Evidence Law, A Student's Guide to the Law of Evidence as Applied in American Trials
Authors:
Park, Roger C. / Leonard, David P. / Orenstein, Aviva / Goldberg, Steven H.
Edition:
3rd
Copyright Date:
2011
31 chapters
have results for Evidence Law : A Student's Guide to the Law of Evidence as Applied in American Trials
Appendix B. Researching Evidence Law 220 results (showing 5 best matches)
- Evidence Law: A Student’s Guide to the Law of Evidence as Applied in American Trials
- The following chart lists selected Westlaw databases that contain information pertaining to evidence law. For a complete list of evidence law databases, see the online Westlaw Directory. Because new information is continually being added to Westlaw, you should also check the online Westlaw Directory for new database information.
- The Rutter Group–California Practice Guide: Civil Trials and Evidence
- The Rutter Group–California Practice Guide: Federal Civil Trials and Evidence
- Michigan Practice Guide: Civil Trials and Evidence
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Westlaw Overview 3 results
- Evidence Law: A Student’s Guide to the Law of Evidence as Applied in American Trials
- Learning how to use these materials effectively will enhance your legal research abilities. To help you coordinate the information in the book with your Westlaw research, this volume contains an appendix listing Westlaw databases, search techniques, and sample problems.
- The instructions and features described in this Westlaw overview are based on accessing Westlaw at
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Title Page 6 results (showing 5 best matches)
Half Title 2 results
Chapter 16. Appellate Review of Rulings on Objections 103 results (showing 5 best matches)
- As a result, trial judges must have a good deal of leeway in applying evidentiary rules if they are to maximize the chances that the trial will achieve its principal goal of truth-determination. It is primarily for this reason that the Federal Rules of Evidence provide a great deal of flexibility. Most of the rules are not categorical but instead grant the trial court the authority—guided by the terms of the rules themselves—to reach an appropriate result in light of the context of the particular trial. The most obvious example of such flexibility and discretion is Rule 403, which allows the trial court to exclude otherwise admissible evidence
- Evidentiary rules differ in terms of the authority granted to trial judges. As already mentioned, some rules are categorical. The court has no authority, for example, to allow the plaintiff to offer evidence of the civil defendant’s character to prove circumstantially that the defendant committed the tortious act. Conversely, most courts hold that the trial court has no discretion to evidence that a witness committed a crime involving dishonesty or false statement, when that evidence is offered to impeach the witness’ credibility. If the rule applied by the trial court did not confer discretion on the judge, the appellate court’s standard of review is not abuse of discretion but a more searching, less deferential standard such as de novo review.
- When an evidence rule grants discretion to the trial court, it is because in those contexts the appellate court is rarely in as good a position as the trial court to determine the most appropriate ruling. The appellate court has only the cold, written record and cannot observe the demeanor of witnesses, the effect certain evidence appears to have on the jury, and other factors one would have to “be there” to observe. Thus, it is said that the appellate court should only reverse the trial court’s application of such rules if the trial court “abused its discretion,” a standard rarely satisfied in actual practice.
- In “abuse of discretion” standard applies even to the trial court’s rulings on expert witnesses. Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993). As a result of the Court’s decision in , it is more apparent than ever that appellate oversight of trial court evidence rulings is quite limited. Applied to the context, one consequence will be that a type of forensic test found admissible in one courtroom may be found inadmissible in another.
- In reviewing the entire record to determine whether an error is harmless or prejudicial, courts consider several factors, including: the number of errors in relation to the length of the trial, the closeness of factual disputes, whether the evidence related to a material consequential fact, the prejudicial effect of the evidence, the instructions given, whether the evidence was an important corroboration of other testimony, whether the evidence was cumulative,
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Chapter 1. Presenting Evidence at Trial: An Overview 292 results (showing 5 best matches)
- The common law of evidence has evolved over centuries. It also developed through lawyers’ constant usage and through trial judges’ evidence rulings. Although there is no shortage of evidence case law in the appellate courts, the evidence questions raised on appeal represent a small percentage of the evidence issues decided by trial judges and an even smaller percentage of the evidence issues considered by trial lawyers in the heat of trial.
- Evidence law in the United States was relatively homogeneous, despite the plethora of jurisdictions and the lack of opportunity for appellate courts to decide the many and various evidence issues that arose in courtrooms around the country. The law of evidence evolved in the fashion of a language, influenced as much by the usage of lawyers and the on-the-spot rulings of judges in courtrooms as by appellate opinions.
- If the judge allows the defendant’s inadmissible specific conduct evidence, it is because it is the only way to cure the problem caused by the plaintiff’s inadmissible specific conduct evidence. The basis for the court’s discretion to admit inadmissible evidence to cure other inadmissible evidence is not obvious. The early cases upholding trial court decisions to allow retaliatory inadmissible evidence consider it a matter of simple fairness. This common-law rule that gives the judge discretion to use fairness as the standard for admitting inadmissible evidence to “cure” other inadmissible evidence apparently was not superseded by the Federal Rules of Evidence. The advisory committee’s note to Rule 611(a) suggests that many of the common-law rules giving sufficient judicial discretion to make trials fair are embodied in the judge’s obligation to “make the interrogation and presentation effective for the ascertainment of the truth.”
- Yet knowing the law of evidence, or where to find it, is not enough to be an effective evidence advocate in the courtroom. Evidence at trial comes as fast as every question and answer. The lawyer’s primary task is to pay careful attention to the substance of the testimony. To deal effectively with admissibility, the lawyer must be able to anticipate when a question is objectionable or an answer should be struck and make an instant fact-based legal argument for why evidence law does not allow the particular evidence. There is a rhythm to the admission and exclusion of evidence that the evidence advocate must master in order to make the law of evidence work for the lawyer’s client.
- In the plaintiff’s case-in-chief, the plaintiff calls witnesses to testify (subject to cross-examination) and produces tangible evidence in support of plaintiff’s cause of action. The plaintiff’s attorney first examines the witnesses, who are then cross-examined by the defendant. When the plaintiff has produced all the evidence in support of the plaintiff’s case, the plaintiff rests. For the trial to continue, the evidence from the plaintiff’s witnesses and exhibits must be sufficient to support a jury finding in favor of the plaintiff for every proposition for which the plaintiff bears the burden of persuasion. If the evidence is insufficient, the judge will grant a defense motion for judgment as a matter of law on any claim for which the plaintiff has not met this burden. The plaintiff’s obligation to produce sufficient evidence to avoid a judgment as a matter of law at the end of the plaintiff’s case-in-chief (sometimes referred to as a prima facie case) is called the burden of...
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Chapter 2. Procedures for Offering and Opposing Evidence in a Common Law Trial 164 results (showing 5 best matches)
- Lawyers enforce evidence law in various ways. The Federal Rules of Civil Procedure often require parties to list witnesses they plan to call and documents they plan to introduce in advance. Failure to raise available objections to an opponent’s evidence pretrial can waive those objections. Some evidence issues are sufficiently obvious before trial and critical enough to the way the trial will proceed to be researched, briefed, and argued to the judge in the fashion of any major matter of law. This method of enforcing evidence law demands the same skills and effort as the presentation of any other legal position. Most evidence issues, however, arise unexpectedly at trial. They require the trial lawyer to identify the issue in the examiner’s question, recognize the applicable evidence law, gain the judge’s attention while quieting the witness, object precisely, and prepare to argue evidence theory and its applicability to the facts presented, all in less than half a minute.
- Lawyers should be sure to obtain a clear ruling from the judge on the motion in limine and ensure that the motion and the ruling are entered into the trial record. The record and the lawyer’s understanding of the rationale for the judge’s decision are important for the trial of the case as well as for any possible appeal. Denial of a motion in limine does not necessarily mean that the judge will exclude or admit the evidence in question at trial. In many cases, the judge will deny a motion in limine, not because the motion is wrong on the merits, but because a ruling is impossible without hearing the proffered evidence in the context of other evidence. For example, admission of a critical hearsay statement may depend upon the facts surrounding the utterance that are not apparent until the testimony of the person who heard the statement. Similarly, before trial, a judge may not be confident enough of the context or of other evidence to exclude evidence for which it is claimed the...
- The showing required in an offer of proof to persuade a trial judge to admit the evidence is the same as is needed to persuade an appellate court to reverse if the trial judge does not admit the evidence:
- The lawyer’s choices about the procedure for making objections at trial can significantly influence the outcome of the trial, as well as whether evidence issues are preserved for appeal. Lawyers’ objections to evidence highlight the tension between effective trial tactics and the steps necessary to create a good record for appeal.
- An offer of proof furthers two of the examiner’s goals. First, it complies with Rule 103(a)(2), making it possible for an appellate court to evaluate the effect of the exclusion of the evidence on the proponent’s case and, therefore, avoids the common appellate response that the trial judge’s error does not justify reversal because the error was harmless. Second, a solid demonstration of the importance of the evidence to the proponent’s case may also persuade the trial judge to reconsider the ruling and admit the evidence. Even if the context gives the trial judge sufficient knowledge of the substance of the evidence to preserve the point for appeal,
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Preface to the First Edition 8 results (showing 5 best matches)
- If law students come away from this hornbook with a sense of how to speak the language of evidence in the courtroom, as well as with an understanding of the law of evidence, we will have fulfilled our desire to help beginning trial lawyers on their way.
- We hope this approach will enhance the student’s understanding of the law of evidence in action. Wherever possible, we have employed examples to give the student a feel for the context in which the particular evidence problem might arise and for the language used by lawyers and judges in resolving it. We have also discussed the rationales and purposes of particular rules, believing that effective advocacy often means persuading the decisionmaker that the result sought is beneficial as a matter of policy.
- This is a lawyer’s treatise designed specifically for law students. It is an adaptation of the T , a work for practitioners that provided a concise description of the law of evidence from the perspective of the advocate who had to offer and oppose it, rather than from the perspective of the judge who had to rule on it. Where possible, the H discussed evidence issues in the language of the courtroom—full of examples and arguments in context as spoken by trial lawyers. In preparing this version for students, we have kept the advocate’s perspective and have tried to be true to the notion that lawyers must employ evidence rules quickly and concisely in the courtroom.
- We have been mindful that law students do not have the courtroom experience of practicing lawyers. The first four chapters on the operation of the courtroom have been added to give law students a sense of the context and environment that has so much influence on individual evidence rulings. In addition, we have expanded discussions of major cases and doctrines beyond that presented in the Handbook.
- Students in the Trial Objections courses at Minnesota and Hastings and in Evidence classes at Pace offered helpful suggestions and spotted errors in earlier versions. Christine Cupino, Loyola Law School class of 1999, Gene Sitnitsky, Loyola Law School class of 2000, Melanie Slaughter, Pace University Law School Class of 1998, and Russell Stein, UC Hastings Class of 1999, provided helpful research assistance on the student edition. We also owe thanks to Stephen Lothrop, head of Faculty Support at UC Hastings, for his diligent and careful work.
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Chapter 8. Prior Statements by Witnesses and Statements by Party Opponents 148 results (showing 5 best matches)
- If only the first statement were available at the 2010 trial for the wrongful death of the driver of the red car, and that statement constituted the only evidence of the blue van’s negligence, then the judge would have to grant a judgment as a matter of law in favor of the defendant. The first statement presents no affirmative evidence in the plaintiff’s case; it can only be used to impeach the witness.
- A final consequence of the need to rely upon the common-law impeachment in cases in which Rule 801(d)(1)(A) does not apply is that such evidence should sometimes be excluded because the limiting instruction would be ineffective. If the court takes seriously the theory that the evidence is not received to prove its truth, then the evidence should be excluded under Rule 403 when the danger of its being used for its truth outweighs its probative value for impeachment. The proponent should not be able to put on a witness known to be worthless merely to admit a prior inconsistent statement in hopes that the jury will ignore the limiting instruction and accept the prior statement as true. For example, when a prosecutor knows that the witness will deny any knowledge of a criminal transaction, the prosecutor should not be able to call the witness and introduce a prior statement incriminating the defendant. The statement cannot possibly help the prosecution if used properly (if the jury...
- Because it is not substantive evidence, the prior statement may not be used to overcome a motion for a directed verdict. If elements A, B, and C are essential elements of the plaintiff’s case, and the only evidence that the plaintiff has on element C is the prior inconsistent statement testifying to C, but made by a witness who now testifies in court to Not–C (and the statement does not fit under Rule 801(d)(1)(A)), then the defendant is entitled to a directed verdict. The only admissible evidence on the point is the witness’ courtroom testimony affirming Not–C; the only purpose for which the prior statement supporting element C may be used is to impeach the in-court testimony. Therefore, even if the impeachment is complete, there is still no evidence affirming C. The rule has an impact even in nonjury trials.
- Just as in the case of the prior inconsistent statement, a common-law theory of admissibility is available to admit certain prior consistent statements, as long as the statement is relevant to the declarant’s credibility. A prior consistent statement relevant to the declarant’s credibility (even in the absence of a charge of fabrication or impropriety) arises when the declarant made a “prompt complaint” of a crime, such as rape. Were the jury not informed that the declarant made a complaint near the time of the occurrence, it might draw inferences against the declarant’s credibility even without attack by opposing counsel. Thus, the evidence can be received as not offered for the truth of the matter asserted, but only for its bearing on the declarant’s credibility.
- The Supreme Court abandoned this requirement in 1987 in referring to Rule 104(a) and noting that otherwise inadmissible evidence may be used by the judge in making preliminary fact determinations. left open the question whether the co-conspirator’s statement could be the sole basis for a trial court finding that the defendant was a member of the conspiracy (other evidence pointed to the existence of a conspiracy in ). A 1997 amendment to Rule 801(d)(2) resolved the issue, clarifying that while the court must consider the contents of the co-conspirator’s statement in deciding whether the foundation for the doctrine has been laid, the proponent must also produce independent evidence of conspiracy. The amendment codifies the result reached by most of the circuits.
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Chapter 12. Evidentiary Privileges 363 results (showing 5 best matches)
- The initial draft of the Federal Rules of Evidence attempted to codify the judicially created privileges applied in federal courts, but Congress rejected the proposed privilege rules, entrusting privilege law in the federal system to “reason and experience” as “interpreted by the courts.” Rule 501 provides that, when a federal court applies the state substantive law (such as in diversity cases), it must apply state privilege rules. When applying federal substantive law, it must apply federal privilege law as interpreted in the light of reason and experience.
- The right against self-incrimination applies to certain interrogations conducted by law enforcement officers before trial. In the celebrated case of , the Supreme Court held that statements made during custodial interrogation could not be used at trial, unless the person in custody had been given what have become known as the “ warnings.” The interrogation must be preceded by a warning that: (1) the suspect had a right to remain silent; (2) any statement made could be used against him in evidence; and (3) that the suspect had a right to counsel, either retained or appointed. If the warnings are not given and if the suspect does not waive the rights, any statement obtained through custodial interrogation is inadmissible. Such a statement may be used, however, to impeach a defendant who testifies.
- Thus, when the federal district court tries a personal injury diversity case, it applies state law; when it tries a federal antitrust case, it applies general federal common law. Sometimes a case can involve both state and federal privileges, as when a state substantive claim is supplemental to a federal claim. Federal Rule 502, which deals with the waiver of attorney-client and work-product privileges, added the first substantive privilege rule to the Federal Rules of Evidence.
- The United States Supreme Court reached a typical solution to this problem in by having the district court review the allegedly privileged materials in camera to determine whether the exception applied. This in camera review occurred only after the party seeking the evidence made a preliminary showing of crime or fraud.
- The Court held that, while fishing expeditions were not permissible, a judge could, upon a proper showing, examine allegedly privileged materials alone in chambers to determine whether the crime-fraud exception applied. The requisite showing is that of “a factual basis adequate to support a good faith belief by a reasonable person,” and the standard permits, but does not require, a judge to review the materials in camera. Additional factors, such as the burden of reviewing voluminous materials, and the degree of need for the evidence in the litigation, should also be considered. Further, the mere making of the showing does not mean that the privilege evaporates. It only means that the judge will examine the communications to determine whether the protection of the privilege should be stripped away.
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Chapter 5. Relevancy and Its limits 461 results (showing 5 best matches)
- Members of the jury, evidence that a settlement offer was made was admitted for the limited purpose of assisting you in assessing the credibility of a witness. You should not use this evidence as proof of the validity of the plaintiff’s claim or as evidence that the defendant is liable. The settlement of cases before trial is something that the law seeks to encourage and promote. For that reason, the law protects persons who make settlement offers by providing that a settlement offer may not be used at trial as evidence that the person making the offer is legally liable. Otherwise, people would hesitate to make offers and the chances of settlement would be reduced.
- The rule against use of character evidence in civil cases must be understood in light of the limited nature of the character evidence ban. To review, the ban applies only to evidence of general disposition, when offered to show conduct in conformity with that disposition. It does not prohibit the use of habit evidence. Nor does it prohibit the use of evidence of prior acts when offered for the purpose of showing something other than character, such as motive, opportunity, preparation, plan, or the like.
- Among the considerations that bear upon the Rule 403 determination are whether the prior crime has the capacity to arouse horror or sympathy or to invoke a desire to punish; the remoteness in time of the evidence of other crimes and bad acts; and whether the fact sought to be proven by the uncharged crime is really in dispute and, if so, whether it might be proven with other evidence. Another factor mentioned by some courts is the strength of the evidence (aside from evidence of uncharged crimes or collateral bad acts) that is available against the defendant. If the evidence directly concerning the charged crime is very powerful, then the incremental probative value of the other crimes evidence is less, and therefore, (under this line of reasoning) there is less reason for admitting it.
- If the trial judge denies the motion in limine on the ground that events at trial may open the door to remedial measures evidence, defense counsel may request that the court admonish the plaintiff not to introduce evidence of remedial measures without first clearing such evidence with the court in a conference held out of the hearing of the jury.
- In the Supreme Court attempted to clarify the trial court’s task of applying Rule 403. The Court held that the trial judge should decide whether the questioned evidence raises the danger of unfair prejudice. If such a danger exists, the judge must “take account of the full evidentiary context of the case as the court understands it when the ruling must be made.” In particular, the judge should consider not just the evidence itself, but also the probative value and risk of prejudice of any available substitutes for that evidence. The Court continued:
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Chapter 7. The Definition of Hearsay [FRE 801] 120 results (showing 5 best matches)
- Hearsay is a concept unique to Anglo–American trial process. Its origins are in dispute, although its history is closely related to the jury system and the courts’ mistrust of jurors. It is impossible to discuss the purpose of hearsay without looking to the larger objectives of the evidence rules. A number of competing theories vie to explain the overarching trends of evidence law and, in turn, the hearsay rule and its exceptions.
- The Federal Rules of Evidence and most common-law jurisdictions follow an of hearsay. Under this definition, a statement is hearsay if it is made out-of-court to show the truth of the matter asserted in the statement. In other words, a party cannot introduce a statement made outside of the current trial to make the trier-of-fact believe the statement is actually true.
- An interesting example of this type of case is United States v. Arteaga, 117 F.3d 388 (9th Cir. 1997). Defendants were charged with involvement in a scheme of drug money laundering. One defendant (Arteaga) allegedly used Western Union to wire drug money from Alaska to another defendant (Arrango–Laverde), who was in California. The prosecution offered evidence of Western Union “to-send-money” forms, used by Western Union on the sending end, and “to-receive-money” forms, issued on the receiving end. Copies of two “to-send-money” forms were found in defendant’s apartment. They listed the recipient as “Linda Arce,” allegedly an alias of Arrango–Laverde. The trial court instructed the jury that it was not permitted to consider the forms to prove the truth of the matters asserted. On appeal, the court explained the nonhearsay use of the evidence, stating that the piece of paper found in Arteaga’s possession was evidence that he had knowledge necessary to commit the criminal acts. “Since...
- Verbal utterances that have been received solely as circumstantial evidence of contact or association between two people or between a person and a thing constitute another class of cases. The typical example is where the police, during a search of a person in custody, find the name and telephone number of another person. The evidence then is offered to show that the two are acquainted. Applying the assertion definition, the court is likely to say either that the name and number were not offered to prove what they were asserting (that a certain person had a certain number) or that they were not offered assertively at all, but rather as circumstantial evidence of association.
- It is worth quoting from one of the most famous trials in English jurisprudence, the trial of Sir Walter Raleigh. Sir Walter Raleigh was convicted of a conspiracy to commit treason by plotting to dethrone Elizabeth and to place a Stuart in her stead. The principal evidence against him came from Lord Cobham, a supposed fellow-conspirator, who had betrayed Raleigh in a sworn pre-trial statement. Cobham himself was in the Tower of London (on the rack, perhaps?), and was not produced at trial.
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Chapter 9. Exceptions to the Hearsay Rule 481 results (showing 5 best matches)
- In a civil case, the Rule provides that the party against whom the evidence is offered must be either the same party or a “predecessor in interest.” In cases where the prior testimony is sought to be admitted against a party not represented in the earlier suit, the definition of “predecessor in interest” is crucial. At its core, the term predecessor in interest describes someone who had a prior interest in property that is now subject to litigation or who was otherwise in privity with a party. However, the term has been given an expansive meaning by some courts so that the exception has potentially much broader application in civil cases, where statements by predecessors in interest can fall under the exception, than in criminal cases. For example, in
- The exception for statements in ancient documents is recognized both at common-law and under the Federal Rules. It applies to allow the reception of documents that have been in existence for a certain period of time—20 years under the Federal Rules. Common-law exceptions often contained a requirement that the document be found in a naturally expected place. The Federal Rule simply affirms that the document must be authentic. Courts appear to admit evidence under Rule 803(16) as long as it is properly authenticated under Rule 901. It is at least arguable, however, that the burden of proof for admission under 803(16) is different from that for authenticating evidence under 901. Under Rule 803(16), the document must be shown to be authentic by a preponderance of the evidence;
- Former testimony often comes into evidence through some route other than this exception. For example, former testimony can be used to impeach a witness with a prior inconsistent statement. When the former testimony is used to impeach the witness who gave it, the former testimony exception is not needed because Federal Rule of Evidence 801(d)(1)(A) provides the basis for receiving the testimony. Similarly, former testimony of the opposing party is admissible against that party under Rule 801(d)(2) without the need for laying the foundation required by the exception for former testimony. Also, the court can admit deposition testimony under Rule 32 of the Rules of Civil Procedure without the need for reliance upon this exception. As long as the statements made in the deposition would be admissible under the Rules of Evidence if they had been made by a live witness at the present trial, and provided that the deposition is being used against a party who was present or represented at the...
- In the hands of a skillful trial lawyer, the expert can become a channel through which major fact evidence flows into the ears of jurors. Trial lawyers report that some trial judges allow experts to quote freely the statements of others in support of their opinions. For example, an expert on the causes and origins of fire might testify on the issue of arson. If the expert talked to eyewitnesses in the course of investigation, then the expert might be used as a conduit to put into evidence the narratives of those eyewitnesses without calling them to the stand.
- The exception was used, or at least alluded to as one possible basis for receiving evidence, in
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Chapter 4. Burdens and Presumptions 222 results (showing 5 best matches)
- Few legal terms related to the law of evidence have engendered as much confusion as those considered in this brief chapter. Perhaps this is partly because the entire subject of burdens of proof and presumptions is not clearly associated with any particular area of law. After all, the lion’s share of evidence law concerns the admissibility of particular classes of evidence, not with the evidence has under given circumstances. Thus, evidence law does not determine which party has a “burden of proof” with respect to a particular issue, nor is the
- Under the “bursting bubble” theory, the disappearance of the presumption means that the jury should not be instructed about the presumption. However, as our hypothetical illustrates the presumption rests on logic. In the absence of a presumption, where P has offered evidence concerning proper addressing, stamping, and mailing of a warning letter, and D has offered evidence that he never received the letter, the jury would simply apply its sense of logic and experience to determine, as a matter of permissive inference, whether P mailed and D received the letter. The same procedure applies under the “bursting bubble” theory; the question of D’s receipt of a letter from P is simply left to the jury as a matter of logical inference. Therefore, there is no more reason to instruct the jury about applying its reasoning powers to this evidence than there is with respect to any other disputed fact; the jury will simply decide, guided by argument of counsel.
- The lowest standard is most commonly referred to as “preponderance of the evidence,” though the terms “greater weight of the evidence” and “more likely than not” are frequently used as well. This is the least demanding burden to satisfy, as it requires the fact-finder’s determination be tipped only slightly in favor of the party with the burden. The preponderance of the evidence standard applies to the vast majority of civil claims and defenses. Thus, in a negligence case, a plaintiff must offer enough evidence as to duty, breach, cause in fact, proximate cause, and damages to cause the jurors’ assessment to be tipped just slightly in favor of the existence of each element. The easiest
- Failure to offer evidence sufficient to meet a burden of production will result in the granting of a peremptory motion, generally leading to the dismissal of a claim or defense. Such a move by the trial court is a decision as a matter of law, which is final (if not other claims remain) and reviewable de novo. A decision not to dismiss with a peremptory motion is not final and can only be reviewed as a matter of law at the end of the proceedings. Of course, the trial court has discretion to grant the party’s motion to reopen its case to offer additional evidence if the court believes that the interests of justice would be served by doing so.
- Unlike the burden of persuasion, the burden of producing evidence can shift back and forth during the trial. A party cannot cause the burden of production to shift to the opponent merely by offering evidence sufficient to meet the burden. However, the burden will shift to the opponent if the party who had the burden offers evidence strong enough to require a peremptory finding in favor of that party.
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Chapter 13. Impeachment and Rehabilitation of Witnesses 311 results (showing 5 best matches)
- One approach to avoiding the impact of the extrinsic evidence rule as applied to documents is to send the inculpating documentation to the witness and counsel before trial. While this will tip off the witness about the nature of the expected cross-examination, it will put the witness on notice before trial, so that the witness may feel obliged to tell the truth.
- It has often been stated that a witness may not be impeached with collateral evidence that contradicts the witness through “extrinsic” evidence (that is to say, external evidence other than on cross-examination). An example of this type of forbidden impeachment is found in In , the defendant was accused of robbing a house in Seattle. An alibi witness for the defendant testified that the defendant had been at the witness’ restaurant in Portland on the day in question. On cross-examination, the witness also testified that the defendant had been in the restaurant in Portland every day for a period of two months before the robbery. The prosecution then offered in evidence the testimony of a police officer that he had seen the defendant in Seattle on a date about a month before the robbery. One theory of admissibility was that this testimony impeached the alibi witness by contradiction. The alibi witness had testified that the defendant had been in a restaurant in Portland on that day;...
- Evidence of bias and interest has never been subject to the rule against collateral proof via extrinsic evidence—the cross-examiner is not obliged to “take the answer” of the witness. For example, if the witness is asked about fighting with the defendant, and the witness answers “no,” the opponent is entitled to call another witness to introduce evidence that the fight took place. The Supreme Court endorsed the view that extrinsic evidence of bias is admissible in the case of ...In that case, the government offered a witness who would testify that a defense witness belonged to the same prison gang as the defendant and that the gang required its members to commit perjury, theft, and murder for each other. The Court upheld the admission of this evidence, noting that the common law of evidence permitted extrinsic evidence of bias, while requiring the cross-examiner to “take the witness’ answer” with regard to less favored forms of evidence. The Supreme Court decided that the Federal...
- Rehabilitation of a witness solely with character evidence is subject to the Rule 608(b) prohibition against extrinsic evidence of specific acts. Just as the party impeaching the witness may not offer extrinsic evidence of specific acts to show the target witness’ bad character for truthfulness, the party rehabilitating the witness may not call other witnesses to tell stories about the target witness’ honest deeds. This prohibition against extrinsic evidence of specific acts does not apply if the rehabilitation addresses a charge of bias, as opposed to an attack on character. Thus, evidence of bad deeds that show bias may be rebutted with extrinsic evidence of specific acts.
- United States v. Abel, 469 U.S. 45 (1984) (extrinsic evidence that witness belonged to secret prison organization whose tenets required members to commit perjury, theft, and murder on each other’s behalf admissible to show that witness was biased in favor of another member of the organization). This result is consistent with the common-law, though one must place a gloss on Rule 608(a) in order to reach it. The Rule provides that “specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’ credibility, other than conviction of crime as provided in rule 609, may not be proven by extrinsic evidence.” The rule should be read, after , to refer only to attacking or supporting the witness’ credibility with character evidence, not with other evidence. The Uniform Rules,
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Chapter 15. Authentication, Identification, and Exhibits 262 results (showing 5 best matches)
- The “Best Evidence” rule applies whenever a party wishes to prove the contents of a document, photograph, or recording. As a general matter, the rule requires use of the original or a mechanically reproduced duplicate to prove the contents of a photograph, recording, or writing, unless the proponent can show that the original is unavailable. The common-law best evidence rule applied only to documents, but the Federal Evidence Rule applies to writings, recordings, and photographs.
- The drafters of the Federal Rules avoided applying the term “best evidence” to Article X (Contents of Writings, Recordings, and Photographs) because best evidence is a misnomer at best, and a vestige of a different and inapplicable principle at worst. The common-law term best evidence rule is misleading on a number of grounds. First, this rule is no better than any others. Second, it does not call for the best evidence available. The Federal Rules contain no best evidence requirement in the colloquial sense. A lawyer might try to offer the most persuasive evidence possible as a matter of strategy, but not because evidence law has any general hierarchy of evidence. For example, live testimony need not be presented in lieu of hearsay that is admissible because it fits one of the many exceptions to the rule excluding hearsay. Similarly oral testimony about an object central to the event in question is admissible even if the item is not offered, in spite of it being available, and...
- In an informer made a supervised purchase of a substance which was later analyzed as heroin. The break in the chain of custody occurred after the exhibit was deposited in the police property room. The property room records showed that, before the exhibit was analyzed, one officer removed the exhibit from the property room and six days later, another officer returned the exhibit to the property room. Neither officer testified at trial. There was no evidence of the exhibit’s location or who had it during the six days that it was not in the police property room. The trial judge admitted the evidence. In holding that it was error to admit the exhibit with the break in the chain of custody, the appellate court emphasized the special nature of substances such as narcotics. The court said that “the danger of tampering, loss, or mistake with respect to an exhibit is greatest where the exhibit is small and is one which has physical characteristics fungible in nature and similar in form to...
- , United States v. Diaz–Villasenor, 68 F. App’x 791, 792–93 (9th Cir. 2003) (“Merely raising the possibility of tampering, however, is not enough to render evidence inadmissible. Furthermore, a defect in the chain of custody goes to the weight, not the admissibility, of the evidence introduced.”); United States v. Turpin, 65 F.3d 1207 (4th Cir. 1995); United States v. Pressley, 978 F.2d 1026, 1028–29 (8th Cir. 1992) (stating that trial court properly admitted substance in package marked by officer at scene of crime when chemist testified she tested substance in same package, and holding that “[t]he government is not required to maintain an eternal vigilance over all evidence in its custody”); Lee v. State, 689 N.E.2d 435, 439 (Ind. 1997) (“[T]he State need not negate every remote possibility of tampering. It is sufficient if the State presents evidence which strongly suggests the exact whereabouts of the evidence at all times. Once the State has presented such evidence, any gaps in...
- Demonstrative evidence used for illustrative purposes is handled differently from jurisdiction to jurisdiction and sometimes from courtroom to courtroom. Trial courts possess wide discretion in handling demonstrative evidence offered for illustrative purposes. Demonstrative exhibits that are used for illustrative purposes are not even marked in some courtrooms, though a lawyer who insists upon having such an exhibit marked to make the record understandable for an appellate court should prevail. Some courts allow the use of demonstrative evidence for illustrative purposes but do not allow the exhibits to be admitted into evidence. In other courts, demonstrative evidence used for illustrative purposes is received in evidence, but the jurors are given an instruction that the exhibit is for illustrative purposes only. In some instances, such as when a replica of a gun used in a robbery is admitted for illustrative purposes, it may be error not to give an instruction reminding the jury...
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Appendix A. Existing and Proposed Federal Rules of Evidence for United States Courts 709 results (showing 5 best matches)
- In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
- In a case in which the Government intends to offer evidence under this rule, the attorney for the Government shall disclose the evidence to the defendant, including statements of witnesses or a summary of the substance of any testimony that is expected to be offered, at least fifteen days before the scheduled date of trial or at such later time as the court may allow for good cause.
- Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial.
- Extrinsic evidence of prior inconsistent statement of witness.
- (e) Rules applicable in part.
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Chapter 5. Relevancy and Its limits Part 3 236 results (showing 5 best matches)
- The notion of a rule informing the jury of the defendant’s tendency to assault women or children is not new. A few states still have a depraved sexual instinct or lustful-disposition rule, permitting evidence of the defendant’s tendency to molest or rape. Technically, Rule 413, as part of the Federal Rules, will only apply to rape on military bases and Indian Reservations. Yet the influence of the Federal Rules is so pervasive that its adoption is of vital importance.
- The term is not absolutely precise, for though the evidence will usually in practice be evidence of misconduct offered to show the commission of a crime, in theory (and occasionally also in practice) it might be evidence of a good act offered to show the commission of another good act. (The same principle applies to the latter as to the former; prior good acts are not admissible for an inference of good character en route to an inference of action in conformity with good character, but they may be admissible to show conduct if that can be done without relying upon an inference about character.)
- State v. Robtoy, 653 P.2d 284, 292 (Wash. 1982) (prior unrelated murder inadmissible to show premeditation; jury “could well have interpreted the evidence of prior killing as proof that Robtoy acted in conformity therewith on this occasion”). For an example of a restrictive attitude toward admitting evidence to show intent under Federal Rule 404(b), Sparks v. Gilley Trucking Co., 992 F.2d 50, 52 (4th Cir. 1993). The plaintiff was injured when he lost control of his Corvette while driving up a mountain road and struck a tree. He sued the defendant for negligence, alleging that its truck had run his car off the road. At trial, the defendant argued that the plaintiff had been racing another car and thus had been contributorily negligent. In support of this contention, the defendant offered evidence that the plaintiff had received six speeding tickets in the preceding three years. The district court admitted evidence of the speeding tickets under Rule 404(b) “to show intent,...
- United States v. Rivera (Reynaldo Vazquez), 83 F.3d 542, 546 (1st Cir. 1996) (Coffin, J.) (in case charging carjacking, not error to admit evidence that defendant raped victim during carjacking; might help explain, inter alia, why victim heard but did not see firearm); United States v. Richards, 967 F.2d 1189, 1193–94 (8th Cir. 1992) (evidence of incriminating items seized from trunk at same time officers seized firearms is admissible as part of res gestae of firearms possession) (citing United States v. Moore, 735 F.2d 289, 292 (8th Cir. 1984) (per curiam) (res gestae exception to Rule 404(b) permits “introduction of evidence of other criminal activity” occurring at time and place of arrest “for the purpose of providing the context in which the crime occurred”)); Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (evidence of confession to uncharged sexual battery admissible as part of res gestae of charged homicide); United States v. Dudley, 941 F.2d 260, 262–63 (4th Cir....in
- The most common use of other misconduct evidence in the English cases through the nineteenth century was to prove that a person possessed a particular kind of guilty knowledge that would constitute an element of a crime or tort. Many of the cases were prosecutions for forgery and uttering (putting into circulation) of forged instruments, where, to prove the uttering charge, it was necessary to demonstrate that the defendant knew the instrument was forged. , Rex v. Whiley, 168 Eng. Rep. 589 (1804), also reported at 127 Eng. Rep. 393 (1804) as Rex v. Wylie. Such evidence was also admitted in fraud cases, where it was necessary to demonstrate not only the defendant’s intent to defraud, but also quite often, as a necessary part of this, that the defendant knew the true nature of the item she sought to transfer to the alleged victim.
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Chapter 9. Exceptions to the Hearsay Rule Part 2 356 results (showing 5 best matches)
- United States v. Astorga–Torres, 682 F.2d 1331 (9th Cir. 1982) (statement by inmate that he intended to bring two guards to site of drug transaction; “… Ambriz’s statement was properly admitted not as proof that in fact he did bring guards with him to Tulare … but as evidence that he had the intent to do so, from which evidence inferences could properly be drawn by the jury”; admissible for this purpose against defendants other than declarant; trial court gave limiting instruction); United States v. Pheaster, 544 F.2d 353, 374–80 (9th Cir. 1976) (canvassing arguments, and deciding in favor of admission; trial court gave limiting instruction; Federal Rules were not applicable to case); United States v. Houlihan, 871 F. Supp. 1495 (D. Mass. 1994) (applying expansive interpretation of Rule 803(3) and allowing admission of murder victim’s statement on the evening of the murder that he was going out to meet defendant as circumstantial evidence of the meeting). For a leading case from a...
- California’s Evidence Code provides for a public records exception in § 1291 (West 2010). The code also provides an arguably stronger exception for the transcript of a court reporter in § 273 (West 2010). Transcribed and certified reports as prima facie evidence: “The report of the official reporter, or official reporter pro tempore, of any court, duly appointed and sworn, when transcribed and certified as being a correct transcript of the testimony and proceedings in the case, is prima facie evidence of such testimony and proceedings.” . 80(c) Stenographic Report or Transcript as Evidence, which provides an exception for the federal courts: “Whenever the testimony of a witness at a trial or hearing which was stenographically reported is admissible in evidence at a later trial, it may be proved by the transcript thereof duly certified by the person who reported the testimony.”
- In the trial judge seems to have admitted the evidence on the theory that all prior statements of witnesses are admissible. The trial judge apparently accepted the view that if the agent’s out-of-court statements were really his own, not merely an artifice to get into evidence another’s statements, then they were admissible without limit because the agent was subject to cross-examination. United States v. Check, 582 F.2d 668, 678–79 (2d Cir. 1978). Even under the trial judge’s own theory, it appears that some of the statements should have been excluded. In , the trial judge admitted the utterances as “verbal acts” through which the agent gave directions to the informer. United States v. Figueroa, 750 F.2d 232, 238–40 (2d Cir. 1984).
- , Brown v. Green, 738 F.2d 202, 206 (7th Cir. 1984) (under Illinois law, where defendant is convicted on the merits at trial, conviction not preclusive, but evidence surrounding prior conviction admissible in subsequent civil proceeding as prima facie evidence of facts on which conviction based; citing, Aetna Cas. & Surety Co. v. Niziolek, 481 N.E.2d 1356 (Mass. 1985) (under Massachusetts law, insured who was conviction at trial of burning property to collect insurance proceeds was collaterally estopped from relitigating issues in civil action; but conviction of second defendant of arson, entered on guilty plea, did not collaterally estop that party from litigating issues in later civil action, though conviction was admissible in evidence).
- Testimony taken and transcribed by a court reporter and certified by the reporter or by the judge who presided at the trial at which the testimony was given, may be offered in evidence in any court as the deposition of the witness whose testimony is so taken and transcribed, in the manner, and under the rules governing the introduction of depositions in civil actions.
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Chapter 6. Competency 73 results (showing 5 best matches)
- The purpose of the oath is to ensure credibility—truthfulness—in those who make sworn testimony. Courts view the oath as providing an absolute declaration that any statement a witness gives is true. Thus, an oath acts as a warranty on the truthfulness of a statement, and it is a practice that has existed throughout history. The oath we recognize today in the American justice system has historical roots in Judeo–Christian history, with the earliest recorded oath preserved in the Old Testament, and there is evidence that other forms of a sworn oath existed in even earlier societies. However, like many other elements of law, the most direct influence for the modern American oath came from English law.
- In , the Second Circuit considered “the circumstances under which an alleged victim of sexual abuse may testify as to memories of abuse following therapeutic hypnosis” by reference to . Rejecting both per se admissibility and inadmissibility, it recommended that the trial court conduct a full pre-trial evidentiary hearing at which it could weigh all of “the factors in favor and against the reliability of the hypnosis procedure in the exercise of its discretion whether to admit the post-hypnotic testimony.” The burden of proof should be on the proponent of the refreshed testimony; and among other things that the trial court might consider important, there are several points that merit specific attention: 1) “the purpose of the hypnosis,” and even if the purpose was therapeutic, rather than investigative, to be wary of “the possibility that the subject may have received subtle suggestions from the therapist that abuse or trauma could be at the root” of the condition; 2) whether the...
- Erie R. Co. v. Tompkins, 304 U.S. 64 (1938). The line of cases developed a choice-of-law doctrine devoted to figuring out when state law and rules apply in federal court. Aspects of the decision do not apply to the Federal Rules of Evidence, which are statutory and not promulgated under the Rules Enabling Act, 28 U.S.C. 2072. also had constitutional dimensions, and Rule 601 would arguably raise choice-of-law issues had it not explicitly provided for state competency law to apply when state law provides the substantive rule of decision.
- The Federal Rules of Evidence do not restrict testimony of child witnesses. Many states, however, restrict, at least in theory, the testimony of children, and such rules apply in federal cases in which state law provides the substantive rule of decision.
- is an example of a state court taking a -like approach. The New Hampshire Supreme Court concluded that the psychological community did not generally accept the theory of recovered memory, that it is a phenomenon unfamiliar to the average juror, and that to be admissible, the trial judge must be persuaded of its validity, partly as a matter of competence and partly as a matter of expert scientific evidence. The proponent of recovered memory in a sex crime case must show “a reasonable likelihood that the recovered memory is as accurate as ordinary human memory.” The court identified eight relevant factors for the trial judge to consider: 1) the level of peer review and publication on the phenomenon of recovered memory, 2) whether the phenomenon has been generally accepted in the psychological community, 3) whether it can be and has been empirically tested, 4) the potential or known rate of false recovered memories, 5) the age of the complainant at the time the memories were made, 6)...
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Preface to the Second Edition 6 results (showing 5 best matches)
- We have, in this edition, kept faith with the advocate’s approach to evidence. As the first edition was an adaptation of the T , this edition continues to rely for its approach on that practitioner manual’s focus on the notion that evidence law is something lawyers must employ quickly and concisely in the courtroom. We have been gratified by our students’ responses to learning the language of the courtroom from that perspective and have been reinforced in our resolve to present the law of evidence as much as possible through example and with a constant eye to context.
- In the six years since the first edition of this “lawyer’s treatise designed specifically for law students,” the law of evidence has continued to evolve. There have been changes in the Federal Rules of Evidence, some of substantial significance, others simply efforts at clarification. Judicial decisions have, as always, added nuance to already established doctrine. Those rule and interpretation changes pale, however, beside two blockbuster changes in the law of evidence.
- In addition to the debt we owe our Evidence and Trial Objections students for comments and suggestions that have made this edition closer to our ideal, we would not have been able to complete it without the hard work and dedication of our research assistants, Jone Tran and John–Paul Buchanan at University of California, Hastings, Sabrina Cao–Garcia at Loyola Law School, and Sarah Courtman at Pace Law School.
- First, there have been important developments in the treatment of expert testimony, as the courts and rule makers have wrestled with the revolution started by the Supreme Court’s 1993 decision in . Some of the post- questions we anticipated in the first edition have been answered by Supreme Court decisions and by amendments to the Federal Rules of Evidence. Chapter Ten discusses these changes, highlights some of the specific areas of expert testimony that have been affected, anticipates some of the still unanswered questions raised by the approach, and compares that approach, as it has grown in the federal system, to the still important
- The Court’s 2004 decision in made a sharp departure from earlier confrontation cases, holding that “testimonial” statements, even if they fall within firmly rooted exceptions to the hearsay rule, are inadmissible against criminal defendants unless the out-of-court declarant is unavailable and the defendant previously had an opportunity to crossexamine the declarant about the statement. The decision, discussed in Chapter Seven, may leave more questions than it answers. The Court leaves open the definition of a “testimonial” statement and suggests that in the future it may decide that “non-testimonial” statements do not implicate the confrontation clause, their admissibility depending solely upon the law of hearsay.
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Chapter 5. Relevancy and Its limits Part 2 123 results (showing 5 best matches)
- The fact that insurance evidence circumstantially tends to prove something other than negligence or wrongful conduct does not automatically make it admissible. As with other evidence that is admissible for one purpose but not for another, the trial judge must, using Rule 403, weigh the danger of prejudice against the probative value of the evidence in deciding whether to admit it. When the court determines that admission is justified, it should issue a limiting instruction informing the jury of the limited purposes for which the evidence is admitted.
- In exercising discretion, the trial judge should consider whether a convincing showing of similar conditions has been made. Also, the trial judge should consider whether the prior accidents are offered merely to show that a condition was dangerous—something that could be shown by other evidence with less waste of time or danger of prejudice—or whether the evidence is also relevant to the issue whether the defendant was on notice of the existence of the dangerous condition. If the evidence is relevant to notice, then the requirement of similar conditions is applied less strictly. All that is required is that the prior accident be similar enough to alert the defendant to the danger.
- Just as the plaintiff may wish to offer evidence of prior accidents to establish the dangerousness of a condition or notice to the defendant of possible danger, the defendant may wish to offer evidence that accidents had occurred in the manner the plaintiff claimed, even though the conditions had remained essentially unchanged. While some jurisdictions forbid receipt of such evidence, most appear to recognize that evidence of the absence of accidents can be relevant in various types of actions including basic negligence and product liability cases.
- Rule 414 is identical to Rule 413 except that Rule 413 applies to rape, while Rule 414 applies to child molestation; the case law does not differentiate between the two rules, and law developed for one rule applies to the other. , United States v. Dewrell, 55 M.J. 131, 138 n.4 (C.A.A.F. 2001) (“As Rules 413 and 414 are essentially the same in substance, the analysis for proper admission of evidence under either should be the same.”).
- The collateral source rule is not really a rule of evidence, but a rule of substantive law that causes certain evidence to be irrelevant. If the substantive law does not allow collateral payments to diminish recovery, evidence of collateral payments should be excluded as irrelevant.
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Chapter 10. The Operation of the Hearsay Rule in the Courtroom—Some Practical Tips 61 results (showing 5 best matches)
- The phrase “res gestae” has long been not only entirely useless, but even positively harmful. It is useless, because every rule of Evidence to which it has ever been applied exists as a part of some other well established principle and can be explained in the terms of that principle. It is harmful, because by its ambiguity it invites the confusion of one rule with another and thus creates uncertainty as to the limitations of both. It ought therefore wholly to be repudiated, as a vicious element in our legal phraseology. No rule of Evidence can be created or applied by the mere muttering of a shibboleth. There are words enough to describe the rules of Evidence. Even if there were no accepted name for one or another doctrine, any name would be preferable to an empty phrase so encouraging to looseness of thinking and uncertainty of decision.
- Suppose an advocate makes a hearsay objection. The proponent of the evidence responds that the evidence is part of the res gestae. What answer can the objecting attorney make to this assertion? “There’s no such thing as a res gestae exception” or “Res gestae doesn’t apply under the Federal Rules” are possibilities. If those do not work, then the advocate should attempt to identify the modern equivalent of the argument being made and respond accordingly. For example, “this is not part of the res gestae because too much time had passed between the event and the statement” is appropriate if the phrase is being used as a stand-in for the present sense impression, or “he wasn’t still under the stress of excitement” when the phrase seems to have been used to refer to the excited utterance exception.
- , United States v. Dean, 980 F.2d 1286, 1288–89 (9th Cir. 1992) (trial judge committed reversible error in admitting out-of-court statement to police officer that defendant possessed weapon in his mobile home; since probable cause for search was not at issue, evidence had no relevance except for hearsay purpose of showing that defendant did in fact possess weapon); United States v. Hernandez, 750 F.2d 1256, 1257 (5th Cir. 1985) (reversible error to admit evidence that special agent had been told by United States Customs that defendant was a drug smuggler; agent’s state of mind was not at issue); Spencer v. State, 703 N.E.2d 1053, 1056 (Ind. 1999) (murder victim’s statements about defendant’s threats not admissible either as nonhearsay to show officer’s reason for investigating or under state of mind exception to show victim’s fear; but error in receiving the evidence was harmless in light of overwhelming evidence of guilt).
- The marvelous capacity of a Latin phrase to serve as a substitute for reasoning, and the confusion of thought inevitably accompanying the use of inaccurate terminology, are nowhere better illustrated than in the decisions dealing with the admissibility of evidence as “res gestae.” It is probable that this troublesome expression owes its existence and persistence in our law of evidence to an inclination of judges and lawyers to avoid the toilsome exertion of exact analysis and precise thinking. Certain it is that since its introduction at the close of the eighteenth century, on account of its exasperating indefiniteness it has done nothing but bewilder and perplex.
- Occasionally, a party will offer a statement to show a fact remembered or believed by the declarant and assert that the statement is not hearsay at all because it is not offered to prove the truth of the matter asserted, but rather to show state of mind circumstantially. For example, evidence that the declarant told a falsehood might be offered to show the guilty state of mind of the declarant, for purposes of showing that the declarant committed a crime in the past. Often such utterances will be admissible as the statement of a party-opponent. (for example, when the declarant is not the party-opponent in the case), their evidentiary status is problematic. Certainly, offering a statement as a falsehood to show a guilty state of mind does not seem to be offering it to prove the truth of what it asserts. On the other hand, the statement relies upon the belief of a person not subject to cross-examination and has most of the infirmities of hearsay. Courts that have considered the...
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Chapter 14. Opinion Evidence and Expert Testimony 325 results (showing 5 best matches)
- United States v. Henderson, 409 F.3d 1293, 1302 (11th Cir. 2005) (finding that trial court properly excluded polygraph evidence under was correctly applied to exclude polygraph evidence); United States v. Ramirez–Robles, 386 F.3d 1234, 1245–46 (9th Cir. 2004) (finding that, in order to be admitted, polygraph evidence must pass test, but if evidence fails Rule 403 balancing it is inadmissible regardless of whether it would pass ); Nawrocki v. Township of Coolbaugh, 34 Fed. Appx. 832, 838 (3d Cir. 2002) (acknowledging applicability of to admissibility of polygraph evidence in general, although holding does not necessarily extend to evidence presented to a jury); United States v. Lea, 249 F.3d 632, 639–40 (7th Cir. 2001) (requiring both weighs in favor of admission under Rule 403); Gibbs v. Gibbs, 210 F.3d 491, 500 (5th Cir. 2000) (affirming admission of polygraph evidence under controls admissibility of polygraph evidence but finding that Rule 403 rendered evidence inadmissible;...
- Rule 702 is the primary vehicle for allowing the presentation of expert testimony at trial. Because the trial judge is the gatekeeper of evidence, the judge must evaluate expert testimony based on the requirements of Rule 702 and the guidance of before the expert may present testimony to the jury. As one astute commentator has written, “[t]he single most important ‘guidepost’ contained in is the Court’s directive to judges to actively evaluate scientific evidence.”
- The distaste for expert opinion testimony led to rules that sharply curtailed the influence that an expert might have on the trial. For example, common-law courts often required the basis of expert testimony to be specified, meaning that lawyers had to use hypothetical questions in examining experts. They often required that the basis for the expert testimony be put into evidence, meaning that the facts upon which the expert relied had to pass the test of rules such as the hearsay rule. Some courts also prohibited experts from testifying to the ultimate issue.
- The Federal Rules of Evidence codified a sea change in American courts’ approach to opinion evidence. Overall, the Federal Rules had a liberal approach to the admission of evidence, and that liberalization is evident in the expanded admissibility of expert testimony. Testimony by once rare experts has become commonplace, if not overbearing, in courts of every jurisdiction, and the limitations on their testimony have been relaxed substantially.
- “General acceptance” is not a necessary precondition to the admissibility of scientific evidence under the Federal Rules of Evidence, but the Rules of Evidence—especially Rule 702—do assign to the trial judge the task of ensuring that an expert’s testimony both rests on a reliable foundation and is relevant to the task at hand.
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Chapter 3. Objections to the Form of the Question or the Answer: A Handy Guide for Evidentiary Objections 125 results (showing 5 best matches)
- Objections to the form of the question or answer invoke the judges’ discretion under Rule 611 to control the mode of questioning witnesses. These objections rest on lawyers’ and judges’ understanding of the language of the courtroom. The particular dialect of the trial judge determines almost entirely whether objections to form are sustained or ignored, so the trial lawyer is well advised to be familiar with the judge’s predilections about objections as to form. Except in the most egregious case (amounting to denial of a fair trial), the trial judge has the last word on how the evidence will be presented.
- Objections to the form of the question or answer stem from rules governing conduct of the trial, rather than from the validity of the evidence. These kinds of objections do not relate to the content of questions and answers, but to how they are presented. They are, in short, rules of the game. As a result, most good trial lawyers avoid making such objections unless they believe that the objection will influence the relationship between the examiner and the witness or the examiner and the jurors. Trial lawyers use objections to the form of the question to influence the flow of information to the jurors.
- The direct examiner can also ask questions that assume facts not in evidence, though the opponent may not be as eager to object as when such a question is asked on cross-examination. When the direct examiner asks a question that assumes a fact not in evidence, the jurors, who have not heard the assumed fact, may be confused by the question and may not hear or understand the answer. In that circumstance, the opponent is unlikely to object and give the direct examiner an opportunity to dispel the confusion.
- The temptation to make the self-serving objection may arise because self-serving describes the analytic problem with a piece of evidence that makes it less reliable. The objection does not, however, adequately describe the specific evidentiary problem. It is necessary to raise the specific evidentiary problem to allow the judge to avoid error by an exclusionary ruling or to allow the opponent to cure the problem or rely on other evidence.
- On cross-examination, a question that misstates the evidence can operate in the same fashion and pose the same dangers as the question that assumes a fact not in evidence.
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Preface to the Third Edition 8 results (showing 5 best matches)
- This third edition of E
- The new edition updates rules and case law. It reflects the 2006 amendments to the Federal Rules of Evidence (Rule 408 on compromises, Rule 404 on character, Rule 606 inquiry into validity of verdicts, Rule 609 on convictions). It also includes the new Rule 502 on waiver of attorney-client privilege added in 2008 and the amendment to Rule 803(b)(3) declarations against interest, which took effect December 1, 2010.
- In December 2011, if the various proposed amendments stay on track, the restyled Federal Rules of Evidence will go into effect. Although this restyling affirmatively does not affect substance and is for clarity and form only, the numbering of some sub-parts of rules has changed, and much of the language has been altered slightly (almost always for the better). Consequently, this edition was written to be used with both the current rules and the new restyled rules. We have attempted to quote selectively from language that is common to both the current and restyled versions.
- The continued development of the Sixth–Amendment Confrontation Clause cases mandated an expansion of the discussion of confrontation and the inclusion of a whole chapter (Chapter 11) dedicated to the subject. In addition to presenting the recent cases, it guides the reader through the many questions still left open by the new confrontation jurisprudence.
- Aviva Orenstein, from the Indiana University Maurer School of Law, has joined as an author on the project. She wishes to express her appreciation to the team of dedicated and energetic law students who reviewed each chapter in form and content. For their excellent work, she would like to thank following students from the Indiana University Maurer School of Law:
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Chapter 11. Confrontation 150 results (showing 5 best matches)
- A further argument in favor of an intent requirement, and hence a narrower application of forfeiture, concerned the unseemliness of allowing a trial judge to determine a preliminary fact that is also an ultimate fact for the jury. To trigger a finding of forfeiture, the judge must make a preliminary finding by a preponderance of the evidence that the accused killed the victim and hence forfeited his confrontation right. Although trial courts often find preliminary facts by a preponderance of the evidence, Justice Scalia was troubled that a judicial finding on this issue could vitiate a constitutional right: “The notion that judges may strip the defendant of a right that the Constitution deems essential to a fair trial, on the basis of a prior
- , amid serious confusion, various lower courts struggled with the definition of “testimonial” and focused on additional factors such as the role of the government in generating the evidence, whether the declarant initiated contact with law enforcement authorities, the context in which the declarant gave the statement to law enforcement agents, and the structure and formality of the questioning.
- is steeped in history. Writing for a majority of seven, Justice Scalia reviewed the history of confrontation from Roman times to the present. In crafting a new confrontation standard, Justice Scalia strove to effectuate the original intent of the Sixth Amendment, emulating the common law at the time the amendment was originally written. Placing primary emphasis on the state of the common law at the time of the Sixth Amendment’s framing, Scalia wrote, “First, the principal evil at which the Confrontation Clause was directed was the civil-law mode of criminal procedure, and particularly its use of
- Historically, the relationship between the hearsay rule and the Confrontation Clause has been uneasy and confused; both stem from concerns about ensuring the fairness of a trial by insisting on witnesses who testify under oath from personal knowledge and who could be tested by cross-examination. However, there are serious differences in theory, policy, history, and practice between hearsay and confrontation. The goal of the hearsay rule is to promote accuracy and ensure the reliability of the evidence; it applies to civil and criminal cases alike. By guaranteeing the right to cross-examine one’s accusers, the Confrontation Clause functionally protects accuracy, but it also does much more. The Confrontation Clause ensures a specific trial court process that has unique social value, insisting, with limited exceptions, upon the accused’s right to cross-examine witnesses in court.
- In decided in 2008, two years after Justice Scalia, writing for the majority for the third time in as many cases, addressed the circumstances of forfeiture, a longstanding equitable principle in Anglo–American jurisprudence. In the accused was charged with murdering his girlfriend, Brenda Avie. Avie made tearful statements to police responding to a domestic-violence report that Giles had choked her, punched her in the face and head, and threatened to kill her with a knife. Three weeks later, Giles did kill Avie, claiming that he acted in self-defense. At his murder trial, Giles supported his self-defense claim by describing Avie “as jealous, vindictive, aggressive, and violent.” To rebut Giles’ claim of self-defense and impeach his testimony, the state introduced into evidence Avie’s uncross-examined statements to police that she made weeks before the killing.
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Table of Contents 270 results (showing 5 best matches)
- 5.52 Uses of Settlement Evidence and Compromise Negotiations Evidence that Are Admissible Despite the Rule of Exclusion—Compromise or Behavior During Compromise Discussions as the Subject of the Action
- 5.06 Exceptions to the Rule Against Using Character Evidence to Show Conduct [FRE 404(a)(1)–(3)]—Evidence of Defendant’s Good Character in Criminal Cases [FRE 404(a)(1)]
- 1.04 Sources of Modern American Evidence Law
- 1.03 Evidence in a Common-Law Trial—Overview
- Chapter 2. Procedures for Offering and Opposing Evidence in a Common Law Trial
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Index 1037 results (showing 5 best matches)
- Evidence in a common law trial, § 1.03
- Business records, evidence as to absence of entries in, § 9.18
- Evidence of prior criminal acts. See Uncharged Misconduct Evidence, this index Federal rules of Evidence presumptions, § 4.13
- See also Discretion of Trial Court, this index Evidence screening roles, § 1.01
- Federal rules of Evidence, criminal vs. civil trials, § 4.13
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- Publication Date: January 6th, 2011
- ISBN: 9780314911735
- Subject: Evidence
- Series: Hornbooks
- Type: Hornbook Treatises
- Description: Written from an advocate's perspective, this guide provides practical insights into courtroom procedure and the dynamics of litigation. In clear and engaging prose, it explains the Federal Rules, selected state variations, major cases, essential doctrines, and important underlying policies. Frequent practical examples drawn from courtroom practice provide a feel for the context in which evidence problems arise.