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Continuing Legal Education notes (Trial Evidence)

by merlin on September 19th, 2014
  • Sumo

Trial Evidence CLE

September 19, 2014 – State Bar HQ


Georgia has adopted an Evidence Code based on the Federal Rules, so everything said here is directly applicable to the corresponding Georgia rule, though couched as FRE (Federal Rules of Evidence).


Thomas A. Mauet (University of Arizona) – Former US Attorney, Illinois State Attorney, private attorney


  1. Need to WIN in the trial Court (b/c appellate reversal on evidentiary grounds is EXCEEDINGLY rare)
  2. Move the mind of the judge
  3. FRE 103 objections

-Right objection

-Right reason

-Right time


His Three R’s


If so, is it RELIABLE (ex. Not hearsay)?

If so, is it RIGHT (did it then get transferred to factfinder correctly)?


General Relevance- FRE 401-403

  • Logical Rules (General relevance)
  • What’s in issue (pleadings and underlying substantive law)?
  • What’s it prove (“any tendency”; “more or less probable”)?
  • 403 balancing test (“substantially outweighs”):

(a) “unfair prejudice”;

(b) “confusion, repetition”

–           Case is Old Chief (1997) – can you prove it in a less inflammatory way?

“Prejudicial”, by itself, is probably the least persuasive term because it is OVERUSED.  Got to elaborate.


Special Relevance – FRE 404-415

  • Situations based on POLICY and POLITICS
  1. Character Traits (FRE 404-405) – The kind of person they are
  • Essential Element (405(b)) – says that every so often character is an essential element of the case
    • This arises in primarily CIVIL matters (ex. Custody disputes)
  • Circumstantial evidence of conduct (404(a))
    • This is a criminal case issue only – did they act consistently in that situation (using it only in criminal situations is a POLICY choice)
    • It is an issue that must be brought in by Defendant, and then rebutted by prosecution (the State can’t open that door)
    • How can they prove character, and whose character is involved by the proof?
    • Special exception – lets prosecution attack Defendant’s character if they open the door about the Victim’s character.
  1. Other Acts (FRE 404(b)) – Particular incident in past that meets the general relevance standards; inadmissible to show “in accordance with”, “propensity for” and “bad character”
    • Almost ALL appellate reversal happens from OVER-ADMISSION
    • We know that jurors put TOO MUCH WEIGHT on past events.
    • Use appellate court language – “propensity for” and “bad character”
    • It BECOMES probative if it can be used to prove onbe of the specific things actually in issue (ex. identity, plan, preparation, motive, opportunity, absence of mistake, or accident)
    • Argue the PROPER USE, and then also deny that you are offering it for the IMPROPER USE
    • Argue that NOT evidence of other crimes (once does not mean always); argue NOT evidence of a “continuing course of conduct”; argue that the two are NOT “inextricably intertwined” (See Huddleston, 1988, and Dowling, 1990)
  2. Habit (FRE 406) – Not the same as above
    • Gets confused with character often
    • Admissible if it can be shown to be a “routine practice”


Cross examination (405(a)) – “Have you heard…?”; “Did you know…?”

  • Can cross-examine a character witness with specific instances of inconsistent conduct (Michelson case – 1948)
  • Couldn’t use something the guy did 20 years ago to show his new action was the same.



Policy exclusions: FRE 407-415


  • FRE 407 (subsequent remedial measures)
    • Inadmissible to show fault (ex. ability to pay, etc.); admissible if probative of specific things actually in issue (ex. negligence and strict liability, product and design defects, warning and instruction defects, recalls [if governmental, then ADMISSIBLE; if private, NOT ADMISSIBLE], “state of the art”, and ownership or control)
  • FRE 409 (Medical expenses rule – Inadmissible to prove)
  • FRE 411 (INSURANCE; it could show agency, control, bias, and interest)
    • “Don’t worry; I’m insured”; might be admissible if it is then contested
  • FRE 408 (Offers of compromise or settlement offers); these are distinctly inadmissible.
  • FRE 410 (Plea offers)
    • Was settlement of negotiation intended?
    • What if it shows BIAS or INTEREST???


Sexual Assaults

FRE 412-415

  • Victim’s past behavior in sexual assaults (FRE 412)
  • Past acts with Defendant – admissible
  • Identity is uncertain – admissible
  • Defendant’s prior similar acts in sexual assaults (FRE 413) – ADMISSIBLE
  • Defendant’s prior similar acts in child molestation (FRE 414) – ADMISSIBLE
  • Civil cases (FRE 415) – This applies that rule (past sexual assault evidence is admissible in current cases) to civil cases (ex. employer sexual harassment)



FRE 501+State Law

In federal diversity cases, it is the forum jurisdiction privilege law that applies (even if it is STATE law, not federal)

  • Privileges are personal (They belong to who? That is the only person that can WAIVE them)
  • Termination rule that applies (what about when they terminate on the occurrence of a particular event?)
  • Domestic Relations cases (the marital privilege):

Right to bar a spouse from testifying VERSUS marital communications are privileged

Federal court (because of the Trammel decision in 1979), the testifying spouse is the holder of the privilege (most States say opposite)

Almost every jurisdiction says that the privilege terminates when the marriage terminates

Interspousal torts and joint crimes: Usually not privileged; DEAL WITH THIS UP FRONT; The interspousal communications privilege NEVER TERMINATES in most cases, and applies in every jurisdiction


  • Attorney-Client Privilege

Must be a communication specifically to deal with a LEGAL MATTER (also can only be between LAWYER/his agent and CLIENT)

Need to specifically contractually bring agents within the attorney-client privilege

  • Check Swidler & Berlin, 1998 – even death of client doesn’t terminate attorney-client privilege


FRE 502 (this is known as a “quick peek”, and there must be a WRITTEN AGREEMENT, and it needs to be incorporated by the judge into a written order – then it is binding on all third parties):

  • Attorney-Client AND work-product doctrines are affected
  • Limited subject-matter waiver
  • This covers INADVERTENT DISCLOSURES during Discovery
  • It addresses the effect of Federal Court Orders on waiver as to third parties


Doctor-Patient Privilege

Federal Courts have NEVER recognized a doctor-patient privilege; current thing is a LIMITED privilege only (Jaffe v. Redmon, 1996 – psychotherapist and patient have a privilege, definitely)

  • Most STATES have far broader rules (make sure of the particular privilege – communications, or records, or BOTH)
  • There is a MEDICAL RECORDS privacy rule (ex. HIPAA and State parallels)
  • Waiver and nonapplicability apply (put injury in issue and the records and communications become directly relevant)


  1. Is it RELIABLE?

Hearsay (FRE 801(c) – dividing all things up into hearsay and non-hearsay, and there are EXCEPTIONS to inadmissible hearsay in 801(d), 803, & 804).


“Reliable” – First-hand knowledge (REQUIREMENT)



Definition of hearsay (FRE 801(c)):

  1. Is there a “statement” (FRE 801(a))?
  • It must be an assertion or assertive conduct
  1. Was the statement made “out of court”?
  2. Is the statement being “offered to prove the truth of the matter asserted”?
  • Versus whether it is being offered simply to prove that it was said!!!!



  1. The statement may have Independent Legal Significance
  • Defamation
  • Fraudulent Misrepresentation
  • Contract (existence and terms of one)
  • Gift (versus purchase, theft, etc.)
  • Consent (res ipsa loquitor)
  1. Impeachment with Prior Inconsistent Statement
    1. Notice (effect on the party to show knowledge);
    2. Fear/State of mind induced BY HEARING

(It has probative value BECAUSE IT WAS SAID)


Common Hearsay Exceptions:

  • 801(d) – Prior Statements


The 6th Amendment Confrontation Clause:

  • Crawford, 2004 (even if it is a hearsay objection, it still violates the 6th Amendment)
  • Davis and Hammon, 2006


  1. Statement by Party-Opponent (FRE 801(d)(2))

Rule is based on adversarial nature – if they said it, you can use it.

Don’t confuse this with the idea of a statement against party interest

  • Statement of an agent or a CO-CONSPIRATOR is admissible, BUT:
    • Must prove that person was employee, in scope of employment, or person was a co-conspirator (did conspiracy, with all legal requirements, exist), in furtherance of the conspiracy itself
    • Remember that SILENCE can qualify
  1. Prior consistent versus inconsistent statements (FRY 801(d)(1))
  • Consistent (it is hearsay, and irrelevant, unless it is a prior identification or a recent fabrication)
  • Inconsistent (Policy says it is NOT hearsay, and certainly relevant; used for impeachment and also for substantive purposes)
  1. Statements against interest (FRE 804(b)(3))
  • Witness is unavailable;
  • Statement is “SO FAR CONTRARY to pecuniary, proprietary, or penal self-interest;
  • When it was made (shows truth of statement against interest); OR
  • Statement sometimes admitted because it exculpates the accused
  1. Former testimony (FRE 804(b)(1)

Allowed when a witness is “unavailable” (or testifying contrary);

  • Is it fair to the opposing party? Were they present at the earlier hearing (and have an opportunity to examine witness then) – or, in civil cases, were they a “predecessor in interest”?
  • Are the issues in the proceedings the same?
  1. Spontaneous Statements (Present Sense Impressions under 803(1) versus Excited Utterances under 803(2))
  • Perceiving event or immediately thereafter, describing or explaining event


  • Under stress or excitement OR related to a startling event

Excited utterance rule = “Oh my God” rule; psychologists agree this is a stupid rule, but the law likes it still

  • Language under Excited Utterance exception includes RELATING TO startling event
  1. Present mental or physical condition (FRE 803(3))

Can be direct evidence OR circumstantial (proof of condition)

  • Also casts light on EMOTIONAL CONDITION

Present state of mind as proof of future conduct:

Used in execution, revocation, and alteration of terms of a WILL.

See Shepard, 1933, and Hillmon, 1892

Most federal Courts say Hillmon is no longer applicable (can’t use a statement of possible future intent to prove actions in conformity to the intention); most States permit that presumption

  1. Dying declarations (FRE 804(b)(2))
  • Witness is NECESSARILY unavailable
  • Used in both criminal cases involving homicide and also in civil cases
  • Declarant needs to believe their death is “imminent”
  • It concerns the cause or circumstances of their impending death
  1. Statements for diagnosis and treatment (FRE 803(4))
  • Is the statement about the patient?
  • Is it symptoms and medical history?
  • Does it help diagnosis or treatment?
  • Treating versus Non-Treating?
  • Is it a question of PURE FAULT? Those statements STAY OUT (make a motion to exclude such statements and then RAISE THE OBJECTION WHEN APPLICABLE)
  • Statement doesn’t just have to be BY the patient; can be ABOUT the patient

Distinguish this stuff from the stuff the victim might say to an EXPERT WITNESS.


  1. Records
  2. Business Records (FRE 803(6),(7))

Certification in FRE 902 (certain records, such as official records, newspapers, etc., are self-authenticating).  Conversely, FRE 901 – how to authenticate evidence to establish that it is what it purports to be

Must be:

“qualified witness”;


5-Step Foundation (check the booklet)

If it is admitted as a business record, not everything in it gets in:

  • Does making of record indicate a lack of trustworthiness?
  • What about DOUBLE-HEARSAY?
  • Expert opinions are subject to their own level of inquiry.
  • If it is a summary, be aware!

See Palmer v. Hoffman, 1943, and Johnson v. Lutz, NY, 1903.


  • Double Hearsay in business records:

Johnson v. Lutz – May be several folks making a report, at several different hierarchical levels, but there is ONLY ONE BUSINESS

  • However – what if some of the info was NOT from an employee? They wouldn’t have any presumed duty of accuracy.
  • Example – conclusory statements by a non-employee.

You would still have to show a FOUNDATION for these separate statements (“the business record exception does an end-run around expert witnesses”)

  • Simple test to ask the judge: would he let them do this LIVE?

Summaries:            FRE 1000(6) – NOT THE SAME as business record exception


Should do BOTH – foundation objection AND business record objection; should immediately provide NOTICE if improperly designated (as business record when it should be foundational, and vice-versa)


Present objections to evidence anticipated LATER in trial early on – get a ruling AHEAD OF TIME when you can.



  1. Is the witness competent to testify?


Rule 601 – Erie Doctrine: Forum jurisdiction competency rule applies in diversity jurisdiction cases.

Direct Examination

FRE 602 – Witness must have personal knowledge.

Can lead IF NECESSARY under FRE 607

FRE 612 is refreshing recollection; provides procedure to refresh, admissibility as an exhibit, and CAN BE USED ON CROSS.  That rule also covers when a writing is used to refresh BEFORE TESTIFYING (it’s in judge’s discretion to turn it over to the other side)


Impeachment with Prior Inconsistent Statements

  1. Impeachment must be MATERIAL (not insignificant);
  2. Ethically, must have a VALID FACTUAL BASIS TO SUGGEST THE IMPEACHING MATERIAL (be able to BACK IT UP with proof)
  3. Get them to ADMIT the inconsistency, as a final step to successful impeachment


If you can’t prove it, they might be able to successfully move for mistrial.


Prior Bad Acts (FRE 608) are kind of unimportant.


Cross Examination of a Deposition (No in-Court Witness)

  • FRE 806 is means: When testimony comes in by hearsay exception – out of Court declarant.
  • Can use any of the impeachment methods you would ordinarily be able to use.
    • TIP: Ask the judge to allow you to have another person read the answers from the deposition



FRE 901, 902, 803, 804


Chain of Custody:

  • Only has to be sufficient proof that “it is what it purports to be”


Remember: Visual Aids (don’t go back with the jury) versus DEMONSTRATIVE EVIDENCE

  • To make this admissible, must argue and CONVINCE THE JUDGE that it is the “right and fair thing to do”.


The “Best Evidence” Rule:

  1. Evidence was lost or destroyed in good faith;
  2. Other party won’t give it up; OR

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