Evidence Final

FRE 1001(e) duplicate

A "duplicate" means a counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

103(e) Taking Notice of Plain Error

A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. o Insinuates counsel hasn't done her job o If a miscarriage of justice would take place o Questioning the integrity of the judicial system o Ex. Someone else's DNA at the scene and did not let this in - "manifest injustice"

FRE 1003 ADMISSIBILITY OF DUPLICATES

A duplicate is admissible to the same extent as the original unless a genuine question is raised about the original's authenticity or the circumstances make it unfair to admit the duplicate.

NC Rule 601(b) is more specific

A person is disqualified to testify as a witness when the court determines that the person is (1) incapable of expressing himself or herself concerning the matter as to be understood, either directly or through interpretation by one who can understand him or her, or (2) incapable of understanding the duty of a witness to tell the truth.

Rule 602. Need for personal knowledge

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.

FRE 602 - A witness may testify only if... Exception?

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.] o Exception = we need expert testimony in most cases and, in a majority of these cases, the witness was not there. Without this exception we'd get rid of a lot of expert witnesses.

Rule 702. Testimony by expert witnesses

A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: (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.

Rule 1002 - the best evidence doctrine

An original writing, recording, or photograph is required in order to prove its content unless these rules or a federal statute provides otherwise.

What is that makes someone competent? Who may testify?

Anyone, so long as they're competent... Rule 601 specifies, "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."

FRE 603. Oath to testify truthfully

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. Why? ♣ This does not mean that the witness isn't going to lie, but witness can be charged with perjury if they do ♣ It's a basis for perjury prosecution. Don't have to prove that it did, just have to show method used was designed to demonstrate importance of telling the truth.

What happened?

Before trial, the defense counsel tried to suppress evidence because of the way it was attained because minor has a statutory right to a parent, guardian, etc. Defense says confession was obtained illegally; his juvenile rights were violated because detectives did not cease questioning him when he requested to call his aunt. Trial court denied defendant's motion to suppress because he has no legal guardian (aunt doesn't count). He was convicted and both parties appealed. On appeal, AG says that court of appeals shouldn't even address the question because the objection of error was not renewed at trial. N.C. Rules of Evidence provide, "Once the trial court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal." There is a direct conflict between this evidentiary rule and the North Carolina Rule of Appellate Procedure 10(b)(1), which this court has consistently interpreted to provide that a trial court's evidentiary ruling on a pretrial motion is not sufficient to preserve the issue of admissibility for appeal unless a defendant renews the objection during trial.

Rule 601. Competency to testify in general

Competency to testify in general = 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

State v. Oglesby facts?

Defendant was charged with first degree murder, first degree kidnapping, and attempted robbery with a firearm in connection with a fatal shooting. Later, he was charged with two counts of robbery with a dangerous weapon in connection with the robberies of two convenience stores. He pled guilty to the two charges of robbery with a dangerous weapon, but the trial court postponed sentencing on those convictions until after defendant's trial on the three remaining charges. On May 24, 2004, before defendant's trial, the trial court heard defendant's motion to suppress an incriminating statement he made to police during a custodial interrogation which occurred when he was sixteen. He contended that his juvenile rights were violated because detectives did not cease questioning him when he requested to call his aunt. After defendant's motion to suppress an incriminating statement he made to law enforcement officers was denied by the trial court, a jury convicted him of first-degree murder, first-degree kidnapping, and attempted robbery with a firearm. The Court of Appeals of North Carolina found no error in part and remanded the case in part for resentencing. Both parties appealed.

Estate of Redden facts?

Defendant, Barbara Redden, was married to decedent, Monroe Redden, who maintained various bank accounts at First Union, including Account 784 that was in his name only. In June 2000, decedent executed a POA in favor of defendant and in May 2001 he designated defendant as the payable-on-death beneficiary of the account. On 21 September 2001, defendant established a bank account in her name only - Account 801 - and used her POA to transfer $237K from Account 784 to Account 801. After decedent died, the administrator of his estate filed a complaint alleging that defendant had committed conversion, constructive fraud, and breach of fiduciary duty. Defendant indicated in her deposition that "he just instructed me to [open the account]." The incompetent testimony was not elicited by the estate or its own benefit, but offered by defendant against the estate, of her own volition.

Direct vs. secondary evidence?

Direct = video of kid stealing cookie Indirect = follow a trail of cookie crumbs to the jar, look at kid, he has cookie all over his face

U.S. v. Smith facts?

During a search of Smith's apartment, police recovered two loaded handguns and two shotguns. To prove the interstate nexus element of the felon-in-possession count, the government presented testimony of an ATF agent that the firearms recovered had been manufactured in states other than NC. At trial, the government sought to qualify the agent as an expert. He explained that he had examined the firearms, obtained the manufactures' names and serial numbers, and consulted published materials on the origins of firearms (which he had with him in the courtroom) and an ATF computerized database. He testified that, based on his training and experience, the guns were manufactured in Arizona and Connecticut.

FRE(d)-(f) timing, opportunity to be heard, instructing the jury

FRE 201(d) Timing = The court may take judicial notice at any stage in the proceeding. FRE 201(e) Opportunity to be heard = On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request is still entitled to be heard. FRE 201(f) Instructing the jury = In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the notice fact as conclusive.

Offer of proof

If a party claims that the court erroneously excluded evidence, the party must have made an "offer of proof." An offer of proof can take several forms but the goal is always to make a record of what the substance of the excluded evidence would have been. o An exception to the requirement of making a record is the doctrine of "plain error"—an appellate court will review the issue even if the party did not make a record for appeal. An error is "plain" if it is so obvious that a formal objection should not be necessary to alert the trial court to the problem.

Rule 701. Opinion testimony by lay witnesses

If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (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.

If it's pretrial and evidence has either been admitted over your objection...

If it's pretrial and evidence has either been admitted over your objection or otherwise, you must renew your objection during trial in NC! THE RULE ISN'T THE RULE, and Oglesby says so!

Where did Smith's counsel go wrong?

If we apply Rule 602, witness did not watch gun come off the conveyer belt. He did not have personal knowledge. Expert witnesses don't have to lay foundation for personal writing. But this guy was not qualified as an expert! Should have objected due to lack of personal knowledge!

FRE 103: Timeliness

If we wait too long, then we waive the objection. An objection is timely whenever the grounds first become apparent (usually after the question is made, before an answer is given). o "You can't rebag the cat." o A judge is likely to give deference to the state with respect to timeliness because of the Double Jeopardy Clause in the Constitution... The prosecution gets one shot and they're done.

IN RE WILL OF BAITSCHORA

In IN RE WILL OF BAITSCHORA, Purported testator's son's remarks at trial concerning oral communications with testator prior to testator's death, though unsolicited by counsel, waived protection of "dead man's statute" excluding certain witness testimony regarding that witness's oral communication with a deceased person, opening door for testator's nephew's rebuttal evidence from oral communication with testator, in son's caveat proceeding challenging testator's will leaving assets to nephew; waiver applied even if question propounded by counsel to his own witness did not specifically require witness to repeat oral communications with deceased. Rules of Evid., Rule 601(c), West's N.C.G.S.A. § 8C-1.

Ohio v. Clark facts?

In March 2010, Darius Clark (defendant) dropped off L.P., his three-year-old son, at preschool. L.P.'s teachers noticed that one of L.P.'s eyes was bloodshot, and uncovered more bruises on his body. The teachers asked L.P. who had done this to him. L.P. implicated that Clark was his abuser. Clark was indicted of several counts of child abuse by a grand jury. At trial, L.P.'s statements to his teachers were introduced into evidence. L.P. himself was barred from testifying under Ohio state law, which deemed him incompetent to testify.

What did the court determine in U.S. v. Smith?

In this case, the government never sought to prove the content of any writing or recording relating to the firearms or their places of manufacture. It sought only to prove the fact that the firearms were manufactured in states other than NC, where they were recovered during the search of Smith's apartment. The place of the firearms' manufacture was a fact existing independently of the content of any book, document, recording, or writing. Just because the ATF agent consulted books and computer databases in reaching his conclusion about the firearms' place of manufacture does not mean that his testimony was offered "to prove the content" of the books and computer files. Accordingly, FRE 1002 did not require submission of the books and computer files into evidence.

BEST EVIDENCE RULE FLOWCHART

Is the contested evidence a writing, recording, or photograph? 1001(1)-(2) If yes, is the evidence offered to prove the content of the writing, recording, or photograph? 1002 If yes, the party must follow one of these paths: o Produce original, defined by 1001(d) o Produce duplicate, defined by 1001(e), unless a question is raised about authenticity of the original or a duplicate would be unfair. 1002 o Prove one of exceptions defined by 1004, and offer best evidence o Prove contents by written statement, testimony, or deposition of opponent. 1007 o Provide a summary of contents are voluminous, while making originals or duplicates available for examination or copying. 1006 o Prove a public record according to 1005

What went wrong in the George Zimmerman case?

It's hard for jurors to disregard the things that made the biggest impressions on them! Had the prosecution been thinking ahead, thanks to the rules of evidence, that would have never happened.

"We haven't heard him say that he didn't do it!"

Kind of offensive to lawyers because it completely shifts the burden of proof!

North Carolina's Dead Man Statute

N.C. R. Evid. 601(c) DISQUALIFICATIONS OF INTERESTED PERSONS - upon the trial of an action, a party or a person interested in the event, shall not be examined as a witness in his or her own behalf or interest against the executor, administrator or survivor of a deceased person, or the guardian of an incompetent person concerning any oral communication between the witness and the deceased person.

Does evidence of a witness's atheism suggest she is not a credible witness? If so, is the evidence admissible to attack her credibility?

NO! Rule 610 = Religious beliefs or opinions. Evidence of a witness's religious beliefs or opinions is not admissible to attack or support the witness's credibility.

Personal injury action by P against D arising from the head-on collision after D's car crossed the center line. P claims this occurred because D was not paying attention. D claims her car suddenly ran through a deep puddle, causing her to lose control. D asks the court to take judicial notice that a large puddle often forms at the accident side. The judge is personally aware that this is true. Should the court take judicial notice?

No, the court should not take judicial notice. The court may take judicial notice on its own, but the fact is subject to reasonable dispute because it is not generally known within the trial court's territorial jurisdiction.

Michael Blue was charged with distributing narcotics. He sat in the courtroom unshackled, but the US Marshals used handcuffs and waist chains while transporting him to the courthouse. The Marshals attempted to avoid the jurors' view while Blue was wearing restraints. On the 2nd day of trial, a juror saw the Marshals escorting Blue in chains. Blue's lawyer moved for a mistrial, arguing the sight of Blue in chains prejudiced the juror. The judge held a hearing in his chambers on the lawyer's motion. Blue and the Marshals testified about the incident. Blue's lawyer then asks to call in the juror to question her about what she saw. The Prosecutor objects to the juror's competency as a witness.

OVERRULE THE OBJECTION because Rule 606 says "A juror may not testify as a witness before the other jurors at the trial..." But this was a hearing in the judge's chambers! So the fear of testimony in front of other jurors is not a concern. This is a good way for the judge to determine if there was some prejudicial outside influence.

Lauren is crossing Dawson St. leaving the law school when she suddenly hears screeching, the sound of a collision, and someone scream, "That red car just ran the light!" When she looks back, she sees a pedestrian unconscious in the crosswalk. At trial, the plaintiff calls Lauren. She testifies that she heard the screeching of tires, the sound of a collision, and that she saw the plaintiff unconscious on the ground. Defense counsel objects to lack of personal knowledge under FRE 602.

OVERRULE THE OBJECTION! She perceived, comprehended, recollects, and narrates in court.

Billy struck Bobby with a pool cue in a bar. Prosecutors bring assault charges against Billy. At trial, the bartender testifies that Billy swung the pool cue and struck Bobby in the side of the face. The prosecutor then asks, "What happened before Billy swung?" The bartender responds, "Bobby had just beaten Billy. Billy looked angry and mean; real mad like." Defense counsel objects to lack of personal knowledge under FRE 602 and moves to strike.

OVERRULE. He doesn't testify as to defendant's mental thoughts, he testifies regarding what defendant appeared to be. Defendant offered his perception, and that is appropriate.

Prosecution for theft of a briefcase and its contents owned by Victoria. The arresting officer testifies that when Defendant, Sam, was arrested he had a briefcase in his car. The defense objects under Rule 1002 on the ground the briefcase itself should have been offered. How should the court rule?

OVERRULE. Not a writing, recording, or photograph and not trying to prove its contents.

Plaintiff and Defendant entered into a contract for the sale of a riding lawn mower. D later refused to sell at the agreed price and P sues. The original contract has not been lost/destroyed. To prove the agreement, P offers an email the D sent to the D's sister wherein the D exclaims that he's "excited" that he "finally sold his old junker mower" by "agreeing to sell it to [plaintiff] for 1,500.00." Defendant objects to this testimony under the best evidence rule:

OVERRULE. This is a writing. For electronically stored information, "original" means any printout that accurately reflects the information. Trying to prove contents of contract. Email counts as a "written statement."

Although the original contract has not been lost or destroyed, at trial, the plaintiff in a breach K action testifies that he and the defendant agreed to the sale of a Jeep. He testifies the Defendant refused to pay. To prove the contract, Plaintiff offers a voicemail received from the defendant who called saying, "Look, I know the contract says I owe you $10K by Friday, but it ain't happening." Defense counsel objects under the best evidence rule:

Original has not been lost or destroyed. Rules apply to writings. Not deposition, testimony, or written statement. Thus, this would not suffice in proving up original contract if we have original. SUSTAIN THE OBJECTION. Many commentators have criticized that email would suffice because it's written and recording would not.

Holding and reasoning in Ohio v. Clark?

Out-of-court statements made to persons other than law-enforcement officers are not excluded from admission into evidence by the Confrontation Clause. The Sixth Amendment of the U.S. Constitution states that in a criminal trial, the defendant has the right to cross-examine witnesses who testify against the defendant. This is known as the Confrontation Clause. In order to determine whether a statement is subject to the Confrontation Clause, courts apply the primary-purpose test. If the primary purpose of the conversation eliciting the statement is to create a testimonial statement to substitute for trial testimony, the statement is within the scope of the Confrontation Clause. If the primary purpose of the conversation eliciting the statement is to respond to an ongoing emergency, the statement is not within the scope of the Confrontation Clause. Statements to non-law enforcement are much less likely to be considered testimonial. Here, L.P.'s teachers asked L.P. questions in order to figure out who was abusing him, which was an attempt to prevent him from being further abused. The teachers were resolving an ongoing emergency. Other factors showing that L.P.'s statement was not testimonial were the informal setting of the interrogation and L.P.'s young age. The primary purpose of the teachers' questions was to ensure that L.P. was out of harm's way, not to elicit testimony from him for a potential court proceeding. L.P.'s testimony is admissible because it is not testimonial and is therefore not subject to the Confrontation Clause.

The government has charged Vincent Bennett with importing marijuana. Police spotted Bennett's boat just north of the Mexican border, traveling along the California Coast. X-ray examination revealed more than 1500 pounds of MJ concealed in the hull. To prove Bennett imported the MJ from Mexico into the U.S., prosecutors offer the testimony of Customs Officer Malcolm Chandler. Chandler testifies he discovered a GPS device while searching Bennett's boat, and that it had a "backtrack" feature that revealed the boat's previous voyage. Chandler says he examined the backtrack feature and it showed that Bennett had navigated the boat from Mexican waters into the U.S. waters just before the boat was seized. Bennett objects under the BER.

Prosecutor says, "Judge, when we say track, we mean record!" U.S. v. Bennett = the 9th Circuit court found GPS display was writing OR recording, "a symbolic record of Bennett's voyage," and it therefore fell under best evidence rule. SUSTAIN.

Rae v. State facts?

Rae was tried before a jury on charges of second-degree criminal mischief, reckless driving, driving while license revoked (DWLR), and failure to stop at the direction of a police officer. During the presentation of the state's case, the prosecutor asked the court to take judicial notice of the fact that Rae's driver's license had been revoked at the time of the offenses alleged in this case. Rae did not object to the prosecutor's proposal. The state concedes that the court's instruction regarding judicial notice constitutes reversible error. On the criminal mischief charge the jury convicted Rae of the lesser-included offense of third-degree criminal mischief. Rae was convicted as charged on the other three counts. Rae also claims plain error in the trial court's taking of conclusive judicial notice of one of the elements of DWLR.

Substantial right affected

Reasonable probability that, if judge had made the correct ruling, the outcome of the case would have been different Things to consider: 1. Was the evidence erroneously admitted primary evidence that the ruling relied upon? 2. Was aggrieved party nonetheless able to present the substance of his claim? 3. The extent and usefulness of curative jury instructions. 4. The extent of jury argument on statement admitted in error. 5. Whether erroneous evidence was merely cumulative. 6. Whether other evidence is overwhelming.

Evidence theory

Relevant? >>> Reliable? >>> Right? >>> ADMISSIBLE.

What evidence is admissible?

Rule 402. All RELEVANT evidence is ADMISSIBLE, except as otherwise provided by the United States Constitution; a federal statute; these rules; or other rules prescribed by the Supreme Court. Irrelevant evidence is not admissible.

What are the rules of evidence designed for?

Rules of evidence are not designed to find truth. We want best approximation of truth for the time we have while weighing public policy options. We can't just put defense lawyer on the stand to ask if he did it...

Lauren is crossing Dawson street leaving the law school when she suddenly hears screeching, the sound of a collision, and someone scream, "That red car just ran the light!" When she looks back, she sees a pedestrian unconscious. At trial, she testifies that "the red car ran a red light and struck the pedestrian." She explains that she heard the screeching of tires, the sound of a collision, and that she saw the plaintiff unconscious on the ground. Defense counsel objects to lack of personal knowledge under FRE 602.

SUSTAIN THE OBJECTION! She did not see the red car run the light with her own eyes; she only heard someone scream, "That red car just ran the light!" She has personal knowledge of what was said, but she does not have personal knowledge of what she described...

Same case except the officer testifies that when Defendant was arrested he had a briefcase in his car and that in the briefcase was a business card with Victoria's name on it. The defense objects under Rule 1002. How should a court rule?

SUSTAIN. A business card is a writing. It demonstrates that the briefcase belongs to Victoria. Therefore, we need to prove its contents.

A collection of high profile former college football players sue EA Sports and the NCAA claiming the defendants illegally used the players' likeness in the popular video game "NCAA Football." The plaintiffs call a professional gamer to describe the video game, how it operates, and what the players look like in the game. Defendants object under the best evidence rule. How should the court rule?

SUSTAIN. A video game is really just a bunch of photographs put together. This witness is offering the contents of a video in his testimony. Therefore, the original is required.

Although the original contract has not been lost/destroyed, at trial, the plaintiff in a breach of contract action calls Quinten Clark as a witness. Clark is the defendant's neighbor. Clark was told by the defendant that he had entered into a contract wherein the defendant agreed he would sell the plaintiff a riding lawn mower for $1,500.00. Defendant objects to this testimony under the best evidence rule:

SUSTAIN. Original contract is a writing. It has not been lost or destroyed, but we are having defendant's neighbor come in to testify to prove the contents. Clark is testifying. Defendant was not testifying when he told his neighbor the contents of the contract. Clark's testimony is not an admissible substitute for the original contract when original is in existence.

At trial a Massachusetts state investigator testifies that he viewed the home security surveillance film of former New England Patriots tight end Aaron Hernandez's home and that it appears he was carrying a gun into his home 10-15 minutes after Odin Lloyd was shot to death. Defendant objects; the court should...?

SUSTAIN. We have video/photo, witness is testifying as to the contents thereof. Things aren't as clear cut when you see the photo as when you hear the testimony.

A three-year-old child says she saw the incident in question and promises to tell "what really happened and not make up something." She then gives a coherent description of the incident. Is the witness competent?

She appears to understand her obligation and gives a coherent description. Meets both federal and NCRE 601(b)! YES, regardless of jurisdictional basis.

Smith's objection?

Smith's attorney objected on the ground that it would violate FRE 1002—the vest evidence rule—because the ATF agent testimony was based on written reference materials and ATF computer databases, none of which were offered into evidence. The district court overruled the objection, the agent testified, and the jury convicted Smith on all counts. Smith argues that the materials relied on were writings or recordings under Rule 1001 and therefore the testimony plainly sought to prove the content of writings or recordings because the agent himself had no independent, first-hand knowledge of where the firearms were manufactured, in violation of Rule 1002.

So when do NC rules apply?

So NC rules of evidence apply with respect to evidence in a civil case (ONLY, doesn't pull other rules just because rule is borrowed here). As otherwise provided: ♣ Rule 605 = The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. ♣ Rule 606 (a) = Juror. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence.

Objection--speculation?

Speculation is a derivative of lack of personal knowledge. It's a way of saying "your honor, witness lacks personal knowledge and is therefore engaging in speculation." Experts can speculate.

"Tom Brady destroyed his cell phone with 10,000 text messages before meeting with Ted Wells"

Sure looks suspicious! Law looks disfavorably on spoliation of evidence, which can be used to show that evidence was unfavorable to the party responsible for spoliation.

Negligence action by P against D arising from an automobile collision. To prove D was driving intoxicated, P calls a police officer who testifies that she conducted a breathalyzer test on D five minutes after the collision, and that it revealed that D's BAC was .16 percent, twice the legal limit. The officer testifies that she calibrated the device earlier on the same day. After the jury renders a verdict for P, D moves for a new trial on the ground that P failed to demonstrate that a breathalyzer can measure BAC accurately. P asks the court to take judicial notice that a breathalyzer accurately measures the concentration of alcohol in the blood when properly calibrated. How should the court rule?

TAKE JUDICIAL NOTICE THAT PROPERLY CALIBRATED BREATHALYZER ACCURATELY DETERMINES BLOOD ALCOHOL LEVELS.

FRE 201(c) Taking notice = The court

The court o May take judicial notice on its own; or o Must take judicial notice if a party requests it and the court is supplied with the necessary information

Rae court's analysis? Error type?

The court erred in the taking of conclusive judicial notice of an element of a criminal charge. Defendant has the right to have guilt or innocence adjudicated—every element of the claim—by the jury. The constitution ensures right to trial by jury!

FRE 201(b) Kind of facts that may be judicially

The court may judicially notice a fact that is not subject to reasonable dispute because it o Is generally known within the trial court's territorial jurisdiction; or o Can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.

Rule 104(a) defines the court's role

The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. The question of competence is one for the court under 104(a). The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege.

Rule 605. Judge

The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue.

FRE 1007 TESTIMONY OR STATEMENT OF A PARTY TO PROVE CONTENT

The proponent may prove the content of a writing, recording, or photograph by the testimony, deposition, or written statement of the party against whom the evidence is offered. The proponent need not account for the original.

FRE 1005 COPIES OF PUBLIC RECORDS TO PROVE CONTENT

The proponent may use a copy to prove the content of an official record — or of a document that was recorded or filed in a public office as authorized by law — if these conditions are met: the record or document is otherwise admissible; and the copy is certified as correct in accordance with Rule 902(4) or is testified to be correct by a witness who has compared it with the original. If no such copy can be obtained by reasonable diligence, then the proponent may use other evidence to prove the content.

FRE 1006 SUMMARIES TO PROVE CONTENT

The proponent may use a summary, chart, or calculation to prove the content of voluminous writings, recordings, or photographs that cannot be conveniently examined in court. The proponent must make the originals or duplicates available for examination or copying, or both, by other parties at a reasonable time and place. And the court may order the proponent to produce them in court.

Purpose of the Dead Man's Statute? Holding?

The purpose of Dead Man's Statute is to exclude evidence of statements made by deceased persons, since those persons are not available to respond. NC Rules of Evidence, Rule 601(c). Witness testimony is incompetent pursuant to this rule if the witness is a party or is interested in the event; her testimony relates to an oral communication with the decedent; the testimony is against a personal representative of the decedent; or the witness is testifying in his own behalf. The statements made are precisely the types of statements the Dead Man's Statute seeks to disqualify as incompetent! The husband's alleged oral communications with wife were offered by wife in her deposition, not by estate, and therefore estate's prompt objections to, and motions to strike, evidence of those oral communications preserved protections of Dead Man's Statute.

Personal knowledge vs. hearsay?

The requirement of laying down a foundation for personal knowledge prevents hearsay. The question toward witness and her answer might not look like hearsay, even though she wasn't there and only heard what happened through the grapevine. In that case, "objection, your honor, personal knowledge" would be appropriate rather than "objection

What kind of an issue is this?

This is a separation of powers issue... Our intermediate appellate court has already held that Rules of Evidence 103(a)(2) is unconstitutional to the extent is conflicts with Rule of Appellate Procedure. A TRIAL COURT'S EVIDENTIARY RULING ON A PRETRIAL MOTION IS NOT SUFFICIENT TO PRESERVE THE ISSUE OF ADMISSIBILITY FOR APPEAL UNLESS A DEFENDANT RENEWS THE OBJECTION DURING TRIAL. The court determined that the statement need not be suppressed because defendant's aunt was not a "guardian" for purposes of the relevant statute. YOU MUST OBJECT DURING TRIAL TO PRESERVE THE ISSUE OF ADMISSIBILITY FOR APPEAL IN NC.

FRE 201(a) Scope

This rule governs judicial notice of an adjudicative fact only, not a legislative fact.

Same case. Plaintiff's attorney calls the plaintiff to testify and asks, "Who had the red light?" Before Plaintiff can answer Defendant's counsel objects on the ground of hearsay and the court sustains the objection. Plaintiff's counsel has no evidence other than Plaintiff's testimony to prove who had the red light, which is the crucial issue in the case. Assuming the trial court was wrong to sustain the objection, what must Plaintiff's counsel do to preserve the issue for appeal?

To preserve the issue for appeal, counsel must make an offer of proof.

Billy struck Bobby with a pool cue in a bar. Prosecutors charge Billy with assault. At trial, the bartender testifies that Billy swung a pool cue and struck Bobby in the side of the face. The prosecutor then asks, "Why did Billy take a swing at Bobby?" The bartender responds, "Well, it seemed like Billy just got flat mad that Bobby had beaten him." Defense counsel objects to lack of personal knowledge under FRE 602.

Under Rule 701, It is okay for a witness to offer an opinion that is rationally based on the witness's perception. Lay witnesses can testify regarding intoxication, speed of vehicle, etc. But the testimony must something witness perceived and helpful to the jury. SUSTAINED. No personal knowledge that Billy was mad.

Invoking the rules of evidence

We want to object NOW to stop it NOW before jury hears something they're not supposed to hear. It's up to the lawyer to object at the right time.

Rule 104(b) is a jury issue

When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. o Once we get past minimum competency, the jury makes a determination under 104(b): When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later.

A witness is an atheist and states she does not believe he will be punished by God if she lies. Is the witness competent?

Whether she believes God won't punish her if she doesn't tell the truth or not, she can still understand her obligation to tell the truth (can take oath or offer affirmation).

Prosecution of Defendant for perjury. Previously, Defendant had been a defense witness in the criminal trial of Jane. The prosecution alleges that Defendant lied when she testified that she and Jane were together in another state when the crime was committed. Prior to taking the stand in Jane's trial, Defendant had refused to take an "oath," claiming that she was an atheist. The court allowed her simply to state that she would testify "honestly." May Jane be tried for perjury?

YES. She made a promise to tell the truth or at least understands duty to do so - "affirmation" is sufficient.

Action for personal injuries suffered in a car accident. Plaintiff's attorney asks a witness, "What did Plaintiff tell the police when they arrived at the scene?" Defendant's counsel says, "objection!" The court overrules the objection. The witness then answers, "Plaintiff said Defendant ran the red light." Assume the testimony was inadmissible hearsay. On appeal, Defendant's counsel argues that admission of the testimony over her objection was error. How should the appellate court rule?

Yes, timely. Did not specify grounds for objection so not specific. Did ruling affect a substantial right of the defendant? Can't tell without knowing more about other proof admitted on that point because there may have been more evidence pointing to him.

Relevance conceptually?

o CONTEXTUAL = Therefore, if you think you know more about a pertinent fact after you hear the evidence than you knew before you heard it, the evidence is relevant. You cannot determine whether a certain item of evidence is relevant until you know the fact it was offered to prove. And that fact must be "of consequence" in determining the outcome of the case. o "ANY TENDENCY" = Evidence is relevant if it has ANY TENDENCY to increase or decrease the likelihood that a fact of consequence is true. o "OF CONSEQUENCE" = Whether the evidence is offered to prove "a fact that is of consequence in determining the action" is a question of what is sometimes called materiality. Facts are "of consequence in determining the action" if they are either necessary elements under the applicable substantive law or the facts from which a necessary element may be inferred. This means that to determine whether evidence is relevant, you have to know the substantive law applicable in the case. o Deductive reasoning o Direct evidence vs. circumstantial evidence o Relevance ≠ sufficient o Relevance ≠ admissibility o Relevance ≠ dependent on probativeness

More information?

o Case involves hearsay and the confrontation clause. LP identified Clark as his assaulter and state introduced his statement at trial. Court determined LP was not competent to testify so this would ordinarily be hearsay BUT Ohio Rule of Evidence 807 allows the admission of reliable hearsay by child abuse victim. o Clark moved to exclude testimony about LP's out of court statements under the Confrontation Clause. Trial Court denied his motion and jury convicted Clark on all but one court. Clark appealed.

Trial goals?

o Determining truth? "Truth" is often relative based on perception. o Achieving catharsis? Victims generally want vindication... o Civil resolution (money isn't perfect but it's certainly better than nothing and it's civil) o Trial lawyer goals? To pursue justice for their clients. Trial lawyers lose their souls when they begin trying to create something out of nothing. Those are LIES. Let the adversarial process work.

"original" exceptions

o Duplicates o Other evidence of contents ♣ Originals lost or destroyed ♣ Originals not obtainable ♣ Original in possession of opponent who does not produce it at trial or hearing ♣ Writing, recording, or photograph is not closely related to a controlling issue.

Why keep information away from juries?

o Fear of improper influence, misleading information, and mistrust... o Public policy and social interest concerns (parent-child, husband-wife, clergy, etc. privileges) o Promote accurate fact finding through sufficiently reliable evidence o Promote efficiency and eliminate unnecessary delays

Drunk Uncle is called to the witness stand by the prosecution to testify about the defendant's actions after the alleged robbery. Drunk Uncle was at home drinking on the couch when the defendant (his roommate) came home with blood on his shirt and acting paranoid. On the witness stand, Drunk Uncle is visibly intoxicated, rambling, sometimes slurring his words but otherwise says what he say when the defendant came home. Defense Counsel objects to competency.

o He just has to have minimal capability to describe what happened, he's not slurring his words to the point he can't be understood, etc. o He's capable of understanding the truth, he's minimally capable of stating what he observed, recalled, etc., and he meets the incredibly low standard

Why summaries?

o Juries don't want to go through hundreds and hundreds of pages of medical records o Volume of evidence need not be so voluminous it be literally impossible to examine, merely sufficient inconvenience!

Critical components of "personal knowledge"

o Perception (based on what she perceived with her own senses) o Comprehension o Recollection o Narration (ability to narrate)

It might be necessary to move to strike if

o Response is non-responsive, i.e., "how long have you lived in Raleigh?" "Raleigh is a neat place" o Lawyer asks fine question but response includes hearsay (sometimes question isn't objectionable but answer is)

Plaintiff Maria Young sued her boss for sexual harassment. At trial, she calls a co-worker, Ella, as a witness. Ella admits she did not overhear any harassing statements. However, she testifies that she frequently saw Maria crying at her desk after meetings with the boss. Defense counsel objects to lack of personal knowledge under FRE 602.

o Rule 401. Test for relevant evidence. Evidence is relevant if: ♣ It has any tendency to make a fact more or less probable that in would be without the evidence and ♣ The fact is of consequence in determining the action o OBJECTION OVERRULED. Circumstantial evidence tends to support plaintiff's claim and makes her contention more believable. She perceived all these things. If she began to testify as to why, however, that is objectionable.

Judicial notice examples?

o Two days before Thanksgiving was November 22nd o Could use life tables of the United States for a man living in this country that "the average American man lives to be 83"

What is evidence (and what is it not)?

o Unlike the Federal Rules of Evidence, the California Evidence Code does attempt to. Section 140 provides: "Evidence means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact." o The evidence rules do not treat as evidence facial expressions, body language, tone of voice, arguments, statements by the judge, or the like. The evidence rules are directed to the words spoken by witnesses and the tangible evidence shown to the fact-finder.

Judicial notice of adjudicative facts?

o What are adjudicative facts? Those are the things, the facts of a particular case, that are normally left to the jury to determine in reaching its conclusion. o What kind of facts are applicable? ♣ "not subject to reasonable dispute" because ¬ generally known within jurisdiction ¬ can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. o Court can take judicial notice on its own at any time. o Court MUST take judicial notice if party requests and court is provided with sufficient information.

Rule 1001 - Best evidence definitions?

o Writing = letters, words, numbers, or their equivalent set down in any form o Recording = letters, words, numbers, or their equivalent recorded in any manner o Photograph = a photographic image or its equivalent stored in any form o ORIGINAL? An "original" of a writing or recording means the writing or recording itself or any counterpart intended to have the same effect by the person who executed or issued it. For electronically stored information, "original" means any printout — or other output readable by sight — if it accurately reflects the information. An "original" of a photograph includes the negative or a print from it o DUPLICATE? A counterpart produced by a mechanical, photographic, chemical, electronic, or other equivalent process or technique that accurately reproduces the original.

Specific ground

"Objection" isn't sufficient. "Objection, relevance" isn't either. What is an appellate court supposed to do with that? Be specific of the grounds on which you exclude evidence! Courts of appeal are loathe to change a trial court's decision.

What does relevance mean?

"Pertinence to the matter at hand." Relevance is a term used to describe how pertinent, connected, or applicable some information is to a given manner.

Rule 606. Juror

(a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jury's presence. (b) During an Inquiry into the Validity of a Verdict or Indictment. (1) Prohibited Testimony or Other Evidence. During an inquiry into the validity of a verdict or indictment, a juror may not testify about any statement made or incident that occurred during the jury's deliberations; the effect of anything on that juror's or another juror's vote; or any juror's mental processes concerning the verdict or indictment. The court may not receive a juror's affidavit or evidence of a juror's statement on these matters. (2) Exceptions. A juror may testify about whether: (A) Extraneous prejudicial information was improperly brought to the jury's attention; (B) An outside influence was improperly brought to bear on any juror; or (C) A mistake was made in entering the verdict on the verdict form.

Rule 103. Rulings on evidence (a) Preserving a claim of error

(a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party and: (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; or (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context.

Rule 103. Rulings on evidence (b) Renewal?

(b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record — either before or at trial — a party need not renew an objection or offer of proof to preserve a claim of error for appeal.

Rule 103. Rulings on evidence (c) Court's statement about the ruling; directing an offer of proof

(c) Court's Statement About the Ruling; Directing an Offer of Proof. The court may make any statement about the character or form of the evidence, the objection made, and the ruling. The court may direct that an offer of proof be made in question-and-answer form.

Rule 103. Rulings on evidence (d) Preventing the jury from hearing inadmissible evidence

(d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means.

Rule 103. Rulings on evidence (e) Taking notice of plain error

(e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved.

FRE 1004 ADMISSIBILITY OF OTHER EVIDENCE OF CONTENT

(only applies when we're trying to prove the content of the things themselves) = An original is not required and other evidence of the content of a writing, recording, or photograph is admissible if: o All the originals are lost or destroyed, and not by the proponent acting in bad faith; o An original cannot be obtained by any available judicial process o The party against whom the original would be offered had control of the original; was at that time put on notice, by pleadings or otherwise, that the original would be a subject of proof at the trial or hearing; and fails to produce at the trial or hearing; or o The writing, recording, or photograph is not closely related to a controlling issue.

Dead Man incompetency is waived in the following scenarios (NC Rule 601(c))...?

1. The executor, administrator, survivor, guardian, or person so deriving title or interest is examined in his or her own behalf regarding the subject matter of the oral communication. 2. The testimony of the deceased or incompetent person is given in evidence concerning the same transaction or communication. 3. Evidence of the subject matter of the oral communication is offered by the executor, administrator, survivor, guardian or person so deriving title or interest.

Trial stages?

1. Voir dire (jury selection) 2. Empaneling and juror oath 3. Opening statements 4. Evidence offered by party with burden of proof 5. Opposing evidence (optional) 6. Rebuttal evidence (optional) 7. Closing argument 8. Jury charges 9. Deliberation and verdict 10. Post-trial motions

Under Federal Rules, what if someone is deemed competent but is in fact not?

1. Whether witness appreciates her obligation to tell the truth 2. Witness is minimally capable of observing, recalling, and communicating