Law School Legends Audio on Evidence
Author:
Simmons, Ric
Edition:
1st
Copyright Date:
2019
/
40 tracks
have results for law school legends
- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University Law School. Today, we're gonna talk about expert testimonies, specifically the admissibility of expert testimony and how to qualify a witness as an expert.
- For example, in the Daubert Case itself, after the Supreme Court decided the case, went back down to the lower courts. The lower courts noted that under the prevailing substantive law, the plaintiffs had to show that Bendectin, the drug, doubled the risk of birth defects in order to prove liability. Now, the court had decided that the epidemiology that was used by the plaintiff was reliable and did show an increase in risk of birth defects, but didn't show a doubling of birth defects. And so, the fit to the substantive law was not sufficient. Or another example might be that a expert might use perfectly reliable results to show that in certain conditions a certain drug might cause damage to the kidneys or damage to the liver, damage to lungs. But only under certain conditions and in the case at bar, the case that's being litigated, perhaps those conditions don't exist. Perhaps the plaintiff who was suing actually has a different kind of health situation, was taking a different...
- The Daubert test, basically the Daubert Case, the Supreme Court reversed direction and said the Frye test, in fact, isn't a great test for a number of reasons. One, the Frye test relies on scientists to decide what's generally accepted. But scientists have sort of a luxury and advantage that courts don't have. Science is constantly being changed, new theories being proposed, tested, discarded, but law requires a definite answer now. It can't wait for scientists to sometimes decide.
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Applying the Rules of Evidence 4 results
- Welcome to the "West Lecture Series on Evidence." I'm Rick Simmons of the Ohio State University School of Law. And today, we're gonna talk about applying the Rules of Evidence, we're gonna cover Rules 101 through 105, essentially, all of Article 1.
- And also, the rules do not apply in administrative hearings, with the exception of tax courts, which usually are required to apply the federal rules. However, as with alternative dispute resolutions, most administrative law judges in administrative hearings, will weigh evidence differently, if it's admissible than if it's not. They'll give less weight to evidence, such as hearsay, that's inadmissible under the federal rules.
- ...any other part of that writing, or any other writing that, in fairness, ought to be considered at the same time. In other words, the completing piece of evidence has to come in to explain the evidence that might otherwise be taken out of context. That completing piece of evidence must be relevant, and help explain the admitted portion. Quick example, let's say the defendant is being prosecuted for embezzling money from his company. And allegedly when he embezzled the money, acted in concert with the supervisor, Charlie Haskins. So the prosecutor might bring in part of a letter the defendant wrote to his wife where defendant writes, "I really admire Charlie. I'll do anything he asks me to do." And then shows this part of letter to the jury and says, "See, he follows Charlie Haskins' orders no matter what." Well, it turns out the next sentence in the letter, which the prosecutor didn't admit says, "Of course, I would never break the law in any way. I would never do anything Charlie...
- ...Rule 104(a) talks about when judges make decisions about whether or not evidence comes in. And the first point is, judges make all decisions based on the law, is a piece of evidence admissible or not? The judge will make that determination on her own. And make that determination, she doesn't have to follow the rules of evidence in hearing information. In other words, the judge can hear hearsay information when determining whether or not evidence is admissible, or any kind of other inadmissible evidence, except for the rules of privilege. Once again, they always apply. But otherwise, in these preliminary determinations about whether an evidence is admissible, a judge can hear anything that she needs to. And the party offering the evidence usually has the burden of proof of proving that it is admissible. Once an objection is made, then the judge has to be convinced by proponents of the evidence that the facts or such that the evidence is admissible. So that's what 104(a). 104(a)...
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University School of Law. Today we're gonna talk about character evidence, our second lecture on character evidence, when and how to admit propensity evidence. We'll cover the last part of rule 404 (a) and we'll talk about rule 405.
- So let's see how this works with an example. Let's say that we have a criminal case and we have a case where defendant's on trial for a theft of some kind. The prosecutor in prosecutor's case in chief cannot bring in any propensity evidence. It has to wait. Defendant is allowed to open the door. So defendant calls a character witness. "What's your opinion of the defendant's character?" The defense attorney asks. The witness will say, "I have known the defendant for three years as a co-worker, I believe he is an honest law-abiding individual." Perfect. That's exactly what he's supposed to be saying. He's giving opinion, reputation, evidence. But what if that character witness wants to go further and explain why he thinks that the defendant's a law-abiding person? He might say, " Well, for example, one day the foreman left the door to the office unlocked. Another coworker tried to go in and steal money, the defendant stopped him." Objection. That's not gonna be allowed. That character...
- Now on cross-examination, we just had a character witness talk about how honest and law-abiding the defendant was. The prosecutor can now ask that character evidence questions on cross-examination about specific acts. These can be specific acts that essentially impeach the character witness, negative aspects of that defendant's character. So prosecutor can ask, "Well, character witness, did you hear that last year defendant stole $150 from his grandmother?" Then the character witness has to respond, "No, I never heard that. I did hear that, but he didn't really do it. His grandmother gave him the money." He has to respond somehow, but we have now attempted to impeach that character witness.
- We'll continue the hypothetical. The defense has called a character witness talking about how honest and law-abiding the defendant is. That opens the door for the prosecutor in his rebuttal to bring in his own character witness. He can ask, "Did you know the defendant's reputation in the community?" Character witness says, "Sure. I've lived in the neighborhood for over a year. Everyone knows that the defendant, he steals whatever he can get his hands on. He always steals everything." Again, that's allowed. Negative character evidence. Once again, the character witness can't talk about specific acts that support his opinion. Only a general opinion.
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- Welcome to "The West Lecture Series on Evidence." I'm Ric Simmons of The Ohio State University Law School. Today, we're gonna talk about hearsay, our second lecture on hearsay, where we cover, "What is a statement?" And like the last lecture, we'll be covering Rules 801 and 802.
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- Welcome to the "West Lecture Series" on evidence. I'm Ric Simmons of the Ohio State University School of Law. Today, we're going to talk more about character evidence. This is our third lecture on character evidence. We're going to discuss character evidence that's used to prove something other than character. We're going to cover Rule 404(b).
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- Welcome to the West Lecture Series on evidence. I'm Ric Simmons of the Ohio State University law school. Today we're gonna talk about some of the miscellaneous 803 exceptions to the hearsay rule, and we're going to talk about rules 805 and 806, which are about double hearsay and impeaching the declarant. But first, let's focus on rule 803.
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- Welcome to the West Lecture Series on Evidence. I am Ric Simmons of the Ohio State University Law School. Today, we're gonna talk about three hearsay exceptions that cover rules 803 (1), 803 (2), and 803 (3). These are the Present Sense impression, the Excited Utterance, and the Statements of Mental, Emotional, or Physical Condition. Let's start by reviewing why we have hearsay exceptions.
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University Law School. Today, we're gonna talk about expert testimony, specifically the rules governing expert testimonies, what experts can do. And in another lecture, we'll talk about the limits and expert testimony, what experts can't do. But today, we're gonna talk about what experts can do, their superpowers. They have abilities that are beyond that of normal lay witnesses. And those abilities are covered in Rules 703 and 705.
- In other words, in medicine, doctors rely upon hearsay statements from nurses and other professionals all the time. So since that is reasonably what they do in that field of study, they can do so when they are making opinion and giving it to the jury in a court of law. Or take another example. Accident reconstruction experts. People who come on the scene and determine how an accident occurred. A car accident, for example. These individuals rely upon each other's reports all the time. And they talk to drivers in each vehicle to see what the driver said, and they make reports, give expert conclusions based on what other people have told them. So again, because they do that in their particular field, they can do that in a court of law.
- Now, unfortunately, there is no self-law on this issue. Supreme Court decided the case Williams of Illinois 2012, and one aspect to that case was whether or not an expert would be able to testify to conclusion. It was based on underlying data that was it admissible and the defendant had not had a chance to cross-examine those people who gave the expert the underlying data. Essentially, there's some justices had said, "Well, it's okay, if you give an expert opinion and a conclusion based on underlying data.
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons from the Ohio State University Law School and today, we're gonna talk about plea agreements and liability insurance, rules 410 and 411. Now, these two rules are part of our specialized rules of preclusion in Article 4. These are rules that preclude admittedly relevant evidence, but evidence that we think is going to be misleading to the jury and evidence we wanna keep out for policy reasons.
- We're gonna look at a number of factors. There's not one rule that says whether or not we have a plea bargain or confession. We're gonna look at a number of factors when a defendant is speaking to see whether or not he is actually confessing or engaging in plea bargaining. The first factor we'll look at is whether or not we have just law enforcement agents, police officers who were present, or whether or not we have a prosecutor present. If the defendant is just talking to law enforcement agents, to police officers, it's likely to be a confession because the law enforcement agents don't have the authority to engage in plea bargaining. Whereas if there's a prosecutor present it's more likely to be a plea bargain because the prosecutor can make offers. It's not always gonna be plea bargain, but it's more likely be plea bargain. Another thing there too was whether or not there is consideration offered by the defendant. There's a concept from contract law. Is the defendant offering...
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University Law School. Today we're going to talk about a number of different rules. We'll first talk about authentication, which is in Article 9, that is, Rules 901 and so on, the original writing rule, Article 10, starting with Rule 1001, and judicial notice, which is Article 2, starting with Rule 201.
- Let's assume that you graduated law school. You become a lawyer. Your friend calls you up and says, "I have a problem with my lease. My landlord made me sign this lease, and I want to get out of it. And there's problems with it. And he's saying I owe him money about this." What you probably wouldn't do is tell your friend, "Okay. Problem with a lease? Just describe that lease for me, just over the phone. Tell me what you think it says." Of course, you would never do that. The first thing you'd say to your friend would be, "Hey, get me a copy of that lease so I can look it over. I want to see the actual document itself."
- A couple of tricky parts to judicial notice. One is Rule 201 talks about that it only applies to adjudicative facts and not legislative facts. This is not too complicated a distinction. An adjudicative fact is a fact that matters to the case that's based on the facts we're trying to prove, whereas a legislative fact is a fact has to do with how a law was made. Legislative facts essentially are used when a judge is interpreting a law and making a statement about the law. Adjudicative fact is a fact that the jury has to determine, so you are telling the jury how something works. Rule 201 only applies to adjudicative facts. A judge is not restricted at all in looking at legislative facts and using those to determine what a law actually means.
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Expert Testimony - Opinions and Limitations of Experts: Rules 702 and 704 8 results (showing 5 best matches)
- Welcome to the West lecture series on evidence. I'm Ric Simmons of the Ohio State University Law School. Today we're going to talk about opinion, testimony, and specifically, the limitations that we put on experts when they testify. We know that experts have special powers to testify. They can do certain things that normal lay witnesses can't do. But the rules of evidence and the courts have put certain limits as to what experts can do. So some of these limits are found in the rules, specifically Rule 702 and Rule 704. Others we have seen from the case law. So we'll talk about those limits now.
- And the question is the fees that they are paying to these foreign governments, are they bribes or are they legitimate licensing fees? Well, this is a question of foreign law, and so it would be perfectly acceptable and reasonable for one of the parties or both parties to call an expert in say, Kenyan law or Venezuelan law to come and testify as to what the actual laws are in that country regarding the cost of doing business and legitimate payments to governments. That would help the jury understand what that law actually is and whether or not these payments are actually bribes under the definition of American law.
- The one exception is interpretations, definitions and concepts from foreign law are considered questions of fact, and therefore, they can be testified to by experts. By foreign law, I mean law of other countries because the trial judge has no particular expertise on those kinds of issues. And those are questions of fact the jury has to decide before they can apply the law the judge is going to give them. An example of this is there is a federal act that prohibits companies and individuals from paying bribes in foreign countries, and so oftentimes companies will do businesses overseas and pay certain fees and amounts of money to foreign officials and they'll be indicted by the federal government and charged with bribing foreign officials.
- Second limitation. Can experts give an opinion on a legal issue? The answer is no usually. Almost always no because legal issues are reserved exclusively for the trial judge. The trial judge is the ultimate and only determinant of what the law is in a case. So the judge and only the judge can define terms like reasonable doubt, recklessness, competence, negligence. Any legal question is up to the judge and the judge alone. The judge will charge the jury on the law at the end of the case, and the judge will not need nor allow any experts to tell the judge or the jury what these legal terms mean.
- Having said that, there are two caveats to this rule, Rule 704, which says that ultimate issues are allowed. One caveat is found in the rule, but it's kind of illusory. It's not a real limitation. But the other, which is not found in the rule which is part of common law, is very real. Let's take the illusory one first. Again, the rule is Rule 704(a) says, "An opinion is not objectionable," that is, an expert testimony is not objectionable, "just because it embraces an ultimate issue." But 704(b) unfortunately is also part of the rule. 704(b) is relatively a recent addition to the rule. It was added after the rules were promulgated. And it says that in a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition.
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- Welcome to the West Lecture Series on Evidence. I am Ric Simmons of the Ohio State University Law School. Today we're gonna talk about privileges, specifically, the psychotherapist-patient privilege, the spousal privilege, and other miscellaneous privileges. Essentially every privilege except for attorney-client privilege, which we covered in two other lecturers. Now, remember that privileges were not codified in the federal rule. So, all the privilege rules are essentially, on the federal level, common law privileges that are recognized by courts. You will find them in the rules.
- Article 5 of the rules does have, list a bunch of privileges, but Article 5 was never passed. So, you can look to Article 5 and the privileges listed there as guidance, but those are not mandatory authority, those are just rules that courts might look to. But essentially they look to what the common law says. We're gonna focus specifically on spousal privilege and psychotherapist privilege, because those are the most common kinds of privileges that are invoked by parties.
- But that's in some states. In the federal court, it's an absolute privilege, no way to pierce the privilege. However, just like with attorney-client privilege, there are a couple of important exceptions to the psychotherapist-patient privilege. First is something called the dangerous patient exception. That is, you have a patient who, during their counseling session, they say that they have violent urges and they have an imminent desire, imminent need to go cause someone harm. In those situations, some psychologists believe they have a moral duty to go warn that potential victim or notify law enforcement if they think there's an actual real danger to someone's life, or that someone's gonna get injured.
- One elegant solution that some circuit courts have done is they allow the psychiatrist...psychologist to warn the potential victim or law enforcement, but they also hold this warning does not affect the privilege at trial. In other words, even though the psychiatrist has actually already revealed these confidential communications to others, those communications are still privileged at trial. You can't get to them at trial. The other exception to the psychotherapist privilege is implied waiver by the party. That is, if the party who wants to invoke this privilege, if they themselves have put their mental condition at issue, that's an implied waiver of this privilege.
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Rape Shield Law: Rule 412 1 result
- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University Law School. Today, we're talking about the rape shield law covering Rule 412. Before we talk about Rule 412, let's talk about what the world would be like and what it was like before Rule 412 existed. Because Rule 412 is a relatively recent addition to the rules of evidence, it wasn't part of the original rules that were promulgated back in the 1970s. So before we had Rule 412, we had a very different world in the courtroom. Remember, Rule 404 covers propensity evidence and generally bars propensity evidence. It does not allow people to admit propensity evidence to prove that someone acted in accordance with that propensity, but Rule 404 make some exceptions.
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University Law School. Today, we're gonna talk about prior sexual assaults by a defendant, rules 413, 414, and 415. Let's start with Rule 413 and Rule 414 and 415 are essentially almost identical to that, but applying in different circumstances. Rule 413 is the opposite of Rule 412, the rape shield law. Rule 412, the rape shield law states that in a sexual assault case, we are generally not allowed to bring in evidence of prior sexual conduct by the alleged victim in those cases. Rule 413 flips that around and says that we are allowed to bring in evidence of prior sexual misconduct by a defendant in a sexual assault case. Specifically, it says that if a defendant is charged with sexual assault, evidence of the defendant's prior commission of any sexual assault is admissible on any matter to which it is relevant. That last phrase is important because it makes it clear that Rule 413 overrules our ban on...
- Now, having said those, the justifications, we should know that Rule 413 and its sister rules, 414 and 415, they have not caught on in many of the states. The federal rules of evidence obviously apply in all federal courts and most of the federal rules of evidence have been adopted in every single other state. So they've acted as a model to other states and Rule 412, the rape shield law that was passed after the rules are just promulgated, that is also been adopted in every single state or some version of it has. So only 10 states have adopted a rule this similar to rules 413, 414, and 415. So it is not seen the widespread acceptance that the rest the rules of evidence have. Nonetheless, it is in the federal rules of evidence, so we have to learn it and we have to know exactly how it works. We'll go through the rest of the rule.
- ...people have argued these rules are actually necessary to essentially preclude courts from making bad law. In the states that have not adopted Rule 413 and 414, those courts have generally gone out of their way to allow prior sexual misconduct under Rule 404(b). Rule 404(b) allows prior...essentially prior bad acts to come in for non-propensity purposes. For example, again, if someone were accused of breaking into a safe, you could bring in evidence they've broken into that same safe a few years ago not to show they have propensity to break in a safe sort of steal things, but it's all the specialized knowledge and ability to break in this specific safe. So what courts have done without Rule 413 and 414, they sometimes use Rule 404(b) as a way to get this in, as in to show that someone has a motive to have violent sex, or that they have a common scheme or plan to act a certain way around girls or women. And so, courts will often in the absence of 413 and 414, try and bend the 404(...
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Competency and Other Witness Requirements: Rules 601-606 6 results (showing 5 best matches)
- Welcome to the West lecture series on evidence. I'm Rick Simmons from the Ohio State University School of Law. Today we're going to talk about witness requirements, including competency and other requirements we make of witnesses before they testify in federal court under the federal rules. We'll be covering the beginning of Article 6, the first six rules: Rule 601, 602, 603, 604, 605, and 606. We're going to start with Rule 601 which is the rule on competency that essentially tells us who can testify in court. And Rule 601 is sort of a strange rule when you first look at it. It basically says everyone is competent to be a witness. It gives us a small exception. In civil cases, state law can sometimes govern the witness' competency. This is a very specific rule that really doesn't apply much anymore. Some states have dead man's statutes that limit who can testify in very, very limited cases.
- Where Rule 605 really matters is it restricts judges as far as the comments they can make about the case. Clearly, the judge can't take the stand and testify, but Rule 605 is broader than that. It also means that a judge may not make any comments about the facts of the case, including may not comment on the credibility of the witnesses. A judge must confine her comments to the law and the law alone. She's the ultimate arbiter of the law, but she can say nothing at all about the facts.
- So depending on the age of the child, you may have different capacity issues. But again, these are all going to be a common law question. You're not going to find that in Rule 601. And by the way, if you go to most states, again, you will see Rule 601 will have these capacity requirements and, for example, will say that children under the age of 10, you have to prove they have these capacities.
- By capacity, and again, these are in the common law for federal rules, by capacity requirements, we mean the capacity, the ability to testify and be effectively cross examined. And in order for a witness to have that ability, she has to have four different capacities: the capacity to narrate, to basically tell a story, the capacity to understand the importance of telling the truth in court and knowing the difference between a truth and a lie, the capacity of memory, that is, remembering the incident you're talking about, and the capacity of perception, that is, the ability to perceive the thing you're talking about.
- Rule 601 essentially says all those old legal bars to people testifying, they no longer exist. We'll see that in other parts of Article 6, some of these are allowed to impeach witnesses, such as prior convictions and having interest in the case, but they don't stop you from testifying. In other words, those considerations go to your weight, not to your admissibility as a witness. So although Rule 601 says there's no legal requirements for testifying, we still have capacity requirements. Rule 601 in the federal rules doesn't mention these capacity requirements, but the federal common law does. And almost every state Rule 601 is going to have some kind of capacity requirements.
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University Law School. Today we're going to do our second lecture on attorney-client privilege. This will talk about attorney-client privilege in the corporate context and also the work product qualified privilege. So, in the last lecture, we already talked about the basics of attorney-client privilege, who controls the privilege, who can waive the privilege and so on. Today we're gonna start by talking about attorney-client privilege in the corporate context. That is when corporations are parties, what kind of attorney-client privilege do they have? Later on, we'll talk about work product which applies to both corporations and individuals. But first, corporations and their attorney-client privilege. The first question is, do corporations get the attorney-client privilege at all?
- The question is, were these payments legitimate payments or were they bribes? And the federal government, the United States Federal Government, essentially charged Upjohn with counts of bribery. Essentially filing the United States laws by bribing other country's governments. So, the Upjohn Company had to defend itself from these charges from the federal government. Hired an attorney and the attorneys essentially sent memos to all of these corporate officers in all these different counties. And the memo basically said, "Okay. We're your attorney. We need to know everything you did with regard to these payments that you made to foreign companies." And the corporate officers, these were sort of midlevel corporate officers, they filled out these memos. They answered the question, sent it back to the counsel, to the attorney. The federal government, the United States, the opposing party then asked for these documents in discovery.
- The ramifications of Upjohn, essentially, it broadened the attorney-client privilege for corporations. And it makes sense. The purpose of the attorney-client privilege is to ensure the attorney gets all the information necessary that it needs to effectively represent the corporation. So, if you limited the attorney-client privilege to the control group and said that only communications between the control group and the attorney were privileged, then it will be impossible for the attorney to get information that it needed, that he or she or the law firm needs to represent the company because if it tried to communicate with lower level members of the corporation, that wouldn't be privileged and they'd have to turn that over to the other side.
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Presumptions: Rules 301 and 302 7 results (showing 5 best matches)
- Welcome to the West Lecture Series on evidence. I'm Ric Simmons of the Ohio State University Law School. Today we're talking about presumptions, which covers rules 301 and 302 of the Federal Rules of Evidence. Now, before we get to these specific rules, we have to talk about what a presumption actually is. As we'll see, there's four different kinds of presumptions, but all of these presumptions are essentially a way that we are guiding a jury when they're inferring one fact from another. In other words, a party presents a fact in evidence to the jury and then asks the jury to infer a fact from the fact in evidence they're giving you.
- Rule 501 for example, tells the federal courts in diversity cases to use state privilege law instead of the federal privilege law. And rule 601 says the same thing. In diversity cases, we use state law in determining witness competence instead of federal law. So rule 302 just says the same thing for presumptions. In a diversity case, we're gonna use state law for deciding presumptions, but if it's not a diversity case, we're in federal court, we use the federal law.
- Rule 302, the only other rule there, says that in a civil case, state law will govern the effect of presumption if it is a diversity type case. That is, if it's a diversity case, we'll look to the state law to decide what presumption it is. We won't use rule 301. We'll look to whatever that state usually uses. And that is consistent with other areas of the federal rules.
- So first, let's get a fact pattern to use as an example. Let's say we have a tort case. Plaintiff was injured, and they want to prove their damages, how much they had to pay because of these injuries. And so, the law says that they can recover all reasonable and necessary damages. So they have to prove what were there reasonable and necessary medical expenses. We looked at the law and law says that we'll presume that all charges made by certified hospitals are reasonable and necessary. So we have a fact in evidence that there is a charge that was made by a certified hospital, and the plaintiff wants to give this fact in evidence and have the jury infer the fact that these charges are reasonable and necessary. We have the fact in evidence and the fact that we're trying to have the jury conclude.
- There is no other evidence allowed on this point. A jury is not allowed to decide anything differently. In other words, by proving one fact, you have conclusively proven another. This essentially, if you think about it, a conclusive presumption actually shifts the substantive law, right? We start with saying, substantive law is you can only recover for reasonable and necessary expenses. And then we add a conclusive presumption that says all expenses from a certified hospital are reasonable and necessary. What does that mean? It in fact means, de facto, that you can recover for all expenses from a certified hospital, because that conclusively means that they are reasonable and necessary. So a conclusive presumption essentially changes the substantive law to say, instead of having to prove what actually says in the statute, you can prove some other fact that conclusively leads us to what you have to prove in the statute.
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- Welcome to the West Lecture Series on Evidence, I'm Ric Simmons from the Ohio State University Law School. And today, we're gonna talk about settlement negotiations and medical expenses, rules 408 and 409. Now, these two rules are part of our specialized rule of exclusion in Article 4. These are rules which prohibit relevant evidence, but we keep it out of the courtroom because we think, one, there is a Rule 403 problem, the unfair prejudice substantially outweighs the probative value, and two, we have strong policy reasons to keep this information out. We'll start with Rule 408.
- You may consider that as evidence if you think it's reliable evidence that O might not be credible when testifying for D's case but you may not consider as evidence of whether or not D is liable or the amount of the D owes P, if he is liable. It is only admissible for bias." And we see this over and over again in evidence law, what are you trying to prove? Rule 408, like Rule 407, has a rule that says that if you're admitted for a certain purpose, it's inadmissible, but for another purpose, it will be admissible. The final point to Rule 408 applies to when the statements made to settle civil cases are applicable in future criminal cases.
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- Welcome to the West lecture series on evidence. I'm Rick Simmons of the Ohio State University School of Law. Today we're going to talk about impeaching witnesses, prior statements, and religion to impeach. It's the first of three lectures on impeaching witnesses. We'll cover Rules 607, 610, and 613. First, let's talk about what we mean by impeaching a witness. This essentially means questioning a witness' credibility, trying to prove the witness was mistaken or lying at their testimony. Now, usually this happens on a cross examination, but of course, you could also impeach a witness on direct. It's unusual to impeach your own witness, but you can do so if you want to, which brings us to Rule 607.
- The third important aspect of prior inconsistent statements is what we call the Hitchcock Rule. Hitchcock Rule is a common law rule. It's not written in the 613. We do see it written in Rule 608, which we'll talk about on a different lecture, but it also applies to prior inconsistent statements. Hitchcock Rule basically says, and we'll define these terms in a second, that extrinsic evidence of prior inconsistent statements is not admissible if that prior statement relates to a collateral matter. Let's define those terms and then come back to what this rule actually says.
- Rule 613 gives us two restrictions on prior inconsistent statements being used to impeach. There's also a third restriction under the common law called the Hitchcock Rule. We'll start with the text of the rule itself. Rule 613(a) says that when you are cross examining a witness on a prior inconsistent statement, you don't have to show the witness' statement ahead of time. This again, like Rule 607, has to be understood in a historical context. In the past, it was thought to be unsportsmanlike to ambush a witness with a prior statement. In other words, you had to show the witness the statement first and then let the witness explain it. You don't have to do that anymore. If you want, you can essentially surprise this witness with that prior statement at trial. That's what 613(a) allows you to do.
- ...s seemed like an odd rule at first. It says, "Any party, including the party that called the witness, may attack the witness' credibility." The rule seems odd because it doesn't restrict anything. It basically says anyone is allowed to impeach, which is true under the federal rules. The way to understand this rule is to know the history of the federal rules of evidence. Before the rules were passed, many courts had always called the vouching rule. The vouching rule said that if you called the witness, you were not allowed to impeach them because you were vouching for their credibility, so you were telling the court, "This is a witness you can believe." And by vouching for them, you were then precluded from calling their credibility to question, which meant in the old days, under the vouching rule, you could not impeach your own witness. Rule 607 sweeps away this common law rule. It says, it makes clear anybody can impeach any witness. So if you want to impeach your own witness,...
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- Welcome to the West lecture series on evidence. I'm Ric Simmons of the Ohio State University Law School. Today we're going to talk about two hearsay exceptions, 803(6) and 803(8), which are the business record exception and the public records exception. These two are very similar, but there are some differences. Certainly, the reasoning behind them is very similar, but we'll see they apply in different circumstances. Let's start with the business record rule, formerly called the records of regularly conducted activity, but everyone calls it the business record rule. This is rule 803(6).
- Finally, subsection (a)(3) of the public records rule talk about factual findings as a result of investigation. So not just what you observe, but what you as a public officer have concluded, your findings. Once again, these are not admissible against a criminal defendant. So we can't use these in a criminal case against a criminal defendant because we worry that the public agency, probably law enforcement agency, is maybe going to exaggerate or even falsify these records or a convicted defendant.
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Lay Opinions: Rule 701 2 results
- Welcome to the West Lecture Series on evidence. I'm Rick Simmons of the Ohio State University Law School, and today we're gonna talk about lay opinions, which is Rule 701. Now, Rule 701 is found in Article 7 which mostly deals with expert witnesses and expert testimony. That is witnesses who are certified as experts and giving expert opinions based on their expertise. But Rule 701 is slightly different. It's about when lay witnesses can give opinion testimony. It explains essentially what topics are appropriate for lay witnesses to give opinion testimony and which ones require experts to come in and testify about.
- Another example, there's a relatively famous case out of the Ninth Circuit, United States v. Figueroa-Lopez. It doesn't set a new law, but it gives a good example of how courts look at lay testimony versus expert testimony. So, in this case, we had drug enforcement agents, DEA agents, and they were tracking the supposed alleged drug dealer to a location where they were going to sell drugs. And the DEA agents then took the stand later and testified about what they saw the defendants do. And they said...they gave certain opinions. One, they said that on the way to the drug deal, the defendant was engaged in counter-surveillance driving. They also said that when the defendant was talking on the phone, defendant used terms that were code words for a drug deal. They also said that once they seized the cocaine, the amount and purity of that cocaine indicated the defendant was close to the source of the cocaine.
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- Welcome to the West Lecture Series On Evidence. I'm Rick Simmons of the Ohio State University Law School. Today we're gonna talk about attorney-client privilege. This is part one of the attorney-client privilege lectures and it's gonna cover the basics of attorney-client privilege rules 502 and 503. And then the next lecture we'll talk about attorney-client privilege in a corporate context and the work product privilege. But let's start with the basics of attorney-client privilege. And the first thing to recognize when we look at attorney-client privilege is that that term can be one of two different things, only one of which we're gonna to talk about today. The attorney-client privilege applies to the testimonial privilege, which means that an attorney cannot be forced to testify about privileged information.
- ...might release a lot of documents, a lot of information and some of the documents in that release might be privileged and the attorneys that were essentially going through those documents simply didn't see there was proper information that was going out. What do we do in that situation? Well, luckily, there's actually a rule about this, a federal rule of evidence 502, one of the only two rules that actually exist for privileges. Remember most of these rules on privileges weren't actually enacted, so mostly they're based on common law. But rule 502 is a real rule and it states that if there's disclosure discovery, there are certain steps that a court should take to determine how that affects the privilege. So, if the disclosure and discoveries are intentional disclosure, then other communications are still gonna be protected. That is intentionally a party has disclosed some information, some [inaudible 00:04:54] information between or communication between the attorney and her...
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons for the Ohio State University Law School. Today we're going to talk about asking a witness questions, Rules 611, 612, 614, and 615. We're going to start with Rule 611. This is one of the most important rules in the entire Federal Rules of Evidence. It gives the judge a lot of power deciding what kind of questions attorneys can ask, specifically the form of that question, and the order in which those questions are made. Rule 611(a) talks about how the court has reasonable control over the mode in order of examining witnesses and presenting evidence. And essentially, Rule 611 is the basis for a huge number of objections that you see being made at trial.
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- Welcome to the West lecture series on evidence. I'm Ric Simmons of the Ohio State University Law School. Today we're talking about hearsay, the first lecture on hearsay, specifically on the truth of the matter asserted, covering rules 801 and 802. Now, rule 802 bars hearsay unless it meets an exception in some of the later rules, and rule 801 defines hearsay. It defines rule 801(c) as an out-of-court statement that is often an evidence to prove the truth of the matter asserted. We're gonna dig into this definition a bit in this lecture. Hearsay is a very famous topic in evidence and some think it's a very difficult topic. But it's really not that difficult. There's one leap you have to make in understanding what hearsay is, and once you make that leap, it's a relatively simple concept.
- So let's look at the distinction between these two ways of using statements with two different examples. First, we'll take the example of Max, a law student. Max is a second year law student. He's gonna be our defendant. He's accused of cheating on his corporations' exam. Now the prosecution wants to prove that he cheated on this exam and the person who has evidence that he cheated is Professor Jones who teaches corporations. Unfortunately, Professor Jones can't testify this hearing. Professor Jones saw some incriminating things that Max did but he's not available to testify. But Jane is. Jane will be our witness. She can testify about what Jones told her that Max did.
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University Law School. Today, we're going to talk about hearsay exceptions 803(4) and 803(5), statements made for medical purposes and recorded recollections. Like most hearsay exceptions, these statements are going to be admitted even though they're hearsay because we think they have an extra addition of reliability. That is they are somewhat more reliable than an average hearsay statement. Even though they are made outside of court and they're being offered for the truth of the matter asserted, we think there's reasons why we shouldn't believe these statements more than other hearsay statements.
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Hearsay Exceptions - Dying Declarations and Statements Against Interest: Rules 804(b)(2) and (3) 2 results
- Think about this in your own life, right? Think about statements you make against your own interest. If you go to your girlfriend, or your boyfriend, or your spouse, and you say, "By the way, I cheated on you last night with somebody else." Why would you say that unless it were true? You would never make that up. If you go to your law school professor and you say, "Oh, just so you know, I cheated on the final exam in your class last year." You wouldn't say that unless it were true. If you go to the bank and you tell them that you essentially lied on the application that you...when you applied for a loan, you would never say that unless it were true. So when you say a statement that is bad for your property interest, for your liability, civil criminal liability, you would never say those statements unless they were true. That's the idea.
- Welcome to the West Lecture Series on evidence. I'm Ric Simmons of the Ohio State University Law School. Today we're gonna talk about two hearsay exceptions: the dying declarations exception and statements against interest exception. These are found in Rule 804(b)(2) to 804(b)(3). And the first thing to remember when we first talk about the exceptions is they're found in Rule 804. That means that before you can use the exceptions, you have to prove the declarant is unavailable. We talked about unavailability in another lecture, but essentially, you have to prove that this declarant cannot come and take the stand, is unavailable to testify in court. If so, you can use one of these two exceptions. You can use any 804 exception if you meet the criteria of that exception. So let's start with dying declarations, Rule 804(b)(2). A very famous and colorful exception. Not sure how much it's used in real life, but you certainly hear about it a lot in bar exams and in movies and so on.
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- So let's see how this works with one more example. Let's take a civil case where the plaintiff is suing the defendant claiming the defendant hit her in the face with the pool cue. So the plaintiff calls a witness, Jones. Jones testifies during the plaintiff's case, "The defendant hit the plaintiff on the head with a pool cue." Great plaintiff's witness. On cross-examination, defense attorney has a lot of information about Jones's past. For example, defense attorney has information that Jones lied on a medical school application when she applied to medical school. She can ask this question, "Jones, is it true when you applied to medical school three years ago, you lied in the application?" But she is stuck with his answer, right? The witness, Jones, can testify, can admit to it, can deny it. Even if your defense attorney here has the application in her hand, she cannot admit that. That's extrinsic evidence.
- Welcome to the West lecture series on evidence. I'm Ric Simmons from the Ohio State University College of Law. And today, we're gonna talk about impeaching witnesses, the second lecture on this topic. Impeaching with character evidence. It's gonna cover rule 608. Now, when you impeach a witness, again, there's different ways of attacking witnesses' credibility, you can tack their clarity, their memory, their perception, but we're gonna focus on attacking witnesses' sincerity, because that's where almost all of the restrictions are in the rules of evidence. There's almost no restrictions on how you attack witnesses' clarity, memory, or perception. Almost all the special rules on attacking credibility come in with sincerity. Otherwise, it's just regulated by Rule 403. When you wanna attack sincerity, you have some specific restrictions on how to do so.
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Habit Evidence: Rule 406 1 result
- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University School of Law and today, we're talking about habit evidence which is Rule 406 of the rules of evidence. So Rule 406 seems straightforward at first. It basically says that evidence of a person's habit or evidence of an organization's routine practice is admissible and it's admissible to prove that the activity on a specific day on a particular occasion conforms with that habit. So in other words, this comes in when we want to know whether or not a person did something on a specific day or a company did something on a specific day, but we don't necessarily have any witnesses to what happened on that day. But we do know that that person has a habit of doing something a certain way every time. So even though there was no one to see what happened on that day, we can still admit the habit to prove what happened on that day. And of course, even we do have witnesses what happened on that day, we can...
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Hearsay Exceptions - Unavailability and Former Testimony Exception: Rules 804(a) and 804(b)(1) 2 results
- Welcome to the West Lecture Series on Evidence. I'm Rick Simmons, of the Ohio State University Law School. Today, we'll talk about some more hearsay exceptions. Specifically, we're gonna define unavailability for the purpose of rule 804, and talk about the first rule 804 exception, which is former testimony. So, first, let's step back and look at what we're doing. We're talking about exceptions to the hearsay rule. Hearsay being, an out of court statement being offered to prove the truth of the matter asserted, generally inadmissible. But the rules give us different categories of exceptions. And for our purposes, there's two kinds of hearsay exceptions. The first are the kind where we don't care if the declarant, the person who made the statement, is available to testify or not. Those are covered in the hearsay exemptions in rule 801(d), and they're also covered in rule 803. Those are all hearsay exceptions where we don't care if the declared is available or not.
- So the question is, to always ask, if you have one party conducting cross-examination in one trial and that trial ends, that witness becomes unavailable. And we have a second case where a similar party wants to...is suing that same defendant, the question is, can we bring in that prior testimony? Only if that prior party, opposing party, is a predecessor in interest. Do they have a similar motive to cross-examine? In the example, we gave here, sure. We have defendant who was driving a car that hit the plaintiff's car, hit the car, the passenger, driver both in that same car. Exactly the same law applies here. Exactly the same facts apply here to the same circumstance, same incident that we're talking about. So the driver's cross-examination will substitute for the passenger's cross-examination. We will have a predecessor in interest.
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- Welcome to the West Lecture series on evidence. I'm Rick Simmons of the Ohio State University Law School. Today is part two on our lecture of "Party Opponent Statements Exception to the Hearsay Rule." And this we're going to talk about rule 802d2C, D, and E. So in part one of this lecture, we discussed the exception to the hearsay rule that's based on a party opponent statement. And again, this exception is not based on reliability, it's based on the concept of a staple, that is, any statement made by an opposing party will be admissible under the hearsay rule under the theory that once you've made the statement, you can't then just turn around and say, "That's not a reliable statement. That's a statement that shouldn't come in against me." You have essentially stopped from making that claim if it's your own statement. And we know that 801d2 is a very broad rule that covers every statement made by an individual. It also covers, as we saw at 801d2B, any statement that the opposing...
- Another example, let's say that we still have Diane on trial and we have statements made by Max. Let's say that two days before this purchase went down and Max got arrested, we know Max told his brother, "Well, this lady, Diane, and I are working on a great deal. We're gonna make a lot of money by selling guns." So they call Max's brother to the stand and they say, "Hey, didn't Max say this?" He's a co-conspirator of Diane, we can use this to prove Diane is guilty. And the answer is no, not on 802d2E because this statement doesn't further the conspiracy. Max is bragging about the money he's gonna make, but when he makes the statement to his brother, that statement doesn't further the conspiracy. In other words, 802d2E basically says that you as a co-conspirator are held responsible for every statement made by your co-conspirators that furthers that conspiracy which is consistent with conspiracy law generally. Conspiracy law says that you as a co-conspirator are liable for all the...
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Privileges - Introduction: Rule 501 3 results
- Welcome to the West lecture series on evidence. I am Rick Simmons of the Ohio State University Law School. Today we're going to talk about privileges, an introduction to privileges in federal court and the federal rules of evidence. And this is gonna be the overview of how privileges work and other lectures will talk about specific privileges such as the attorney-client privilege or the marital communications privilege. But first, let's look at what privileges actually do. And this is essentially Rule 501 of the rules of evidence. And up until quite recently Rule 501 was the only rule of evidence we had for privileges. The first thing you might notice when you go to Article 5, which covers privileges is that most of those rules on privileges are not actually codified. The advisory committee did not pass these rules. So, the attorney-client privilege and spousal privilege, and so on, those were all in a section of the rules that are not actually officially rules just such a rules...
- So, essentially we have two actual official rules on privileges: Rule 501 and Rule 502. Now, Rule 502 talks about specific aspects of the attorney-client privilege. We'll talk about that in another lecture where we discuss attorney-client privilege specifically. We'll focus on Rule 501. Rule 501 basically says that the common law will govern any claim of privilege. It also says that privileges can be created by the United States Constitution or statutes. It also says at the end that in case of diversity jurisdiction, the state rules of privilege apply. So, what does that mean? Again, that means the advisory committee is not gonna codify these privileges, they're gonna leave this privilege development to the courts through constitutional interpretation or common law or through statutes the federal legislature wants to enact. But it does mean that if federal courts is sitting diversity jurisdiction, they'll apply the state rules of privilege.
- So, let's talk about what privileges do, why we have them. Privileges are unique in that they are based only on policy considerations. This is information, they're very useful to a jury, very probative, non-affiliate prejudicial but it has to be protected from disclosure no matter what. There are two kinds of privilege we see in federal law and also in most state laws, what we call the professional privileges and the personal privileges. Professional privileges are, for example, the attorney-client privilege, the psychiatrist-patient privilege, the clergy-communicant privilege. Those are privileges where we are protecting a relationship between two people, professional relationship.
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University Law School. Today, we're gonna start talking about character evidence, the first of three lectures on character evidence, and we will cover the difference between character evidence and propensity evidence. And we'll start talking about Rule 404(a). So the first thing to talk about is how we define character evidence. This is an unfortunate term that courts use, because character evidence is sort of a sloppy term. It's a very broad term and it's used by court to refer to many different kinds of evidence. And the key point to understanding how the rules deal with character evidence is to distinguish character evidence, which is a broad term, meaning a lot of different kinds of evidence, from propensity evidence, which is very specific kind of use of character evidence. Propensity evidence means we are using character evidence to prove that a person, a witness perhaps, or a criminal defendant,...
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- Welcome to the West lecture series on evidence. I'm Ric Simmons of the Ohio State University Law School. Today, we're going to talk about hearsay exception, specifically, the exceptions for the witness's prior statement. This is rule 801(d)(1). We're going to first, again, look at the overview of what hearsay is. You first have to look to whether or not you have an out-of-court statement. And then remember to always look to see whether or not that statement is being used to prove the truth of the matter asserted. If it is, it's a hearsay statement, you have to look to an exception. There are three categories of exceptions, one is found in rule 801, there's two exceptions there. And we should really think of those as exemptions, because they're essentially exempted out of the hearsay definition. But for all legal purposes, they're treated the same as any other kind of exception.
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of The Ohio State University Law School. Today, we're gonna talk about the hearsay exception for party opponent statements. This is part one of the discussion on party opponent statements. Because this is a big exception, a lot of moving parts, and it's good to split up this discussion. This exception is covered in rule 801(d)(2). 801(d)(2) has five subdivisions. We're gonna talk about 801(d)(2) (a) and (b), part two, we'll talk about 801(d)(2) (c), (d), and (e). So let's start by backing up and looking at where we are, with hearsay exceptions generally. Remember, the first job you have is to identify whether or not something is a hearsay statement. Look to whether or not this is an out-of-court statement. Look to whether or not it's being offered to prove the truth of the matter asserted, and only then will you look for hearsay exceptions. And we know there's dozens of hearsay exceptions. The one we're gonna focus on...
- When we talk about silence as adopted statement, we have to also talk about the constitutional rule under Miranda. This is one of those times when the evidentiary rules essentially commingle with the Constitutional rules and you have to know a little bit of Constitutional law, so Criminal Procedure law to know how this actually works. So the Evidentiary Rule is basic, every statement made by the opposing party is exempted from the hearsay rule but some statements are going to be inadmissible under the Miranda rule, in a criminal case, and sometimes silence will be inadmissible under the Miranda rule. And here you have to know essentially…you don't have to know a lot about the Fifth Amendment. You have to know essentially two words: custodial interrogation. The rule under Miranda under the Fifth Amendment of our Constitution is that if a criminal defendant, and it's only for criminal cases, if a criminal defendant is in custody, that is, not free to leave, the police officers will...
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- Welcome to the West Lecture Series On Evidence. I'm Ric Simmons of the Ohio State University Law School. And today we're going to talk about the Confrontation Clause and the case Crawford v. Washington, which is the seminal case in which the Supreme Court interpreted the Confrontation Clause. Now, the Confrontation Clause is generally considered in conjunction with the hearsay rules. So, you should probably listen to all the hearsay lectures before you come to the Confrontation Clause. This is something that is best understood after you've understood all of the hearsay rules and hearsay exceptions. And that's because the Confrontation Clause essentially covers a lot of the same ground as the hearsay rules. Both the hearsay rules and Confrontation Clause have to do with restrictions on when you can admit out of court statements for the truth of the matter asserted.
- Business records almost are never going to be testimonial because by definition, these are statements made for the business purposes. In fact, the business record exception has a provision saying that if the statements are made for a non-business purpose, for example, for the purpose of litigation, then they won't count as business records. So, if it is a business record, if not made for the purpose litigation it's made for the purpose of the business and it won't be testimonial. Statements made for medical treatment or diagnosis, generally will be testimonial. Theyre being made for the purpose of treatment or diagnosis, not for future use at trial. There are, however two specific instances where it's challenging to determine whether or not a statement is testimonial. That is whether or not the declarant made that statement believing it will be used at a future trial. One is when a declarant makes a statement to law enforcement personnel in an emergency situation.
- ...example, a 911 call. Those are generally excited utterances so we think they're not testimonial, but they're being made to law enforcement. So it sounds like they might be testimonials. You might expect them to be used against somebody at trial. So, there are two a couple of cases there the court has looked at. One of them Davis v. Washington from 2006 talked about a 911 call. The declarant called 911, the victim in this case of domestic violence and she called 911, and talked about what was going on, about what her husband was doing to her. And so the court essentially analyzed the 911 call and said, "Well, you have to essentially take apart these 911 calls and look to what is the primary purpose of those statements. Is the person calling 911 and talking at this time making the statement? Is she trying to essentially give police information to respond to the emergency and help the person in trouble? Or is she providing information for use at trial." And 911 calls are a bit...
- ...a 911 call and all that in the first part, when they asked for help and tell the police what they need to respond to a situation and then redact the second part where they're essentially giving information to the police so the police can use it at trial. The second case that has to do with statements to law enforcement during emergency situations is Michigan v. Bryant 2011 case. That expanded the Davis emergency exception rule to a great degree. It made it a very broad exception. It said basically, this was a case where the defendant been shot, he was lying in a parking lot bleeding. And he talked to police officers over the course of about 30 minutes about the person who shot him. And even though there were a lot of police milling around, and they were looking for the defendant all this time, the emergency never dissipated. The Supreme Court said there was always emergency even though 30 minutes had passed because the person with the gun was still out there, police were using...
- ..., law enforcement personnel looked whether the purpose of the statements was made to essentially get help or to provide information for future use at trial. The second harder question as far as defining testimonial is with lab reports. These are reports that are made by forensic experts, reports made by people who are looking at drugs, analyzing drugs and so on. And for a while the answer to this question, are lab reports testimonial, seem pretty clear. The answer was yes. In a couple of case in 2009, 2010, the cases are Melendez-Diaz v. Massachusetts and [inaudible 00:14:18] v. Mexico. The Supreme Court said lab reports are testimonial. The person who is conducting the lab report they are...they know that this is gonna be used at trial, therefore it's testimonial. The police officers give them some drugs, give them a gun, give them some forensic evidence and say, "Hey check this out for us. We're gonna use this in a criminal case later." Clearly the person doing...
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Relevance: Rules 401 and 402 2 results
- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons, a law professor at the Ohio State University College of Law. Today we're gonna talk about relevance. We're gonna cover rules 401 and 402 of the Federal Rules of Evidence. Relevance is the foundation of evidence. It's gonna be the first question you ask about any evidence problem that you see. Is it relevant? And if so, how is it relevant? How does it help the jury or the judge decide the case?
- A couple of more pieces of terminology to go through here. We know that relevance is a question of whether or not it makes a fact in consequence a little bit more likely or a little bit less likely. Relevance is a binary question. Yes or no. A piece of evidence is relevant or is not relevant. This is a determination by the judge. It's a question of law, not for the jury. It's not a question of fact.
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- Welcome to the West lecture series on evidence. I am Rick Simmons, a law professor at the Ohio State University College of Law. And today we're gonna talk about probative value versus unfair prejudice, we're gonna cover Rule 403 of the Federal Rules of Evidence. Now, Rule 403 is a foundational rule of evidence. It is always going to be applied every time a judge decides whether or not a piece of evidence is admissible. It's the very end after looking at all the other rules the judge then will finally look at all this piece of evidence and say, "Does the probative value, is it substantially outweighed by unfair prejudice or for some other reason should we keep it out on Rule 403?" So, let's look at the text of Rule 403 first. Rule 403 says, "The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time or needlessly...
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- Now let's talk about some specific issues involved in rule 407. One question is does rule 407 apply in strict liability cases or just negligence cases? And the answer is it applies under the federal law in every single kind of torte case, strict liability or negligence. And that's there in the rule that says to prove negligence, culpable conduct, or a defect in a product, product liability, strict liability, a need for warning instruction also strict liability. It applies in all those cases, strict liability or negligence cases.
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- Welcome to the West Lecture Series on Evidence. I'm Ric Simmons of the Ohio State University College of Law. Today we're going to talk about impeaching witnesses. This the third lecture on impeaching witnesses. We're to cover impeaching with prior convictions Rule 609. We've already talked a lot about impeaching witnesses and different methods of impeachment. We can attack a witness based on the clarity of their response, based on their poor memory, based in the poor perception, but we focused on attacking them based on their sincerity because that is where the Rules and evidence focus on their restrictions on how we impeach.
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- Publication Date: January 23rd, 2019
- Subject: Evidence
- Series: Law School Legends Audio Series
- Type: Audio Lectures
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Description:
This lecture series on Evidence is designed for students who are about to take or are currently taking a course in Evidence and who want to use it for class review or exam preparation. But it is also useful for anyone, student or not, who would like to gain a better understanding of what evidence is admissible in court. You can listen or study at your convenience – in the library, at home, walking or jogging, or driving in your car.
These audio lectures are each approximately twenty minutes long. Each one covers a discrete aspect of Evidence law, so you can easily access the topics you want to learn or review. Coverage includes the topics of relevance, impeaching witnesses, character evidence, rape shield law, expert testimony, and privileges. The topic of hearsay and its numerous exceptions gets special attention. Each lecture begins with a clear, concise statement of the relevant legal principles and then explores the scope and nuances of the applicable rule with a series of examples that apply the rule in different situations.