Basic Evidence Foundations

Slides:

Advertisements

Similar presentations

CVLS Hearsay Refresher Who Cares About Hearsay? A Four-Step Hearsay Formula Hearsay Exceptions Questions.

Advertisements

Q UINCY COLLEGE Paralegal Studies Program Paralegal Studies Program Interviewing & Investigation Foundations of Investigating.

Chapter 7: Evidence and Procedure Evidence: Proves/Disproves fact in issue Procedure: Rules of Court.

Randy J. Cox.  F.R.E. 301 is short and vague, with no definition of “presumption.”  Note F.R.E. 302 provides that state law governs the effect of presumptions.

Hearsay and Its Exceptions

Jail Call Analysis 4 th Amdt – Waiver because of Consent (Banargent, Scheinman, Poyck) 4 th Amdt. – Society not ready to recognize prisoner’s expectation.

Briana Denney, Esq. of Newman & Denney P.C Briana Denney, Esq. of Newman & Denney P.C. E VIDENTIARY I SSUES R ELATING TO F ORENSIC R EPORTS.

PRIOR INCONSISTENT STATEMENTS FRE 801(d) Non Hearsay by definition Rule 801(d)(1) Prior Statement by Witness is not hearsay If declarant testifies and.

The Roles of Judge and Jury Court controls legal rulings in the trial Court controls legal rulings in the trial Jury decides factual issues Jury decides.

Hearsay Exceptions Present Sense Impression, Excited Utterance, State of Mind, Diagnostic Statements.

Mock Trial Modified by Dennis Gerl from Evidence PPT by John Ed-Bishop

Crawford v. Washington US Supreme Court, March 2004 Implications for Elder Abuse Investigations Adapted from material presented June 30, 2004 by Sean Morgan.

CHAPTER X HEARSAY EVIDENCE. Hearsay Evidence Evidence of a statement that was made other than by the witness while testifying that is offered to prove.

Evidence Professor Cioffi 4/05/2011 – 4/27/2011.

AJ 104 Chapter 5 Witnesses. 5 Issues Related to a Trial Witness 1. Who is competent to testify 2. How the credibility of a witness is attacked 3. What.

Objections CRIMINAL LAW – UNIT #3. OBJECTIONS An objection:  is a formal protest raised in court during a trial to disallow a witness's testimony or.

Crawford v. Washington US Supreme Court, March 2004 Implications for Elder Abuse Prosecutions Adapted from material presented June 30, 2004 by Sean Morgan.

Courtroom Testimony. Preparation Before Court Review notes and reports beforehand Have a legal knowledge of the case Bring notes with you to court Bring.

Basic Evidence and Trial Procedure. Opening Statement  Preview the evidence “The evidence will show”  Introduce theme  Briefly describe the issues,

Advanced Civil Litigation Class 3Slide 1 Types of Evidence Testimonial evidence Testimonial evidence from eyewitnesses having personal knowledge from eyewitnesses.

Patient Rights, Medical Information & Records: a JCI Perspective October 10, 2007 Makati Medical Center ATTY. RODEL V. CAPULE MD FPCEMAC FPCP Professor.

A Federal Defender’s Guide to Confrontation Jessica Smith School of Government, UNC-Chapel Hill.

Past Recollection Recorded. Basic Structure of a Simple Legal Rule A particular functional legal outcome results If certain facts (elements) are true.

Courtroom Protocol and Technology

CIVIL PROCEDURE CLASS 20 Professor Fischer Columbus School of Law The Catholic University of America October 11, 2002.

Police Reports Admissible or Not?. The MYTH “A police officer’s regular practice in the business of policing is to observe crime and report it. Thus,

Objections Criminal law – unit #3.

Crawford v. Washington US Supreme Court, March 2004 Implications for Courts NYC Elder Abuse Training Project.

1 PRESENTATION OF EVIDENCE Learning Domain PURPOSE FOR THE RULES OF EVIDENCE Protect the jury from seeing or hearing evidence that is: (w/b p. 1-3)

ACOS 1, 2 Legal Aspects of Investigation The investigator and the legal system.

Hearsay 5: General Exception. Where we are at: Starr (SCC) Rule #1 Rule #1 Hearsay evidence is presumptively inadmissible unless it falls under an exception.

© 2010 Cengage Learning. All Rights Reserved. May not be scanned, copied or duplicated, or posted to a publicly accessible website, in whole or in part.

MEDICAL RECORDS Admissabilty: Hearsay exceptions Authentication Who can sponsor the evidence? What can it be used for? How to get it in? What to do with.

ARKANSAS LEGAL AID OCTOBER 17, 2013 BY MICHAEL JOHNSON AND PAULA CASEY EXHIBITS.

EVIDENCE ACT Law of evidence lay rules for the production of evidence in the court of law.

PROCEDURES IN THE JUSTICE SYSTEM, 8 th ed. Roberson, Wallace, and Stuckey PRENTICE HALL ©2007 Pearson Education, Inc. Upper Saddle River, NJ

Mock Trial Team Strategies and Formalities. Opening Statements 3 minutes Objective – Acquaint court with the case and outline what you are going to prove.

HEARSAY! BY MICHAEL JOHNSON. COMMON LAW DEFINITION “ An out-of-court statement offered to prove the truth of the matter asserted”

CJ227: Criminal Procedure Unit 6 Seminar Mary K Cronin.

Family Law Forum Idaho Law and Parenting Time Evaluations

Outline of the U.S. and Arizona Criminal Justice Systems

The Discovery End Date Dance

HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE: RULE 804: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE Prof. Janicke 2010.

Forensic and Investigative Accounting

WHAT IS EVIDENCE TESTIMONY OF WITNESSES DOCUMENTS

HEARSAY EXCEPTIONS THAT ARE LESS RELIABLE: RULE 804: DECLARATIONS BY PERSONS WHO ARE NOW UNAVAILABLE Prof. Janicke 2012.

Criminal Evidence Marjie Britz Chapter Ten: Hearsay

Hearsay Hector Brolo Evidence, Law 16 Spring 2017.

AGENDA Brief Lecture on Chapters courtroom evidence and jury selections and juries Film, 12 angry men Written exercise

EVIDENCE—BASES OF OPINION TESTIMONY BY EXPERTS

Principles of Evidence

Crime Scene Investigation and Evidence Collection

Opinion Testimony, In General

How Witnesses are Examined

TIPS FOR IMPROVING THE EFFECTIVENESS OF YOUR DEPOSITIONS

Witnesses’ Roles in a Case

Objections Criminal law – unit #3.

EVIDENCE—BASES OF OPINION TESTIMONY BY EXPERTS

Evidence in an Electronic Age – What is admissible?

Civil Pretrial Practice

THE TRIAL IN CANADIAN COURTS – Part 3

CHAP. 3 : INTRODUCTION TO THE HEARSAY RULE

DIGITAL LEGAL DOCUMENTS:

CHAP. 13: AUTHENTICATION P. JANICKE 2010.

Mock Trial Objections Part II.

CHAPTER 4, PARTS D-H RULE 804: OUT-OF-COURT DECLARATIONS BY PERSONS WHO ARE NOW “UNAVAILABLE” Prof. Janicke 2019.

Alison Chandler Hearsay Exceptions Continued Unavailability Former testimony Dying Declarations Declarations against.

The Bases for Objecting During Witness Examination

Hearsay Exceptions - Rules 803 and 804

Presentation transcript:

Basic Evidence Foundations Shelley L. Stangler ESQ. NJAJ Boardwalk 2017

Procedural Steps for Admission Mark Show to counsel Show to witness Copy for judge

BUSINESS RECORD – E. 803 (c)(6) Record of Regularly Conducted Activity Ordinary course of business Regular practice to make the record Record made at or near the time of the event Chain of custody

BUSINESS RECORD – E. 803 (c)(6) Certified record/no custodian required Hospital chart Gunter v. Fischer Scientific American 193 N.J. Super 688 (App. Div. 1984) Police/Fire reports Schneiderman v. Strelecki, 107 N.J. Super. 113 (App. Div. 1969)

BUSINESS RECORD – E. 803 (c)(6) Breathalyzer test, lab reports, driving records, conviction dispositions State v. Zalta, 217 N.J. Super. 209 (App. Div. 1987) State v. Matelewicz, 101 N.J. 29 (1985) Business records include public records and government records E. Rule 801(D); 803 (c)(8)

BUSINESS RECORD – E. 803 (c)(6) Must be Trustworthy Was there a Duty to make an Accurate/Truthful Record Phoenix Associates v Edgewater Park Sewer Autho., 178 N.J. Super. 109 (App. Div. 1981), aff’d. 89 N.J. 2 (1982)

BUSINESS RECORDS – E. 803 (c)(6) Must be at or near the time of the event Complex matters require qualified witness (Diagnostics/ MRI) A.J. Tenwood v. Orange Sr. Cit. Housing 200 N.J. Super. 527 (App. Div. 1985) State v. Martorelli 136 N.J. Super. 449 (App. Div. 1975), certif. den. 69 N.J. 445 (1976)

BUSINESS RECORDS – OBJECTIONS Hearsay – embedded/double (E. 805) Not trustworthy Source unreliable Source not under duty to report Opinions complex Conclusions for jury/ultimate issue

PAST RECOLLECTION RECORDED –E. 803 (c) 5 The witness made the statement The witness knew the contents at the time made The contents were accurate at the time made

DOUBLE HEARSAY PERMITTED BASED ON ANOTHER EXCEPTION • Party statement • Excited Utterance • Present Sense Impression • Physical Condition • State of Mind

EXPERT OPINION INCLUDED IN A HEARSAY STATEMENT – E.808 Business record – foundation the same Hospital records: Brown v. Mortimer 100 N.J. Super. 395 (App. Div. 1968)

MEDICAL RECORD – DOUBLE HEARSAY Prileau v. Kentucky Fried Chicken 434 N.J. Super. 558 (App. Div. 2014), aff’d. as mod. 223 N.J 245 (2015) Nowacki v. Community Medical Center 279 N. J. Super. 276 (App. Div), certif. den. 141 N.J. 95 (1995) Opinions relating to nature and extent of injuries excluded and inadmissible

MEDICAL RECORD – DOUBLE HEARSAY Brun v. Cardoso, 390 N.J. Super. 409 (App. Div. 2006); Agha v. Feiner, 198 N.J. 50 (2009); James v. Ruiz, 440 N.J. Super. 45 (2015) Interpretation of MRI requires qualified witness Cannot bootstrap inadmissible medical opinion through expert

MEDICAL RECORD – DOUBLE HEARSAY What happened to evidence rule 703 ? Expert ability to rely on other records James v. Ruiz: expert cannot use MRI conclusions to establish truth But: An expert can still rely on MRI as a source. Compare: Aponte v. Patel, 2016 WL 3582143, *3-4 (App. Div. July 5, 2016); certif. den. 228 N.J. 70 (2016).

NON-MEDICAL RECORDS- DOUBLE HEARSAY Ford Motor Credit Co. v. Mendola, 427 N.J Super. 226 (App. Div. 2012) Mechanic’s opinion inadmissible – too complex

DOUBLE HEARSAY – LOOK FOR ANOTHER EXCEPTION Relevant to Diagnosis or Treatment – 803 (c) (4) Statement of a Party Relevant to State of Mind Present Sense Impression Statement of Physical Condition

UNAVAILABLE DECLARANT-E.804 Must establish declarant unavailable Ruling by court that person cannot testify Lack of memory Death, physical, mental illness or infirmity and cannot bring person into court by process or reasonable means and cannot obtain deposition by reasonable means

AGENCY DETERMINATIONS EEOC/SS/UNEMPLOYMENT Conclusions by an agency generally NOT admissible Division Civil Rights – probable cause determination – not determinative of truth, not a statement of fact Muench v. Township of Haddon, 255 N.J. Super. 288 (App. Div. 1992)

AGENCY DETERMINATIONS OSHA/OPINIONS Opinions and conclusions of an investigator are not facts Millison v. E.I. DuPont de Nemurs 226 N.J Super. 572 (App. Div. 1988), aff’d. 115 N.J. 252 (1989) Crispin v. Volkwagenwerk 248 N.J. Super. 540 (App. Div.), certif. den. 126 N.J. 382 (1991).

SOCIAL SECURITY DETERMINATIONS NOT ADMISSIBLE Disability determination by an administrative judge is NOT a fact Villaneuva v. Zimmer, 431 N.J. Super. 301 (App. Div.), certif. den., 216 N.J. 430 (2013)

AGENCY DETERMINATIONS OTHER MEANS TO ADMIT Notice Lack of action Number of complaints Type of complaints

QUESTIONS?