Courtroom Evidence Handbook 2005-2006: Student Edition

by Goode, Steven; Wellborn, Olin Guy, III

• ISBN13: 9780314161895
• ISBN10: 0314161899
• Format: Paperback
• Copyright: 2005-05-27
• Publisher: West Group

Table of Contents

Preface	iii
Federal Rules of Evidence
General Provisions
Scope	5	(1)
Purpose and Construction	5	(1)
Rulings on Evidence	6	(1)
Preliminary Questions	6	(1)
Limited Admissibility	7	(1)
Remainder of or Related Writings or Recorded Statements	7	(1)
Judicial Notice
Judicial Notice of Adjudicative Facts	8	(1)
Presumptions in Civil Actions and Proceedings
Presumptions in General in Civil Actions and Proceedings	8	(1)
Applicability of State Law in Civil Actions and Proceedings	9	(1)
Relevancy and Its Limits
Definition of ``Relevant Evidence''	9	(1)
Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible	9	(1)
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time	9	(1)
Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes	10	(1)
Methods of Proving Character	10	(1)
Habit; Routine Practice	11	(1)
Subsequent Remedial Measures	11	(1)
Compromise and Offers to Compromise	11	(1)
Payment of Medical and Similar Expenses	12	(1)
Inadmissibility of Pleas, Plea Discussions, and Related Statements	12	(1)
Liability Insurance	12	(1)
Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition	13	(1)
Evidence of Similar Crimes in Sexual Assault Cases	14	(1)
Evidence of Similar Crimes in Child Molestation Cases	15	(1)
Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation	16	(1)
Privileges
General Rule	17	(1)
Witnesses
General Rule of Competency	17	(1)
Lack of Personal Knowledge	17	(1)
Oath or Affirmation	17	(1)
Interpreters	18	(1)
Competency of Judge as Witness	18	(1)
Competency of Juror as Witness	18	(1)
Who May Impeach	19	(1)
Evidence of Character and Conduct of Witness	19	(1)
Impeachment by Evidence of Conviction of Crime	19	(2)
Religious Beliefs or Opinions	21	(1)
Mode and Order of Interrogation and Presentation	21	(1)
Writing Used to Refresh Memory	22	(1)
Prior Statements of Witnesses	22	(1)
Calling and Interrogation of Witnesses by Court	23	(1)
Exclusion of Witnesses	23	(1)
Opinions and Expert Testimony
Opinion Testimony by Lay Witnesses	23	(1)
Testimony by Experts	24	(1)
Bases of Opinion Testimony by Experts	24	(1)
Opinion on Ultimate Issue	24	(1)
Disclosure of Facts or Data Underlying Expert Opinion	25	(1)
Court Appointed Experts	25	(1)
Hearsay
Definitions	26	(1)
Hearsay Rule	27	(1)
Hearsay Exceptions; Availability of Declarant Immaterial	27	(4)
Hearsay Exceptions; Declarant Unavailable	31	(2)
Hearsay Within Hearsay	33	(1)
Attacking and Supporting Credibility of Declarant	33	(1)
Residual Exception	34	(1)
Authentication and Identification
Requirement of Authentication or Identification	34	(2)
Self--Authentication	36	(2)
Subscribing Witness' Testimony Unnecessary	38	(1)
Contents of Writings, Recordings and Photographs
Definitions	39	(1)
Requirement of Original	39	(1)
Admissibility of Duplicates	39	(1)
Admissibility of Other Evidence of Contents	40	(1)
Public Records	40	(1)
Summaries	40	(1)
Testimony or Written Admission of Party	41	(1)
Functions of Court and Jury	41	(1)
Miscellaneous Rules
Applicability of Rules	41	(2)
Amendments	43	(1)
Title	43	(7)
Evidence Rules with Authors' Commentary
General Provisions
Scope	50	(1)
Purpose and Construction	50	(1)
Rulings on Evidence	51	(4)
Preliminary Questions	55	(3)
Limited Admissibility	58	(2)
Remainder of or Related Writings or Recorded Statements	60	(1)
Judicial Notice
Judicial Notice of Adjudicative Facts	61	(6)
Presumptions in Civil Actions and Proceedings
Presumptions in General in Civil Actions and Proceedings	67	(2)
Applicability of State Law in Civil Actions and Proceedings	69	(1)
Presumptions in Criminal Cases	69	(2)
Relevancy and Its Limits
Definition of ``Relevant Evidence''	71	(5)
Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible	76	(1)
Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time	76	(5)
Character Evidence Not Admissible to Prove Conduct; Exceptions	81	(5)
Other Crimes, Wrongs, or Acts	86	(10)
Methods of Proving Character	96	(4)
Habit; Routine Practice	100	(3)
Subsequent Remedial Measures	103	(4)
Compromise and Offers to Compromise	107	(3)
Payment of Medical and Similar Expenses	110	(1)
Inadmissibility of Pleas, Plea Discussions and Related Statements	111	(3)
Liability Insurance	114	(1)
Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition	115	(5)
Evidence of Similar Crimes in Sexual Assault Cases	120	(2)
Evidence of Similar Crimes in Child Molestation Cases	122	(2)
Evidence of Similar Acts in Civil Cases Concerning Sexual Assault or Child Molestation	124	(1)
Privileges
General	125	(2)
Required Reports Privileged By Statute	127	(1)
Lawyer-Client Privilege	128	(8)
Psychotherapist-Patient Privilege	136	(2)
Husband-Wife Privilege	138	(4)
Communications to Clergymen	142	(2)
Political Vote	144	(1)
Trade Secrets	144	(1)
Secret of States and Other Official Information	145	(2)
Identity of Informer	147	(3)
Waiver of Privilege By Voluntary Disclosure	150	(3)
Privilege Matter Disclosed Under Compulsion or Without Opportunity to Claim Privilege	153	(1)
Comment Upon or Inference From Claim of Privilege; Instruction	154	(2)
Witnesses
General of Competency	156	(2)
Lack of Personal Knowledge	158	(2)
Oath or Affirmation	160	(1)
Interpreters	161	(1)
Competency of Judge as Witness	162	(2)
Competency of Juror as Witness	164	(3)
Who May Impeach	167	(6)
Evidence of Character and Conduct of Witness	173	(5)
Impeachment by Evidence of Conviction of Crime	178	(5)
Religious Beliefs or Opinions	183	(1)
Mode and Order of Interrogation and Presentation	184	(7)
Writing Used to Refresh Memory	191	(3)
Prior Statements of Witnesses	194	(4)
Calling and Interrogation of Witnesses by Court	198	(1)
Exclusion of Witnesses	199	(3)
Opinions and Expert Testimony
Opinion Testimony by Lay Witnesses	202	(3)
Testimony by Experts	205	(8)
Bases of Opinion Testimony by Experts	213	(4)
Opinion on Ultimate Issue	217	(4)
Disclosure of Facts or Data Underlying Expert Opinion	221	(3)
Court Appointed Experts	224	(2)
Hearsay
Definitions	226	(1)
Definition of Hearsay	227	(4)
Prior Statement by Witness	231	(4)
Admission by Party--Opponent	235	(4)
Hearsay Rule	239	(3)
Hearsay Exceptions; Availability of Declarant Immaterial	242	(3)
Present Sense Impression	245	(2)
Excited Utterance	247	(3)
Then Existing Mental, Emotional, or Physical Condition	250	(2)
Statements for Purposes of Medical Diagnosis or Treatment	252	(2)
Recorded Recollection	254	(1)
Records of Regularly Conducted Activity	255	(6)
Public Records and Reports	261	(4)
Learned Treatises	265	(1)
Hearsay Exceptions; Declarant Unavailable	266	(2)
Definition of Unavailability	268	(2)
Former Testimony	270	(1)
Statement Against Interest	271	(3)
Forfeiture by Wrongdoing	274	(1)
Hearsay Within Hearsay	275	(1)
Attacking and Supporting Credibility of Declarant	276	(1)
Residual Exception	277	(3)
Authentication and Identification
Requirement of Authentication and Identification	280	(5)
Self--Authentication	285	(3)
Subscribing Witness' Testimony Unnecessary	288	(1)
Contents of Writings, Recordings, and Photographs
Definitions	288	(3)
Requirement of Originals	291	(2)
Admissibility of Duplicates	293	(1)
Admissibility of Other Evidence of Contents	294	(3)
Public Records	297	(1)
Summaries	298	(2)
Testimony or Written Admission of Party	300	(1)
Functions of Court and Jury	301	(1)
Miscellaneous Rules
Applicability of Rules	302	(2)
Amendments	304	(1)
Title	304	(3)
Common Objections and Responses
Objections to Form of Question	307	(5)
Ambiguous Question (Rule 611(a))	307	(1)
Argumentative Question (Rule 611(a))	307	(1)
Asked and Answered (Rule 611(a))	308	(1)
Assumes Facts Not in Evidence (Rule 611(a))	308	(1)
Compound Question (Rule 611(a))	308	(1)
Confusing (Rule 611(a))	309	(1)
Harassing the Witness (Rule 611(a))	309	(1)
Leading Question (Direct Examination) (Rule 611(c))	309	(1)
Leading Question (Cross-Examination) (Rule 611(c))	310	(1)
Narrative Testimony, Calls for (Rule 611(a))	311	(1)
Repetitious Question (Rule 611(a))	311	(1)
Unintelligible Question (Rule 611(a))	311	(1)
Objections to Admissibility	312	(62)
Authentication Insufficient (Rules 901 and 902)	312	(1)
Best Evidence Not Being Offered (Rules 1001 and 1002)	313	(1)
Bolstering (Rules 607, 608 and 801(d)(1)(B))	314	(1)
Chain of Custody Not Established (Real Evidence) (Rule 901)	315	(1)
Character Evidence in Form of Opinion Testimony (Rule 405)	316	(1)
Character Evidence Inadmissible (Rule 404(a))	316	(1)
Character Evidence, Specific Acts Inadmissible (Rule 405)	317	(1)
Character Witness, Improper Cross-Examination as to Specific Acts (Rule 405)	318	(2)
Character Witness Not Qualified to Testify in the Form of Reputation or Opinion (Rule 405)	320	(1)
Compromise of or Offer to Compromise a Civil Claim (Rule 408)	320	(2)
Conclusion of Law, Expert Witness (Rules 702 and 704)	322	(1)
Conclusion of Law, Lay Witness (Rules 701 and 704)	322	(1)
Confusion of the Issues (Rule 403)	323	(1)
Cross-Examination, Beyond Scope of Direct (Rule 611(b))	324	(1)
Cumulative (Rule 403)	324	(1)
Dead Man's Act Renders Witness Incompetent (Rule 601)	325	(1)
Exclusion of Witness, Violation of (Rule 615)	325	(1)
Expert Lacks Sufficient Basis for Opinion (Rule 702)	326	(1)
Expert May Not Relate Hearsay Basis For Opinion (Rule 703)	326	(1)
Expert Not Qualified (Rule 702)	327	(1)
Expert Opinion Based Solely on Hearsay Not Reasonably Relied Upon (Rule 703)	327	(1)
Expert Opinion Is Speculative, Conjectural (Rule 702)	328	(1)
Expert Opinion Not Helpful (Rule 702)	328	(2)
Habit Evidence Not Admissible (Rule 406)	330	(1)
Hearsay (Rules 801 and 802)	330	(2)
Hypothetical Question Includes Facts Not in Evidence (Rule 705)	332	(1)
Hypothetical Question Not Helpful (Rule 705)	332	(1)
Identification Insufficient (Rules 901 and 902)	332	(2)
Impeachment, Bias (Rules 607 and 611)	334	(1)
Impeachment, Extrinsic Evidence of Prior Conduct Inadmissible (Rule 608)	335	(1)
Impeachment of Own Witness (Rule 607)	335	(1)
Impeachment of Own Witness With Prior Inconsistent Statement (Rules 403 and 607)	336	(1)
Impeachment on Collateral Matter (Rules 403 and 607)	336	(2)
Impeachment, Prior Conviction Inadmissible (Rule 609)	338	(1)
Incompetent; Witness Is Incompetent (Rules 601 and 403)	339	(1)
Insurance (Rule 411)	340	(1)
Irrelevant (Immaterial, Not Probative) (Rules 401 and 402)	340	(1)
Judge as Witness (Rule 605)	341	(1)
Juror as Witness at Trial (Rule 606(a))	341	(1)
Juror as Witness to Impeach Verdict (Rule 606(b))	342	(1)
Lay Opinion Testimony (Rule 701)	342	(1)
Lay Witness Testifying as Expert (Rule 701)	343	(1)
Medical, Hospital, or Similar Expenses, Payment of (Rule 409)	344	(1)
Mental State or Condition of Accused (Rule 704(b))	344	(1)
Misleading the Jury (Rule 403)	345	(1)
Nonresponsive Answer (Rule 611)	346	(1)
Other Accidents (Rules 401--403)	346	(1)
Other Claims by Plaintiff (Rules 401--403)	347	(1)
Other Contracts or Transactions Involving a Party (Rules 401--403)	348	(1)
Other Crimes Evidence; Insufficient Notice of Intent to Offer (Rules 404(b), 413, 414 and 415)	349	(1)
Other Crimes Evidence Not Adequately Proven (Rules 104(b), 404(b), 413, 414 and 415)	349	(1)
Other Crimes Evidence Not Admissible to Prove Character (Rules 404(b), 413, 414 and 415)	350	(2)
Other Crimes Evidence Offered for an Undisputed Point (Rules 403, 404(b), 413, 414 and 415)	352	(1)
Personal Knowledge Lacking (Rule 602)	352	(1)
Photograph Inflammatory and Unfairly Prejudicial (Rule 403)	353	(1)
Photograph, Motion Picture, Videotape, or Sound Recording not Authenticated (Rule 901)	353	(1)
Pleas and Plea Bargaining (Rule 410)	354	(1)
Prejudicial Effect Outweighs Probative Value (Rule 403)	355	(1)
Prior Consistent Statement Not Admissible to Rehabilitate (Rule 613)	356	(1)
Prior Inconsistent Statement; Extrinsic Evidence Inadmissible (Rule 613(b))	357	(1)
Prior Inconsistent Statement; Must Disclose Contents of Writing (Rule 613)	357	(1)
Privilege, Comment on or Adverse Inference From Invocation (Proposed Rule 513)	358	(1)
Privileged (Rule 501; Proposed Rules 502--513)	358	(1)
Privileged Attorney-Client Communication (Proposed Rule 503)	359	(1)
Privileged; Clergy-Communicant Privilege (Proposed Rule 506)	360	(1)
Privileged Marital Communication (Proposed Rule 505)	361	(1)
Privileged; Marital Testimonial Privilege (Proposed Rule 505)	362	(1)
Privileged Physician-Patient Communication (Proposed Rule 504)	363	(1)
Privileged Psychotherapist-Patient Communication (Proposed Rule 504)	363	(1)
Privileged Required Report (Proposed Rule 502)	364	(1)
Religious Belief or Opinion (Rule 610)	364	(1)
Scientific Evidence Not Admissible (Rule 702)	365	(1)
Sexual Conduct or Predisposition of Alleged Victim of Sexual Misconduct; Civil Case (Rule 412)	366	(1)
Sexual Conduct or Predisposition of Alleged Victim of Sexual Misconduct; Criminal Case (Rule 412)	366	(1)
Speculation, Question Calls for (Rules 602, 701 and 702)	367	(1)
Subsequent Remedial Measure (Rule 407)	368	(1)
Summary Not Admissible (Rule 1006)	369	(1)
Truthfulness of Another's Testimony (Rules 608, 701 and 702)	370	(1)
Ultimate Issue (Rule 704)	371	(3)
Checklists and Foundations
Checklists and Foundations	374	(29)
Offering an Exhibit (Documentary, Real, or Illustrative Evidence) (Rules 401, 402, 901 and 902)	374	(3)
Character Evidence (Rules 404 and 405)	377	(2)
Impeachment (Rules 607--613)	379	(10)
Present Recollection Refreshed (Rule 612)	389	(1)
Expert Testimony (Rule 702)	390	(3)
Hearsay Exceptions (Rule 803)	393	(6)
Foundation for Summary of Voluminous Writings (Rule 1006)	399	(4)
Table of Cases	403	(30)
Index	433