Evidence for Paralegals 2004

by Marlowe, Joelyn D.; Cummins, Suzanne

• ISBN13: 9780735540507
• ISBN10: 0735540500
• Edition: 3rd
• Format: Paperback
• Copyright: 2003-10-01
• Publisher: Wolters Kluwer

Summary

This practical paperback has earned the respect of instructors nationwide as a concise and current examination of how evidentiary principles are applied in real-life situations. Building on the strong foundation of its predecessors, the Third Edition reflects important development sin the law And The rules. The authors draw on their own considerable experience in preparing and litigating cases: focusing on the practical application of the Federal Rules of Evidence, The text covers the full range of course topics, including gathering evidence, interviewing witnesses, and researching written from a real-life perspective of actual practice in local, state, and federal court text goes beyond the interpretation of the rules to explain the application of the rules developed specifically for paralegal students with short case summaries, readable examples, marginal definitions of terms and cross-references To The Rules of Evidence, plus review questions and hypotheticals compact and accessible, The book covers key topics in less than 300 pages Recent revisions To The Federal Rules of Evidence highlight this edition: changes To The rules governing expert and lay testimony And The use of character evidence new rules which permit domestic and foreign business records to be admitted without a foundational witness case law that exemplifies the amended and new rules An author website to support classroom instruction using this title is available at http://www.aspenlawschool.com/marlowe_cummins4

Author Biography

Joelyn D. Marlowe is currently an Assistant United States Attorney.

Table of Contents

Foreword	xxi
Acknowledgments	xxiii
Introduction	1	(14)
Overview	1	(1)
Historical Development of the Rules of Evidence	2	(1)
Ethics and Advocacy	3	(1)
Reasons for the Rules of Evidence	3	(1)
What Is Evidence?	4	(2)
Role of the Paralegal	6	(1)
Direct and Circumstantial Evidence	7	(1)
How Is Evidence Obtained?	8	(1)
Interviewing Witnesses	9	(1)
Discovery Devices	10	(1)
Evidentiary Procedures	11	(2)
In Summary	13	(2)
End of Chapter Review Questions	13	(1)
Applications	14	(1)
Relevance	15	(16)
Common Law Rules of Relevancy and Materiality	15	(4)
Relevancy under the Federal Rules of Evidence	19	(2)
Admissibility of Relevant Evidence	21	(1)
Evolution of the Unfair Prejudice Objection	22	(1)
What Constitutes Unfair Prejudice	23	(1)
Undue Delay, Waste of Time, or Needless Presentation of Cumulative Evidence	24	(1)
Objection for Unfair Prejudice Where Evidence is Admissible for a Limited Purpose	25	(3)
Rule 403 --- Inapplicability	28	(1)
In Summary	29	(2)
End of Chapter Review Questions	29	(1)
Applications	29	(2)
Character	31	(32)
Character Evidence Defined	31	(2)
Character Evidence in Civil Cases	33	(2)
Character of the Accused in Criminal Proceedings	35	(3)
Character of the Victim in Criminal Proceedings	38	(3)
Rape and Sex Offense Cases	41	(6)
Methods of Proving Character	47	(3)
When Character Is an Ultimate Issue	50	(2)
General Prohibition against Admission of Evidence of Other Crimes, Wrongs, or Acts to Prove Conduct	52	(1)
Offering Evidence of Extrinsic Offenses Through the Back Door	52	(3)
The Battle Between FRE 403 and FRE 404(b)	55	(4)
In Summary	59	(4)
End of Chapter Review Questions	60	(1)
Applications	61	(2)
Habit and Modus Operandi	63	(14)
Habit Defined	63	(1)
Habit as an Organizational Function	64	(4)
Proving the Habit of an Individual	68	(2)
Proving the Habit of an Individual Who Follows a Professional Routine	70	(2)
Modus Operandi	72	(2)
Procedural Information	74	(1)
In Summary	75	(2)
End of Chapter Review Questions	75	(1)
Applications	76	(1)
Witnesses and Competency	77	(14)
Common Law Rules of Competency	77	(1)
Who Is Competent to Testify Under the FRE?	78	(1)
Modern Competency Rules in the States	79	(2)
Personal Knowledge of the Witness	81	(3)
The Oath or Affirmation	84	(1)
Judges and Jurors as Witnesses	85	(4)
In Summary	89	(2)
End of Chapter Review Questions	89	(1)
Applications	90	(1)
Impeachment	91	(22)
Impeachment --- An Explanation	91	(1)
Who May Impeach?	92	(1)
Impeachment Based on Character	93	(1)
Evidence of Specific Conduct on Cross-Examination	94	(2)
Impeachment By Evidence of Conviction of a Crime	96	(2)
Impeachment Based on Religious Beliefs or Opinions	98	(1)
Prior Inconsistent Statements	99	(1)
Refreshing a Witness's Memory	100	(2)
Personal Bias	102	(3)
Collateral Extrinsic Evidence	105	(3)
Overlapping Rules and Limitations on the Use of Impeachment Evidence	108	(1)
In Summary	109	(4)
End of Chapter Review Questions	109	(1)
Applications	110	(3)
Lay and Expert Opinions	113	(18)
Opinion Testimony by Lay Witnesses	113	(4)
Expert Opinions	117	(1)
Laying a Foundation for Expert Testimony, and Demonstrative Evidence	118	(2)
The Use of Lay Testimony in Lieu of Expert Testimony	120	(3)
The Bases of Opinion Testimony by Experts, and Refreshing the Expert's Recollection	123	(2)
Opinion as to the Ultimate Issue	125	(1)
Court Appointed Experts	126	(1)
In Summary	127	(4)
End of Chapter Review Questions	128	(1)
Applications	128	(3)
Settlement, Negotiation, and Remedial Measures	131	(16)
The Role of Paralegals in Settlement and Negotiation	131	(1)
Compromise and Offers to Compromise	132	(1)
When Settlement Negotiations and Agreements Are Admissible	133	(4)
Excludability of Evidence of Remedial Measures	137	(4)
Payment of Medical and Similar Expenses	141	(1)
Exclusion of Evidence of Liability Insurance	141	(1)
Exclusion of Evidence of Unaccepted Plea Bargains, Withdrawn Pleas, and No Contest Pleas	142	(2)
In Summary	144	(3)
End of Chapter Review Questions	144	(1)
Applications	144	(3)
Hearsay	147	(16)
Introduction to Hearsay	147	(1)
Purpose of Hearsay Rules	148	(1)
An Introduction to Nonhearsay	149	(1)
Nonverbal Assertions	150	(1)
Evidence That Is Not Hearsay because the Rules Say It Is Not	151	(1)
Evidence That Is Not Hearsay because the Court Says It Is Not	152	(1)
Identifying Nonhearsay Uses of Evidence Offered for Purposes other Than to Prove the Truth, and Understanding Their Limitations	153	(4)
Verbal Acts	157	(2)
Implied Assertions	159	(1)
In Summary	160	(3)
End of Chapter Review Questions	161	(1)
Applications	161	(2)
Hearsay Exceptions	163	(20)
Introduction to Hearsay Exceptions	163	(2)
Present Sense Impression and Excited Utterance	165	(1)
Res Gestae	166	(1)
Then Existing Mental, Emotional, or Physical Condition	166	(2)
Statements for Purposes of Medical Diagnosis or Treatment	168	(1)
Recorded Recollection	168	(1)
Records	169	(5)
Reputation	174	(1)
Learned Treatises	174	(1)
Judgments	175	(1)
``Catch-All'' Hearsay Exceptions	175	(1)
Availability of the Declarant	176	(2)
Hearsay Exceptions When the Declarant Is Unavailable	178	(2)
In Summary	180	(3)
End of Chapter Review Questions	180	(1)
Applications	181	(2)
Authentication, Identification, and Exhibits	183	(20)
Introduction	183	(1)
Testimony of a Witness with Personal Knowledge	184	(1)
Chain of Custody	185	(1)
Authenticating Documents and Self-Authentication	186	(1)
Authenticating Business Records	187	(5)
Ancient Documents	192	(2)
Computer and Other Technologically Generated Records	194	(3)
State Statutes and Acts of Congress	197	(1)
Best Evidence Rule --- Original, Duplicate, and Unavailable Documents	197	(2)
Summaries of Documents	199	(1)
In Summary	199	(4)
End of Chapter Review Questions	200	(1)
Applications	200	(3)
Constitutional Constraints on the Admissibility of Evidence	203	(18)
Introduction	203	(1)
An Overview of the Fourth Amendment	204	(1)
The Fourth Amendment's Search and Seizure Requirements	205	(1)
Exceptions to the Search Warrant Requirement	206	(2)
The Fifth Amendment and the Right against Compelled Self-Incrimination	208	(1)
The Miranda Warnings	209	(1)
The Sixth Amendment's Confrontation Clause	210	(1)
The Exclusionary Rule --- The Cure for Constitutional Violations	211	(6)
Fruit of the Poisonous Tree	217	(1)
In Summary	218	(3)
End of Chapter Review Questions	218	(1)
Applications	219	(2)
Common Law Privileges	221	(14)
Introduction to Common Law Privileges	221	(1)
The Politics of the Attorney-Client Privilege	222	(2)
Communications That Fall Outside the Attorney-Client Privilege	224	(2)
The Crime-Fraud Exception to the Attorney-Client Privilege	226	(2)
Spousal Privilege	228	(3)
The Physician-Patient Privilege	231	(1)
Religious Communication Privilege	231	(1)
Counselors, Therapists, and Social Workers and Chiropractors, Nurses, and Dentists	231	(1)
Military Secrets	232	(1)
Privileges on the Horizon	232	(1)
In Summary	233	(2)
End of Chapter Review Questions	233	(1)
Applications	234	(1)
Appendix A Federal Rules of Evidence for United States Courts and Magistrates	235	(32)
Glossary	267	(8)
Index	275