Evidence

by Leonard, David P.; Gold, Victor J.

• ISBN13: 9780735537125
• ISBN10: 0735537127
• Format: Hardcover
• Copyright: 2004-03-01
• Publisher: Wolters Kluwer

Summary

This new casebook makes evidence law easier to teach iquest; and to learn. By taking a unique structured approach To The Socratic method, The authors cover all of the core material in a book than can be taught thoroughly in one semester. Here is how the structured approach works: One of the Federal Rules of Evidence introduces each section, followed by test and examples explaining the background, rationale and details of the rule. Every textual excerpt is followed by Questions for Classroom Discussion, a series of hypotheticals, each of which illustrates a single aspect of the rule and builds on the preceding questions until the rule is fully explored; knowing what questions will be posed in class encourages students to prepare and allows them to study efficiently. Edited cases supplement the rule and explanatory text where appropriate. EVIDENCE: A Structured Approach also provides: Seminal cases that every literate lawyer must know. Explanatory transcripts, charts & diagrams. Strong coverage of chains of inferences to demonstrate the reasoning process from an item of evidence To The fact it was offered to prove. Citations to authorities that students can consult for additional explanations and analysis. A detailed Teacheriquest;s Manual with analysis of all Questions for Classroom Discussion, capsule descriptions of each case, additional questions, readings, teaching tips and suggested syllabi.

Table of Contents

Preface	xxi
The Process of Proof	1	(76)
The Trial: An Overview	1	(17)
Introduction	1	(3)
What Is ``Evidence''?	4	(1)
The Rules of Evidence	5	(3)
The Stages of the Trial	8	(1)
Pretrial Motions	8	(1)
Jury Selection	9	(1)
Preliminary Jury Instructions	10	(1)
Opening Statements	10	(1)
Presentation of Evidence and Limiting Instructions	11	(3)
Plaintiff's or Prosecution's Case-in-Chief	14	(1)
Defendant's Case-in-Chief	15	(1)
Plaintiff's or Prosecution's Rebuttal Case and Defendant's Surrebuttal	15	(1)
Further Motions	15	(1)
Closing Arguments	16	(1)
Jury Instructions	16	(1)
Jury Deliberation and Verdict	17	(1)
Post-trial Motions and Entry of Judgment	17	(1)
Appellate Review of Evidentiary Issues	18	(7)
Sources of Evidence and the Nature of Proof	25	(52)
Introduction	25	(1)
Witnesses: The Requirements of Competency, Personal Knowledge, and Oath or Affirmation	25	(1)
``Competent to Be a Witness''	25	(2)
Competency of Judge, Jurors, and Attorneys	27	(3)
Tanner v. United States	30	(2)
The Competency of a Witness Whose Recollection Has Been Refreshed Through Hypnosis	32	(2)
People v. Shirley	34	(3)
Rock v. Arkansas	37	(4)
The ``Personal Knowledge'' Requirement	41	(4)
The ``Oath or Affirmation'' Requirement	45	(1)
Real Evidence: Authentication and the Best Evidence Rule	45	(1)
Introduction: Tangible Evidence	45	(1)
Authentication	46	(1)
Introduction	47	(2)
Authentication of Photographs	49	(2)
Authentication Through Chain of Custody	51	(3)
Examples of Authentication under Rule 901(b)---Problems Posed by New Technologies	54	(1)
United States v. Simpson	54	(2)
United States v. Jackson	56	(2)
Self-authentication	58	(4)
The Best Evidence Rule	62	(1)
The Basic Rule	62	(2)
Exceptions to the Best Evidence Rule	64	(2)
Judicial Notice	66	(1)
Adjudicative Facts	66	(3)
Rae v. State	69	(2)
Judicial Notice of Law	71	(1)
Judicial Notice of Legislative Facts	72	(3)
Burdens of Proof and Presumptions: An Introduction	75	(2)
Relevance	77	(52)
The Definition of Relevant Evidence	77	(12)
The Basic Definition	77	(2)
Relevance Distinguished from Probative Value	79	(1)
Materiality	79	(1)
A Closer Look at the Reasoning Process	80	(2)
State v. Jaeger	82	(7)
Balancing Probative Value Against Dangers	89	(8)
Introduction	89	(1)
The ``Probative Value'' Side of the Equation	90	(1)
The ``Dangers'' Side of the Equation	90	(2)
Conducting the Balance	92	(1)
Feaster v. United States	93	(4)
Undisputed Facts	97	(9)
Old Chief v. United States	98	(8)
Probabilistic Evidence	106	(9)
Adams v. Ameritech Services, Inc.	108	(5)
David H. Kaye, Science in Evidence	113	(1)
United States v. Shonubi	113	(2)
A Special Application of Relevance Doctrine: Preliminary Questions of Fact	115	(14)
Introduction: The Court's Involvement in Fact-finding	116	(1)
Preliminary Questions of Fact: General Doctrine	116	(2)
Preliminary Questions of Fact: Conditional Relevancy	118	(2)
Comparing the Court's Role in Cases Falling into Rule 104(a) with Its Role in Cases Governed by Rule 104(b)	120	(2)
What If a Preliminary Fact Is the Same as an Ultimate Fact the Jury Must Decide?	122	(1)
Caveats	123	(6)
The Hearsay Rule	129	(182)
Introduction: The Idea Behind the Hearsay Rule	129	(5)
The Rule	134	(9)
``Statement''	135	(1)
``Declarant''	136	(2)
Statement Made ``Other Than While Testifying at the Trial or Hearing''	138	(1)
Statement ``Offered in Evidence to Prove the Truth of the Matter Asserted''	139	(4)
Utterances and Conduct That Are Not Hearsay	143	(17)
Situations in Which the Utterance or Conduct Constitutes ``Words of Independent Legal Significance'' or ``Verbal Acts''	143	(2)
Situations in Which the Value of the Evidence Derives from the Fact That Words Were Spoken, Not from the Truth of the Matter Asserted	145	(1)
Situations in Which the Words Are Being Offered to Show Their Effect on the Listener Rather Than to Prove the Truth of the Matter Asserted	146	(3)
Situations in Which the Words or Conduct Constitute Circumstantial Evidence of the Declarant's State of Mind	149	(4)
Shepard v. United States	153	(3)
Situations in Which Words or Conduct Are Not Assertive or Are Assertive of Something Other Than What They are Offered to Prove	156	(4)
An Alternative Model of Hearsay	160	(2)
A Caveat: Other Statements That Are Not Hearsay under Rule 801	162	(1)
Hearsay within hearsay	163	(1)
Hearsay Versus Personal Knowledge Objections	164	(2)
Review: Hearsay or Not Hearsay	166	(5)
Rationales for Exceptions to and Exemptions from the Hearsay Rule	171	(2)
Exemptions from the Hearsay Rule: Party Admissions	173	(14)
Simple Party Admissions	173	(3)
Adoptive Admissions	176	(4)
Vicarious Admissions (Authorized and Agency admissions)	180	(4)
Co-conspirator Statements	184	(3)
Exemptions from the Hearsay Rule: Prior Statements of Witnesses	187	(7)
Introduction	187	(1)
Prior Inconsistent and Prior Consistent Statements: A Primer	188	(2)
Statements of Prior Identification	190	(4)
Exceptions to the Hearsay Rule: Form and Structure	194	(2)
Exceptions to the Hearsay Rule: Availability of Declarant Immaterial	196	(37)
Time-sensitive Statements (Rules 803(1) and (2))	196	(1)
Excited Utterances (Rule 803(2))	197	(1)
Present Sense Impressions (Rule 803(1))	198	(4)
Statements Concerning State of Mind and Physical Condition	202	(1)
Statements of Declarant's Then-existing State of Mind or Physical Condition (Rule 803(3))	203	(3)
Mutual Life Ins. Co. of New York v. Hillmon	206	(5)
Statements for Purposes of Medical Diagnosis or Treatment (Rule 803(4))	211	(4)
Recorded recollection (Rule 803(5))	215	(1)
The Rule	216	(1)
Distinguishing Recorded Recollection from Refreshing a Witness's Recollection	217	(5)
Business and Public Records	222	(1)
Records of Regularly Conducted Activity (Rule 803(6))	223	(6)
Public Records and Reports (Rule 803(8))	229	(3)
Absence of Entry in Business or Public Record (Rules 803(7) and 803(10))	232	(1)
Exceptions to the Hearsay Rule: Unavailability of Declarant Required	233	(32)
Unavailability	233	(4)
The Former Testimony Exception (Rule 804(b)(1))	237	(7)
The Dying Declaration Exception (Rule 804(b)(2))	244	(4)
The Declaration Against Interest Exception (Rule 804(b)(3))	248	(1)
Rationale for the Exception	248	(1)
Nature of ``Interests'' Covered by the Exception	248	(2)
The Standard of the Rule	250	(2)
Applicability of the Exception to Neutral or Self-serving Statements	252	(1)
Williamson v. United States	253	(5)
Comparison to Party Admissions	258	(1)
The Forfeiture by Wrongdoing Exception (Rule 804(b) (6))	258	(1)
United States v. Cherry	259	(6)
The Residual Exception (Rule 807)	265	(15)
Background	265	(3)
Requirements for Application of the Residual Exception	268	(2)
The ``Near Miss'' Problem	270	(3)
United States v. Dent	273	(4)
Is the Residual Exception Party-neutral?	277	(1)
John G. Douglass, Balancing Hearsay and Criminal Discovery	277	(3)
Miscellaneous Exceptions	280	(7)
Records of Vital Statistics (Rule 803 (9)), Religious Organizations (Rule 803(11)), and Marriage, Baptismal, and Similar Certificates (Rule 803(12))	281	(1)
Family Records (Rule 803(13)) and Statements of Personal or Family History (Rule 804 (b)(4))	282	(1)
Records of Documents Affecting an Interest in Property (Rule 803(14)) and Statements in Such Documents (Rule 803(15))	282	(1)
Statements in Ancient Documents (Rule 803(16))	283	(1)
Market Reports and Commercial Publications (Rule 803(17))	284	(1)
Learned Treatises (Rule 803(18))	284	(1)
Reputation (Rules 803(19), 803(20), and 803(21))	285	(1)
Judgment of Previous Conviction (Rule 803(22)) and Concerning Personal, Family, or General History, or Boundaries (Rule 803(23))	286	(1)
The Hearsay Rule and the Constitution	287	(24)
Introduction	287	(2)
History and Purposes of the Right of Confrontation	289	(3)
Current Supreme Court Jurisprudence about the Relationship between Hearsay and the Confrontation Clause	292	(10)
Constitutional Limits on the Exclusion of Hearsay	302	(1)
Chambers v. Mississippi	302	(9)
Evidence of Character, Uncharged Misconduct, and Similar Events	311	(64)
Introduction	311	(1)
Character Evidence	312	(31)
Introduction	313	(2)
Character Evidence Offered for Non-credibility Purposes	315	(1)
Character Defined	315	(2)
Potential Uses of Character Evidence	317	(1)
Methods of Proving Character: Rule 405	318	(3)
Proving Character When Character Is ``In Issue''	321	(1)
Proving Character as Circumstantial Evidence of Out-of-court Conduct	322	(1)
The Basic Rule	322	(2)
Evidence of a Criminal Defendant's Character	324	(1)
In general	324	(1)
Michelson v. United States	324	(8)
Sexual assault and child molestation cases	332	(4)
Evidence of an Alleged Crime Victim's Character	336	(1)
Defendant's proof of an alleged crime victim's character	336	(1)
Special rule for rape victims	337	(1)
Olden v. Kentucky	338	(4)
Additional exceptions to the exclusion of character evidence to prove conduct; special rule for homicide prosecutions	342	(1)
Other Crimes, Wrongs, or Acts	343	(26)
Introduction	344	(1)
The Basic Principle	344	(4)
Robbins v. State	348	(6)
What Is a ``Crime, Wrong, or Act''?	354	(1)
Timing of Uncharged Misconduct	355	(1)
Degree of Required Similarity between Charged and Uncharged Conduct	356	(3)
Purposes for Which Evidence May Be Offered	359	(1)
Procedure for Determining Admissibility	360	(2)
Putting It All Together	362	(1)
Judge/Jury Functions: Required Quantum of Proof of Uncharged Misconduct	363	(1)
Huddleston v. United States	364	(5)
Habit Evidence	369	(2)
Evidence of Similar Events	371	(4)
Exclusion of Other Relevant Evidence for Reasons of Policy	375	(38)
Introduction	375	(1)
Subsequent Remedial Measures	375	(14)
Rationale for the Rule	376	(1)
Efficacy and Necessity of Exclusionary Rule	376	(1)
Limited Exclusionary Principle	377	(1)
Meaning of ``Negligence [or] Culpable Conduct''	378	(1)
What Is a ``Subsequent Remedial Measure''?	379	(1)
Timing of Subsequent Remedial Measure	379	(1)
Admissibility to Prove ``Feasibility of Precautionary Measures''	380	(1)
Tuer v. McDonald	380	(6)
Admissibility to Impeach	386	(1)
Tuer v. McDonald	386	(2)
Other Permissible Uses of Subsequent Remedial Measures Evidence; Viability of the Exclusionary Rule	388	(1)
Compromise and Payment of Medical and Similar Expenses	389	(7)
Introduction	390	(1)
Rationales for the Rule	391	(1)
Special Situation: The Biased Witness	392	(4)
Plea Evidence	396	(12)
Unwithdrawn Guilty Pleas	397	(1)
Withdrawn Guilty Pleas	398	(1)
Pleas of Nolo Contendere	398	(1)
Statements Made at Hearing to Enter Plea	398	(1)
Statements Made in the Course of Plea Bargaining	399	(1)
Exceptions to Rule Excluding Statements Made in Formal Plea Hearings or during Plea Bargaining	399	(1)
Impeachment Use of Plea Evidence	400	(1)
Waiver of the Rule's Protections	401	(1)
United States v. Mezzanatto	401	(7)
Evidence of Liability Insurance	408	(5)
Rationale for the Rule	409	(1)
Limited Exclusionary Principle	410	(3)
Examining Witnesses; Attacking and Supporting the Credibility of Witnesses	413	(78)
Mode of Witness Examination	413	(5)
Control over Mode and Order of Interrogating Witnesses and Presenting Evidence	413	(3)
Scope of Cross-examination	416	(1)
Leading Questions	416	(2)
Impeachment: Introduction	418	(3)
Who May Impeach	421	(4)
United States v. Hogan	423	(2)
Impeachment by Methods Not Covered by Specific Common Law or Statutory Rules	425	(8)
Introduction	425	(1)
Factors Affecting the Witness's Opportunity to Perceive Accurately	426	(1)
Factors Affecting the Witness's Capacity to Perceive Accurately	426	(1)
Factors Affecting the Witness's Capacity to Recollect Accurately	427	(1)
Factors Affecting the Witness's Capacity to Narrate Accurately and Comprehensibly	428	(1)
Appearance and Status Factors	428	(1)
Demeanor	429	(1)
Plausibility of the Witness's Testimony	429	(1)
Illustration	429	(4)
Witness's Character	433	(18)
Introduction	433	(2)
Reputation or Opinion Concerning Truthfulness	435	(1)
Reputation and Opinion	435	(1)
Character for Truthfulness or Untruthfulness	436	(1)
Evidence of Truthfulness Admissible Only after Attack on Character for Truthfulness	436	(1)
Conduct Probative of Truthfulness	437	(1)
Rationale for Admitting Evidence of Witness Conduct Probative of Truthfulness	438	(1)
Extrinsic Evidence Inadmissible	439	(1)
Discretion to Admit Specific Instances Probative of Truthfulness or Untruthfulness	439	(2)
Conviction of Crime	441	(1)
Rationale for Admitting Conviction Evidence to Impeach	442	(1)
Scope of Rule 609	443	(1)
Rule 609 (a)---General Rule	443	(2)
Rule 609 (b)---Old Convictions	445	(1)
Rule 609 (c)---Effect of Pardon, Annulment, or Certificate of Rehabilitation	446	(1)
Rule 609(d)---Juvenile Adjudications	446	(1)
Rule 609 (e)---Pendency of Appeal	447	(1)
Preserving the Right to Appeal under Rule 609	447	(1)
Luce v. United States	447	(3)
Religious Beliefs or Opinions	450	(1)
Bias, Motive, and Interest	451	(7)
Effects of Bias	451	(1)
Proving Bias	452	(1)
Admissibility of Bias Evidence	452	(1)
Admitting Extrinsic Evidence of a Witness's Prior Statements Revealing Bias	453	(1)
United States v. Abel	454	(4)
Impeachment by Contradiction	458	(7)
Introduction	458	(1)
Common Law Rule Restricting Impeachment by Contradiction	459	(3)
Modern Treatment of the Rule	462	(1)
Overlap with Other Impeachment Methods	463	(2)
Prior Statements of Witnesses	465	(19)
Prior Inconsistent Statements	465	(1)
Introduction	465	(1)
Substantive Use of Prior Inconsistent Statements	466	(1)
United States v. Owens	467	(2)
Impeachment Use of Prior Inconsistent Statements	469	(3)
A Note About Limited Admissibility	472	(3)
Prior Consistent Statements	475	(1)
Introduction	475	(2)
Foundation for Admission of Prior Consistent Statements	477	(1)
Tome v. United States	478	(3)
Purposes for Which Prior Consistent Statements May Be Offered; Comparing Prior Consistent and Prior Inconsistent Statements	481	(3)
Transcript Exercise: Emphasis on Witness Impeachment	484	(7)
Lay and Expert Opinion Evidence	491	(44)
Introduction	491	(1)
Lay Opinion	492	(6)
Function of Rule 701: Requiring the Witness to Be More Specific	492	(1)
Who May Give Lay Opinions?	492	(1)
What Is a Proper Basis for Lay Opinion Testimony?	493	(1)
When Is Lay Opinion ``Helpful''?	494	(4)
Expert Opinion	498	(37)
Introduction	498	(1)
Expert Testimony Must ``Assist the Trier of Fact''	499	(1)
Expert Witnesses Must Be Qualified	500	(2)
Expert Testimony Must Be Reliable: The Daubert Decision	502	(1)
Daubert v. Merrell Dow Pharmaceuticals Inc.	503	(2)
Expert Testimony Must Be Reliable: The Kumho Tire Decision	505	(1)
Expert Testimony Must Be Reliable: Problems Applying Daubert/Kumbo Tire	506	(1)
United States v. Llera Plaza	506	(8)
Pipitone v. Biomatrix, Inc.	514	(4)
Expert Testimony Must Be Reliable: Requirements of Rule 702	518	(4)
Expert Testimony Must Have a Proper Basis	522	(3)
Expert Testimony: Limits on Opinions Going to Ultimate Issues	525	(4)
Expert Testimony: Disclosing Facts Underlying Opinion	529	(1)
Expert Testimony: Court-appointed Experts	530	(5)
Privileges	535	(68)
Introduction	535	(2)
The Federal Rule	537	(1)
General Principles	538	(8)
The Nature of Privileges	538	(1)
Covered Relationships	539	(1)
``Confidential Communications''	539	(4)
``Holder'' of the Privilege	543	(1)
``Waiver'' of the Privilege	544	(2)
The Attorney-Client Privilege	546	(25)
In General	546	(1)
Definition of Client and Attorney	547	(1)
Upjohn Co. v. United States	547	(8)
Survival of Attorney-Client Privilege After Death of Client	555	(1)
Swidler & Berlin v. United States	556	(3)
Exceptions to the Attorney-Client Privilege	559	(2)
United States v. Zolin	561	(8)
A Note about the Attorney's Ethical Obligation of Confidentiality	569	(1)
A Note about the Attorney Work Product Doctrine	569	(2)
Medical Privileges	571	(12)
Jaffe v. Redmond	574	(5)
State v. Agacki	579	(4)
Clergy Privilege	583	(7)
In General	583	(2)
People v. Edwards	585	(4)
Exceptions	589	(1)
Spousal Privileges	590	(8)
In General	590	(1)
The Privilege for Confidential Communications between Spouses	591	(1)
The Adverse Testimony Privilege	592	(1)
Trammel v. United States	593	(4)
Exceptions to the Spousal Privileges	597	(1)
Miscellaneous Privileges	598	(5)
Monica S. Lewinsky, Tell Mama All About It? Not Without a Lawyer: Parents and children shouldn't be required to testify against each other	599	(4)
Burdens of Proof and Presumptions	603	(20)
Burdens of Proof	603	(5)
Introduction	603	(1)
Burden of Persuasion	603	(1)
Specifying the Quantum of Evidence	603	(1)
Identifying the Party That Bears the Burden	604	(1)
Burden of Production	604	(4)
Presumptions	608	(15)
Inferences and Presumptions	609	(1)
A Word about ``Conclusive'' or ``Irrebuttable'' Presumptions	609	(1)
Why We Use Presumptions	610	(1)
How Presumptions Operate: Some Terminology	611	(1)
Causing a Presumption to Take Effect	611	(1)
Rebutting Presumptions	612	(1)
DeFeo v. Merchant	612	(2)
What If the Opponent Does Nothing?	614	(1)
What If the Opponent Only Challenges One or More of the Foundational Facts?	615	(1)
What If the Opponent Only Challenges the Presumed Fact?	615	(2)
What If the Opponent Challenges Both the Foundational and the Presumed Facts?	617	(1)
A Caveat	617	(1)
Conflicting Presumptions in the Same Case	618	(1)
Presumptions in Criminal Cases	619	(1)
Presumptions under the Federal Rules of Evidence	619	(4)
Appendix A: The Federal Rules of Evidence	623	(140)
Appendix B: Unadopted Federal Rules of Evidence	763	(10)
Table of Cases	773	(4)
Table of Federal Rules of Evidence	777	(4)
Table of Authorities	781	(12)
Index	793