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Evidence Notes - Entire 3 Classes March 28 - April 3, 2003


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Thursday March 27, 2003 Rules of Evidence Day One


Introduction and use of evidence



any matter verbal or physical  be sued to support the existence of a factual proposition. c

Evidentiary Restruction:

Question is why is certain evidence excluded?

Adversarial System:

Each side presents evidence favorable to his/her client and each demands the choice to challenge.  Each side must be given a fair chance to do so.


Can evidence be challenged?  Excludes evidence at risk of misuse.  Risk of misuse of evidence?

Role of Judge:

If we have a bench trial without a jury

Role of Jury:

Fact Finder

Shared experience

Direct Evidence

Testimony assailant was seen making the attack


Repetition of a 3rd partys declarence.

An out of court statement offered for the truth of the matter asserted


Adversarial System

Must be able3 to challenge



Real Tangible Things

Documents or chattels


Based on substance of law of evidence must be determined

  • Is it probative?  (Does it prove or disprove the factual proposition of fact)?
  • Is it material? (consequential)
  • Is the evidence related to a contested element of a claim or a defense?

Circumstantial Evidence:

1.          Leaves tryer of fact to decide whether to believe the witness.

2.        Whether evidence increases the probability of the proposition that the accused was the assailant.

How to Determine Hearsay:

         Wo is the real witness?  (Who do I want to cross-examine to test what is being said?)

Purpose of Hearsay Rule:

         To protest the rights of cross-examination

         Essential to the idea of procedural fairness

Excited Utterance:

A statement made under a sense of excitement made contemporaneously or shortly after an event (gut reaction)  Must pertain to event.


Hearsay Exceptions:

As a result of reliability

Spontaneous declarations:

Statements that are made in certain situations that minimize the dangers of insincerity. (e.g. oh xxxx!)


A.         Present Sense Impression:  Type of _______ statement made contemporaneously with or immediately after the event it describes.  (Statements made at the time of the event) (gut reaction)

B.          Excited Utterance:  A statement made under a sense of excitement made contemporaneously or shortly after an event (gut reaction)   Must pertain to event.

Spontanesous Declaration

1.        An occurrence sufficiently startling to produce a spontaneous and unreflecting statement.

2.        Absence of time to fabricate

3.        The statement must relate to the circumstances of the event.

Physical & Mental Condition of Declarant

                 Statements of declarants own physical and mental conditions

               Must describe current physical/mental (e.g., the room is spinning: I feel like I am going to throw up

Recorded Recollections


  • For the purpose of inducing witness to recall

Business Records

         Names in the course of business

  • In order to introduce must be a custodian of the record
  • Purpose to verify

Hearsay Exceptions

         Spontaneous Declarations

         Present sense impression

         Executed utterance

       Physical and Mental condition of declarant

       Recorded Recollections

         Business Records

         Public Records

         Former Testimony (made under oath)

         Dying Declaration:
-               Statements made under belief of impending death
-Concerning cause of circumstances of what witness believed to be has impending death (fear of divine punishment)               

         Declarations against interest

Statements by a declarant

Statements against persons interest

Often involves business ownership


What is Hearsay?

What is not Hearsay?

When can an exception be made?


In order for Evidence to be Admissable

Legal Relevance

Exclusion of prejudicial evidence

What is the test?

Prohibitive value outweighed by danger of prejudice.


         May be excluded:  if its substantive value is substantially outweighed by danger of prejudice, confusion; misleading of jury, delay or cumulativeness.  Example unnecessary

         Judge has great discretion, however, must show decision isnt arbitrary

Character evidence

         General human trait in a criminal trial not abmissable to show propensity

         Person fighting for their liberty for this reason character evidence can be excluded because punishment is severe (loss of liberty)

         Free to introduce character evidence on himself this opens the door for the other party to rebut his own character evidence.


Prior Bad Acts

Wrongs, arrests or convictions

  • An admissible for non-character purposes
  • Establishes motive, intent, opportunity, preparation, plan, knowledge or identity
  • (prosecutor may give notice prior to introduction


Prerequisites:        Must identify material facts which:

  1. must prove prior bad occurred
  2. precise theory for which the natural fact may be inferred from the evidence

Acceptable Uses of Prior Bad Act

1.        Knowledge:  defendant claims he was unaware of crime

         If knowledge is an element of a crime

2.        Intent           If knowledge is an element of a crime
- In a prior act a crime will alter intent (theory to link bad act in this case) m/o (note prerequisites)

3.        Motive:  Infers defendant had a reason to commit crime and act.

4.        Plan:  Plan act shows a connected scheme

5.        Preparation:  Prior act makes crime more likely

6.        Identity:  Prior act identifies defendant.

7.        Mistake: Prior act makes it evident defendants action(s) was no mistake or accident.

Prior crimes need not result in a conviction even acquittals are admissible subject to prejudicial consideration.

  • Need to know similarities between crimes
  • Reliability of evidence proffered (offered)
  • Remoteness of other crime in time (was it six weeks or 50 years)
  • Need for such evidence










  1. It it probative?  Does it prove or disprove a proposition of fact?
  2. Is it Material?  Is it consequential?  Does it relate to a contested element of a claim or a defense?  Does itove a factual proposition?  It is material to a charge?


Circumstantial Evidence:  requires an inferance.

e.g., an assailant leaving the scene with a firearm a (direct evidence) where a persons body is discovered.


Leaves the trier to decide


Direct evidence testimony that an assailant was seen making the attack.  Leaves no question for the jury about circumstances.  And whether the evidence increases the probability of the proposition that the accused was an assailant.



Hearsay:  repetition of a third party declaration out of court statement.

Offered for the truth in the matter declared.



The repetition must be used to assert the truth of the matter


Tips to identify hearsay:  - purpose of the hearsay rule is to protect the right of cross examination.  essential to the idea of procedural fairness.


1.                    look for the real witness who do I want to cross examine to test what has been said.


The same statement may be hearsay depending how it is heard in court.


The out of court statement must be offered


Verbal Act


Introduction of evidence of out of court statements

Relevant not for the truth of the matter but


Need to cross-examine the person who said those words.


Verbal Acts


Verbal Parts of Acts


Words that are part of the act are not considered hearsay


Hearsay Exceptions


Hearsay evidence is unreliable because it cannot be challenged.

Not offered for the truth at matter


Exceptions are made because certain hearsay statements are presumed to be more reliable than others. 


1.                    Spontaneous declarations

2.                    present sense impression

3.                    excited utterance must pertain

4.                    physical and mental condition


Hearsay Exceptions



Spontaneous Declarations

Present Sense Impression

Exiceted Utterance

an occurrence sufficiently startling to produce a spontaneous and unreflecting statement.  2) absence of time to fabricate.  statement must relate to the circumstances of the event that occurred refers to our gut reaction

Physical and Mental Condition of Declarant,


Most reliable statements for determining that persons own health.

Must describe a current physical and mental conditiion


Statements must be made at the time of the condition

Must occur as a present condition

Recorded Recollections

Writings or a statement or other item for the purpose of inducing a recollection from a witness this is a trigger to produce a recollection.  The witness can be challenged.  Document serves to induce a recollection. 

Phone message, receipt

Business Records

Reports, memos, accounting documents are admissible. 

Must present a custodian of those records. 

Public Records

Driving records, deeds, mortgages, credit reports


Former testimony

Fromer testimony that is made under oath


Dying Declaration

Statement made under belief of impending death

Concerning the cause or circumstances of what the witness believed to be his impending death


Declaration against Interest

Against the declarant statements by a declarant that are against the interest of the declarant












In order for evidence to be considered admissible in court, two questions:

Is it probative?

Is it material?

Evidence need not directly support the claim.  Need only assist the tryer of fact in making a determination. 


Is it relevant on the basis of substantive law.



Legal Relevance

Can we get it in

Exclusion of prejudicial evidence


Relevant evidence may be excluded if its probative value is substantially outweighed by dangers of prejudice, confusion, misleading of the jury, delay or cumulativeness e.;g. repetition. 

Judge must show why this statement may be needed in the record.  Why this evidence is crucial to the determination of guilt or innocence. 


Is the probative value outweighed by the potential prejudice.


character evidence

Evidence of a general human trait: honesty, fairness, integrity this is often very prejudicial

Not admissible to show propensity.  Must show the preponderance of proof as compared to being guilty beyond any reasonable doubt.


Excluded from a criminal suit but admitted in a civil suit.  Importance of punishment in different courts   differences in the burden of proof and the expansion of evidence in the rules of admissibility are different.



Accused may introduce a character evidence about himself.  This opens the door for other party to rebut the accused statements.

reference by himself.  Opens the door to counter exam



May introduce a past victim


Prior bad acts

Wrongs, arrests, convictions are admissible for non-character purposes plan, knowledge, identity, preparation. 



1.        identify which material fact the prior acts helped to prove.

2.        must prove that the prior act actually occurred.

3.        must have a precise theory by which the material act may be inferred from the evidence.

Prosecution must give notice to the defendant


Acceptable purposes for prior bad acts:

1.          knowledge if it an element of the crime if the D claims that he was unaware of the crime

2.          intent is this an element of the crime and a prior commission of a crime will alter the probability that intent was present. 

3.          motive if prior acts allow for an inference that D had a reason to commit a crime.

4.          plan prior act shows a connected scheme

5.          Identity - prior act identifies that perp has signatures crimes

6.          mistake prior act illustrates that makes it evident that Defendants act was no accident



Prior crimes need not result in a conviction acquittals are admissible subject to prejudicial considerations. 



Acquitals and whether to admit them 1.Similarity

2.    Relibaility of the evidence proferred

3.    Remoteness of the other crime in crime (50 years ago)

4.    Notice similarity between the crime and the acts. 

5.    Need for this evidence





Higher probative value that outweighs the potential for jury prejudice








Tuesday April 1, 2003  Evidence Day 2


Witnesses and Impeachment


Witness & Impeachment

Recollection and communicating under oath


General rule everyone is competent unless incapable of:

1.                    perceiving

2.                    remembering/recollection

3.                    Communication-describing the event in question

4.                    Oath - inability or refusal to honor their duty to testify truthfully

Here is where we get to the limitation.



Doctor-Patient; Priest-Parishioner, Attorney-client:  These privileges stemming from these confidential relationships exempt a person from testifying.  Could present a problem with children or mentally challenged persons.

Lay Witnesses

Perception /Personal Knowledge requirement can only testify as to their own personal information or personal observations.  Can only testify to the facts of the matter after a foundation has been laid.; must establish that a witness had personally witnesses the event in question.  A witness is not allowed to embellish events with their own analysis.

         No analysis (scientific/legal conclusions)  No testimony as to the cause of death.  This is the jurys responsibility; a statement not based on opinion.

         Cannot give opinion testimony as a general rule.  If the opinions are based on common understandings and if they are helpful to the jurys understanding of some relevant issue, then the witnesss testimony will be allowed.  Example: intoxication, speed of a car,  If a witness can express his perceptions without the use of an opinion, then his testimony is admissible.

         If opinion is directed to a key issue, this is not admissible.  he was drunk is a perception. 



Discrediting witnesses

  • Oath show testimony contrary to witnesses statements that was taken under oath.  This will cast a cloud of doubt on the credibility of the wietness.
  • Perception where we challenge the witnesss perception of the event.
  • Recollection their ability to recall the events as happened.
  • Communication is the witness accurately conveying their memory?  Look for the word choices, look for exaggeration,
  • Prejudice how biased is the witnesss testimony; is there a financial or otherwise relationship that would predispose the witnesss testimony.  Example: mark furman
  • Prior Bad Acts
  • Prior Convictions
  • Reputation

Judge has great discretion regarding admissibility on the last four impeachment qualifiers.

Expert Witnesses

Technical specialized knowledge of fact, qualified by knowledge, skill and experience & training to assist the trier of fact in expert qualified by knowledge may testify by opinion or perception. 

  • Qualification of the expert must lay a foundation before the court.  Ask witness questions about his education, training and skill level.  Make a distinction between the lay and expert witness.
  1. Experts may state their opinion.  Testimony must be helpful and relevant
  2. Testimony cannot be cumulative or repetitive.
  3. Necessity testimony must be necessary.

Experts can testify regarding:

  1. Facts of which they have personal knowledge
  2. Evidence adduced at trial
  3. Hypothetical situations presented by counsel

Facts or Date relied upon by the expert in forming such opinions.  Can give opinions on decisions ultimately decided by a trier of fact unless the opinion is regarding a mental state (intent or knowledge)

Impeachment of Experts

Cross-examination will raise doubts as to the validity of the expert witnesss testimony.

1.          8 modes previously mentioned

2.          Attack experts qualifications

3.          Attack materials used by expert in making testimony

4.          Bias of expert due to paid services

5.          Unprepared for trial

6.          Learned treatise or study in the experts field which contradicts his testimony.  This Gives you the ability to cross-examine witness and challenge his testimony.


Procedural devices that obtain information and gather evidence about the case.  This is a formal procedural device.

Federal Court Discovery Rules - are designed that a witness or a party is not unduly harassed, that privileged information is safeguarded and that only matters relevant to the case are discovered. 

State Court Discovery Rules:

Traditional Discovery Devices:


1.          Interrogatories a series of written questions that are to be answered by a party to a lawsuit under oath. 

2.          Depositions pre-trial question and answer proceeding in which a party or witness answers an attorneys questions under oath.  This session is recorded.

3.          Request for Production of Documents

4.          Request for Admissions request that the opposing party admit or deny the truth of matters as relating to the case.

5.          Request for examination (physical or medical).  This requires a court order.

6.          Subpoena Duces Tecum request for documents propounded to a non-party witness but has documents that are pertinent to the case.



Role of Deponents Attorney

Attorney will attend the deponents deposition but his role is limited.  Deponents attorneys may make the occasional objection in a concise non-argumentative and non-suggestive manner.

1.          Role of attorney is limited

2.          Irrelevance of information

3.          Privilege

4.          Misleading or ambiguous questions


Objections noted in record but question almost always answered.


Attorney may instruct deponent not to answer question only to:

1.          To preserve a privilege

2.          Enforce a limitation on evidence ordered by the court

3.          Present a motion to terminate a deposition

Coaching of Witness:

Attorney coaches client to elicit specific types of answers, not speculation. 

         You have the right to refuse to answer this question. 

         No rambling or long winded answers.

         Stick to yes/no answers



Deposition Transcript contains every utterance made during the deposition is recorded in this document.


Methods of recording audio, video and reporter

Summarizing the transcript

Paralegal prepares a summary of the transcript and an index of the transcript in order to make it easier to locate.  Summary allows litigation team to quickly review the information obtained in the deposition. transcripts


Summary will include a page and line number of the specific quote.    Summary will include the following:





Deponent: Name & Address   Attorney:                                                      Paralegal:



Page:                                            Line:



  1. Determine purpose of summary
  2. Read entire Deposition transcript making note of the important passages.
  3. Reference the page and line number
  4. Chronological index is not necessary
  5. Stick to the Factual issues


Indexing the Transcript

Consists of a list of topics (education, employment) followed by the relevant page and line numbers.


Written questions submitted to any party to a lawsuit.

1.        Answers are due within 30 days after service of interog.  At no time are they due sooner than 45 days after the service of the complaint.

2.        Must be served under oath and any objections must be attested by one of the partys attorneys.


Most courts will limit the number of interogs.

When to use interogs


1.        To obtain witness names and addresses

2.        To discover facts and details to establish it as evidence in a sworn response

3.        To discover damages ex.  Discover insurance coverage

Tips for drafting interogs

  1. Now the rules and limits: must seek relevant information.  Number may be limited by judge and by rules
  2. Develop objectives for the interogs.  Identify the key issues and strategies.  Identify what we have and information that needs to be clarified.
  3. Refer to a form books and previous interogs.  Look for form books in the library for federal and state interog forms.  Look for similar fact patterns
  4. Use preliminary sections to define and discuss.  Prepare introductory paragraph to stating the name of the person to whom the question is directed, the date the answers are due, any applicable rule that needs to be stated.  Define any terms or acronym.
  5. Cover the WWWs, the basis for their legal argument
  6. Phrase our questions simply, precisely accurately.  Break complex questions into shorter, simpler components.
  7. Avoid questions that require a yes or no answer unless you have follow-up questions.  Elicit a narrative.
  8. Make effective use of opinion and contention questions.  Where does the party stand on key questions.
  9. Concluding or summary interrogatory.
  10. Use an evasiveness test.  (Review questions with another person to see if they can be avoided).

Subpoena Duces Tecum

Request for production of documents:  allows a party to obtain another partys physical evidence FRCP 34




Any physical embodiment of information or ideas

Subpoena Duces Tecum

Any party may serve on any other party a request to

1.        produce and permit party making the request to inspect and copy any designated documents  limitations: privilege, irrelevant, unnecessary

2.        To permit entry upon designated land or other property (e.g. computer) in the possession or control of the party for the purpose of inspection and measuring, surveying, photographing, testing or sampling, within the scope of FRCP Rule 26B


1.        Can be served to anybody, and are

2.        Interogs, and

3.        Notice of Deposition

Motion to Compel:

If requests are unanswered

Requests are the most effective method of fact gathering.


Drafting a request for production of documents includes:


               Set of Definitions and Instructions

               Lists of documents to be produced



         Type and # (number) of requests

         Cite authority (usually/sentence) e.g., FRCP 34 of civil procedure

         Where to produce documents

         Must specify a reasonable time

         Place and manner to produce the documents and to hold the inspection

         Response due date

Set of Definitions and Instructions

Used to clarify potentially vague term or requests

Reminds responder of their obligations

List of documents

             Centerpiece purpose of request

             Be specific (all relevant request all correspondence by and between plaintiff and any employer or representative of ABC, Inc. relating to the issue herein).

             Can be in the body of document as an exhibit


Request for Admission  FRCP 36

Set of written statements about the facts at issue in the case (served on the opposing party and only parties) has a limited time within which to admit or deny each statement

Request of a Admissions

Request opposing party admit or deny truth of matter relating to case

List of statements of factual allegation certain agreed to certain denied (not often used in criminal cases)

Response of Admission must

         Be in writing

         Allegations confirmed or denied with legal reason.

         If no response all allegations are deemed admitted

         Each matter (statement) must be pending; relevant and must pertain to action

         Each matter must separately set forth



If answer is deemed insufficient or evasive by the court

         Answer may be deemed admitted

         Answer may be required to be amended.

Effect of Admissions

Any matter admitted is conclusively established (fact as longer in controversy)

  • Any admission is for the purpose of and may not be used against party in another proceeding.

Drafting Request for Admission

Almost identical in form for request production of documents:


  • Introduction
  • Definition and Instructions
  • Statements we want admitted or element (can be in body or as an exhibit)

Request for Examination

Requires for Examination

  • Requires a court order (part of motion practice)



Thursday  April 3, 2003  Evidence Day 3



Subpoena Duces Tecum

         Request for Production of Documents FRCP 34


o        Introduction

o        Set of definitions & instructions

o        List of  docs to be produced

Failure to produce docs  necessitates party to submit a Motion to Compel

Request for Admissions FCRP 36

A set of written statements about the facts at issue in the case


Response to admissions must be formal and in writing must list the number of admissions and denials respectively.  Party denying the affirmation of the statement and must be in writing in detail as to the denial.


In that explanation of denial, we get a better picture of their contention.


Note: if response is not prepared and delivered in a timely manner, this can lead to a default judgment; this constitutes an affirmative admission.


Each matter within that request for admissions must be relevant, must pertain to the pending action, cant put anything to embarrass or annoy the individual.


Each matter must be separately set forth.  We can overwhelm the party by putting numerous requests cannot be reasonably met.  Remember, the limit has been 25. 


If an objections is raised, and we do not like a particular, the proper response is not to answer it, but rather you must raise an objection.  That other party may move to court to decide on the objection and compel an answer.  Example: too confusing; irrelevant question.


If an answer given is deemed to be insufficient or evasive by the courts, two things can happen: the answer can be admitted or the answer may be required to be amended.


Any matter admitted is conclusively established.  Admission is for the purpose of the pending action only and may not be used for any other proceeding.


Drafting the admission is almost identical in form to the request for production of documents which will contain the introduction, definition and instruction paragraph or paragraphs and instead of listing the docs to be produced, you will list the statements that need to be admitted or denied.



Limited to a party; submitted to the opposing who has 30 days within which to admit or deny each statement.

Making an attempt to weed out the facts that are disputes and the facts that are agreed to.


We have insufficient knowledge of that info at this time, etc.


Look up the Fair Debt Collections Practices Act

Request for Examination

Requires a court order; this is part of a Motions practice. 


Acceptable purposes for the use of Prior Bad Acts

Determine if intent was an element of that crime.  Must show that a prior bad act occurred and a material fact which illustrates the relevance of the fact in relation to the case.  Probative value must outweigh the Prejudicial value of the prior bad act.


Prior convictions dealing with  

Convictions based on fraud or conversions or false statements  and can be admitted and used to impeach.


Reputation evidence can be used

Prior bad acts are almost excluded because the probative element is very low.


One must show more than the person has a propensity to in your use of prior bad acts.


These are exceptions to the rule of rejecting prior bad acts for admission.

Exam is due on Monday the 14th





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