Federal Rules of Evidence
Which Federal Rule of Evidence admits evidence if it makes a fact more or less probable than it would be without the evidence?
FRE 401- Relevancy
"If it doesn't fit, you must acquit."
Johnnie Cochran
The People v. O.J. Simpson, 1995
Lawyer asks a friendly witness, "The light was green when you approached the intersection, correct?"
Leading
Solution: Open-ended questions and active listening
Name two exceptions to the hearsay rule.
The three most popular under Rule 803:
(1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it.
(2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused.
(3) Then-Existing Mental, Emotional, or Physical Condition. Self-explanatory.
Hearsay can be admitted if you argue that it does not go to the _________.
Hint: TOMA
Truth of the Matter Asserted
What rule excludes evidence if its objective value is substantially outweighed by the danger of jurors having an emotional response to it?
FRE 403 - Unfair Prejudice
“The rules of hair care are simple and finite. Any Cosmo girl would have known.”
Elle Woods
Legally Blonde, 2001
Lawyer asks on cross examination, “Isn’t it true you visit the Looney Bar every Wednesday, and you were there until 2am that night?”
Compound Question
Solution: One fact at a time!
How are impeachment and refreshing a witness' recollection fundamentally different?
Impeachment - Catching a witness in an inconsistency or lie
Refreshing recollection - Using a material to help a witness remember something
Name the two "T's" that anchor your entire case.
THEME - A short, memorable phrase that encapsulates your theory and echoes throughout your case
THEORY - Your narrative of events in the case
True/False. Evidence has to pass the relevancy test before being evaluated for creating unfair prejudice.
True
"But there is one way in this country in which all men are created equal—there is one human institution that makes a pauper the equal of a Rockefeller, the stupid man the equal of an Einstein, and the ignorant man the equal of any college president. That institution, gentlemen, is a court."
Atticus Finch
To Kill A Mockingbird, 1960
Lawyer asks, "Please tell us about your day on January 9th, 2024."
Vague
Solution: Get specific (ex: "What time did you wake up?" "What was the first thing you did after eating breakfast?")
What is the two-part relevance test?
Evidence is relevant if:
(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and
(b) the fact is of consequence in determining the action.
Name the three "R's" for authenticating an exhibit.
REAL - Do you recognize it?
RELIABLE - How do you recognize it?
RELEVANT - What is its relationship to this case?
True/False. A piece of evidence will not be admitted if it has a low degree of weight.
False
Weight is distinct from admissibility.
"A very beautiful honey blonde...looked into the eyes of the man who the evidence shows just four and a half months later would order her tragic and violent death."
Hint: The blonde was an actress and model
Vincent Bugliosi
State of CA vs. Charles Manson, 1971
Lawyer asks, “What do you think Veronica’s intentions were?”
Speculation
Solution: Stick to the witness' rationally-based perception. Don't ask your witness to think for others!
What are the two methods of proving character?
(a) By Reputation or Opinion.
When evidence of a person’s character or character trait is admissible, it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the person’s conduct.
(b) By Specific Instances of Conduct.
When a person’s character or character trait is an essential element of a charge, claim, or defense, the character or trait may also be proved by relevant specific instances of the person’s conduct.
What is the purpose of a "MIL"?
Hint: not your mother-in-law
Motion in Limine
A motion, discussed outside the presence of the jury, to request that certain evidence be included or excluded.
True/False. If a piece of evidence is admissible because of one rule, it cannot be excluded because of any other rule.
False
Ex: evidence may be relevant, and also inadmissible because it is hearsay.
"Circumstantial evidence has... been likened to a chain. These facts, which have to be proven in order to allow you to draw the inference as to her guilt or innocence, have been called links in the chain, and... every essential fact in that chain must be proved beyond a reasonable doubt--every one of them."
Hint: Year is 1893
A.J. Jennings
The People v. Lizzie Borden, 1893
Lawyer asks a witness to testify about the contents of surveillance footage, without entering the footage itself into evidence.
The footage is accessible to the lawyer.
Best Evidence (aka Requirement of the Original)
Solution: If you can show instead of telling, do that.
Name three of the four prongs for qualifying an expert witness under FRE 702.
(a) the expert’s specialized knowledge will help the trier of fact;
(b) sufficient facts or data;
(c) reliable principles and methods;
(d) reliable application of the principles and methods to the facts of the case.
Name the four "C's" for impeachment.
CONFIRM - You're saying that your testimony is X?
CREDIT - X is confirmed in this document?
CONFRONT - Here is the document. It says the opposite of X (or does not mention X at all)?
CLOSING - Mention your kickass impeachment in your closing argument so the jury remembers it!