Evidence outline - EVIDENCE OUTLINE-FALL 2006(CLYMER I...

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EVIDENCE OUTLINE—FALL 2006 (CLYMER) I. Appellate Review of Evidentiary Findings a. Trial judge will typically not be overruled unless it was clear he did not understand the rule b. 103(a)—Substantial rights of opponent were affected c. 103(d)—When not properly preserved: plain error standard II. Relevance a. Materiality plus relevance—common sense b. Simple Relevance—104(a) i. Does the item tend to prove the matter sought to be proved? ii. Judge considers weight, sufficiency, credibility iii. Judge decides relevance c. Conditional Relevance—104(b) i. Judge applies sufficiency standard: is there sufficient evidence to permit a reasonable jury to conclude the fact 1. Test: Does it pass the 401 “any tendency” test? ii. Judge gives issue to jury III. Unfairly Prejudicial Evidence—403 a. Weighted toward admissibility i. Considerable discretion vested in trial judge b. Concern is unfair prejudice, not right prejudice c. Relevant evidence may be excluded if its probative value is substantially outweighed by the danger of: i. Unfair prejudice ii. Confusion of the issues iii. Misleading the jury iv. Considerations of undue delay, waste of time, or needless presentation of cumulative evidence d. Probative value i. How many links in inferential chain ii. Strength of inferential links iii. How important to the case is this piece of evidence e. Old Chief : Generally an abuse of discretion for judge to admit full record of prior judgment of conviction when D offers to stipulate to conviction on qualifying felony i. An “eventful narrative” cannot be excluded 1. This case determined between two abstract propositions, a stipulation vs. JNC ii. Just an issue of legal status, not part of criminal behavior IV. Hearsay a. Rationale: reliability of evidence i. Infirmities of eyewitness testimony 1. Ambiguity/faulty narration 2. Insincerity 3. Erroneous memory 4. Faulty perception - -1-
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ii. Protections of in-court testimonial witness 1. Oath 2. Personal presence at trial for jury to observe 3. Cross-examination b. Rationale of hearsay safeguards i. Deterrence ii. Notice iii. Corrective V. Non Hearsay a. Independent value beyond TOMA i. To prove that statement was made ii. To prove state of mind of declarant b. Verbal act i. Performative utterance: not hearsay, because merely commits a speaker to a course of action ii. Hearsay: describes, narrates, or otherwise conveys information and is judged by its truth value c. Implied assertions i. Nonverbal conduct considered a statement when intended to communicate ii. Common law: hearsay because only relevant as implying a statement; testimonial infirmities exist iii. FRE: Not hearsay because nonassertive; a man does not lie to himself; few testimonial infirmities ( Zenni ) d. Nonverbal conduct not intended to be assertion, to prove “declarant’s” belief about external events i. Common law: hearsay ii. FRE: not hearsay VI. Not Hearsay—801(d) a. Prior statement by a witness—801(d)(1) i. Prior inconsistent statement—801(d)(1)(A) 1. Admissible when prior statement was given under oath 2.
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