OUTLINE

Friday, October 30, 2015

8:01 PM

[RELEVANCY]
REMEMBER ALWAYS START WITH RELEVANCY
Rules
401(relevancy) - if fact has any tendency to make determination more or less probable it
gets in
Weakness goes to weight not admissibility
402 - if relevant it gets in, if not it doesn't, burden shifts to opposition to exclude or
mitigate.
403 - misuse and negative effects: (balance probative value vs negative prejudicial value)
When a rule says unfair, it means unfair and illegitimately prejudicial
2 sides
Probative
Persuasiveness - It adds information to relevant issue
Need - if no other evidence about relevant issue, higher value.
Unfair/negative effects
Unfair prejudicial effect - is this going to affect jury in illegitimate way
Judge can exclude ONLY IF this side greatly outweigh probative value (high
burden)
Case - Shymanovitz (man accused raping minor male children); had homo porn mags,
redacted
105 - If evidence has both illegitimate and legitimate use it gets in subject to limiting
instruction AND 403 balance test IF requested.
Types: Direct v. Circumstantial Evidence
Circumstantial requires logical inference (beer can in back seat, may have been drinking)
Direct requires us only to believe witness/evidence (I saw him drinking beer in car)
Legal Sufficiency
JML - no rational jury would find for P (can't give judgement as matter of law; evidence not
legally sufficient)
JSM - dismiss jury; if jury finds for P, judge would JNOV. JNOV only time judge weighs
evidence. If legally sufficient case has to go to jury
Probative Value - becomes stronger as amount of inferences narrows
2 elements
Strength vel non - goes to persuasiveness
Need evidence - any other evidence that proves motive, proximity, etc
Irrelevant v. Immaterial - Material if relates to legal issues in the case
Irrelevant has nothing to do with case
Immaterial doesn't fit with case.

3 Options judge can do with evidence

Let it in with problem
Keep out because of the problem
Mitigate problem with redaction, instruction, or exclusion
Example
Beer was in back seat because he just broke up with homo lover
Probative value high, limited admissibility, get in beer, not homo no relevance
to determination
Redact homo, keep lover, 403 balance; need lover to show emotional state,
don't need homo due to prejudicial effect.
Exclusions
All exclusionary formulas are the same "X is inadmissible for A, but may be admissible to
prove B"
411 Liability Insurance - Jury should focus on fault, not who can pay
In all civil cases involving claim for damages, evidence of insurance is inadmissible
UNLESS:
All claims under 40-1-112; OR
When offered for relevant purpose i.e. agency, ownership, control; AND
Court finds OK in light of 403 balance

Collateral Benefits Rule

Excludes evidence, IN TORT CASES, thats shows P already received some benefit
In BoK cases, collateral source evidence may be admitted, IF, it is relevant to
demonstrate extent of P's actual losses cause by breach (x not for A, but used for B)
Settlement monies are NOT collateral, however evidence thereof should not be
admitted at trial
Rule of Completeness

Evidence Page 1

 Rule of Completeness
If one side enters incomplete evidence, cherry picks, you can STOP them and insist all
other relevant pieces be submitted
Need context, jury should have notice of all relevant facts
Expression - "OPENING THE DOOR"
2 situations
Intentional - make claims of pain/suffering and mental anguish
Usually previous mental health is inadmissible, can't open door
HOWEVER, if you claim accident created depression, opens door to
previous depression
Accidental - someone slips says I have insurance on stand
Doesn't open door, insurance is inadmissible
Instead - motion to strike, motion to instruct jury, then approach for new
trial, incurable
THUS, if inadmissible is said, doesn't open door to inadmissible evidence
[PRESERVING ERROR FOR APPEAL]

If the lawyer doesn't ask, it doesn't get preserved. You've got to make judge aware of error.
MUST have ALL of the following to preserve appeal.

REMEMBER
No ruling no error, judge has to say no.
Conditional doesn't count. Need a definite no(don't forget to ask later to preserve)
If judge doesnt want to give ruling, tactfully hold your ground and get it.

Objections

Asked & Answered

If answer received cannot re-ask same question of same witness (if multiple P/D's each may ask same question
on cross/direct (can loop questions, slightly different)

Assumes facts not in evidence Counsel may ask witness whether certain facts are true, if good faith basis to believe they are (!!!leapfrogging are you still beating your wife? Should be - have you beat your wife in past? Are you still beating her?
No proper Authentication

If party offers document/item into evidence MUST present sufficient evidence that jury could find
document/item to be what party claims it is
Evidence Page 2

Best Evidence Rule

Bolstering(improper Bolster
testimony)
Calls for Speculation

Compound Question

document/item to be what party claims it is

Counsel may not prove/testify to contents of writing/recording w/o producing/offering it into evidence

Statement offers nothing to reliability of witness' testimony but repetition on prior consistent statement.
Offered to bolster testimony in minds of jurors.
LAYPERSON'S testimony as to facts/opinions MUST be based on witness' personal knowledge
Question asks two or more at same time

Cumulative Evidence

(similar to bolster but evidence based) evidence merely repeats information already admitted

Expert(question Calls for

Expert opinion)

Witness may not testify matters beyond 'the ken' of ordinary lay witness without being qualified by education,
training, or experience

Document must speak for

itself
Harassing the Witness
Leading Question
Legal conclusion

Misstates Prior testimony

Narrative

Non-Responsive
Yes Or No Answer
Foundation (personal
knowledge)

When contents of document is matter to be proved, BEST EVIDENCE of that content is document itself, thus,
should be read to jury, not paraphrased by counsel/witness
Witness can only be examined to relevant matter. Protected from improper questions and harsh/insulting
demeanor. (sometimes let it go, may hang themselves)
Question that suggests/implies own answer

A Lay OR Expert witness cannot testify in legal terms or to legal conclusions about issues in case (Judge has
monopoly on legal terminology)

Counsel may restate prior testimony ACCURATELY when relevant in questioning a witness (How long were you
at the bar? "2 hours" After drinking for 2 hours at the barOBJECTION - misstates never testified to drinking

Open ended question (opportunity for lengthy answer/enter inadmissible evidence) - split in courts if they like it

Cross may ask for court's assistance when witness refuses to respond to relevant questions or adds more than
he should that isn't relevant
Counsel may insist on yes or No answer when question fairly calls for one. HOWEVER, witness may explain
afterwards.
Must satisfy that they have personal knowledge of issue

Foundation (rule of evidence) Objection - lack of sufficient knowledge found. You can go there just not yet. You missed a preliminary
foundational question
Offer of Proof Issues
When objection is made judge may need to hear evidence before ruling (offer done outside
hearing of jury)
Ruling by trial judge excluding evidence will not be reviewed on appeal unless it is clear, on
record, what the excluded evidence would have been and how it was admissible
When relevance/admissibility of one item depends on admissibility of other evidence not
yet presented, judge may ask how latter evidence will be admitted.
1-103 Motions in Limine

Pretrial motion asking judge to rule on evidentiary issues/admissibility of evidence

Practical Reasons to Bring

Naildown any obvious evidence to exclude
Get order signed for counsel and witness(instruct every witness not to speak 'x')
Stops opposing counsel playing fast and loose with inadmissible evidence
Complex issues - gives judge heads up
If judge defers ruling until trial - GET a STAND STILL order
No one brings it up until you get a ruling
Still have to renew at appropriate time during trial to get a ruling
Big Evidentiary issues
Briefing this issue and getting a ruling may help settlement
Same three steps apply as in order of proof
This is what evidence will say
This is the legal issue
This is the resulting harm
If you get a final ruling in limine, don't have to renew at trial, UNLESS, new information. THEN ask
judge to reconsider based on new info.
1-104 Trial Court Rulings on Preliminary Questions of Fact

Dictates what evidence judge may survey in determining admissibility of evidence for preliminary
questions. Two types of objections 104(a) and (b)

What happens when a judge has to decide preliminary fact questions? All depends on What kind of
Question

Evidence Page 3

[GETTING EVIDENCE IN AND ON RECORD]

Lawyer's main job is getting things on record and getting them into evidence

<Getting it In>

Stipulations - a voluntary agreement by party that they will not contest certain facts. (agreement on
record)
Generally
In civil actions party who stipulates estopped from taking inconsistent position
Should be made in writing and made part of record.
If Oral, should be on the record

Stips are binding and conclusive. May NOT be withdrawn unless based on fraud or mistake
by leave of court

Types of Stipulations
PreTrial Orders (Motions in Limine 103) - find out what the real issues are
Exist in criminal cases, but different from civil. D's easiest way to win is to point out
lack of crossing 't'
RFA - only civil, no such thing on criminal
Admissions in Judicio - "Judicial Admissions"
Admissions made in formal pleadings or at trial
Formal and binding, only changed with permission from court
Estoppel effect/other side hasn't planned on proving it, thus no changing
EX: wrongful death with truckdriver
Driver admits works for Acme Co. No need to prove in future.
Unfair to go back and change minds

Judicial Notice (201)

First Type - things commonly known by court
Basic geographical, historical, common knowledge
> Can't be opinions/evaluative statements
Judge turns to jury:
> In civil: "you shall accept."
> Criminal: "you may accept."
Can't be used on opinions/evaluative statements - Atlanta traffic sucks
Standard is whether community knows, not just if judge knows.
> Can't just say rained in Atlanta, have to state specifically where
Second Type - Almanac Rule
Fact known definitively without controversy (sun rose this time, this much rain
this date)
Still have to give other side enough time to objevt
Evidence Page 4

 Still have to give other side enough time to objevt

Third Type - facts sufficiently proven in court.
Two stages
> Person offering scientific tool has to prove it up
> Court takes judicial notice that certain mechanism are capable of
accurately tracking speed
Brethalyzers, speed track, DNA
Only takes notice that it CAN give accurate results, STILL HAVE TO SHOW USED
CORRECTLY

Authentication
Generally - Proving something is what you claim it is
All authentication questions are 104(b) - jury questions
Only requires reasonable jury standard - legal sufficiency (low standard)
May only be one hurdle you have to overcome.
May have to satisfy relevance, hearsay, and best evidence.
Proponent has burden to offer sufficient evidence that reasonable jury could find item
authentic

Real Evidence Authentication

2 categories
Item easily sight recognizable by someone with familiarity
May be any observable characteristic (PO personal 'scratch or identifying mark)
Two things that must be preserved: Identity and Integrity
Fungible Evidence not recognizable by sight
I.E. Pile of cocaine
> Establish Chain of custody: preserve identity and integrity
> Must have procedure for Seizure, transport, testing, log records
> Certified mail with return, receipt, request lab gets it, two techs open,
test, retag until prosecutor needs it
Need, at minimum, PO who tagged and bagged, and the lab tech
> 24-4-406 - if you can prove routine practice of an org as being x,y,z, then
process entered as circumstantial evidence.
> "sketchiness" goes to weight by jury not admissibility by judge.
Non - Public Documents
Authentication by a witness
Signed by a witness
If a document was signed by witness, then subscribing witness need not be
produced unless required by statute (903)
Testimony of a witness
Documents may be authenticated with testimony of any person whoo in fact
witnessed the preparation of execution of the document and can identify from
personal knowledge 901(b)(1)
Business Record Exception
A proper foundation for the business record exception authenticates the
document
Conversation
A transcript of a conversation may be authenticated by any witness who heard
the conversation and can testify that the transcript is fair and accurate
Authentication by name or letterhead
Mere fact that document states that it is from particular source is never enough
to authenticate document
However, letterhead or facsimile, may be considered in conjunction with other
evidence
Authentication by circumstantial letterhead
Testimony that circumstantially points to source of documents may be sufficient
to authenticate document (901(b)(4))
Authentication by handwriting or signature
Three ways to prove belongs to particular person
> Testimoney of person familiar with it
> Give jury examples of person's signature and have them compare the
writings to decide issue
> Present testimony of expert in handwriting comparison
Question for jury
Self-Authenticating Non-Public Documents
Doesn't require witness to testify to establish document's authenticity
Newspapers/magazines
Inscriptions, signs, or labels affixed in course of business AND indicate
ownership, control, origin
Commercial paper, instruments, documents related
Affidavits establishing foundation for ordinary business records

Public Documents
Certificate of any public officer in GA gives sufficienty validity to any copy or transcript of
any record, document, paper or file, or other matter in public officer's respective office.
Public officer - any person appointed or elected to be the head of any entity
Evidence Page 5

 Public officer - any person appointed or elected to be the head of any entity
Any court may receive, and use evidence, in any proceeding information otherwise
admissible form records of department of public safety, or DDS, obtained from any terminal
lawfully connected to GA crime info center.
In State Records
Stamp from the custodian of records of the org or agency
Out of state
Seal from agency or org

Foreign Records
Make request at country's embassy
Foreign agency seal
Ministry seal
Embassy seal

Judicial Notice (201)

Court may take notice of matters of legislative fact without intro of proof
Judicial notice of laws and regs (220)
Judicially recognized without the intro of proof.

Ordinance or resolution (922)

When certified, judicial notice may be taken of ordinance or resolution. Such copy is
self-authenticating and admissible as prima facie proof of it.
Legislative acts of other states
Give full faith and credit to authenticated acts, records, and judicial proceedings of
other states.

Electronic records
Treated same as physical writings/records
Voice Calls
Testimony of witness with knowledge that matter is what its claimed to be
Apperance, contents, substance, patters, or other distinctive characteristics, taken in
conjunction with circumstances
Identification of VOICE by opinion based on hearing voice at any time under
circumstances connecting it with alleged speaker
Call logs/records
Self-identification of speaker is insufficient
Text messages/emails/tweets/etc
Same as hard copy communication
Combine as many clues as possible
Testimony of witness who wrote or observed another write message is sufficient.
Can look at content, info only sender or few others would know
Can look at subsequent conduct to corroborate identity of sender
Web pages
Authentication of site relates only to whether site is what it says it is.

Authentication of Photos and recordings

Testimony of witness with knowledge matter is what it is claimed to be
Appearance, contents, patterns, or other distinctive characteristics taken in conjunction
with circumstances
Unavailability of a Witness
Where no witness available who can authenticate a photo or recording, may be
authenticated by competent evidence that such items reliably show the fact for which
they claim to be
Fully Automated Recording Systems
Must contemporaneously record and depict date and time.
Continuing witness - audio/video recordings generally do not go out with jury

VIEWS

Jury View
When jury taken outside courtroom to look at something relevant to case
Evidentiary View
Jury view is of actual evidence in case, or when witnesses testify or provide info during jury
view
Party is entitled to evidentiary view if the out of court evidence would be relevant and
admissible. D has a right to be present.
Scene View
Jury view is of scene of crime/accident, presented to help jury better understand testimony
and other evidence introduced in court.
Evidence Page 6

and other evidence introduced in court.

Used only for demonstrative/illustrative purposes. Court has discretion to grant.
Court ordered jury view
Court may order jury view on its own, and grant jury's request for scene view after
deliberations have begun. Judge and reporter should attend

Best Evidence Rule (1001) (Worksheet available)

When does party have to produce the writing or recording?

Have to produce it or have a good reason not to. "put up or shut up"
If can't in good faith provide evidence. Can bring in secondary evidence (testimony) of it
If bad faith, 'spoliation', can't talk about what was in the evidence
When can you use a copy?
Can always use copy unless other side gives legitimate reason not to use. 99.9% of time
copies are fine.
Unless problem of confusion, copies don't match, or fairness, they get in.
Summary of Voluminous Documents (1006)
Must be sufficiently voluminous to make comprehension difficult and inconvenient.
MUST have the voluminous documents
MUST give other party opportunity to review before trial
ALL underlying documentation must be admissible.
If can't agree with characterization, summarization, then motion in limine
Once in evidence can highlight it, bold it, etc.
Demonstrative Evidence (Replica of real thing)

Requirements
No material variation
Person with personal knowledge must lay foundation must be helpful to fact finder
403 Balancing test
Review general types of evidence
For Real
Authenticate, tender, publish, lay foundation, enter into evidence
For Fungible
Chain of custody, blood sample, cocaine.
Demonstrative - like real, but tendering little different see infra
Foundation
Ask if they had personal experience of the real thing
Hand demonstrative evidence ask if they know what it is or recognize it
Is it a fair and accurate representation of the real thing
Offer exhibit into evidence

Vor Dire (at trial) asking witnesses questions at trial to see if proper foundation has been
made for witnesses' testimony (done at side bar)
Able to cross examine witness before your turn if you're unable to object/not object
without more information
In criminal cases court prefers no demonstrative evidence used

Types
Trial aids (NOT DEMONSTRATIVE EVIDENCE, thus dont' go to jury room)
Just for use in courtroom, must be based on sworn testimony or admitted evidence.
Photos - can be real or demonstrative
Real - photo of crime scene/accident
Demonstrative - picture of area where accident occurred taken at a later date.
Whiteboard, models
Computer graphics -these are computer reenactments, typically not allowed in criminal
This goes beyond the model and start reconstructing accidents
Have to make sure that the jury understands this is a representation of expert's
testimony put into animation, not an objective program that is spitting out culpability
The 403 balanced test is really important
In civil cases usually both sides and accident reconstruction
Day in the life films (controversial)
Plaintiff would create a quadriplegic cases
Used to calculate cost and pain and suffering
Again 403 balanced test Probative vs. prejudicial value
Bifurcation of trial
One trial for causation and one trial for damages
Remember 403 -can exclude, admits, or mitigate (bifurcation)
Dangers of films
Music -pulls an emotion
Zooming with panning and angles
Split screens that show before and after
Inflammatory -lack of balance they will cherry pick the really bad stuff

Evidence Page 7

[Competency of Witness]

Generally Every person competent UNLESS

Can't answer cross examine questions
Do not understand difference between lying and telling truth
Person who cannot communicate effectively may not be competent to testify
May be disqualified if they lack personal knowledge or cannot/will not take oath or affirmation
Presiding judge cannot testify
Jurors can't testify
Generally, counsel can't testify in own case.
Determination
Voir dire witness
Ask witness questions to determine if foundation is properly laid, that they have
competency to testify about that issue
Not done in front of jurors
Ask judge to make a ruling if young infant is competent to testify
Make sure that expert is competent in that field
Remember hard to get an incompetent witness, bar has been lowered substantially

Rules
601 every person is competent to be a witness
(a) Take an oath to impress the duty to testify truthfully
(b) if the pendant Le involved, or in criminal proceeding in which a child was a witness, or
victim they're competent to testify
Children to young do not have to take the oath
604 - interpreters have to take the oath
605 - presiding judge may not testify in that trial.
No objection necessary to preserve on appeal
601
Since all may testify, weight and credibility are left to the jury. Though, still subject to
judicial review sufficiency of evidence
609 - deals with impeachment for crime
610 - deals with impeachment for religion
Competence is a question of law determined by judge
Overturned only through abuse of discretion

Functional incompetency
Get what you can, allowed full air of problems, but end of day have to be able to answer cross
If minimally competent can ask leading questions
No cross? Violation of due process.
JUROR IMPEACHING THE VERDICT (post trial)

Jurors cannot testify by affidavit

Deliberations may not be received as evidence
Juror may testify if prejudicial info was improperly brought

Rule 606(b) (only extraneous happenings can impeach jury verdict)

Strong policy against examination of jury room happenings.

We want finality
Saves money, let them be after the trial
If juror consider extrinsic evidence, a new trial is necessary if party can show a reasonable probability of
prejudice by a preponderance of the evidence
Internal issues must be handled prior to closing of trial
External information, coercion, or bribery which effected the verdict
Burden is on the government to establish contact was harmless to the D.
Drunk jurors - NO (must catch before trial over)
Newspapers - YES
Quotient verdict - no
Threats from other jurors - no
Bribes - yes
Delusions - no
Process for impeachment
Obtain affidavit from a juror and file a motion for new trial
Opposing counsel will file a motion to strike the affidavit
[Witness Examination]

Evidence Page 8

Oath or affirmation rule (603)

Every witness must give oath to impress duty to be honest

If child too young may not have to
Party must object to improper swearing to preserve error for appeal
Hypnosis - data under hypnosis, including derivatives, are inadmissible
CONTINUING WITNESS

Admissible writings and recordings that are admissible are able to go out witih jury
If writing/recording is a reduction , substitute of oral testimony it will NOT go out, continuing
witness
Depos, rogs
Transcripts of former testimony
Past recollection recorded
Prior inconsistent statements
Prior consistent statements
Audio and video may replayed in opeen court
Drawings, that don't summarize, duplicate oral testimony not subject to continuing witness rule.
LAY OPINION TESTIMONY

Lay opinion - opinion with 'the ken' of the ordinary juror (stop counsel sneaking in expert as a layperson
to escape pretrial disclosures)
Requirements
Something average person would know
Can only testify from personal experience and observations, not about a subject generally
Has to be rational (no intuition/feeling/speculation)
Must be helpful to trier of fact
Objection! Not helpful to trier of fact
Telling jury how to decide
Testifying in legal terms (judge has monopoly)
Restrictions
If testimony is offered to explain conduct/explaining actions which are not needed ATTACK
RELEVANCE
"I heard my neighbor screaming obscenities" objection - foundation
How would you know her voiceetc
Common objections - speculation or calls for expert
DIRECT EXAMINATION

(611)(a) Judge has power to control the order and mode of questioning to:

1. Make the interrogation and presentation of evidence effective for the ascertainment of truth;
2. Avoid wasting time
3. Protect witnesses from harassment or undue embarrassment
Laying foundation for Witness Testimony

1. Personal knowledge - established by showing could see, hear, or perceive matters related to
testimony
i. Exceptions
1) Only properly qualified witness can testify to opinions. Laymen cannot
2) Admissions admissible against them regardless if based on personal knowledge
2. Foundation under rule of evidence

Leading questions not permitted on direct, unless handicap, or adverse/hostile witness

Generally permitted on cross
Exceptions to direct leading questions
Hostile, unwilling, biased
Prima facie don't know up front, after a while may be apparent, ask judge to
treat as hostile
adverse party/witness identifies with adverse party: nurse of 20 years for doctor
jones)
Child, or adult with communication issues (minimally competent)
Recollection is exhausted, (can stimulate) "honor, developing witness testimony
allowed by 611)
Undisputed preliminary matters
Transition questions (signposts)
If laying foundation
OBJECT WHEN Counsel using leading to:
Pull witness through portions of weak/difficult testimony
Recast witness's testimony in counsels' preferred manner
Repeat or sum up important testimony (bolster)
Evidence Page 9

 Repeat or sum up important testimony (bolster)

Narrative answers objectionable, may lead into inadmissible areas
Can't impeach own witness on direct
Basic/practical considerations
Thoroughly Prepare witness
Try to clear as many issues as possible with motions in limine
Let witness be star of examination. Take it slow

CROSS EXAMINATION

611(b) - If several parties, each has right to cross examine witness

Wide open cross Rule - witness may be crossed on any relevant matter to any issue in proceeding
Federal Rule - cross limited to subject matter of direct examination
GA RULE - any relevant admissible questions are allowed.

Don'ts
Not ask leading regarding facts under asserted privilege
Can't ask if think other witnesses lying
Speculative; argumentative
Can only if witness testified to this matter on direct.
Can't ask about uncalled witnesses, unless door open
Do's
Protecting witness form harassment doesn't foreclose examiner from discrediting
Cross and Hearsay

May not ask if another person made a particular statement, or if document states particular fact
UNLESS:
The statement or document has already been submitted into evidence; or
Cross examiner has a good faith and reason to believe:
Statement qualifies as non hearsay or hearsay exception
And, witness has sufficient personal knowledge of circumstances to lay a foundation
to qualify over a hearsay objection
Must have a good faith basis to ask if a particular fact is true when it has not been admitted
If bad faith he has no honor
But does not need admissible evidence to have been good faith
Opponent can ask for a showing of good faith
Why do you believe those facts are true?
How can the witness confirm?

Sequestration

At request of party, (court can also make on its on order) court order a witness excluded so they
can't hear other witnesses testimony
EXCEPTIONS
Parties
Officer or employee of a party designated as its representative (the investigator)
Person whos presence is show as essential to testifying issues stated/essential to
party's cause (expert witnesses who need to hear testimony in court. Need to ask in
advance for this exception)
If you breach the order court can
Cite for contempt
Allow opposing counsel to cross witness why they violated
Strike testimony(really serious/rare)
If person is no longer going to testify may remain.

Can't exclude writing, or immediate member unless:

1. They are material and necessary witness; and
2. Substantial probability presence of the thing would impair conduct of a fair trial
a. Unless misconduct, VOR FM exclusion decision must be made prior to jeopardy attaching
However, the immediate family member will be scheduled to testify as early as possible or practical
Can't exclude the testimony of someone who violates sequestration
AIDING FORGETFUL WITNESSES

Refreshing Recollection (612) used to stimulate, not to testify from

Refreshing Recollection Before Trial
++Judge's discretion to produce documents/items used to refresh witness's memory before
trial++
Requirements for producing documents (remember don't want counsel writing script for
witness)
Used the document to refresh memory before trial
Evidence Page 10

 Used the document to refresh memory before trial

Witness used document to testify
Court determines production necessary to prevent prejudice
Refreshing Recollection During trial
Generally
(can use 1-2 Leading questions/ provide document then take it away, even handwrite
on a sticky note, or call recess)
Elements:
Has to be unable to recollect complete and accurately
Ask to refresh
Hand them item to refresh/ then remove it
Then, Did that refresh your recollection?
Caution
This is not a way to get evidence in
The opposing party may ask examine refresher
They can cross examine on refresher and admit it into evidence
Remember-do not show any privileged or WPI because cross can examine and enter
into evidence and you waive your rights. (IN GA THIS ISN'T WAIVED, only worry about
in fed)
On cross, they may try to argue that your witness is simply parroting what you
submitted as a refresher.
Also, cross can ask about refreshing documents used prior to court-can ask to see
under rules 612. Judge's discretion.
Rule of thumb-never show witness anything you wouldn't want to show the jury

Past Recollection Recorded (hearsay exception 803(5))

Something the witness prepared prior to trial that they can use to assist their memory
Doctor's notes on patient for the past year
Police officer report
CAN'T have issued recollection merely to testify accurately and fully, if so can't use memo,
Don't want testimonies being written by the attornies
Foundational Questions
Witness states and exhibits inability to fully, or accurately, recall certain relevant facts
Witness identifies writing as one prepared, or verified, by them when their memory was
fresh; (dictaphone, clerical staff, etc)
Witness testifies that the writing is true and accurate to best of their knowledge
Witness doesn't need to present recollection OF the records contents
Only need affirmation of belief that it is an accurate record of facts.
CONTINUING WITNESS - this doesn't go out with jury. Evidence that would have a testimonial
effect
[HEARSAY]
Analysis

Is it an admission?
Circumstances
Prior consistent statements to rebut credibility
Prior inconsistent statements to impeach
Testifying witness can always testify for themselves as long as exception is met
Next determine relevance

Is It Non Hearsay?
Effect on hearer
Explain conduct/Verbal act
State of mind?
Impeachment/rehabilitation

Exceptions
IF Oral statement start at 803(1-4)
IF written start 803(5-6)
IS the DECLARANT available/or doesn't matter? 803
If DECLARANT unavailable - 804
Admissions

Types

Admissions in Judicio
Only statement of facts, not opinions/legal conclusions qualify
Binding in instant case, but only evidentiary admission in other cases
Types

In pleading
Evidence Page 11

In pleading
If withdrawn, no longer AiJ(not conclusive), but still evidentiary and
useable
Items stipulated by parties

Statements by parties and counsel in court

Generally opening statements by D counsel in criminal proceedings don't
count
Counts only if clear was authorized by accused
Made for purpose of dispensing with further proof.
Civil RFAs - cant' be withdrawn/contradicted without court's express approval
Rogs - not binding AiJ

RFAs not objectionable as long as legal conclusions relate to facts in case

Personal
Anything opponent said 24/7 that is relevant

Agent or employee
Was it made while declarant and agent/employee (24/7 no need to be on clock)
Is it within the scope of their work (don't want cooler gossip) line worker can't talk
about managerial
Adoptive admission
Civil

1st kind - party clearly adopted statement as own. Truck driver gets out says 'ya
hes right'
2nd - by silence (HUK) heard, understood, kind you would expect to deny

Criminal
1st kind still applies
2nd silence - Fed (post arrest silence in front of police can't be used) In GA
silence can never be used against (however, watch for gestures a smile)

Co - Conspirator Admission

Subsequent Remedial Measures

ONLY ADMISSION WHEN: if remedy done after injury, if remedial action wasn't
voluntary

Is it a statement made outside of court

Did the statement include anything the person intended as an 'assertion'
Machine generated statements don't count (no human intervention required)
Unintended utterances don't count
Wright v. tatum - can draw inferences form letters, but they were innocently put there
by authors. Writers were not intending to assert the inferences we drew.
Was there a gesture that had communicative intent?
"fabrication less likely with nonverbal gestures."
If conduct is not a statement, it can be admitted without needed to go through hearsay.
Implied assertion?
Does it portray facts, which if true, would be used to prove truth of matter asserted?
Can you draw other inferences or is it too tight? (tick off a running jaguar)
Test - assume X is false, then was speaker necessarily lying or mistaken?

Is the statement Being offered to prove the truth of the matter asserted?
Or does it qualify as Non-hearsay? (may still need 403 balance)
Offered to show Effect on Hearer

First Does the statement have a relevant non hearsay use?

Then, assume declarant had no idea what they were saying, still relevant? If yes nonhearsay
Explain Conduct? Out of court statement is non-hearsay when relevant to conduct at issue
Verbal Act? - legally significant language? Gifting, contracting, hired/fired/ voting
Senator raising hand to vote - verbal act - nonhearsay
Him saying he did vote - hearsay
Evidence Page 12

Verbal Part of act?

Out of court statement accompanied by ambiguous act. Need statement to give legal
character.

Does it demonstrate a relevant state of mind?

THIS IS FROM THE perspective of the DECLARANT.

Test - did declarant believe 'x'? Assume X is proven, still relevant?
Child has an evil heart if this is uncontrovertibly proven exhaust all relevance? NO.
thus nonhearsay

Impeachment or Rehabilitation

Prior inconsistent statements can always be sued for impeachment or substantive use.
Impeachment
Showed they lied prior

Rehabilitation
Mrs. Smith are you romantically involved with Mr. jones? Yesno further
questions
Redirect - mrs. Smith where you romantically involved when you told police
who ran the red light? No. Met him at accident. Gave police my statement
then we starting dating after he got out of hospital.

Substantive use - girl says boyfriend beats me at home, then doesnt want to testify
says she fell
In GA - if there is no other evidence this is substantive and can be used as
evidence
Fed would have to dismiss can't use for substantive use.
CONFRONTATION CLAUSE AND TESTIMONIAL HEARSAY
Case Notes
Crawford -

Davis

Confrontation clause excludes testimonial hearsay statements unless declarant testifies at

trial; OR
Declarant is unavailable AND the accused has had some other opportunity to cross
declarant
Affidavits don't count. Can't cross them
Confrontation clause occurs only when state offers evidence against accused.
Doesn't apply to preliminary hearing, suppression hearing, juvenile transfer
hearing, or sentencing hearings
Testimonial hearsay needs to fall under a firmly established exception OR exhibit
particularized guarantees of trustworthiness

If testimony is inadmissible under confrontation clause, can't qualify for Any hearsay
exception
Have to object to both testimonial hearsay and regular hearsay

Melendez (cocaine case)

Authentication vs. confrontation - Although they appropriately authenticated the evidence,

certificate and notary, this only lets the document play ball. But this doesnt necessarily
mean they will show up to play. However, to play they must show.
Analyst is direct testimony and accordingly must be able to be crossed.
Confrontation helps ensure accurate forensic analysis.

Criminal D has right to be confronted with witnesses against him. If Declarant unavailable can't
confront.
Testimonial - made under circumstances which would lead objective witness to believe statement would
be available for use later in trial
Two main 'Testimonial' Groups (if testimonial there isn't a right to cross, thus inadmissible)

Big Group - if statement was made by, OR TO, law enforcement, it is testimonial. If so
doesn't get in PERIOD.
Evidence Page 13

doesn't get in PERIOD.

Small Group - statement volunteered by citizens that appear to be intended to prosecute.

The Primary purpose test

If primary purpose was to deal with emergency it isn't testimonial (davis)

Exceptions
Routine law enforcement records not prepared in anticipation of a specific D's case not
testimonial
Specific lab tests or evidence generated in anticipation of specific prosecution are
testimonial.
Dying Declarations
Statements admissible under co-conspirator exception
If there is a relevant nonhearsay use, admissible over confrontation clause objection

Analysis
Determine if it is testimonial - to, by PO, primary purpose
If testimonial Is D allowed to cross, or have they crossed in the past?
If it is testimonial hearsay, also hearsay. MUST OBJECT TO BOTH.
Regular hearsay - more probably than notthere was an error
Testimonial(constitutional error) - beyond reasonable doubt there was not an error)
Higher standard.

Forfeiture
If D intended to use words or conduct to prevent witness from testifying then the testimonial
hearsay statement can be admitted.
CONFESSIONS AND HEARSAY

D admits all elements of crime without excuse (no other statements that support legal defense)
Must be
Voluntary (jackson v Denno)
Made without slightest hope of benefit or remotest fear of injury
Corroborated by other evidence

Jackson (voluntariness) protection of Confession

Few categories that are major red flags for invalidation
Torture - holding without hydration, bathroom etc
PO can lie to D, as long as no threats
PO saying if D confesses we will reduce charges. Cop doesn't have power to offer. This is
disqualifying and confession can't be used

3 causes of false confession

Torture
Law intellectual ability or naive
So alienated from society, they think system is out to screw them. Extreme distrust of the
system
Not excluded if made under:
Promise for collateral benefit - I'll tell the judge you worked with us.
Promise of secrecy
Promise of spiritual exhortation
Mental illness doesnt necessarily make confession involuntary

Exclusions
Guilty plea later withdrawn
Plea of nolo contendere
Any statement from above that was withdrawn, vacated, or set aside
Any plea bargain that didn't result in guilty plea that was vacated.
If withdrawn before announced
Plea bargained confession vs statements induced by D's hope of collateral benefits
Plea bargained confession is inadmissible if plea bargain falls through
Collateral benefit statements are admissible at D's trial
Involuntary
Not admissible, even for impeachment
If admitted for a plea bargain, then withdrawn, inadmissible

Dual Confessions
Brutan case said you can't limit "dual confession" with jury instruction (Al and I robbed the
bank)
To fix. (I.E. allow confession to be admissible)
Only have a bruton problem if confessor doesnt testify.
To get around it:
Evidence Page 14

 To get around it:

Each person confesses that they both did it (interlocking confession)
Redact the confession (most often used)
Severance of cases (try them separately 'rare'

Miranda Warnings and Confessions

Warnings must PRECEDE any custodial interrogation of a suspect.

'in custody' if deprived of freedom in a significant way (would a RPP know they're free to go?)
Even if at police station a person is not in custody when police tell him several times he was not
under arrest and free to leave if he wished.
The Rights
Right to remain silent
Any statements may be sued against him at trial
Right to attorney during questioning
Once requested all interrogation must cease and can only happen with attorney present
If he can't afford one it will be appointed.
If subject declines to waive rights all questioning must cease
What if subject confesses prior to miranda
Must be a break between earlier confession and last one
D must be made aware that first confession cannot be used against him and he doesn't have to
restate
PO may asked if suspect is armed prior to miranda
Miranda applies only to interrogations by police or other government officials.
Interrogation can extend only to words or actions on the part of PO that they should have known
were reasonably likely to elicit an incriminating response.
Spontaneous voluntary statements by D, even in custody, are admissible without regard to Miranda.
Statements taken in violation of Miranda are inadmissible as substantive evidence, BUT if voluntary,
may be used to impeach the accused if he testifies in a manner inconsistent with his out of court
statements.
Rule 410 - Plea bargaining rule

System is not designed to try majority of cases

Generally
Gives enormous protection to criminal D during the plea bargaining process
Allocootion - sworn testimony on the record in court
Can't use fact that he pled guilty or confessed
Can't use for impeach
But later he can be indicted for purgery
You can use the 'fruit' of the confession, just can't mention the confession itself.

[HEARSAY EXCEPTIONS]
ORAL

Present Sense Impressions (Just enough time to get the words out of your mouth)

803(1) provides
Following is not excluded by hearsay, even though declarant is available as a witness.
Present sense impressions. A statement describing or explaining an event or condition
made while the declarant was perceiving the event or condition or immediately
thereafter.
Requirements
Statements must describe an event or condition without calculated narration
Speaker must have personally perceived the event or condition described
Statement must have been made while the speaker was perceiving the event or condition,
or immediately thereafter.
Cases - statement must be contemporaneous with event described or made as soon as
speaker can get words out of his mouth. If not strictly enforced could create the res Gestae
rule once more.

Excited Utterances 803(2) (a little more time to get it out of your mouth)

Following shall not be excluded by the hearsay rule, even though the declarant is available as a
witness
Excited utterance. A statement relating to a startling event or condition made while the
declarant was under the stress of excitement caused by the event or condition.
Theory
Excitement may produce condition which temporarily stills capacity of reflection and
produces utterances free of conscious fabrication
Criticism - excitement impairs accuracy of observation as well as eliminating conscious
Evidence Page 15

Criticism - excitement impairs accuracy of observation as well as eliminating conscious

fabrication.
Requirements
Startling event or condition occurred
Statement was made while the declarant was under the stress of excitement caused by the
event or condition
Statement relates to the startling event or condition.
Court may consider statement itself and surrounding circumstances
When enough time has passed for declarant to calm down and reflect statements no longer fit
within this exception
Still must consider motive to fabricate

State of Mind/Body/Emotion Exception 803(3) VERY LARGE EXCEPTION similar to category 2

nonhearsay

REMEMBER this gives a little more time than 803(1-2) but still has to have an element of spontaneity.
803(3) the following shall not be excluded by hearsay rule
Statement made concerning then existing state of mind, emotion, sensation, or physical condition,
such as intent, plan, motive, design, mental feeling, pain, and bodily health,
Uses:
Admissible to prove person believedStill ask if for truth of matter asserted. (similar to category
2)
Prove statement of intent, if there is circumstantial use.
Sally accused of robbing bank. Says she didn't. D offers her testimony stating sally said she
intends to go to savannah for the week. Intent got in circumstantially.
Physical condition - statement about pain he is feeling, as proof he really did feel pain.
However, statement by declarant to a non-doctor prolly excluded on grounds of uninformed
opinion.
Mental/emotional state
Offered to prove mental state asserted directly at issue
Category 2 - "my husband is a two timing SOB" then changes will
Not hearsay at all - not for truth of matter asserted (he's an adulterer), but as
circumstantial wife didn't like husband
803(3) Exception - "I really hate my husband because he's a two timing adulterer"
THIS IS direct assertion of mental state (for truth of matter asserted), so hearsay
unless exception. Which it does under (3)
Present state affecting past or Future STATE (if circumstantial used to show intent to perform
FUTURE act)
Monday declarant rips up will. Tuesday, "I don't want him to get a cent" Admissible. Still
present state, goes to relevance not admissibility. Same if made statement Tuesday and
ripped up Wednesday.
Hillmon - wrote letter say going somewherewent and got murdered. Letter used to say he
went and went with hillmon. SCOTUS held admissible.
Limitations
BUT NOT including 1) statement of memory or 2) belief to prove the fact remembered or believed
unless such statements relate to the execution, revocation, identification, or terms of the
declarant's will and not including statement of belief as to the intent of another person.
Can use to speak to them personally, but not of their memory or belief or intent of
another person.
Backward looking statements do not qualify under this exception (PAST TENSE RED
FLAG)
The doctor poisoned mebackwards act. Not backwards state of mind.
(Shepard case)
Only descriptive statements, not those that explain why declarant felt a certain way.

This exception refers to state of mind of declarant, not that of the listener
Johnnie said, "I'm going to the shadow bar after work." Admissible
Father said, "Johnnie intends to go to the shadow bar after workthis is his belief, not state
of mind for johnnie" - INADMISSIBLE
Johnnie said, "I intend to meet my dad at the shadow bar after work." (Can't have a
statement of belief that incorporates intent.) Intent to meet dad. Belief he's going to bar.
SEE MILICH ON THIS>>
Statements have to be relevant to something other than proving the truth of the matter believed.
Childs out of Court Statement Describing Abuse 820

Considerations
Declarant must be proponent. Can be used as long as he states it and he can be crossed.
Must give notice of statement to adverse party
Person child made statement to is subject to cross, Unless adverse party waives
If child too scared to testify, not available, any statement made to PO would be testimonial and
inadmissible
If notice, and child can't testify, person whom statement was made is available for cross,
then prior out of court statements reporting abuse are admissible regardless if they are
Evidence Page 16

then prior out of court statements reporting abuse are admissible regardless if they are
testimonial or not.
If D does not object, D waived any confrontation clause issues.
Statements can still be offered under excited utterances or statements made for purpose of
medical treatment.

Requirements
Younger than 16
Describing any sexual contact, or physical abuse
Performed with OR on such child by another; OR
On another in the PRESENCE of such child
Exclusions
Doesn't apply to overheard statements, only statements made to testifying witness
If statements do not directly relate to sex conduct, or abuse, generally inadmissible.
Unless: if it describes other criminal conduct that is an 'inextricable part of the child's
description of the act of sexual or physical abuse at issue' can get other hearsay in if it is
part of the abuse

Written Exceptions

Statements made for purposes of Medical Treatment 803(4)

Synth:
1)Was statement made by patient, or on behalf of patient to a health care professional, or family;
2) is statement reasonably pertinent to diagnosis or treatment?
Can't be professional's statement, can't be describing assailant, just that he was stabbed.
Potential of lying goes to weight not admissibility.
(young patient)

People generally careful relaying medical history, most likely admissible.

Statements qualify as nontestimonial.

3) Did Declarant reasonably believe as a matter of course the info will be communicated to person
doing the treatment? (even receptionist, attendants, ambulance drivers, etc)

Limitations:

One way street : Only statements made by, or on behalf of patient are covered. Not those made
by physician to patient, or statements among health care professionals concerning his care.
Sam shot me in the back. - Sam isn't relevant to diagnosis, would be redacted.
Molestations cases the attacker will not be redacted since that IS important to diagnosis.

Machine readings - if no human interaction necessary, no hearsay. Prove reliability of machine.

EX: patient saying I was hit by a car qualifies, not the fact that it was driven through a red light.
Recorded Recollection 803(5)
Business Records 803(6) NOT categorical (credibility goes to ADMISSIBILITY not just weight)

Does the reporting company have a horse in the race? Civ Pro we have RFA , criminal we dont

Requirements
Made in ordinary course of business
Kind of routine paperwork that happens all the time; firing, hiring, etc.
Made by people that have business duty to do it
Integrated report - If they rely upon another business' report, and they know how the report
was created they can lay foundation for it. Have to lay foundation as to how they knew
other business' report process.
Based on personal knowledge of employee
Must be contemporaneous 'not backward looking' "I told her that she better be careful"
Short enough time that memory isn't a problem
Source - the source must be acting in ordinary course of business with duty to report to preparer
Evidence Page 17

 Source - the source must be acting in ordinary course of business with duty to report to preparer
Dont' have to be getting check from same person, but they are part of same enterprise. Nurse,
doctor, etc.
Person testifying on report - doesn't need personal knowledge, just knowledge of routine
practice.
Reporting source - dont need involvement, just observation of activity.
INCLUDES: diagnosis, OPINIONS, in addition to acts, events, and conditions; detail not important
just consistency of reporting procedure.
EXCLUDES: public records and reports under 803(8)
Double hearsay Problem(when report not based on personal knowledge) - doctor report - wife said
husband had type II diabetes. Wife no duty, but gets in due to 803(4): medical statement (inside
statement on double analysis), report gets in (outside) as 803(6) business record.

Process to get in
Preliminary determination of admittance
Judge may consider non-privileged evidence, including hearsay
Party must specify inadmissible portion in objections
902(11) - submit affidavit with records relevant to have foundation laid.
Give notice to D's after returned from the witness. (doesnt have to be doctor, can read over
report and sign off)
Can't testify from memory, Need actual report

Limitations
Reports prepared in anticipation of litigation inadmissible
UNLESS: report would be regularly prepared in response to incident that does NOT normally
lead to litigation. "slip and falls" But if you can show irregularities may be excluded
depends on judge
Common Objections
Contains sources who were not acting in regular course of business in observation and reporting.
Was not made at or near time events described
Was prepared in anticipation of litigation, thus not in regular course of business.
Contains opinions that do not meet requirements for lay or expert opinions.
Public Records 803(8)
Three Main Categories:

1. Mundane records and vital statistics maintained by a public office

a. Admissible in both civil and criminal
b. Admissible once authenticated.
c. Must show foundationally that record was authorized by law to be recorded
i. If question court may consider non-privileged evidence, incl. hearsay

2. Matters observed and reported by a public official pursuant to legal duty, as long as not in
connection with an investigation. (prosecution can't use in criminal. Would be testimonial. Must
be 'descriptive in nature'
a. Written descriptions of what public official, including a PO, saw heard, or perceived in
regular course of duties if used in civil, or when offered by defense in criminal
b. Testimonial?? Compare intoxilyzer to white substance taken from car. Tox was taken to
ascertain BAL, not for specific prosecution. White substance sent to lab to be used in court.
3. Factual findings from an official investigation.
a. Can be used in civil, or criminal defense(not prosecution), unless circumstances indicate lack
of trustworthiness. (evaluative report Factors)
i. Competence, neutrality, unbiased, access to all material info, of fact finder
ii. Comprehensive? - Formal hearing held with earmarks of due process.
iii. Timeliness of investigation.
Author of report or person who generated need not be available as a witness.
TYPES

Lab Reports

Reports of lab tests or other evidence, generated and prepared in anticipation of a specific prosecution
of a specific defendant are 'testimonial'
State must call witness, but primary issue is how familiar the witness must be with specific
findings in the case.
Must be able to establish and defend the following based on personal knowledge:
1. Routine practice for handling and testing substances, including procedures to maintain
identify of any substances and accuracy of the tests performed.
2. That witness either performed or supervised the performance of the testing in this case.
Evidence Page 18

2. That witness either performed or supervised the performance of the testing in this case.
3. The witness has an independent opinion, based in part on review of the raw testing data in
this case, as to the nature and attributes of the tested substance.
Raw data from test machine are facts, thus, are not hearsay and admissible with authentication that
they came directly from machine.
Medical Reports

Copies are admissible under best evidence rule.

If report produced for prosecution, probably testimonial and may not be admitted over objection.
If expert and author of record doesn't testify, report is admissible if foundation is laid for past
recollection recorded or a business record. May also be used to refresh.
826
Requirements:
1.
2.
3.
4.
5.
6.

Must be a civil case involving injury or disease

Must be signed and dated by the author
Author must fall within categories of health care professionals listed in statute
Must be in in narrative form
Only covers portions of reports including history, examination, diagnosis, treatment, etc.
May include opinions, including basis therefore, the same as if person were present and testifying
at trial. Author's opinions must be their ultimately be their own.
7. Proponent must give 60 day notice prior to trial, with copy of report, to opposing parties. They
get 15 days to assert objections, other than hearsay objections.

Medical Bills

921 provides:
In any civil proceeding involving injury or disease, the patient or family or care person is a
competent witness to identify bills incurred in treatment of patient as long as bills incurred in
connection with treatment and received from:
1. A hospital
2. Ambulance service
3. Pharmacy, drugstore, or supplier of therapeutic or orthopedic devices.
4. Licensed practicing physician, dentist etc..
A. Items of evidence need not be identified by the one who submits the bill, not necessary for expert
witness to testify charges were reasonable and necessary.
Actual bills must be produced at trial. Summary doesn't suffice. Reasonableness need not be proved by
P, but opponent can cross and offer evidence questioning reasonableness of charges.
In personal injury, D may not offer evidence that provider accepted amount less than billed.
Depositions in civil Trial

A) Can be used against any party who was present at taking of deposition or who had notice
1. Any depo can be used for contradicting or impeachment
2. If person was officer, director, or managing agent or designated to testify on behalf of the
company, may be used by adverse party for any purpose
3. Depo of witness, whether or not a party, may be used by any party for any purpose if court
finds:
i. Witness dead
ii. Witness out of country, unless absence of witness was procured by a party offering
the deposition.
iii. Party offering depo unable to get attendance of witness by subpoena
iv. Due to nature of business or occupation of witness not possible to secure personal
attendance without manifest inconvenience to public or third person.
4. Depo of witness, whether party or not, taken upon oral examination, may be used in
discretion of judge, even if witness able to testify in person at trial. Use of depo not grounds
for excluding witness from testifying orally in open court; OR
5. If only part depo offered into evidence, adverse may require production of all that is
relevant to part produced, and anhy party may introduce any other parts.

Objections to competency, relevancy, or materiality of testimony are not waived by failure to make
them before or duing depo, unless ground of objection is one which might have been obviated or
removed if present at that time.

804(b)(1) - not excluded by hearsay rule:

Testimony given as witness at another hearing of same or different proceeding, depo taken in
compliance with law in course of same or another proceeding, if party against whom testimony
now offered, or in a civil, had an opportunity and similar motive to develop testimony by direct,
cross, or redirect examination.
Party may offer depo of any opposing party for any purpose even if deponent not at trial
If party offering depo satisfies court that deponent unavailable for listed reasons judge must
admit.
Evidence Page 19

admit.

Depo doesnt go out with jury.

Depo in one case if offered in another and doesn't qualify as admission in case it is offered,
proponent needs to use hearsay exception for former testimony.
UNAVAILABLE WITNESS HEARSAY EXCEPTIONS
Unavailability Defined

Situations:
Subject matter is exempted by court ruling privileged subject matter
Witness doesn't cooperate in testifying
Claims memory loss
Died, or mentally/physically ill
Unable to procure declarant's attendance by process or other reasonable means
Beyond power of subpoena
Has to be good faith, can't use just to keep witness out
Whoever wants the hearsay in has burden to prove unavailability.

Former Testimony (804)(b)(1)

If declarant is unavailable:
If there is testimony given as a witness at another hearing of same or different proceeding,
depo, and party against whom testimony is offered had an opportunity, and similar motive,
to cross, direct or redirect.
IN civil doesn't need to be related, as long as all parties had opportunity to examine the declarant
at a former proceeding in same way as if available to testify in current case. Opportunity, not
actual examination, is what is important.
Can be used against the party against whom it was previously offered; OR against the party by
whom it was previously offered.
Criminal Cases you are typically unable to depose witnesses

2 Focuses
1. In criminal, former testimony had to be related to his prosecution AND be present
a. And had to have a similar motive (bond hearing doesnt apply, but probation does
because it goes to the merits)
i. I.e. the hearing must be on similar underlying issues.
b. Had to be testimony given under oath and subject to cross examination
c. Ask: "are the factual issues basically the same"
2. Civil Case
i. Same party, same motive to punch holes in testimony, even if it is a new company
that purchased old on

804(b)(2) Dying Declaration

Categorical rule (goes to weight not admissibility)

Available ONLY in prosecution for HOMICIDE or in a CIVIL proceeding

1. About to die "imminent death" - his death was objectively imminent

2. Subjectively - Declarant needs to be aware of condition (however, declarant need not die to be
admissible)
3. Should be related to cause, or, circumstances of death
This automatically passes confrontation clause (NEVER TESTIMONIAL)
Forfeiture exception is the only other one that bypasses confrontation clause

Forfeiture exception to Hearsay 804(b)(5) (you better not testify!)

The following shall not be excluded by the hearsay rule if the declarant is unavailable as a witness:
A statement offered against a party that has engaged or acquiesced in wrongdoing that was
intended to, and did, procure the unavailability of the declarant as a witness.
Three Requirements
The hearsay is offered against a party who engaged or acquiesced in wrongful conduct.
The wrongful conduct was intended to keep the declarant from testifying.
The wrongful conduct caused the declarant to be unavailable as a witness
To determine
Judge may consider nonprivileged evidence, including hearsay, to determine this
preliminary issue
Wrongful conduct designed to keep declarant from going to police qualifies under this
Evidence Page 20

 Wrongful conduct designed to keep declarant from going to police qualifies under this
exception
It is clear that third party acts designed to prevent a declarant from testifying may trigger
the exception if the D acquiesced in the actions.
Practical Considerations
Useful in prosecution of domestic violence cases where victim made out of court statements
incriminating D then alter refuses.
Still has to find preponderance of evidence
Court uses sister's hearsay in court, target to get battered wife's statement in
THERE MUST be a wrongdoing to use this.
Co-Conspirator Statements 801(d)(2)(e)

Using a co-conspirator admission to hang the other conspirators

Contents of statement considered, but not alone sufficient to establish existence, and
participation, of conspiracy
Court may use non-privileged circumstantial evidence

Requirements: must be determined by preponderance of evidence that; (judge determines)

Conspiracy existed (doesnt' require to be charged)
Co-conspirator and the D against whom the statement is offered were members of
conspiracy; and
Dont need foundation, can get in on offer of proof
Statement was made during the course, AND in furtherance of conspiracy
Shifting blame statements are not in furtherance
Statements to undercover officer doesn't disqualify. (remember declarant has
to have reason to believe would be used)
Statements that fostered cohesiveness are in furtherance

MUST lay foundation

If confession no conspiracy, unless they start a conspiracy to conceal, that would be in
furtherance.

Statement Against Interest 804(b)(3)

If declarant is unavailable:

Reasonable person in declarant's position would have made only if person believed it be
true because it was so contrary to their interest, OR had so great a tendency to expose them
to civil/criminal liability
Must be supported by corroborating circumstances that indicate the trustworthiness of the
statement if it is offered in a criminal case as a statement that exposes the declarant to
criminal liability.

Criminal Case requirements:

1. Declarant Unavailable
2. Subject declarant to criminal liability that a RPP in his position would not have made unless
believed it to be true
i. Factors
1) Cheek to jowl rule - admission and D in same breath
2) No ulterior motive for including D in statement, "I robbed bank, but Bob shot
guard
3. Statement corroborated by circumstances indicating its trustworthiness.
1) Something as simple as teller says there was two men. Low burden here
4. Statements are sufficiently corroborated when trial evidence supports veracity and was
stated to someone that he shares a close relationship.
Necessity 807 "the catch all"

NECESSITY EXCEPTIONCHECKLIST
1. Declarant unavailable
the proponent must establish the declarant's unavailability and, where necessary, a diligent effort to
locate and procure the declarant's testimony at trial.
2. No comparable evidence ( we really need this)
the statement in question must be relevant to a material fact in the case
the statement must be better evidence of the material fact than any other available evidence.

3. Pre-trial notice
the proponent must give notice to the opposing parties before trial of intent to use this exception

4. Trustworthinessa combination of the absence of negative factors and the presence of positive ones
Evidence Page 21

4. Trustworthinessa combination of the absence of negative factors and the presence of positive ones
Some Negative factors:
No biased, personal gain, bad ulterior motive, etc

Some Positive factors:

any deterrents to lying in this situation (for example, people are deterred from lying when they think
they may get caught or when the consequences of getting caught are severe)
indications that the declarant took his statement seriously or knew it was important to tell the truth
the statement was against the declarant's self-interest or that of his friends or family
the statement was made to someone with whom the declarant had a relationship of trust and
confidence and with no motives to lie or mislead

Not a Factor:
the fact that the declarant's statement is corroborated by other evidence in the case is not a factor in
considering the trustworthiness of the statement.
[Experts]

What can they testify about? (factual basis of opinion)

Generally (703)
Facts or data, upon opinion is based, that he knew at or before hearing
If reasonably relied upon by experts in field, data doesnt need to be admissible to get opinion in
Don't want to use experts just to get inadmissible facts in (adverse party can still offer on
cross)
DATA that opinion is based on is INADMISSIBLE unless: 403 balance says it gets in
Sources of opinion
Observation of witness - personal knowledge; no problem

Facts presented at trial

'hypothetical questions' OR attend trial and hear testimony that establishes facts
Can't do this with blindersExpert says based on ABCD, another may say 'nonsense need
EFG too!'
Data presented to expert outside of court
Physician makes life and death decisions based upon the documentation. His validation,
subject to cross, enough authentication
Facts not admitted, but reasonably relied upon by other experts. Expert may IF:
Not merely conduit for opinions of other expert, MUST provide own analysis; AND
Opinions of other non-testifying experts aren't there just to bolster witness's opinions
Can't understand testimony without inadmissible fact
403 balance

Limitations
Must be what other field experts would rely upon
If requested, still need limiting instruction
Expert can point to sources, but can't reveal content - shows he did homework
I spoke with Dr. X that treated similar conditionscan't reveal more, but can be crossed on
this
TO USE IT AT TRIAL

707 - opinions of experts on any question of science, skill, trade, or like shall always be admissible; and
such opinions may be given on facts as proved by other witnesses.

Non-Jury
Shovel anything up there, judge better trained than jury and adversary will filter appropriately

Jury 702: Testimony admitted IF:

Qualified (legal Q for court) - convince matter of law expert is qualified AND jury should rely upon
expert
Qualify credentials - education, training, experience (what is required in that field?) (may be
low or high)
KUMO expert - based solely on copeous amounts of experience. 20 year tire shop
owner, wine connoisseur
Tender as expert
Adverse can:
Object to qualifications
Voir Dire (interrupt direct ask about qualifications)
Object to scope of expertise
Evidence Page 22

 Object to scope of expertise

If in professional malpractice actions, expert opinions admitted ONLY IF at time of

occurrence the expert:
Had appropriate license; AND
In med mal, had actual professional knowledge and experience in area of practice or
specialty
Must be in specialty 3 of last 5 years; OR
Taught in profession for last 3 of 5; AND
> Is same member of profession; OR
> Med Doctor testifying to standard of care of D who is doctor of
osteopathy; OR
> Vice versa
Doctor who supervised nurses can testify of their standard of care but not vice versa

Testimony is in qualified area

Qualifications in line with background
GA poor qualification goes to weight not admissibility
Convince judge low threshold, jury harder (may want a teacher)
705 - can give opinion, or inference, and reasons WITHOUT testifying to underlying facts or
data
May be crossed on underlying facts
Can't be based on speculation, (legally sufficient to satisfy burden of proof)
'possible cause' supported by additional evidence is admissible
D's - casting doubt, no burden of persuasion, just can't be wholly subjective to
weight not admissibility(can't be wholly speculative)
Doesn't require particular level of personal/professional certainty

Backed by sufficient data, theories, methods (not concerned with correctness, just valid scientific
principles)
803(17+18) following not excluded by hearsay rule
Learned treatises
Market reports and commercial publications - used and relied upon by public or
persons in witness's particular occupation
Establish as reliable by expert or judicial notice
If admitted, may be used be used for Cross of expert and read into evidence,
Reliability Of Method
Generally - vigorous cross, presentation of contrary evidence, instructions on burden
are the traditional means of attacking shaky, but admissible evidence.
Daubert (CIVIL ONLY) - for daubert questions can look at hearsay
Factors:
> Testability - sufficient facts testable & tested
> Rate of error - based on reliable theories/techniques
> Peer review and publication
> General acceptance in scientific community
Can cross
> Ask if new or controversial science
Depose
If confirm it fails Daubert
Motion to exclude on 702
Harper (Criminal) less strict: ONLY FIRST TWO of daubert factors

Other factors
Testimony about things grew naturally out of research, or developed just to
testify
Account for obvious alternative explanations
Expert being as careful in litigation as he would in profession outside court

If relying solely/primarily on experience, must explain how experience leads to conclusions

Remember Probability evidence only used to help determine future, not look at past:
DOUBLE LOTTO

Does it help trier of fact?

Dont need expert to tell what jury already knows, (in ken) (improper bolster)

EXAMIINATION OF EXPERT

Can have a Daubert hearing

Reviewed on abuse of discretion
Must have a suitable inquiry relative to scope and complexity of issues
Proponent bears burden to convince trial judge expert testimony is reliable and relevant
Judge may consider non privileged evide3nce, even if inadmissible otherwise
If deemed inadmissible generally not good enough to grant continuance.

Evidence Page 23

 Expert's notes
If used once or twice - refreshing recollection
If needed frequently lay foundation - past recollection recorded
Notes can't go out - continuing witness

Hypothetical Questions
Used to present facts to expert, that are beyond his personal knowledge, but admissible at trial.
May be based on facts later admitted in trial - must be able to provide good faith offer of proof
AND evidence is eventually admitted
Can be based on reasonable inferences from admissible evidence, but not speculation, or
counsel's mischaracterization of facts.
Can be based on disputed fact.

Cross
Not limited to scope of direct, may be asked for additional relevant opinions by hypo or otherwise
If cross reveals expert doesn't have sufficient basis for opinions given on direct, direct testimony
should be stricken
Cross may establish expert hired by a party, and ask how much expert is charging for services in
case
May establish expert has previously worked for party, if it proves potential for bias
May not rehabilitate credibility of expert by showing expert has been hired by opposing
counsel in other cases.
Mere fact that expert is insured by D's carrier inadmissible to impeach expert.
Or that expert has done work for D's insurance carrier, HOWEVER, may be brought in if
expert has previously and consistently worked for one 'side'
Showing professional failed licensing exam, or similar evidence, may be used to impeach expert's
qualificat.
Can be asked how and where acquired factual bases for opinions, INCLUDING documents that
informed expert's testimony on direct.
NO attorney-client privilege between counsel and hired expert. BUT, could be protected to
the extent it is attorney work product(WPI)
Evidence of personal and professional practices of expert are admissible as substantive evidence
and for impeachment of opinion
Treatises Direct and Cross
Expert can base opinions at trial on sources, but contents thereof are not admissible on direct
examination
ON CROSS the examiner may use if relevant to impeach and source is accepted as reliable and
authoritative in field, must be established by independent expert testimony or admitted by
witness on cross.
[Character Evidence]

[Character Evidence - Character of the Accused]

404(a)(1) - Evidence of person's character, or trait, is not admissible for purpose of proving conformity
with that character or trait, except for:
(a) evidence of pertinent trait offered by an accused or prosecution to rebut the same; or if
evidence of a trait of alleged victim of the crime is offered by an accused and admitted under
paragraph (2) of this subsection, evidence of same trait of accused offered by the prosecution

405 - (a) if evidence of character or trait is admissible, proof can be by testimony as to reputation or
testimony in form of opinion
(b) if character or trait is essential element of charge, or defense, or when accused testifies to his or her
own character Proof may also be made of specific instances of that person's conduct. Character of
accused, including specific instances, shall be admissible in a presentencing hearing subject to 17-10-2.
(c) on cross, inquiry shall be allowable into relevant specific instances of conduct
Accused can present evidence of good character to pertinent specific character traits, this limits
the scope of rebuttal to those traits.

Four exceptions:
1. The accused may choose to offer evidence of his pertinent character traits and the prosecution
may rebut that evidence
1. D may put character in issue by:
1. Raising certain defenses such as entrapment or self-defense.
2. Crossing state witness about D's good reputations or positive community influence.
3. Put character in issue is completely D's choice
4. Not done by denying charges.
5. If D slipped, "I never robbed anyone," p can rebut just that part
2. Evidence of charged crime may include facts that poorly reflect on d's character (facts and
circumstances intrinsic to the offense)
1. If D under influence of drugs/alcohol at time of crime is admissible
2. D's demeanor during commission of crime admissible even though it may reflect poorly on
D's character
Evidence Page 24

D's character
3. If crimes are linked to charge by continuing crime, such as molestation or a particular child,
evidence of the other crimes are admissible.
4. If prior conviction is essential element of certain offense, prior conviction is admissible, but
details are not.
5. Confessions/admissions/ statements to police even if harmful to character are admissible.
3. If accused presents evidence of pertinent character traits of the victim, prosecution may offer
evidence of same traits of accused; and
4. INDEPENDENT CRIMES OR ACTS, or similar transactions, of the D may be relevant and admissible
for some purpose other than to suggest that because the D has done certain bad things in the
past, the D is therefore more likely to have committed current crime.
[Independent Crimes or Acts]

404(b) - applies to both civil and criminal

Evidence of crimes, wrong, acts not admissible to prove character of a person in order to show
conformity to that crime. But may be used for other purposes. I.E. proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.

Prosecution in criminal proceeding shall provide reasonable notice to D in advance of trial of the general
nature of any such evidence it intends to produce at trial, unless pretrial notice is excused by court upon
good cause. NOTICE IS NOT REQUIRED when evidence of prior crimes is offered to prove circumstances
immediately surrounding charged crime, motive, or prior difficulties between the accused and the
alleged victim.
"other crimes, wrongs, or acts are 'independent' 'extrinsic' if not directly related to the conduct for
which the accused is charged.
Extrinsic - if act is not directly related to the conduct for which accused is charged
Intrinsic - if act is inextricably intertwined with it crime it is admissible. "if inextricably intertwined
with evidence of crime charged, a 'necessary preliminary' to crime charged, or both acts are part
of a 'single crime episode'

Intrinsic if:
1. Uncharged offense which rose out of the same transaction or series of transactions as the charged
offense,
2. Necessary to complete story of crime
3. Inextricably intertwined with evidence regarding the charged offense.

11th circuit 3 part test

1. It must be relevant to an issue other than D's character;
a. Must be relevant to some issue in the case, AND
b. Relevance must not logically rest solely on a propensity inference from the D's character or
conduct.
c. Analysis
1. Isolate the illegitimate use by describing how the evidence impugns the accused's
character in a way that suggests the accused has a propensity to commit the crime
charged
2. Ask what other relevance the evidence has, if any, apart from that propensity use.
d. Example
1. Accused charged with robbing liquor store and P wants to offer evidence accused
purchased cocaine hour after robbersuggest accused uses illegal drugs propensity to
break law AND also relevant to prove accused motive for robbery. Thus gets in
2. P offered evidence accused sold drugs to school children a year ago. Suggests accused
is a drug dealer and propensity to break law, no other relevance. Extrinsic, doesn't get
in.
e. Potential uses
1. Motive, opportunity, intent
f. Restraints ON INTENT potential use
1. When dealing with crimes of general intent, rarely any call for admitting independent
crimes or acts to prove intent. I.E. DUI no need.
2. Even where specific intent, court ask whether intent is an issue in the case. If not
generally no need to bring in additional crime
1) The test: If P is NOT allowed to present this 404(b) evidence is there any danger
that a rational jury could find that although he committed the objective,
charged acts he did not intend to do so or did not do so knowingly
a) If no, this shows only work it is doing is bolstering, nothing to do with
intent or knowledge and everything to do with propensity to act in a
certain way, thus excluded.
3. An independent crime or act of accused only proves his intent at time in question IF
the crime or act involved the same specific intent at a time relatively close enough to
acts in question that one can reasonably draw the inference.
1) i.e. intent to possess a drug is no more relevant to intent to distribute drugs.
Thus just bolster
4. Jury instruction must include admonition that 404(b) evidence may not be used to
prove D committed the objective acts he is charged with, but only his state of mind.
g. More potential uses
Evidence Page 25

g. More potential uses

1. Preparation- acts leading up to offense are intrinsic
2. Plan
3. Knowledge - use to prove D has special knowledge that the perp of charged crime
would know
4. Identity - person who committed the other act is likely the same person who
committed the charged offenses, if there are specific distinctive details of the other
crime. Tells from one crime that happened in instant crime.
5. Absence of mistake or accident - When the D claims or jury might otherwise find
charged offense was result of innocent mistake or accident, the other crime or act
that rebuts such finding is admissible
6. Prior difficulties between accused and victim
7. If other crime was part of cover up

2. There must be sufficient proof to enable a jury to find by a preponderance of the evidence that
the D committed the acts in question; and
3. The probative value of the evidence cannot be substantially outweighed by undue prejudice, and
the evidence must satisfy rule 403

Character Evidence - Character of the Victim

404(a)(2) Character exception

(1) If it is evidence of a pertinent trait of alleged victim, of crime offered by accused, or by

prosecution to rebut the trait; OR evidence of a trait of peacefulness of alleged victim
offered by the Prosecution in a homicide case to rebut evidence that the alleged victim was
the first aggressor.
1. So victim goes after D. D uses this to show 'victim had bad traits pertinent to crime', P
can then use this trait evidence to rebut. OR P can use to rebut to show Victim wasn't
first aggressor

405(a) and (c) exceptions

(a) if evidence of trait is admissible, proof made by testimony as to reputation, or testimony

in form of opinion.
(c) can cross on relevant specific instances of conduct.

Generally character of victim is irrelevant. Don't want to be used just to gain sympathy.
However, where character is essential to inquiry, libel (schaffer case), which is a defamation suit,
character evidence is necessary

Nutshell
404(a)(2)
When D claims self-defense and presents prima facie evidence that
1. the alleged victim was first aggressor
2. Victim assaulted accused
3. Accused was honestly trying to defend
THEN, D may submit victim's character for violence even if D was unaware of victim's violent
character witness at time of incident.
Victim then allowed to rebut with character evidence

Evidence to motive, opportunity intent, plan are admissible even though evidence might reflect on
victim's character.
405(a) - D may offer character witness to testify to violent reputation of the victim and/or the
character witness's own opinion of victim's character for violence.
Rape Victim Shield Law (applies to P and D) 412

Can only use evidence relating to past sexual behavior IF the court finds that:
1. Past sexual behavior directly involved the participation of the accused; AND
2. Finds that the evidence to be introduced supports the inference that the accused could have
reasonably believed that the complaining witness consented to conduct complained about.
TO GET IT IN
1. Defense must notify court at the time defense seeks to introduce the evidence
2. Court conduct an in camera hearing to examine accused's offer of proof.
3. If court finds admissible, OR so highly material that it will substantially support
conclusion of consent that justice would demand inclusion
4. Court determines what and in what manner is introduced.

Doesn't prohibit inclusion of previous rape, molestation, false accusations by complainant of

rape(used for impeachment),
Evidence Page 26

rape(used for impeachment),

Character Evidence - Civil Cases

4 - 404
(a) evidence of a person's character, or traits thereof, shall not be admissible for the purpose of proving
action in conformity therewith on a particular occasion, except for:
(3) Evidence of the character of a witness as provided in 607,608,609

(b) Evidence of other crimes, wrongs, or acts are not admissible to prove character of a person in order
to show action in conformity therewith, HOWEVER< may be admissible for other purposes (not x but for
Y). I.E. proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.
Never used to prove that the person acted in conformity with the character trait. This is
applicable in both civil and criminal

Evidence that reflects unfavorably(or favorably) on a party's character but is not directly related to
the issues on trial is properly excluded

4-405
(a) In all proceedings in which evidence of character, trait, of person is admissible, proof shall be made
by testimony as to reputation, OR by testimony in the form of an opinion.
(b) In proceedings in which character, or trait, of a person is an essential element of charge, claim, or
defenseproof may also be made of specific instances of that person's conduct.

4 - 406
Evidence of the habit of a person, or routine practice of an organization, whether corroborated or not
and regardless of presence of eyewitnesses, is relevant to prove that the conduct of the person or org
on a particular occasion wa in conformity with such habit or routine practice.
Exceptions:
Witnesses, including parties, may be impeached with evidence of bad character

Only applies to persons, not things, thus character or propensity of an automobile is admissible if
relevant.
Wrongful death cases - character may be relevant in determining list future earnings.

Divorce trials - character of parties is generally inadmissible, but is generally relevant and
admissible in child custody determinations.

Damages - may be inadmissible for underlying liability but admissible on a punitive damage claim.
If evidence admissible for punies would be unfairly prejudicial to party on compensatory
court may trifurcate the proceedings. This involves
1. Determination whether the D is liable for compensatory damages and if so, what
amount
2. Whether D is liable for punitive damages
3. Determination for amount of punitive damages.
Similar Transactions or other events inadmissible to show a party's character or general
propensity to particular conduct.

Notice or knowledge - however, prior incident not substantially similar in material respects to the
incident at issue are inadmissible.

Plan or scheme - to show plan or scheme of fraudulent conduct, prior transaction must be similar
to conduct in question and so connected in point of time that it is apparent that both were carried
out in pursuit of a common fraudulent purpose.
Intent - in cases involving intentional torts of assault and battery, evidence of prior violent or
peaceable conduct by a party is admissible

Design or process failure/success - in product liability cases the rule of 'substantial similarity'
prohibits the admission into evidence of other transactions, occurrences or claims unless the
proponent first shows that there is a substantial similarity' between other transactions,
occurrences, or claims and the claim at issue in the litigation.
Proponent must show the other products AND the one on trial:
1. Suffered a common defect
2. Shared a common design and manufacturing process, and
3. Any common defect shared the same causation.
LIMITS ON USE:
1. Prior failures must have occurred under conditions substantially similar to those existing
during the failure in question, and
2. Prior failures must have occurred at a time that is not too remote from the time of the
Evidence Page 27

2. Prior failures must have occurred at a time that is not too remote from the time of the
failure in question.

Pre-existing or superseding cause of injuries - evidence that unrelated accident may have caused
P's injuries is admissible.
Res gestae - evidence as to conditions or conduct during the events in question is admissible.
Motive or bad faith

If party opens the door

When character is an essential element of a claim or defense

Habit or Routine Practice 406

Evidence of habit of a person or of routine practice of an organization is relevant to prove conduct

on a particular occasion that was in conformity with that practice without showing corroboration
or eyewitness.
Habit vs character
Habit deals with specific repeated situations

Character is generalized description of a disposition in reference to a specific trait.

Routine is proved by a witness

Who can describe routine from personal knowledge
Affirm that routine was in place at time in question; and
Affirm that the matter in question would have been subject to that routine.
Impeachment

6 ways to impeach
1. Presenting facts contrary to witness's relevant sworn testimony
2. Presenting facts that suggest witness is biased or prejudiced towards party or has other
motives to slant/fabricate testimony
3. Raising questions about witness's ability to perceive and recall matters in testimony
4. Presenting character witness to testify by opinion or reputation evidence that the witness is
untruthful
5. Proving that the witness has been convicted of a crime
6. Proving witness has made statements that contradict his relevant sworn testimony.

Impeachment - Bias, incompetence, contradiction.

1- Witness impeached by disproving facts testified by witness

Need good faith basis to belive:
That fact is true; and
Witness has sufficient personal knowledge of the fact to support admission into
evidence.
Must judges allow cross that contradicts any sworn testimony. Doesnt have to be
necessarily, a relevant issue. Just that they were caught in a lie on the stand.

If witness denies and examiner seeks to introduce own evidence, question becomes
whether fact is collateral or "non-collateral"

Non-collateral - if it is relevant to the case apart from its impeachment use to

contradict a particular witness.
Facts concerning bias or competence are never collateral and may always
be used.

Collateral - only relevant for impeachment and has no other relevance to case
cross has to accept answer can't present evidence later of lie.

2- Witness's feelings towards parties and relationship thereto may always be proved for
consideration of jury

610 - beliefs/opinions on matters of religion are NOT admissible for purpose of proving the witness's
credibility is impaired or enhanced.

If witness's religious associations would make witness biased or prejudiced toward party, fact is
admissible.
Evidence Page 28

Religion admissible when necessary to prove substantive, non-impeachment issue in the case.

Can always admissible to offer evidence of witnesses bias, prejudice, interest, fears, or hope of other
benefits. Counsel may confront witness and offer evidence ONLY IF witness denies.

Juvenile records inadmissible for general impeachment, HOWEVER< may be used to show witness has
MOTIVE to curry favor with state.
Impeachment - Vouching rule 607

Credibility of witness may be attacked by any party, including calling party.

Uses

May reveal fats that indicate witness's bias or interest to who they're not hiding anything or
steal opponents thunder on cross.

Some try to use for calling opposing witness solely for purpose of attacking credibility before
witness has given any substantive evidence.
Impeachment - Prior Convictions 609

(1) Previous convictions of a witness, other than accused, admissible IF (was a felony, or element
thereof was dishonesty, if dishonesty no balancing required)
Crime was punishable by death; or
Imprisonment in excess of one year; AND
Evidence that subject to 403 balance; OR

(2) shall be admitted regardless of punishment, if the crime elements required proof or admission
of an act of dishonesty or making a false statement
UNLESS:
a. More than ten years passed from conviction.
UNLESS 403 balance says it should be admitted, and proponent gives sufficient
notice of intent
b. It was pardoned, annulled, or first offender, can't be sued to impeach, and they
haven't been convicted of a subsequent crime punishable by death, or greater than
one year imprisonment; OR
c. If pardoned for innocence

(3) nolo contendere and juvenile generally can't be used

Two categories of crimes used for impeachment

1. Felonies - requires balancing
a. Probative value test is separate for use to prove
i. Motive, identity, intent, etc
b. 403 balance
i. Probative - Limited to inference that person who committed crime in past less
likely than average person to testify truthfully and more likely to lie on stand.
ii. Prejudicial - if the prior conviction will only be heard for this impeachment
purpose, and not through rebuttal of character or other purpose, then has a
HIGH prejudicial effect.
c. Factors of 403 test for felony
i. Extent that prior conviction speaks to truthfulness of witness
ii. Age of conviction and subsequent criminal history
iii. Similarity between prior conviction and current charge
iv. Importance of D's testimony
d. Issues
i. D brings motion in limine to exclude, denied, then they try to lessen sting by
bringing it up themselves on standthey lose right to appeal.
2. Those involving dishonesty
a. Level doesn't matter, no balance required
Procedure:
1. Bring a certified copy of record of conviction
a. Must satisfy hearsay, authentication, and best evidence rule
2. It is limited to name of offense, place/time of conviction, and sentence imposed
3. Troubles not resulting in conviction not admissible: i.e. arrests, indictments, etc.
Impeachment - Hearsay Declarant 806

If hearsay statement has been admitted, credibility of declarant may be attacked, and if so, may
Evidence Page 29

If hearsay statement has been admitted, credibility of declarant may be attacked, and if so, may
be supported by any evidence that would be admissible if declarant had been a testifying witness.

Evidence that is inconsistent with declarant's hearsay statement, shall NOT be subject to any
requirement that declarant been afforded opportunity to deny or explain.
Party can call declarant as witness, and then entitled to examine declarant as if under cross.

Declarant testimony can be attacked, or rehabilitated, as if they were a witness.

If out of court statement admitted as nonhearsay, its relevance does not rely upon credibility of
declarant, THUS declarant's credibility may not be attacked
Impeachment - Prior Inconsistent Statements 613(a) + (b)

(a) - prior statement need not be shown to witness at time of examination, however, must be
provided upon request to opposing counsel
(b) -extrinsic evidence of prior inconsistent statement not admissible unless witness first given
opportunity to explain or deny prior statement, and, opposing party afforded opportunity to
interrogate witness on prior inconsistent statement
THIS DOES NOT apply to admissions of a party opponent from 801
Exclusions
Involuntary statements
Statements by third parties
Irrelevant to testimony or case

Inclusions
Voluntary statements, even in violation of miranda or right to counsel can be used for
impeachment
Memory lapses and then recalls or vice versa, recalls then lapses

If witness admits no further evidence required to admit inconsistency into evidence, if

denied, counsel may bring extrinsic evidence.

Impeachment - Rehabilitation 608(a)

Evidence of truthful character shall be admissible only after character of witness for truthfulness
has been attacked by opinion or reputation evidence.
Can't use just to bolster, has to be attacked first.

Impeachment - Untruthful Acts

Two ways prior untruthful acts, unrelated to case on trial, might be used for impeachment on
cross:
1. On cross, character witness may be asked if she heard, or knew, about specific instances of
subject witness's conduct probative of that person's truthfulness.
2. May cross any witness regrading whether it is true that witness engaged in prior conduct,
unrelated to case on trial, that is probative of witness's untruthfulness. Counsel must
accept answer may not offer extrinsic evidence to prove prior inconsistent conduct.
a. THIS IS DIFFERENT FROM statements. Statements can bring in extrinsic evidence,
ACTS YOU MAY NOT
b. Need good faith basis to ask

[Privileges]

Privileges - In General

Only constitutional and statutory privileges recognized in GA

When can you use privileges tactfully
Assertion of privileges can't be used against you criminal case
If you assert privilege in a civil case, can't be used against you in a subsequent criminal case.
BUT assertion of privilege in a civil case may be used to draw adverse inference that truthful
answer would hurt the party's case.
Privilege vs Confidence
People have duty to maintain confidence of another person, unless required by law to
reveal.
i.e. doctor duty to maintain patient confidence, but no evidentiary privilege for
doctor-patient communication thus a doctor may be compelled to reveal patient
Evidence Page 30

doctor-patient communication thus a doctor may be compelled to reveal patient

confidences at trial
Attorney-Client Privilege 501(a)(2)

Doesn't exist in federal evidence, they use state law privilege rules.
Basic Parts of Privilege

Person seeking legal advice from attorney

Person
Person can be their own agents/employees if they were instructed to talk to
attorney
Corporate persons - control group (officers and directors included)
Corporate attorneys other agents employees privileged IF:
Purpose of communication was to get legal advice
Officers directed communication
Superior made request so corporation could secure legal advice
Subject matter within scope of employee's corporate duties
Communication was only disbursed on a need to know basis

Seeking legal advice

Clock starts moment client seeks advice from attorney, regardless if ultimately
hired
Continues after death, right can be asserted by estate
Only includes legal advice

From attorney
Staff and agents are part of attorney
Experts count as attorney; BUT
If expert testifies; facts acquired by expert from attorney are not covered
WPI and mental impressions still applies

Made communications to attorney for that purpose

Doesn't protect facts; if facts provable from non-privileged source they are admissible
Two way street, what client says, and what advice attorney gives, includes document
Readily observable facts not confidential
Doesn't cover clients identity, just communication; HOWEVER
If revealing identity would reveal the substance of confidential communication;
(client turning substantive evidence to attorney) then do not need to disclose
identity.
In confidence
If revealed to someone outside relationship, confidence destroyed
Insufficient concern with confidence can destroy privilegeduty to keep confidential
2 clients: from each client to attorney, but not between each client protected;
Protected from outside parties
But if a partnership sued each other, communication made by them together to
attorney not
Now asserts the privilege; Which has not been waived
Must assert, or waived
Privilege belongs to client. If he asserts, attorney can't waive. If he waives attorney
can't assert.
Attorney can only waive with express, or implied, authority to do so

Crime/Fraud Exception

Only legitimate uses of legal counsel are protected. If using legal advice to further
criminal/fraud enterprise, the 'privilege takes flight.'

To defeat privilege under this exception:

Show a factual basis adequate to support a good faith belief by a reasonable person'
that client used privilege to assist some crime or fraud.
Psychotherapist/Patient Privilege 501

Same as attorney client

Distinctions
Court ordered psych evals are not therapeutic, thus not covered, but meant to provide info
to court, thus not privileged.
Spiritual advisor/psychic not covered
Also
Covers communication between health care providers concerning patient
Fact that patient saw psychotherapist is not privileged.
Child abuse must be reported even if info is privileged
Evidence Page 31

 Child abuse must be reported even if info is privileged

Clergy Privilege

Both cleric and member may assert privilege

Only communication made in professing faith or seeking spiritual comfort or counseling are
protected by statute
Only organized, recognized religions are covered.

Marital Privilege 501(a)(1)

Exclusions
One is charged with crime against minor, but only on specific act for which accused is
charged
Charged with crime against other spouse
Charged with causing damage to property that belongs to couple jointly or each separately
Crime occurred prior to lawful marriage
Marital confidence privilege
Applies civil and criminal, covers all confidential oral or written communication during
marriage
Even if intended confidence, if overhead by 3rd, the 3rd may testify
Split court if this covers conduct seen by other spouse
Either may assert, but only "communicating spouse" may waive
Doesn't apply in termination of parental rights/ dependency proceedings
Last after divorce death
Spousal witness privilege
Gives spouse right to refuse to testify in criminal proceeding against other spouse
Ends with divorce or death
Only spouse called as witness may assert/waive
Applies to any testimony, not just confidential
Could still get in under necessity exception
Can't reveal privilege to jury nor mention in closing arguments

Accountant Privilege 43-3-29(b)

Can only disclose with consent of Client

Exclusions
If the data is contested by client
Disclose data to practice reviews by professional group to survey accountant's practices, audits,
and work
Crime fraud exclusion applies just like attorney here.
Requires prima facie case that the communication was made in furtherance of an illegal or
fraudulent activity.
News Reporter Privilege 508

Privilege belongs to reporter not the source, only reporter can assert/waive
Discourages use of reporters as witnesses by requiring offer of proof
Publication of source information only waives what is published
Exclusions
Can't be a party to suit
Can be overcome by following offer of proof:
If info is material and relevant; and
Cannot be reasonably obtained by alternative means; and
Is necessary to the proper preparation or presentation of the case of a party seeking
the information, document, or item

Self-Incrimination 506

As Accused in a Criminal Proceeding

Requirements to trigger 5th amendment
Information sought must be:
Incriminating
Personal to D
Compelled
Testimonial or communicative in nature
Businesses can't plead fifth
Only testimonial activity covered - still have to give blood, semen, fingerprints etc.
Invoked by merely declining to testify
Waiver
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 Waiver
Testifying to own defense - he must be subject to cross on those issues
Only for this, not subsequent proceedings

Non-defendant witnesses
Invoked by taking stand, be sworn, listen to question, then assert privilege
Heavy burden to overcome: have to show testimony couldn't possibly incriminate W
Waiver
If answers a question that holds incriminating detail, must answer follow-up questions
eliciting details
Only for this not subsequent proceedings
Inference and Comment

Can't comment adversely to D's failure to testify

Prior silence
D silent during custodial police interrogation, may not comment on this at D's trial
D silent before being arrested may comment
If civil, either side may freely comment

Immunity

Transactional - protects witness against any prosecution for the transaction about which he
testifies
Use immunity - Use immunity is sufficient to nullify the witness's 5th amendment privilege
Defense witness immunity - If person could give testimony that a criminal D thinks would help
exonerate him, but witness refuses to testify without immunity, D may attempt to have defense
witness immunity conferred upon this witness. Most courts refused to grant

Evidence Page 33