Sheffer o perception memory and narration alcoholism

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Sheffer . o Perception, Memory, and Narration Alcoholism and Drug Abuse Alcoholism Page 24 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar o Evidence of alcoholism usually does not come in because it does not affect perception or memory. o It could come in if the witness was drunk on the day in question. o Alcoholism has no bearing on a person’s veracity. Drug Abuse o Evidence of drug abuse usually does not come in for the same reasons as alcoholism, but courts are more likely to let it in. o Several theories of admissibility: 404(b): Illegal activity 403: Altered ability to perceive or high on the day in question Impeachment by Prior Inconsistent Statements o 613. Witness’s Prior Statement (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witness’s prior statement, a party need not show it or disclose its contents to the witness. But the party must, on request, show it or disclose its contents to an adverse party’s attorney. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or if justice so requires. This subdivision (b) does not apply to an opposing party’s statement under Rule 801(d)(2). o Inconsistent means a statement that tends to undermine the credibility of the witness because it is inconsistent with the statement made by the witness. o Miranda and Silence as Inconsistency If Miranda warnings have been given, silence cannot come in as an inconsistent statement because there would be a due process violation. There is an exception if the D has left a gap, but then fills that gap at trial. o Foundational Requirements None under 613. Page 25 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar Common Law (which Kentucky has retained): Must lay the foundation of time, place, occasion, and to whom the statement was made. o Extrinsic Evidence 613(b): Allowed as long as the witness has an opportunity to explain. o Collateral Fact Rule A collateral fact is one that is not material to the principal issue being tried in the case. An attorney may not use extrinsic evidence to impeach a witness on a matter collateral to the principal issues being tried. Test: Independent Relevance Could the fact have been offered in evidence for any purpose independent of the contradiction/impeachment? Impeachment by Contradiction o Different from prior inconsistent statement in that the source is not coming from the witness. o Extrinsic evidence is generally not allowed. o Should do a 402/401 analysis. Impeachment by Bias o Not covered in FRE. Should do a 401/402/403 analysis.
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