Relevance
What is the test for relevance?
Evidence is relevant if: a) it has any tendency to make a fact more or less probable than it would be without the evidence b) the fact is of consequence in determining the action.
What are the prohibited uses of of character evidence (cannot use character evidence for)
Evidence of a person's character of character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
When can a lay witness give opinion testimony?
(a) rationally based on the witness’s perception;
(b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue; and
(c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
What is hearsay?
“Hearsay” means a statement that:
(1) the declarant does not make while testifying at the current trial or hearing; and
(2) a party offers in evidence to prove the truth of the matter asserted in the statement
What are the elements of conspiracy?
(1) Defendant entered into an agreement with another person or persons to engage in conduct that constitutes a specific crime or an attempt or solicitation to commit that specific crime, and
(2) a party to the corrupt agreement took an overt act in furtherance of that agreement. An overt act is a volitional act.
What can you use Rule 403 for?
Unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.
What can you use Character Evidence for - in regards to the victim or defendant?
(A) A defendant may offer evidence of the defendant’s pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it.
(B) A defendant may offer evidence of an alleged victim’s pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendant’s same trait.
What is the test to qualify an expert?
(a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue;
(b) the testimony is based on sufficient facts or data;
(c) the testimony is the product of reliable principles and methods; and
(d) the expert has reliably applied the principles and methods to the facts of the case.
Give an example of a statement that is not hearsay?
(1) A Declarant-Witness’s Prior Statement. The declarant testifies and is subject to cross examination about a prior statement
(2) An Opposing Party’s Statement. The statement is offered against an opposing party
What is an inchoate offense?
A type of crime that is committed by taking a punishable step towards the commission of another specific crime
What is the standard for 403?
The court may exclude relevant evidence if its probative value is substantially outweighed by the prejudice
When can you admit crimes, wrongs, and other acts (character evidence)?
This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. The prosecution in a criminal case shall provide written notice of such intent prior to witness selection in the Captains’ Meeting
What is argumentative?
When the question is not seeking information, but rather it makes an argument - or seeks to have the witness agree with an inference or conclusion the lawyer is making
What are exceptions to hearsay?
(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. 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.
(6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if:
(A) the record was made at or near the time by – or from information transmitted by – someone with knowledge;
(B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit;
(C) making the record was a regular practice of that activity;
(D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and
(E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness.
(8) Public Records. A record or statement of a public office if:
(A) it sets out: (i) the office’s activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or (iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and
(B) neither the source of information nor other circumstances indicate lack of trustworthiness.
What are the elements of aggravated assault?
(1) Defendant caused or attempted to cause serious bodily harm to another person(s) purposefully, knowingly, or recklessly under circumstances manifesting extreme indifference to the value of human life or
(2) purposefully or knowingly caused or attempted to cause bodily injury to another person(s) with a deadly weapon.
What are the steps to impeach by omission?
2) Credit
3) Confront the omission
What methods can you use to prove 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 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 a good response to speculation?
Rationally based perception
What are the steps to admitting an exhibit?
1 - Show exhibit to opposing counsel
2 - show it to your witness
3 - ask what it is
4 - ask if it is a fair and accurate representation
What does Defendant need to show to succeed on duress?
(1) they had an actual fear of serious and immediate bodily injury or death to himself or others;
(2) they had no reasonable means to escape from the situation; and
(3) as a result, they were forced to participate in criminal activity. In asserting the affirmative defense of “duress,” the criminal defendant must prove all three aforementioned elements by a preponderance of the evidence to be acquitted. If the defendant actively takes part in a violent act, a rebuttable presumption is created that the defendant’s actions were voluntary.
What exhibits are pre-admitted?
Exhibits 1 (charity gala invitation)
Exhibit 2 (auction brochure)
Exhibits 3 (diagram of Miller Tower’s 40th floor)
Exhibit 4 (diagram of Miller Tower’s roof)
Exhibit 27 (medical report for Emory Sands) are preadmitted and may be published to the jury at any time after opening statements.
All HEARSAY objections to:
Exhibit 6 (receipt), as it is an exception to the hearsay rule pursuant to R.803(6). Also identification or authenticity of Exhibit 6; it is what it purports to be.
Exhibit 14 (PC Phone log)
Exhibit 15 (Raynes Phone log)
Exhibit 16 (Bidder 1050 Call log)
When is a criminal conviction admissible?
(1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence:
(A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant; and
(B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant; and
(2) for any crime regardless of the punishment, the evidence must be admitted if the court can determine that establishing the elements of the crime required proving – or the witness’s admitting – a dishonest act or false statement
What case law is important to know for experts?
Richards v. Mississippi BBQ
Tarot Readers Association v. Merrell Dow
Kane Software Co v. Mars Investigations
What are the steps to impeach by contradiction?
1) Confirm the statement
2) Credit the statement
3) Show affidavit to OC -
Is this your affidavit
Signature on the back
4) Re-confirm the statement
5) Confront them w/ the inconsistent statement
Grand Theft?
(1) stole or obtained possession by means of fraud
(2) any object(s) of cultural heritage from the care, custody, or control of a museum, legitimate auction house, charity organization, nonprofit organization, or similarly situated organization in lawful possession of such object(s) of cultural heritage.