Chapter IX. Impeachment 309 91 results (showing 5 best matches)
- Often evidence offered to rehabilitate a witness is not barred by any evidence rule and will be admitted as long as it is relevant. One way to rebut impeaching evidence is to produce evidence that the impeaching evidence is false and should not be believed. Counsel may attempt to negate the impeaching evidence during redirect examination or—unless the impeaching evidence is forbidden because it pertains to a minor point—by producing extrinsic evidence. For example, if a witness is impeached by evidence that he was intoxicated at the time he observed the event in question, supporting counsel can offer evidence that the witness was sober.
- evidence of prior conduct that relates to the witness’s character for truthfulness or untruthfulness. There is usually no issue concerning what constitutes extrinsic evidence: it is evidence other than the witness’s testimony on cross-examination—that is, extrinsic evidence is characterized by the testimony of other witnesses or the introduction of documentary evidence. As to the latter, merely having a document marked as an exhibit and then asking the witness about it does not constitute the introduction of extrinsic evidence. Introducing the document as evidence would, however, violate Rule 608(b)’s prohibition against extrinsic evidence.
- relevance of the former employee’s testimony were to show that Rob’s past conduct reflected a character for untruthfulness, Rule 608(b)’s prohibition against extrinsic evidence would apply. However, this evidence (false entries to cover up the crime) has another probative role: it undermines Rob’s claim that he had no suspicion that the television sets were stolen. This prior act is an integral part of the crime charged, and so the testimony would be admissible evidence of a substantive fact. Thus, Rule 608(b)’s rule against extrinsic evidence is inapplicable. Obviously there cannot be a bar on extrinsic evidence for the facts at issue in the case.
- Rule 608(b) is the only Federal Rule of Evidence that bans the use of extrinsic evidence to contradict a witness confronted with an impeachment attempt. It turns out that this provision in Rule 608(b) has caused considerable confusion over many years. To avoid this confusion, there is a simple rule of thumb to keep in mind: Rule 608’s extrinsic evidence bar applies only when a party seeks to offer evidence to contradict a witness’s denial of a bad act that was raised only for the purpose of challenging the witness’s character for truthfulness as under Rule 608(b). If the questioning party is offering the evidence for any other relevant purpose the bar is inapplicable.
- had to have an untruthful character to qualify. If evidence of gang membership were offered ’s character for untruthfulness, the bar on extrinsic evidence in Rule 608(b) would apply. But evidence of discloses his possible bias. On the issue of bias, the cross-examiner need not settle for the witness’s denial; extrinsic evidence (i.e., ’s rebuttal testimony) is admissible, subject to Rule 403. Thus, we see again the familiar principle that evidence admissible for one purpose is usually not rendered inadmissible simply because it would be excluded if offered for some other purpose. Note that the trial court in use Rule 403 to prevent the government from introducing particularly inflammatory and detailed evidence about the witness’s association in the prison gang, including the name of the gang.
- Open Chapter
Chapter III. Relevance: General Principles and Special Applications 35 314 results (showing 5 best matches)
- When the relevance of proffered evidence depends upon ( is conditioned upon) a related fact that must be supported by other evidence, we say that the proffered evidence is , relevance) of the evidence is conditioned upon a fact that is shown by other evidence. That “other evidence” must be sufficient to permit the trier to conclude by a preponderance of the evidence that the connected fact exists. To return to our example, the judge would admit evidence of the terms of the offer conditioned upon the assurance of Puck’s lawyer that he would subsequently produce evidence that the offeror was Dora.
- The law rejects irrelevant evidence for several reasons. First, the exclusion of irrelevant evidence advances the goal of efficiency: it is wasteful to receive evidence that has no proper bearing on the case. Second, the exclusion of irrelevant evidence advances the objective of unbiased factfinding within the requirements of the substantive law: although irrelevant evidence does not logically assist the trier of fact in resolving factual issues, it may nonetheless pose a risk that the trier will use that evidence inappropriately.
- To summarize: evidence is relevant only if it, (1) tends to prove or disprove a proposition of fact that, (2) is of consequence under the substantive law that applies to the case. Bear in mind that even if evidence strongly supports a factual proposition, the judge (on objection) will reject the evidence unless the proposition is “of consequence” to the lawsuit in which the evidence is offered.
- Although Rule 403 is equally applicable in bench and jury trials, the reality is that many trial judges take offense for two reasons when an objection is made that evidence is unfairly prejudicial or confusing. First, they believe that, unlike jurors, their training and experience will enable them to use evidence only for its probative value, to disregard both any inflammatory aspects of the evidence and any prohibited uses of the evidence, and to avoid confusion by asking questions when necessary. Since judges are human and may respond emotionally to evidence, there is reason to doubt whether judicial confidence is always warranted, which brings us to the second reason: generally, in order to rule on evidence judges will have to see or hear it, which means they will always see the Rule 403 evidence even if they ultimately decide to exclude it in whole or in part. Thus, it is essential that judges be thought capable of properly dealing with all of the evidence that they see in the...
- In a bench trial, after the judge hears evidence supporting authentication and any contrary evidence introduced by the opponent, she decides if the proffered evidence (to which authenticating evidence is addressed) is genuine. However, in a jury trial, the judge simply
- Open Chapter
Chapter II. The Framework 5 60 results (showing 5 best matches)
- Each litigant, and not the judge, largely determines what evidence she will present at trial. That is, the parties are responsible for gathering and proffering evidence; the judge merely decides if a given item of evidence is admissible when a party-opponent objects that the proffered evidence violates an evidentiary rule. This observation leads to a related point: in addition to controlling her own evidentiary presentation, a party (or more specifically, a party’s attorney) can influence the evidentiary record by objecting to the evidence offered by an opponent. If her objection succeeds, she can block the admission of the objectionable portions of the opponent’s evidence, which of course tends to tilt the evidentiary balance in her favor. The success of the objection will depend upon whether the judge determines that an exclusionary rule of evidence applies. But a party is not ...adverse evidence, even if an exclusionary rule is available to prevent its admission. If by careless...
- A careful litigator uses the pleadings, motion practice, and discovery to identify and isolate contested factual issues. He then determines which portions of the evidence gathered prior to trial bear upon (are “relevant to”) the contested issues. Next, he determines which portions of this evidence are likely to be admissible in court and, within this category, which portions are likely to be admissible without protest or objection. There are at least two possibilities for gaining admission of evidence during the trial without opposition: first, the evidence in question may be so clearly admissible that the opposing attorney is unlikely to contest its admission; second, the evidence may bear on facts that are relatively unimportant, thus making a contest by the opponent unlikely. There are other—usually tactical—reasons why an opponent may decline to object to evidence, but an examination of these reasons falls within the purview of such courses as trial practice. Note, however, this...
- In a broad sense, every document proffered as evidence and every statement elicited from a witness on the stand is an offer of proof. Commonly, however, the term “offer of proof” is used more narrowly to refer to the dual showing a proponent must make when the admissibility of her evidence is challenged by objection. Under , the offer of proof must include, (1) a presentation or description of the evidence that a party seeks to introduce and, (2) a statement of the fact or facts she wishes to prove with the evidence. (You can appreciate why offers of proof must often be made outside the hearing of the jury—if the jury hears the offer, then the evidence is effectively admitted.) Sometimes, the context in which the evidence is proffered makes its nature and purpose so clear that no If there is any doubt about the evidence and its intended purpose, however, counsel should supplement (“perfect”) the record.
- Of course, the fact that the writing or other recording is admitted into evidence simply means that the trier may consider it along with all of the other evidence in the case. The trier—let us say the jury—might decide that Davy was mistaken when he recorded in his diary that Puck shot the victim. All trials, of course, have conflicting evidence and, ultimately, the trier must decide which portions of the evidence to believe.
- The judge also plays an important fact-finding role in administering the rules of evidence. Rules of evidence often require proof of a foundational fact before evidence can be admitted. The judge determines whether these foundational facts have been proved. For example, the “Best Evidence Rule” The judge makes the preliminary factual determination necessary to apply the rule of evidence—it can’t be left to the jury, because the foundational facts are not necessarily probative of any ultimate question that the jury has to decide, so the risk of jury confusion over a collateral factual matter would be great. And if the jury is told that the reason for determining the foundational fact is so that evidence can be heard, then it is likely to find the foundational fact in order to be able to hear the evidence.
- Open Chapter
Chapter XI. Expert Testimony and Scientific Evidence 391 53 results (showing 5 best matches)
- A more sophisticated form of mathematical evidence involves the application of Bayes’ Theorem. evidence is added to evidence. The resulting probability, expressed as a percentage, represents the “odds” that a specified conclusion is true, after the new evidence is considered in light of the pre-existing evidence. Suppose, for example, that in a criminal trial a rational factfinder believes, on the basis of the evidence already admitted, that the odds that the defendant is guilty are 50%. Subsequently, additional evidence is produced showing that the perpetrator of the crime has brown hair. Assume 50% of the population has brown hair and so does the defendant. If the defendant did commit the crime, the probability that the perpetrator’s hair would be brown is 100%. The probability of brown hair if someone else committed the crime is 50%. If Bayes’ Theorem is applied to these percentages, the result is 67%. This means that based on this new evidence, a
- The application of Bayes’ Theorem presents at least two problems. The first is determining the probabilities associated with the pre-existing evidence, and the second is finding an accurate and helpful way to communicate the Bayes’ Theorem results, especially in a jury trial. The first problem often poses the most difficulties. In the example above we assumed that the factfinder initially believed that the odds that the defendant was guilty were 50%. This is just an assigned estimate based upon the assumed evaluation by the trier of the evidence already before it (the “pre-existing” evidence). Mathematicians customarily assign the arbitrary figure of 50% to the pre-existing evidence because it is deemed a neutral figure that does not favor either party. The problem is that it is abstractly and arbitrarily derived and has no relationship to the actual evidence in the case or, more importantly, to that particular trier’s belief in the reliability of that pre-existing evidence. Thus,...
- This equation says that the odds that a defendant is guilty (G) taking into account newly introduced evidence (|E) equals the probability that the evidence would be presented to the jury if the defendant is found guilty, divided by the probability that the same evidence would be presented to the jury if the defendant is found not guilty, times the prior odds of the defendant’s guilt. The prior odds are the odds that the defendant was guilty if the new evidence had not been introduced.
- Polygraph evidence has traditionally been inadmissible because application of the test for admitting scientific evidence has led to the conclusion that polygraph testing had not gained sufficient “standing and scientific recognition among physiological and psychological authorities.” , a majority of states have followed the traditional practice and embraced the rule that polygraph evidence is per se inadmissible. With the passage of the Federal Rules of Evidence and the decision (holding that lack of general acceptance is not dispositive) courts have revisited the admissibility of polygraph evidence, but have usually come to the same conclusion—polygraph evidence is not sufficiently reliable to be admissible.
- Capra, Federal Rules of Evidence Manual
- Open Chapter
Chapter X. Privilege 347 32 results (showing 5 best matches)
- As we have seen, the law of evidence generally seeks accuracy in fact-finding by receiving relevant evidence thought to be reliable, while rejecting evidence deemed untrustworthy. Recall, however, that some of the specific evidentiary rules of relevance, such as those that prohibit evidence of post-accident remedial measures or offers of settlement, are based on social policy concerns. In other words, relevant evidence is rejected on the ground that an extrinsic policy is more important than the factfinder’s consideration of the excluded evidence. Evidence that reveals a privileged communication bears a kinship to these specific relevance rules, in that extrinsic policies—rather than the law’s search for truth—dictate the rejection of probative evidence.
- Of course it is possible that such evidence might never exist but for a privilege that is relied upon to create the evidence.
- But it is rare for the mere existence of records, or the mere possession of them, to be incriminating. Even when the act of production might be incriminating, the government might well produce independent evidence of the existence of the documents sought, their location, and the identity of the party possessing them, and if the trial judge determined that this evidence was accurate, then production by the possessor would not be within the privilege. The argument against the application of the privilege is that delivering the documents sought would not constitute a communication of heretofore unknown incriminating evidence. The trial judge has made a factual determination, based upon independent evidence, that the government already possessed particularized knowledge of the existence, possession, and general content of the reports sought.
- evidence that is not privileged, the disadvantaged party can object without regard to the identity of the holder. (He stands in the same position, for example, as a party who complains on appeal that the trial judge excluded evidence as hearsay, when it was not.) The appellate court can correct the lower court’s error by holding that the claimed privilege was not applicable.
- Privileges Under the Federal Rules of Evidence.
- Open Chapter
Chapter VII. Hearsay Exceptions 207 90 results (showing 5 best matches)
- In this case, the statement strongly points toward an exciting event; the recitation of the details of that event suggest that the caller observed it; and his manner of speech and the phrasing of his report to the operator have considerable probative force to show that the accident caused the requisite emotional state in the observer-declarant. Moreover, any question about the existence of the event is satisfied by evidence of the event itself—in this case, the physical evidence of the accident. Furthermore, there would be evidence, perhaps supplied by the declarant, of the approximate period of time between the accident and the declarant’s telephone call. And finally, the 911 operator could testify that the declarant seemed distressed and excited, or a recording of his call, if available, could be offered in evidence. It goes without saying that courts are much more comfortable admitting hearsay as an excited utterance when there is some evidence other than the statement itself to...
- At trial the following evidence is offered by the party indicated below. There is a hearsay objection to each of the proffered items of evidence. Nonetheless, the judge uniformly rules for the proponent and admits each item of evidence in question. Assume that the written statements below are accompanied by foundational evidence showing that they were routinely made in the regular course of business. Was the trial judge correct in ruling that all of the written entries described below were admissible?
- As to the “other evidence” to which Rule 807 makes reference the judge should take into account the inconvenience, time, and expense associated with securing evidence from an alternative source. Central to the judge’s determination is the centrality or importance of the hearsay evidence to the main issues in the case.
- Sometimes more than one exception will apply to the same statement; likewise, an exemption (such as for party-opponent statements) may apply to a statement that also falls within a Rule 803 exception. It does not usually matter which exception or exemption a proponent invokes—the objective is to have the evidence in question admitted. Recall, however, that a party-opponent statement is admissible only against the party who made it (or whose representative made it). Thus, if a given statement were both a party-opponent statement (Rule 801(d)(2)) and, say, an excited utterance, which is a Rule 803(2) exception, the proponent in a case involving multiple parties may wish to proffer the evidence under Rule 803(2) or under both rules. The advantage of having the judge rule that the evidence satisfies the excited utterance exception is that the evidence may then be freely used against any party.
- The usual standard of proof, preponderance of the evidence, applies to these determinations by the judge and the burden is on the proponent to convince the judge of these preliminary facts. However, the proponent is aided by a provision in Rule 104(a) stating that when finding facts pertaining to an evidentiary rule of admissibility, the judge is not bound by the rules of evidence except those with respect to privileges. Thus, the judge is free to consider the declarant’s statement itself for whatever probative force it may have on (1) the existence of an event (or condition), (2) the declarant’s perception of it, and (3) the immediacy with which the declarant spoke. The statement alone may in some courts provide a sufficient evidentiary basis for the judge to conclude there was an event (or condition), but most courts are concerned about potential unreliability,
- Open Chapter
Chapter XIII. The Best Evidence Rule 447 25 results (showing 5 best matches)
- A few states create classes of secondary evidence, preferring one class to another. The Federal Rules, however, contain no provision for classes of secondary evidence. If the proponent is required to produce the original under Rules 1002 and 1003, but production is excused under Rule 1004, than any probative secondary evidence will suffice. Nonetheless, the proponent’s self-interest will usually result in placing before the trier the most reliable secondary evidence.
- The “Best Evidence Rule” is something of a misnomer: parties are generally free to prove propositions with whatever relevant evidence they want, subject to any applicable exclusionary rules. When making choices among relevant sources of evidence to prove a proposition, self-interested parties usually balance considerations of cost and persuasiveness. In other words, there is no general requirement that parties produce the “best” or most probative evidence of a proposition—though they often find it advantageous to do so. But such a requirement does exist when proving the contents of a document or certain other recordations.
- Commonly, photographic and video evidence is admitted as a graphic representation of a scene or subject that a testifying witness has observed and is describing from the stand. This illustrative use of photographic evidence does not involve proving the contents of the picture; rather, it is an attempt to establish the scene itself by testimony, aided by a visual background. But the Best Evidence Rule applies. The same is true of a photograph alleged to be libelous, obscene, violative of a copyright, or of an individual’s privacy. In instances such as these, the photographic material is offered for its content and testimony about that content is secondary evidence.
- There, the Fifth Circuit concluded that the Best Evidence Rule applied and that the testimony was secondary evidence. Production was excused, however, by Rule 1004 because the bills were either unavailable or withheld by the defendant. Therefore secondary evidence (officer testimony) was permissible.
- Of course, a recording is not always more reliable evidence of a fact to which it is addressed than is oral testimony. The document is only clearly preferable when used solely as evidence of its own contents and not for the truth of some fact it asserts.
- Open Chapter
Appendix II. Federal Rules of Evidence for United States Courts 461 113 results (showing 5 best matches)
- Evidence Relevant to Weight and Credibility.
- a defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it;
- Preventing the Jury from Hearing Inadmissible Evidence.
- The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.
- When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.
- Open Chapter
Index 501 25 results (showing 5 best matches)
Chapter IV. Relevance: Special Applications Driven by Social Policy 125 74 results (showing 5 best matches)
- The rule states the purposes for which evidence of subsequent remedial measures is not admissible, including proving negligence But it goes on to say that such evidence may be admissible if offered for other purposes. This structure is typical of most of the various “public policy” rules that are the subject of this chapter. The intention of the drafters of Rule 407 and kindred rules is to foreclose specified evidence (such as remedial measures) if offered for particular, forbidden purposes (such as proving that a product was defective), while leaving open the possibility that the specified evidence might be admissible if offered to prove other propositions in the case. Of course, evidence offered for permissible purposes may encounter other evidentiary rules that foreclose admissibility—most importantly, the possibility that its probative value for a permissible purpose is substantially outweighed by the risk that the evidence will be misused by the jury for impermissible purposes...
- Rule 410(a) states that specified evidence that is adduced during various plea proceedings is not admissible “against the defendant.” The rule does not protect the prosecution from adverse evidence. However, case law generally excludes evidence of a prosecutor’s offer and statements made by the prosecutor in plea negotiations. The concern of these courts is that allowing “plea-bargaining” evidence against the prosecution will have an adverse effect on plea discussions and plea offers by the prosecutor.
- Federal Rule 411 prohibits evidence that “a person was or was not insured against liability” when this evidence is offered as bearing on whether the person “acted negligently or otherwise wrongfully.” The rule is broad enough to preclude evidence that a person had no insurance, but its main application is to forbid evidence of insurance coverage. A possible third justification is that without the rule the incentive to purchase insurance might be weakened and the price of insurance might rise. The insured would have to consider the possible impact of this evidence in litigation, and the insurer would have to consider the impact of this evidence on premiums it charges.
- that evidence that a party took remedial steps following an accident or injury is inadmissible to prove in not taking such steps prior to the harmful event. Aware of this exclusionary rule, the plaintiff’s lawyer offers evidence that following an accident in the defendant’s machine shop, the defendant added safety devices designed to reduce or eliminate the occurrence of similar accidents. In making his offer of proof, the plaintiff’s lawyer states that evidence of the newly installed safety devices is not offered for the purpose of proving the defendant’s negligence, but rather for the limited purpose of showing that safer devices were feasible. If the defendant concedes the proposition that it was feasible to make his machines safer, the judge will reject the plaintiff’s evidence. The protective rule of exclusion would be undermined if a party could successfully avoid it by offering the forbidden evidence for a “different” purpose that was not even contested.
- We have seen that in the adversarial system of litigation, the parties largely control the evidence that comes before the court. This tradition of party control permeates the evidence rules. With this background in mind, consider whether a prosecutor could refuse to
- Open Chapter
Chapter I. Introduction 1 9 results (showing 5 best matches)
- It is not too early in your evidentiary studies to consider this fundamental question: Why do we have or even need rules of evidence? There is no single answer to this question, but certainly a major reason for the rules is to control the information that reaches the lay jury. The received wisdom is that juries must be shielded from evidence that would be inflammatory in order to decrease the likelihood of a verdict prompted by momentary passions or erroneous inferences. Although the rules of evidence apply in bench (i.e., judge) trials, many of them are not strictly enforced in that context, and appellate reversals of evidentiary rulings in bench trials are rare. Some of the rules of evidence are also designed to expedite the trial—for example, by forbidding the introduction of irrelevant evidence. ...are designed to improve the quality of the evidence that is introduced at trial, for example, by preferring the original of a document to a copy (or to testimony about the contents of...
- Today, the study of evidence focuses on the Federal Rules of Evidence which apply not only in the federal courts, but also serve as a model for state codes of evidence. Almost all of the states have now adopted the Federal Rules, often with modifications that serve to preserve or introduce some local rules to which the adopting state wishes to adhere. Until 1975, the year in which the Federal Rules of Evidence took effect in the federal courts, the vast bulk of evidence law was contained in state and federal judicial decisions. But since 1975, a major change has taken place: the law of evidence has been largely transformed from a common law to a code-based subject. With this transition has come increased (but by no means complete) uniformity throughout all American courts.
- The subject you are about to explore—the law of evidence—is a key component of litigation in American courts. Trial lawyers need to know the rules and be prepared to use them in a timely manner, but even lawyers who do not engage in litigation must know at least the fundamentals of this body of law. Competent attorneys understand that someday in the future their clients may become involved in controversies surrounding even garden-variety transactions. Should one or more of these disputes ripen into litigation, the law of evidence will take center stage. It will influence discovery and have a significant impact on the terms of settlement, because the strength of a case, and thus its settlement value, depends on what can be proved at trial. And of course the rules of evidence will profoundly affect the course and outcome of trial—including pretrial stages such as a motion for summary judgment, at which the evidence rules apply. Therefore, the ability to recognize, develop, and...evidence
- Today, amendments to the Rules of Evidence, as a general rule, are proposed initially by the Judicial Conference Advisory Committee on the Federal Rules of Evidence. (The Reporter to that Committee is a co-author of this book). The rule proceeds through the Judicial Conference and the Supreme Court. If the Supreme Court approves the rule amendment, it becomes law if Congress takes no action for seven months. However, the rulemaking process is not the only means of enacting an Evidence Rule. Congress occasionally bypasses the judicial rule-making process and enacts a statute that imposes upon the lower federal courts a new or modified rule of evidence. Thus, the historical and contemporary background of the Federal Rules of Evidence consists of both congressional legislative history and the commentary generated by the Judicial Conference.
- The judge is rarely reversed for considering “inadmissible” evidence because her professional training prepares her to evaluate the evidence accurately, taking full account of possible defects. However, her refusal to consider evidence that was in fact admissible may lead to a reversal. The question on appeal is whether the excluded evidence is likely to have substantially affected the trial outcome. Even when trial is to a jury, an erroneous evidentiary ruling by the trial judge will not result in a reversal unless the ruling is likely to have had a substantial effect on the rights of one of the parties.
- Open Chapter
Chapter XII. Burdens and Presumptions 417 65 results (showing 5 best matches)
- Because the jury resolves only those questions that reasonably can be disputed, the plaintiff, as a first step, must offer evidence sufficient to allow jury consideration of the existence of each element (this is his “burden of production”). That evidence must be at least adequate to permit a reasonable jury, viewing the evidence most favorably to the plaintiff, to find that the existence of the essential elements is more probable than their nonexistence—the “preponderance” standard. In the diagram below, the evidence at a minimum must justify the jury resolution signified by Block II. If evidence pertaining to the disputed elements is insufficient to raise a jury question (that is, insufficient to move all disputed elements in the plaintiff’s case to Block II), the judge, on proper motion, will direct a verdict against the plaintiff (“grant a judgment as a matter of law”) on the ground that he failed to produce sufficient evidence to support his case. Put otherwise, if plaintiff’s
- Ideally, after the plaintiff offers sufficient evidence to meet the burden of production, the defendant strives to present evidence that is so much stronger than the plaintiff’s that one or more elements would be resolved in his favor by the judge (Block I of diagram), thus entitling to a directed verdict. If the defendant were thus successful, the burden of production on the element(s) he was able to move to Block I would shift to the plaintiff, who would attempt to produce sufficient rebuttal evidence to move the issue of the existence of the element(s) back into Block II. As a practical matter, however, multiple shifts in the burden of production are unusual because it is not often that the state of the evidence fluctuates back and forth between the extremes represented by Blocks I and III. Furthermore, at the close of the evidence, it is frequently the jury, as opposed to the judge, that determines whether an element (that has not been conceded) exists. Often, the conflicting
- One must be alert for yet another variance. As noted below, even among those jurisdictions that adopt the general view of Professor Thayer (and thus to shift only the burden of production), there may be differences in the measure of rebuttal evidence that is ordinarily considered sufficient to negate the presumed fact. Fortunately, most jurisdictions that adhere to Thayer’s view—including the Federal Rules of Evidence—also endorse his position concerning the measure of counter-evidence necessary to rebut the presumption. That position is that a presumption
- In a Morgan jurisdiction, the wife has offered sufficient evidence to shift the burden of persuasion
- These standards are intended to indicate the convincing force of the evidence required to meet the burden of persuasion, not quantitatively to measure the evidence. A defendant who presents five witnesses will not always prevail over a plaintiff who presents only one. What is important is the factfinder’s belief in the existence or nonexistence of the disputed factual elements. Believability is not necessarily associated with the number of witnesses or quantity of evidence presented.
- Open Chapter
Chapter V. Hearsay: What Is It? 151 36 results (showing 5 best matches)
- If the trial judge decides to admit the evidence for a nonhearsay purpose, the opponent of the evidence is entitled to have the judge instruct the jury members that they can consider the evidence only for its proper (nonhearsay) use and not for its forbidden hearsay use. Sometimes, however, the opponent declines to request the
- Keep in mind that the sole purpose of this chapter is to flesh out the definition of hearsay. In many of the foregoing illustrations and examples, the evidence, even if hearsay, might be admitted as an exemption or exception to the hearsay rule. As a practical matter, the number of exemptions and exceptions allowing hearsay statements into evidence serve to limit the number of occasions in which a judge must make subtle distinctions between hearsay and nonhearsay. There is no practical reason for drawing a fine line between hearsay and nonhearsay if the proffered evidence, even if classified as hearsay, is admissible anyway.
- Of course, if the witness’s prior statements are consistent with his testimony, there is usually no need for the earlier statements and the trial judge can prohibit their introduction. Rule 403 permits the judge to reject relevant evidence that results in “undue delay, waste of time, or the needless presentation of cumulative evidence.” The prior consistent statements of a witness, like his prior inconsistent statements, are hearsay. Thus, if the sole purpose of a witness’s prior consistent statement is to bolster her testimony, evidence of the consistent statement generally will be excluded.
- The judge should grant the motion if the Federal Rules of Evidence apply. The Federal Rules of Evidence endorse the common law view that prior statements of a witness offered for their truth are hearsay. When the prior statements are inconsistent with the witness’s trial testimony, they may, as we have seen, be introduced for purposes of attacking the witness’s credibility. However, unless may request that the judge instruct the jury regarding the restricted purpose for which evidence of the inconsistency is admitted.
- may be able to introduce the omission in evidence. But, because the subject might not have arisen ’s report might be diminished when a jury considers the weight to give the evidence.
- Open Chapter
Chapter VI. Hearsay Exemptions 177 36 results (showing 5 best matches)
- The prosecutor then impeaches Miguel with evidence of his prior inconsistent statements to the border patrol agent and to the grand jury. At the close of the evidence, defense counsel moves for a directed verdict of acquittal. She argues that Miguel’s prior inconsistent statements may only be used to impeach him, and hence do not constitute substantive evidence that Rafael was involved in the illegal transportation of immigrants. Because these prior statements cannot be used substantively, she argues, there is insufficient evidence for the jury to find beyond a reasonable doubt that Rafael was involved in the crime charged. How should the trial judge rule?
- The foregoing discussion highlights the critical difference between a statement offered for impeachment and one offered to prove a fact (i.e. for substantive use). The defendant is right that if Miguel’s two prior statements were admissible only for impeachment, then a directed verdict should be granted. In considering motions for a directed verdict, or a motion for judgment of acquittal, the trial judge may only consider the substantive evidence that has been submitted. Impeachment evidence is for the jury to consider, once the court has found sufficient substantive evidence to create a jury question.
- While party-opponent statements are exempt from the hearsay rule, it is a mistake to assume that these statements are always received into evidence. Sometimes they are excluded to avoid undue prejudice or because of an overriding social policy such as the exclusion of character evidence.
- It can be argued that it is circular to admit the statement only if there is evidence of conspiracy, but then to allow the statement itself to be the evidence of the conspiracy. But the Court in relied on Rule 104(a) which states that in making an admissibility determination, the judge is not bound by rules of admissibility (except those in regard to privilege, which are not applicable here). Of course, the judge may choose not to give the hearsay statement much weight as proof of conspiracy, for the very reason that it might be an unreliable statement by an unreliable declarant. But the statement itself is likely to be given considerable weight if it is supported by independent evidence. As the Court in noted, a hearsay statement that looks unreliable in isolation can be corroborated by other evidence of conspiracy.
- In the last chapter we defined and illustrated hearsay evidence. In this chapter we refine the definition of hearsay by examining two classes of evidence that meet the basic definition of hearsay (that is, an intended assertion offered for its truth), yet because of subdivision (d) of Federal Rule 801 they are treated as nonhearsay. Generally speaking, these to the hearsay rule. But the drafters of the Federal Rules thought that these particular common-law exceptions had characteristics that distinguished them from the other common-law exceptions. They decided, therefore, not only to address these two classes of evidence separately, but also to transform them from hearsay (under Rule 801(c)) to nonhearsay (under Rule 801(d)).
- Open Chapter
Preface to the Eighth Edition v 2 results
Appendix I. Is It Hearsay? 455 7 results (showing 5 best matches)
- The tacit assumption in these problems is fundamentally important: in each instance, it is assumed that the evidence points to (helps prove or disprove) a consequential fact. Thus, for example, if Madam Butterfly’s depression (question 2) were not consequential under the substantive law governing the case, evidence that tended to make her depression more (or less) likely would be irrelevant. Thus, in considering the admissibility of evidence, you should first resolve the relevance question. Only if the evidence is relevant do you need to inquire whether some other rule, such as the hearsay rule, bars admission.
- Hearsay. Assuming, as the problem suggests, that this evidence is offered as a party admission (See FRE 801(d)(2)), the evidence is hearsay. It is offered to prove that Pinkerton was in fact a bigamist.
- Hearsay. This evidence, an out-of-court statement, is offered to prove there was no seal.
- Nonhearsay. The evidence is offered to show the probable effect of the declarant’s statement on Butterfly’s state of mind.
- Nonhearsay. The physician probably did not intend to make the assertion “Violetta has tuberculosis,” but was simply treating her. If there was no intended assertion, the nonassertive nature of the evidence keeps it outside the general definition of hearsay under FRE 801(a) and (c) because the doctor did not intend to make a “statement.”
- Open Chapter
Chapter VIII. Hearsay and the Confrontation Clause 293 15 results (showing 5 best matches)
- because it required her to rely upon the Cellmark profile, and no witness from Cellmark was produced for cross-examination about that profile. The prosecutor argued that Illinois Rule of Evidence 703 permitted an expert to disclose facts on which the expert’s opinion is based even if the expert is not competent to testify to those underlying facts, and that any deficiency went to the weight of the evidence, not its admissibility. The trial court admitted the evidence and found Williams guilty. Illinois appellate courts affirmed and concluded that there was no confrontation violation because the Cellmark report was never admitted in evidence. The Supreme Court also affirmed but in a set of opinions that left many questions unanswered.
- The statements and actions of both the declarant and interrogators provide objective evidence of the interrogation’s primary purpose. Looking to the contents of both the questions and the answers ameliorates problems that could arise from looking solely to one participant, because both interrogators and declarants may have mixed motives.
- Statements by coconspirators during the course and in furtherance of the conspiracy (because the primary motive is to further the conspiracy and not to generate evidence for a criminal prosecution).
- ’s statement unless she testified, the trier of fact would often be denied probative and reliable evidence.
- The problem with this argument is that the tail (the evidence rule) is wagging the dog (the accused’s constitutional right). Moreover, it is difficult to assure that every statement within the hearsay exceptions is reliable. It is not surprising that the Supreme Court has rejected this approach and has sought some middle ground between denying the use of hearsay exceptions in criminal trials and placing the constitutional protection of the Confrontation Clause
- Open Chapter
Summary of Contents 3 results
Table of Contents 23 results (showing 5 best matches)
- Publication Date: February 12th, 2019
- ISBN: 9781642425840
- Subject: Evidence
- Series: Concise Hornbook Series
- Type: Hornbook Treatises
- Description: This text examines all topics typically covered in a three- or four-hour course in evidence. Emphasis is on the Federal Rules of Evidence, now adopted in most states. Should the reader desire additional material, ample footnotes provide easy access to leading cases, articles, and standard reference works. This volume contains dozens of illustrations, with answers, designed to make the rules come to life. The eighth edition contains the restyled rules and all the new developments on the Confrontation clause, and covers recent amendments, including those going into effect in 2019. Dan Capra is the reporter, Judicial Conference Advisory Committee on the Federal Rules of Evidence, and Stephen Saltzburg served as a consultant.