Evidence on trial effectively using the rules of evidence
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Evidence on Trial: Effectively Using the Rules of Evidence. Ray Brown and Larry J. Cohen Alaska Bar Association Anchorage, Alaska March 2, 2004. Program Goals. Leave with practically useful framework for working with the rules of evidence The rules are our friends!

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Evidence on trial effectively using the rules of evidence

Evidence on Trial: Effectively Using the Rules of Evidence

  • Ray Brown and Larry J. Cohen

  • Alaska Bar Association

  • Anchorage, Alaska

  • March 2, 2004


Program goals

Program Goals

  • Leave with practically useful framework for working with the rules of evidence

  • The rules are our friends!

    • Impression is that lawyers generally aware of the rule but lack working familiarity that affords opportunity to take advantage of them


Program content

Program Content

  • Evidence Principles Generally

  • Objections in Practice

  • Evidence Rules Analysis


Program level

Program Level

  • Beginning to Intermediate Level Program

  • Focus on Practical Aspects of Evidence Practice

  • Provide as Many Practice Tips as Can in the Time Available


Presentation format

Presentation Format

  • Some Lecture

  • Lots of Illustrations

    • Invite your participation

  • Lots of Discussion

    • Starts with You


What are we talking about here

What are we Talking About Here?

  • Evidence

    • Materials from which inferences may be drawn as the basis for proving the truth or falsity of a fact in dispute

  • Types of Evidence

    • Direct – proves a proposition directly, in one step and without inference

    • Circumstantial – proves a proposition through an inference based one or more pieces of information


Forms of evidence

Forms of Evidence

  • Testimonial

    • Oral testimony under oath in court

      • Hearsay when admitted

  • Tangible

    • Real – the real thing at issue in case

      • Murder weapon; contract

    • Demonstrative -visual or audio aide to help the fact finder understand other form of evidence

      • Model, chart, diagram

  • Testimonial-Tangible

    • Hybrid of the Two

      • Deposition transcript


The rules of evidence all of them

The Rules of Evidence – All of Them!

  • 100 Series: Court Rules

  • 200 Series: Judicial Notice

  • 300 Series: Presumptions

  • 400 Series: Relevancy

  • 500 Series: Privileges

  • 600 Series: Witnesses

  • 700 Series: Opinions

  • 800 Series: Hearsay

  • 900 Series: Authentication and Identification

  • 1000 Series: Writings, Recordings, Photographs

  • 1100 Series: Miscellaneous


Preliminary observations about rules of evidence

Preliminary Observations about Rules of Evidence

  • Focus on the principles or reasoning underlying the rules

    • Look beyond the letter of the rules

  • General purpose is to exclude that which is unreliable, untrustworthy, prejudicial, capable of misuse, or inefficient

    • Distinguish from privileges which deals with information though reliable and relevant is protected for policy reasons


Preliminary observations cont

Preliminary Observations (cont.)

  • Evidence should be evaluated at multiple levels

    • Just because meets one evidentiary hurdle does not mean it is admissible

  • Apply rules whenever there is an admissibility issue

    • At any point in proceeding

    • In any venue


Objections

Objections

  • Best Made Before Trial

    • Motion to Preclude Evidence

    • Pretrial Memorandum

    • Motions in Limine


Pretrial motions

Pretrial Motions

  • Take Advantage of Opportunity

  • Goals

    • Resolve Evidentiary Issues

    • Educate Judge as to Issue

  • Timing of Motion

    • Pre-Trial

      • Discovery

      • Motions in Limine

    • During Trial

      • Raise New

      • Reassert


Pretrial motions cont

Pretrial Motions (cont.)

  • Content

    • Item of Evidence in Issue

    • Authority

    • Prejudice

    • When Anticipate Will Come Up

    • Why Require Pre-Trial Ruling

    • Using Opponents Admissions at Trial

    • Relief Sought

  • Be Clear About Court’s Ruling

  • Do Not Waste Court’s Time

    • Remember Rule 1: Credibility


Factors to consider in deciding whether to object during trial

Factors to Consider in Deciding Whether to Object During Trial

  • Jurors Dislike Objections

  • Will the Answer Hurt Your Case

    • Sometimes Answer will Help Case

    • Does the Foundation Hurt Worse than the Answer

  • Does Your Objection Have a Solid Legal Basis

  • Do You Need to Protect the Record

  • Will the Objection Serve a Tactical Advantage


The practice of objecting during trial

The Practice of Objecting During Trial

  • Timely

    • Make objection to question before answer given

    • Make objection to answer before next question

  • State “objection” and then reason

    • Reason given should state legal basis as simply as possible

    • Judges vary in how want attorney to object


Common objections at trial

Common Objections at Trial

  • Objections to form

    • Usually can be cured by rephrasing

  • Objections to substance

    • Capacity to cure depends on what facts are available to overcome objection

    • May be legal considerations that preclude cure


Categories of objections

Categories of Objections

  • Objections to Questions

  • Objections to Answers

  • Objections to Exhibits

    • Evidentiary

    • Demonstrative


Common mistakes attorneys make when objecting

Common Mistakes Attorneys Make When Objecting

  • Delay in objecting until the answer is in

  • Fail to move to strike after answer in

  • Objects to question first time asked, but not subsequently

  • Failure to direct objection to the judge

  • Withdraw objection when there is an adverse ruling


Common mistakes attorneys make when objecting cont

Common Mistakes Attorneys Make When Objecting (cont.)

  • Argumentative or emotional when objecting

  • Allow emotionally laden terms in question

  • Does not object to irrelevant material

  • Argue with court after decision made


Objection tips

Objection Tips

  • Consider making general objection first

    • When objection sustained court’s ruling not disturbed so long as any basis for ruling

      • But do not hesitate to be specific if it appears that the judge is waiting for the specifics

      • Be specific to preserve when objection over-ruled and evidence admitted

    • When get specific include all possible bases


Objection tips cont

Objection Tips (cont.)

  • Be clear that you are making an objection

    • To the court

    • To the jury

  • Make objection intelligible to the juror

  • Do not lead the court into error


Objection tips cont1

Objection Tips (cont.)

  • When on the receiving end, ask for the specific basis of a sustained general objection

  • Make your record

  • Rise when make objection

  • Seek continuing objections when can


When to make offer of proof

When to Make Offer of Proof

  • Use Where Objection has Successfully Precluded Admission of Evidence

    • May convince the trial judge made a mistake

    • Create record for the reviewing court

      • See Rule 103


How to make offer of proof

How to Make Offer of Proof

  • Always outside presence of jury

    • Interrupt trial

    • Ask court for opportunity during recess

  • Two Methods

    • Lawyer tells court what proposed evidence would be

    • Examination of witness

  • Be sure offer conforms to applicable rules of evidence

    • Where exhibit make part of the record


Other times to object

Other Times to Object

  • Jury Selection

    • Mentions insurance (411)

    • Discusses law

      • Other than to put question in context

    • Discusses facts

      • Other than to put question in context


Other times to object cont

Other Times to Object (cont.)

  • Opening Statement

    • Argues law or instructions

    • Argues inferences to be drawn from evidence

    • Mentions inadmissible evidence

    • Mentions facts that cannot be proven

    • Gives personal opinions


Other times to object cont1

Other Times to Object (cont.)

  • Closing Argument

    • Misstates evidence

    • Misstates law

      • Including jury instructions

    • Gives personal opinion

    • Appeals to jury’s bias, prejudice, financial interest

    • Personal attack on opposition

      • Party or attorney

    • Prejudicial argument


Specific objections 1

Specific Objections #1

  • Relevance – 400 series rules

    • Is it relevant? (401, 402)

    • If relevant, is it prejudicial (403)

    • Do character trait factors apply (404, 405)

    • Do other act considerations apply (404b)

    • Do habit rules apply (406)

    • Do policy exclusions apply (407-412)

  • Consider insisting on offer of proof before evidence presented to jury


Specific objections 2

Specific Objections #2

  • Materiality – implicit in 400 series rules

    • Does evidence have a logical bearing on an issue in the case

  • Generally subsumed within the relevance objection


Specific objection 3

Specific Objection #3

  • Incompetence – 600 series rules

    • Not presumed competency (601)

    • Has witness taken oath (603)

    • Does witness have first hand knowledge (602)

    • Can witness be understood (604)

    • Incompetent for policy reasons: judges, jurors (605, 606)


Specific objections 4

Specific Objections #4

  • Privileged Communication (501)

    • Is there a privileged relationship

    • Has the privilege been waived

      • Expressly

        • Written

        • Oral

      • Implicitly

        • Issue in the case

      • By conduct

        • Disclosure to third party


Specific objections 5

Specific Objections #5

  • Best Evidence Rule (1001)

    • Is it a writing, recording or photograph

    • Is there a genuine dispute over authenticity of original document

    • Where duplicate offered is there a genuine dispute as to whether true duplicate


Specific objections 6

Specific Objections #6

  • Parol Evidence Rule

    • Is there extrinsic oral evidence

    • offered to modify or contradict a contractual instrument

      • that is complete and clear on its face

    • that was freely entered into by competent parties

    • Focus is on eliciting testimony to explain

      • What parties intended

      • What terms of contract mean to the parties


Specific objections 6 cont

Specific Objections #6 (cont.)

  • Is there an Exception to Parol Evidence Rule

    • Mistake

    • Incompleteness

    • Ambiguity

    • Other uncertainties of the contract

  • Should insist on offer of proof to establish that an exception applies


Specific objections 7

Specific Objections #7

  • Lack foundation

    • Does the witness have the necessary fund of information from which to offer the testimony

    • Is there sufficient factual information to establish that an exhibit is what it purports to be

      • Would it be better to leave foundation incomplete


Specific objections 8

Specific Objections #8

  • No authentication (901, 902)

    • Has the witness established that the exhibit is what the proponent purports it to be

      • Not that business records exception applies only to hearsay problem

    • Is the exhibit self-authenticating


Specific objections 9

Specific Objections #9

  • Hearsay (801-805)

    • Is the “statement” one made by the declarant outside of court (801)

    • Is the “statement” offered to prove the truth of the matter asserted (801)

    • Is the statement by definition “not hearsay” (801d)

    • Is there an applicable exception

      • Witness available (803)

      • Witness not available (804)

    • Is there hearsay within hearsay (805)


Specific objections 10

Specific Objections #10

  • Leading (611c)

    • Does the question which suggests its own answer

    • Is the question simply preliminary or positional

    • Can the leading nature of the question be easily remedied

      • Is there any substantive significance to the leading nature of the question


Specific objections 11

Specific Objections #11

  • Narrative (611a)

    • Does the question permit counsel the opportunity to make a timely objection

      • Applies to question and answer

    • Is the narrative productive or confusing


Specific objections 12

Specific Objections #12

  • Lay Opinion (701)

    • Is the testimony an inference or an observation

    • Is the inference reasonably drawn from facts actually perceived

    • Is the inference helpful to the jury

      • In understanding the testimony

      • In deciding a fact in issue


Specific objections 13

Specific Objections #13

  • Expert Opinions (702-705)

    • Is the person qualified as an expert (702)

    • Is the opinion based on scientific, technical or other specialized knowledge (702)

    • Is the opinion helpful to the jury (702)

      • In understanding the evidence

      • In determining a fact in issue


Specific objections 13 cont

Specific Objections #13 (cont.)

  • Is the opinion based on facts (703)

    • Perceived by the expert

    • Made known to the expert

  • Are the facts relied on of a type reasonably relied on by those in field

  • Have the underlying facts been disclosed

    • May limit objecting party to cross examination


Specific objections 14

Specific Objections #14

  • Repetitive (611a)

    • Has question previously been asked and answered

      • Is the cumulative nature of the testimony prejudicial

      • Does the cumulative nature of the testimony waste time

    • Even where question phrased differently does it call for an answer previously given

    • Note that there is no specific rule dealing with repetitive questions

      • Issue within scope of trial judge’s discretion


Specific objections 15

Specific Objections #15

  • Assumes facts not in evidence

    • Does question presume fact that is not in evidence

      • Especially applicable to cross examination

      • May apply to direct examination where assumes witness has knowledge that is not in evidence


Specific objections 16

Specific Objections #16

  • Misstates evidence or misquotes witness

    • Does question misstate substance of previously received evidence

    • Has attorney repeated this witness’ testimony inaccurately

  • Judge will often leave to the jury its recollection of the prior testimony


Specific objections 17

Specific Objections #17

  • Confusing, Misleading, Ambiguous, Vague, Unintelligible

    • Is question sufficiently clear for witness to focus on the information solicited by the question


Specific objections 18

Specific Objections #18

  • Speculative

    • Does question call on the witness to speculate or guess

      • But can the witness provide a reasonable estimate

  • Note that speculation often permitted with expert with respect to opinions offered or inferences drawn


Specific objections 19

Specific Objections #19

  • Compound

    • Does the question elicit information about two different facts

    • Is the answer to the question likely to be unclear about the fact in issue

      • Risk that counsel will try to use answer applicable to part of the question to infer the entire question


Specific objections 20

Specific Objections #20

  • Argumentative

    • Is the question arguing the fact to the jury

    • Does the question seek to elicit new information


Specific objections 21

Specific Objections #21

  • Improper Characterization

    • Does the question ask the witness to characterize a fact

    • Does the question ask the witness to label a party or witness or event


Specific objections 22

Specific Objections #22

  • Unresponsive/Volunteered

    • Does the scope of the answer exceed the target of the question

      • Historically most jurisdictions only allowed the party asking the question to make this objection

      • If the answer otherwise objectionable may be challenged on those other grounds


Specific objections 23

Specific Objections #23

  • Prejudicial Effect Outweigh Probative Value (403)

    • Does prejudicial effect outweigh probative value


Specific objections 24

Specific Objections #24

  • Cumulative (611, 403)

    • Does the witness offer something that prior witness or evidence has not covered


Specific objections 25

Specific Objections #25

  • Outside the scope (611b)

    • Is the question asked on redirect directed to an issue raised in cross examination

      • Note that in federal court cross examination is limited by direct examination

      • Note that the objection can be made to rebuttal testimony

        • Is the rebuttal directed to evidence offered by opposing party

      • Note that may avoid objection by seeking to re-open the case


Specific objections 26

Specific Objections #26

  • Improper Impeachment (613)

    • Is there a good faith basis for presenting the impeaching evidence

      • Note that either party may impeach witness (607)

    • Is the evidence offered in fact impeaching

    • Where impeach using extrinsic evidence of prior inconsistent statement has the witness been given the opportunity to admit, deny or explain the impeaching matter

      • May impeach where the witness denies or equivocates


Specific objections 26 cont

Specific Objections #26 (cont.)

  • Has the impeaching party read impeaching statement verbatim

  • Has the impeaching party taken the statement out of context

  • Has the impeaching party given the witness opportunity to confront impeaching statement

  • Has the Impeaching party proven up impeaching statement


Court proceedings analysis 100 series

Court Proceedings Analysis – 100 Series

  • Erroneous ruling not subject to appeal unless involves substantial right and

    • Where issue is as to improper admission timely objection was made

    • Where issue is as to improper exclusion offer of proof

    • Plain error regardless of whether brought to attention of court


Court proceeding analysis cont

Court Proceeding Analysis (cont.)

  • Preliminary questions

    • Scope

      • Qualification to be a witness

      • Existence of privilege

      • Admissibility of evidence

    • Issue for the court

      • Court not bound by rules of evidence

        • Except as to privilege

      • Testimony by accused in criminal case on preliminary matter does not expose to cross-examination as to other issues

        • Not admissible at trial unless inconsistent with accused’s testimony at trial

    • Party not precluded from challenging weight and credibility


Court proceeding analysis cont1

Court Proceeding Analysis (cont.)

  • Limiting instruction where admissible

    • One purpose but not another

    • One party but not another

  • Remainders of writings and recordings

    • Where one party offers partial

      • Other party may offer other part or remainder

      • Where fairness justifies doing so


Judicial notice analysis 200 series

Judicial Notice Analysis – 200 Series

  • Shortcut for Establishing Facts or Law

  • When take notice

    • Any time during proceeding

    • May take notice whether requested or not

    • Must take notice where requested by party

      • Party furnishes information about fact

      • Sufficient notice for parties to meet the request

  • Give parties right to object

    • Where insufficient notice may object after notice taken

    • Court may consult any source in deciding whether to take judicial notice


Judicial notice analysis cont

Judicial Notice Analysis (cont.)

  • Notice Taken of Adjudicative Facts

    • Facts unique to the parties and litigation

    • Not subject to reasonable dispute

      • Known within jurisdiction

      • Capable of accurate and ready determination by resort to sources of unquestioned accuracy

  • Notice Taken of Law

    • Mandatory

    • Optional broader

  • Instruct Jury

    • Facts

      • Civil to accept fact as conclusive

      • Criminal may, but need not accept

    • Law accept as directed


Presumptions analysis 300 series

Presumptions Analysis – 300 Series

  • Another Shortcut for Establishing Facts

  • Procedural Device that Relates Two Factual Propositions so that Proof of First Fact (basic fact) is Treated as Proof of Second Fact (presumed fact)

    • May be predicated on common experience

    • May be predicated on statute as matter of public policy

  • Shifts Burden of Production

    • Proponent of presumption introduces evidence that basic fact is true

    • Opponent must produce evidence showing presumed fact not true


Relevancy analysis 400 series

Relevancy Analysis – 400 Series

  • Does the Evidence Tend to Prove or Disprove Fact of Consequence?

    • If no, irrelevant

  • Does the danger of unfair prejudice, confusion of issues, undue delay, misleading jury or waste of time outweigh the probative value of the evidence outweighed

    • If no, irrelevant


Relevancy analysis cont

Relevancy Analysis (cont.)

  • Are there policy reasons for excluding the evidence?

    • Subsequent remedial measures?

    • Offers to compromise?

    • Offers to Pay/Payment of medical expenses?

    • Liability Insurance?

    • Withdrawn guilty plea/Offers to plea guilty?

    • Statements made during plea bargaining?


Character evidence analysis

Character Evidence Analysis

  • Is evidence of other crimes, wrongs or acts offered to show action in conformity with character?

    • If no, admissible to show (KIPPOMIAA)

      • Knowledge

      • Identity

      • Preparation

      • Plan

      • Opportunity

      • Motive

      • Intent

      • Absence of mistake

      • Accident


Character evidence analysis cont

Character Evidence Analysis (cont.)

  • Character evidence offered to show action in conformity therewith admissible where offered

    • To show character or reputation when they are in issue

    • By criminal accused to show good character?

    • By criminal accused to show victim’s character

    • To reflect on credibility of witness

    • To support inference that committed a sex crime


Character v habit illustrated

Character v. Habit Illustrated

  • Hurried Behavior

    • Sally is always in a hurry - character

    • Sally always takes two stairs at a time - habit

  • Alcohol

    • Bill is a drunk -character

    • Bill stops at the tavern every night and has four beers -habit

  • Prudence

    • Susan is a careless driver -character

    • Susan never slows for the yield sign -habit

  • Cautiousness

    • Steve is very conscientious about taking care of his brakes - character

    • Steve checks the brakes every day before leaving for work - habit


Privileges analysis 500 series

Privileges Analysis – 500 Series

  • Privileges

    • Recognized bases for privilege

      • US Constitution

      • Alaska Constitution

      • Applicable statute

      • Applicable rule

      • Common law principles

    • Where privileged may to extent of privilege

      • Refuse to be witness

      • Disclose information

      • Produce object or writing

      • Prevent another from witness, disclose production


Privilege analysis cont

Privilege Analysis (cont.)

  • Matters Subject to Privilege

    • Reports privileged by statute

    • Lawyer client

    • Physician patient

    • Psychotherapist patient

    • Clerical penitent

    • Political vote

    • Trade secrets

    • Identity of informer


Privilege analysis

Privilege Analysis

  • Waiver

    • Express

    • Implied

    • But not where

      • Compelled erroneously

      • Made without opportunity to claim privilege

  • No comment on exercise of privilege

    • Where jury avoid disclosure of exercise of privilege


Competency analysis 600 series

Competency Analysis – 600 Series

  • Are you a person capable of perceiving, remembering and reporting

    • Competent unless

      • Judge

      • Jury

      • Interpreter

  • Will you take oath of affirmation

    • Competent unless will not


Capacity limitations

Capacity Limitations

  • Children

    • Age limits

      • May rebut by showing child capable of receiving impressions of facts and testifying truthfully

  • Mental deficiency

    • Whether such deficiency that cannot perceive, remember or relate event

  • Defect in perceptive ability

    • For jury as credibility or weight


Impeachment analysis

Impeachment Analysis

  • Are you a witness?

    • Then anyone can impeach you!

  • What have you done?

    • Opinion or reputation as to untruthful character

    • Opinion or reputation as to truthful character where character for truthfulness attacked


Impeachment analysis cont

Impeachment Analysis (cont.)

  • How have you done it?

    • Other than conviction of crime specific instances of conduct not permitted except on cross examination to explore

      • Character for truthfulness or untruthfulness of

        • Testifying witness

        • Another witness about who’s character present witness has testified

      • Note – 5th Amendment right preserved

    • Other than religious belief or opinion


Impeachment analysis cont1

Impeachment Analysis (cont.)

  • Does probative value of criminal conduct outweigh prejudicial effect?

  • Is it an adult adjudication?

    • Or criminal matter where character of witness other than accused

  • Was it a crime committed or release from confinement (later of which) within last ten years and

    • Punishable by death or imprisonment for more than year

    • Involve dishonesty or false statement

    • Non-recidivist within past year who received pardon, annulment or certificate of rehabilitation

  • Was notice given to other party of intent to use crime evidence?


Examination analysis

Examination Analysis

  • Court can do what it wants!

    • Control mode, order, length and examination of witnesses

    • Call its own witnesses

    • Examine your witnesses

  • If you’re leading you’d better be

    • On direct

      • Doing something other than developing testimony

      • Examining hostile witness

      • Examining adverse party

    • On cross

  • Examine any relevant subject you want on cross

    • Unless you are in federal court


Writings analysis

Writings Analysis

  • Writings used before or duringtrial to refresh witness’ memory

    • Produced upon request to adverse party

    • Subject to cross examination and admission

  • Prior inconsistent statements

    • Need not be shown to witness

    • But must be shown to opposing counsel

  • Extrinsic evidence of priorinconsistent statement other than party admission allowed only where

    • Witness given opportunity to explain or deny

    • Opposing party has chance to examine witness

  • You can kick out anyone, except

    • Person party

    • Entity designated representative

    • Person essential to opposing party

    • Crime victim


Opinion evidence 700 series

Opinion Evidence – 700 Series

  • Rules not intended to make admissible evidence which previously was inadmissible

  • Purpose of rules is to reduce use of hypothetical

    • Does not preclude objection as to foundation

    • But may be allowed to offer opinion if court satisfied that facts will be offered later


Opinion evidence analysis

Opinion Evidence Analysis

  • With a Lay witness

    • Opinions rationally based on what perceived

    • Helpful

      • Clear understanding of testimony

      • Determine fact in issue


Opinion evidence analysis cont

Opinion Evidence Analysis (cont.)

  • With an Expert Witness

    • Type of knowledge on which may draw

      • Scientific

      • Technical

      • Other specialized

    • Witness qualified by

      • Knowledge

      • Skill

      • Experience

      • Training

      • Education

    • Helpful to jury in

      • Understanding the evidence

      • Determine a fact in issue

  • Limited as to number of experts may call


Opinion evidence analysis cont1

Opinion Evidence Analysis (cont.)

  • Bases of Opinion

    • Perceived by expert

    • Made known to expert

  • Facts or data need not be admissible

    • But must be of kind reasonably relied on in field

    • And may be excluded where

      • Otherwise inadmissible

      • On balance risk of improper use outweighs value in supporting opinion

  • Opinion may extend to ultimate issues

  • No prior disclosure of facts or bases needed

    • Unless required by court

    • Requested on cross examination

  • Admissibility of opinion may be challenged before opinion offered


Hearsay analysis 800 series

Hearsay Analysis – 800 Series

  • Is the evidence a statement?

    • If no, not hearsay

  • Is the statement one made out of court?

    • If no, not hearsay

  • Is the out of court statement offered for the truth of the matter asserted

    • If no, not hearsay


Hearsay analysis cont

Hearsay Analysis (cont.)

  • Is the statement inconsistent with the declarant’s testimony

    • If yes, admissible

  • Is the statement consistent with the declarant’s testimony offered to rebut a charge of recent fabrication or improper influence or motive?

    • If yes, admissible

  • If the statement made for purposes of identification of person made after perceiving that person

    • If yes, admissible


Hearsay analysis cont1

Hearsay Analysis (cont.)

  • Is statement offered against a party

    • Where party’s own statement in individual or represented capacity

      • If yes, admissible

    • Where party manifested an adoption or belief in truth

      • If yes, admissible

    • Where agent was authorized to make the statement

      • If yes, admissible

    • Where agent made statement with scope of agency

      • If yes, admissible

    • Where co-conspirator during conspiracy

      • If yes, admissible


Hearsay exceptions principles

Hearsay Exceptions - Principles

  • 803 exceptions (declarant available)

    • Circumstances make out of court statements more reliable than what would be available in court

      • Concession to influence of on-going controversy on how witnesses testify

      • Even with cross-examination

  • 804 exceptions (declarant unavailable)

    • Out of court statements are better than nothing at all

      • Assess why unavailable

      • Indicia of trustworthiness suggested by criteria in exceptions


Authentication analysis 900 series

Authentication Analysis – 900 Series

  • Foundation for real evidence

    • Relevant

    • Is what it purports to be

  • Through extrinsic evidence

    • Generally admit where sufficient to show matter in question is what it purports to be

    • Exceptions

      • Criminal

        • Real evidence

          • Not readily identifiable

          • Subject to alteration

        • Testimony about real evidence based on information acquired while in control of prosecutor

      • All cases where probative value of real evidence does not outweigh prejudicial effect


Authentication analysis cont

Authentication Analysis (cont.)

  • No extrinsic evidence required (self authenticating)

    • Domestic public documents

    • Foreign public documents

    • Certified copies of public records

    • Official publications

    • Newspapers or periodicals

    • Trade Inscriptions and the like

    • Acknowledged Documents

    • Commercial Paper and Related Documents

    • Presumptions created by law

    • Certified records of regularly conducted activity


Original writing analysis 1000 series

Original Writing Analysis – 1000 Series

  • Applies only to documents, writings and recordings

    • Original required to prove content unless

      • Otherwise provided by statute

      • Otherwise permitted by rules

        • Duplicate unless

          • Genuine issue as to authenticity

          • Unfair to admit duplicate

        • Original lost or destroyed

        • Original not obtainable

        • Original in possession of opponent

        • Original related to collateral matter

        • Public record not obtainable by reasonable diligence


Original writing analysis cont

Original Writing Analysis (cont.)

  • Summaries permitted

    • Voluminous

    • Not conveniently examined as such in court

    • Originals available for review

      • Court may order produced in court

  • Content may be proven by testimony of adverse party

    • Also declarant whose statements are attributable to party

  • Dispute over admissibility

    • Court – where issue is fulfillment of condition of fact

    • Jury where issue is

      • Whether document existed

      • Whether document is original

      • Where contents of document disputed


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