Wendy's Evidence Outline - Whitlock

Wendy's Evidence Outline - Whitlock - WENDYS EVIDENCE...

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WENDY’S EVIDENCE OUTLINE (Whitlock) page 1 of 8 WHAT IS THE EVIDENCE ? WHAT IS IT OFFERED TO PROVE ? IS IT RELEVANT FOR THAT PURPOSE ? HOW DOES THIS GO TO THE ULTIMATE ISSUE ? IF THE FACT IS IN DISPUTE , DISCUSS PRELIMINARY FACT DETERMINATION ESTABLISHED BY PREPONDERANCE OF THE EVIDENCE ALWAYS USED WHEN : HEARSAY , IMPEACHMENT , PRIVILEGE , AUTHENTICATION / BER , COMPETENCY , EXPERT OPINION IS IT INADMISSIBLE ? PROBATIVE V . PREJUDICIAL HEARSAY IS IT TRUSTWORTHY ? CHECK SPAM IF ADMISSIBLE , DISCUSS LIMITING INSTRUCTIONS -- PARTICULARLY FOR CHARACTER Hearsay/Privilege/Impeachment/Writings/Opinion/Competency → Preliminary Fact Determination (admissibility determined out of jury’s presence) Verbal statement → Hearsay Document → Hearsay/Authentication/BER Hearsay @ Criminal Trial Where Actual Declarant Not Speaking → 6th A/Crawford/Testimonial Impeachment → §352 Character questions → Limiting Instructions PROCEDURAL RULES OBJECTIONS RULINGS ON EVIDENCE - Reversal of a wrongful verdict based on the admission or exclusion of evidence IF §§353-354/103 A substantial right of the party is affected (miscarriage of justice - a standard of harm) If the evidence was included: a timely objection on record, which is specific if not apparent from the context; OR If the evidence was excluded: an offer of proof , if not apparent from the context. CA does not require offer of proof if the court has limited the issues, making the offer futile OR an objection is improperly sustained on cross-examination. EVIDENCE What is it OFFERED TO PROVE ? Is it RELEVANT ? Is it ADMISSIBLE ? ADMISSIBILITY IS COUNTERED BY ARGUING TSPAM: T RUSTWORTHINESS : S INCERITY , P ERCEPTION , A MBIGUITY , M EMORY EVIDENCE D IRECT E VIDENCE directly proves a fact, without an inference or presumption, and which in itself, if true, conclusively establishes that fact. CA : judges must closely examine scientific evidence. FED : judges have much more leeway RELEVANT EVIDENCE AND 403/352 All relevant evidence is admissible UNLESS excluded. Evidence is relevant if it tends to prove or disprove any (disputed) fact of consequence . §210/401 O LD C HIEF allows Δ to stipulate a fact to prevent admission of documentary evidence proving it. It’s used when the actual evidence is more prejudicial. C ONDITIONAL R ELEVANCE is evidence admitted pending further evidence offered later to support its relevance PROBABILITY P ROBATIVE V . P REJUDICE - Relevant evidence may be excluded if its probative value is substantially outweighed by: 403/§352 danger of unfair prejudice confusion of the issues misleading the jury undue consumption of time (this is implied in CA ) CHARACTER EVIDENCE Character evidence is inadmissible IF O2P a person’s conduct on a specified occasion, unless there is an exception ( POLICY : convictions should not be based on past acts). When there is an exception, character evidence may be proved by testimony as to reputation or opinion. §1100/405a
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This note was uploaded on 10/24/2010 for the course PR 123 taught by Professor Gramer during the Spring '06 term at Loyola Law School Los Angeles.

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Wendy's Evidence Outline - Whitlock - WENDYS EVIDENCE...

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