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Barbara E. Bergman Professor of Law Pamela B. Minzner Chair in Professionalism

Barbara E. Bergman Professor of Law Pamela B. Minzner Chair in Professionalism University of New Mexico Law School 1117 Stanford, N.E. Albuquerque , New Mexico 87131 (505) 277-3304 Email: bergman@law.unm.edu. Creative. &. Aggressive. Uses of Evidence to Win.

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Barbara E. Bergman Professor of Law Pamela B. Minzner Chair in Professionalism

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  1. Barbara E. Bergman Professor of Law Pamela B. Minzner Chair in Professionalism University of New Mexico Law School 1117 Stanford, N.E. Albuquerque, New Mexico 87131 (505) 277-3304 Email: bergman@law.unm.edu

  2. Creative & Aggressive Uses of Evidence to Win Or, at least, stay out of trouble.

  3. Impeach Everyone Who Doesn’t Show Up Especially Co-Conspirators

  4. Only applies to hearsay statements offered for the truth. U.S. v. McClain 934 F.2d 822, 832-33 (7th Cir. 1991) (co-conspirators statements admitted only to put defendant’s statements in context not admitted for the truth; Rule 806 did not apply)

  5. Rule 806 In Practice Brady/Giglio disclosure Severance

  6. U.S. v. Perez 299 F. Supp.2d 38 (D. Conn. 2004) Defendant’s severance motion granted

  7. -Prior Convictions - Inconsistent Statements - Bias and Motive - Opinions and Reputation - Bolstering a Witness R. 806 Impeachment Opportunities

  8. - Extrinsic Evidence May be Admissible under Rule 608(b) in Federal Court - Defense Attacking Reliability of the Defendant’s Out-of-Court Statements - Advanced Course R. 806

  9. ! Gov’t can Impeach your Non-Testifying Client, too.

  10. Make the Prosecutor EAT Her Words

  11. Make Prosecutor EAT Her Words. Fed. R. Evid. 801(d)(2) • Statements from Other Cases • Statements from the Bill of Particulars • Statements from Pretrial Proceedings • Statements from Search Warrants • Statements by Informants • Statements in Writings • Statements on Appeal

  12. Make Prosecutor EAT Her Words. Fed. R. Evid. 801(d)(2) M-DQ STATEMENTS

  13. Make Prosecutor EAT Her Words. Fed. R. Evid. 801(d)(2) M-DP Violation (Publicity) STATEMENTS Goals: 1) win, 2) educate the court; used State’s admission from DQ motion

  14. Make Prosecutor EAT Her Words. Fed. R. Evid. 801(d)(2) M-Change of Venue STATEMENTS

  15. Make Prosecutor EAT Her Words. Fed. R. Evid. 801(d)(2) – NON-EVIDENCE ISSUES Judicial Estoppel Due Process

  16. YOU No Eat Words.

  17. FRE 106 Get your Evidence On During Prosecution’s Direct

  18. Do NOT wait ‘til Cross Usuallydoes NOT apply to oral statements (unless recorded) R.106

  19. Relevance of What you Want Efficacy – will admission “qualify explain, or place in context...” FAIRNESS TEST:

  20. ? What if: Your Evidence Is Otherwise Inadmissible

  21. ? WhENiS: A “Writing or Recording Complete”

  22. Don’t Open the Door to Admission of Otherwise Excluded Evidence. !

  23. R. 608: WorkThatLie

  24. Use Their Documents

  25. Obtain the documents that Prosecution witnesses use to refresh their memories while testifying. Obtain the documents that Prosecution witnesses use to refresh their memories beforetestifying.

  26. PROTECT YOUR DOCUMENTS

  27. EXPERTS To aid your cross-examination. To exclude prosecution’s evidence.

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