’s...
- The pretrial conference can serve as a vehicle for reaching agreement on various factual issues, although the conference does not always yield that result. By process of elimination, the conference helps the parties identify the remaining disputed issues which the trial evidence will focus on.
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Chapter 36. The Burdens of Proof and Presumptions 130 results (showing 5 best matches)
- The burden of producing evidence on an issue means the liability to an adverse ruling (generally a finding or directed verdict) if evidence on the issue has not been produced. It is usually cast first upon the party who has pleaded the existence of the fact, but as we shall see, the burden may shift to the adversary when the pleader has discharged its initial duty. The burden of producing evidence is a critical mechanism in a jury trial, as it empowers the judge to decide the case without jury consideration when a party fails to sustain the burden.
- The appellate court, under the classical equity practice, tried the facts de novo, upon the deposition testimony in the record, and thus it was called on to apply anew the standard of clear and convincing proof in its study of the evidence. But in the modern system there are usually restrictions upon appellate review of a judge’s findings of fact, even in equity issues. Thus, in the federal courts under Rule 52(a) the trial court’s findings will be reversed only when “clearly erroneous.” And in jury-tried cases the verdict will be reviewed only to the extent of determining whether there was evidence from which reasonable people could have found the verdict. Will the appellate court, then, today, if there was substantial evidence from which the judge or jury could have made the findings it did, consider the questions whether the evidence met the “clear and convincing” standard, in a case where it applies? The United States Supreme Court, in reviewing a summary judgment in a libel...
- (b) Submission to the jury. The court may not direct the jury to find a presumed fact against an accused. If a presumed fact establishes guilt. is an element of the offense, or negates a defense, the court may submit the question of guilt or of the existence of the presumed fact to the jury, but only if a reasonable juror on the evidence as a whole, including the evidence of the basic fact, could find guilt or the presumed fact beyond a reasonable doubt. If the presumed fact has a lesser effect, the question of its existence may be submitted to the jury if the basic fact is supported by substantial evidence or is otherwise established, unless the court determines that a reasonable juror could not find on the evidence as a whole the existence of the presumed fact.
- Instructing the Jury. At the time the existence of a presumed fact is submitted to the jury, the court shall instruct the jury that it may regard the basic fact as sufficient evidence of the presumed fact but is not required to do so. In addition, if a presumed fact establishes guilt, is an element of the offense, or negates a defense, the court shall instruct the jury that its existence, on all the evidence, must be proved beyond a reasonable doubt.
- Thayer, Preliminary Treatise on Evidence 346 (1898) followed in 9 Wigmore, Evidence § 2493 (Chadbourn rev. 1981).
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Chapter 13. The Privilege Against Self-Incrimination 145 results (showing 5 best matches)
- Generally, prosecutors may safely argue that the State’s evidence, or particular parts of it, are “uncontradicted.” If the state of the evidence is that the only possible contradictory testimony would be from the defendant, however, such argument constitutes an impermissible indirect comment on the defendant’s failure to testify. Similarly, an argument stressing the lack of any evidence becomes impermissible if the only evidence that might be presented would be the testimony of the accused.
- The difficulty with placing any burden on the witness relying on the privilege, of course, is that sometimes meeting this burden will itself require disclosure of self-incriminating facts. In light of this, is best read as follows: A witness invoking the privilege need not carry a burden of persuasion requiring the witness to persuade the judge that the answer sought would be incriminating. But where the question, considered in light of the evidence in the case and other information properly taken into account, is one which the trial judge could reasonably regard as presenting no more than an imaginary and unsubstantial risk of incrimination, the witness has the burden of putting into the record—by evidence, logical argument, or persuasion—a basis for regarding that conclusion as insufficiently supported. In the words of the Idaho courts, such a witness “must sketch a plausible scenario” under which the answer would be incriminating. Although a witness might produce evidence in...
- The privilege may also protect the innocent in less direct ways. It constitutes one part, but an important part, of our accusatorial system which requires that no criminal punishment be imposed unless guilt is established by a large quantum of especially reliable evidence. By denying the prosecution access to what is regarded as an inherently suspect type of proof, the self-incriminating admissions of the accused, the privilege forces the prosecution to establish its case on the basis of more reliable evidence. This arguably creates an additional assurance that every person convicted is in fact guilty as charged. Some, however, argue that the privilege is an ineffective means of encouraging the making of the guilt-innocence decision on reliable evidence. In many situations, for example, it denies defendants the right to call witnesses whose testimony might well be reliable and exculpatory.
- , the prosecution must prove that it will make no “evidentiary” use of immunized testimony if it proceeds against a witness who has given immunized testimony. All evidence offered at trial and before any indicting grand jury, then, must be shown to have had a source other than—or independent of—the immunized testimony. A general assertion by the prosecution that its evidence has an independent source is not sufficient. Rather, the prosecution must proceed item-by-item and witness-by-witness and demonstrate its source for the proffered testimony. The same is true regarding evidence elicited by cross-examination; is violated if a prosecutor’s consideration of a defendant’s immunized testimony enables the prosecutor to elicit significant testimony on cross-examination of defense witnesses.
- as a matter of Fifth Amendment law. The Pennsylvania Supreme Court, for example, upheld use immunity but only on the condition that the prosecution is required to prove that its evidence “arose [from] independent sources” and to prove this by clear and convincing evidence. hearing the prosecution prove by clear and convincing evidence it made no use of immunized testimony.
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Chapter 25. Admissions of a Party-Opponent 94 results (showing 5 best matches)
- In jurisdictions where the judge retains the common law power to comment on the evidence, a fair comment on failure to produce witnesses or evidence is traditionally allowable. Permitting judicial discretion to instruct on the inference is appropriate. However, a practice that gives a party a right to such instruction is undesirable because it tends to lead to the development of elaborate rules defining the circumstances when the right exists. Making instruction a matter of right does have the advantage of focusing past experience on the problem presented at the trial, but the cost of complex rules far outweighs the gain.
- Some recent cases have indicated a willingness to rethink these traditionally established principles. Several cases have found intentional actions that result in the destruction of evidence either to shift the burden of proof or to provide affirmative evidence on a critical issue. A few cases have proposed a separate tort for spoliation of evidence. This area of the law appears to be in flux and the patterns of the new order are not yet clear.
- A related question involves whether a plea of guilty can be introduced as an admission in a criminal case where the accused is allowed to withdraw the guilty plea and is subsequently tried on the charge. The result depends on the resolution of competing considerations of policy. On the one hand, a plea of guilty if freely and understandingly made is so likely to be true that to withhold it from the jurors seems to ask them to do justice without knowledge of very important evidence. On this basis, some courts have received admissions in civil cases, leaving it to the adversary to rebut or explain. The competing concern is that if the withdrawn plea is admitted the effectiveness of the withdrawal itself is substantially impaired. In addition, admitting the guilty plea virtually compels the accused to explain why it was initially entered, with resultant encroachment upon the privilege against self-incrimination and intrusion into sensitive areas of the attorney-client relationship. The...
- The specific procedural effect of the inference from failure to call a witness is seldom discussed. Some courts have said that the party’s failure to call the witness or produce the evidence creates a “presumption” that the testimony would have been unfavorable. It is usually phrased in terms, however, of “may” rather than “must” and seemingly could at most be only a “permissive,” not a mandatory, presumption. Moreover, unlike the usual presumption, it is not directed to any specific presumed fact or facts which are required or permitted to be found. The burden of producing evidence of a fact cannot be met by relying on this “presumption.” Rather, its effect is to impair the value of the opponent’s evidence and to give greater credence to the positive evidence of the adversary upon any issue upon which it is shown that the missing witness might have knowledge.
- The final pleadings upon which the case is tried state the contentions of each party as to the facts, and by admitting or denying the opponent’s pleading, they define the factual issues that are to be proved. Thus, the court must look to the pleadings as part of the record in passing on the relevancy of evidence and to determine the issues to be submitted to the jury. For these purposes, the pleadings need not be offered in evidence. They are used as judicial and not as evidentiary admissions, and they are conclusive until withdrawn or amended.
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Chapter 23. The Requirement of the Production of the Original Writing, Recording, or Photograph as the “Best Evidence” 56 results (showing 5 best matches)
- that the first appearance of the “best evidence” phrase is a statement in 1700 by Holt, C.J. (in a case in which he admitted evidence questioned as secondary) to the effect that “the best proof that the nature of the thing will afford is only required.” This statement given as a reason for receiving evidence, that it is the best which can be had, is a liberalizing principle. Not surprisingly, it gives birth to a converse and narrowing doctrine that a party must produce the best evidence that is available—second-best will not do. And so before 1726 we find Baron Gilbert in one of the earliest treatises on Evidence saying, “the first … and most signal rule in relation to evidence is this, that a man must have the utmost evidence the nature of the fact is capable of….” Blackstone continues the same broad generalizing and combines both the positive and negative aspects of the “best evidence” idea when he says, “… the best evidence the nature of the case will admit of shall always be...
- It will be seen from the earlier sections of this chapter that the requirement of the production of original writings, with the several excuses for nonproduction and the exemptions from the requirement itself, make up a fairly complex set of regulations for administration by the trial judge. Mistakes in the application of these rules are, understandably, not infrequent. The purpose of this system of rules, on the other hand, is simple and practical. That purpose is to secure the most reliable information as to the contents of documents, when those terms are disputed. A mystical ideal of seeking “the best evidence” or the “original document” as an end in itself is no longer the goal. Consequently when an attack is made on appeal on the judge’s admission of secondary evidence, it seems that the reviewing tribunal should ordinarily make inquiry of the complaining counsel, “Does the party whom you represent actually dispute the accuracy of the evidence received as to the material terms...
- Testimony from a Witness Without Independent Firsthand Knowledge Who Relies on the Contents of a Writing, Recording or Photograph.
- The sections in this Chapter follow this basic framework, discussing first the reasons for the rule which inform the scope of the basic requirement to produce the original or, in most circumstances, a duplicate. Next presented are the excuses for not producing an original that is unavailable and the policy of no preferences for the types of secondary evidence that may then be used to prove the original’s content. Following the excuses are the rules that permit the presentation of secondary evidence without an excuse which demonstrates that the original is unavailable. The Chapter concludes with sections on the allocation of questions of fact between judge and jury and appellate review of judicial rulings admitting secondary evidence.
- the judge; in example (c), for instance, whether the original was lost, and was lost in bad faith. In addition, the judge will require a showing of sufficient evidence on any issue that is allocated to the jury. In example (a) above, the proponent must still introduce evidence sufficient to support a jury finding that his claimed original is genuine. In example (c), the secondary evidence submitted must be sufficient to support a finding that the contents of the original are what the proponent claims.
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Chapter 21. Real Evidence, other Nontestimonial Evidence, and Demonstrative Aids 91 results (showing 5 best matches)
- However, although convenient, the use of any single term to denominate all such evidence can be at best confusing and at worst harmful to a clear analysis of what should be required to achieve its admission into evidence. This is because not all nontestimonial evidence is offered for the same purpose or received on the same theory. Therefore, each section of this Chapter focuses on a specific type: real evidence; demonstrative aids; photographs; video, film and sound recordings; demonstrations and experiments in court; computer-generated simulations and models; and views. Use of this organization should not be taken as a return to categorical formalism, however, since each type will be discussed functionally in terms of its relevance and use at trial.
- . Nontestimonial evidence appeals to the senses of the trier of fact. The trier derives its own sensory perceptions from such exhibits and does not have to rely on the reported perceptions of witnesses. This distinctive characteristic of the evidence treated in this Chapter raises specific issues of probative danger and probative value.
- A major issue in recent case law is the evidentiary status of summaries and charts that present voluminous documentary evidence and testimony that have been admitted at trial in a form of “argument” rather than as evidence by using captions and other devices to suggest the inferences and conclusions that the proponent wishes the jury to draw. Such summaries blur the line between demonstrative aids that are simply illustrative and summaries admitted as evidence by Federal Rule 1006, which must be shown to the court to be accurate and nonprejudicial. Courts have resolved the tension between the helpfulness of such conclusion-laden summaries and the risk of undue influence on the jury by giving explicit limiting instructions that such summaries are not themselves evidence and may not be relied on by the jury as substantive proof.
- . Evidence sufficient to support a finding means evidence upon which a reasonable jury could find by a preponderance of the evidence an item to be what the proponent claims it is. This standard gives the judge a limited screening role on the issue of “sufficiency.” If a witness has personal knowledge and gives direct testimony on the matter, this is sufficient. The judge does not weigh credibility, but takes the testimony at face value. The opponent is permitted to contest the witness’s credibility before the jury, and the jury decides the ultimate question of authenticity.
- . Some types of evidence discussed in this Chapter are offered on the theory that the trier of fact obtains information relevant to a fact of consequence just from perceiving them, irrespective of whether any witness testifies to what he or she also perceives. Some common examples are a weapon allegedly used in the crime charged, a day-in-the-life film of a personal injury plaintiff, or a computer-generated simulation of the alleged cause of a collision. Such items are “substantive” evidence, with independent probative value for proving a fact of consequence in the case. By contrast, other types are offered on the relevance theory that they only “illustrate” the facts or opinions testified to by a witness. They are relevant if they aid the trier in understanding the witness’s testimony, which itself makes a fact of consequence more or less probable. Examples include duplicates of objects involved in the events underlying the litigation, drawings, diagrams and models. The term “...
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Chapter 19. Insurance Against Liability 6 results (showing 5 best matches)
- Despite these concerns and the general rule that evidence of the fact of insurance coverage is inadmissible to show negligence or reasonable care, such evidence frequently is received. As with the exclusionary rules discussed in Chapters 17 (Character and Habit) and 18 (Similar Happenings and Transactions), the evidence may be admitted for some other purpose, providing of course that its probative value on this other issue is not substantially outweighed by its prejudicial impact. The purposes for which such evidence may be offered are several. Federal and Uniform Rule 411 states that “the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.”
- A formidable body of cases holds that evidence that a party is or is not insured against liability is not admissible on the issue of negligence. Federal Rule of Evidence 411 codifies this line of cases. It states that “evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.” The rule is limited to insurance for liability and does not include other forms of insurance such as health insurance.
- This rule rests on two premises. The first is the belief that insurance coverage reveals little about the likelihood that one will act carelessly. Subject to a few pathological exceptions, financial protection will not diminish the normal incentive to be careful, especially when life and limb are at stake. Similarly, the argument that insured individuals or firms are more prudent and careful, as a group, than those who are self-insurers seems tenuous and also serves to counteract any force that the first argument might have. Thus, the relevance of the evidence of coverage is doubtful. In addition, there is concern that the evidence would be prejudicial—that the mention of insurance invites higher awards than are justified, and conversely, that the sympathy that a jury might feel for a defendant who must pay out of his own pocket could interfere with its evaluation of the evidence under the appropriate standard of proof. Although empirical research into these possible forms of...
- The fact that persons rarely purchase liability insurance to cover contingencies for which they are not responsible makes the evidence relevant to questions of agency, ownership, and control. The fact of insurance can be relevant to the bias of a witness in a number of ways. For example, the witness may be an investigator or other employee of the insurance company. In some jurisdictions, however, the courts strive to mask the fact that the witness works for an insurance company (as opposed to some other kind of employer). Evidence that an expert witness has the same insurance carrier as the defendant is normally not admissible; however if there is a more substantial connection between the witness and the insurance carrier evidence of such a relationship may be admissible. Most appellate courts defer broadly to the trial court on the balance of
- Despite its nearly universal acceptance, the wisdom of the general prohibition on injecting insurance into the trial, as it currently operates, is questionable. When the rule originated, insurance coverage of individuals was exceptional. In the absence of references to insurance at trial, a juror most probably would not have thought that a defendant was insured. Today, compulsory insurance laws for motorists and liability insurance for homeowners and businesses are ubiquitous. Most jurors probably assume that defendants are insured. Yet, few courts will allow a defendant to show that he is uninsured, unless the plaintiff has opened the door to such evidence. At a minimum, such a defendant, and indeed any party, should be entitled to an instruction that there has been no evidence as to whether any party is insured because the law is that the presence or absence of insurance should play no part in the case.
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Chapter 2. The Form of Questions on Direct; The Judge’S Witnesses; Refreshing Memory 39 results (showing 5 best matches)
- There are conflicting policy considerations. On the one hand, there are obvious dangers to permitting jury questions. One fear is that if jurors actively participate in the trial, before they have heard all the evidence they may develop biases inconsistent with “their … role as neutral factfinders.” Moreover, there is the risk that the jurors will attach inordinate weight to the witnesses’ answers to the jurors’ questions and slight the testimony elicited by the parties. On the hand, there is a strong case for allowing the jurors to pose questions. The argument runs that if the jurors realize that they can pose questions, they will be motivated to be more engaged and attentive to the witnesses’ testimony. Furthermore, there are perils to the factfinding process if, even at the close of evidence, the jurors have nagging questions that are unanswered. One possibility is that the jurors will speculate as to the answer and base a verdict on conjecture. Another possibility is that the...
- However, after the courts accepted this simple, uncontroversial practice, it was predictable that counsel would seek to carry it a step further. Suppose that even after inspecting the writing, the witness states that her memory is not revived and that she cannot testify from a refreshed recollection. But she vouches that she recognizes the writing as a memorandum she made when the facts were fresh in her mind. She adds that although she has no present memory of the facts, she remembers correctly recording the facts in the memorandum. Here the writing itself becomes the evidence. This latter situation is quite different than the process of In refreshing recollection, after reviewing the memory aid the witness testifies orally on the basis of her present refreshed memory. In contrast, when her memory is not jogged, the counsel relies on the witness’s voucher as a basis for introducing the writing. The writing is the real evidence.
- Any experienced litigator knows that at trial, the vast majority of objections relate to the issue of the form of the question rather than substantive evidence doctrines such as hearsay. Form objections can arise on either direct or cross-examination. Cross-examination can be more dramatic than direct examination, and skill in cross-examination may be more difficult to develop than the essential skill of direct examination, constructing a coherent, compelling narrative from the mouths of your own witnesses. However, the latter skill is far more important.
- Nevertheless, subject to the limitations discussed in the remainder of this section, objections to leading questions are still permissible under the modern common law and Rule 611(c) of the Federal and Revised Uniform Rules of Evidence. The first sentence of restyled Rule 611(c) announces a general norm that “[l]eading questions should not be used on direct examination….” The Advisory Committee Note underscores the choice of the verb “should” rather than “must” or “shall”; the Note emphasizes that the sentence is purposely “phrased in words of suggestion rather than command.”
- Suppose that at trial, when asked about a particular fact or event, the witness answers that she cannot remember. At least when the witness admits forgetfulness on the record, it has long been the practice that counsel may hand her a memorandum to inspect for the purpose of “refreshing her recollection.” When she speaks from a memory thus revived, her testimony is the evidence, not the writing. This is the practice of
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Chapter 8. The Scope and Effect of The Evidentiary Privileges 47 results (showing 5 best matches)
- It is a rule of law that the objection of a party to evidence as incompetent and immaterial, and insistence upon his right to have his case tried according to the rules of law, cannot be made a subject of comment in argument…. On the other hand, if evidence is material and competent except for a personal privilege of one of the parties to have it excluded under the law, his claim of the privilege may be referred to in argument and considered by the jury, as indicating his opinion that the evidence, if received, would be prejudicial to him.
- Until very recently, the heavy consensus among commentators has favored narrowing the field of privilege, and attempts have been made, largely without success, to incorporate this view into the several 20th century efforts to codify the law of evidence. The draftsmen of both the Model Code of Evidence and the 1953 Uniform Rules of Evidence favored limitations on the number and scope of privileges. The final versions of both of these codifications, however, contained the generally recognized common law and statutory privileges substantially unimpaired.
- The California Code of Evidence, one of the few modern codifications to address the question, is clear-cut. It provides: “A party may predicate error on a ruling disallowing a claim of privilege only if he is the holder of the privilege, except that a party may predicate error on a ruling disallowing a claim of privilege by his spouse….”
- Under traditional choice of law doctrine all rules of evidence, including those of privilege, were viewed as procedural and thus appropriately supplied by the law of the forum. This approach naturally tended to suppress any consideration of the differences in purpose clearly existing between rules of exclusion and preference on the one hand, and rules of privilege on the other.
- The failure of Congress to enact specific rules of privilege left the Federal Rules of Evidence with a large gap when viewed as a potential model code for possible adoption by the states. Therefore, in promulgating the Revised Uniform Rules of Evidence (1974), based almost entirely on the Federal Rules, the National Conference of Commissioners on Uniform State Laws included specific rules of privilege. These rules were substantially the same rules submitted to Congress, but contained some notable changes. Some states adopting rules or codes based upon the Federal Rules have adopted the proposed Federal Rules concerning privilege, others have adopted the 1974 Uniform Rules on this subject, and some have retained their antecedent rules of privilege.
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Chapter 35. Judicial Notice 53 results (showing 5 best matches)
- A similar problem would arise were evidence introduced for and against the existence of a real threat posed by deep chisel plowing and one or more of the jurors shared their unique experience with the practice with the rest of the panel. Jurors do not think evidence; jurors think about the evidence, and to think at all requires a person to draw upon his or her experience. Still, it has been held improper to invite jurors with personal experience on farms to share it with their fellows in a case which turned on the question whether an insured horse had indeed been killed by a lightning bolt. It has been held appropriate, however, to invite jurors with personal experience in and about saw mills to share their insights in a personal injury case arising out of an accident at a saw mill.
- Federal Rule of Evidence 201 only applies to adjudicative facts, which might suggest that legislative facts simply cannot be fitted into the concept of judicial notice. If they cannot, legislative facts would have to come into the judicial process in the form of “evidence.” A problem would then arise if a trial court had to decide the question of law whether it was constitutional totally to exclude from a bifurcated jury in a capital case persons opposed to the death penalty. After hearing testimony and accepting documentary material, the court might conclude on the basis of available social science materials that either death disqualification produced conviction prone juries or it did not. The court might bottom its decision of the constitutional issue on this “finding of fact.” If the social science materials were not clearly inclined to sustain only one conclusion, and the ruling were treated as a factual ruling, the ruling, whichever way it came out, could not be reversed...
- We are met here with a paradigm shift with regard to the proper subject under which to catalog scientific evidence. Federal practice had been bottomed on the notion of the general acceptance standard. adopted a standard based upon a fourfold consideration of falsifiability, peer review, error rates and “acceptability” in the scientific community. The rule made trial judges gatekeepers who “must insure that any and all scientific evidence admitted is not only relevant, but reliable.” The same holds true in states that since have followed the federal change. The critical point is that the Supreme Court based the change upon the then new Federal Rules of Evidence which, it was said, nowhere incorporated the general acceptance theory so that the question was one of relevancy as defined in Rules 402 and 702. Thus the whole subject of scientific evidence in jurisdictions may more properly be treated under the mantra of relevancy/expert evidence rather than judicial notice.
- Agreement is not to be had whether the perimeters of the doctrine of judicial notice enclose only facts which are indisputably true or encompass also facts more than likely true. If, on the one hand, the function of the jury is to resolve disputed questions of fact, an argument can be made that judges should not purport to make decisions about facts unless they are indisputable facts. If this argument is accepted, it follows that once a fact has been judicially noticed, evidence contradicting the truth of the fact is inadmissible because by its very nature, a fact capable of being judicially noticed is an indisputable fact which the jury must be instructed to accept as true. If, on the other hand, the function of judicial notice is to expedite the trial of cases, an argument can be made that judges should dispense with the need for time-consuming formal evidence when the fact in question is likely true. If this argument is accepted, it follows that evidence contradicting the...
- The question who did what to whom when, where and in what state of mind implicates another set of considerations. The concrete human actions or inactions which precipitate lawsuits are water over the dam, history as it were. Reflection may suggest that history is actually a current event, because history is our present best judgment as to what happened in the past. Past events cannot be reconstituted; only a facsimile of them can be constructed in the mind’s eye on the basis of the evidence presently available. In a courtroom the evidence available is a factor of the rules of evidence and the cleverness as well as industry of the opposing counsel.
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Chapter 24. The Hearsay Rule 99 results (showing 5 best matches)
- On the other hand, evidence of reputation is hearsay when offered to prove the truth of the fact reputed and hence depends for its value on the veracity of the collective asserters. It should be excluded when it fits within no exception. However, several hearsay exceptions have been recognized for reputation as to character and certain other issues.
- When a suit is brought for breach of a written contract, no one would think to object that a writing offered as evidence of the contract is hearsay. Similarly, proof of oral utterances by the parties in a contract suit constituting the offer and acceptance which brought the contract into being are not evidence of assertions offered testimonially but rather verbal conduct to which the law attaches duties and liabilities. Other obvious instances are evidence of the utterance by the defendant of words relied on as constituting a slander or deceit for which damages are sought. Additional cases illustrating the principle are described in the footnote.
- Reputation is a composite description of what the people in a community have said and are saying about a matter. A witness who testifies to reputation testifies to a generalized version of a series of out-of-court statements. Whether reputation is hearsay depends on the same tests applied to evidence of other out-of-court statements and sometimes may not be hearsay at all. Thus, in an action for defamation where an element of damages is injury to the plaintiff’s reputation, evidence that the plaintiff’s reputation was bad before the slander is not hearsay when presented regarding damages. Proof of reputation in the community offered as evidence that some person there had knowledge of the reputed facts is similarly not hearsay.
- If one of the letters had said, “Marsden, you are competent to make a will,” it would clearly fall within the definition of hearsay as an out-of-court assertion offered to prove the truth of the matter asserted, but that was not the case. The letters, though assertive in form, were not offered to prove the truth of what was asserted. The letter from the cousin describing conditions found on his voyage to America, for example, was not offered as evidence of conditions in America but as evidence that the writer believed Marsden to be of reasonable intelligence, from which belief competency might be inferred. Under these conditions, should the evidence be treated as hearsay?
- The witness who has told one story earlier and another at trial has invited a searching examination of credibility through cross-examination and re-examination. The reasons for the change, whether forgetfulness, carelessness, pity, terror, or greed, may be explored by the adversaries in the presence of the trier of fact, under oath, casting light on which is the true story and which the false. Certainly, evidence of a prior inconsistent statement, when declarant is on the stand to explain it if he or she can, has the major safeguards of examined testimony. The rule admits the inconsistent statement as substantive evidence, which avoids use of a limiting instruction that the jury may have difficulty fully following.
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Chapter 30. Public Records, Reports, and Certificates 16 results (showing 5 best matches)
- Other arguments against admissibility of prior judgments relate to the danger of undue prejudice and the need for orderly administration of trials. Also juries may have difficulty grasping the distinction between a prior judgment offered as evidence and one that is conclusive, giving the judgment binding effect even if this is contrary to substantive law. A final argument is that if prior judgments are admissible parties offering them will rely heavily on them and not introduce significant other evidence with the result that the evidence available in the second case does not support a reliable decision. These arguments and the absence of a specific rule authorizing
- Restrictions on use by prosecution in criminal cases.
- is generally consistent with these trends and has a number of significant features. First, only criminal judgments of conviction are included. Judgments in civil cases are not included, their effect being left to the law of res judicata or preclusion. Second, it covers only serious crimes, i.e., punishable by death or imprisonment for more than one year, thus eliminating problems associated with convictions of lesser crimes. Third, the rule does not apply to judgments of acquittal. Fourth, when offered by the government in criminal prosecutions, judgments of conviction of persons other than the accused are admissible only for purposes of impeachment. When the judgment of conviction is offered in a civil case, however, it is treated as are investigative reports generally, and there is no restriction as to the parties against whom the evidence is admissible. Fifth, judgments entered on pleas of nolo contendere are not included within the exception. ...the evidence may be...
- By contrast, most courts admitted a prior conviction for a serious criminal offense in a subsequent civil action even before codification of a rule of evidence. With serious offenses, the party against whom the judgment is offered was generally the defendant in the criminal case and therefore had, not only the opportunity, but also the motive to defend fully. In addition, because of a heavier burden of proof, a criminal judgment requires significantly more reliable evidence than a judgment in a civil case. The trend was most obvious when the judgment was offered in a subsequent civil case in which the convicted defendant sought to benefit from his criminal offense—for example, a convicted arsonist sues to recover upon his fire insurance policy. The strong desire to prevent this result undoubtedly influenced courts to admit the judgment of conviction, and some courts also held it was conclusive in the civil case. Courts soon moved to a general admissibility of a prior criminal...
- Judgment of a Previous Conviction. Evidence of a final judgment of conviction if:
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Chapter 29. Regularly Kept Records 28 results (showing 5 best matches)
- By the 1600s in England, a custom emerged in the common law courts of receiving the “shop books” of tradesmen and craftsmen as evidence of debts for goods sold or services rendered on open accounts. Since most tradesmen were their own bookkeepers, the rule permitted a reasonable means of avoiding the harsh common law rule preventing a party from appearing as its own witness. Nevertheless, theoretical objections to the self-serving nature of this evidence, apparently coupled with abuse of it in practice, led to a statutory curb in 1609 that limited the use of a party’s shopbooks to a period of one year after the debt was created unless a bill of debt was given or the transaction was between merchants and tradesmen. The higher courts refused to recognize the books at all after the year had elapsed, although in practice such evidence was received in the lower courts with small claims jurisdiction.
- Regularly kept records may be offered in evidence in many different situations, although in most the record is offered as evidence of the truth of its terms. In such cases the evidence is hearsay, and some exception to the hearsay rule must be used if the record is to be admitted. Often no special exception is needed, however, as the record comes within the terms of another exception. For example, if the record was made by a party to the suit, it is admissible against that party as an admission.
- Most business records are now processed by computers. Although some commentators initially argued that evidence rules should be amended to add a rule specifically governing computer-generated evidence, this suggestion was not followed. Instead, Federal Rule 803(6) originally applied to a “data compilation, in any form,” terminology intended to include records stored in computers, and courts and legislatures have judged the admissibility of such records by the hearsay exception for regularly kept records. The rule now simply uses the term “record,” and courts have dealt competently with the admissibility of such evidence by applying Rule 803(6) or its common law or statutory counterparts fluidly to computer records as they became the norm.
- Given that Federal Rule 803(6) specifically includes opinions or diagnoses, this historical distinction based on whether the opinion is objective or conjectural does not appear to survive, at least directly. However, admissibility of all such entries is not assured. First, where indications of lack of trustworthiness are shown, which may result from a lack of expert qualifications or from a lack of factual support, exclusion is warranted. Moreover, inclusion of opinions or diagnoses within the rule only removes the bar of hearsay. In the absence of the availability of the expert for explanation and cross-examination, the court may conclude that the probative value of this evidence is outweighed by the danger that the jury will be misled or confused. ...in the case, such as causation. Under these circumstances, a court operating under the Federal Rules, like earlier courts, is likely to be reluctant to permit a verdict to be reached on the basis of an un-cross-examined opinion and...
- Direct proof that the maker of the statement had actual knowledge may be difficult, and proving specifically the identity of the informant with actual knowledge may be impossible. Evidence that it was someone’s business duty in the organization’s routine to observe the matter will be prima facie sufficient to establish actual knowledge. This principle does not dispense with the need for personal knowledge, but permits it to be proved by evidence of a routine practice and a reasonable assumption that such practice was followed with regard to a particular matter, or by other appropriate circumstances.
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Chapter 10. The Client’s Privilege: Communications Between Client & Lawyer 58 results (showing 5 best matches)
- discussing a witness’ use of a writing to refresh his recollection for purposes of testifying, it was pointed out that, under both common law and Federal Evidence Rule 612, if a witness consulted a writing to refresh his recollection while testifying, opposing counsel is entitled to inspect it, to cross-examine the witness upon it, and to introduce in evidence portions that relate to the testimony of the witness. It was further pointed out that if the document were privileged, e.g. an attorney-client communication, such act of consultation would effect a waiver of the privilege. ...witness prior to testifying. At common law, authority generally was against requiring disclosure of writings consulted prior to testifying, and under that view the problem of waiver of privilege does not arise. However, an increasing number of cases have allowed disclosure, and Federal Evidence Rule 612 gives the trial judge discretion to order disclosure. Should this discretionary power of the judge...
- here where the only sanction proposed is that of opening the door to evidence concededly relevant upon the issue on trial. There further seems no apparent reason why the exception should not be applied equally to the work product privilege.
- House Comm. on Judiciary, Fed.Rules of Evidence, H.R. Rep. No. 650, 93d Cong., 1st Sess., p. 13 (1973).
- This result has traditionally been justified on the ground that once the confidence protected by the privilege is breached the privilege has no valid continuing office to perform. It should be noted, however, that the same result may here be supported by the distinguishable consideration that to allow a subsequent claim of the privilege would unfairly disadvantage the opponent who has reasonably assumed that the evidence would be available. The same reasons seem to apply where the waiver was publicly made upon the trial of one case, and the privilege later sought to be asserted on the hearing of another case.
- A rule regulating the competency of evidence or of witnesses—a so-called “exclusionary” rule—is normally founded on the policy of safeguarding the fact-finding process against error, and it is assertable by the party against whom the evidence is offered. The earmarks of a privilege, as we have seen, are first, that it is not designed to protect the fact-finding process but is intended to protect some “outside” interest, other than the ascertainment of truth at the trial, and second, that it cannot be asserted by the adverse party as such, but only by the person whose interest the particular rule of privilege is intended to safeguard. party to a suit, or to people generally, will be to suppress relevant evidence without promoting the purpose of the privilege.
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Chapter 12. Privileges for Governmental Secrets 21 results (showing 5 best matches)
- The foregoing considerations largely explain why privileges running in favor of government, other than that for military and diplomatic secrets, are uniformly held to be qualified. Thus, where these privileges are claimed, the judge must determine whether the interest in governmental secrecy is outweighed in the particular case by the litigant’s interest in obtaining the evidence. Striking a satisfactory balance will, on the one hand, require consideration of the interests giving rise to the privilege and an assessment of the extent to which disclosure will realistically impair those interests. On the other hand, factors which will affect the litigant’s need include the significance of the evidence sought for the case, the availability of the desired information from other sources, and the nature of the right being asserted in the litigation. Here, as with other qualified privileges, in camera inspection by the court offers a practical way for testing the claim of privilege without...
- The question of privilege for government agency deliberations has arisen relatively infrequently in the context of state government. Many of the states enacting FOIA statutes have included exemption provisions protecting policy development materials from mandatory disclosure. Where the question of a true evidentiary privilege has arisen, i.e., where the material is sought for introduction into evidence rather than simply as information, a majority of the cases have upheld the existence of a qualified privilege on the federal model. The root of the privilege on the state level has almost invariably been said to be the doctrine of separation of powers.
- When the government is not a party and successfully resists disclosure sought by a party, the result is generally that the evidence is unavailable, as, for example, if a witness died, and the case will proceed accordingly, with no consequences save those resulting from the loss of the evidence. This approach to dealing with the impact of governmental privilege upon litigation between third parties causes no insuperable ...interests has been made, or where an absolute privilege is involved and the privileged matter does not bear critically on the central issues of the case. The approach may be inappropriate, however, where the invocation of the absolute privilege, such as for military secrets, makes impossible any approximation of a full presentation of the issues. Whether dismissal of the case is warranted where the sovereign has rendered its courts incapable of fairly trying the issues, dismissal has been granted at the behest of the government where continued litigation by...
- FOIA itself does not address the question of evidentiary admissibility, and thus cannot be said to be a statutory enactment of the privileges in question. At the same time, it is obvious that the two are critically interrelated and that the exemption provisions mark the outermost limits of the privileges. It would be anomalous in the extreme to deny evidentiary admission on grounds of confidentiality to material available on request to even the casually interested. However, the converse is not necessarily true, and the evidentiary privileges may reasonably protect than the total sum of information denied the general public under the FOIA exceptions. Such a differentiation is justifiable on the ground that the litigant’s interest in access to evidence will sometimes be stronger than the ordinary citizen’s interest in obtaining
- As the plaintiff in a civil action, the government is subject to the ordinary rules of discovery, and may face dismissal of its action if through the invocation of privilege it deprives the defendant of evidence useful to the defense. There would, however, seem to be no reason why the government, as distinguished from other litigants, should necessarily face dismissal for failure to provide discovery under all circumstances. Only where the governmental claim of privilege shields evidence of such importance as to deny the defendant due process should dismissal automatically result.
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Table of Contents 63 results (showing 5 best matches)
- § 37 Prior Inconsistent Statements: Requirement of Preliminary Questions on Cross-Examination as “Foundation” for Proof by Extrinsic Evidence
- § 58 Admissibility of Evidence Dependent on Proof of Other Facts: “Connecting Up”
- § 174 Use of Illegally Obtained Evidence in Criminal Proceedings on Matters Other Than Guilt
- § 195 Habit and Custom as Evidence of Conduct on a Particular Occasion
- § 36 Prior Inconsistent Statements: Extrinsic Evidence and Previous Statements as Substantive Evidence of the Facts Stated
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Chapter 9. The Privilege for Marital Communications 10 results (showing 5 best matches)
- The movement for procedural reform in England in the first half of the 1800s found expression in the evidence field in agitation for the breakup of the system of disqualification of parties and spouses. One of the auxiliary reasons that had been given to justify the disqualification of spouses was that of preserving marital confidences. As to the disqualification of spouses the reform was largely accomplished by the Evidence Amendment Act, 1853. On the eve of this legislation, Greenleaf, writing in this country in 1842, clearly announced the existence of a distinct privilege for marital communications, and this pronouncement was echoed in England by Best in 1849, though seemingly there was little or no support for such a view in the English decisions. Moreover, the Second Report of 1853 of the Commissioners on Common Law Procedure, after rejecting the arguments for the outmoded rules of disqualification, calls attention to the special danger of “alarm and unhappiness occasioned to...
- In addition to the vitality that it has displayed in the courts, the rule discussed here has been viewed by some legal commentators as the most defensible of the various forms of marital privilege. However, Federal Rule of Evid. 505 as approved by the Supreme Court but deleted by the Congress, recognized no privilege for confidential communications between spouses, limiting the privilege to that of an accused in a criminal proceeding to prevent his spouse from testifying against him. The marital privilege under the Revised Uniform Rules, limited under the 1974 version of those rules to a privilege of the accused to prevent disclosure of confidential communications, was subsequently broadened by amendment of Uniform Rule of Evidence 504. The revised rule recognizes a privilege on the part of a spouse to refuse to testify against an accused spouse in a criminal proceeding1 ...and civil cases. Under Federal Rule of Evidence 501, as adopted by Congress, the federal courts have...
- Such rulings are perhaps best sustained on the view that, since the privilege has as its only effect the suppression of relevant evidence, its scope should be confined as narrowly as is consistent with reasonable protection of marital communications. In this view, it seems, since the communicating spouse can ordinarily take effective precautions against overhearing, he should bear the risk of a failure to use such precautions. Moreover, if he sends a messenger with a letter, he should ordinarily assume the risk that the chosen emissary may lose or misdeliver the message. The rationale that the spouses may ordinarily take effective measures to communicate confidentially tends to break down where one or both are incarcerated. However, communications in the jailhouse are frequently held not privileged, often on the theory that no confidentiality was or could have been expected.
- As has been observed elsewhere, the development of sophisticated eavesdropping techniques has led to curbs upon their use and upon the admissibility of evidence
- was cited as an example of an instance of hardship. There, the plaintiff sued a widow and alleged that her deceased husband had made an oral secret trust, known to the widow, for the benefit of plaintiff, and sought to interrogate the widow. The widow relied on section 3 of the Evidence Amendment Act, 1853, as follows: “… no wife shall be compellable to disclose any communication made to her during the marriage.” The court rejected the Greenleaf theory of a common law privilege for communications surviving the end of the marriage, and was “unable to find any warrant for extending the words of the section by construction so as to include widowers and widows and divorced persons.” The earlier versions of this text then stated: “However debatable may be the court’s position that there was no common
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Chapter 4. Cross-Examination and Subsequent Examinations 68 results (showing 5 best matches)
- The majority of the states agree that the cross-examination is limited to the matters testified to on the direct examination. The Federal Rules of Evidence adopt this approach. While all these jurisdictions purport to embrace the restrictive rule, they differ markedly in the rigor with which they enforce the rule:
- However, when she is performing the first function of attacking the credibility of the direct testimony, the cross-examiner’s purpose is radically different than in pursuit of the other two functions. In the first function, the cross-examiner is not directly targeting the historical merits of the case. Here the common law test of relevancy is not whether the answer sought will shed light on any issue on the merits, but rather whether it aids the trier of fact in appraising the witness’s credibility and assessing the probative value of the witness’s direct testimony. In general the common law principles stated in this section also obtain under Federal Rule of Evidence and Revised Uniform Rule of Evidence 611(b). The restyled Federal Rule explicitly authorizes cross-examination about “matters affecting the witness’s credibility.” At common law and in modern federal practice there are many recognized lines of questioning for this purpose, none of which has any direct relevance to the...
- of cross-examination upon particular topics. However, the complete denial of cross-examination or its arbitrary curtailment on a proper, important subject of cross-examination is ground for reversal. In decisions such as the Supreme Court has emphasized that evidence of a witness’s bias can have significant probative value on the question of a witness’s credibility. When a trial judge forecloses or severely limits cross-examination about a prosecution witness’s bias, the trial judge is flirting with reversal on appeal.
- As previously stated, the Federal Rules codify a version of the restrictive approach. Federal Rule of Evidence 611(b) refers to “the subject matter of the direct examination.” That statutory language should be interpreted as endorsing the broader, more liberal views described above. That interpretation is consistent with the provision in Rule 611(b) that the court may permit inquiry into additional matters as if on direct. As a practical matter, many federal trial judges apply the so-called legal test. This test equates “the subject matter of the direct” with the essential elements of the cause of action, crime, or defense mentioned on direct. At the end of the trial, the judge gives the jury substantive law instructions on the pertinent causes of action, crimes, and defenses. These instructions list the essential legal elements which the burdened party must prove to prevail on that theory. One of the essential elements of a true crime is a ...that on direct examination, a... ...on...
- Most contemporary commentators have a less romantic and more realistic view of the importance of cross-examination. To the modern advocate, cross-examination is more important as a means of gleaning additional facts on the merits to support the cross-examiner’s theory of the case; in the real world—as opposed to movies—the cross-examiner rarely destroys the credibility of an opposing witness. It is true that cross-examination of experts is critical in many cases. Federal Rule of Evidence 705 makes the opportunity to cross-examine particularly important when, as the rule permits, on direct examination an expert states only her opinion and the theoretical reasons for the opinion. In that situation, Rule 705 places the burden on the cross-examiner to explore the facts or data about the specific case on which the opinion is based. However, even in this context, the focus is ordinarily on the validity of the expert’s reasoning process rather than the expert witness’s personal credibility...
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Chapter 32. Dying Declarations 14 results (showing 5 best matches)
- Other principles of evidence law present recurrent problems in their application to dying declarations. If the declarant did not have adequate opportunity to observe the facts recounted, the declaration will be rejected for lack of firsthand knowledge. When there is room for doubt as to whether the statement is based on knowledge, the question is for the jury. Expressions of suspicion or conjecture are to be excluded, however.
- Another problem is the application of the so-called best evidence rule. What if the witness who heard the oral statement, which was taken down and signed, offers to testify to what he or she heard? Wigmore argued that the execution of the writing does not call into play the parol evidence rule since that rule is limited to contracts and other “legal acts.” To a limited degree, some courts ruled otherwise. They did not exclude evidence of other oral statements made on the same occasion which were not embraced in the writing, but oral declarations embodied in a writing signed or adopted by the deceased were provable only by producing the written statement, if available. The result might be justified by the need for accuracy in transmitting to the tribunal the exact terms of this very important statement. However, these restriction do not have a justification in modern evidence rules, and whether such limitations continue in any jurisdiction is unclear.
- In a remarkably forward-looking decision involving an action by the executor of the seller to recover on a land sale contract, the Kansas Supreme Court was confronted with a dying statement of the seller of “the truth about the sale.” Admission required departure from traditional common law limitations in that the case was civil, not a criminal homicide prosecution, and the statement did not relate to the cause or circumstances of death. In admitting the evidence, the court stated: “We are confronted with a restrictive rule of evidence commendable only for its age, its respectability resting solely upon a habit of judicial recognition, formed without reason, and continued without justification.”
- While there may be merit in a standardized practice of giving cautionary instructions, the direction to give the declaration a predetermined fixed weight seems of questionable wisdom. The weight of particular dying declarations depends upon so many factors varying from case to case that no standardized instruction will fit all situations. Certainly in jurisdictions where the judge retains common law power to comment on the weight of the evidence, the dying declaration is an appropriate subject for individualized comment. But where the judge lacks this power, as in most states, the wiser practice is to leave the weight of the declaration to the arguments of counsel, the judgment of the jury, and the consideration of the judge on motion for new trial.
- The description of the declarant’s mental state in Federal Rule 804(b)(2) is less emphatic than in the common law cases, merely saying “while believing that declarant’s death to be imminent.” Evidence that would satisfy the common law would clearly satisfy the rule, and a growing number of courts have recognized that a lesser showing will suffice.
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Index 222 results (showing 5 best matches)
Chapter 22. Authentication 52 results (showing 5 best matches)
- In addition, there are certain kinds of writings that are said to “prove themselves” or to be “self-authenticating” on the ground that they are so likely to be authentic that the proffering party does not need to offer any extrinsic evidence of authenticity. Such writings are the subject of § 229.1 which follows.
- In the everyday affairs of business and social life, it is customary simply to look at the writing itself for evidence as to its source. If the writing bears a signature purporting to be that of X, or recites that it was made by X, we assume, nothing to the contrary appearing, that it is exactly what it purports to be, the work of X. At this point, however, the law of evidence has long differed from the common sense assumption upon which we conduct our own affairs. Instead it adopts the position that the purported signature or recital of authorship on the face of a writing is not sufficient proof of authenticity to secure the admission of the writing into evidence. The same attitude has traditionally extended as well to the authority of agents, with the result that if an instrument recites that it is signed by A as agent for P, not only must additional proof be given that A actually did the signing, but also of the fact that A was P’s agent and authorized to sign.
- Social Network Postings: Profile Page, Photographs and Tags. Postings on the owner’s “wall” of a social network page can be made by the page owner, and by groups that the owner selects, such as regional networks, people at the same school, and people identified as “friends.” Such postings do not require a unique user name and password. Thus personal information can be added to a member’s profile; photos, photo albums and videos can be posted on the member’s “wall”; and identifications of persons in photographs—known as “tags”—can be made on an owner’s own page or on the pages of friends In one of the important cases dealing with the authentication of such posts, at issue was a threatening message posted on the purported MySpace page of defendant’s girl friend. The prosecution sought to use this message against defendant to prove that his girl friend had made the posted threat against a State witness. The Court of Appeals of Maryland was concerned that the page may not have been...
- A self-authenticating writing, once tendered to the court, will be accepted in evidence for what it purports to be, without the shepherding angel of an authenticating witness. Statutes have often provided that certain classes of writings shall be received in evidence “without further proof.” These are writings that are often, in some manner, vouched for on their face by an official. This helpful attribute has most commonly been given by statute to (1) deeds, conveyances or other instruments, which have been acknowledged by the signers before a notary public, (2) certified copies of public records, and (3) books of statutes which purport to be printed by public authority.
- Again, it must be emphasized that authentication does not secure admissibility of electronic documents into evidence. As with more traditional forms of written evidence, if the electronic or computer-generated writing is used to prove the truth of its contents, the hearsay rule must be satisfied. In addition, the “best evidence” requirement to produce the original document or its authorized substitute may apply. See Chapter 23 infra.
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Chapter 11. The Privilege for Confidential Information Secured in the Course of the Physician-Patient Relationship 26 results (showing 5 best matches)
- A more tenable argument, however, has been increasingly advanced in recent years. This view holds that the privilege should not be viewed as operating to inspire the making of medical confidences but rather as protecting such confidences once made. The legitimate interest in the privacy of the physician-patient relationship should not be subject to casual breach by every litigant in single-minded pursuit of the last scrap of evidence which may marginally contribute to victory in litigation. Arguably the privilege does, at least on occasion, operate to prevent such unwarranted intrusions. The issue is whether the value of such protection is sufficiently great to justify both the suppression of critical evidence in other cases and the costs of administering a highly complex rule.
- How far does the patient’s testifying waive the privilege? Doubtless, if the patient on direct examination testifies to, or adduces other evidence of, the communications exchanged or the information furnished to the doctor consulted this would waive in respect to such consultations. When, however, the patient in his or her direct testimony does not reveal any privileged matter respecting the consultation, but testifies only to physical or mental condition, existing at the time of such consultation, then one view is that, “where the patient tenders to the jury the issue as to his physical condition, it must in fairness and justice be held that he has himself waived the obligation of secrecy.” ...obstructive, but there are a number of courts that hold that the patient’s testimony as to his or her condition without disclosure of privileged matter is not a waiver. If the patient reveals privileged matter on cross-examination, without claiming the privilege, this is usually held not to be...
- Subsequent decisions of lower federal and state courts evidence considerable disagreement concerning the nature and scope, and even the existence, of the constitutionally based right intimated to exist in . A majority of the cases considering the point have involved information conveyed during psychotherapeutic treatment, a context in which the traditional utilitarian justification has been urged to possess particular validity. Nevertheless, even cases of the latter sort have generally been resolved on the particular facts against the claimant of privilege, and it would appear clear that any constitutional right to privacy in medical information is a highly qualified one. In any event, the courts have consistently failed to refer to any protection afforded as a “privilege.”
- The uniqueness of this relationship led to the inclusion in the proposed Federal Rules of Evidence of a psychotherapist-patient privilege even though no general physician-patient privilege was proposed. The Uniform Rules of Evidence have retained this privilege, but make the rule optionally one extending to confidential communication to a physician as well as to a psychotherapist or mental health provider. In the same vein, all of the states that continue to reject a general physician-patient privilege have enacted privileges applicable to the more limited psychotherapeutic context. Most expand the privilege to cover communications to social workers.
- the rule which excludes disclosures to physicians is not a rule of incompetency of evidence serving the end of protecting the adverse party against unreliable or prejudicial testimony. It is a rule of privilege protecting the extrinsic interest of the patient and designed to promote health, not truth. It encourages free disclosure in the sickroom by preventing disclosure in the courtroom. The patient is the person to be encouraged and he is the holder of the privilege.
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Chapter 28. Records of Past Recollection 6 results (showing 5 best matches)
- Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
- Should the writing be admitted into evidence and be allowed to be taken to the jury room? Federal Rule 803(5) resolves the issue by resort to the ancient practice of reading the writing into evidence but not admitting it as an exhibit unless offered by the adverse party.
- With some refinements, this exception appears as Rule 803(5) of the Federal Rules of Evidence with no formal unavailability of the declarant specified. It reads as follows:
- The usefulness of the hearsay exception is apparent from the huge variety of items the courts have admitted into evidence under its sponsorship.
- Frequently, while examination of the writing did not revive memory, the witness recognized the writing as one that he or she had prepared and was willing to testify on the basis of the writing that the facts recited in it were true. By the 1700s, this later procedure was also accepted as proper, although the theoretical difficulty of justifying the new practice was often avoided by labeling it with the somewhat ambiguous term of “refreshing recollection,” which clearly was not strictly accurate. In the early 1800s, courts began to distinguish between the two situations and to recognize that the use of past recollection recorded was a far different matter from permitting the witness to testify from a memory refreshed by examining a writing.
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Title 8. Real Evidence, other Nontestimonial Evidence, and Demonstrative Aids Your search matches the chapter title
Chapter 31. Testimony Taken at a Former Hearing or in Another Action 25 results (showing 5 best matches)
- May objections to the former testimony, or parts thereof, which could have been asserted when it was given, be made for the first time when offered at the present trial? There are sweeping statements in some opinions that this may always be done and in others that it is never allowable. The more widely approved view, however, is that objections which go merely to the form of the testimony—as on the ground of leading questions, unresponsiveness, or opinion—must be made at the original hearing when errors can be corrected. On the other hand, objections that go to the relevancy or the competency of the evidence may be asserted for the first time when the former testimony is offered at trial.
- While the impact in civil litigation of this congressional modification is cloudy, one point is clear: when the testimony is offered against a criminal defendant, the defendant must have been a party to the former proceeding. The rule as enacted eliminates doubts under the Confrontation Clause raised by the Court’s version, which would have allowed examination by a substitute. However, by its literal terms the rule insists on identity of prosecution also, which would appear to bar a defendant in a federal prosecution from introducing exculpatory testimony from a related state case given by an unavailable witness. Exclusion of such evidence implicates due process considerations, and quite likely was not intended by Congress.
- If evidence is offered under the former testimony exception to the hearsay rule, it is offered as a substitute for testimony given in person in open court, and the strong policy favoring personal presence requires that unavailability of the witness be shown before the substitute is acceptable. If the witness is present in court and is available for cross-examination, his or her former testimony may be admitted under some circumstances as a prior statement of a witness. reasons relating to availability will generally occur only when the witness is absent from court but is not unavailable as defined by evidence rules or the Confrontation Clause. Unavailability under the hearsay rule and problems of confrontation, which are issues common to a number of hearsay exceptions, are discussed elsewhere.
- “similar motive,” had an opportunity to examine the witness. The House Judiciary Committee, however, objected to this formulation on the ground that “it is generally unfair to impose upon the party against whom the hearsay evidence is being offered responsibility for the manner in which the witness was previously handled by another party.”
- 5 Wigmore, Evidence § 1370 (Chadbourn rev. 1974).
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- have almost universally been admitted as evidence of the facts stated, and even courts that otherwise limited the admissibility of declarations of bodily condition have admitted statements made under these circumstances. Since statements made to physicians are usually made in response to questions, many are not spontaneous. Instead, their reliability is assured by the likelihood that the patient believes that the effectiveness of the treatment depends on the accuracy of the information provided to the doctor, which may be termed a “selfish treatment motivation.”
- The result also has its practical dimension. Under prior practice, contrived evidence was avoided at too great a cost and in substantial departure from the realities of medical practice. Rule 803(4) eliminates any differences in the admissibility of
- ...range of statements by children, including statements identifying a particular individual as the perpetrator of the offense. Although some states generally exclude statements that identify the perpetrator because they merely assign fault, such statements are more frequently admitted if offered under the theory that the perpetrator’s identity is pertinent to treatment of the abused child. Statements have been received when made in a number of different situations and to a rather broad array of professionals, although some courts have developed limitations where non-physicians are involved. These uses of the expanded hearsay exception challenge the wisdom of its extension to cover statements made without any treatment purpose, and a number of states have modified their rule or have restricted its application through judicial interpretation so as to require treatment motivation or other evidence of reliability. Admission of statements made exclusively for the purpose of diagnosis...
- The Federal Rule abandons these restrictions. The Advisory Committee concluded that permitting statements to be admitted as a basis for a medical expert’s opinion but not for their truth was likely to be a distinction lost on juries and rejected the limitation. The general reliance upon “subjective” facts by the medical profession and the ability of its members to evaluate the accuracy of statements made to them is considered sufficient protection against contrived symptoms. Within the medical profession, the analysis of the rule appears to be that facts reliable enough to be relied on in reaching a diagnosis have sufficient trustworthiness to satisfy hearsay concerns.
- ...exception is the treatment of statements made to a physician concerning the cause or the external source of the condition to be treated. In some cases, the special assurance of reliability—the patient’s belief that accuracy is essential to effective treatment—also applies to statements concerning the cause. Moreover, a physician who views cause as related to diagnosis and treatment might reasonably be expected to communicate this to the patient and perhaps take other steps to assure a reliable response. However, the result is different when statements as to causation enter the realm of establishing fault. Generally neither the patient nor the physician is likely to regard them as related to diagnosis or treatment. In such cases, the statements lack any assurance of reliability based on the declarant’s interest in proper treatment and should properly be excluded. “Thus a patient’s statement that he was struck by an automobile would qualify, but not his statement that the car...
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Chapter 33. Declarations Against Interest 15 results (showing 5 best matches)
- Traditionally, two main requirements have been imposed on the statement against interest exception: first, either the declaration must state facts that are against the pecuniary or proprietary interest of the declarant or the making of the declaration itself must create evidence that would harm such interests;
- The clearest example of a declaration against pecuniary interest is an acknowledgment that the declarant is indebted. Here the declaration, standing alone, is against interest on the theory that to owe a debt is against one’s financial interest. This theory is routinely followed even though it may not be applicable in particular circumstances. Less obviously an acknowledgment of receipt of money in payment of a debt owing to the declarant is also traditionally classed as against interest. Here the fact of payment itself is advantageous to the receiver, but the acknowledgment of it is regarded as against interest because it is evidence of the reduction or extinguishment of the debt. Of course, a receipt for money which the receiver is to hold for another is an acknowledgment of a debt. Similarly, a statement that one holds money in trust is against interest.
- In strictest logic, attention in cases of declarations against interest, as with other hearsay exceptions, should focus on the actual state of mind produced in the declarant by the supposed truth-inducing circumstances, and a reasonable-person standard should not be the focus of attention. That, of course, is not the case. The usual standard is that found in Federal Evidence Rule 804(b)(3)(A): “a reasonable person in the declarant’s position would have made only if the person believed it to be true.” Difficulties of proof, probabilities, and the unavailability of the declarant all favor the accepted standard. However, statements of a declarant disclosing his or her ostensible actual mental state should certainly be received and should control in an appropriate case.
- 5 Wigmore, Evidence § 1477, at 359 (Chadbourn rev. 1974).
- As amended December 2010, Rule 804(b)(3)(B) requires corroboration to all statements against penal interest that inculpate the speaker and are offered into evidence in criminal litigation whether the statement exculpates or inculpates the defendant. The final sentence of the amended Rule 804(b)(3)(B) states: “A statement tending to expose the declarant to criminal liability and offered in a criminal case is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement.” The Advisory Committee’s Note explains: “A unitary approach to declarations against penal interest assures both the prosecution and the accused that the Rule will not be abused and that only reliable hearsay statements will be admitted under the exception.”
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- Publication Date: March 3rd, 2014
- ISBN: 9780314290250
- Subject: Evidence
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: This single-volume treatise is largely free of citations to authority, but retains the most notable footnotes. Topics covered include preparing and presenting evidence, cross-examination, and the procedure for admitting and excluding evidence. Discusses privilege against self-incrimination, privilege concerning improperly obtained evidence, scientific evidence, and demonstrative evidence. Reviews authentication, the hearsay rule, burdens of proof, and presumptions. Text also identifies current issues.