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

2. §7.1 Evidence Evidence Evidence Tends to prove or disprove a fact in issue Direct Evidence: Direct Evidence: Evidence that establishes a fact without inference (e.g., picture) Evidence that establishes a fact without inference (e.g., picture) Circumstantial Evidence: Circumstantial Evidence: Evidence of one fact requiring inference to establish another fact (missing person is dead) Evidence of one fact requiring inference to establish another fact (missing person is dead)

3. Types of Evidence Direct or Circumstantial Evidence is either: Physical Evidence Physical Evidence Evidence that can be touched Evidence that can be touched “tangible” / “demonstrative” evidence (e.g., “tangible” / “demonstrative” evidence (e.g., OJ’s glove ) Oral Evidence Oral Evidence Verbal/ “Testimonial” evidence Verbal/ “Testimonial” evidence

4. §7.3 Evidence & Procedure Procedural Rules of Court Procedural Rules of Court = evidence that can/cannot be considered by jury = evidence that can/cannot be considered by jury local rules local rules state rules state rules each state court has its own rules each state court has its own rules federal rules (FRCP) federal rules (FRCP) each local federal court has its own rules each local federal court has its own rules federal appellate rules federal appellate rules Federal Rules of Appellate Procedure Federal Rules of Appellate Procedure subject matter rules subject matter rules Bankruptcy Courts Bankruptcy Courts Courts of Military Justice Courts of Military Justice

5. §7.5 Hearsay “he said; she said” In-court testimony of an out-of-court statement made by someone other than the in-court witness offered to establish the truth of matters asserted. Analysis: Analysis: 1. In court testimony 1. In court testimony 2. of an out-of-court statement 2. of an out-of-court statement 3. made by someone other than the in-court witness 3. made by someone other than the in-court witness 4. offered to establish that truth of the matters asserted. 4. offered to establish that truth of the matters asserted. Is it offered to prove truth or that statement simply made? Is it offered to prove truth or that statement simply made? 5. Question of credibility lies with the out-of-court declarant 5. Question of credibility lies with the out-of-court declarant

6. §7.5 Hearsay Credibility Credibility Hearsay is unreliable “he said/she said” Hearsay is unreliable “he said/she said” Statement may be:taken out of context Statement may be:taken out of contextmisinterpretedmisunderstood No opportunity to cross-exam the declarant, therefore can’t determine trustworthiness Hearsay is inadmissible unless it falls under an exception

7. §7.6 Hearsay Exceptions Exceptions are based on trustworthiness and necessity: Exceptions are based on trustworthiness and necessity: 1. Admissions (by a party to the action) 1. Admissions (by a party to the action) Statement by party Statement by party 2. Declaration against interest (by non- party) 2. Declaration against interest (by non- party) Statement by non-party Statement by non-party 3. Business Entry 3. Business Entry Records kept in normal course of business Records kept in normal course of business (e.g., police report, hospital records)

8. Hearsay exceptions, continued 4. Dying Declaration 4. Dying Declaration Declarant believes their own death is imminent/Based upon deathbed repentance Declarant believes their own death is imminent/Based upon deathbed repentance 5. Declaration of Bodily Symptoms/Conditions 5. Declaration of Bodily Symptoms/Conditions “My stomach hurts” “My stomach hurts” 6. Declaration of State of Mind 6. Declaration of State of Mind Statement regarding knowledge and intent of declarant Statement regarding knowledge and intent of declarant “I’m so mad, I’m going to go over and beat up Joe” “I’m so mad, I’m going to go over and beat up Joe”

9. Hearsay exceptions continued 7. Declaration of Present Sense Impression 7. Declaration of Present Sense Impression Statement made immediately before or during event (e.g., “Look at that car go so fast!” ) Statement made immediately before or during event (e.g., “Look at that car go so fast!” ) 8. Excited Utterance 8. Excited Utterance Spontaneous Declaration Spontaneous Declaration 27 federal exceptions plus 27 federal exceptions plus “catchall exception” “catchall exception” evidence that has guarantees of trustworthiness, offered to prove material fact, is more probative than prejudicial, and would serve the interests of justice

10. Analyzing Hearsay 2-step analysis: 2-step analysis: Is the statement hearsay? Is the statement hearsay? Does it fit into an exception? Does it fit into an exception? Note: One argument against hearsay is that it may jeopardize a party’s constitutional right to confrontation of his or her accuser

11. §7.8 Privileges Privilege Privilege = right to refuse to testify or the right to prevent someone else from testifying Involves Private Communication that Remains Confidential Involves Private Communication that Remains Confidential Waiver: If communication is not private or Waiver: If communication is not private or is later disclosed, privilege is waived

12. Privileges, continued Attorney-client Attorney-client Client can refuse to testify about communications with attorney Client can refuse to testify about communications with attorney Client can prevent attorney from testifying Client can prevent attorney from testifying However, attorney can reveal communications in malpractice defense However, attorney can reveal communications in malpractice defense Doctor-Patient Privilege Doctor-Patient Privilege Patient can refuse to testify about private communication Patient can refuse to testify about private communication Patient can prevent doctor’s testimony Patient can prevent doctor’s testimony However, doctor can reveal communications in malpractice defense However, doctor can reveal communications in malpractice defense

13. Privileges continued Clergy/Penitent Clergy/Penitent Private communication to spiritual advisor seeking spiritual counseling Private communication to spiritual advisor seeking spiritual counseling Spousal Spousal Husband/wife Husband/wife Exception: litigation between spouses Exception: litigation between spouses

14. Other Privileges 5th Amendment 5th Amendment Privilege against self-incrimination Privilege against self-incrimination Person can refuse to testify Person can refuse to testify If testify, can’t pick and choose issues to answer If testify, can’t pick and choose issues to answer Government Information Government Information e.g., tax returns (unless fraudulently prepared) e.g., tax returns (unless fraudulently prepared)

15. No Privilege Exists for: No Privilege Exists for: Parent/Child Parent/Child Teacher/Student Teacher/Student Employer/Employee Employer/Employee