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EVIDENCE CHECKLISTS - ZWIER SPRING 2009

STEP ONE Is it Relevant?


ALWAYS START HERE! RELEVANCE IN THIS STEP, STATE:

(1) FRE 401: Relevant evidence is any evidence having (1) What item of evidence is party seeking to
any tendency to make a fact more or less probable admit?
that is of consequence to the determination of the (2) What material fact is that evidence offered to
action (materiality) prove?
- Material: does it help prove an element, meet a (3) Why does the evidence tend to make that fact
procedural requirement, or help to establish more/less probable than fact would be w/o
relevance for evidence admitted conditionally. evidence?
(2) FRE 402: Presumption is admissible, but if
relevant, then admissible. Standard of review: abuse of discretion

STEP TWO What Kind of Evidence is it?


Authentication? See 901, 902, 1001 & 1002 Specialized Relevance Rules
Character Evidence? See FRE 404 & 405 Compromise or Settlement Offer? See FRE 408
Confrontation Clause? See DP clause. Insurance? See 411
Expert Witness testimony? See 702-706 Medical Expenses? See FRE 409
Hearsay? See 801-807 Plea Deals, Offers, Discussion? See FRE 410
Impeachment? See 607-609, 613 Subsequent Remedy? See FRE 407
Privilege? See 501, proposed rules in 500s.
Child Molestation? See FREs 414-15
Sexual Assault? See FRE 412, 413, 415 & Rape
Shield law

AUTHENTICATION Writings/Recordings/Photographs
Physical/Non-testimonial Evidence must be authenticated
to prove item is what proponent claims it is. Best Evidence Rule must use the original. (FRE 1002)
(1) Is it Extrinsic Evidence? If yes must authenticate.
(2) Is it Self-Authenticating? FRE 902 Examples: Unless the original is destroyed, lost, not obtainable, in
- Domestic/foreign public docs under seal or signed possession of opponent, or the evidence goes to a collateral
- Certified copies of public records issue (FRE 1004).
- Official publications, newspapers, periodicals
- Trade inscriptions, signs, tags Then can use a duplicate, if its a true and accurate copy of
- Acknowledged/notarized docs original (FRE 1003).
- Commercial paper, signed
If docs are conditionally admitted, Judge decides if fact has
- Acts of Congress
been proven to admit, per 104. (FRE 1008)
- Signed records of regularly conducted activity
(3) If not, has it been reliably authenticated in some
If not clear if a doc ever existed, or if a doc is authentic, its up
other way? FRE 901 (non-exclusive list):
to jury to decide. (FRE 1008)
- Witness w/knowledge testifies to authenticity
- Nonexpert opinion on handwriting, familiarity not
acquired for trial Checklist Before Can Admit Any Extrinsic Document:
- Expert witness O riginal Writings
- Distinctive characteristics + circumstantial evid. P rivilege
- Voice ID (can be acquired during trial) R elevance
- Public records or Ancient docs A uthentication
- Process or system description, if accurate results H earsay
- Methods provided by statute
(4) Any Other Problems? e.g., Hearsay, Character
Evidence, Privileged?

Chain of custody doctrine Proponent has kept an


account of where the evidence has been throughout case
(e.g., convenience store tape showing robber)
EVIDENCE CHECKLISTS - ZWIER SPRING 2009

Make sure you include RELEVANCE analysis before you do this part!

CHARACTER EVIDENCE
EXAMPLES OF CHARACTER EVIDENCE
(1) FRE 404: Evidence of a persons character or traits
generally not admissible for the purpose of proving action 404(b) Motive, Common Scheme or Plan:
in conformity w/ character on a particular occasion. - U.S. v. Trenkler D puts bomb under dads car.
Q: whether to admit evidence of prior bomb D
(2) Exceptions In Criminal Cases Only:
made for a friend. Cannot say just b/c built one
- 404(a)(1): Character of accused can be offered by
before did it this time (propensity) and all bombs
either party if the accused is the one who introduces it (D
have some things in common. Held: no abuse of
opens the door)
discretion to admit w/limiting instruction.
- 404(a)(2): Pertinent character traits of alleged victim
can be offered by either party (including claims of Reverse 404(b).
victims peacefulness if D is on trial for homicide & is - U.S. v. Stevens Air Force officers robbed
claiming self-defense) AS LONG AS its not evidence of /sexually assaulted. Eyewitnesses pick out D, but
victims past sexual behavior or predisposition (FRE 412) evidence shows up several states away & previous
victim says not him. D wants to introduce to
(3) Exception in Civil Cases:
exculpate self. Kept out as irrelevant. Held: revd,
- 405(b) Exception: If the persons character is an
should have been admitted.
essential element of the crime/claim or their defense, the
witness can testify re specific instances of the persons
Res Gestae (Narrative integrity).
conduct. e.g., deceit, negligent entrustment, defamation,
- U.S. v. DeGeorge. Criminal insurance fraud case
slander, libel
where guy systematically bought yachts,
(4) Other Big Exception for Civil or Criminal Case: overinsured, then sunk them. D was drilling holes
- 404(c): Witness Impeachment or Credibility Attacks. Go in bottom of ship when Italian coast guard finds
Impeachment Rules 607-609. them. Q: whether to admit evidence that D had
changed ownership of co. b/c 3 previous claims
(5) Last Chance to Get In Evidence of Other Crimes, Wrongs, barred his ability to get insurance. Held: Affirmed
or Acts: Reframe Purpose for Admitting It. to admit, necessary to present a coherent narrative.
- 404(b): Not an exception to 404. Evidence
inadmissible to prove character can be admitted to
show:
- proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of
mistake/accident. (common scheme or plan)
- Procedural Requirement for Criminal Cases under
404(b): State must provide reasonable notice before
trial (or during trial, if ct excuses for good cause) of
general nature of any such evidence it intends to use.
(6) 403 Balancing. Probative value v. unfair prejudice. Go
403 analysis. Consider Res Gestae (narrative integrity) too.

LAST STEP How To Prove Character?


(7) FRE 405: If the character evidence is admissible (including
for impeachment), the form is limited:
On direct, witness can only offer testimony about the
persons reputation or offer their opinion.
On cross, witness can answer Qs about specific instances of
conduct.

2
EVIDENCE CHECKLISTS - ZWIER SPRING 2009

Make sure you include RELEVANCE analysis before you do this part!

IMPEACHMENT OF WITNESSES What Cannot Be Used to Impeach:

3
EVIDENCE CHECKLISTS - ZWIER SPRING 2009

Make sure you include RELEVANCE analysis before you do this part!
Procedure Relating to Witnesses
FRE 611: Procedure for Interrogation of Witnesses. Things The Court Can Do
(a) Ct reasonably controls mode & order of interrogating - Call witnesses sua sponte and interrogate
witnesses & presenting evidence. them (FRE 614)
(b) Can only cross-examine about subject matter of direct OR - Order witnesses to wait outside so they cant
matters affecting witness credibility (impeachment) hear testimony of other witnesses (MUST order it if
(c) No leading Qs on direct; ok on cross OR if Qing a hostile requested by party; can order sua sponte). N/A to
witness, adverse party, or their witnesses. parties, their representatives, people essential to
parties, or those authorized by statute to be present.
FRE 612: If Witness Needs Memory Refresher. (FRE 615)
OC has right to see anything shown to witness to jog their - Appoint expert witnesses sua sponte or at
memory. request of party, if both parties agree. In civil cases,
parties pay expert; in criminal cases, state pays.
(FRE 706)

LAY WITNESSES
TO GET A NEW TRIAL BECAUSE OF WITNESS
(1) Must be competent. (FRE 601)
COMPETENCY:
(2) Must have personal knowledge. (FRE 602)
1) Incompetent under rules? (e.g., judge testifying in
(3) May only testify re opinions/inferences which are:
trial he is presiding over)
(a) rationally based on witness perception,
2) Substantial right of party affected? FRE 103(a)
(b) helpful to understanding witness testimony or
standard for reversible error.
determination of a material fact,
(c) not based on scientific, technical or specialized
knowledge. (FRE 701)

EXPERT WITNESSES From Daubert v. Merrell Dow,


(1) Must be qualified based on knowledge, skill, experience, 4 factors to determine if experts methodology is
training, or education. (FRE 702) reliable (PEAT):
Peer reviewed?
(2) Expert opinion testimony must be based on underlying
Error rate known or knowable?
evidence that is relevant and reliable. (FRE 703)
Accepted w/in the field, generally?
- To determine if relevant & reliable, apply Daubert
Tested technique?
test.
(3) Experts underlying data need to be admissible for
experts opinion to be admitted if data is reasonably relied
on in experts field. (FRE 703) But, Expert may be required
to disclose underlying facts/data on cross. (FRE 705)
(4) Experts opinion cannot be kept out just b/c it includes a
conclusion re the ultimate issue to be decided by jury.
(FRE 704(a)).
(5) Mens Rea Exception. If testifying about a Ds mental state
in a criminal case, witness cannot offer opinion re whether
D had mens rea for crime/defense this is jury Q only.

4
PRIVILEGES
FRE 501: Created federal common law for 1st time, but follows Eerie Doctrine In civil actions, if State law supplies
rule of decision, existence of a privilege determined by state law. (e.g., Products liability cases state law governs).
Proposed Rule 502. Atty-Client Privilege. Atty-Client Privilege under Common Law:
E(1)
VIDENCE CHECKLISTS - ZWIER - Must be claimed by client or his 2009
SPRING
Previously-Waived Communications/Work Product.
representatives
If docs/communication were previously intentionally
disclosed in a federal proceeding, or to federal office or agency, - beforeAtty
Make sure you include RELEVANCE analysis you authorized
do this part! to claim for client unless
HABIT/ROUTINE PRACTICE COMPROMISE
client waives. &(Usu.
OFFERS TO COMPROMISE
this must be waived for legal
and this is same subject matter, and they should in fairness, be
(1) FRE 406: Evidence of habit or routine practice can be (1) FRE 408(a):
malpractice The things parties say in settlement
claims)
considered together, previous waiver applies no privilege.
admitted to prove someone behaved in conformity to that - talksCrime-fraud
are not admissible;
exception: evidence
atty MAY thatreveal
eithertoparty
(2)habit/practice,
Inadvertent disclosure. If accidentally
even if witness does notdisclosed
remember despite
doing it has offered/accepted/
prevent crime/fraud involving promisedseriousto settle
bodilya injury,
claim is
reasonable
that time andsteps theretowere
prevent it, and holder promptly took
no witnesses. not admissible
death, or substantial to prove:
financial injury (U.S. v. Zolin)
- steps to get itmust
Evidence back,benospecific,
waiver not privileged.
general (e.g., always - - Waived liability,if third person present (except
Twowears
Common Law
seatbelt). Tests to Decide: - that
lawyers a claim is invalid,
assistants)
(2) 403(a) Balancing.
Subjective Standard test.
the amount
- - Privilege a claimdeath
survives is/was worth, OR
(Swindler & Berlin v.
(b) Dalen Balancing test (from Howell v. Joffee)
U.S.)
- to impeach through a prior inconsistent
(3) Disclosures in State Ct Waivers in Federal Ct, unless that - statement orexception:
Osterhoudt contradiction.
ID of a client can be
SUBSEQUENT
states lawREMEDIAL
says it is. (FREMEASURES
502(c)) (2) Criminal Negotiations
confidential if there is no ongoingException: investigation, atty
(1) FRE 407: Evidence of a subsequent repair just
- helping client Conduct/statements
408(a)(2). make it right (tax attymade fwddin
- cannot be used to prove: negligence, culpable conduct, paymt to IRS for
criminal cases unnamed
broughtclients)
by public offices or
Proposed Rule 504. Therapist-Patient Privilege.
product defect, product design defect, or a need for
Requiremts: Expectation of confidentiality; statemts made for agencies in the exercise of their regulatory,
warning or instruction. Peopleinvestigative
v. Gionis Abusers wife files authority
or enforcement for divorce, arehe
purposes of diagnosis or treatment.
(2) Can it be Admitted for Another Purpose? Exceptions:
(a)- proceedings to institutionalize patient, vents to a friend/lawyer
admissible. he will take care of her
Can be admitted if used to prove: ownership, control, later,
(3) she
Use of& new BF
Compromise assaulted,
Offers lawyer-friend
for Other called
Reasons: as
(b) mental examination order from judge
impeachment, or feasibility. witness,
- he claims
408(b). atty-client
Conduct/statements privilege even
made though
during he
(c) communications re an issue of patients mental/ emotional
(3) Ifcondition
Used to Show Feasibility of Precautionary Measures said he wasnt
settlement his atty
talks repeatedly.
admissible Held:
if used noto privilege
prove:
if patient claiming insanity
Go to 403 Balancing Test. Feasibility must be closely tied to b/c were talkingbias
- witness ~ business, not legal issues; would be
or prejudice,
technically possible. conflict- of interest
obstruction to allow.
of Dissent:
criminal abuser was
investigation asking
charges, or
Proposed Rule 505. Spousal Privilege.
-
Two Kinds:Tuer v. McDonald wrongful death suit where dr. legal Qs.
- rebuttal of undue delay claims.
discontinued anticoagulant when guys surgery - Common Law (Fraud) exception. If atty
(1) Communication privilege. Marital privilege
postponed, guy dies, hospital changes protocol. Held, allowed if
Howellknowingly
v. Joffee Atty
makes accidentally
fraudulentleaves phoneduring
statement on
communications
change in protocol took place whileas
inadmissible they were remedial
subseq. alone,
hook, talks ~ other
settlement party
talks to on his VM.
induce reliance, this
preferably
measure. in BR, b/c of ct
Technically interestinnecessarily
possible not undermining
feasible. If Dalen Balancing
statement test: is admissible.
marriage.
unsafe, more dangerous or too costly, canprivilege,
Under Trammel, hearer asserts not
be not feasible. (1) Reasonableness
- Bankcard of precautions
America v. Universaltaken to prevent
Bancard Systems
accused.
disclosure
Sub-ISO was in middle of settlement talks
(2) Testimonial
(Look in book for rest privilege. In fed ct, No
of this analysis. allows spouse to testify v.
civil/criminal (2) timewith taken to correct
ISO, so didnterrordo something; ISO filed
other
distinction?) in criminal cases. Ask:
(3) scope of
breach the discovery
of K claim. Held: Offer of settlement
(a) civil or criminal trial?
(4) extent of the disclosure
admissible to show subs motive for not
(b) where were they when communicated?
(5) overriding
fulfillingissue
K of fairness.
terms.
(c) did parties intend it to be confidential?
(d) are they still married?
Therapist-Patient Privilege under Common Law:
(e) how was it communicated (email/phone/note)
Jaffee v. Redmond cop who shot guy had therapy
(3) Crime-fraud exception apply? w/social worker to deal w/ effects. Social worker
PLEAS: OFFERS, DISCUSSIONS & RELATED
(4) GetTO
OFFERS in under Chambers-Mississippi
PAY MEDICAL EXPENSES analysis? called
(1) FRE 410: The following are notsuit.
as witness in wrongful death Held: against
admissible
(1) FRE(a) 409:
DoesEvidence
D really need it? paid or offered to pay medical, privileged
someone under 501 (state law governs)
a defendant in any proceeding (civil or criminal),
(b) Vital
hospital ortosimilar
abilityexpenses
to defendfor self?
an injury cannot be unless D wants to admit them:
(c) Survive
admitted 403? liability for the injury.
to prove No Reporter Privilege:
- a plea of guilty, later withdrawn, a plea of nolo
(2) Can the Statement be Parsed? Maybe the rest could be In re Grand Jury Subpoena, Judith Miller (Valerie Plame
contendere, any statemt made during above
Privilege
admitted. Against Self-Incrimination. 5th Amendmt. case) circuits divided on existence of reporter
proceedings, any statement made during plea
(1)403
(3) Is itBalancing.
testimonial? privilege, but, held: no privilege b/c national security
discussions to the prosecutor which lead to
(2) Is it a statement? Giving blood, handwriting no. put at risk by CIA leak.
guilty plea or where the guilty plea is
LIABILITY INSURANCE (See last page for this.) withdrawn.
(1) FRE 411. Evidence that someone was/not insured at time No Parent-Child Privilege:
(2) Exceptions: Statement is admissible
In re Grand Jury Proceedings former FBIs if:son
Privilege v. Immunity
not admissible to prove negligence or wrongful conduct.
U.S.Can
v. Hubbell Clintons old attyPurpose?
(D) refused discovery (i) Another statement
subpoenad. Held: no privilege. from same discussion has
(2) It Be Used for Another Evidence of already been admitted, and fairness demands
requests,
insurance wascan givenbe immunity,
used to prove:answered Starr discovered D
can- guilty of tax fraud. give someone immunity to testify if Privilegethey both be considered contemporaneously;
Logs.
proof of agency, or
youre after someone else. FRCP 26(b). Have to list who its from, who its to,
- ownership,
- control, or and (ii) Statement
provide enoughwas made
detail by the defendant
to establish privilege.under
If
oath, on the record, and in the presence of
- witness bias or prejudice. you dont list it, its waived
counsel, AND this is a criminal proceeding
(3) 403 Balancing. Go 403 analysis. for perjury or false statement.
HEARSAY FRE 803: Hearsay Exceptions/Declarant
SEXUAL ASSAULTAvailability
CASES Immaterial:
(1) Is It a Statement? FRE 801: An out-of-court [voluntary] (1) Present Sense Impression. Statemt made
statement [or non-verbal conduct] made [by a person, not WHILE experiencing event or immediately after.
an animal or machine] to prove the truth of the matter
(2) Excited utterance.
asserted.
(3) State of Mind Exception. Includes then-existing
(2) What Is Statement Being Offered to Prove? physical or mental condition, emotion, intent,
If to prove [whatever was said], go 803 exceptions. 5 plan, motive, pain, bodily health. Can incl.
If to prove something else, allowable non-hearsay uses: memory to prove fact remembered only for will
- Impeachment. Go 801(d)(1), 801(d)(2), 608, contests.
609, or 613. (4) Medical Diagnosis Purposes.
- Circumstantial evidence of state of mind. something witness once knew about but now
- Circumstantial evidence of memory or belief. cant remember. Must have been made when
E(3)
VIDENCE CHECKLISTS - ZWIER
Who Is Making Statement? memory was fresh. Can be read SPRING 2009 but
into evidence
- 801(d)(2): Admission by party-opponent. NOT admitted as an exhibit.
Make sure you include RELEVANCE analysis(6) before you doRecords
Business this part! Exception. Record in any
(a) partys
VICTIMS own statement
PAST SEXUAL BEHAVIOR CRIMINAL CASES ACCUSEDS PREVIOUS SEXUAL ASSAULTS CRIM.
form that was:
(1) Is(b) a statement
it Character of whichof
Evidence the party has
Victims manifested
Sexual Behavior a belief
or (1) FRE 413: If D was accused of sexual assault before,
in its truth, or (a) made in ordinary course of business,
Predisposition? Out FRE 412. evidence of that comes in.
(c) statement
(2) 412(b) Exceptions:made by someone authorized to speak for (b) requiremt:
(2) Notice by someone At with
least knowledge,
15 days before trial.
party onof
- Evidence that subject,
specific or
instances to prove that someone (c)
(3) Includes at/near
S&M. the time the info was transmitted,
(d) other than accused
statement didagent/servant
by partys it; re a matter w/in (4) Includes
(d) conspiracy.
kept in the ordinary course of business.
- Evidence
scope of of specific instancesduring
agency/employmt to prove it was of
existence (7) Absence of a Business Record. Lack of any
consensual;
relationship and
(Vicarious Liability), or Childrecord
Molestation
of anythingCases: FRE
in (6) to414
prove= same
the as 413, but
- (e) Evidence
statement which
by a would violate Ds
co-conspirator constl rights
during/in if
furtherance for child molestation.
nonoccurence or nonexistence of the matter,
excluded.
of conspiracy. unless prove not trustworthy.
(3) Notice
*Need Requiremt.
corroborating Atevidence
least 14 days.
for (C)(D)(E) to prove CIVIL CASES EVIDENCE OF SIMILAR ACTS FOR
(8) Public Records & Reports. Any public record
authority. All are NOT hearsay (are exclusions) in. SEXUAL ASSAULT OR CHILD MOLESTATION.
setting out (a) activities of the office/agency; (b)
FRE 415 Evidence of conviction in criminal case is
(4) What Does Statement Consist Of? matters observed per duty to report, or (c) in
admissible for use in civil case. Same 15 day notice
- Witness Prior Statements. 801(d)(1): An in-court civil cases OR criminal cases v. Govt, factual
requiremt.
statement, subjected to cross, that is: findings made from investigation per legal
CONSTITUTIONAL authority, unless prove not trustworthy. NOTE: in
CONCERNS
(a) Inconsistent w/declarants previous testimony made
criminal cases, matters observed by police
underCases
Supreme Court oath; or Chambers v. Miss. Take-Away:
excluded they are hearsay, so cop needs to
(b) Consistent
Chambers w/declarants
v. Mississippi (1973) previous testimony
state evidence rules& offered Factors showto be
up weighed
to testify.in deciding to admit:
to rebut
prevented charges
D from of recent
presenting hisfabrication, improper
defense (voucher rule, (1)
(9) Testimony is vital to
Vital Statistics. D, (2)
Birth, Witness
death, unavailable,
marriage certs.
hearsay influence or motive,
rule against or only applied to pecuniary
interest (3) Testimony reliable.
(c) an ID someone
of someone (10) Absence of Public Record. Form: cert under
interests); elsepreviously
confessedrecognized (e.g.,people
to lots of other IDing
FRE 902 that diligent search failed to disclose.
and then recants
out of a line his
up).statements. Holding: the rules
HEARSAY
(11) / CONSTITUTIONAL
Religious Records. ANALYSIS
prevented
All are NOT D from the (are
Hearsay rightexclusions)
to present his defense.
in for substantive
(1) Is the statement hearsay?
(12) Baptismal, Marriage Certs by Clergy.
Davis v. Alaska rule that judgments of juvenile crimes are
purpose.
(2) If hearsay under 801(a)-(c), does it fall under an
not allowed. D therefore could not cross-examine the key (13)exception
Family Records. Tombstones, genealogies,
or exemption?
(5)witness against
Is it Highly him. Holding:
Probative unconstitutional
& Reliable, But Doesnt toMeet
prevent D
(3) If offered in a criminalorcase,
engravings on rings urns.does admission of it
from cross examining
Exception? FRE 807: this witnessException: If highly
Residual (14)violate
Docs Affecting Interestclause?
in Property.
the confrontation
trustworthy & more probative than anything else (15)
(4) IFStatmts
offered inin Docs re Interest
a criminal trial & in Propty.
accused seeks to
CONFRONTATION
procurable, and CLAUSE
justiceANALYSIS
served by admitting it, other
(16)offer statement
Ancient Docs. in their
20+ defense,
years, does exclusion
authenticated.
(1) Isstatements
witness/declarant
can be letunavailable?
in, even if they would normally be
hearsay.
(2) Was PROVIDED:
statement proponent
testimonial gives
in nature (tonotice before where
authorities, trial, (17)violate
Market DPReports,
clause, 6th amendmt right
Commercial Pubs.toMarket
compulsory
quotes, directories, if generally reliedclause?
process or confrontation on.
incl. name
would later & address
think usedof atdeclarant.
trial)?
Near Miss Theory: when something
(3) D had opp. to cross-exam. earlier? (grand jury/depo)almost fits a hearsay (18) Learned Treatises. Can be read into evidence,
exception,
(4) Does emergencybut not quite. Some
doctrine apply?cts dont
(911 allow in under
calls) but not admitted.
Impeaching D as witness: See Impeachment.
these circumstances. (19) Family/Personal Reputation. Re fact re family
HST (divorce, legitimacy, ancestry).
FRE 802: Hearsay generally not admissible. (20) Boundaries/Local HST Reputation. Land
(6) Is Declarant Unavailable? Try Hearsay Exceptions dispute or local custom.
FRE 804. (21) Reputation of Character. Allows Char. Evid.
LAST STEP 403 Balancing? (22) Final Judgmts for Prior Convictions. Except:
Examples ofstate
UnfaircanPrejudice . for impeachmt.
only use this
(23) Final Judgmts for Other Cases. If could be
proved by evidence of reputation.
FRE 805: Hearsay Within Hearsay. Must find
FRE 804: Hearsay Exceptions: Declarant Unavailable. exception for each part, or only admit excepted part.
(1) Unavailable = exempt from testifying by a privilege, (e.g., newspaper article written by reporter re fire at
refuses to testify despite court order, lacks memory of courthouse: article admissible under ancient docs
subject matter, unable to be present b/c of illness, dead, or exception, but not clear the reporter was eyewitness)
absent w/o excuse, but proponent has not been able to
serve D by process or other reasonable means. FRE 806: Attacking & Bolstering Witness
(2) FRE 804(b)(6): If witness unavailable by wrongdoing, Credibility. Can only bolster after has been attacked.
does not count as unavailable.
(3) FRE 804(b): Additional Exceptions if Declarant
Unavailable:
(1) Witness Former testimony. If was offered in court
against current party or predecessor in interest, and
had chance to cross-examine.
(2) Dying Declarations. In any civil action, or in criminal
homicide cases only. Must have believed death
imminent.
(3) Witness Prior Statement Against Interest. Would
6
expose declarant to civil or criminal liability; no
reasonable person would say it unless they thought
truth. Except: statmts exposing declarant to criminal
(4) Statemt of Family HST. Statemts ~ ones birth,
adoption, legitimacy, relationship by blood.
EVIDENCE CHECKLISTS - ZWIER SPRING 2009

Make sure you include RELEVANCE analysis before you do this part!
(1) FRE 403: Risk of Unfair Prejudice? Relevant
Evidence of previous criminal acts.
evidence may be excluded if its probative value is
U.S. v. James Daughter took moms gun & killed
substantially outweighed by:
moms boyfriend judge did not admit docs
- the danger of unfair prejudice,
confirming BFs boasts re his past violence. Pled self-
- confusion of the issues, or defense. Held: Admissible b/c mom & daughter didnt
- misleading the jury, or know of existence of docs, so docs could not have
- by considerations of undue delay, factored into their assessmt of whether BF was violent.
- waste of time, or (Zwier thinks wrongly decideddocs were overly
- needless presentation of cumulative evidence. prejudicial.)

(2) Is There Other Evidence With Probative Value, Inflammatory photos.


But Less Prejudicial? (e.g., Stipulation) State v. Bocharski jury gets graphic photos of woman
- Court can require stipulation sua sponte, or D can stabbed in head in her trailer. Held: Admissible, jury
offer it. Can state offer? no reaction to photos, so not reversible error.
- Must be weighed against narrative integrity. Computer-Generated Animations (CGAs).
Commonwealth v. Serge Former cop shot wife, then
Stipulations to Avoid Unfair Prejudice. moved body to better claim self-defense. Challenged
U.S. v. Jackson Bank robber was in GA using an alias crime scene reconstructionists 15 sec CGA as overly
shortly after robbery. Held: Ct required stipulation re prejudicial b/c he couldnt afford to make one & as too
use of alias & Ds rapid relocation to avoid prejudice good. Held: Admissible, wealth may be a factor for
& avoid giving D the advantage of exclusion. judge, but where limiting instruction given & not
inflammatory sound/visual, its in.
Old Chief v. U.S. Ex-felon charged w/firearm
possession in violation of federal statute. Wanted to Evidence of Flight.
stipulate he was in class of felons who shouldnt have U.S. v. Myers Guy fled FBI in shopping mall. General
gun, DA refused stipulation, admitted evidence of rule: when flight occurs close in time to crime
prior conviction. Jury found guilty. Held: Stipulation evidence of guilty mind. Held: Inadmissible. Must
should have been used. When weighing probative establish 4 inferences to show guilt: (1) from Ds
value, ct can consider evidentiary alternatives. DAs behavior flight; (2) from flight consciousness of
refusal to stipulate was wrong b/c even though State guilt; (3) from consciousness of guilt consciousness
has right to try its case in its own way, if stipulation is of guilt for crime charged; (4) from consciousness of
offered & will complete elements, it should be used. guilt of crime charged actual guilt of crime charged.
Also, held: leaving state 3-6 weeks later too long after
crime to be used as evidence of flight.
Examples of OK Stipulations:
- cropping photos Probability Evidence.
- redacted documents People v. Collins Interracial couple in purse-
- forcing people to limit their testimony to exclude snatching; Ds indicted b/c so few couples like them in
certain titles the area. Held: Inadmissible b/c experts testimony
- forcing witnesses to change their title lacked foundation (probability analysis requires that
(investigator hired by D instead of insurance co.) each variable be mutually-exclusive & independent)
Usually do this in motion in limine. and math distracted jury, BUT remember DNA
evidence is still used & this is also based on
(3) Will A Limiting Instruction Help Mitigate the probability. Whether can use math turns on general
Prejudice? acceptance of math & soundness of #s.
FRE 105. If evidence is admissible for one party TO GET A NEW TRIAL, ASK:
(1) FRE 103. (a) Was a substantial right of the party
/purpose, but not for the other, judge can admit it
affected?, and (b) Did the party make a timely
for admissible purpose and provide jury with a objection or offer of proof at the time to preserve
limiting instruction. the objection? If no harmless error.
(2) Is this a criminal case or civil case?
a. If the criminal defendant is claiming error, did
he take the stand to testify? If no claim of
error waived. Luce v. U.S. (1984) in advisory
comments to FRE 103.
b. If judge admitted evidence of Ds prior
convictions, D objects, but then D offers the
information himself to remove the sting of
anticipated prejudicial effect circuit split re
whether objection preserved or waived.

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