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Course: Evidence Winter 2003
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Year: 2003
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Evidence Outline




I. Relevance - Rule 401

A. “relevant” if it has “any tendency to make the existence of a fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence”

1. “any” tendency means that the evidence does not have to be strong, just probative

a. ex: evidence that a car was speeding when it was a mile away from a point where it crashed is relevant for showing negligence, even though not very sufficient.

b. Counter-ex: photos of a dead body are not usually relevant on the issue of the identity of the killer

1) however, photos may be relevant for showing cause of death, position of body, etc.

2. “of consequence” means that the evidence must be material

a. believability of witnesses is not a proper issue for the judge to consider in determining whether the evidence is “of consequence” because jury may believe the witness.

B. Relevant evidence is admissible under Rule 402, unless otherwise provided by the rules.

1. admissible - jury gets to hear it

2. sufficient - justifies a particular conclusion

C. Relevance is a yes/no question, whereas probative value is a question of degree.

D. Conditional relevance - evidence that is relevant only if one of the underlying facts supporting it is found to be true.

1. ex: evidence consisting of test results on a bicycle’s brakes are only relevant if it is true that the bicycle was in substantially the same condition at the time of the test as it was at the time of the accident.

II. Unfair prejudice - Rule 403

A. judge can exclude evidence that is otherwise relevant if:

1. danger of unfair prejudice; OR

a. ex: gruesome photos that are enlarged and in color, although relevant to cause of death, may incite jury emotions unfairly

b. ex: Rule 106 if one party puts a part of a document in evidence, other party may bring in the rest as a matter of fairness.

2. confusion of the issues; OR

a. ex: evidence that man accused of beating his wife has prior record of marital infidelity confuses the real issue (battery) with an emotional second issue (adultery) in the mind of the jury.

b. ex: experimental evidence may confuse jury if conditions are not substantially the same.

c. ex: use of complex statistics to show that defendant is guilty may confuse the jury into convicting based on the “magic” influence of numbers.

3. waste of time

a. ex: having several different witnesses each testify as to the same matter.

4. substantially outweighs probative value

a. must be more than just mere existence of unfairness, otherwise most evidence would be excludable.

III. Hearsay

A. definition - an out of court statement, offered to prove the truth of the matter asserted (and dependent on the veracity of the declarant for its probative value).

1. out of court “statement” can be any type of assertive conduct if it is meant as a communication.

a. ex: evidence that a truck driver proceeded forward at a stoplight offered to prove that the light was green (but not if used to show the effect on the driver).

b. silence is not an assertion, even by someone who could have reasonably been expected to speak in the situation.

c. can not bypass hearsay technicality by offering only one side of the conversation, and permitting jury to infer what the other side’s out of court statement was.

2. statement that would otherwise be hearsay is not hearsay if it is offered for a non-hearsay purpose

a. 801(d)(1)(A) - prior inconsistent statement made under oath may be used to impeach witness’ testimony, not by proving that the prior statement was true, but that the witness is unreliable.

1) a prior statement is inconsistent even if the witness can not remember making it

b. 801(d)(1)(B) - prior consistent statement used to rebut a charge of recent fabrication, not by proving that the prior statement was true, but that the witness is consistent.

1) witness must be cross-examinable (so must remember statement)

2) statement must be made before the alleged influence came to bear.

c. 801(d)(1)(C) - identification of a person after perceiving the person, not to prove that the person is who the witness said he was, but that the witness believed so.

1) ex: police officer testimony that a eyewitness pointed to defendant when asked “who did it.”

2) witness must be cross-examinable

d. verbal act - the statement itself has legal significance, and its existence is the very issue in controversy.

1) ex: “I accept” is legally sufficient for contract formation and admissible to show the existence of a contract.

2) ex: prostitute’s statements to undercover cop are evidence of the act of solicitation

e. 801(d)(2) - admission by party opponent, whether:

1) party’s (or his servant within scope of employment) own statement

a. doesn’t have to be based on personal knowledge - if you said it, you explain it on the stand.

b. no lo contendre plea is not an admission, but a guilty plea is if the penalty is large.

c. fired worker’s statements are not within scope of employment.

2) manifested adoption of belief of statement (silence in the face of accusation)

a. regular payment of a business debt is an admission of its existence

b. silence in the face of accusation may be sufficient only if combined with other strong circumstantial evidence of guilt.

3) statements by co-conspirators (useful against each individual defendant)

a. the content of the hearsay statements themselves may serve as the basis for a preliminary finding of co-conspiracy (bootstrap).

b. statements made after arrest are not in furtherance of conspiracy - i.e. “spillover confessions” are not usable against co-conspirators.

f. effect on hearer - state of mind of declarant - knowledge or notice

1) ex: to prove that dead wife would not have given her husband money if she had lived, her statement “my husband is a bum” - not being used to prove husband is a bum, but rather the wife’s state of mind.

2) ex: to prove that a defendant feared for his life, a statement by the victim that he would kill defendant.

B. Hearsay Exceptions:

1. Availability of declarant immaterial

a. 803(1) - present sense impression description made while declarant was perceiving the event, or immediately thereafter.

b. 803(2) - excited utterance made while declarant was under stress of excitement caused by the event

1) amount of stress and immediacy required depend on circumstances - age, condition of the declarant - small child may still be excited about attack 45 min later.

c. 803(3) - then existing mental, physical or emotional condition except for a statement of memory

1) ex: statement by husband that he feels that boss is coercing him to work even though he is sick

2) ex: worker comes home and tells wife, “I’m in pain from lifting boxes at work” is admissible given other evidence of injury.

3) ex: statement by extortion victim that he fears defendant

4) ex: statement of intent to travel to Hawaii with another person is admissible to prove that person did actually travel to Hawaii, AND that the other person went with him.

5) must be about a present feeling, intent, or condition, and not past.

d. 803(4) - statements for purposes of medical diagnosis

1) can be statements concerning past condition

e. 803(5) - past recollection recorded

1) memory has failed

2) made or adopted by witness when the matter was fresh in memory

3) foundation laid for its accuracy

4) ex: eyewitness writes down the license plate number of the getaway car, but can’t remember it at the time of trial.

f. 803(6) - business records

1) made at or near the time by a person with knowledge

2) kept in the course of regular business, whether or not for profit

3) foundation laid by record custodian

4) unless the circumstances indicate untrustworthiness (i.e. by law enforcement officer against criminal defendant)

5) ex: accident report filled out by injured workman’s supervisor according to company policy.

g. 803(8) - public records

1) activities of the agency

2) observations on matters that there was a duty to report (excluding law enforcement in criminal cases unless they are computer records)

3) factual findings from an investigation

4) unless the circumstances indicate untrustworthiness

5) ex: police accident report admissible in negligence action for personal injury

6) exclusion in criminal cases extends to all persons in the law enforcement chain (i.e. lab technicians).

h. 803(18) - learned treatises

1) called to the attention of expert on cross (or direct if he relied upon it for his opinion)

2) foundation laid by witness or judicial notice

3) must have been “published” (subjected to peer scrutiny)

4) read to jury

I. minor exceptions

1) ancient (>20 yrs) documents (lay foundation)

2) market reports/commercial pubs relied upon by industry or public

3) reputation in the community (for any pertinent trait)

4) previous felony convictions (but only for impeachment in a criminal case)

2. Declarant unavailable

a. definition of unavailability:

1) privilege

2) refusal to testify when ordered

3) lack of memory of declarant’s statement

4) then existing illness/death

5) absence after reasonable (“genuine and bona fide”) search/beyond process

6) unless any of these was due to procurement or wrongdoing of the proponent for the purposes of preventing the witness from testifying.

b. 804(b)(1) - former testimony

1) made in a prior “proceeding” under oath

2) opposing party (or predecessor in interest for civil cases) must have had opportunity and similar motive to cross examine

3) doesn’t cover affadavits or statements to police.

c. 804(b)(2) dying declarations

1) belief that death is imminent (hopeless expectation)

2) statement must concern circumstances of death

3) only in homicide or civil action

4) no requirement for firsthand knowledge, but judge may still exclude “∆ must have shot me” as being unfairly prejudicial.

d. 804(b)(3) - statements against interest

1) must be “so far contrary” to interest (not neutral, collateral, or self-serving) that a reasonable person would not have said it were it not true (may not be against interest if person concedes fault in order to avoid further loss).


2) can be against pecuniary, proprietary, penal, civil liability, or legal claim.

3) in a criminal case, need corroborating evidence if declarant’s confession is offered to exculpate the present defendant

e. 804(b)(4) - statements of personal or family history

1) different than 803(19)/(13) in that these are statements by declarant himself or one other family member so they are not “reputation” or “family records” (where declarant’s availability immaterial).

3. 803(24)/804(b)(5) - Catch all exceptions

a. equivalent guarantees of trustworthiness

b. must be material fact (not just trivial or of minimal consequence)

c. more probative than other evidence reasonably available (after diligent search)

d. serves the purpose of the rules (i.e rule 102 truth) and justice

e. prior notice given to adverse party

f. ex: label on a bottle is hearsay if offered to prove the contents of the bottle. However, it has guarantees of trustworthiness similar to named exceptions, and it may not be possible to get the manufacturer to testify as to its contents.

g. ex: 58 year old newspaper reporting a fire.

h. ex: grand jury transcript (where there is no cross-examination)

4. 6th amendment Confrontation Clause hearsay issues

a. to satisfy the confrontation clause the hearsay exception must meet two requirements:

1) declarant unavailable (unless it is a “firmly rooted” exception that existed at the time of the 6th amendment ratification)

2) special guarantees of trustworthiness (“indicia of reliability”) by virtue of its inherent trustworthiness, without looking to other corroborating evidence at trial. (i.e. so trustworthy that cross-exam would add little)

b. ex: the prior testimony exception does not offend the 6th amendment because the witness is unavailable, and the prior opportunity to cross-examination (even without actual cross-examination) is sufficient safeguard of reliability.

c. evidence whose exclusion would violate due process must be admitted even if literally excluded by the rules of evidence (i.e. constitutional due process trumps the rules)

IV. Character Evidence

A. 404(a) character evidence is not admissible to prove conduct on a particular occasion except:

1. an accused in a criminal trial can show his own good character (put his character in issue), but then prosecution can rebut.

a. ex: if defense witness testifies that “∆ is a peaceable person”, prosecution witness may testify that “∆ is a bully.”

2. character of victim in a criminal trial:

a. accused can show bad character of victim (put victim’s character in issue), but then prosecution can rebut

1) counter-ex: if defense witness testifies that “victim is a bully”, prosecution witness may not testify that “∆ is a bigger bully” because that is not rebuttal of victim’s character.

2) exception - 412 rape shield rule - evidence of victim’s character is not admissible to show sexual predisposition.

b. prosecution can show evidence of peaceful character of victim in a homicide case if accused claims that victim “started it” and he was acting in self-defense.

3. character of a witness may be used to impeach his testimony

B. 404(b) - prior bad acts are not admissible to show conduct on a particular occasion unless:

1. used to show motive, opportunity, intent, preparation, plan, knowledge, identity, etc. (“signature crimes”)

a. ex: evidence of ∆’s theft of car may be admitted in murder trial to prove that ∆ had motive to kill the victim, who was a witness to the crime.

b. ∆ may also use prior bad acts of another person to show that it was the other person, and not ∆, who committed the crime.

2. exception -412 rape shield - prior sexual acts of victim are only admissible if they are with the accused and offered to prove consent, or with another and offered to show that the other person is the source of the semen, injury or other physical evidence.

C. 405 - testimony of character may be made by reputation or opinion, but inquiry into specific instances is allowable only on cross-examination.

1. counsel must have good faith basis for asking the question

a. ex: if counsel asks on cross: “did you know that ∆ sodomized a parrot” he had better be able to produce the parrot.

2. counter-ex: ∆ (or π) may not put on a witness to testify on direct about all of the good deeds (or bad deeds) the ∆ has done in the past.

3. prior bad acts may be used as proof in the character of a person is an essential element in a charge, claim or defense

a. ex: as a defense to a claim of libel, or to mitigate damages, defendant may introduce evidence of the plaintiff’s bad character.

b. ex: as part of a negligent entrustment claim, the π may introduce evidence that ∆’s servant had bad character, and that it was known to ∆.

D. 406- Habit or routine practice is admissible to show conduct on a particular occasion.

1. factors tending to show “habit” or “routine practice”

a. specificity - the more specific the behavior, the more likely that it is habitual

1) ex: wiping your feet three times on the welcome mat

b. regularity - the more instances that can be shown, the more likely that it will be admitted

1) two or three times may not be enough, but 20 probably is.

c. unreflective behavior - mechanical or automatic behavior.

1) ex: closing the door behind you

2) counter-ex: evidence that it was a person’s “habit” to go to church each Sunday is inadmissible.

2. no requirement for corroborating evidence

V. Special Concerns of Policy

A. Subsequent remedial measures - Rule 407

1. not admissible to show negligence or culpability, unless:

a. defendant puts feasibility in issue

1). ex: hotel charged with negligence denies that it would have been feasible to cover the steps with an non-skid material - π can introduce evidence that after the fall, they did.

b. ∆ puts existence of hazard in issue

1). ex: hotel charged with negligence claims that the hazard of the slippery stairs was “obvious” and thus not a hazard at all - π can introduce evidence that after the fall, they put up warning signs.

2. admissible to show ownership or control.

3. courts are split as to whether subsequent remedial measures are inadmissible in a strict liability action.

B. Offers of settlement/compromise - Rule 408

1. evidence of offer to settle a claim which is disputed is not admissible to prove liability of ∆ or invalidity of the claim.

a. claim must be “disputed”

1) if the claim does not yet exist, there is not a dispute, and statements are admissions of a party opponent.

2. does not prevent otherwise admissible evidence just because it occurred during settlement negotiations

a. may still be used to prove bias or prejudice

b. proving an effort to obstruct or delay a criminal investigation or prosecution.

c. however, a statement relating to the settlement negotiations (such as “I was negligent”) is inadmissible.

C. Payment of Medical Expenses - Rule 409

1. evidence of the fact of payment of medical expenses are not admissible to show liability

a. they are admissible for showing bias, impeachment, etc.

1) ex: “I’ll pay your medical bills because I’m sorry about speeding” - the statement of speeding is collateral and admissible as the admission of a party opponent.

D. Plea Bargains - Rule 410

1. plea bargaining is inadmissible if it was done with a prosecutor, whether:

a. guilty plea refused or withdrawn

b. nolo contendre plea

c. statements made during the course of plea bargaining.

2. exceptions:

a. statements to police (who don’t have bargaining power)

b. statements made in a perjury case when the defendant was under oath and represented by counsel.

c. where part of the statement has come in and the other part is needed for fairness.

E. Liability Insurance - Rule 411

1. not admissible upon the issue of whether the person acted negligently or otherwise wrongfully

2. admissible to show bias, proof of ownership, agency, prejudice, etc.

a. ex: defendant calls an insurance invenstigator (from his own insurance co.) to testify; the π may inquire into his relationship with ∆ in order to show bias, even though this reveals the existence of liability insurance.

VI. Competency - FRE 601

A. all witnesses are presumed competent if:

1. they have personal knowlegde (except for expert witness)

a. personal knowledge “remembered” after hypnosis is admissible.

2. they take an oath or affirmation swearing to tell the truth (except a child may simply explain that they understand the obligation to tell the truth).

B. unless:

1. they are a judge in the case

2. they are a juror in the case - Rule 606

a. juror may only testify outside of the case as to whether any improper outside influence affected any juror.

b. however, judge may question jurors individually outside the presence of other jury members in order to root out improper influence

3. they are a lawyer in the case (not prohibited by rules, but prohibited by ethical standards unless the issue is uncontested).

C. In diversity cases, the state law of competency applies.

1. dead-man’s statute - state law that prevents evidence from being admitted against the deceased’s estate if the deceased could have rebutted it by live testimony were he alive.

a. ex: π says, “Jim promised to pay me $100, just before he died.”

VII. Testimony of Witnesses

A. Direct Examination

1. may not ask leading questions on direct unless:

a. necessary to develop witness’ testimony

1) ex: witness is slow to remember certain basic facts.

b. witness is uncooperative/hostile

1) ex: π calls ∆ witness in order to gain concessions.

c. more trouble than it is worth

1) ex: preliminary identification (name, address, etc.) in order to get to meat of testimony.

B. Cross-Examination

1. Limited to scope of direct examination or the credibility of the witness - 611(b)

a. court may exercise discretion to allow further inquiry.

b. matters reasonably suggested on direct may come in.

C. Present Recollection refreshed - Rule 612

1. any item, whether or not admissible, may be used to jog memory.

2. preparation materials used to “jog” a witness’ memory may be inspected and introduced into evidence by the adverse party, even if they would otherwise be privileged or protected by the work product doctrine.


D. Exclusion of Witnesses - Rule 615

1. the judge must order witnesses to be excluded at the request of a party unless:

a. they are a party who is a natural person

b. an officer of a corporation who is a party or its designee

c. “essential” persons

1) ex: investigative agents

2. if witnesses do talk to eachother, remedy is striking of testimony, or at least bringing the matter up on cross-exam.

3. not applicable to expert witnesses because they are able to screen out prejudicial information, and furthermore, may base their opinion on inadmissible evidence.

VIII. Impeachment of Witnesses

A. Any party may impeach any witness - Rule 607

B. Evidence of bias or prejudice

1. not expressly covered by the rules, but falls under “relevant” evidence of 401/402/403

2. admissible even though it may be prejudicial on a different issue other than veracity of the witness (subject to 403).

a. ex: testimony that ∆ and his star witness are both members of a lying prison gang is admissible to impeach the star witness by showing bias towards ∆, even though it generally shows bad character of ∆.

b. ex: adverse party may question expert about how much he is paid, how often he works in litigation, and for which side.

C. Opinion and Reputation evidence for veracity - Rule 608(a)

1. the evidence must bear on veracity

2. evidence of truthfulness may not be admitted until credibility has been attacked (no bolstering).

D. Prior Bad acts not resulting in a conviction - Rule 608

1. may not be proved by extrnisic evidence (collateral matters doctrine)

a. if witness denies the prior bad act, adverse party may not bring in other witness to testify that he is lying.

2. must be probative of veracity.

3. allowed only in the court’s discretion and only on cross-examination

E. Prior crimes - Rule 609

1. non-falsity misdemeanors are not admissible

2. felonies are admissible if within the last 10 years against:

a. the accused only if probative value outweighs unfair prejudice

1) if prejudice even slightly exceeds probative value, it is not admissible

2) judge has discretion to determine what facts to consider in making determination

b. all other witnesses unless prejudice substantially outweighs probative value (Rule 403).

c. crime doesn’t have to bear on truthfulness

3. crimes of falsity must be admitted (no balancing) regardless of prejudicial effect if within the last 10 years.

4. ancient crimes (older than 10 years) are admissible only if the probative value, supported by facts and circumstances, substantially outweighs their prejudicial effect (reverse 403).

5. the fact of the prior conviction under 609 may be proved by extrinsic evidence (i.e. court record).

a. the jury is allowed to hear that there was a prior conviction, what it was for, and when, but not the underlying facts.

1). if prosecutor is allowed to bring in underlying facts under 608(b), the witness can deny them, and the prosecutor would be unable to prove them by extrinsic evidence.

6. defendant must take the stand in order to preserve appeal of an adverse ruling on a motion in limine to suppress prior convictions because there is no way to tell if the impeachment would happen, or how prejudicial it would be without concrete facts.

a. the ∆ taking the stand in a criminal case is “opening the door” to prosecution use of bad character evidence.

7. special circumstances of policy concern:

a. if the conviction were pardoned, it is inadmissible

b. if the witness (but not the accused) is a juvenile, the conviction may be used to impeach an adult and is required in fairness

c. convictions are admissible regardless of pendency of appeal.

F. Prior inconsistent statements of a witness - Rule 613

1. may be brought up at any time, even on direct of another witness.

2. extrinsic evidence of a prior inconsistent statement is not admissible:

a. if it is to a collateral matter

1) ex: eyewitness for π in personal injury suit testifies that he is a law professor. even though counsel knows he is a law student, he may not introduce the witness’ student record to impeach him, he may only ask “isn’t it true that you are only a student.”

b. or unless the witness is afforded an opportunity to explain or deny it, or justice requires.

3. statements/silence made before (not after) Miranda warnings/illegally siezed evidence were issued are admissible to impeach direct testimony because the ∆ is not allowed to use Miranda offensively.

4. counsel may not “open its own door” by eliciting false statements from the witness solely for the purposes of impeachment.

a. ex: witness has said before that both he and ∆ were involved in a robbery. However, witness does not mention this issue on direct. Counsel may not ask on cross “did you previously say that you and ∆ were involved in a robbery” in order to entice witness into lying, solely so that otherwise inadmissible hearsay would be admitted for purposes of impeachment.

G. Rehabilitation of Witnesses - rule 608(a)

1. a party may not bolster his own witness’ credibility in the absence of an actual or impending attack, unless:

a. it is to show prior identification of the accused

b. it is to show that a complaint was promptly made

2. a prior consistent statement (not hearsay) is admissible substantively for the proof of its contents is used to rebut a charge of recent fabrication.

IX. Opinions and Expert Testimony

A. Opinion by a lay witness - Rule 701

1. must be rationally based on perception (personal knowledge)

2. helpful to the determination of a fact in issue

a. counter-ex: legal conclusions of lay witnesses are not “helpful” to the trier of fact.

b. counter-ex: a witness at a bank robbery may not tesify that the person seen on a surveillance video tape shown to the jury looks “a lot like the defendant.”

3. the opinion otherwise admissible is not objectionable merely because it embraces the ultimate issue to be decided by the jury.

a. exception: witness may not testify as to whether defendant in a criminal case had the requisite mental state.

B. Expert Opinion - Rule 702

1. specialized knowledge must “assist” the trier of fact to understand the evidence or determine a fact in issue.

2. must lay foundation for expertise.

3. opinion may be based on inadmissible evidence if of the type reasonably relied upon by experts in his field.

a. does not require “general acceptance”, just reasonable reliance

1) the theory should have somehow been tested (“scientific” method)

2) it should have been subject to peer review and publication

3) it should result in a demonstrated low rate of error.

4) it should be cross-examinable

X. Presumtions

A. Mandatory presumptions (rule 301): in a civil action (not criminal) if proponent proves basic facts (B):

1. and opponent does not offer any counterproof as to basic or presmued facts, then the presumed fact (P) is conclusively established.

a. ex: π introduces evidence that the driver of the car that hit her was 1) a minor, and 2) in her parents car (basic facts). If ∆ only offers proof that the car was in good condition, then the presumed fact that the minor was acting with her parent’s permission is conclusively established.

2. and opponent offers evidence to rebut one of the basic facts (B), then the jury must find the presumed fact (P) to be true if they believe the basic to be true (conditional instruction)

b. ex: π sues ∆ on a life insurance contract on π’s husband. The contract will pay if the death was accidental. π alleges facts the the husband died suddenly (raising a presumption of accident). If ∆ presents evidence that the husband died slowly, then the jury would be instructed that if it finds the husband died quickly, then it must find that the death was an accident.

3. and opponent offers evidence to rebut the presumed fact (P), then the presumption disappears (bubble-bursting).

4. in diversity cases, state law on presumptions applies.

B. Permissive Inferences

1. in a criminal case, the state may use only permissive inferences (not mandatory presumptions) with respect to an element of the crime.

a. the instruction should use the words “may infer, but are not required to infer”.

2. however, ∆ may constitutionally bear the burden of production and persuasion with respect to affirmative defenses (the prosecution does not have to disprove all defenses).

C. Conclusive presumptions (statutory)

1. really are a matter of substantive law, not true presumptions

2. if the basic fact is established, then the presumed fact is deemed to be established.

3. no opportunity to rebut a conclusive presumption.

4. ex: a worker with black lung disease is conclusively presumed to be disabled for the purposes of the disability act, thus the only issue subject to dispute is whether he has black lung disease.

XI. Judicial Notice - Rule 201

A. The rule only covers judicial notice of adjudicative (not legislative) facts.

1. ex: whether it rained on Tuesday, March 14th 1996 in San Diego. (adjudicative fact affecting the parties only)

2. counter-ex: whether persons living below the poverty line have easy access to medical care (legislative fact drawn from policy studies affecting a class)

3. counter -ex: whether a person will be shocked if they stick a key in an electrical outlet (evaluative facts - jury facts - matters of common knowlegde)

4. counter-ex: whether the rule against admission of subsequent remedial measures applies in a strict liability case (substantive law)

B. Must be not subject to reasonable dispute

1. generally known in the locality

a. ex: whether 5th and Main is a business district.

2. capable of accurate and ready determination by resort to reliable sources.

a. whether RADAR is a reliable way to determine the speed and distance of an object.

C. Judge may take judicial notice without prompting

1. ex: on appeal of a civil case, the defendant claims that the plaintiff did not establish that the phone company was a common carrier for purposes of the statute (an element of the cause of action). The appellate judge may cure the defect by taking judicial notice of such. NOTE this is not true for criminal cases as to an element of the crime failed to be proven.


2. however, the judge may not take judicial notice of facts based solely on his own experience and knowledge.

a. ex: a judge may not take judicial notice of the fact that law school is a difficult, time consuming endeavor, solely based on his own personal experience.

D. Judge must take judicial notice of a fact when requested by a party and supplied with the necessary information.

1. ex: if a party provides a calendar to the judge and asks him to take judicial notice that May 10th, 1996 was a Friday, the judge may not refuse.

2. the “necessary information” is not subject to the rules of evidence, because it is not evidence.

3. courts may, however, decline to take judicial notice of facts contained in court records from other jurisdictions (because the information is not sufficient), but that just means the proponent must get it into evidence somehow (public records exception).

E. The adverse party (against whom the notice is determined) is entitled to a timely hearing on the propriety of the notice.

F. Judicial notice may be taken at any time during the proceeding, even on appeal.

G. Jury instructions:

1. in a civil action, the court tells the jury that it must find a judicially noticed adjudicative fact to be true.

2. in criminal cases, the court tells the jury that it may, but is not required to, find the judicially adjudicative noticed fact to be true. (but legislative and other facts not covered by 201 are not so limited).

XII. Privileges - Rule 501

A. governed by statute, rule, common-law, or state law (in diversity cases)

B. Types of recognized privileges:

1. attorney-client privilege

a. holder is the client

b. client must reasonably believe that the communication is “confidential”

1) does not apply to prevent a third person, who was overtly present at the time of communication, from later testifying if their interests become adverse. (i.e partnership turned sour)

2) does not apply to non-assertive behavior which anyone could observe (i.e. drunkeness at the time of consultation)

3) does not apply to eavesdroppers unless the party has taken reasonable steps to prevent the eavesdropper from hearing.

4) presence of unnecessary third person destroys privilege (i.e. client’s parents come along for “moral support”)

c. applies to past crimes, but not future crimes

1) ex: if client tells attorney that he intends to lie on the stand, that is not privileged communication

d. must relate to the scope of legal services/advice

1). counter-ex: privilege does not exist for communications with an attorney hired to sell a piece of real estate

e. extends to persons/agents reasonably necessary for attorney to conduct his business

1) ex: secretaries, copy clerks, accountants, engineers, etc.

2) only covers actions by these agents if it is futhering the legal assistance, not if it is performing an independent service.

f. covers information supplied to the defendant only if that would disclose the nature of information supplied by the defendant, but not if anyone could have told the defendant.

1) ex: attorney may not claim privilege when asked whether he informed the defendant of the hearing date.

g. client may not create the privilege by giving otherwise discoverable documents to his attorney in order to shield them

1) privilege does exist for documents that would be privileged for self-incrimination, had the person kept them (i.e. business records of sole proprietorship)

h. if attorney disturbs evidence that he found based on confidential communications, then the attorney must disclose the condition of the evidence (location, etc) as it was when he found it

1) prevents a race to get to evidence in order to alter/destroy/disqualify it.

i. for corporations, an employee may hold the privilege on behalf of the corporation if:

1) instructed by management to speak with the attorney

2) attorney needed the information to counsel the corporation

3) statements made in the scope of employment

4) employee knew the statements were made to an attorney

5) the employee had a reasonable expectation of confidentiality.

j. interviews with non-employees may still be protected by the work product doctrine.

k. identity of the client is normally not privileged unless:

1) the name of the client is only material for the purpose of proving an element of the crime (last piece of the puzzle)

2) the identity would implicate him for the very matter for which he sought legal advice in the first place

3) disclosure of his identity would result in disclosure of confidential information

l. negotionations toward an attorney client relationship are privileged unless the attorney makes it clear that there is no privilege at the outset.

2. psychotherapist-patient

a. patient (not doctor) must reasonably believe that the statements were necessary for accurate diagnosis or treatment

1) ex: does not matter that psychotherapist never intended to treat caller who confessed to murder over the phone, as long as he reasonably believed so based on her questions.

3. husband-wife

a. adverse testimony privilege

1) witness-spouse is the holder, so she chooses whether or not to testify, but can not be prevented from testifying by defendant spouse unless communcation was confidential

b. confidential communications privilege

1) held by defendant spouse, so he can prevent testimony on confidential matters.

2) exception: not available for communications concerning ongoing criminal activity (“partnership in crime”) because outweighed by justice concerns.

3) is available for confidential confession of past crime.

4. self-incrimination

a. applies only to coerced testimonial evidence

1) counter-ex: refusal to take a breath analyis test may be mentioned to the jury because it is not testimonial

2) does not apply to the contents of non-coerced writings, but may apply to their compelled production because that is an admission both of their existence and authenticity (in such a case the gov’t would have to provide independent evidence of the authenticity and origin of the writing)

b. a witness must take the stand to assert the privilege

c. a criminal defendant need not take the stand at all.

1) prosecution may not comment on the defendant’s failure to testify, and so jury may not infer guilt from silence at trial.

d. does not apply to a corporation, only natural persons

e. evidence having any tendency to incriminate is privileged

f. immunity must be granted for use of incriminating statments

1) if use immunity is granted, the defendant must answer the question.

g. does not apply to records required to be kept by statute:

1). ex: firearm registration, tax on illegal activites, etc.

h. privilege must be asserted before the matter is opened up, because thereafter, privilege with respect to the entire issue is waived.

XIII. Authentication/Foundation

A. only need evidence sufficient to support a finding (by a reasonable jury) that the matter is what the proponent claims -Rule 901

1. illustrations (not exhaustive) of sufficient authentication

a. testimony of witness with personal knowledge

b. non-expert opinion on hadnwriting

1) ex: lay witness testifies that he has seen the defendant’s signature several times before in the course of regular business (not in preparation for litigation), and that this looks like his signature now.

c. comparison by the jury or by an expert

d. distinctive characteristics

e. identification of a voice from hearing it at any time

1) if voice was recorded, then the proponent probably must lay a foundation for the competence of the machine and the operator, as well as the absence of material alterations.

f. process or system that produces accurate results

1) ex: computer program that is shown to be reliable.

B. Self-authentication

1. public documents under seal

2. public documents not under seal if a person who has a seal vouches for their genuineness

3. certified copies of public records

4. official publications

5. newpapers and periodicals

a. for the purpose of showing that they are what they claim to be, not for the hearsay purpose of proving the truth of their contents

6. trade inscriptions

a. ex: coca-cola inscription on a bottle is sufficient to show that it was made by coca cola.

7. telephone identification

a. ex: you call the correct number, and a person on the other end answers “this is Bill” is sufficient evidence that it is actually Bill (but not if Bill called you)

C. Best-evidence Rule

1. to prove the content of the document, you should produce the original, unless:

a. a duplicate is available and there is no genuine question raised as to the authenticity of the original

b. it would be unfair to admit a duplicate

c. the original has been lost, detroyed, or is unobtainable not due to the action of the proponent

d. the writing is as to a collateral matter

1) ex: the existence of a debt may be proved without producing the receipt if there is independent evidence of its existence.

2. there is no pecking order of preferable evidence if the original is not available

3. the nubmer of generations of duplicates is unimportant if the each can be linked in succession to the original

4. expert witness does not need to produce the original if it was the basis for his opinion (unless he is merely describing its contents) because he can base his opinion on matters outside of evidence.

5. a party may admit the contents of a writing without producing the original if it is offered against them.






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