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FRE 103 - Rulings on Evidence - if objecting, cant just say objection; have to say objection, relevance - make offer of proof if objection overruled, or just make statement indicating that it will become relevant soon - but no objection necessary for plain error FRE 104 - Preliminary Questions - court decides whether something comes in w/o regard to other rules of evidence (except privilege) - need enough evidence to support a finding of a condition of a fact for relevance to be established - Normally, jury decide facts and judges decide issues of law. A. Questions of admissibility generally (determined by the ct.) B. Relevancy conditioned on fact C. Hearing of jury (admissibility of confessions, and when justice requires outside hearing of jury) D. Testimony by accused E. Weight and credibility (this rule does not limit weight and credibility evidence) determined by jury Notes on FRE/HRE 104(a): where admissibility of evidence depends upon a factual finding, judges make the factual determination under theory that it is too hard for juries to erase from their mind the tainted statement. Thus, under this rule, preliminary questions of fact as conditions precedent to admissibility, existence of privilege or competency are decided solely by the Judge who uses a preponderance standard: has proponent shown by preponderance that there is sufficient evidence that W was competent. Qualification of a person to be a W is matter for ct., personal knowledge is a mixed question for judge and jury under 104(b). Notes on 104(c) Hearings on admissibility of confessions shall be conducted outside the hearing of jury! When the decision against admissibility would allow the jury to hear prejudicial evidence, the hearing should be outside the presence of the jury. Cts have discretion in other cases. FRE 105 - Limited Admissibility - e.g., certain evidence can be split to apply to only one + not another H/FRE 1101 Applicability Of Rules, does NOT apply to: - Grand Jury, Sentencing, issuance of warrants, bail hearings, extradition proceedings, prelim hearings, questioning under Rule 104, Conflicting Civil Rule APPLIES TO: Civil Actions, Criminal proceedings, contempt actions (except summary type), privileges at all stages. HRE 1102 (no FRE counterpart) Ct. shall instruct the jury regarding law applicable to the facts of the case, but shall not comment upon the evidence. It shall also inform the jury that they are the exclusive judges of all questions of fact and the credibility of Wes. Order of Examination of Wes: 1. Direct examination (may not use leading questions) 2. Cross examinat ion (leading questions permitted) 3. Re-direct (limited to rebutting points made on cross examination) 4. Re-cross (limited to rebutting the effect of re-direct) HARROWing Basic Approach/Checklist for Introduction of Evidence H Hearsay (R 800s) A Authentication (R (900s) R Relevance (R 401) logically R Relevance (R 403) legally OW Original Writings (Best Evidence Rule) (R 1000s)
RELEVANCE
All Relevant evidence is admissible. 401, 402. Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. 401. Relevant Evidence may be excluded if its probative value is substantially outweighed by danger of unfair prejudice, has a tendency to confuse the issues, mislead the jury, is a waste of time, unduly delay trial, or is a needless presentation of cumulative evidence. 403. This is discretionary but favors admissibility.
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COMPETENCE
Modern approach is to let everyone testify, and Wes are presumed competent (can still impeach his/her credibility but not prevent from testifying). H/FRE 601. Nobody is too young or too old. Felons cant serve as jurors but they can testify. Insane persons can be qualified. When serious questions are raised about mental capacity (sanity or comprehension), cts MAY allow the matter to be explored on voir dire, outside jurys presence. Drug or alcohol use at time of observation is allowed to impeach, and if on it at time of testimony, it will be delayed. (under fed approach, intoxicated and under the influence of drugs too) will not be prevented from testifying if judge is convinced that he/she has relevant first hand knowledge and understands obligation to tell the truth. (insanity and youth can be used to impeach credibility if there was evidence that the defect impaired the accuracy of the observation, recall, or narration) Competency of a W shall be determined in accordance with State law Persons w/ an interest in the outcome of the case can be used to impeach credibility, but cannot be used to prevent him from testifying entirely Mental deficiency (e.g. retardation or insanity) or immaturity will affect only the weight to be given to the testimony, not its admissibility. HRE/FRE RULE 606 DIFFERENCES juror CANNOT testify in trial where she is sitting as a juror; upon inquiry into validity of verdict. Jurors MAY report learning about media reports or visiting scene, outside influence include threats or bribery attempts. Jurors MAY testify that another juror lied or provided misinformation during voir dire. In HI, challenge on juror misconduct is okay. Communications between judge and jury okay. HRE 606 juror MAY NOT testify concerning the effect of anything upon the jurors or any other jurors mind or emotions or concerning the jurors mental processes. FRE 606 juror MAY NOT testify as to any matter or statement occurring during the course of the jurys deliberations or to the effect of anything upon that or any other jurors mind or emotions, EXCEPT that a juror MAY testify on the question whether extraneous prejudicial information was improperly brought to the jurys attention or whether any outside influence was improperly brought to bear upon any juror. I. Two grounds for finding a W incompetent are: A. FRE 602 Lack of personal knowledge of the matter (exception, expert testimony under Rule 703) Just say he saw it (doesnt need to be believable) Pretty low standard B. FRE 603 - W will not solemnly promise to tell the truth by oath or affirmation
II. Hypnosis and Truth Serum: A. most cts reject statements made under hypnosis (live testimony refreshed through hypnosis is split) (judges worry about unreliability, confabulation, suggestion) B. W can testify to recollections she had prior to the hypnotic session C. hypnosis may generate leads that an investigator can follow up on D. but a who has been hypnotized is allowed to testify in his own defense
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I. Direct Examination A. Direct examination when lawyer calls W there are two ways to question a W: a. Ask specific questions about the facts (+ exerts tight control over W, - suggest leading) b. Ask general questions eliciting a narrative from the W (+ no danger of being led, - W may blurt out inadmissible evidence [ct rem is to order inadmissible portion of testimony stricken and explain to W what kinds of statements he should not make]) B. Examiner may not ask leading questions on direct, EXCEPT: 1. Unfriendly / hostile W (biased to opposing party, relative, demeanor, deliberately uncooperative) 2. Preliminary matters (matters not really in dispute) 3. Suggests a subject matter rather than the desired answer (introduces new topic) 4. Refresh memory of forgetful W (memory jogging questions) 5. W has handicap that makes it difficult for her to respond to non-leading questions (young, trouble speaking English, unintelligent, timid) II. Cross Examination (watch scope) A. Limits on the scope of cross-examination: 1. Scope of Direct Rule: Cross-examination limited to matters testified to on direct 2. Questions relevant to W credibility allowed on cross 3. Trial ct. has discretion to allow other questions on cross-examination (and also discretion to prohibit leading questions as to these new matters) 4. Same transaction or statement: cross-examiner may bring out facts that relate to the same transaction, conversation, or statement that was the subject of direct examination Minority wide open rule: allows cross-examiner to inquire about any subject relevant to issues in the entire case. Minority middle ground rule: allows cross examiner to ask about any subject so long as its not part of examiners own claims or affirmative defenses. III. Redirect and Recross A. Redirect after cross, party calling W can question him again on redirect 1. Redirect limited to aspects of W testimony that were first brought out during cross examination (giving W opportunity to explain facts or statements that came out on cross). 2. Trial judge has broad discretion as to what to allow on redirect (if direct examiner honestly overlooked some important issue on direct, trial judge may allow it on redirect)
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A. Authentication NOT Required for: (1) domestic public documents under seal, (2) domestic public documents not under seal, (3)foreign public documents, (4) certified copies of public records, (5) official publications, (6) newspapers and periodicals, (7) trade inscriptions and the like, (8) acknowledged documents, (9) commercial paper and related Documents, (10) presumptions under Acts of Congress, FRE 902 adds: (11) certified domestic records of regularly conducted activity, (12) certified foreign records of regularly conducted activity NOT Self Authenticating: Letterhead, monograms, affidavits, and other self-identifying statements (but may be admissible in context of the circumstances. E.g. letterhead bearing husbands monogram found among wifes papers) VI. Ways to Avoid Authenticity: process usually wastes a lot of time given how seldom a document is other than what it purports to be. Therefore, modern cts. Have developed several ways in which the proponent of evidence may avoid the need to authenticate it. 1. Request for admission: If unreasonably refuses to make the admission, a statute usually makes him liable for s expenses in proving authenticity. 2. Stipulation: parties may jointly stipulate to the genuineness of a particular document, object, or fact. III. HRE/FRE rules A. RULE 901 Requirement of Authentication/identification B. RULE 902 Self-Authentication C. RULE 903 SUBSCRIBING W TESTIMONY UNNECESSARY State v. Sequin, (photograph) the trial ct. excluded an aerial photograph of an area around a cockfighting pit taken 6 months later b/c the photograph did not fairly depict the area as it looked 6 months earlier. Apparently the W could not identify the cockfighting pit or the dirt pathway b/c of the overgrowth. Also important, was that the trial ct. had allowed another diagram of the area to be admitted. State v. Vance (Chain of custody) Rule is that a foundation must be laid connecting the exhibit with the and showing the continuous whereabouts of the exhibit from the time it came into the possession of the police until it was laboratory tested. After chemical analysis, however, the substance itself is not vital evidence. ... Therefore, proof of chain of custody of the substance during the period AFTER ANALYSIS until introduction into evidence at trial is NOT REQUIRED absent a specific allegation of tampering. Bruther v. General Electric (Chain of Custody) Held that any discrepancies in the chain of custody go to the weight of the evidence, not its admissibility. Consequently, it is the jury, and not the Ct., which must evaluate the significance of Plaintiff's inability to account for the bulb following the accident.... United States v. Casto (Chain of Custody) Any question as to the authenticity of the evidence is decided by the jury. Thus, a break in the chain of custody affects only the weight and not the admissibility of the evidence. United States v. Grant (Failure to establish Chain of Custody not fatal) The government's failure to establish a chain of custody from the moment the substance was seized to the time it was subjected to laboratory analysis makes this less likely, and thus casts some doubt on the admissibility of the chemist's testimony. However, Grant did not object to the chemist's testimony at trial and does not assert here that the testimony should have been excluded. Even if Grant had pursued this argument, we doubt it would be successful, given the broad discretion afforded district cts in making relevancy determinations. United States v. Simpson, (Writing Authentication) conviction for receiving child pornography on the ground that a computer printout of the alleged Internet chat room exchange between and an FBI agent should not have been admitted on the ground it was not authenticated by a showing it was in 's handwriting or voice. Evidence found (collectively) sufficient to maintain conviction: printout of the chat room discussion, the individual using the identity Stavron gave Detective Rehman his name as B. Simpson and his correct street address. The discussion and subsequent e-mail exchanges indicated an e-mail address which belonged to Simpson. And the pages found near the computer in Simpson's home and s own exibit contain a notation of the name, street address, e-mail address, and telephone number that FBI agent gave to the individual in the chat room. Based on this evidence, the exhibit was properly authenticated and admitted as evidence. State v. Konohia (Voice Authentication) was convicted of attempted manslaughter, criminal property damage and unauthorized entry into a motor vehicle. Held that: (1) recording of a 911 call made by V was admissible evidence, and (2) admission of the recording did not violate 's confrontation rights. Ct. found that there was sufficient evidence to authenticate the recording and
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II. Approach to the Best Evidence Rule A. Ask Does BER apply? B. Where Does W Know Facts From? 1. Only the document Valid B.E.R. Objection 2. Facts independent of the document NO B.E.R. Problem (see p.68(B)) C. A Way Of Looking at The Best Evidence Rule: 1) If the testimony is about a DOCUMENT 2) and its TERMS are in issue 3) the proponent must EITHER produce the ORIGINAL DOC writing, photo, movie, video, sound recording
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III. HRE/FRE Rules DIFFERENCE A. FRE RULE 1001 DEFINITIONS 1. Writings and recordings 2. Photographs 3. Original 4. Duplicate HRE RULE 1001 adds 5. 5. Public record. B. RULE 1002 REQUIREMENT OF ORIGINAL (if acceptable excuse for not producing original, secondary evidence is admissible) C. RULE 1003 ADMISSIBILITY OF DUPLICATES D. RULE 1004 ADMISSIBILITY OF OTHER EVIDENCE OF CONTENTS (originals not required, when:) 1. Originals lost or destroyed (unless in bad faith) 2. Original not obtainable (e.g. no jurisdiction) 3. Original in possession of opponent (put on notice and party does not produce) 4. Collateral matters (not closely related to a controlling issue) E. FRE RULE 1005 PUBLIC RECORDS (narrower than HRE) HRE RULE 1005 public record defined as any document in public custody F. RULE 1006 SUMMARIES (when records are VOLUMINOUS) G. RULE 1007 TESTIMONY OR WRITTEN ADMISSION OF PARTY H. RULE 1008 FUNCTIONS OF CT. AND JURY
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II. RULES A. RULE 607 WHO MAY IMPEACH (any party may attack credibility of W) B. HRE/FRE RULE 609 DIFFFERENCE Impeachment By Evidence Of Conviction Of Crime 1. HRE 609 ( wears Halo) a. General Rule When attacking credibility of a W, evidence that the W has been convicted of a crime is inadmissible, except when the crime is one involving dishonesty. In criminal case where takes the stand, shall not be questioned or evidence introduced as to whether the has been convicted of a crime, for the sole purpose of
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2.
III. Conviction involving dishonesty or false statement = crimen falsi : can be admitted even if only a misdemeanor. By contrast, non-crimen falsi can only be admitted it the judge conducts a balancing, and concludes that the convictions probative value outweights its prejudicial effect (where W is accused ) or substanitially outweighs its prejudicial effect (where W is not accused). A. Crimen Falsi - Involves misrepresentation, deceit, untruthfulness, or falsification bearing upon accuseds propensity to testify truthfully. E.g. embezzlement, perjury, submitting false tax returns, false statement, criminal fraud, taking property by false pretenses, counterfeiting, forgery (most cts say theft crimes like shoplifting, robbery, and receiving stolen goods are not crimen falsi) B. Most cts can look at underlying facts to determine whether a particular crime was a crimen falsi C. Must be admitted (as long as its not too old), w/o any balancing of probative value against prejudice D. 10 year limit applies, unless probative value substantially outweighs prejudice E. NOT crimen falsi (where dishonesty or false statement is NOT involved; no deception): murder, rape, assault and battery, drug offenses, prostitution, driving while intoxicated, resisting arrest, shoplifting, robbery, receiving stolen goods. IV. Other issues under FRE 609: A. Prior conviction can be introduced by: opposing lawyer asking W to admit the conviction during cross, or cross examiner may introduce certified copy of prior judgment B. Most cts disallow detailed descriptions of the underlying acts. C. Cts usually allow the impeached W to give short statement explaining circumstances of prior conviction. D. Conviction need not be from the same jurisdiction as the present case. E. Effect of Pardon: If pardon based on rehabilitation, conviction cant be used to impeach as long as W hasnt been convicted of a subsequent felony If pardon based on innocence, conviction can never be used to impeach
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II. FREs restrictions on use of prior bad acts for impeachment: A. May not be proved through extrinsic evidence (i.e., testimony by other Wes, documents); B. Only those prior bad acts that are probative of truthfulness or untruthfulness may be brought up only goes to untruthful acts C. Judge has discretion whether to allow prior bad acts that bear on truthfulness D. Cross examiner must have good faith basis for asking about the prior bad act E. Accused does not waive privilege against self incrimination w/respect to prior bad acts by taking the stand F. Questioner MAY NOT ask the W questions about the W prior arrests on cross. Arrests, as well as the filing of charges or indictments, ARE NOT proper subjects for impeachment G. Extrinsic evidence can be used for other purposes (to show bias, mental or sensory incapacity, or inconsistent statement), as long as its not used to show bad character for truthfulness III. RULE 608 EVIDENCE OF CHARACTER AND CONDUCT OF W (a) Opinion and reputation evidence of character (b) Specific instances of conduct - Any W may have his or credibility attacked by specific instances of conduct (fraud, falsehood, deceit that suggest that W is untruthful. The credibility of a W may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence MUST REFER ONLY to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the W for truthfulness has been attacked by opinion or reputation evidence or otherwise. Like a prior conviction, a Ws prior misconduct that has NOT led to a conviction MAY BE used to impeach a Ws credibility. 3 ways to show that a W has a untruthful character: prior conviction, testimony by a second W who gives opinion or reputation testimony that the principal W is untruthful (or truthful that a W has been impeached) and , by prior bad acts showing dishonesty. Cross Examination of Character W:
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IMPEACHMENT FOR BIAS HRE 609.1 (NO SPECIFIC FRE) I. Bias (interest, Motive) is NEVER collateral!!! A. Cts allow extrinsic proof that the W is biased. B. Types of bias: Friendly feeling (personal relationship, business relationship), Hostility, Self interest (W may have interest in the outcome), Membership in group, paid expert, plea agreement, etc.. C. Questioner must first ask W on cross (or extrinsic evidence not allowed) about the alleged bias; only if he denies it may the extrinsic evidence be used (you must first give opportunity to explain or deny) 1. If the W says no to the bias, you can bring in extrinsic evidence as long as on cross-examination, the matter is brought to the attention of the W AND the W is afforded an opportunity to explain or deny the matter. D. NO FRE but Federal judge has discretion to require that a foundation be laid before the extrinsic evidence is introduced (chance to deny or explain).
II. HAWAII RULE 609.1 EVIDENCE OF BIAS, INTEREST, OR MOTIVE (a) General rule credibility of W may be attacked by evidence of bias, interest, or motive (b) Extrinsic evidence of bias, interest, or motive not admissible unless on cross examination, the matter is brought to the W attention and the W is afforded an opportunity to explain or deny the matter Rationale (1) gives W a fair opportunity to explain statements which tend to show bias, (2) such cross lends expediency to trials, for if the facts showing bias are admitted by the W, the introduction of Extrinsic evidence becomes unnecessary. IMPEACHMENT BY SENSORY OR MENTAL DEFECTS (NO SPECIFIC RULES) I. A. B. C. D. E. W can be impeached by showing that his capacity to observe, remember, or narrate events correctly has been impaired. Ws sensory or Mental Defect is NEVER COLLATERAL and EXTRINSIC EVIDENCE IS ALLOWED. Sensory defect impaired ability to observe the events in question Mental defect - impaired ability to remember events or narrate them Drugs + alcohol W may be impeached by showing she was drunk/high at the time of the events she purported to W Psychiatric testimony this type of testimony to impeach is frowned upon Impeachment by sensory or mental defect can be proved by extrinsic evidence
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IMPEACHMENT BY PRIOR INCONSISTENT STATEMENTS HRE/FRE 613 HRE/ FRE 613 DIFFERENCE: HRE/FRE allows Examiner to impeach the W w/o having to show the W the document before the impeachment. HRE 613(b) Extrinsic evidence of PIS NOT admissible unless on direct or cross, a foundation is laid by: (1) statement brought to attention of W, and (2) W has been asked whether the W made the statement. (more efficient) HRE 613(c) (Rehabilitation) PCS only admitted after some attack on PIC, bias/motive, memory (NO FRE counterpart). - FRE says you can bring in the extrinsic evidence without laying a foundation, only requires that W be given an opportunity to explain or deny at any point in the trial. (advantage is that collusive Ws can be examined before disclosure of a joint PIS, Disadvantage is that W must be available ). I. Look for a W testifying on the stand who is making a statement that is inconsistent w/some prior statement made by that same . In general, the cross-examiner may impeach W by using the Prior Inconsistent Statements (PIS). A. Requirements: 1. MUST be inconsistent 2. With the testimony at trial B. Prior inconsistent statement NOT used for substantive purposesONLY for impeachment. C. GENERAL RULE: Evidence of prior inconsistent statement is admissible. D. Two limits on use of PIS for impeachment: (apply only where the W is not a party) 1. Foundation must be laid before the PIS may be introduced for impeachment (W must be given chance to deny or explain the inconsistency) 2. If the PIS involves ONLY a collateral matter, the statement MAY NOT be proven by extrinsic evidence. E. If the W is a party, PIS is substantively admissible as an admission. F. FEDERAL RULES allow foundation to be made either before or after the impeachment (time, place, and person to whom it was made). 1. So under FRE, attacking party can decline to mention any inconsistency while cross examining W, wait until W leaves the stand, and then put on extrinsic evidence of W PIS. BUT, if W becomes unavailable after testifying (and cant be recalled to explain or deny), the attacking party will lose the chance to use the extrinsic evidence. But trial judge has discretion to dispense with the chance to deny or explain requirement. G. In the case of a contradictory writing, the prior written statement need not be shown to the W before or during examination (unless opposing counsel requests it). H. If W admits to PIS, thats all cross-examiner needs. But if W denies having made earlier statement, examiner can prove the prior statement by extrinsic evidence (testimony of another W, prior writing).
II. Two limits on using extrinsic evidence: A. Inconsistency must be material B. Extrinsic proof not allowed if statement involves only collateral matter; statement must deal w/either: o Facts relevant to the issues in the case, or o Facts which are themselves provable by extrinsic evidence to discredit the W (such as bias) Intrinsic Extrinsic
PIS
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III. Judge can use 403 balancing (exclude evidence if confusing, prejudicial, or a waste of time) if she thinks the jury will use the PIS as substantive evidence as well as for impeachment.
IMPEACHMENT BY CONTRADICTION; THE COLLATERAL ISSUE RULE (NO SPECIFIC RULE) I. Impeachment of W by contradiction occurs where evidence offered that contradicts Ws testimony in the case. II. Four ways to impeach by contradiction: A. Attacking party may use cross to get W to concede that she was wrong in her direct testimony B. Attacking party may use other previously introduced testimony or physical evidence during cross to show that W has lied or is mistaken C. W has previously made statements inconsistent with W trial testimony (PIS) D. Introducing new evidence (testimony by second W or physical evidence such as a document) showing that W story is not correct. If prosecution has rested, and W introduces new evidence, prosecution is permitted to rebut W testimony by calling second W. III. Some impeachment evidence must be excluded, such as sexual history of rape V IV. Collateral issue Rule the rule against extrinsic evidence on collateral issue A. Material issue in the case B. If the extrinsic evidence could be used for impeachment even in the absence of contradiction, it may be used to show the contradiction C. FRE doesnt contain an explicit collateral issue rule, but the result is the same. D. Collateral issue rule applies to: Ban on showing that W has made PIS as to a collateral issue Ban on using extrinsic evidence to show prior bad acts by the W Direct contradiction of testimony E. Collateral issues include: Prior bad acts that did not lead to conviction PIS with trial testimony if the contradiction does not relate to a main issue in the case F. Issues that are NOT collateral: Prior criminal convictions Bad character for truthfulness W bias W sensory or mental defects G. Collateral issue rule bars use of physical evidence and testimony to impeach by contradiction H. The collateral issue rule is NOT a ban on impeachment on collateral issuesits only a ban on using extrinsic evidence to impeach on collateral issues. I. Limiting instruction: only consider the fact on the issue of credibilitynot substantively. REHABILITATING THE IMPEACHED W I. Once a W credibility has been attacked, it may be rehabilitated by the non-attacking party. A. Rehabilitation repairing the credibility of ones W B. The rehabilitative evidence MUST respond as directly as possible to the theory of the impeaching evidence. C. Evidence that W has good character for truthfulness will come in when: 1. W is attacked by evidence that he has a bad reputation for truthfulness 2. That a second W has a bad opinion of the first W truthfulness 3. That the W has been convicted of a crime 4. That he has committed a prior bad act D. But evidence of good reputation for truthfulness will NOT be allowed when the attack is merely on the W testimony in the present case. E. PIS may be rebutted by showing good character for truth. F. Evidence that W has made a prior consistent statement (PCS) will come in when: 1. There has been an express or implied charge that the W trial testimony is a recent fabrication or the product of improper influence or motive
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HEARSAY
HEARSAY is a statement other than one made by the declarant while testifying at the (present) trial or hearing offered in evidence to prove the truth of the matter asserted. I. Introduction A. Hearsay can be oral or written Statement is: an oral/written assertion, nonverbal conduct of a person if intended to be an assertion Assertion: a positive declaration, a statement of a fact intended to substitute for words. The intent of the of the declarant is crucial. E.g. pointing to a person in a photo. NOT an Assertion: a question, an exclamation, a command. Out of this court means: outside of present trial or hearing, testimony made at another hearing is still hearsay. E.g. Preliminary hearing, grand jury, hearing on a motion. B. Elements: 1. Statement or assertive conduct (intended as assertion) only humans (not animals or machines) a. Examples of statement or assertive conduct oral or written assertion (hearsay) nonverbal conduct, but only if it is intended by the person as an assertion (hearsay) silence is sometimes allowed, sometimes not o absence of complaints are allowed (not hearsay) o silence in face of accusation is usually not allowed because its hearsay, but it will come in under one of the exceptions (admissions) o Statements implied from conduct is hearsay (e.g. captain inspected ship and took family offered to show ship was seaworthy). b. Not statement or assertive conduct Verbal and nonverbal conduct that is not intended as an assertion is not hearsay Assertions inferred from other assertions are not hearsay Assertions inferred from nonassertive conduct are not hearsay Circumstantial evidence about nature of place or item, existence of relationship between people, or nature of an activity, is not hearsay 2. Not Truth of Matter Asserted Verbal act (operative fact that gives rise to legal consequences contract, defamation) is not offered for truth of the matter asserted Verbal parts of acts (where physical act is ambiguous, but words that accompany it resolve the ambiguity) are not hearsay If statement is offered to show its effect on the listener (to show that listener was put on notice, had certain knowledge, had certain emotion), it is not hearsay Statements introduced to show state of mind of declarant (knowledge, sanity, fear) - Hillman
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PRIOR STATEMENTS BY WITNESS FRE 801(d)(1) AND HEARSAY EXCEPTION HRE 802.1 Lack of Memory W: FRE v. HRE The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement - FRE Rule 801(d)(1) The declarant is subject to cross-examination concerning the subject matter of the declarant's statement HRE Rule 802.1 In U.S. v. Owens, U.S.S.Ct. held as long as W can be asked about prior i.d., it is non-hearsay, even if W has total lack of memory of incident. In HI, W must be able to testify as to subject matter of statement (capable of testifying about underlying events described in statement). State v. Canady, 80 Hawai`i 469 (App. 1996) All prior inconsistent statements are non-hearsay if used soley to impeach. As long as the declarant testifies, any witness can describe the identification. I. W must be available A. Unlike in Rule 804 where the declarant must be unavailable B. Prior statements are used here to prove the truth of the matter (substantive use) C. The W must be testifying, subject to cross examination D. Collateral Matter Rule Applies (also Contradictory Facts & HRE 608(b) Prior Bad Acts) II. HRE trusts prior statements more than FRE (more liberal then FRE) A. Prior Inconsistent Statements (PIS) HRE 802.1(1) If not for substantive purposes, then can use for impeachment purposes 1. Federal Rules: a. PIS admissible if: i. Inconsistent with testimony ii. Given under oath iii. In a prior proceeding or deposition iv. Must comply with 613(b) opposing party must have opportunity to cross examine W [no need to have had cross examination or even opportunity to cross examineso grand jury testimony is admissible] b. Three scenarios under FRE: i. If W concedes having made prior statement, but says it was wrong, and tells a different story now, then the PIS is substantively admissible ii. If W denies ever having made the prior statement, but theres independent evidence that the statement was made, and the W now tells a story which is inconsistent with prior statement, then the PIS is not admissible iii. If W admits making PIS, but claims that now he doesnt remember the underlying facts, then the result depends on whether the judge believes the W is being truthful in his assertion that he cannot remember o if judge believes W is being truthful, then statement not admissible o if judge believes W is being untruthful, then statement admissible c. Only the inconsistent parts of the testimony will be let in (Ortiz) not the entire testimony. 2. Under HRE, PIS must be: a. Under oath, OR
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II. Rules A. FRE 803(5) RECORDED RECOLLECTION B. HRE 802.1(4) PAST RECOLLECTION RECORDED C. RULE 612 WRITING USED TO REFRESH MEMORY (present recollection refreshed) D. H/FRE 803(6-7) BUSINESS RECORD ADMISSIONS FRE 801(d)(2)/HRE 803(a)(1-5) Different Approaches btw/HRE & FRE (but same result) Admissions are an attack by the opponent using the other partys own statement against her (not to be confused w/ declarations against interest). types: (1) direct, (2) adoptive, (3) authorized, (4) vicarious (employees), (5) co-conspirator. Personal knowledge not required by party making admission, unavailability not requirement, opinion / conclusion is admissible, w/drawn guilty plea not admission, silence admissible if innocent would normally deny under circumstances (mustve heard + understood),. In a criminal case, silence cant be used against you after Miranda warning. In FRE Admissions are NOT hearsay. They can only be offered against the party who said it. In HRE Admissions are hearsay EXCEPTIONS I. General Rule: a partys words or acts may be offered as evidence against him; Rationale is that you said it, so you explain it. A. Offered AGAINST A party 1. the partys own statement - NOT third person (even closely linked) unless principal-agent relationship 2. manifested adoption or belief [silence] (police) 3. authorized ... to make 4. Employee (agent/servant) - WITHIN the SCOPE of ... employment; made DURING ... the relationship 5. co-conspirator - DURING the course, IN FURTHERANCE of the conspiracy B. Admissions vs. Declarations Against Interest 1. Admission declarant availability is not an issue; need not be against the declarants interest at the time it was made; MUST be made by a party (or representative) and must be admitted against him. 2. Declaration Against Interest Rule 804 only applies where declarant is unavailable as a W; must be against the declarants interest at time it was made; applies to statements offered in evidence by party who made them & statements made by 3rd persons. Rule of thumb: If used against the party who made it, always treat the statement as an admission. If used by the party who made it, or if made by a non-party, the statement cant be an admission, and will have to be a declaration against interest (if anything). C. Miscellaneous Issues 1. Statement made in a pleadings is treated as an admission. 2. Nonassertive conduct is admissible for admissions 3. Same out-of-ct. statement may sometimes be admissible both as a Prior Inconsistent Statement for impeachment purposes and as an Admission for substantive purposes. 4. Factual Admissions made while offering to pay medical bills are admissible 5. Factual Admissions made in the course of settlement negotiations are NOT admissible. D. Adoptive admissions can occur in written communication (i.e. failure to reply to letter), the inquiry is: 1. whether the statement was such that, under the circumstances, an innocent would normally be induced to respond, and; 2. whether there are sufficient foundational facts from which the jury could infer that the heard, understood, and acquiesced in the statement. a. Examples where Silence is unreasonable (so adoption applies): i. A accused of Murder or some other heinous crime; ii. A is accused of mislabeling his products; iii. A is told, You know thats your signature while being shown a contract. F. Judge decides whether to admit the evidence, and jury decides whether an adoption occurred G. Admission by Deceased in Wrongful Death Action HRE 803(a)(3) 1. A statement by the deceased, offered against the in an action for the wrongful death of the deceased. 2. Rationale: The in a wrongful death action stands in reality so completely on the right of the deceased person that such persons admissions should be admitted against the even though the is technically asserting an independent right H. Admission by Predecessor in Interest HRE 803(a)(4)
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II. Unavailability Definition(s) H/FRE 804(a) PRIMA: A. If person exercises a Privilege from testifying, then they are unavailable B. If person Refuses to testify (despite an order of the ct. to do so), then they are unavailable C. If person has physical Illness or death, then they are unavailable D. If person has no Memory of the subject matter, then they are unavailable E. If person is Absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance by process or other reasonable means; unable to subpoena F. A declarant is NOT unavailable as a W if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the W from attending or testifying III. Under FRE, to avoid Confrontation Clause issues, government must show: A. W is beyond that states own process, and
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II. Rules A. RULE 804(b)(1) FORMER TESTIMONY B. RULE 804(a) DEFINITION OF UNAVAILABILITY DYING DECLARATIONS H/FRE 804(b)(2) Difference between HRE & FRE Dying Declarations require that declarantis UNAVAILABLE and MUST believe death is imminent hours or perhaps a few days. Death is not required, just BELIEF that death is impending. Statement must relate to causes or circumstances of impending death. Judge must make a preliminary factual determination that the declarant beleived his death was imminent. FRE allows dying declaration only in prosecution for homicide or in a civil action or proceeding (cannot be used in non-homicide criminal cases. HRE 804(b)(2) allows it in all types of cases. I. Definition Look for declarant that is badly injured or very sick at the time of the declaration. A. Requirements: 1. Declarant believed that death was imminent, actual death not required. 2. Statement must relate to cause or circumstances of threatened death 3. Personal knowledge, not opinion or speculation 4. Type of Case Difference btw/HRE & FRE a. FRE 804(b)(2) allows dying declaration only in prosecution for homicide or in a civil action or proceeding (cannot be used in non-homicide criminal cases) b. HRE 804(b)(2) allows it in all types of cases 3. Unavailability
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II.
III.
IV.
V.
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CONFRONTATION CLAUSE
When a hearsay declarant is NOT PRESENT for cross-examination at a CRIMINAL TRIAL, the Confrontation Clause normally requires a showing that he is UNAVAILABLE. Even then, his statement is ADMISSIBLE ONLY if it bears adequate "indicia of reliability. Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. I. Sixth Amendment Confrontation Clause: criminal s right to confront the W against her A. Constitutional requirement that accused should enjoy the right to be confronted by W against him. 1. Right to hear the W, Right to cross examine the W B. Basic principles of Confrontation Clause: 1. Only applied in criminal cases where the prosecutor offers an out-of-ct. statement 2. If the declarant testifies and is cross-examined, then the confrontation clause is satisfied Hawaii Exception: if W completely forgets, then this violates confrontation clause 3. If the declarant doesnt testify, and the statement falls within the admissions exception, then theres no confrontation clause problem C. Two part test: (not to violate the confrontation clause) 1. Declarant is unavailable (show good faith effort to get the person to testify in ct.) 2. Reliable statement a. Firmly rooted exception (widely accepted / been around a long time) b. Particularized guarantees of trustworthiness D. FRE no longer requires unavailability, but HRE requires it. E. Confrontation clause is still good in: 1. Declarations against interest, Prior testimony 2. Most likely Scenario Co- / accomplice cases where statement of co- also implicates the (John and I killed Bill jury cant separate the two statements) a. As confession (taken when A in custody, & implicating B) is used against B at Bs trial, & A wont take stand b/c he pleads 5th. Here, use of As confession certainly violates Bs rights. b. A & B are tried together. If the same jury hears As confession implicating B (and A doesnt take the stand), then Bs Confrontation Clause rights are violated even if the prosecution only purports to be offering the confession against A. F. Rape Shield Laws: history of alleged rape V cannot come in except as required by the constitution G. Child Abuse cases: some state laws provide that child V does not have to look at in the face H. Maryland v. Cray: you cant put up a screen between the and the W (Hawaii, however, allows you to take W in a different room if theres a special circumstanceyou have to look at the facts of the case) II. Sixth Amendment Compulsory Clause: criminal s right to obtain W in her favor
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United States v. Inadi, clarified that under Roberts, unavailability only is required when the challenged statement was prior testimony. White v. Illinois (Child sex assault) Statements of a child V to mother, babysitter & police officer were admitted as spontaneous declarations; Statements to emergency room nurse & doctor were admitted as statements for the purpose of medical treatment. The case involved sexual assault of a 4-year-old child by the mothers male friend. Basically, the childs screams woke up the babysitter. Babysitter went to childs room, and saw leaving the room. Babysitter asked the child what happened, child told her about the improper touching. 30 minutes later, the mother comes home. She questions the child, who relates a sexual assault. Mother calls the police. Police officer arrives within a few minutes and questions the child. Again, the child recounts the assault. 4 hours after the babysitter heard the scream, the child was taken to the hospital. There, she was examined by an ER nurse and then a doctor. In response to their questioning, the child again recounted the events. The child did not testify at trial and the state sought to introduce the childs hearsay statements to the babysitter, the mother, the officer, the nurse and the doctor.
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Barkai Evidence Fall 2012 LAY & EXPERT OPINIONS H/FRE 700-706 (COMPARE HRE/FRE 701-703)
Differences between HRE and FRE: HRE Fukusaku 1997. Less stringent standards for technical expertise. FRE Kumho 1999. Daubert to be applied to all expert testimony technical and scientific.Similarities: Both focus on reliability and relevance, but they use slightly different factors. I. Lay Opinions H/FRE 701 A. Lay opinions: be sure it is an opinion, not some other form of evidence (like reputation), such as reputation and Check that statement is made in ct.. Applies to only in ct. statements (otherwise hearsay). 2 additional req. opinion must be (1) rationally based on the perception of the W; and (2) helpful to a clear understanding of the W testimony or the determination of a fact in iissue. 1. Generally, lay opinions are not admissible unless: a. the opinion is rationally based on the perception of the W; and b. the opinion will be helpful to clear understanding of the W testimony or the determination of a fact in issue; c. Collective Facts Rule (Exception to the rule against opinions): If a W has perceived a number of small facts that cannot be easily stated, the W may summarize the collective facts with a short hand rendition (e.g. person seemed tired). Example: is on trial for murder, and raises an insanity defense. W testifies that was in terrible shape, and was mentally and physically ill. Admissible. State v. Garver (1950). d. Modern view on collective facts rule: opinions of laymen should be rejected only when they are superfluous in the sense that they will be of no value to the jury. McC, p. 18. However, if the matter is important, the judge will often require greater specificity. B. Requirements: 1. Lay W must limit testimony to First hand knowledge of the facts underlying the opinion a. Must have sufficient opportunity to perceive elements on which opinion is based, e.g.: W hears screeching sound; cant give testimony about speed of cars. V gets hit by car; cant say hit b/c driver was nuts if no opportunity to see. W must have perceived it himself not learned from it from someone else. b. Distinguished from hearsay: if the W is merely repeating what someone else said, the objection is to hearsay. If the W purports to be stating matters which he personally observed, but is actually repeating statements by others, the objection is to lack of first-hand knowledge. c. H/FRE Rule 602 A W may not testify to a matter unless the W has personal knowledge of the matter. This rule is subject to the provisions of rule 703, relating to opinion testimony by experts. What do we want from typical trial W? concrete report of what she saw, heard, etc. natural style of speech, not forced artificiality. But it is often hard to distuinguish facts from opinions because they occupy regions on a continuum, differing only in degree of specificity. 2. Opinion must be rationally based on the perception of the W and not based on scientific, technical, or other specialized knowledge. Also cannot offer opinions on how the case should be decided and questions of law. 3. Another person would come to the same conclusion 4. Lay opinion should be helpful to understanding evidence or testimony OR helpful in determining a fact in issue C. The more crucial a testimony, the more we want a fact rather than an opinion D. Examples where lay opinions allowed (look for Ws sense impressions, or Ws perceptions of someones or somethings appearance, stated in terms of an opinion but based on common everyday knowledge): 1. Intoxication (that person was drunk) 2. Anger or other emotional or psychological state (that person was mad) 3. Speed of cars (that person was going fast) 4. Appearance of object (size, color) 5. Familiarity with someones handwriting (yesthats her handwriting) 6. Where sound comes from; lighting conditions; color 7. Whether someones acting sane or insane 8. Identification in a videotape or photograph (yesthats a picture of Bob) E. Lay opinions are NOT allowed to show: 1. Whats in someone elses mind (knowledge, intent) 2. What someones feeling 3. Police testimony is not a lay opinion b/c its based on specialized knowledge subject to Rule 702 expert testimony.
NOTE on FRE701: The rule is not intended to change the practice that an owner of a business can give an estimate of projected profits of the business based upon the owners particularized knowledge that the W has by virtue of his or her position in the business.
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J.
Medical malpractice notes: re PERMANENCY OF CONDITION: Permanency is generally restricted to proof by way of medical certainty, or at least probability. Possibility proof is insufficient, and will be excluded as speculative conjecture. When future injuries are sought to be established, a higher level of conviction may be called for than is the case with the initial connective proof. Statements made to physicians for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations are admissible under FRE 803(4). Other cases: re objection to the admission of a report that an expert relied on. Such a REPORT (report under cc if criminal case) should not be allowed to be admitted because it denies one of their constitutional right to confront the W (via cc), and it is a violation of the heresay rule. Recitation of out of ct. hearsay by experts is disapproved in criminal cases. NOTE on FRE 702: This rule was amended in 2000 (compare to old language still part of HI rule). There are five requirments that expert testimony must meet to be admissible. The amendment affirms the trial ct.s role as gatekeeper to exclude unreliable expert testimony and provides some general standards that the trial ct. must use to assess the reliability and helpfulness of proffered expert testimony. In keeping with Kumhos holding that the gatekeeper function applies to all expert testimony not just testimony based in science. Note on HRE Rule 702.1. Cross-Examination of Experts The rule has no counterpart in the FRE. The HRE Commentary justifies this rule as clarifying that an expert may be cross-examined on a treatise that the expert did not rely upon if the expert acknowledges that it is an established authority. The rule seems to be all surplusage and unnecessary. Ct. may strike testimony if it is revealed on cross that the expert lacked an adequate basis for the opinion. NOTE on 703: Expert is allowed to reveal contents of materials on direct: if (1) expert actually relied on material as a basis of opinion, (2) materials are of a type reasonably relied upon by experts in field in forming opinions upon the subject, and (3) materials do not indicate lack of trustworthiness. Tabieros v. Clark. The FRE provides better protection than the counterpart HRE. Disclosure to the jury of inadmissible evidence, even if the expert relied upon it, is probemmatic and potentially quite prejudicial to the other party. R 705 DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION The expert may testify in terms of opinion or inference and give reasons therefore without first testifying to the underlying facts or data, The FRE allows expert to testify to the opinion without testifying to the underlying data, unless the ct. directs otherwise. The HRE says expert may testify to the opinion if the data was provided to the other side. The only time there will be a problem is if the expert are retained during the trial (given the continuing duty to disclose discovery material), and the other side does not have the basis and the factaul basis would have to be disclosed first to ensure that the experts opinion rests on a trustworthy basis III. Scientific Tests and Principles A. Daubert Two-Prong Test: 1. Reliability prong - Evidence must be shown to be scientifically valid (reliable scientific principle) a. If its junk science, it wont come in under Rule 702 2. Relevancy prong - Evidence must fit at least one issue in the case (must be relevant to the task at hand) B. Dauberts 5 factors in determining whether reliable principles and methods: 1. Has the scientific technique or theory been reliably tested? 2. Has it been subject to peer review criticized? 3. Rate of error of this technique? 4. Are there operational standards out there? 5. Has it been generally accepted in the community? (most important factor) 6. Was the technique grown independently of the litigation, or was it developed for the litigation? (Not articulated by SC but by 9th. Independent, more valid.) Note: factor are not exclusive, ct. free to consider other factors, such as #6. None of the factors is necessary to find reliability. C. Judge determines reliability of methodology; Jury determines the reliability. D. Daubert on Remand Three factors judges should consider in evaluating scientific, technical, and specialized knowledge (FRE 702):
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KUMHO (US, 1999) G.E. V. JONER (U.S., 1997) MONTALBO (HAW 1992) FUKUSAKU (HAW, 1997) VLIET (HAW, 2001)
BATANGAN (HAW, 1990) CABABAG (HAW, 1993) CASTRO (HAW, 1988) TABIEROS (HAW, 1993)
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State v. Montalbo - We therefore "adopt" the Frye test of general acceptance in the relevant scientific community under the reliability prong of the Kim analysis. We hold that a ct. should weigh general acceptance along with the other factors listed below in order to determine, under Hawaii Rules of Evidence (HRE) Rules 702 and 703, whether scientific evidence should be admitted at trial. These factors include whether: 1) the evidence will assist the trier of fact to understand the evidence or to determine a fact in issue; 2) the evidence will add to the common understanding of the jury; 3) the underlying theory is generally accepted as valid; 4) the procedures used are generally accepted as reliable if performed properly; 5) the procedures were applied and conducted properly in the present instance. The ct. should then consider whether admitting such evidence will be more probative than prejudicial. V. Rules A. RULE 701 OPINION TESTIMONY BY LAY WES (Helpful lay opinions, based on personal knowledge, are permitted) B. FRE 701 adds: not based on scientific, technical, or other specialized knowledge within the scope of Rule 702 (this language is not in HRE) C. RULE 702 TESTIMONY BY EXPERTS (Frey, Daubert, Montalbo)(Qualified expert can ASSIST) testimony based on sufficient facts or data, testimony is the product of reliable principles and methods, and W has applied the principles and methods reliably to the facts of the case D. HRE 702 requires: trustworthiness and validity of the scientific technique or mode of analysis employed by the proffered expert E. RULE 703 BASES OF OPINION TESTIMONY BY EXPERTS (HRE & FRE differ) Facts learned: before coming to ct., by listening to Ws in ct., hypothetical questions in ct.. F. RULE 704 OPINION ON ULTIMATE ISSUE (testimony of opinion or inference on ultimate issue may be allowed). G. FRE 704 (b) (applies to insanity cases and any other ultimate issue relating to a criminal s mental state) adds: BUTno expert opinion on ultimate issue concerning s mental state or condition in a criminal case. (inspired by Hinckley acquittal) Part (b) makes it more difficult for a deft to assert an insanity defense. Expert not permitted to say: was unable to appreciate the wrongfulness of his conduct, due to his mental disease H. RULE 705 DISCLOSURE OF FACTS OR DATA UNDERLYING EXPERT OPINION (HRE & FRE differ) I. RULE 706 CT. APPOINTED EXPERTS (HRE & FRE differ) VI. Scientific Evidence and Expertise A. Probabilities if introduced, a proper foundation must be laid and presented to the jury. (Collins) 1. MODERN TREND IS TOWARDS INCREASED ACCEPTANCE of probability evidence, when a careful scientific and mathematical basis for it is laid. Cts are willing to accept in paternity (DNA) not only to exclude paternity, but also the probability that he is the father. B. DNA testing ACCEPTED METHOD for tying blood, semen or tissue sample to a particular person. Nearly all cts allow the results of properly performed DNA tests to be introduced in both civil and criminal cases. Cts follow the Daubert standard in determining whether DNA evidence is admissible. A frequently contested issue is whether the particular way the test were performed in the present case, and the way the probability of a random match was computed, are reliable. Some judges have found lab errors
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II. Burden of Production & Persuasion A. Burden of Production (burden of going forward whose responsibility is it to put in the evidence) 1. The side with the burden must make out a prima facie case 2. Affirmative Defense: has burden 3. Regular Defense: government has burden to show that its not so B. Burden of Persuasion (burden of proof how much is required): 1. Preponderance of the evidence (more likely than not about 50% +) 2. Clear and convincing evidence (more than Preponderance of the evidence but less than Proof beyond reasonable doubt) 3. Proof beyond a reasonable doubt (more than Clear and convincing evidence) a. In criminal case, government must prove beyond a reasonable doubt III. Rules A. FEDERAL RULES: 1. FRE 301 PRESUMPTIONS IN GENERAL IN CIVIL ACTIONS & PROCEEDINGS 2. FRE 302 APPLICABILITY OF STATE LAW IN CIVIL ACTIONS & PROCEEDINGS B. HAWAII RULES: 1. HRE 301 DEFINITIONS 2. HRE 302 PRESUMPTIONS IN CIVIL PROCEEDINGS 3. HRE 303 PRESUMPTIONS IMPOSING BURDEN OF PRODUCING EVIDENCE (bursting bubble) 4. HRE 304 PRESUMPTIONS IMPOSING BURDEN OF PROOF (burden of persuasion switches) 5. HRE 305 PRIMA FACIE EVIDENCE 6. HRE 306 PRESUMPTIONS IN CRIMINAL PROCEEDINGS IV. Bursting Bubble vs. Continuing Effect Assume has both: 1) the burden of producing evidence (going forward) & 2) burden of proof (persuasion) BF = Basic Facts: PF = Presumed Facts Thayer Wigmore, "Bursting Bubble, FRE approach Presumptions are for procedural convenience and operate only in the absence of any evidence of the presumed fact. Presumptions shift the burden of production (if you don't produce, you lose) the wall crashes on your head. Morgan McCormick, "Continuing effect" Presumptions should be given greater weight and are created for reasons of policy, not just procedural convenience. Presumptions shift not only the burden of production but the burden of proof as well.
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JUDICIAL NOTICE
Adjudicative facts: are those which relate to the particular event. they help explain who did what, when, where, and how, and with what motive and intent. Generally known facts in the community, and facts capable of immediate verification by consulting sources of indisputable accuracy. Also, more likely to be covered by statute than legislative facts. INDUISPUTABLE Legislative facts: are more general facts that do not concern the immediate parties they are facts which the judge considers as part of his law-making function; whether a statute is constitutional, whether a common law principle should be modified; how a statute should be interpreted; as long s the judge believes it to be true. (e.g. that tenants generally are not capable of making structural repairs. CAN BE DISPUTED. Importance: is that judicial notice of adjudicative facts are likely only to take JN if it is indisputable, whereas he may take notice of a legislative fact more liberally (merely more probable than not is usually sufficient). I. Allows ct. to have a fact proven without having to prove it trial judges are conservative about doing this b/c might not be accurate or right. Most often used to complete appellate cts. Reasoning.
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II. Rules A. RULE 201 JUDICIAL NOTICE OF ADJUDICATIVE FACTS (exclusively Adjudicative; no legislative facts/law jd) B. HRE 202 JUDICIAL NOTICE OF LAW (includes JN of law) Civil Shall Notes: You can take JN of a document in a ct. file, but you cannot take JN of the TRUTH of the facts in the document. E.g. Websites: You can take JN of something posted on a website, but you cannot take JN of the TRUTH of the facts on that website. Hawaii Examples of Judicial Notice: Banana trees hold water, Waves will fill a hole dug in the sand on a beach Date of the Kings birthday celebration, Braking distance of a speeding car, The exact time of sunrise, UH basketball game re time, date, and opponent (State v. Hiramoto), Announcement concerning a judges candidacy for public office on a specific date based on photos of news articles (in re Application of Pioneer Mill Co.). HRE 202 (no FRE equivalent) makes it mandatory that Ct. take judicial notice of: Common law, Constitutions & statutes of U.S. jurisdiction, rules of US and Hawaii Supreme Cts, Hawaii Ordinances. Rule makes JN optional for: Federal and State ct. rules and published regulations, prior laws, foreign, international and maritime law.
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