I. GENERAL PRINCIPLES OF EVIDENCE LAW
A. Sources of Evidence Rules:
1. Most evidence rules are contained in the codified Federal Rules of Evidence (FRE). The FRE have been adopted in most states also.
2. Rules are also found in:
a. Statutes addressing the admissibility of evidence.
b. Case law
c. Unwritten local practice
B. What Good are the Rules?
1. Rules of evidence are useful tools for arguing about admissibility but they do not "control" admissibility.
2. The trial judge controls the admissibility of evidence and has broad discretion to admit or exclude it.
D. All evidence is admissible and may be considered by the jury unless a party objects to it.
E. How are Evidence Issues Resolved?
1. Disputes that arise in evidence are resolved by what has been proved in court, not by what is "true." Failure to prove something through witnesses is the same as if it never happened.
EXCEPTION: You don't have to prove the obvious.
2. When in doubt, evidence is admissible. .
2. MAKING AND MEETING OBJECTIONS
A. General Principles
1. Objections and responses are short legal arguments concerning the admissibility of evidence.
2. An objection is like a motion; the person making it has the burden of persuading the judge.
3. The judge must rule on an objection:
a. "Sustain" means to rule in favor of the objector and exclude the evidence.
b. "Overrule" means to rule against the objector and admit the evidence.
B. Rules of Objecting
1. Timeliness -- You must object at the earliest opportunity, as soon as the grounds become apparent.
2. Motion to strike -- If the jury has already heard the evidence, you must accompany your objection with a motion to strike.
3. Specificity -- Your objection must be specific.
a. Exactly what evidence you object to.
b. Which rule you rely on.
c. The specific grounds, citing or paraphrasing the applicable text.
C. Rules of Responding to an Objection
1. A response is optional, not required.
2. Specificity -- An argument for admissibility must be specific. You must state what rule or exception you rely on, citing or paraphrasing the text of it.
3. Offer of proof: If your evidence is excluded, you must make an offer of proof that places the substance of the excluded evidence into the record.
a. Complicated version. The jury is removed from the courtroom, and the witness is questioned exactly as if the jury were present.
b. Simple version. The attorney submits a written or oral summary of the excluded evidence out of the hearing of the jury.
3. WITNESS COMPETENCY
A. Definition:
"Competency" refers to whether a person called as a witness is legally qualified to testify; it has nothing to do with mental competency.
B. Rules
1. Everyone is competent to be a witness. FRE 601.
2. A witness must take an oath or affirm to tell the truth; no particular form is required. FRE 603.
3. Young children and severely retarded adults are generally competent if they demonstrate at a hearing that they:
a. Understand the difference between truth and falsity
b. Understand the obligation to tell the truth
c. Have intellectual capacity to observe, recall and narrate
4. PERSONAL KNOWLEDGE
A. Definition
Personal knowledge means a factual event was perceived through any of the 5 senses.
B. Rules
1. Witnesses may not testify to matters about which they have no personal knowledge. FRE 602
2. Generally, the proponent of testimony is required to prove that the witness was present at and perceived an event before the witness may describe it. This foundation may be satisfied by either:
a. Direct testimony from the witness that he or she was present and saw or heard what happened; or.
b. Circumstantial evidence based on the witness's overall testimony that it is obvious the witness has personal knowledge.
C. Comments
1. Witnesses are presumed to have personal knowledge of their own thoughts and acts, and no foundation is required.
2. A witness may not testify about someone else was thinking or feeling, because no foundation is possible -- witnesses cannot know what is inside another's head.
3. Once you have established PK about a general event, the witness may testify to specific details of that event without a separate PK foundation.
5. RELEVANCY
A. General Principles
1. When in doubt, let it in.
2. Trial judge has especially broad discretion in this area.
3. Evidence which is relevant for one purpose but not another, or against one party but not another, is admissible and the jury may be admonished to restrict its use of the evidence. FRE 105. If the admissible purpose has low probative value and the jury is likely to use the evidence for its improper purpose, it raises a 'confusion of the issues" problem under Rule 403.
4. Almost all evidence has some minimal probative value, so objections are usually made on Rule 403 basis.
5. If the relevancy of evidence depends upon some connecting fact, the judge has discretion to require the connecting fact to be proved first, or to admit the evidence subject to 'connecting up." FRE 104(b).
B. Definition (FRE 401) . Evidence is relevant if it has both:
1. Materiality -- a question of law-- does it help prove a contested legal issue, as defined in pleadings, case law, or opened up by previous testimony?
2. Probative value -- a question of common sense -- does it logically help prove or disprove an issue?
C. Rules
1. Relevant evidence is generally admissible. FRE 402
2. Irrelevant evidence is not admissible. FRE 402
3. Unimportant relevant evidence may be excluded if its probative value is substantially outweighed by one of three prejudicial effects. FRE 403
a. Unfair prejudice -- arousing jurors' emotions, biases, or prejudices not already inherently involved in the case
b. Confusion of the issues -- confusing or misleading jury about facts or law
c. Waste of time or needless presentation of cumulative evidence.
D. Comments
1. If evidence is important, it is admissible regardless of prejudice.
2. When making an objection based on relevancy, you should argue both:
a. Low probative value, because the evidence tends to prove an issue of little importance or is of little help in proving an issue; and
b. Substantial prejudicial effect for one of the three reasons mentioned in Rule 403.
3. When responding to a relevancy objection, you should argue both:
a. Substantial probative value because the evidence tends to prove one of the central issues in the case and/or is important to proving an issue, and
b. The evidence will cause little or none of the prejudice effects mentioned in Rule 403.
6. SPECIFIC RELEVANCY RULES
A. General Principles
1. Specific relevancy rules 407-411 trump the general relevancy test of Rule 403.
2. Rules 407-411 exclude evidence when offered to prove liability
3. If evidence is offered for some material purpose other than liability, the rule of exclusion does not apply. This is not the same thing as being admissible.
4. If evidence is offered for a purpose other than liability, it is subject to Rule 403 balancing:
a. Probative value: Is the "other" issue an important contested one or is it tangential?
b. Prejudicial effect: Is the evidence likely to significantly affect the jury's decision concerning liability (the improper purpose)?.
B. Rules
1. Evidence of subsequent remedial measures is not admissible. FRE 407.
a. Definition. Conduct by a tort defendant after an accident which is designed to reduce the possibility that a similar accident will happen in the future (repairs, replacements, upgrades) constitutes a subsequent remedial measure.
b. Exceptions.
1) To prove ownership or control;
2) To prove the feasibility of safety measures.
c. Recent amendment to Rule 407 referred to in your textbook was adopted; it applies to product liability cases as well as negligence.
2. Evidence of offers of compromise in civil cases is not admissible. FRE 408
a. Definition. The rule covers offers to settle a dispute, completed settlements, and statements made during negotiations.
b. A lawsuit need not be pending, but the controversy must be genuine, and must be "disputed as to either validity or amount."
c. Exception: To show the bias of witness who agreed to testify as part of settlement.
3. Evidence that a defendant, third party, or insurance company offered to pay plaintiff's medical & related costs is not admissible. FRE 409.
4. Evidence of offers of compromise in criminal cases is not admissible. Rule 410.
a. Definition. The rule covers plea bargains, offers to plead guilty, and statements made during bargaining.
b. This rule is narrower than Rule 408. Formal charges must have been brought against the defendant, and the discussion must have been between the defense and the prosecutor (not with the police).
c. Exception: To show the bias of witness who agreed to testify as part of a plea agreement.
5. Evidence that a party carries liability insurance is not admissible. FRE 411.
Exceptions:
1) Agency (defendant's insurance covers A to prove that A is Defendant's agent).
2) Ownership or control (the person who insures property probably owns or controls it)
3) Bias of a witness, e.g., that an investigator is employed by defendant's insurance company.
7. CHARACTER & HABIT
A. General principles
1. "Character" has nothing to do with morality; it is a tendency to usually behave in a certain way.
2. "Habit" is a pattern of always behaving in a certain way.
3. Evidence of sexual character is covered by Rules 412-415, which are complicated, ambiguous, contradictory, and overlap the general rules.
B. Rules
1. Evidence of character is not admissible to prove conduct. FRE 404(a)
a. Definition. "Character" is a tendency to behave in a certain way.
b. Illustration. Testimony that a person accused of molesting a child has a history of pedophilia and prior convictions for child molestation.
c. Exceptions:
1) The accused may offer evidence of his own good character and the prosecution may rebut it.
2) The accused may offer evidence of a pertinent trait of character of the victim and the prosecution may rebut it.
3) The state may prove a homicide victim's peaceful character to rebut a claim of self-defense.
2. Evidence of a rape victim's sexual character is not admissible. FRE 412.
Exceptions. If the defendant gives advance notice, the judge may permit evidence:
1) Of a pattern of consensual activity between the victim and defendant when the defendant claims consent.
2) To show that another man committed the act that the defendant is charged with.
3) To show that someone other than the defendant is responsible for the victim's pregnancy (if visible to the jury).
4) That the victim has brought prior false rape accusations.
5) When constitutionally required to enable the defendant to present a defense.
3. Character evidence is admissible in unusual situations in which there is a material, disputed issue concerning a person's character. It may be proved either by reputation evidence or through opinion testimony, but not by specific acts. Rule 405(a). There is a foundation required:
a. Reputation: Character witness is familiar with the subject's reputation.
b. Personal opinion. Character witness has known the subject over a long enough period of time and under sufficient circumstances that they can form a reasonably reliable opinion.
4. Specific acts of bad character (usually criminal behavior) may be admissible against a defendant to prove a material issue other than guilt. FRE 404(b).
a. Such issues on which "bad character" evidence may be admitted include:
1) motive,
2) opportunity,
3) intent,
4) preparation,
5) plan,
6) knowledge,
7) identity, or
8) absence of mistake or accident.
b. These other issues must be genuinely disputed and not merely a pretext for admitting evidence of a defendant's criminal character.
c. Upon request by the accused, the prosecution must provide reasonable notice of intent to offer such bad character evidence.
d. Admissibility is subject to Rule 403 balancing.
5. Evidence of specific prior sex crimes committed by the defendant are admissible "if relevant" (whatever that means) upon advance notice to defendant. FRE 413-415.
6. Evidence of person habit and business custom is admissible. FRE 406.
a. Foundation.
1) The witness has personal knowledge of the person or organization whose conduct is at issue.
2) The witness has observed a large number of situations similar to the one at issue.
3) The person or organization has always responded to the situation in a particular way. It is not enough that the person or organization usually acts in a certain way.
b. Habit may be proved by describing specific similar events or by opinion testimony.
c. Witnesses may testify to their own habits as well as the habits of others.
C. Comments on Rule 404(b)
1. For Rule 404(b) purposes, it doesn't matter whether the defendant was ever charged, tried or convicted of the crime, wrong or act -- the question is whether he did the act.
2. The identity exception is properly invoked when evidence strongly connects the defendant to a prior similar crime which is sufficiently distinctive to qualify as his criminal "signature."
3. The motive exception is properly invoked when a prior crime provides a specific motive for the crime charged, e.g., defendant's desire to avoid prosecution on burglary charge was the motive for bribing a potential witness.
4. The intent exception is properly invoked in a specific intent crime, e.g., prior batteries and threats against a victim show the defendant's intent to kill; defendant must specifically dispute intent.
5. The knowledge exception is properly invoked in possession of contraband cases when the defendant denies knowledge of the contraband; e.g., prior drug experience rebuts defendant's claim he didn't know what was in the plastic bag.
6. The absence of mistake exception is properly invoked only when the defendant claims that harm was caused by mistake or accident, e.g., prior trespassing negates claim that defendant crossed boundary by mistake.
7. The preparation exception is properly invoked when one crime is committed in preparation for another, e.g., stealing a car to be used in a robbery.
8. The plan exception is properly invoked only when planning is a material disputed issue; usually conspiracy cases or murder cases in which premeditation is denied.
8. OPINION RULE (FRE 701)
A. Rule
Lay witnesses may testify to their personal opinions if the following foundation is laid:
a) The witness has personal knowledge of the underlying facts.
b) The opinion is rationally based on that knowledge, and
c) The opinion will be helpful to the jury
B. Rules of thumb
1. Opinions about physical appearances (age, sleepiness, etc) are allowed
2. Opinions about mental states are not allowed
3. Opinions about the future are not allowed (no personal knowledge).
4. Legal opinions are not allowed.
C. Comments
1. The only part of the foundation you can prove is the witness's personal knowledge.
2. You can't prove rationality -- you can only argue about it. In general, an opinion is rational if it is the kind of opinion that people ordinarily form, e.g., he looked "angry."
3. You can't prove an opinion will be helpful either. -- you can only argue about it. Helpful means two things:
a. Relevant
b. Whether it will be more helpful for the jury to hear the opinion or the underlying details. In general, opinions are preferred when the issue is of little relevance, details are preferred when the issue is of central importance
4. There is a lot of judicial discretion over whether an opinion will or will not be helpful.
9. EXPERT OPINIONS
A. Rules
1. Expert testimony and opinions are admissible if the following foundation is laid (FRE 702)
a. The witness is qualified by training or experience to be an expert
b. The witness has knowledge of the facts of the present case
c. The opinion is rationally based on data
d. The expert testimony will assist (be helpful to) the jury. .
2. An expert is not restricted to personal knowledge, but may base opinions on second-hand information. FRE 703.
3. Scientific evidence is admissible if a foundation is laid that the evidence is scientifically reliable.
B. Comments
1. The foundation for qualifications is satisfied either by a witness's formal training or self-taught "experience."
2. Whether a witness is qualified is a question of competency, so voir dire is permitted. Voir dire must go to the presence or absence of qualifications, not the extent of those qualifications.
3. An expert's opinions and testimony must be based on adequate data and be within the witness's area of expertise.
4. Under the "Daubert" test, the judge must make the decision whether proposed expert testimony is scientifically reliable. This replaces the old "Frye" test whether the testimony was based on "generally accepted" science.
10. HEARSAY
A. General Principles
1. You will never, no matter how hard you try, actually understand hearsay.
2. The putative hearsay rule (Rule 802) is that hearsay is not admissible; in reality, 95% of "hearsay" IS admissible.
B. Hearsay Rules
1. Evidence that meets the definition of hearsay and is neither exempted nor excepted from hearsay rule, is not admissible. FRE 801-802.
2. Evidence that looks like hearsay is admissible over a hearsay objection for any of four reasons:
a. It does not fit the technical definition of hearsay in Rule 801(a)-(c).
b. It is exempted from the definition of hearsay by Rule 801(d).
c. It falls into one of the exceptions in Rules 803-804.
d. The judge lets it in anyway under FRE 807 in "the interests of justice"
3. If testimony contains hearsay within hearsay (A told me that B told him ...), each person's out-of-court statement must fall into one of these four criteria. FRE 805.
C. The Way the Rule Works
1. The hearsay rule is invoked (an objection made) in 2 situations:
a. Whenever a witness testifies that she heard someone say something
b. Whenever a written document is offered as an exhibit.
2. Once there has been hearsay objection, the burden shifts to the proponent of the evidence to come up with legal grounds for admissibility. There are four:
a. The evidence does not fit the definition of hearsay. FRE 801(a)-(c)
b. It is exempted from the definition of hearsay. FRE 801(d)
c. It falls into a hearsay exception. FRE 803-804.
d. It should be admitted anyway in the interests of justice. FRE 807.
D. The First Issue: Does Evidence Meet the Definition of Hearsay?
1. Evidence offered during trial does not fit the definition of hearsay if:
a. It does not include the content of someone's out of court statement. FRE 801(a).
b. The out-of-court statement is not an assertion. FRE 801(a)
1) An assertion is a description of an observable fact or event.
2) Questions, commands, promises, threats, etc., are not assertions
3) Contracts, deeds, wills and other purely legal documents are not assertions.
c. The statement is not being offered for the truth of the fact asserted, but for a different material purpose. FRE 801(c).
2. Conduct intended to communicate (e.g., pointing) may be hearsay. FRE 801(a).
3. The barking of dogs is not hearsay.
4. Street signs are not hearsay
E. The Second Issue: Even Though Evidence Looks Like Hearsay, Is it Exempted from the Definition of Hearsay?
1. The prior out-of-court statements of witness who testify at trial are exempted from the hearsay rule if the statements are:
a. Inconsistent with the witness's trial testimony and were made under oath. FRE 801(d)(1)(a).
b. Consistent with a witness's trial testimony, offered to rebut a charge of recent fabrication or motive to falsify testimony, and were made before the motive arose. 801(d)(1)(b)
c. Statements identifying someone (usually a criminal suspect). 801(d)(1)(c)
2. The prior out-of-court statements of the opposing party are exempted from the hearsay rule. These are often called "admissions" and are of five types:
a. Statements made personally by the opposing party. FRE 801(d)(2)(a).
b. Statements made by someone else but adopted by the opposing party. 801(d)(2)(b)
c. Statements by an authorized spokesperson of the opposing party. 801(d)(2)(c)
d. Statements by an employee of the opposing party relating to the employee's duties. 801(d)(2)(d)
e. Statements by the opposing party's co-conspirators. 801(d)(2)(e).
F. The Third Issue: Even Though Evidence is Hearsay, Does It Fall Into an Exception?
1. Former testimony. FRE 804(b)(1). The foundation is:
a. The declarant is unavailability to testify in person because he or she:
1) Asserted a privilege and the court sustained it.
2) Persistently refused to testify despite a court order.
3) Has no memory of the subject.
4) Is dead or so seriously ill that the declarant cannot give testimony.
5) Is absent despite reasonable efforts to compel the declarant's attendance.
b. The former testimony was given at a trial, hearing, or deposition in which the declarant was under oath and subject to cross-examination.
c. The party against whom the evidence is offered must have had an opportunity and similar motive to develop the testimony by direct or cross-examination at that previous hearing..
2. Statements against interest. FRE 804(b)(3). The foundation is:
a. The declarant is unavailability to testify in person because he or she:
1) Asserted a privilege and the court sustained it.
2) Persistently refused to testify despite a court order.
3) Has no memory of the subject.
4) Is dead or so seriously ill that the declarant cannot give testimony.
5) Is absent despite reasonable efforts to compel the declarant's attendance.
b. The declarant made a statement that was clearly against his/her interest at the time it was made. It may be against monetary, property, or penal interests.
c. A reasonable person would not have made the statement unless it were true, looking at all the circumstances surrounding the statement, including whether the declarant had a probable motive to make a false statement, and whether the present controversy had already arisen at the time the statement was made, and whether it is self-serving.
d. Statements offered to exculpate the defendant must be corroborated and trustworthy.
3. Present sense impressions. Rule 803(1). The foundation is:
a. The declarant must have been a participant in or witness to a material event (personal knowledge requirement).
b. The statement must describe or explain the event. It cannot be a narrative of past events.
c. If it is opinion form, it must be rationally based on perception and helpful to the jury.
d. The statement must have been made spontaneously, without time for thought or fabrication.
e. The statement must have been made while the event was happening or immediately thereafter.
f.. Most jurisdictions require some corroboration that the event happened.
4. Excited utterances. Rule 803(2). the foundation is:
a. A startling or unusual event happened. Most states require some corroboration.
b. Declarant was witness or participant.
c. Declarant was placed in a state of extreme excitement by the event.
d. The statement relates to, describes or explains the startling event.
e. The statement was made spontaneously, without thinking, not in response to questioning.
f. The statement was sufficiently contemporaneous with the event so that there was no time for reflection and person was still under stress. There is no fixed time limit.
g. If the statement contains an opinion, it must be rationally based on perception.
5. Statements of mental condition. Rule 803(3).
a. The foundation is:
1) The statement describes the declarant's mental condition or emotional state.
2). The statement was made contemporaneously with the feeling or emotion.
b. The declarant's state of mind must be a material issue in order to invoke this exception.
c. The Hillmon exception holds that a statements describing an intent to do an act in the near future is admissible to prove that the declarant later did the act, if the declarant had the capacity to accomplish it.
d. The exception applies only if the statement describes a state of mind and it is the speaker's state of mind that is at issue. Statements that affect someone else's state of mind by causing a reaction are not hearsay at all, because they are not being offered for their truth.
6. Statements of physical condition. Rule 803(3). The foundation is:
a. The declarant's physical condition is an issue.
b. The statement expresses or describe then-existing pain, malady, or other physical condition.
7. Statements made for purposes of medical diagnosis or treatment. Rule 803(4). The foundation is:
a. The statement was made to or intended to be conveyed to medical personnel.
b. It was made for the purpose of obtaining diagnosis or treatment. Statements about past symptoms made to a "consulting" physician for the purposes of preparing for litigation probably do not qualify under this exception.
c. Declarant describes own medical history, past or present symptoms, pain or sensations, or the cause or inception of the problem.
d. The information is reasonably pertinent to diagnosis or treatment.
e. Physical condition must be a material issue.
8. Business records exception. Rule 803(6).
a. Foundation:
1) The record is sponsored by person familiar with record keeping.
2) The record appears regular and unaltered on its face..
3) It was made at or near the time of the event or transaction
4) The regular practice of the business includes:
a. The event itself
b. The making of the record
c. Keeping the record
5) It is based on facts within the personal knowledge of employees, although the entrant need not be the same employee as the one who had personal knowledge. Statements by non-employees may not be included.
b. The original is not required
c. The term "business" includes every business, institution, association, occupation, and calling of any kind, whether or not conducted for profit.
d. Records prepared by a party in anticipation of litigation are not admissible.
9. Public records exceptions. Rule 803(8)-(10).
a.. Foundation:
1) The record must be authenticated as true and complete by:
a. Testimony of official from the relevant office
b. A written certification by an official from the office.
c. A certification under an official seal.
2) It was prepared in a public office by public officials.
3) The record concerns the official activities, observations, or personnel of a local, state or federal office or agency.
4) The source of information and other circumstances indicate trustworthiness.
5) It must report facts within the personal knowledge of employees of the public office, or that are required by statute to be given to public offices.
6) It appears regular and unaltered on its face, but the original is not required
b. Police investigation reports are not admissible against criminal defendants.
c. Records of vital statistics (e.g., birth certificates) are admissible although the information does not come from state officials.
10. There are dozens of other hearsay exceptions in the Federal Rules, created by case law, or contained in state statutes.
11. In criminal cases, the use of incriminating hearsay against a defendant implicates his 6th amendment right to confront the witnesses against him. Most courts therefore require some kind of showing that it is necessary to use the hearsay because the witness is not available despite reasonable efforts to obtain his or her presence, and that the hearsay has indicia of reliability.
G. The Fourth Issue: Even Though Evidence Is Hearsay and Fits No Exception, Is It Admissible Anyway "In the Interests of Justice"?
1. A residual "exception" gives the judge discretion to admit hearsay not within an exception but having equivalent circumstantial guarantees of trustworthiness. FRE 807.
2. Foundation:
a. The opponent must have advance notice.
b. The statement should have circumstantial guarantees of trustworthiness equivalent to other exceptions.
c. The statement must be relevant.
d. The statement should be highly probative on the point.
11. IMPEACHMENT
A. General Rules
1. All witnesses may be impeached. FRE 607
2. An impeached witness may be rehabilitated on re-direct examination, but the witness's credibility may not be bolstered on direct exam before it has been placed in issue.
3. Generally speaking, impeachment is limited to cross-examination, and extrinsic evidence is not permitted.
B. Specific Rules: The Permissible Types of Impeachment Evidence
1. A witness may be impeached for bias, interest, or motive to fabricate. Case law.
a. Any fact tending to show that a witness has a bias for or against a party, an interest in the outcome, or any other motive to testify falsely may be proved.
b. Events that demonstrate bias directly (e.g., witness once attacked plaintiff with knife) or raise a circumstantial likelihood of bias (e.g., plaintiff once attacked witness) are both admissible.
c. Bias is considered the most probative form of impeachment and extrinsic evidence is allowed.
2. A witness may be impeached by proving they had a poor opportunity to observe the event testified to. Case law. This is also considered probative, and extrinsic evidence is permitted subject to FRE 403.
3. A witness may be impeached by proving prior inconsistent statements. Case law.
a. This is considered fairly probative, and extrinsic evidence may be permitted after the foundation has been laid.
b. Foundation:
1) The witness must give direct examination testimony.
2) Direct the attention of the witness to the time and place where, and the person to whom the inconsistent statement was made.
3) The statement being referred must be the witness's own, not the statement of any third party.
4) The substance of the statement should be disclosed to the witness with sufficient specificity to allow the witness to recall it. However, the statement need not be shown to the witness.
5) The witness is then asked to admit making the statement.
6) If the witness denies or does not remember making the statement, and if the statement is on a material issue, then the cross-examiner may introduce the statement itself if the issue is material.
4. Evidence of bad character for truthfulness is admissible to impeach. Cross-examination only.
a. Reputation, opinion or acts of bad character for dishonesty and untruthfulness. FRE 608.
b. Felony convictions within past 10 years. Rule 609(a)(1).
1) Juvenile adjudications are not convictions
2) Pendency of appeal is irrelevant
3) Felonies are admissible only after balancing probative value on truth-telling tendency against prejudicial effect.
c. Convictions within past 10 years for crimes of dishonesty and false statement. Rule 609(a)(2).
1) Juvenile adjudications are not convictions
2) Pendency of appeal is irrelevant
3) Both felonies and misdemeanors admissible; no balancing required.
5. A witness may be impeached by showing that a witness has a mental or physical defect that reduced his/her ability to perceive or remember events correctly. No extrinsic evidence allowed.
a. Poor memory, dementia, or Alzheimer's disease.
b. Attention deficit disorder.
c. Poor eyesight or hearing.
d. Drug or alcohol intoxication at the time of the event.
7. A witness may not be impeached for lack of religious belief. Rule 610.
8. Rehabilitation. After impeachment, a witness may be rehabilitated on redirect. Permissible rehabilitation includes:
a. Evidence similar in kind and scope to the impeaching evidence which rebuts it (e.g., good character for truthfulness following evidence of bad character for untruthfulness).
b. Explanations that a bias was only temporary or minor, and has since lessened.
c. Denials of bias, but not that bias is justified.
C. Comments
1. Impeachment generally requires a foundation in which the witness is directed to admit or deny a specific act.
2. How to object
a. If the question is vague ("Any convictions?"), object to lack of foundation directing witness to any specific conviction.
b. If you think impeachment is improper, object on the grounds of "Improper impeachment," pointing out why this evidence is not permitted under the rules (e.g., conviction more than 10 years old).
c. If you aren't sure whether the impeachment is improper (e.g., you don't know the date of the conviction), object to "Lack of foundation for impeachment," and explain that no foundation has been laid that establishes that the conviction falls within the 10 year rule.
3. Prior inconsistent statements that do not qualify for an exemption from hearsay under Rule 801(d)(1) are admissible "not for their truth" but to impeach.
12. ATTORNEY-CLIENT PRIVILEGE
A. BASIC RULE. Confidential communications between a client and attorney concerning a bona fide legal matter are privileged.
B. RULES
1. Protects legal advice only, not tax advice, business advice, or consoling relatives and friends.
2. Agents of both client and attorney are covered by the privilege.
3. It survives death of the client, and may be asserted by the estate
4. No privilege in lawsuits between the client and the attorney
5. No privilege if co-clients are suing each other.
6. Physical evidence, fees, and the identity of client not privileged.
7. Waived if the client voluntary discloses parts of the conversation, either in or out of court, or fails to object to someone else disclosing it.
8. Protects a client's knowledge (the client tells the lawyer where bodies are buried), but not lawyer's independent knowledge (lawyer goes to the scene, sees murder weapon, takes it back to office and locks it in drawer). States vary on whether the middle ground is privileged -- lawyer visits scene, looks at body, simply verifies what client said and gains no new knowledge.