Leading not allowed on cross when exam is in form not fact E.g., cross of party by his own counsel FRE 106 – Rule of Completeness If a party introduces a writing or recording, adverse party can require introduction, at that time, of any other evidence that in fairness should be considered at the same time To apply, the portion of the statement itself must be misleading Beech Aircraft: Π wrote letter describing theory of crash and indicating decedent was tired and tried to cancel flight, and that the plane made evasive maneuvers during the flight Δ lawyer asked only about the two indications, on cross Π could discuss his theory of the letter under 106 for completeness FRE 615 – Sequestering Witnesses At party’s request, the court must order witnesses excluded so they can’t hear other witness testimony Can’t exclude (a) party who is a natural person, (b) officer/employee of a party who isn’t a natural person, (c) any person whose presence is essential to a claim/defense, (d) person authorized to be present by statute Policy: Discouraging fabrication, intimidation, avoiding W changing testimony to conform to others, privacy, distracting the jury FRE 614 – Questioning by Judge (a) Court can call/examine witnesses, both parties can cross (b) Court can examine any witness called (c) Party can object to court calling/questioning NOTE: Reversible error if judge reveals his views/opinion – concern is opinion towards witnesses, not towards attorneys Tilghman – Can’t question witness in critical capacity in a close case Questions by Jury Jurors can’t ask questions orally – Submit to judge, allow opportunity for objection, then judge/attorney can ask it Specific procedure depends on jurisdiction WITNESS COMPETENCE Analysis Witnesses are assumed competent to testify (FRE 601) Issues are most often about weight/credibility (for jury), not competence If they have personal knowledge of the facts they are testifying about (FRE 602) Assumes capacity to recall the facts; can prove with W’s testimony alone And they are willing, and do, take an oath (FRE 603) Understand duty to be truthful (“awaken the conscience”) – exact words are less important, but can’t attempt to manipulate/circumvent the oath (1st Am.) (Ward) Judge can allow limited questioning to determine competence (Allen J.) But in camera hearing is not necessary
Statements made during nolo plea negotiation are admissible! Exceptions: If another statement is admitted and context/completeness requires admission; during perjury proceeding and statement was made under oath, on the record, and with counsel present US v. Mezzanatto (1995) Issue: Can Δ waive 410 exclusion? Held: Δ can waive evidence rules, waive-able even against subsequent objection Concurring: Ok for impeachment, not ok for case in chief Medical Expenses Offers to pay medical/hospital/similar expenses resulting from injury is inadmissible to prove liability for the injury (FRE 409) 409 does not extend to conduct/statements not part of the act of offering to pay medical expenses (i.e. statements proving culpability, etc.) Liability Insurance Evidence that a person was/wasn’t insured against liability is inadmissible to prove whether the person acted negligently or otherwise wrongfully (FRE 411) Admissible to show bias, prejudice, proving agency, ownership, or control Charter – Evidence to impeach and impeachment witness showing the witness represents Δ's malpractice carrier was admissible to show bias Higgins – Evidence that Δ had liability insurance inadmissible when Π’s sue re lip created during highway re-paving Π theory that jury will be biased as taxpayers because Δ was the city Modern conception – Exclude to avoid jury finding liability on the theory that it really isn’t Δ’s $ EXPERTS/OPINION EVIDENCE Lay Witness Opinion Testimony Analysis – (FRE 701) Based on first-hand observation Helpful to the jury Not the product of specialized expertise FRE 701 – Opinion testimony by lay witnesses If a witness isn’t testifying as an expert, opinions are ok if: Rationally based on W’s perception Helpful to clearly understanding W’s testimony or determining a fact in issue And not based on scientific, technical, or other specialized knowledge within the scope of FRE 702 Meling – 911 operator and paramedic testimony admissible to show Δ was feigning grief based on their experience dealing with emergency situations Knight – Eyewitness to pistol-whipping admissible to show gun discharge was accidental, cop testimony of same inadmissible because he wasn’t present Peoples – Officer testimony translating slang from recorded conversation between two Δs inadmissible as lay opinion – not based on personal perception
Crime-Fraud Exception – ACpriv ceases to operate when the desired advice refers not to prior wrongdoing, but to future wrongdoing (Zolin) – Does not extend to advice for the commission of a crime or fraud In camera review to determine presence of privilege may be triggered on good faith showing Corporate Clients Employees acting at the direction of their superiors (or acting within the scope of corporate duties) may be considered clients of corporate in-house counsel (UpJohn) Work Product Privilege Documents prepared in contemplation of litigation Unless there is a showing of substantial need and inability to procure the same info without undue hardship Trial Mechanics Witness Competence Relevance Physical Evidence Hearsay/Nonhearsay Confrontation Not Hearsay – OPS, PIS, PCS, PI Hearsay Exceptions – PSI, EU, State of Mind, Injury Report, Recorded Recollection Hearsay Exceptions – Business Record, Public Record Hearsay Exceptions – Witness Unavailable, Prior Testimony Exceptions – Dying Declaration, Statement against Interest, Forfeiture by Exceptions – Residual Exception, Due Process Character Evidence Impeachment Rehabilitation Forbidden Inferences Experts/Opinion Evidence Scientific Evidence – Statistics Scientific Evidence – Experts TRIAL MECHANICS FRE 104(a) – Court decides any preliminary question about whether A witness is qualified, privilege exists, evidence is admissible And in deciding, is not bound by evidence rules, except for privilege Standard is preponderance of the evidence FRE 103 – When objection is preserved (admitted: timely, stating correct grounds; excluded: offering proof of substance) Abuse of discretion; otherwise Plain error FRE 611
Public Records (FRE 803(8)) – Record if it sets out Office Activities (narrow ministerial things like time cards) Matter observed under duty to report (narrow report of rainfall statistics) In criminal case – no statements of law enforcement (also applies to BR) Factual findings of a legally authorized investigation Only in civil case, or against government in criminal case (applies to BR) Factually based conclusions/opinions in report are not excluded No indication of lack of trustworthiness Hearsay Exceptions – Declarant Unavailable Witness is Unavailable (804(a)) Exempted by privilege Δ cannot exempt himself by asserting 5th Am. (Bollin) Refuses to testify despite court order Testifies to lack of memory Is unable because of death, physical, or mental illness Is absent and the proponent of the statement cannot procure attendance by process or other means Must make efforts beyond bare assertion that witness is beyond subpoena power (call, pay, attempt to locate, etc.) (Raymark) NOTE: For dying declaration, statement against interest, or statement of personal/family history, if D’s testimony could have been received, then D is not unavailable Prior Testimony (FRE 804(b)(1)) Prior proceeding must have oath/cross If this proceeding is criminal – Same person as this case must have cross examined witness and have same motive/opportunity to question Open question whether prosecutor has same motive/opportunity to question during grand jury testimony as at trial (Salerno) If this proceeding is civil – Must have same party or predecessor in interest with same motive/opportunity to cross Can be different Π/Δ, but need similarity of issues and motivation to question (Johns-Manville) Dying Declaration (FRE 804(b)(2)) D has settled, hopeless expectation of death Requires PK Only admissible in homicide and civil cases Only admissible if about the cause/circumstances of declarant’s death Irrelevant if D dies as long as elements are met Exception to Confrontation Statement Against Interest (FRE 804(b)(3)) Can come from any declarant Statement must be So contrary to D’s proprietary/pecuniary interest So great a tendency to invalidate D’s claim against someone
Dependent probabilities are not – P(X&Y) = P(X) x P(Y|X) Baye’s Theorem – Odds: Random Match Probability – Likelihood a random person has the same trait Source Probability – Likelihood Δ is the source of the evidence here Guilt Probability – Likelihood that Δ is guilty of the crime Prosecutor’s Fallacy – Idea that RMP = Guilt Probability BUT, P(match|innocence) ≠ P(innocence|match) Note: Statistical data requires foundation (Collins) – Traits must be independent, W’s testimony must be accurate, the traits must describe the guilty person Prior odds of guilt is the province of the jury Scientific Experts Frye – When expert renders an opinion on a new or novel technique, the technique must be generally accepted before admitting the evidence Daubert Whether the theory has been tested Whether it has been published/subject to peer review What the potential error rate is & whether there are SOPs “General Acceptance” Review for abuse of discretion (Joiner) Fit Inquiry (Joiner) Were the studies conducted in accordance with the method? Is there a basis for the expert’s conclusion based on that info? Daubert applies to both scientific data and expert opinion testimony (Kumho) PRIVILEGES Spousal Privilege Confidential Communication – Confidential disclosures between husband/wife Requires both to consent for disclosure, survives the marriage Broken with knowing presence of another or negligence Exceptions – Legal proceeding between spouses, crime-fraud, or crimes against children/spouse, commitment/competency proceedings, joint business owners Testimonial Privilege (Trammel) – Any non-confidential communication between husband/wife (essentially whether spouse can be called at all) Waived by the witness-spouse alone and can’t be compelled/foreclosed by other spouse, does not survive the marriage ACpriv Elements – Confidential, communication, between AC, rendering legal services Presence of parties involved in rendering legal services (paralegal, secretary) does not break privilege Exceptions – Testamentary, Fiduciary, Crime-Fraud (advice for future crime/fraud – in camera review of material triggered on good faith showing) Corporate Clients – Employees acting within scope of corporate duties are clients of in-house counsel (UpJohn) WPpriv