Evidence Material Flashcards
Plain Error - FRE 103(e)
Plain error is an exception to the requirement that counsel must object to allegedly inadmissible evidence.
Plain error occurs when an appellate court will review the issue even if the party did not make a record for appeal.
The error must be so obvious that a formal objection should not be necessary to alert the trial court to the problem.
California does not have a plain error rule. Must object to preserve right to appeal.
FRE 105: Limiting Instruction Rule
If the court admits evidence that is admissible against a party or for a purpose – but not against another party or for another purpose – the court, on timely request must restrict the evidence to tis proper scope and instruct the jury accordingly.
Witness Competency
FRE 601 establishes that, except as otherwise provided in other rules, every person is competent to be a witness.
Federal rule is very broad. The presumption is that an individual is able to testify.
Two categories of people are incompetent to testify
i. Judge
ii. Members of the Jury
California has similar language in 700 which states everyone is qualified to testify. 701 has two categorical disqualifications–unable to express themselves, those who can’t comprehend the duty to tell the truth.
Limitation on Witness Competency
State law sometimes controls the competency of a witness testifying in federal court.
The state law provision in Rule 601 requires the application of state competency law when three conditions are satisfied:
a. The issue arises in a civil action or proceeding;
b. It concerns an element of a claim or defense; and
c. The claim or defense is one as to which state law supplies the applicable substantive rule
This issue arises in civil actions brought in federal court under diversity jurisdiction.
Courts can always exclude the testimony under the general authority of Rule 403 if it seems that the probative value of the testimony will be very weak because of the child’s inability to tell truth from falsehood.
Competency of Judge, Jurors, and Attorneys
In federal courts the presiding judge is precluded from being called to testify. A judge is supposed to be a neutral arbiter of facts.
In California, a judge may testify in the trial he presides over, but before testifying, he must inform the parties of the information he has to testify about outside the presence of the jury.
a. If either party objects, judge cannot testify and upon such objection, the judge shall declare a mistrial.
b. Absent an objection, the judge can testify as a witness in the trial
3. CA 703.5 also prohibits a judge/mediator/arbitrator from testifying in a subsequent civil proceeding as to anything in the prior proceeding except for statements that could give rise to civil contempt, a crime, or other requirements.
Competency of Judge
In federal courts the presiding judge is precluded from being called to testify. A judge is supposed to be a neutral arbiter of facts.
In California, a judge may testify in the trial he presides over, but before testifying, he must inform the parties of the information he has to testify about outside the presence of the jury.
a. If either party objects, judge cannot testify and upon such objection, the judge shall declare a mistrial.
CA 703.5 also prohibits a judge/mediator/arbitrator from testifying in a subsequent civil proceeding as to anything in the prior proceeding except for statements that could give rise to civil contempt, a crime, or other requirements.
Competency of Jurors
Federal Rules: a juror may not testify as a witness before the other jurors at the trial.
If a juror is called to testify, the court must give a party an opportunity to object outside the jury’s presence.
- This responsibility is not borne by counsel
California says that jurors can testify in the trial she serves in, BUT before she is called to testify, the juror must, in proceedings outside the presence of the jury, inform the parties of the information she has. If either party objects juror cannot testify and judge must declare a mistrial. Absent and objection a juror can testify.
i. In California, it is the lawyer’s responsibility to identify the conflict in interest.
ii. Under CA, once the prosecution calls the juror to testify, call a conference in chambers, figure out what juror knows, then lawyer makes a motion to object which is a motion for mistrial.
iii. In CA, you have to make the motion. If you don’t object, you waive the right to object.
iv. Judge can either dismiss the juror or grant the mistrial. If they don’t, appeal and the standard would be a reversible error.
Requirements when Witness Has Undergone Hypnosis
Federal Rule
a. Hypnotized person can typically testify. But can use an expert witness to attack their credibility. Under Rock v. Arkansas SCOTUS did not hold that a criminal defendant must always be permitted to testify, but only that the trial court must make a case-by-case determination of whether the person’s testimony would be so unreliable as to overcome the D’s right to testify at her own trial.
California Rules
a. Civil Cases: Hypnotized person cannot testify
b. Criminal Cases: Not inadmissible if all of the following conditions are met:
(1) The testimony is limited to those matters that the witness recalled and related prior to the hypnosis.
(2) The substance of the pre-hypnotic memory was preserved in a writing, audio recording, or video recording prior to the hypnosis.
(3) The hypnosis was conducted in accordance with all of the following procedures:
(A) writing done pre-hypnosis documenting the subject’s description of the event and what info the hypnotist was given.
(B) The subject gave informed consent to the hypnosis.
(C) The hypnosis session (including interviews) was video recorded for subsequent review.
(D) The hypnosis was performed by a licensed medical professional NOT in the presence of law enforcement/ attorneys.
(4) Prior to admission of the testimony, the court holds a hearing at which the proponent proves that the hypnosis did not render the witness’s prehypnosis recollection unreliable or substantially impair the ability to cross-examine the witness. At the hearing, each side shall have the right to present expert testimony and to cross-examine witnesses.
(b) Nothing in this section shall be construed to limit the ability of a party to attack the credibility of a witness who has undergone hypnosis, or to limit other legal grounds to admit or exclude the testimony of that witness.
Personal Knowledge
CA and FRE similar
○ As long as a reasonable juror believes they have personal knowledge
○ CAN BE CONTRADICTORY, this determination is about credibility (e.g. “that’s not how it happened”)
○ If the person has seen, heard, smelled, touched something related to the case, they have personal knowledge.
○ Question is whether the witness can testify, not whether their testimony is admissible
Oath or Affirmation Requirement
FRE and CEC are similar
Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’ conscience.
Two Types of Evidence
Real Evidence: an item that was directly involved in the very events that are at issue in the case.
- Real evidence must be authenticated.
Demonstrative Evidence: an item that merely illustrates testimony (e.g. A diagram of the details of the murder scene as described by an eyewitness).
- Not real evidence because it was not directly involved in the events at issue.
- Can be used only if the testimony it illustrates is admissible and the demonstrative evidence accurately reflects that testimony.
Authentication
FRE and CEC are the same
- Evidence must be authenticated in order to be admitted.
- This is decided by the court under Rule 104 (preliminary question of fact)
- Evidence contesting that authenticity still remains admissible. - Evidence is authenticated by showing that the item is what the proponent claims it is
- A party’s claims about an item of evidence must be consistent with establishing that the item is relevant (e.g. Ballistics expert to validate the gun was the one used in the crime). - The showing must be sufficient to support a finding
- The judge should admit the evidence unless proof of authenticity is so weak that no reasonably juror could consider the evidence to be what the proponent claims it to be.
- Standard: is there enough evidence that a juror could reasonably conclude that it is what the proponent says it is.
The judge determines whether there is sufficient evidence to warrant admitting the item in evidence, but the jury makes the final decision about whether the item is authentic.
Authentication of Photographs
A witness can testify that a picture is a fair and accurate depiction in order to authenticate a photograph as demonstrative evidence
- Lawyer presenting the photograph needs to be clear in explaining to the court what the purpose for introducing the photo is.
If counsel asks a witness to testify to a photograph at the date of the crime, there may be a personal knowledge objection since the witness did not take the photograph.
- They can say it is an accurate depiction and authenticate it, but they cannot say exactly what the photo is.
- If counsel asks to testify whether the photograph is fair and accurate depiction, that is the "trigger" for demonstrative evidence and thus, it doesn't need to be authenticated.
- If the actual photographer is called to testify, there is no need to state that it is a fair and accurate photograph. Rather, the photographer simply states that the photo is his because he has personal knowledge and the photo is real evidence.
Authentication by Chain of Custody
- Unique Evidence
a. When an item of evidence has a unique appearance or character, often a single witness can authenticate that item based on seeing it just once before testifying. Establishing the subsequent history of the item is not essential. - Indistinguishable Evidence
a. If no single witness can uniquely identify the item because it is indistinguishable from other items with a similar appearance, it is necessary to establish a “chain of custody” to authenticate an item as evidence.
b. All witnesses in the chain of custody testify to the circumstances under which they took custody of the item, the efforts they made to safeguard it, what if any changes appear in the items since they last had custody, and the circumstances in which they surrendered custody. - If the chain of custody is broken, it will not be admissible. Chain of custody is an accounting of the evidence from the time of the crime/act to the courtroom.
This foundation then permits the inference that the evidence offered is the very item associated with the events at issue in the case.
Self-authentication
FRE:
If the evidence, ask is self-authenticating under 902, it does not require extrinsic evidence of authenticity in order to be admitted.
Only the things mentioned in Fed Rule 902 are self-authenticated. This is an exhaustive list:
i. Domestic Public Documents That Are Sealed and Signed
ii. Domestic Public Documents That Are Not Sealed but Are Signed and Certified.
iii. Foreign Public Documents.
iv. Certified Copies of Public Records.
v. A book, pamphlet, or other publication purporting to be issued by a public authority.
vi. A book, pamphlet, or other publication purporting to be issued by a public authority.
vii. Trade Inscriptions and the Like.
viii. A document accompanied by a certificate of acknowledgment that is lawfully executed by a notary public or another officer who is authorized to take acknowledgments.
ix. Commercial Paper and Related Documents.
x. Presumptions Under a Federal Statute: A signature, document, or anything else that a federal statute declares to be presumptively or prima facie genuine or authentic.
xi. Certified Domestic Records of a Regularly Conducted Activity.
xii. Certified Foreign Records of a Regularly Conducted Activity (Civil case only)
xiii. Certified Records Generated by an Electronic Process or System.
xiv. Certified Data Copied from an Electronic Device, Storage Medium, or File.
CEC
California does NOT have a self-authentication provision. Everything needs authentication.
FRE 902(1) makes a document that bears a seal from the federal government or from any state or local government self-authenticating if the document also contains “a signature purporting to be an execution or attestation.” But for non-government documents, the mere signature alone — even one where the signature purports to authenticate the document — cannot cause the document to be self-authenticating (signature can be accompanied by the testimony of someone familiar with person’s signature that the signature appears to be that of the person)
