Understanding Evidence Rules in Legal Proceedings, Exams of Law

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Federal Rules of Evidence Law Final Exam

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Rule 403 - Correct Answers Court can exclude evidence if the probative value is substantially outweighed by unfair prejudice. The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence. Rule 103(a)(1) - Correct Answers to The basic idea here is that to preserve an issue for appeal you have to object. Not just say "objection" but say "objection violates Rule 403." You have to get this on the record, if you don't then you probably will not be able to raise it on appeal. Here's what this all means: Someone asks a question and they are calling for inadmissible evidence, you need to object right then (103(a)(1)(a)—between the time the question is asked and the question is answered. The grounds that you state your objection on are the grounds that you are stuck with on appeal. 103(a)(1)(b) Statement by a party opponent is rule? - Correct Answers 801(d)(2)(a) Rule 103(a)(2) - Correct Answers Proffer. When you're trying to offer evidence and the judge excludes it but you want to get it in the record to make sure the appellate court can consider it.

• I.e.: You want to bring an expert witness to testify but the judge says no, so, you want to get into the record that if you had been allowed to call this expert, this is what he would've said. Rule 103(b) - Correct Answers Not needing to renew an objection or offer of proof. You offered it once, the courts remembers. Now shut up. Rule 104(a): Give an example of when this rule would be used: - Correct Answers § 104(a) if there is a factual determination, then the standard is does the judge in her own mind think that it is more likely than not. § In 104(a) the judge in her mind is asking "do I believe this fact is true more than 50%?" If she does believe it is true more than 50% then it comes in.

§ In authenticating a video of an intersection where someone ran a red light, and you want to get that tape recording admitted and you have to show that it's authentic, the court will make that preliminary ruling. § The rule is, is it more likely than not that the thing being presented is true? That is a question decided by the judge. Then the jury decides what weight to give it. So basically, everything we work on is under this rule except for the two situations where 104(b) is used. Examples of 104(a): Does a judge allow a statement in? Has to determine if it's hearsay. Does a judge allow a tape recording in? Has to authenticate. Rule 104(b): And what are the two situations in which this rule is used? - Correct Answers § 104(b) if there is a factual determination, then the standard is whether a reasonable juror might believe it § In 104(b) the judge in her mind is saying "I don't believe it, I think it's only 40% likely, but a reasonable juror could believe it" so it comes in. o There are two situations where you use 104(B) § 1) The 404(b) standard of prior conduct/specialized knowledge/modus operandi § 2) When you admit something conditionally based on the fact that you will connect it up later Under which standard would it be easier to get evidence in? - Correct Answers 104(b). Rule 105 - Correct Answers Limiting Instruction

• Very often, evidence will be admissible for one purpose but not for another purpose. In that situation what you are supposed to do if you are on the other side is you ask the court to instruct the jury that they can only consider it for the admissible purpose, but they cannot consider it for the other purpose. Confrontation Clause is from which amendment? - Correct Answers 6th amendment Rule 301 - Correct Answers In a civil case, unless a federal statute or these rules provide otherwise, the party against whom a presumption is directed has the burden of producing evidence to rebut the presumption. But this rule does not shift the burden of persuasion, which remains on the party who had it originally. Rule 301: If the plaintiff brings evidence enough that a reasonable person would believe that the defendant violated a traffic ordinance, and then the defendant does not rebut

the fact that he was negligent. He does not say anything about negligence. Then here is the instruction to the jury on the negligence presumption: - Correct Answers if you find that the defendant violated the traffic ordinance, you are instructed to find that he was negligent. In other words, the defendant did not rebut the presumed fact (negligence) so ladies and gentlemen of the jury, you are directed to find that the defendant was negligent. Rule 301 : Next hypo. There is a no turn on red at this intersection and the defendant pulled up at a red light and he turned right. But this time the defendant says look, ok, there was no one around, there was no traffic for miles, it was a quiet residential street, it was 6am and ok, I turned right on red but I was not negligent. What is the instruction here? - Correct Answers o In that case he has rebutted the presumed fact, because the jury might think, yeah, he really was not negligent. So, if you rebut the presumed fact, then the way Rule 301 works is that the presumption goes away. "The bubble is burst." There is no instruction on the presumption at all. Rule 302 - Correct Answers Looking at Rule 302, in a civil case, state law governs the effect of a presumption regarding a claim or defense for which state law supplies the rule of decision. When are you in federal court on a state law claim? Diversity jurisdiction. In this scenario you would apply federal procedural law and you would apply state substantive law. What's that doctrine called? The Eerie Doctrine. Generally rules of evidence are procedural, so you apply federal procedural law (even if there is a state claim being brought which is using substantive state law). BUT, there are certain evidentiary rules that are more substantive than procedural, they are kind of on that substantive sideline and presumptions is one of those. We'll see this also with "competence" and "privileges"

• In a criminal case: o Do not apply 301 o Instead apply: - Correct Answers this rational connection test based on getting into the weeds and the specifics of it o If you can manage to get an instruction, it is that permissible inference type of instruction (you can find this presumption, but you do not have to) not a mandatory instruction (which would be found in a civil case) This is from the Ulster County v. Allen Supreme Court Case Rule 301 is only applicable in _____ cases? - Correct Answers Civil Rule 611(B) - Correct Answers Scope of Cross-Examination Rule 611(B) (Supplement p.18)
• Scope of Cross-Examination

o There are 3 buckets here: - Correct Answers § 1) Everything that the witness was questioned about on direct, you can ask him about (Within the scope of direct) § 2) Matters affecting credibility

3. The court will allow you to ask as if he was your witness § 1) Everything that the witness was questioned about on direct, you can ask him about (Within the scope of direct) - Correct Answers · There's a bit of lee-way here Cross examination may address new issues other than those covered in direct examination if the new issues are related to and made relevant by the earlier issues or bear on the witness's credibility. Rule 611(b) generally limits the scope of cross examination to the subject matter of the direct examination and matters affecting the witness's credibility. The rule also gives the trial judge discretionary authority to allow additional matters to be covered (like for instance if the opposing counsel purposely keeps his questioning of his witness short, for strategic reasons. (United States v. Lara) § 2) Matters affecting credibility - Correct Answers · Motive to lie · Bias · You can bring up events totally unrelated to the trial to prove that someone is not credible o Your eyesight is not very good is it? I see you are wearing glasses.. § 3) The court will allow you to ask as if he was your witness - Correct Answers means, if, on cross, you keep the scope of your questions locked on only what was asked on direct, then you can ask leading questions. But if, on cross, you are going to going to get into additional matters that were not referenced on direct, then "as if on direct" means you have to ask non-leading questions. o The rule on leading questions is that you cannot ask them on direct examination except under certain special situations which we have not discussed yet. True? - Correct Answers Yes. § You can't ask leading questions on direct. · There are exceptions. What are they? - Correct Answers o Hostile witness o Witness identified with the other party Rule 401 - Correct Answers test for relevance Rule 402 - Correct Answers § If it's relevant, it's admissible, unless another rule says that it is not admissible § There are lots of times where relevant evidence is not admissible Rule 411 - Correct Answers Insurance Liability

o Rule 411 Provides: (1:18:37) § 1st Sentence Summary: · If all you are doing is showing that somebody has got one million dollars of coverage, to show the jury that this person can pay a verdict, or that they are negligent, that is inadmissible. In other words, you cannot try to persuade a jury by stating something like: "Why would Toyota have $100 million of liability insurance, unless Toyota was a pretty negligent company? What careful company would have a need to have $ million liability policy?" - you cannot do that. · You cannot tell the jury that someone has $100 million in liability insurance just to incentivize the jury to give a big award § 2nd Sentence Summary: · More or less, proving that there is in fact existence of insurance is admissible · I.e.: Truck driver runs into somebody at the intersection and the plaintiff sues the truck driver and the employer. The employer says, "that's not my truck, I don't know anything about that truck." And the plaintiff says, we have an insurance policy that you took out on that truck, showing ownership or control. It's relevant for that purpose, and then in comes in. o Can the defense get an instruction here? § Yes, you would want the instruction to be your honor, please instruct the jury to only take this evidence into account in proving that there is in fact insurance, and not in defendant's ability to pay · Typically how Rule 411 works is that it only comes in to show something other than whether or not you can pay Rule 411 Basics - Correct Answers You cannot bring up insurance to prove liability You can bring up insurance to prove that insurance exists You can bring up insurance to prove ownership Old Chief - Correct Answers More or less the defense stated: "The defense stipulates that there is a prior felony conviction, the government does not have to prove it, we will stipulate to it. But the government did not agree. The government wanted to bring in the entire case and have the jury hear the nature/details of the prior felony. The prior felony was an assault causing bodily injury (violent assault). In this case, admission of the full record was error by the trial court because the full record had very limited probative value, if any, once Old Chief stipulated to the fact that he was a convicted felon. § As for the analytical method to be used in Rule 403 balancing two basic possibilities present themselves: (Comes from Old Chief) - Correct Answers § More or less, you can view that piece of evidence by itself outside the context of the case and examine if it passes the Rule 403 standard. Or, you can look at the piece of evidence in the context of the case as a whole and see if it meets the 403 standard. This court advocates, and we should think about it this way as well, as analyzing the information by itself, out of the context of the case.

Old Chief Thoughts - Correct Answers § So, if there is another way to prove what you are trying to prove that is not so unfair, then you have to use that method. · That is normally not what courts do, but that is what the court did in this case · Generally a court does not require you to look around (1:34:30) for the least unfair ways of proving something · Generally, you just look at the evidence alone and weigh the probative value v. unfair prejudice Coria doesn't really want us to use this line of reasoning Only time to use old chief is in what situation? - Correct Answers We really need to limit the use of Old Chief specifically to the narrow situation where you have a stipulation of a prior felony. The courts have not been receptive to broadening the Old Chief analysis. Why is there a general presumption that we do not assume that somebody behaved a certain way on one occasion just because they have done it many times in the past? - Correct Answers o It's unfair. § The jury puts too much weight on the idea that somebody always behaves the same way § If the jury finds out that somebody has been convicted of bank robbery three times in the past, they might then think that "I don't care what the evidence is in this case, he's guilty." § There's a fear that the defendant will be punished for what he/she has done in the past, when the record now should be focusing on what has happened in this case only. Rule 404 - Correct Answers Character Evidence Rule 404(a) - Correct Answers Character Evidence Rule 404(a)(1) - Correct Answers Hidden Character Propensity Rule o Habits: - Correct Answers § Something that is so routine and so frequent, it's almost unconscious. o Character: - Correct Answers § Your long run personality. How you behave over the long run. o Bias: - Correct Answers § A motive to lie in a particular case. Rule 404(a)(2) applies in? - Correct Answers Only criminal cases Rule 404(a)(2)(a) - Correct Answers · A) Defendant's Character (Mercy Rule)

o If a defendant is prosecuted for Homicide, he can call his minister to testify that "I have known the defendant for 20 years, in my opinion he is a very peaceful person" o Some people call this the "mercy rule" § If the defendant does this, the government may come back with evidence to show that defendant is a violent person. · So, be smart about whether you choose to bring this up or not. If you have a violent past, you probably do not want to bring up your minister to testify to your character. Rule 404(a)(2)(b) - Correct Answers · B) Victim's Character o A defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: Rule 404(a)(2)(b) B) Victim's Character o A defendant may offer evidence of an alleged victim's pertinent trait, and if the evidence is admitted, the prosecutor may: - Correct Answers § i) Offer evidence that the victim was a peaceful person § ii) Offer evidence that the defendant is a violent person Defendant has to offer evidence of an alleged victim's pertinent trait first before the government can bring these two prongs When would the character of the victim ever be pertinent? (32:40) Defendant wants to introduce evidence that the victim was a very violent person. When would that ever be pertinent? - Correct Answers Self-defense. Because you are claiming self-defense, you can offer evidence that the victim was a violent person. Rule 404(a)(2)(c) - Correct Answers · C) This is a special rule and only relevant in a HOMICIDE case. The defendant offers evidence that victim came at me with a knife and I had to shoot her (stating that he shot her in self-defense). The government then comes off with testimony by victim's friend that victim is a very peaceful person. o Why is there a special rule here? o It is not character evidence for character evidence in this situation. It is evidence that the victim was the first aggressor and the government responds with character evidence. This is allowed because the victim is dead. The defendant is the only one telling the story here. That's why the government gets that boost here. Rule 404(a)(2)(a) You bring up character Pros, I bring up...? - Correct Answers You bring up character Pros, I'll bring up character flaws in defense

Rule 404(a)(2)(b) You bring up character flaws, I'll bring up..? - Correct Answers You bring up character flaws, I'll bring up character flaws in defense Rule 404(a)(2)(c) You bring up evidence that the victim was the first aggressor, I'll bring up..? - Correct Answers - You bring up evidence that the victim was the first aggressor, I'll bring up how peaceful the victim was The government is allowed to bring this up because the victim is dead, there is no one to tell his/her side of the story, so the government is awarded lee-way here Rule 404(a)(3) Exceptions for a Witness - Correct Answers Focuses on Rules 608 and 609 Here is another use of character evidence. But it is character for truthfulness or untruthfulness. · 608 & 609 are only about character for truthfulness and untruthfulness. (607 goes beyond this... he says?). Therefore, this only comes up if somebody testifies. If somebody testifies, then we care about their truthfulness, but if they don't testify, then we are not going to get into their truthfulness. Rule 404(b)(2) - Correct Answers § 2) Permitted Uses; Notice in a Criminal Case · Evidence of a crime, wrong, or other act may be admissible for another purpose (that's not character evidence), such as proving: (MOPPIKALI) motive opportunity preparation plan intent knowledge absence of mistake lack of accident identity Rule 405. Methods of Proving Character - Correct Answers - This is a procedural rule. It basically states: If character evidence is admissible, then here's how you prove it. o A) By Reputation or Opinion o B) By Specific Instances of Conduct (Don't use this rule) Rule 405(a) 1st sentence - Correct Answers · On Direct: · Let’s say that defendant calls a minster in a homicide case, and the minister gets up on direct, and states: " I have known the defendant for 20 years and he is a very

peaceful person." What the defense CANNOT do is say: "ok minister, tell us some of the very peaceful things that he has done." · These are specific instances of conduct that the government cannot get into on direct. You can bring someone up to testify about the character reputation of someone but you cannot get into specific instances Rule 405(a) 2nd Sentence - Correct Answers · On Cross: · Minster gets up and states "the defendant is one of the most peaceful people he's ever known." On cross-examination, the government says "minster are you aware that the defendant has been convicted of homicide on 3 prior occasions?" Government CAN do this. o This is specific instances that the government is offering on cross-examination. o No matter how the minster answers this, it undercuts his testimony. You can bring someone up to testify about the character reputation of someone AND YOU CAN get into specific instances Rule 405(B) - Correct Answers Do not use this rule Rule 406 - Correct Answers Hobbit

• Habit is treated differently from character
• Garden variety character evidence (character propensity), we start out with a presumption that you can't use it
• If something rises to the level of habit, then we do not have that limitation o The theory is, habit is a lot more reliable: § If you rob a bank twice in the past, does that mean that you are involved in this specific bank robbery? · Not necessarily § If you make your coffee exactly the same 365 days of the year, every year, that shows that you will almost 100% make your coffee the same way on the next occasion as well o Generally what you are dealing with in regard to habit, i.e.: making your coffee a certain way, twirling your hair, biting your nails, it's not that unfair—it doesn't bring up a huge amount of unfair prejudice if this information is brought to light o Habit has to be routine. A good criteria of evaluating habit is: (3 ways) - Correct Answers § How often does the person/organization do it? · The more often, the more likely it constitutes habit § How regular is it? · The more you say that the person/organization regularly does this, the more likely it constitutes habit § How much is it the same?

· The more you say that the person does it the same way every time, the more likely it constitutes habit Character Evidence Rules 404(a)(2)(a), Rule 404(a)(2)(b), and Rule 404(a)(2)(c) are all only used in...? - Correct Answers Criminal Cases, not civil Rule 412 - Correct Answers Sex-Offense Cases: The Victim's Sexual Behavior or Predisposition

• The point of 412 is that historically, in a rape case, defense counsel would try to smear the reputation of the victim, and try to paint her as promiscuous. Rule 412(A) The following is NOT admissible: - Correct Answers o 1) § In other words, typically a woman, that she has orgasmic in the past o 2) § Not evidence of specific instances, but her character, if somebody testifies that in my opinion, she has a loose character, she's promiscuous. Not allowed. Rule 412(b) - Correct Answers Things that are allowed Rule 412(b)(1)(a) - Correct Answers · In other words, let’s say that there is severe bruising, and so the government is going to offer to call a doctor to testify that there was severe bruising, to prove that there was no consent, that this was non-consensual sex. · The defendant can offer evidence that the victim did have sex with me, but that was consensual. The source of that bruising was some other event, not from my event with her. o The important point about this is that it is only relevant if it's plausible that that other event was the source of that bruising. Rule 412(b)(1)(b) - Correct Answers Evidence of specific instances of a victim's sexual behavior with respect to the person accused of the sexual misconduct, if offered by the defendant to prove consent or if offered by the prosecutor Rule 412(b)(1)(c) - Correct Answers Evidence whose exclusion would violate the defendant's constitutional rights. Weird to have this mentioned because this is already the case with anything in court. Rule 412(b)(1)(a) provides an exception for evidence of a specific past sexual incident if it is offered to show whether the accused was the source of semen or injury. True? - Correct Answers Yun. Remember this evidence only comes in if it's plausible. And since the boy's relationship with the girl here was consensual and nonviolent, it was not plausible that the injuries came from him. Therefore, that evidence of their relationship was not allowed in.

Rule 412(b)(1)(a), in order for this evidence to come in it must be...? - Correct Answers Plausible Rules 413, 414, 415 (1:14:15)

• The basic thing to know about these rules is: - Correct Answers We are treating them more or less like one solid rule. Similar Crimes in Sexual Assault, Child Molestation Cases There is a 403 screening here o Normally the forbidden character propensity rule says that you cannot prove that someone did something on one occasion because they have done it in the past. These rules turn that concept on its head. These rules say that you can prove someone behaved badly on a particular occasion because they have behaved that way in the past. It rejects the forbidden character propensity rule and allows the jury to consider it. o The theory is: once you are a rapist/child molester, you are always a rapist/child molester. This is the prevailing view. Whether this is right or not is another matter. United States v. Lemay o There is also a Rule 403 analysis here that is a sort of gloss over top of this case. The facts of that prior sexual assault were weighed and determined to have enough probative value to be let in because the previous sexual assault conviction was so similar to the one at issue here. § (p.341) Note 6: Rule 403 balancing is still applicable, but clearly under Rule 414 the courts are to "liberally" admit evidence of prior uncharged sex offenses. - Correct Answers If I remember correctly, the more similar the sexual abuse crimes are, the more likely they will be let in. If the defendant in the past had molested 2 17 year old boys and you want to bring that in this case where one 9 year old girl was molested, that would be harder to get in o Whenever you see "prior conduct" what should you do/think about? - Correct Answers Immediately think of Rule 404 o Lets take the criminal case where the government is introducing prior conduct of the defendant, then your antenna should go up and you should immediately think about the forbidden character propensity inference, because the government cannot simply offer evidence that a guy robbed a bank 3 times in the past to show that he is the one who robbed the bank now. o But then there are exceptions to that: Rule 404 Can you get an instruction on 404(b)(2)? - Correct Answers Yes,

You can request a limiting instruction that the jury should not consider this information to show character. You can only consider this information for showing "knowledge, preparation, etc.." Rule 407 - Correct Answers Subsequent Remedial Measures Rule 407: First Part of the rule: describe it - Correct Answers - First Part of The Rule: The basic idea is this: when measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: o Negligence o Culpable Conduct o A Defect in a Product of its Design; or o A Need for a Warning or Instruction

• I.e.: If you have two farmers (farmer A and farmer B) and Farmer A's cows get loose into farmer B's crops and trample them all. And the Farmer B cites negligence and states that he saw Farmer A fixing his fence where the cows broke loose the day after the incident. Would this be allowed? No. Why? o Pursuant to rule 407, they are trying to encourage people to be safe and increase their safety standards, so if they allowed the introduction of evidence that could tend to show that things were initially unsafe, people might be less likely to follow up on the increased safety measures. What if Toyota is sued for having accelerators that stick in the accelerate position, and the plaintiff's lawyers want to introduce evidence that after six of these accidents, Toyota redesigned its accelerator so that it didn't stick. Would they be able to bring that in? - Correct Answers No. Why? o Because if this evidence was allowed to be offered, then Toyota probably would not fix their accelerator problem out of fear that the jury would hear that evidence that "Toyota fixed their faulty accelerator." The rule makers don't want that, they want Toyota to fix their accelerator as soon as possible to prevent anymore issues. Rule 407: second part of the rule. describe it - Correct Answers (1:09:40) But the Court may admit this evidence for another purpose, such as impeachment or—if disputed— proving ownership, control, or the feasibility of precautionary measures. o I.e.: If you have two farmers (farmer A and farmer B) and Farmer A's cows get loose into farmer B's crops and trample them all. And the Farmer B cites negligence and states that he saw Farmer A fixing his fence where the cows broke loose the day after the incident. Then Farmer A states "that's not my gate. You're suing me for not maintaining the gate, but it's not my gate." Farmer B wants to introduce evidence that Farmer A was out there fixing that same gate, so... it was in fact Farmer A's gate. Would that be admissible? - Correct Answers § Yes, but you would ask for a limiting instruction. You are showing something other than negligence, you are showing ownership/control.

o I.e.: What if Toyota is sued for having accelerators that stick in the accelerate position, and the plaintiff's lawyers want to introduce evidence that after six of these accidents, Toyota redesigned its accelerator so that it didn't stick. And then the design engineer from Toyota got up on the stand and stated that "there was no other feasible way to design an accelerator that would have been safer." Then the plaintiff wants to offer evidence that Toyota did redesign the accelerator 3 months after these accidents, could they do that? - Correct Answers § Yes. Because it would go to feasibility of the matter, not to prove negligence, so as long as the evidence is being offered to prove that there was another feasible design that was safer—and NOT to show negligence—then it would be allowed in. o Note 6) p.374) Self-Critical Analysis (1:19:15): Often what happens after some accident occurs, is a company will do an internal analysis of it. Whether that analysis is admissible or not turns on how much of it has to do with fixing the problem. To the extent that the whole analysis is about: how do we fix the problem? Then it falls within

407. But to the extent that the whole analysis just dives into: what has happened in the past that is not barred by 407. A plaintiff would love to get the memo about what has happened in the past. True? - Correct Answers Yogh Rule 408 - Correct Answers - Compromise Offers and Negotiations

• In other words, a settlement offer is inadmissible evidence. And a statement made during settlement discussions is inadmissible. o Why have rule 408? - Correct Answers § You don't want to discourage people from settling cases. o There is a situation where a settlement is allowed to show bias (1:28:45): § A manufacturer is sued by two plaintiffs in a design defect case. And plaintiff A settles with the manufacturer, but B does not settle. And plaintiff A comes in and testifies for the manufacturer. Plaintiff A's settlement might be allowed to be introduced in this case. Why? - Correct Answers · Because the settlement between the manufacturer and Plaintiff A might include a payment to Plaintiff A to testify for Manufacturer in the case against plaintiff B and that brings about bias which is allowed to be introduced in plaintiff B's case. Rule 409 - Correct Answers - Offers to Pay Medical and Similar Expenses
• Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury.
• The reasoning for this is because we want to encourage paying medical expenses. We will sort of liability later. Rule 410 - Correct Answers - Pleas, Plea Discussions, and Related Statements

If everything that you said in these plea discussions was going to be offered against you at trial, you're not going to ever get plea discussions. Therefore, these discussions need to be protected. When precisely does rule 410 apply? - Correct Answers Remember that this rule only applies if you are sitting in a room with the prosecuting attorney. So, if you get arrested and are in the back of a cop car and are talking to the police trying to get yourself into a better deal. They say "come on, work with me, we can get you a lighter sentence" that is not protected by Rule 410 because there is no prosecuting authority present—it's just you and the cop. Rule 411 - Correct Answers - Liability Insurance

• The rule on liability insurance is that liability insurance is inadmissible if it's offered only to prove that you are negligent. o Why would you have such a big liability insurance policy? The only reason is because you are a really negligent person. § Can't bring the insurance policy in to prove this claim o Ability to pay: he has a 2 million dollar insurance policy, he can pay that 60,000 dollar sum. § Can't bring the insurance policy in to prove this claim When can you bring Rule 411? - Correct Answers Proving ownership or that the insurance exists Rule 201 - Correct Answers Judicial Notice
• This is a very efficient, inexpensive, common sense way of getting evidence in, where something, generally speaking, is so obvious, even lawyer wouldn't require a witness.
• If you are trying to prove that the high temperature on a certain day was 98 degrees, are you going to call a witness to testify to that? No, that's a waste of time.
• Rule 201 provides a way to get some source, like the national weather service that is obviously right, and bring that in.
• "Your honor, I ask the court to take judicial notice of the fact that the high temp on Thursday was 98 degrees" o The judge says what's your source for that? o You say, I have the national weather service data from that day o Court then takes the judicial notice Can the defense object to judicial notice? On what grounds? - Correct Answers The defense can object to judicial notice, they can cite that the methodology/source used to verify the fact is not trustworthy/reliable o Adjudicative Fact - Correct Answers § These are specific facts about what happened in the case o Legislative Fact - Correct Answers § These are policy arguments

o Basic Facts - Correct Answers § Everybody knows these: The sun is hot Rule 201(a) - Correct Answers o This rule only covers adjudicative facts Rule 201(b)(1) - Correct Answers § Is generally known within the trial court's territorial jurisdiction § I.e.: That Route 495 is really busy during rush hour Rule 201(b)(2) - Correct Answers Info § National weather service report situation Rule 201(c)(1) - Correct Answers § Someone is trying to prove something, and it's taking a lot of time, the court might say "Look, the court takes judicial notice of that, you don't need this witness" Rule 201(c)(2) - Correct Answers § "Your honor, I am asking the court to take judicial notice of this high temperature, here's my weather service report" Rule 201(d) - Correct Answers o This is in here to tell us that a court can take judicial notice of something on appeal. Not a good practice to wait until appeal. That usually comes up when a party forgets to offer it at trial. In regard to Rule 201(f) in a civil case, the court must instruct the jury..? - Correct Answers o In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In regard to Rule 201(f) in a criminal case, the court must instruct the jury..? - Correct Answers o In a criminal case, the court must instruct the jury that it does not have to accept the noticed fact as conclusive. Is it jury misconduct to consider facts and observations derived from the knowledge and experience of individual jurors? - Correct Answers o It is not jury misconduct to consider facts and observations derived from the knowledge and experience of individual jurors. The defendant tried to argue that the probabilities that the engineer pulled together here fit in the 1st category above as "outside information." And the court said no, this is "basic fact" it's allowed in. Generally, the rule of jury verdicts is Rule 606. Only time a jury deliberation is scrutinized is if: (2) - Correct Answers o 1) They consider information from outside the trial

2. If they consider misinformation

§ Can't have too specialized of knowledge be brought in by a juror. Like "enlightening fellow jurors concerning the use of ligatures to cause death." This is not "Basic Fact" at that point, so it would not be allowed to be discussed by jurors. § That juror is essentially becoming an expert witness in the jury room and the jury is considering evidence that is beyond the record. True? - Correct Answers Yogh

• Real Evidence: - Correct Answers o They are real things that were involved in the case, like a "fiber" or a "blood sample" or the "murder weapon"
• Demonstrative Evidence: - Correct Answers o Demonstrative evidence is an object or a chart or a photo that was not involved, but it demonstrates what was involved o In order to handle these (real and demonstrative evidence), there are one of three rules that are invoked: - Correct Answers § Is it relevant at all? · Rule 401 § If it does move the needle, is it outweighed by unfair prejudice? Rule 403 § Often it involves Rule 901 [TK1] "Authentication" Rule 901 · So, (57:48) if you want to introduce a photograph, you have to introduce enough evidence that a juror could believe that that pictures accurately represents what you say it is How does Rule 901 work? - Correct Answers o I.e.: You want to introduce a photograph, you show the witness the photograph, and you say "Mr. Jones I'm going to show you the photograph marked as plaintiff's exhibit 13." § You: "Do you know what that is?" § Witness: "Yes, it's a picture of Massachusetts Avenue and Bradley" § You: "How do you know?" § Witness: "Because I live there, I've seen that intersection a million times" § You: "Is that a fair and accurate reproduction of what that intersection looks like?" § Witness: "Yes it is" § Then it comes in. Rule 901 (a) - Correct Answers Authentication. To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is o Is demonstrative evidence admissible? - Correct Answers o Demonstrative evidence is admissible if it is relevant, actually explanatory, and not misleading. Is this allowed?

At trial, Smith called a doctor who used a plastic human skeleton model to help explain his testimony. Specifically, the doctor showed x-rays of Smith's injured pelvis and compared the x-rays to the model to show what a normal pelvis should look like. - Correct Answers Yogh Demonstrative evidence is admissible if it is relevant, actually explanatory, and not misleading. Admissible demonstrative evidence helps to give the jury a better opportunity to understand the subject matter. However, demonstrative evidence must not be used for dramatic effect or emotional appeal. This use of the model was relevant and helpful to the jury, and was not overly dramatic or appealing to the jury's emotions. the best evidence rules are rules ____? - ____? - Correct Answers 1001- What is a better name for the best evidence rule? - Correct Answers - This really should be called the "Original Documents Rule" What is the premise of the best evidence rule? - Correct Answers - This is what it means, when you are dealing with a document, if you are trying to prove the content of a document, you have to bring in the document, unless it's unavailable. o Document is defined very broadly here Rule 1001(a) - Correct Answers Defines what a writing is Rule 1001(b) - Correct Answers Defines what a recording is Rule 1001(c) - Correct Answers Defines what a photograph is Rule 1001(d) - Correct Answers Defines what an original is -- the first imprinting of it Rule 1001(e) - Correct Answers Defines what a duplicate is -- o A duplicate is treated the same as the original § I.e.: if you have a photo on your phone and make copies of it, they are all treated like an original Rule 1002 - Correct Answers Requirement of the original

• An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.
• When someone is testifying to what was in something like a diary, or what someone said in a recording, or what a writing said, you cannot do that, you have to bring in the original.

o But if the detective is testifying to what they heard, not what was being said, but what the detective heard, that is admissible. The detective is not testifying to the contents of the recording, only to what he heard. If he starts testifying to the contents of the recording, then you have to bring the recording in. Rule 1003 - Correct Answers Admissibility of Duplicates

• A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate. Rule 1004 - Correct Answers An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: a,c,d - Correct Answers a) All the originals are lost or destroyed, and not by the proponent acting in bad faith b) An original cannot be obtained by any available judicial process c) The party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce it at the trial or hearing; or d) the writing, recording, or photograph is not closely related to a controlling issue (DON"T USE) do chattels usually trigger the best evidence rule? - Correct Answers Chattels, generally speaking are not known to trigger the best evidence rule. "There is almost universal agreement that the rule applies only to writings and not to chattels generally." Now, if somebody wrote a big long speech on a chattel, like a shirt, then that's a different matter. But in this case, presumably, the shirt with "DUF" would not be required to be brought into court. If someone is testifying to what he heard. He was not testifying to the content of the transcription. does the best evidence rule apply? - Correct Answers No Again, this case has the witness testifying about something outside the actual context of the document. Best evidence rule does not apply to a computer database search that came up with no results. If the witness was testifying to the content in the computer database search, that would be covered by the best evidence rule, but that is not what happened here. - Correct Answers Yogh The district court held an evidentiary hearing on the admissibility of the "reconstructions" of the Striders. It found that Seiler had lost or destroyed the original drawings of the Striders in bad faith and under the best evidence rule, the reconstructions were not

admissible. - Correct Answers This court holds that Seiler's drawings are writings for purposes of the rule. To hold otherwise would frustrate the purpose of the rule. Therefore, the originals of Seiler's Striders must be submitted. Seiler claims that The Empire Strikes Back infringes the original drawings of the Striders, but he cannot provide the original drawings to so demonstrate. The "reconstructions" are of no use, since we do not know how similar they are to the originals, Rule 601 - Correct Answers Competency to Testify in General Every Person is competent to be a witness unless these rules provide otherwise. What is the one thing to Remember about Rule 601? - Correct Answers in a civil case, state law governs the witness's competency regarding a claim or defense for which state law supplies the rule of decision

• There are two uses of the term "competency" in regard to 601 - Correct Answers o 1) Sort of a general term that means conflictive interest. § Courts might say "this person is incompetent" · What they mean is that there is a conflict of interest o 2) The person does not have the intellectual ability to say anything useful. § Like very small children o Does any statement indicating a witness understands the obligation to give truthful testimony satisfy a procedural oath or affirmation requirement? - Correct Answers The advisory committee's note to Rule 603 makes it clear that the oath or affirmation does not need to take a particular form. Instead, the form of administration should be flexible enough to accommodate minors, mentally impaired persons, and persons with religious objections to prescribed oaths or affirmation formulas. The First Amendment requires procedural rules to be interpreted flexibly to protect sincerely-held religious views. Courts are obligated to explore the least restrictive means of assuring the truthfulness of a witness's testimony without violating the witness's religious principles. Here, Gordon demonstrated the sincerity of his religious objections. Had the judge allowed Gordon to make the same representation Gordon made in his appellate brief, the relevant rules of civil procedure and evidence would have been satisfied. Rule 615 - Correct Answers Excluding Witnesses (43:30)
• This rule basically has to do with excluding a witness from the court room
• The reason to have this rule is to exclude the witnesses from hearing each other's testimonies—because they might decide to just copy what the other person said
• The exceptions:
• Goes through this on p.572 of casebook - all the notes Rule 611 - Correct Answers Mode and Order of Examining Witnesses and Presenting Evidence

Rule 611(c) - Correct Answers Leading questions should not be used on direct examination except as necessary to develop a witness's testimony[TK1]. When can an attorney use leading questions? Rule 611(c) - Correct Answers - Hostile Witness: o Someone who is clearly combative, unwilling to cooperate

• Adverse Party o If plaintiff would call defendant for some reason
• A witness identified with an adverse party Someone who is a close relative or a potential co-conspirator, a spouse Are Attorney's allowed leeway with leading questions when it comes to potentially developing a minor's testimony? (1:02:30) - Correct Answers Yes Rule 611(a) : Narrative Testimony - Correct Answers to The opposing party must interrupt a witness's narrative testimony to object to inadmissible statements as they occur. Cannot wait tilt the witness is done testifying to then bring up all of your objections o May a lawyer ask a witness leading questions on matters at issue in the case? - Correct Answers No. A lawyer may not ask a witness leading questions on matters at issue in the case. The purpose of witness examination is to elicit evidence from the witness. A leading question suggests the answer the lawyer wants to hear from the witness. Such questions are permissible only in relation to noncontroversial or background matters. Leading questions turn the lawyer into a witness and inappropriately permit the lawyer to argue a client's case during the trial's evidentiary phase. In this case, the prosecutor persisted in asking leading questions until the witness fully conveyed the message the prosecutor wanted the jury to hear. The prosecutor's actions constituted attorney misconduct. o The trial judge has discretion to allow leading questions to be posed to a hostile witness. True? - Correct Answers Yogh o Attorney can ask the court "permission to treat this witness as hostile?" After the witness has been evasive/combative. o OR, the court can make that determination if for whatever reason the attorney does not ask. Rule 612 - Correct Answers Refreshing Recollection How does 612 work? - Correct Answers The evidence is what the witness remembers § You ask the witness "where were you that night?"

§ Witness: "442 street" § You: "you remember seeing that white car outside?" § Witness: "Yes" § You: "You remember the license plate?" § Witness: "No" § You: "I'm going to show you a note with a number on it. Does that refresh your recollection?" § Witness: "Well yeah it does, the license plate was scdhi-78" What's the difference between 612 (Refreshing Recollection) and 803(5)(1) Past Recollection Recorded? - Correct Answers Here's the differences between the two:

• 1:16:40 Refreshing Recollection
• The evidence is what the witness remembers Past Recollection Recorded Being unable to refresh the witness's memory, so you introduce the contents of the note they made at the time and you read that into the record.
• Rule of Law: o A document not admitted in evidence may be used to refresh a witness's present recollection. Facts: o Ward (plaintiff) sued Moor Transfer & Storage Company (defendant) for the conversion of items she stored at a company warehouse. Before trial, Ward made a note each time she remembered an item that had been in storage. Ward transcribed those notes onto a list which she consulted on the witness stand when asked to remember the items involved. The jury returned its verdict for Ward. On appeal to the Kansas City Court of Appeals, Missouri, Moor argued that Ward's use of the list was improper. Issue: o May a document not admitted in evidence be used to refresh a witness's present recollection? - Correct Answers o Yes. A document not admitted in evidence may be used to refresh a witness's present recollection. Under the "present recollection refreshed" rule, it is the witness's recollection of facts, not the document that constitutes evidence. A person's recollection can be triggered by anything, including reference to notes the person made after an event occurred but before the person is called upon to remember the event. In this case, Ward did not read her list into evidence. Ward used the list only to help her recall which items she stored at the warehouse. Ward's testimony was subject to Moor’s cross examination, which could explore whether and how Ward's notes assisted her in accurately identifying the items for the jury. The use of the list was proper, but the trial court's judgment is reversed on other grounds.

Rule 803(5) - Correct Answers Recorded Recollection

• There's a shooting and you see a car drive away fast and catch the license plate and think "this is pretty important, I better write it down" so your write it down and put it in your desk for safe keeping. (1:26:00) Rule 803(5) you have to establish 3 things: - Correct Answers § Is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; and § The writing was made while fresh in the witness's memory; and § The writing was accurate when made. o Once you establish those 3 things: you ask the witness "is this the license plate number?" (you show the note that the witness wrote down. § Witness says "yes" that's it. And then YOU read it aloud to the jury. It doesn't get offered into evidence for some weird reason. So, then the evidence is what is read into the record, not the actual piece of paper. - Correct Answers True Rule 602 - Correct Answers Personal Knowledge A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness's own testimony. Rule 602 Personal Knowledge, Rule 701 Opinion Testimony By Lay Witnesses, Rule 702 Testimony by Expert Witnesses (21:20): These rules are all? - Correct Answers Related
• These are all related. They all raise a somewhat different question Rule 602: personal knowledge does not apply to what? - Correct Answers Expert Testimony under rule 703 Federal Rule 701 - Correct Answers Opinion testimony by a lay witness 701(a) If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: - Correct Answers rationally based on the witness's perception o Meaning, the witness actually saw it, or heard it, or they smelled it, etc.. They really experienced it o And "rationally" means what it means, the testimony has to be rational. Can't be "I heard voices in my head..."

701(b) If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: - Correct Answers helpful to clearly understanding the witness's testimony or to determining a fact in issue o Meaning, it is rationally based but is it pushing the line to where you are really just speculating, you really don't know what you are talking about. At some point it is no longer helpful 701(c) If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: - Correct Answers Not based on scientific, technical, or other specialized knowledge within the scope of rule 702 (expert witness testimony) o In other words, the layperson can only testify to lay things. Cannot testify as to their opinion on what the cause of death was, etc.. because they are not an expert and thus are unqualified to make that assertion. A lay witness may testify only about matters within his or her personal knowledge. Such a witness may not testify about things he or she did not personally observe. In the present case, Maness was not an expert witness. She was called to testify only about the facts surrounding Kemp picking up his medicine. Accordingly, she was only permitted to testify regarding matters of which she had personal knowledge. She testified about what was in Kemp's medical chart, but she did not have personal knowledge of the facts contained in that chart because she did not fill it out or observe what led to it being filled out. Thus, her testimony should not have been admitted. The trial court is reversed and the case is remanded for a new trial on damages only. True?

• Correct Answers Yogh o If the witness saw/heard the accident, then he/she can testify that they had personal knowledge of what happened. True? - Correct Answers True Hall testified the Jacksons were speeding as they entered the intersection. On cross examination, Hall admitted the corner blocked his view of Clifton Avenue, so he could only catch a glimpse of the Jacksons' car as it entered the intersection. This was allowed o Even if he didn't actually see the accident, he could still testify to what he heard. o If the trier of fact otherwise would be unable to draw correct or intelligent inferences from the facts a witness observed, can the witness testify what inferences the witness drew from the observation? - Correct Answers o Yes. If the trier of fact otherwise would be unable to draw correct or intelligent inferences from the facts a witness observed, the witness can testify what inferences the witness drew from the observation. This is an exception to the general rule that admissible testimony is limited to facts and that a witness's conclusions, judgments, or opinions are inadmissible. In this case, both Mrs. Parker and the Titsworths testified that based on their prior and subsequent observations of Mr. Parker, they became convinced he was having

extramarital affairs. Only the witnesses were in a position to draw that conclusion. Hoofer does not argue other methods for Mrs. Parker to show Mr. Parker's affection for her had been alienated. The witnesses' testimony was admissible and the trial judgment is affirmed. o Direct Observations versus Inferences/Opinions: Describe the difference - Correct Answers § Direct Observation: · There was lipstick on his collar § Inference/Opinion · There was great intimacy between them

• Facts: o Florence Krueger (plaintiff) sued State Farm Mutual Automobile Insurance Company (defendant) in connection with an automobile accident that resulted in the death of her husband, Joseph Krueger. At trial, lay witness Anthony Castell clearly described his eyewitness observation of the accident. Mrs. Krueger's attorney asked Castell if he thought the accident was avoidable. The judge sustained State Farm's objection to this question. Mrs. Krueger appealed the jury's verdict for State Farm to the United States Court of Appeals for the Eighth Circuit, arguing the judge erred in excluding Castell’s opinion testimony.
• Issue: o Are a lay witness's inferences or opinions only admissible if they are rationally based on the witness's perception and helpful to a clear understanding of the witness's testimony or a determination of a fact in issue? - Correct Answers - Holding: o Yes. Under Federal Rule of Evidence 701, a lay witness's inferences or opinions are only admissible if they are: (1) rationally based on the witness's perception and (2) helpful to a clear understanding of the witness's testimony or a determination of a fact in issue. The witness's testimony must be based on his personal observation and recollection of concrete facts. It must be impossible for the witness to describe the facts in any other way to adequately convey the substance of the witness's testimony. The judge has broad discretion to determine if these conditions are met. In this case, any opinion Castell formed as to the accident's avoid ability would be rationally based on his eyewitness observation. However, Castell already clearly described his observation of the accident and the jury did not need to know Castell’s opinion to reach its verdict. Therefore, the judge's ruling did not prejudice the verdict and was not clearly in error. The trial judgment is affirmed.
• Notes: o The court is getting at the point that it is more helpful to the jury to understand the underlying facts here, not Anthony Castell’s opinion on "avoid ability." The avoid ability point is for the jury to decide. A layperson who _____ the defendant can testify to defendant's sanity. What a layperson cannot testify to is..? - Correct Answers knows

the defendant's mental condition, i.e.: paranoid schizophrenia. Laypersons are also not allowed to use ______ or _____ terms. - Correct Answers jargon or technical They can use terms that people use in everyday speech, but not technical/scientific words such as "insider trading, schizophrenia, thrombosis.." If lay and expert witnesses disagree as to the defendant's sanity, who should determine the outcome? - Correct Answers If lay and expert witnesses disagree as to the defendant's sanity, the trier of fact (jury) determines what weight each witness's testimony should be given. Rule 702 - Correct Answers Expert Witness Testimony Rule 702:

1. Have to make sure the expert is ______. Have to make sure that the expert is ______ in the ______ ______. Cannot answer questions outside of his ______ __ _______. - Correct Answers qualified qualified in the correct field field of qualification Can you bring up someone who is an expert but has no formal education? - Correct Answers Yes, someone can be an expert but have no formal education Rule 702(a) - Correct Answers The expert's scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue This is the "helpfulness" standard. I.e.: do we just want to hear the direct observation, we don't really need an expert to tell us that, OR, is it helpful to the jury to have an expert draw that underlying raw data together? Rule 702(b) - Correct Answers The testimony is based on sufficient facts or data This is where we get into our three part test for how you do methodology. You need to have good data going in. Rule 702(c) - Correct Answers The testimony is the product of reliable principles and methods This is the Dauber/Kuhn Tire tests. Is the methodology reliable?