Evidence Outline.docx

Even if excluded under 410 evidence could come in

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Even if excluded under 410, evidence could come in under 404(b) or 609. Liability Insurance 411. Liability Insurance o Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control. Witnesses o There are four questions to ask in regards to witnesses: (1) Who may testify? (2) What conditions may be met for a witness to testify? (3) How can the testimony be adduced? (4) How can the witness be attacked or supported? o Competency & Personal Knowledge Competency 601. Competency to Testify in General o Every person is competent to be a witness unless these rules provide otherwise. But in a civil case, state law governs the witness’s competency regarding a claim or defense for which state law supplies the rule of decision. This rule gives broad competency to testify. There is one exception in the rule, which is civil cases. In that instance, state law governs. o For example, dead man’s statute, which is a statute that generally prevents a claimant to an estate from testifying about the decedent’s estate or the incompetent’s representative is an adverse party. Requirements for Capacity o Capacity for sincerity/oath The witness has to agree to tell the truth, not just that he/she understands the rules. Page 20 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar o Mental capacity to perceive o Capacity for memory o Narrative ability A witness being disabled, a drug addict or alcoholic or a child is not a per se ground for disqualification, unless it can be shown that they don’t meet one of the requirements for capacity. Personal Knowledge 602. Need for Personal Knowledge o A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may consist of the witness’s own testimony. This rule does not apply to a witness’s expert testimony under Rule 703. Oath or Affirmation 603. Oath or Affirmation to Testify Truthfully o Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witness’s conscience. Interpreters 604. Interpreter o An interpreter must be qualified and must give an oath or affirmation to make a true translation. Hypnosis Four Approaches o Majority: Per se inadmissible State v. Moore : Young sexual assault victim underwent hypnosis to remember details of the location. The court would not let it in.
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