Externalaw has authorization to use this Content from the owner :
Britta Erin Stanton
externalaw.com posts submitted notes, in all languages, we are not responsible for the content, if this post is not appropriate or if there is a copyright problem please contact us



1) Relevance
a) Objection: Objection, your honor. The question calls for an irrelevant answer because [it doesn’t “go to” a proposition that is properly provable in the case] or [it doesn’t have any probabtive value (unlikely!)]. (Never object to relevance without a very specific explanation. A ‘naked’ relevance objection allows opposing counsel to immediately step onto his soapbox in response to your objection and explain how “Ms. Zylan’s gambling problems show that she is not a credible witness, that she has no self control over her habit, and that she’d do anything to escape her massive gambling debts – including….” You get the picture. Don’t lose that opportunity if your opponent makes a naked Relevance objection!)
b) Response: The evidence is relevant because [it goes to (proposition) that the jury needs to hear (because…)]

c) The rule: Federal Rule of Evidence (FRE) 401
i) tends to make the existence
ii) of a consequential (material) fact
iii) more or less probable (probative)
d) Must be Material (a "fact of consequence")
i) the evidence must "go to" the proposition
(1) is this a fact of consequence in the case?
(2) is this something properly provable?
e) Admissible for Multiple Purposes & Limited Admissibility
i) FRE 105:
(1) Evidence admissible for only one purpose/to one party
(2) upon request, the court shall restrict the Evidence’s admissibility & instruct the jury
2) Prejudice & Proabtiveness:
a) Objection: Objection, your honor. Under Federal Rule of Evidence 403, this evidence is inadmissible because its probative value is substantially outweighed by the danger of unfair prejudice. It’s probative value is low because [explain ground].
Or
Objection, your honor. Under Federal Rule of Evidence 403, this evidence is inadmissible because its probative value is substantially outweighed by the danger that the jury will be confused and misled to take the evidence for the inadmissible purpose [state inadmissible purpose].
b) Response: Counsel’s objection goes to the weight rather than the inadmissibility of the evidence. Probative value is high because [state]. Any potential for prejudice is easily cured by a limiting instruction. We realize this evidence is prejudicial to [party]. It’s obvious that they don’t want the jury to hear it, however, Rule 403 only calls for exclusion is evidence is unfairly prejudicial. This evidence is not unfairly harmful to them because it does not cause the jury to decide the case on an improper basis.

c) Rule 403
i) evidence may be excluded if
ii) probative value is substantially outweighed by:
(1) the danger of unfair prejudice
(2) confusion of issues
(3) misleading jury
(4) considerations of undue delay (“waste of time” in FRE)
(5) or needless presentation of cumulative evidence
the above are not exemplary – there is no “such as”
d) probative value:
i) strength of logical inference
ii) how central to material issues/core issues of case
iii) remoteness: farther away, less probative
iv) similarity
v) proponent’s need:
(1) if offer to stipulate, decreases need
(2) court can’t force you to accept stipulation but probative value is decreased nonetheless
(3) consider:
(a) probative & prejudicial tendencies of offered E
(b) probative & prejudicial of avail. alternatives, include stipulation (is it really a good alternative? will it really be less prejudicial?)
e) trial concerns:
i) unfair prejudice
(1) all E is prejudicial or you wouldn’t offer it!
(2) Standard is: “would cause the jury to render a decision on an improper basis”
(3) If it only appeals to juror’s sympathies, arouses horror, desire to punish, to cause jury to base decision on improper basis (not the propositions of the case), it is inadmissible.
ii) confusion & misleading jury:
(1) happens when you create a satellite q causing juror confusion
(2) always argue this when something offered w/ limiting instruction by saying the jury won’t understand the ltd. nature of the E & will mislead them into deciding on improper basis
iii) needlessly cumulative
(1) already established & the new evidence doesn’t add anything
(2) repetitive = asking same W several times
f) practical considerations:
i) You should probably ask “Your honor, may we approach [constructively]” and argue this at the bench so the jury doesn’t hear about the horrible evidence you’re trying to keep from their ears. This is very very important!
3) Witnesses
a) Personal Knowledge (R. 602)
i) Objection: Objection, your honor. There has been no showing that the witness has personal knowledge of [fact].
ii) Response: I will lay the predicate at this time. Or We have shown the witness has personal knowledge because he testified that [fact].

iii) personal knowledge = something perceived through witness’s own senses
iv) lay the factual predicate to avoid opposing counsel making an objection and you having to beg the judge to show how it is within the witness’s personal knowledge. The facts you must lay as the predicate are:
(1) enough evidence so a rzbl person could find there was personal knowledge
(2) examples
(a) Q: do you know what color the light was? A: yes. OBJECTION lack of personal kn. OR’d. Ask to take on voir dire to est. a lack of personal kn (to ferret out if he knows from hearsay or something).
(b) Did the driver of the blue car know the light was red? OBJECTION speculative because humanly impossible to have personal kn. of this.
v) Experts do not need to have personal kn as long as rely on something others in field would rely on (see infra)

b) Form & Scope of Examination of Witnesses
i) Scope of the examination
(1) The scope of the cross is limited to scope of direct 611b
(a) Cross should (discretionary) be ltd. to
(b) the subject matter of the direct exam
(c) and matters of credibility (this is necessary b/c you can’t bolster before cr. is attacked)
(2) Criminal cases:
(a) Redirect should only be scope of cross (Fed. only)
(b) if new material covered in redirect, must allow recross (because of the Constitution’s confrontation clause); per our rules, you must make a motion to recross the witness

ii) Form of the question (R. 611c)
(1) Form objections: Note, these things are not harmful but the objections are useful trial tools
(a) leading (leading is only allowed on cross & recross)
(b) ambiguous, confusing, unintelligible
(c) argumentative
(d) unduly repetitious
(e) compound/multifarious
(f) harassing, embarrassing
(g) failure to lay proper predicate
(i) personal kn
(ii) authenticate docs.
(iii) hearsay exception
(iv) expert testimony
(h) calls for a narrative
(i) nonresponsive
(j) speculation, conjecture (if humanly impossible to have personal kn of that fact)

c) Credibility & Impeachment
i) generally
(1) impeachment = attacking credibility
(2) What do you attack?
(a) attack ability to perceive (if it’s material)
(b) attack memory
(c) defects in capacity (e.g. drunk)
(d) prior inconsistent statements (e.g. In June you said the light was yellow. Now you say it was green.)
(e) contradict with extrinsic Evidence (e.g. you say you were going 30 mph but the police report says you were going 50 mph)
(f) show bias, interest and corruption (e.g. you’re testifying positively for your boss or spouse)
(g) attack character (propensity to lie)
ii) prior inconsistent statement & contradictions
(1) impeach w/ a written/oral statement by the W, adopted by the W, or with extrinsic Evidence (another Witness’s testimony or a document)
(2) lay the predicate
(a) prior inconsistent stmt in federal court: FRE 613a: you must show opposing counsel the prior inconsistent stmt (don’t show it to the Witness or give him an opportunity to explain himself) only if requested
(b) impeach by extrinsic Evidence in federal ct:
(i) you must give the Witness an opportunity to explain himself
(ii) you must give opposing counsel opportunity to interrogate the witness about the contrary extrinsic evidence
(iii) exceptions:
1. A party opponent doesn’t have to be confronted with the evidence(Howell)
2. or in interests of justice (accidental impeachment, etc.)
(3) Practically, do it this way: impeachment by prior inconsistent statement
(a) Commit W to present Testimony (that is inconsistent) “So, you’re telling the jury you absolutely remember the light was red.” “Yes.”
(b) Lay predicate:
(i) [If requested only! show Opposing Counsel the document or testimony]
(c) Persuade the jury that the prior statement is more accurate than present T (generally we want to show no cr. but also show prior stmt probably more accurate):
(i) “Do you remember [giving a deposition in this case? Giving grand jury testimony in this case? Signing a statement in this case?]
(ii) You told the truth when you gave that testimony.
(iii) It was close[r] to time of accident (use this fact-based Q, not “your memory was better?” b/c that’s too value-laden)
(iv) [If it was testimony or a deposition & depending on facts, add in the following: Your attorneys were there? I was there? You were put under oath? And you swore to tell the truth. You reviewed the testimony? Had an opportunity to make changes to it? Didn’t make any changes. You signed it?]
(v) show any bias facts (e.g. “you made that statement before you had a fight w/ Pl or Def”)
(vi) You made that prior stmt before talked to your attys.”
(vii) There is always a rzn for the change in story – show the rzn to the jury!
(d) Prove impeaching statement
(i) if the witness admits he was wrong and the light was yellow, you can’t offer impeachment stmt
(ii) if denied (or an excuse is given), admit the stmt and read it to the jury
1. “Follow along silently as I read this aloud. Counsel, page xx, line xx-xx. You were asked ‘What color was the light?’ and you answered ‘The light was yellow.’
2. Then STOP! Don’t ask a Q too many!!! Look at jury w/ a smug look as you walk back to counsel table after impeaching the Witness – gives jury time to think about it. If the witness tries to explain himself, stop him by saying “You said the light was yellow before the grand jury.”
(iii) if denied, and another W will impeach, give jury preview: ask “so you would expect Mr. Other W to back you up on this?”; when Other W on stand, tell them the impeachable stmt then ask impeaching question
(4) Prior inconsistent statements are not Hearsay because if a statement is offered to impeach a witness, then it is not offered to prove the truth of matter (that the light was yellow) but rather to attack the witness’s credibility (“this goes to credibility judge”)
(5) Omissions & Improving memories
(a) omissions: can impeach if didn’t mention something important (first commit W to saying he told all important things at depo and that this would be important then impeach)
(b) no recollection
(i) forget previously, now remember = inconsistent
(ii) remembered, now forgot = can be inconsistent if “forgetfulness” is feigned:
1. other T today is detailed
2. only the bad detail can’t be remembered
(iii) this is not forgetting but only laying predicate: told officer at scene light yellow; today says light red ß that is inconsistent; today in laying predicate you ask if he remembers what he told the officer; that is not a lack of memory about the light and is an irrelevant forgotten fact
(c) opinions: if W decides “not his fault” (opinion) then later says “light was red” that is a fact inconsistent w/ opinion and can be used to impeach (even though Hearsay)
iii) refresh memory Memorize this!
(1) predicate
(a) do you remember x (what color the light was)? no
(b) did you remember x at your deposition? yes
(c) might it refresh your recollection of x to look at your depo? yes
(d) (show depo – let W read it to himself)
(e) does that refresh your recollection? yes
(f) “What color was the light (on direct – OR) The light was red, correct?” yes
(2) FRE 612: opp. counsel then allowed to have writing produced and to do some cross ex on the writing used to refresh recollection
d) Rule of Optional Completeness (FRE 106)
i) test: if something ought to be considered contemporaneously, in fairness, object
ii) result: acceleration à has to be offered by proponent (of the bad part) at that time
(1) includes depos per FRCP 32a4 [check to see if acceleration applies with depos]
e) The Rule: FRE 615
i) procedure
(1) invoke: sua sponte by court or at request of counsel (if requested, non-discretionary) “Your honor, the prosecution would like to request The Rule be invoked.” In competition, the rule will be “constructively invoked.”
ii) W’s not covered automatically:
(a) Federal Court = you can designate an agent as party representative for prosecution, so do this; “Your honor, the prosecution designates Ginger Zylan as it’s party representative.”
iii) The attorneys must invoke a “rule exception” for:
(1) A person whose presence is shown to be essential (experts)
(2) request exemption for experts, show essential and get ruling; “Your honor, it is essential to the completeness and accuracy of her testimony that Ms. Tyvek remain in the courtroom to hear all testimony about how the accident occurred because she is our accident reconstructionist.”
(3) “essential” means
(a) needed to advise counsel in mngmt of case (what to cross other expert on – used for consulting experts) or
(b) testifies based on facts, so opinions will be more accurate if knows more facts (this one is better – used for testifying experts)
4) Authentication


a) 901a standard: Evidence sufficient to support a finding that it is what I claim it to be
b) procedure memorize this!
i) mark (“I’m handing you what’s I’ve marked for identification purposes only as Defendant’s exhibit 1”)
ii) authenticate (See below to construct a set of facts to show the document is what you claim it is or check rules to see if all exhibits are authenticated already!)
iii) offer (“We offer defense exhibit 1”)
iv) give to opposing counsel (simultaneously with saying “we offer ex. 1”) (if you are handed a document, stand, look it over front & back for stray markings, and either make your objection or state “The prosecution has no objection, your honor”)
v) get a ruling (Look to the judge; if no ruling is forthcoming say, “Is Def’s 1 admitted?”)
vi) publish to jury (Ask for permission – “Your honor, may I publish Def’s 1 to the jury?” then show them the picture or hand it to them)

c) testimony of a Witness w/ personal kn (901b1)
i) show personal kn (“You saw the Mayor’s boat after the accident? Yes”)
ii) can you id? what is it? (hand photo. “Can you identify this picture? Yes What is it? A picture of the mayor’s boat after the accident.”)
iii) substantially same condition as when made / you saw it (“Is the boat in substantially the same condition in this photo as when you saw it? Yes”) or
iv) true and correct copy (“Is this a true and correct copy of the indictment you filled out? Yes”)
d) photos & videos
i) personal kn
ii) ID what the photo is of
iii) fair & accurate @ time
e) demonstrative
i) personal kn: familiar w/ scene?
ii) how are you familiar?
iii) Is this a fair & accurate depiction [of scene] at time [of accident]
iv) will this aid jury during your testimony?
f) real evidence
i) personal kn re: object (what is this? how do you know?)
ii) condition:
(1) is this in substantially same condition when last saw
(2) fungible: show chain of custody
g) phone calls & voices
i) personal (via caller)
(1) did you call (Mr. X)?
(2) when?
(3) how did you know number to call?
(4) who did you talk to?
(5) how do you know it was him?
ii) voice identification:
(1) do you have opinion as to whose voice you heard?
(2) what is your opinion?
(3) basis?
(a) familiar w/ and recognized voice or
(b) called no listed and other party id’d self as him or
(c) called no. listed, and content showed him to be who answered or
(d) called no. listed and conversation related to bsns conducted by (company) over the phone or
5) Evidence Procedure: preserving error
a) Preserve error
i) Object
ii) move to strike AND request jury instruction
iii) move for mistrial
b) erroneously excluded evidence
i) your key Evidence is excluded; for appeal, you must get your Evidence into the record;
(i) Q&A offer of proof: discretionary but competition judges will probably allow it (“Your honor, we request to make an offer of proof, constructively outside the presence of the jury, regarding [Ms Zylan’s gambling habit]” Then do Q&A you would have done had the evidence been admitted.)
(ii) Narrative offer: if the judge only allows you to make a narrative offer of proof, you must explain what your Witness would Testify as to.
guidelines.
1. tell purpose of Testimony
2. relevance of Testimony
3. that it is competent Evidence
4. and what point it will help prove
(2) limited purpose admissibility – example
(a) objection sustained (evidence is excluded) as to an inadmissible purpose goes like this:
(i) Defense: “we offer Evidence”
(ii) Prosecution: objection; indmissible to prove “truth”
(iii) Judge: [sustained]
(iv) Defense: “we offer this Evidence for ltd. purpose of showing credibility”
(v) Prosecution: objection; 403 as to ltd. purpose;
1. request limiting instruction or
2. objection sustained entirely
(vi) Offer of Proof
6) Hearsay (HS)
a) What is it?
i) A statement
ii) made out of court (e.g. not during grand jury testimony)
iii) that is offered for truth of matter asserted
(1) words that are part of the event are not offered for the truth but to describe what happened; “these words have independent legal significance” (“he said ‘we agree to build your house’”)
(2) medical bills are not HS
(3) double hs – each part must be admissible (Ginger testifies: “I told Buddy that the Mayor told me he was drunk” – it goes to Buddy’s State of Mind during his accident investigation and is an Admission by a party opponent as to the Mayor)
(4) exaggeration, etc. look at matter intended to be asserted (ex. “he’s driving like a bat out of hell” intends to assert speeding and is HS to prove speeding)
(5) impeachment!
(a) statements that impeach are not offered for their truth
(b) but only to show that there is a conflict
(c) (make a 403 objection)
(6) State of mind: SOM:
(a) to show listener’s SOM = not HS (Buddy thinks the Mayor is drunk)
(b) to show declarant’s SOM = HS (The Mayor said he was drunk does not fall into an exception showing the Mayor’s state of mind)
(7) statement to show memory or belief: (ex. victim told police what D’s house looked like)
(a) statement describes something unique or unusual so accuracy is not accidental
(b) act, event described has indy legal significance
(c) cirx strongly suggest that declarant would not otherwise know of act/event/condition
(8) words that have independent legal significance – they prove your case
(a) misrepresentation
(b) defamation
(9) medical bills are not HS b/c
(a) not assertion but request for payment
(b) offered to prove what you’ve been charged (not injuries)
b) not hearsay
i) ABPO: admissions by party opponent (don’t have to be against interest)
personal knowledge is not req’d
can be opinions
ii) prior statements of a W (under oath, at proceeding) (801d1A)
(1) elements
(a) inconsistent stmt can be used if
(b) declarant testifies
(c) subject to cross (on the stand, under oath, willingly responding to Qs – even if “don’t remember”)
(d) under oath
(e) at trial, hearing or other proceeding or deposition
(i) does not include grand jury proceeding in Texas b/c no counsel there
(2) prior inconsistent statement that don’t qualify are still Admissible for ltd. purpose of proving credibility
(3) inconsistent: forgot before, remember now = inconsistent (improving memory)
iii) prior consistent statements
in federal court:
(1) elements
(a) declarant testifies
(b) subject to cross
(c) consistent
(d) charge of recent fabrication, improper influence or improper motive
(i) “you’ve probably forgotten” is not a charge of fabrication
(ii) impeaching alone is not enough; need reason for impeaching
(2) must be made before motive to lie arose b/c purpose is to rehab W

c) hearsay exceptions: 803 even if W available
personal kn req’d (& all other E rules apply to HS exceptions – just like declarant is Testifying)

i) present sense impression
(1) describes or explains event or condition
(2) statement made during perception or immediately thereafter
ii) excited utterance
(1) relates to a startling event/condition
(2) made under stress of excitement
(3) stress caused by event/condition
iii) state of mind
(1) statement re SOM
(2) of the declarant (his own SOM)
(3) then existing (how declarant feels right now – my head hurts today)
[note: SOM of other is not HS b/c not offered for truth]
iv) statement for purpose of medical dx or treatment
(1) statement for purpose of dx or treatment
(2) describing condition or cause
(3) rzbly pertinent to dx or treatment
v) post recollection recorded
(1) declarant is the W
(2) W once had kn
(3) W no longer has kn
(4) record made when W’s memory fresh
(5) record reflects kn correctly
vi) business records exception
(1) made by persona w/ kn of events/conditions recorded
(2) at near time recorded
(3) regular course to make/keep
902 (11,12) custodian can lay predicate
vii) public records exception
(1) record of public office or agency
(2) setting forth:
(a) activities of office/agency or
(b) matters observed pursuant to legal duty or
(c) factual findings of investigation pursuant to legal authority
viii) misc. records exceptions:
(1) public records/reports
(2) vital statistics
(3) absence of public record or entry
(4) records of religious orgs
(5) marriage, baptismal, etc. records
(6) family records
(7) docs affecting an interest in property & stmts therein
(8) ancient documents
(9) market reports, commercial publications
(10) learned treatises
(11) reputation re personal/family history
(12) reputation re boundaries or general history
(13) reputation as to character
(14) jj of pervious conviction
(15) jj as to personal, family, general history or boundaries

d) 804 exceptions: only if W unavailable to T personal kn req’d
i) unavailable (examples)
(1) exempted by privilege ruling of ct (atty/client, 5th)
(2) persist in refusing to T re s.m. despite ct order
(3) testifies to lack of memory of s.m.
(4) unable to be present b/c of current physical condition, mental ill, infirmity
(5) Mafia: if former testimony exception or forfeiture by wrongdoing:
(a) absent from hearing and
(b) can’t get by subpoena or voluntarily
(6) can’t get attendance or testimony if
(a) statement against interest
(b) belief of impending death
(c) statement of personal/family history
ii) former testimony
(1) declarant unavail.
(2) T in hearing or depo (incl. grand jury proceeding)
(3) opportunity to examine (incl. if predecessor had same interests and could examine)
(4) similar motive to examine
iii) statement against interest
(1) declarant unavail.
(2) against interest when made
(3) against pecuniary, proprietary, subject to civil liability, render claims invalid
(4) rzbl person would not say unless true
(5) (if criminal cases need corroborating cirx)
iv) dying declarations
(1) declarant unavail.
(2) belief death imminent (subjective)
(3) re cause or cirx of death
e) attack declarant’s cr (R806)
i) applies to 801d2(C, D, E) or hearsay statements when admitted under an exception
ii) can’t impeach non-HS b/c don’t care about W’s cr if not offered for truth
iii) applies to:
(1) hearsay
(2) admissions by authorized statements, statement by agent, conspiracy
(3) (why not ABPO? b/c you can call them as they’re a party)
(4) (why not non-HS? b/c not for truth so cr. doesn’t matter)
f) procedure
i) BOP on party objecting to the HS
7) Opinions
a) Lay Opinions
i) elements
(1) perception (firsthand kn)
(a) counterfactual and speculative questions are beyond the scope of lay opinions
(b) collective facts: “he was drunk” is a lay opinions w/o saying all symptoms
(2) rationally based
(3) helpful to jury
(a) ct. can keep out stmts that just take sides “I think it was his fault”
(b) is the W offering something the jury can’t figure out on their own?
(4) not based on specialized kn (if it’s specialized, he’s an expert)
b) Expert Testimony (702)
i) rule à a qualified expert can testify to opinions if:
(1) he has specialized knowledge &
(2) it will assist trier to understand the Evidence or determine a fact in issue &
(3) IF: the Expert is relevant & reliable (This is stipulated in problem, I believe.)
c) Can you ask about the “ultimate issues” in the case – legal conclusions?
i) pure questions of law: no expert T allowed (You cannot ask “was he criminally negligent?”)
ii) questions on matters w/ legal definitions: can ask but only if you define term
iii) mixed Q’s of law and fact: same as questions on matters w/ legal defs.
d) reasonable probability: experts must base their opinions on “reasonable probability”
8) Character Evidence
a) The Propensity Rule in Criminal Cases: character Evidence can’t be used to show conformity, propensity except:
i) Character of the Witness (e.g. Zylan) (404a3 allows per 607, 608, 609 - veracity)
(1) convictions of a crime: to show W’s veracity for truthfulness are admissible
(a) Fed: crime punishable by 1 yr prison +
(b) Fed: crime involving dishonesty or false stmt for any W, E of crimes involving dishonesty or false stmt. is always admissible (to show veracity) w/ no balancing
(i) dishonest: (“criminen falsi”) forgery, fraud, perjury, embezzlement, counterfeit, swindling, passing worthless check, larceny by false stmt
(ii) not dishonest: violent crimes, alcohol related offenses, drug related offenses, shoplifting
b) Non-Propensity Purposes (admissible purposes for which you can offer Character Evidence)
i) 404b non-propensity purposes to argue for the admission of evidence:
(a) motive
(b) knowledge
(c) preparation
(d) opportunity
(e) intent** (doctrine of chances, not propensity)
(f) plan, scheme, design
(g) identity (m.o.)
(h) absence of mistake/accident: doctrine of chances
(i) res gestae – part of the crime charged w/ and can’t separate the two; need nexus btwn the two things
(j) punishment stage – usually able show other crimes
9) Special Relevance Issues
i) pleas & related matters
(1) excluded
(a) withdrawn guilty plea
(b) withdrawn nolo plea
(c) nolo plea (not w/drawn)
(i) exception: Texas criminal cases where nolo treated like guilty pleas
(ii) but in civil cases (fed or state) inadmissible
(d) statements to prosecutors in plea discussions (doesn't include plea discussions w/ law enforcement, etc.)
(e) statements in plea hearings
(2) not excluded
(a) guilty plea (admission by him in HS sense)
(b) statements to prosecutors leading to guilty plea
(c) statements in plea hearing lead to guilty plea
(d) offered against another party (not D)
(e) offered against government (not D)
(3) inadmissible purposes: any purpose incl. impeachment
(4) exceptions
(a) optional completeness (if defense atty goes into it, he opens door to completeness)