Evidence Flow Chart 2008-09
Evidence Flow Chart 2008-09
Evidence Flow Chart 2008-09
NO YES
Admissible except...
Not Admissible!
Evidence which is not Danger of unfair prejudice?
relevant is not admissible. Is its probative value substantially outweighed by the danger
of unfair prejudice, confusion of the issues, or misleading of
the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence? [403]
Looking for: Some reason the jury would use this evidence to
come to a decision on an improper [emotional] basis. Ex. Old
Chief
Expert
Juror? Testimony
Opinion
Testimony
No testimony relating to Two preliminary questions [701]: Preliminary questions about expert
the "mental process" / [702, 104(a)] Judge decides whether
jury deliberations. 1. Is the testimony in the form of an opinion? person is an expert under 104(a):
Testimony about
outside influences or 2. Is the opinion one that is (a) rationally based on 1. Is the testimony offered as the
mistakes in filling out the perception of the witness, (b) would be helpful testimony of an expert W?
forms okay. [606(b)] to a clear understanding of the witness' testimony
or the determination of a fact in issue, and (c) is 2. Is the expert qualified by knowledge,
not based on scientific, technical or other skill, experience, training or education?
specialized knowledge within the scope of 702? [702]
No
Inadmissible unless Admissible!
W is qualified to testify BUT W must have
as an expert [See 702] personal knowledge [602] Inadmissible!
(see laying the foundation
YES
for character Ws)
1. Testimony of W w/knowledge
2. Non-expert opinion on handwriting (based on familiarity not acquired for purposes of litigation)
3. Comparison by trier of fact or expert W with evidence that has already been authenticated
4. Distinctive characteristics / circumstances (appearance, substance, contents, patterns--the way they
write is unique to one person; can also be used with phone calls)
4. Voice identification (opinion based on hearing the voice at any time under circumstances connecting it with
the alleged speaker; note: self-identification "my name is X" is generally not enough--must recognize voice)
5. Telephone Conversation (evidence call made to number assigned by phone company (a) person:
circumstances, including self-ID, show the person answering to be the one called, or (B) business: call made to
a place of business & conversation related to business reasonably transacted over the telephone)
5. Public records (writing authorized by law to be recorded or filed & in fact recorded or filed in public office)
6. Ancient documents (found in place likely to be authentic & condition doesn't create suspicion; do not have
to account for its whereabouts)
7. Process or system
8. Any other method provided by statute
8. Self-Authentication--ONLY Documents (See below)
Domestic public document w/seal (govt. documents) Unique: [901(b)(4)] Lay the foundation by showing the
Certified foreign documents following things: (1) the object has a unique characteristic
Certified copies of public records of some kind (2) the W on the stand observed that unique
Official publications (books, pamphlets, or other characteristic on a previous occasion (3) W identifies the
publications issued by public authority) exhibit as the object seen before (4) W states that the
Newspapers & periodicals object is in the same condition as previously observed.
Trade inscriptions (signs, tags, labels, affixed in the course
of business & indicating ownership, control, or origin) Common: Chain of Custody Doctrine (account for where
Acknowledged documents the object has been; each link in the chain is a person who
Commercial paper had the evidence; must account for every single place
Certified domestic records of regularly conducted activity where the evidence was) Look for: Links in the chain!
Best Evidence Rule [1001-1004] Is the "original" being offered? [1001(3)]
If the contents of a document,
photograph, or recording will be the 1. Document or recording itself
subject of testimony, the party offering 2. Any counterpart meant to be an original
the testimony must provide the 3. Photo negative or print
"original." 4. Readable computer output
Analysis when
Note: If chattel has writing on it, the BER Applies
BER applies! However, if obtaining the NO
chattel is too burdensome, judge has YES
the discretion to allow secondary
evidence. (Ex. VIN #)
Admissible! Is a "duplicate" being offered
Remember: BER only applies when a into evidence? [1003]
party seeks to prove the contents of
the writing (Not when evidence is used Note: The difference between
to refresh memory, etc.) a duplicate & a copy. Copies
are not admissible under 1003.
Ask: Is the party trying to prove the
contents of the document?
YES NO
Consider: Can you
Admissible to the same
get it admitted under
extent as the original! a 1004 exception?
UNLESS (1) genuine question
is raised as to the authenticity
of the original or (2) under the
circumstances it would be Has the original been lost or
unfair to admit the duplicate in destroyed? [1004(1)]
lieu of the original [1003]
Note: Must do due diligence search!
YES NO
YES NO
Former Testimony: (a) given under oath (b) subject to Acts of Independent Legal Significance: Words
cross examination at a previous proceeding by the operate independently of the speaker's belief or
party against whom the evidence is offered. Motive to intended meaning. Some words are the legal event.
cross-examine similar? Earlier trial of similar
importance? Similar consequences at stake? Inconsistent Statements offered to Impeach: Used
to show W cannot be believed because they have
Dying Declaration: (a) reasonable belief death is two different stories--not for the truth.
imminent (b) only for their belief about the cause of
their impending death. Homicide or civil cases. Nonassertive Words: Ouch!
Statement Against Interest: When D made statement, it Assertions Offered as Circumstantial proof of
had the potential to harm an important interest (money, knowledge: Such as describing the apartment of
property, penal) of the D. (What would a reasonable your molester
person in D's position think?) UNLESS non-self-
inculpatory, then cannot be admitted under this Remember-Judge, if asked, must give a limiting
rationale (one of the most effective ways to lie is to mix instruction confining jurors to the permitted
falsehood with truth). nonhearsay use of the words! Limiting instructions
prevent or discourage improper use, reducing
Forfeiture by Wrongdoing: Decreases incentive to likelihood of prejudice or jury confusion. However,
harm or intimidate W! cannot really remove prejudice. [105]
Confrontation Clause
6th Amendment: "In all criminal prosecutions, the accused shall enjoy the right to be confronted with the
W's against him."
Crawford Rule:
(1) Criminal cases
(2) When used against D
(3) Has to be a hearsay statement [801(c)] or Exemption [801(d)]
(4) that is TESTIMONIAL (prior testimony at a preliminary hearing before a grand jury or at a former trial;
police interrogations; primary purpose for the assistance of an ongoing emergency-Davis; not casual
remarks to acquaintance; not offhand, overheard remarks; not statements in furtherance of a conspiracy).
Not admissible under the confrontation clause, UNLESS (1) forfeiture, (2) D takes stand at trial, (3) D had
prior opportunity to cross examine the D concerning the statement, or (4) dying declaration [maybe].