Basics
Speculation
A witness delves into the mindset of another person.
Example:
"Tejal was angry."
This testimony speculates about what Tejal was feeling. This kind of testimony is wrong because the witness cannot definitively know what she was thinking.
How to avoid: base the testimony on rationally perceived events.
"Tejal was yelling, her fists were balled up, and her face was getting red. She seemed angry"
HOW TO OBJECT: "objection, your honor, speculation, may I be heard? [Witness] is delving into the mindset of [person]."
HOW TO DEFEND: "your honor, the witness is using their rationally based perception to tell us what they saw, they're not delving into the mindset of [person]."
State of Mind (exception)
Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarant’s
then-existing state of mind (such as motive, intent, or plan) or emotional, sensory, or physical
condition (such as mental feeling, pain, or bodily health), but not including a statement of memory
or belief to prove the fact remembered or believed unless it relates to the validity or terms of the
declarant’s will.
Relevance
401
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.
HOW TO DEFEND AGAINST RELEVANCE:
The bar for relevance in Midlands is extremely low. This evidence is relevant because... (take the opportunity)
HOW TO USE OBJECT:
Objection your honor, relevance, may I be heard? [Evidence/testimony just stated] does not make a fact in this case more or less likely because...
Lack of Foundation
A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness’s own testimony.
HOW TO OBJECT: "objection, your honor, lack of foundation, may I be heard?... [explain what they are missing/failed to mention]"
HOW TO DEFEND:
(1) "Your honor, I'm happy to lay some more foundation" then ask follow up questions to lay the foundation
(2) "The foundation has already been laid for this testimony. The witness stated [...]"
Excited Utterance (exception)
803.2 Excited Utterance. A statement relating to a startling event or condition, made while the
declarant was under the stress of excitement that it caused.
Lack of Personal Knowledge
701
Witnesses must rely ONLY on their rationally based perception. Things they perceive, hear, people they interact with, or things they were told.
Slightly different than speculation...
Hearsay
Hearsay is an out of court statement being used for the truth of the matter asserted.
Must be made by a declarant.
HOW TO OBJECT: "Objection your honor, hearsay." Sometimes the judge will ask you to explain. Just reiterate the definition of hearsay, and that's why it's inadmissible.
HOW TO DEFEND: either use an exception, or explain why you're NOT using it for the truth of the matter
Present Sense Impression (exception)
803.1
Present Sense Impression. A statement describing or explaining an event or condition, made
while or immediately after the declarant perceived it.
Scope
611b
Directs and crosses can talk about whatever they want. The crossing attorney can bring up new points that weren't in the direct if they want. However, on redirect examination, the attorney and witness can ONLY testify about what was talked about on cross.
The same goes for recross.
HOW TO OBJECT: "objection, outside the scope of cross-examination."
HOW TO RESPOND IF OBJECTED TO:
If you're wrong and it really is outside the scope, just move on and ask a different question
If they DID address it, or at least that topic on cross: "Your honor, opposing counsel opened the door to this topic on cross-examination. I'm simply clarifying the facts for the jury."
Improper Opinion
Witnesses cannot give any OPINIONS that are beyond the scope of their knowledge and expertise laid out in rule 701.
Party Opponent
NOT an exception 801d2.
Statements by party opponents are NOT hearsay and are therefore admissible.
More Prejudicial than Probative
The prejudicial value of evidence may not outweigh the probative value. Misleading the jury, confusing the issue, undue delay, needlessly cumulative, undue delay, or unfair prejudice.
HOW TO OBJECT: "objection your honor, 403" or "objection your honor, more prejudicial than probative, may I be heard? ... [explain]"
HOW TO DEFEND: "in order for evidence to be prohibited by rule 403, the prejudicial value of the evidence must SUBSTANTIALLY any probative value. However, this is not the case. [explain]"
Character Evidence (all wits)
608
(Mostly used for defendant and character witnesses)
You can attack a witness's credibility by showing that they are untruthful, or boost their credibility by showing that they are truthful. However, this can ONLY be done through reputation or opinion, NOT specific instances of conduct
(non-profit defendant example)
Effect on the Listener
NOT an exception.
If a witness hears something and, as a result, does an action because of that statement, the original statement is NOT hearsay. This is because in this case, we only care about what the statement caused the person to do or think, not what the truth of the matter of the actual statement was.
Example:
Pascale told Abinaya that she was going to take her out of her will. As a result, Abinaya then believed that she was going to be taken out of the will.
With effect on the listener, the EFFECT is that Abinaya now believes she is no longer in Pascale's will. The original statement from Pascale is NOT hearsay, because it is not being used for the truth of the matter, because it doesn't matter whether or not Pascale really did take Abinaya out of the will, it only matters that as a result of hearing that, Abinaya then BELIEVED that she was going to be taken out.
There's also physical effects, like cops furthering their investigation.
Character Evidence (defendant)
404 and 405 (most used for defendants)
Character evidence offered of the defendant must be pertinent to the charge. (ex. violence --> murder)
When character evidence is admissible, it can be proven by reputation, opinion, or relevant specific instances of conduct.