WHAT

IS THE EVIDENCE BEING OFFERED TO PROVE? HEAR PA BROWN Hearsay, privilege, authen3ca3on, best evidence rule, relevance, opinion, witness, no3ce. Objec9ons must be 3mely and made with specicity. A judge cannot tes3fy at a trial for which she is si?ng as this is plain error and preserva3on on appeal requires no objec3on. A juror cannot tes3fy at a trial for which she is a member, but to preserve on appeal an objec3on is required. New Arbitrary Angelic Cocks Amuse Silly Loud Vaginas Narra3ve, Argumenta3ve, Asked and answered, Compound, Assuming facts not in evidence, Specula3on, Leading, Vague. Present recollec9on refreshed is where an aGorney may introduce anything to jog the Ws memory. The opponent has the right to inspect, cross-examine, and/or introduce relevant parts. Every person is competent to be a witness if they have personal knowledge and swear to tell the truth. State Dead Man statutes must be used in diversity cases (dead guy is incompetent and his statements would be inadmissible). Evidence is relevant if its proba3ve (tends to prove or disprove) of a fact that is of consequence to the outcome case. However, a judge can exclude evidence if its proba9ve value is substan9ally outweighed by the danger of unfair prejudice, confusion, misleading the jury, and to further social policies. Evidence is unfairly prejudicial if it appeals to the jurys sympathies. The following types of evidence may be inadmissible due to countervailing social policy concerns: Similar happening evidence will be excluded if it did not occur under substan/ally similar circumstances surrounding the event in ques3on. Reenactments and demonstra9ons are admissible if performed under substan/ally similar circumstances surrounding the event in ques3on. Sta9s9cal evidence will be admiGed it has a valid basis. Photographs or repulsive objects are typically admiGed unless it causes the jury to become physically ill. Subsequent remedial measures are measures that would have made the event in ques3on less likely to have occurred if in place before it happened. They may not be introduced to prove culpability or to prove products liability, but they are admissible to show feasibility of a precau3onary measure or to rebut a claim of product safety. The law wants to encourage par3es to take safety measures. Oers to compromise and statements of liability made during nego3a3ons are inadmissible if they relate to a disputed claim as to liability or damages. They are admissible if there is no dispute as to liability or damages. Statements made during plea bargains are inadmissible in later proceedings against the defendant. Pleas of no contest or guilty, which are later withdrawn, are also not admissible. Unilateral oers to pay medical expenses are inadmissible, however, if that oer is laced with statements of liability, those statements are admissible. These are dierent than oers to compromise. Evidence that a person had or did not have liability insurance is inadmissible to prove culpability. Condi9onal relevance is where the relevancy of a certain piece of evidence depends on the existence of a fact not yet proved. Lawyer must introduce only enough evidence that a reasonable juror to conclude that the other fact existed.

 Character evidence is a generalized descrip3on of a trait or disposi3on. Propensity evidence, or evidence to prove that a person acted in conformity with their character on the par3cular occasion, is generally inadmissible. SEND ROSA CRIM DEF PRO SAC or NEWRO In seduc3on, entrapment, negligent entrustment, and defama3on cases, a persons character is inherently in issue and, therefore, reputa3on, opinion, and specic acts may be introduced. A criminal defendant may oer evidence of a per/nent trait of his good character to prove his innocence (ex: murder - peaceable nature, perjury - honest nature). This may be proved through reputa3on and opinion evidence. However, on cross, the prosecu3on may aGempt to discredit the character witness by using specic acts, or, a new character witness using reputa3on and opinion evidence. Rape and Child Molesta3on In criminal cases, evidence of a vic3ms sexual disposi3on or other sexual behavior is generally inadmissible, unless, the accused seeks to prove someone else is the source of the physical evidence, to prove consent, or if exclusion would violate confronta3on clause or due process In sexual assault and child molesta3on cases, evidence of prior acts of the sort are admissible and relevant. Other Crimes Evidence - MIAMICOP Other crimes evidence is admissible if oered to prove something other than a persons character, but specically connects the defendant to the crime charged. Mo3ve, iden3ty (dis3nc3ve MO) , absence of mistake (negate mistake defense), intent (state of mind), common plan/scheme, opportunity, prepara3on. Habit evidence is admissible to prove a person acted in conformity with that habit on a par3cular occasion. A habit is a regular response to a repeated situa3on. It is a reexive response to a specic s3mulus. Hearsay is an out of court statement made by a declarant (human) oered for the truth of the maGer asserted. Hearsays general exclusion is founded in its unreliability primarily because of the lack of opportunity to cross-examine the declarant who made the out of court statement. If the proba3ve value of the statement derives from the fact that the statement was made and not for its underlying meaning, it is NOT hearsay (if all we care about is whether the statement was made). LIES - Legally opera3ve, Impeachment using a prior inconsistent statement, Eect on the listener, State of mind. If the proba3ve value of the statement does NOT depend on the credibility of the declarant then the statement is NOT hearsay. If it DOES depend on the declarants credibility then it is usually hearsay.
Asser9ve Verbal Non-Asser9ve Verbal Asser9ve Conduct Non-Asser9ve Conduct Hearsay Not hearsay Hearsay Not hearsay Asser3ng directly what it is being oered to prove. Not intending to make an asser3on. Intending to communicate a message. Doing it for the sake of doing it and not to communicate.

Mul3ple hearsay, or hearsay within hearsay, is admissible if there is a separate excep3on for each level. Non-Hearsay or an Excep9on - BAD SPLITS PEPPI F Business records, Admissions, Dying declara3ons, Spontaneous statements (excited uGerance and present sense impressions), Public records, Learned trea3se, Iden3ty, Tes3mony (former), State of mind (physical and mental feelings), Past recollec3on recorded, Equally reliable, Prior inconsistent statements, Prior consistent statements, Interest (against), Forfeiture.

 Unavailability Required - PRIMA - DIFF Privilege, Refuse to tes3fy, Memory (lack of), Absent. Dying Declara9ons are statements made by a person who believes his death is imminent and concerns cause or circumstances surrounding his death. Interest, Declara9ons against are statements made against the defendants pecuniary, penal, or proprietary interest. Any party OR nonparty can make a declara3on against interest and they must have personal knowledge. Former tes9mony seeking to be introduced. The party whom the evidence is being oered against must have had an opportunity and a mo3ve to develop such tes3mony in a former hearing of the same case, another case, deposi3on, or at some other proceeding and be made under oath. Forfeiture is when a party against whom the statement is being oered is responsible for a wrongdoing intending to make the declarant unavailable. They cannot object to hearsay if they do so. Availability Required Prior inconsistent statements are out of court statements that are inconsistent with Ws tes3mony at trial. They are admissible as substan3ve and impeachment evidence if W is available, it was made under oath, subject to perjury, and at another hearing or proceeding. They are admissible for impeachment only if oered to impeach only and not for the truth of the maGer asserted (en3tled to limi3ng instruc3on). Extrinsic evidence may be oered if non-collateral and the declarant has an opportunity to explain. Prior consistent statements are out of court statements that are consistent with Ws trial tes3mony and oered to rebut a charge of recent fabrica3on. Prior iden9ca9on statements are nonhearsay if made a^er perceiving that person. Admissions by a party opponent are admissible as evidence against the party who made the statement. It need not be an actual admission and personal knowledge is not required. 3 Kinds of Admissions - POSAVAC Partys own statement, Adopted, Vicarious (agency or conspiracy). Excited uVerance is a statement concerning a startling event and made while s3ll under the stress caused by that startling event. Must be made before declarant has 3me to reect. Present sense impressions are descrip3ons made while an event is occurring or immediately therea^er. Timing is crucial as only a slight 3me lapse is permiGed. State of mind statements are made by the declarant rela3ng to her then-exis3ng mental, emo3onal, or physical condi3on. Includes current beliefs, a?tudes, and presently exis3ng intent to do something in the future (only forward looking statements unless dealing with statements rela3ng to wills). Statements for medical diagnosis are present symptoms, past symptoms, and general causes of pain or illness. Not admissible to prove negligence. Past recollec9on recorded is when a Ws memory cannot be refreshed (through present recollec3on refreshed) and the aGorney wishes to introduce a wriGen account of the event. PIMA The W must have Personal knowledge, Insucient recollec3on during tes3mony, Made the statement while s3ll fresh in her head, and the document Accurately reects her knowledge at the 3me. Business records - KRAP - qualify if they are Kept in the Regular course of business, made At the 3me or near the 3me of the event, and the employee must have Personal knowledge of the event or given the knowledge by someone with a business duty to report. In spite of these requirements, it may inadmissible if made in prepara3on of li3ga3on. Public records and reports are admissible if either the record sets forth the agencys own ac3vi3es, sets forth maGers that the law requires the agency keep, or it is a report of an authorized governmental inves3ga3on. Cannot use police records against a criminal defendant.

 Learned trea9ses are statements contained in published trea3ses, periodicals, or pamphlets concerning history, medicine, or any other science that are established as reliable authority and introduced concurrently with expert tes3mony. May only be read into evidence. Equivalent trustworthiness statements may be admissible if it possesses equivalent guarantees of trustworthiness as other excep3ons. Must be oered as evidence of a material fact and in the interests of jus3ce. Miscellaneous records: Marriage, Death, Religious, Family, Tombstones, Ancient, Property. Impeachment of a witness is aGacking Ws credibility. May be aGacked in 5 ways - BICCC. Bias is showing that W for some reason independent of the merits of the case to give favorable tes3mony to one side. May arise from FAIR - Financial interest, Animosity, In3mida3on, or personal Rela3onship. Only non-collateral evidence is admissible. Prior inconsistent statements are admissible for impeachment and D is en3tled to limi3ng instruc3on. Extrinsic non-collateral evidence is permissible if W is given an opportunity to explain his statement and opposing counsel is given a chance to ques3on W. Capacity is an aGempt to show defects in Ws perceptual or tes3monial capaci3es such as their ability to see, hear, recall, or recount facts. Non-collateral extrinsic is admissible. Character of a W may be used to aGack the credibility of a W showing his poor character for truthfulness. There are 4 ways to prove untruthful character: (1) Opinion and reputa3on tes3mony showing dishonest character. (2) Evidence of prior untruthful acts not resul3ng in a convic3on. May be asked about specic acts on cross. (3) Criminal convic3ons involving a crime of dishonesty or false statement (perjury, fraud, NOT the^). These can either be a misdemeanor or a felony surrounding a dishonest crime. (4) Felonies NOT involving a dishonest crime (if not a crime of dishonesty, it must be a felony). The court weighs the proba3ve value of the convic3on as it bears on credibility agains the danger of unfair prejudice. If the W is a Criminal D, the felony will be admissible if its proba3ve value outweighs the danger of unfair prejudice. If the W is anyone else, the felony will be inadmissible if its proba3ve value is substan3ally outweighed by the danger of unfair prejudice (403). Convic3ons are admiGed if within 10 years, but the proba3ve value of a convic3on older than 10 years must substan3ally outweigh the dangers of unfair prejudice. Extrinsic evidence is allowed if non-collateral. Bolstering and Rehabilita9on cannot occur un3l a^er a Ws credibility has been aGacked. Prior consistent statements may be used to rehabilitate if they are nonhearsay used to rebut a charge of recently fabricated tes3mony.

 Lay Opinion tes3mony is admissible if its ra3onally based on Ws percep3on and helpful to the jury in deciding a specic fact. It may not be based on scien3c, technical, or other specialized knowledge. Expert Tes9mony is scien3c, technical, or specialized knowledge that will be helpful to the jury in deciding a specic fact. The expert must be qualied to give tes3mony based on educa3on or hands on experience. The tes3mony must be reliable and the judge acts as the gatekeeper for reliability. Factors to determine reliability include - TRAP - Tested, Rate of error, Accepted by other experts in the same eld, Peer review and publica3on. The tes3mony must have a sucient basis (can rely on personal knowledge, facts in the record, or rely generally on facts outside of the record if reasonably relied up by other experts in the same eld). The tes3mony must be reliably applied to the specic facts of the case. And, an expert cannot give her opinion regarding a mental state if an element of the crime. Authen9ca9on arises when a wri3ng or other piece of tangible evidence is oered for admission. The proponent bears the burden of proving what the item is what it purports to be. The proponent need only introduce enough evidence for a reasonable juror to nd the item is what it purports to be. Do you recognize it? What is it? How do you recognize it? Is it in the same condi3on? If suscep3ble to change over 3me, must give chain of custody. Authen3ca3ng objects for illustra3ve purposes requires a W with personal knowledge state that the item is a fair representa3on of what it is illustra3ng. Authen3ca3ng documents requires a W with personal knowledge OR circumstan3al evidence. Handwri3ng may be iden3ed by a lay person, expert, or jury comparison. Ancient documents are presumed authen3c if they are more than 20 years old, free of suspicion, and found where it was likely to have been kept. With age comes a sense of reliability. Reply LeGer Doctrine - A reply to a solicita3on is unlikely to be forged. Self-authen9ca9on is where certain items have minor chance of tampering or forgery and dont need to be authen3cated - CONTAC. Commercial paper, Ocial publica3ons, Newspapers/periodicals, Trade inscrip3ons, Acknowledged documents (notarized), Certain public records. The Best Evidence Rule is where a party seeks to prove the contents of a wri3ng, recording, photograph, they must use the original unless an excep3on applies. We have a preference for the original. In order for the BER to apply, the wri3ng must have independent legal signicance OR a party physically oers a wri3ng into evidence pu?ng its terms in issue. Counterparts qualify as originals. Nega3ves and any print made from an original qualify as originals. Excep3ons: Duplicates may be used in place of an original if produced by the same mechanical means as the original and there is no genuine ques3on of authen3city raised. Cer3ed public records that are tes3ed as being correct. Unavailability of the original through no fault of the proponent. It may be lost or destroyed without bad faith, the original is beyond subpoena powers, or the original is in the opponents possession. Tes3mony, deposi3on, or wriGen admissions about contents can be used to prove contents. If collateral, may use secondary evidence.

 Confronta9on Clause of the 6th Amendment guarantees the right for a criminal defendant to confront all Ws against him. If a statement is tes3monial, the declarant is unavailable, and the defendant has no chance to cross-examine the W, the hearsay evidence will NOT be admissible. If the declarant tes3es, then there is no Confronta3on Clause issue because the defendant has a chance to cross-examine the declarant. A statement is tes9monial if it would lead an objec3ve person to believe that the statement would be available for use at a later trial. A statement is also tes9monial if there is no ongoing emergency and the primary purpose of interroga3on is to establish or prove past events rela3ng to a criminal proceeding. The accused does NOT have a right to confront a child accusing him of sexual acts. Privileges are recognized because certain social benets outweigh the cost of reliable evidence. AVorney-Client privilege protects conden3al communica3ons between an aGorney and client, or their representa3ves, for purposes of facilita3ng the rendi3on of legal services, from disclosure. Privilege survives death. The client or aGorney may assert it, but its waived if not asserted in a 3mely fashion or the client voluntarily reveals the communica3ons. Doctor-Pa9ent privilege protects communica3ons and pa3ent medical and hospital records, including informa3on observed by doctors through exams and tests, from disclosure. Clergy privilege applied to conden3al statements made to a person of spiritual statute. Husband-Wife prohibits a spouse-witness from disclosing conden3al communica3ons with other spouse made during marriage. Survives divorce. Either spouse may assert privilege, except when a spouse is charged with child abuse or spousal abuse. Spousal Immunity applies only in criminal cases. It allows the tes3fying spouse to choose not to tes3fy against the defendant spouse. Child abuse and spousal abuse excep3on applies. Work Product privilege. 5th Amendment prohibits compelled tes3mony that is self-incrimina3ng. Judicial No9ce allows the court to accept certain things as true without requiring them to be proved. The court may on its own ini3a3ve or on the mo3on of counsel take judicial no3ce of adjudica3ve facts, which help the faciinder in its determina3on of the case. Judicial no3ce may be taken if the fact is indisputable or commonly known by well informed people in the community where the court sits and facts that are readily veriable by sources who have unques3onable accuracy.