evidence skeleton outline

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Evidence Skeleton OutlineA. Basic Classifications of Evidence1. Testimonial Evidence: Consists of oral statements of persons who are sworn as witnesses in open court. 2. Documentary Evidence: Information relating to facts in issue in written form. (i.e. written contracts, business records, wills and deeds.) -Before documentary evidence may be admitted it must be authenticated (i.e. someone must testify as to what the document purports to be AND its relevance to the issue being tried. 3. Real Evidence: Information appearing directly to the sensory perception of the trier of fact by the exhibition of tangible objects which have probative value. (i.e. a gun or articles of clothing) -Before real evidence is admitted, someone must authenticate it by testifying as to what it purports to be. 4. Direct Evidence: Testimony of a percipient witness which instantly relates to a fact in issue without intervention of proof of any other fact. (i.e. A witness who gets on the stand saying, I was present and I saw the defendant shoot the victim, is giving direct evidence) -Percipient Witness: One who had a direct personal experience with the event in question through one of his sensory perceptions. 5. Circumstantial Evidence: Information that relates to proof of an intermediate fact rather than directly to the fact at issue. Circumstantial evidence cumulatively based on logic and experience would lead the reasonable juror to conclude that a fact in issue is true or untrue. (Many cases are based completely on circumstantial evidence. -i.e. There was no one present who saw the fire the weapon, but the state may present witnesses to testify that they sold the a gun. Each witness is testifying to direct evidence of what they perceived, but all of them put together may lead the trier of fact to believe that the killed the victim. 6. Competent Evidence: Information that the trier of fact may properly consider in its inquiry by reason of its being information from a legally approved source and which is offered in a legally approved form. (Most evidentiary objections go towards the competency of the evidence.) -i.e. What is being offered violates the hearsay rule 7. Relevant Evidence: Information that under basic principles of logic and human experience will shed light upon and tend to prove the truth or falsity of some proposition in issue in the current lawsuit. No specific piece of information is intrinsically relevant. Relevancy means that information which is being offered has some logical tendency to prove or disprove the current issue in the lawsuit. 1

-Note: There is a lot of evidence that we may feel is logically relevant but for public policy reasons is kept out of the trial process. 8. Material Evidence: Evidence that tends to prove a proposition that is in issue in the current lawsuit. In the law of evidence, evidence can be relevant and still be immaterial. In order to determine whether evidence is immaterial, you have to look to the pleadings in the case and the substantive law of the case. -Material evidence goes to the SUBSTANTIVE issues of the case. -Found under FRE 401, regarding relevant evidence of consequence. -i.e. a passenger purchases a ticket for a Greyhound bus and the bus is involved in an accident. The passenger brings an action against the bus company and the driver of the bus for negligence. The defense puts a witness on the stand to testify that he was with the plaintiff 3 hours before he got on the bus and saw him consume 13 beers. This is relevant, but the plaintiffs sobriety is not an issue in the case the issue is the negligence of the bus driver. 9. Extrinsic Evidence: External evidence or evidence that is inadmissible or not properly before the court, jury, or other determining body. Fundamental Rule of Evidence All offered evidence NOT seasonably or timely objected to is admissible and entitled to probative value. Counsel must object immediately. FRE 403: Exclusion of Relevant Evidence on the Grounds of Prejudice, Confusion or Waste of Time -Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by consideration of undue delay, waste of time, or needless presentation of cumulative evidence. - Example: counsel may say - I ask for your discretion on this issue under the omnibus rule. Its probative value is outweighed by prejudice to my client, will take too much time, overly cumulative/confusingetc. Rule is frequently invoked by counsel. -This rule gives counsel a tremendous opportunity to keep out evidence which would ordinarily come in IF you can convince the trial judge. Ways to Establish Facts Without Formal Proof by way of Evidence 1. Admissions Contained in Pleadings: Any factual allegations on the face of the complaint that are not denied are taken to be admitted. 2. Inadvertent Admission of Fact: Usually need specific denial, general denial not sufficient. 3. Formal Judicial Admission 4. Stipulations: Bilateral agreements between counsel 5. Pre-Trial Discovery: Request for Admission of Facts

B. Judicial Notice2

-Judicial Notice is the recognition by the court of the truth of certain facts without the introduction of evidence on those facts. -Judicial notice plays a vital rule on the trial process as to: a. To determine with finality certain types of adjudicative facts, b. Ruling on admissibility of certain types of scientific or technical expert proof, and c. The conclusiveness of certain types of scientific proof (to determine the weight that should be given to those facts.) -There are 2 main types of facts of which judicial notice can be taken: 1. Adjudicative Facts: Are those facts which relate to the particular event under litigation. -They help explain who did what, when, where, how, and with what motive and intent. -Courts should judicially notice ONLY those facts that are so commonly and certainly known within the territorial jurisdiction of the courts as to make them indisputable among reasonable persons. (Common Knowledge & Verifiable Certainty) -Common Knowledge: Facts that are indisputable which form a part of the common knowledge of persons of ordinary intelligence and understanding within the territorial jurisdiction of the court (These facts will be judicially noticed. -Verifiable Certainty: Facts generally known in the community which are capable of immediate and accurate verification b y resorting to easily accessible sources generally recognized as authoritative to be judicially noticed. (i.e. hypotheses and generalized knowledge, and specific facts as defined by FRE 201) 2. Legislative Facts: Are more general facts that do not concern the immediate parties, and that remain the same across a wide range of cases. These are the facts that appellate courts deal with on appeal when dealing with the issue of whether existing law should be changed or modified because it has a substantive effect on people. Judicial Notice of Law Courts should take judicial notice of those matters which are deemed to be within the special competence of the judge in the exercise of the judges judicial office as a member of the co-equal branch of government. -Judges MUST judicially notice correctly ALL areas of DOMESTIC law applicable to a case with three exceptions. The reason for this is because the laws are not easily accessible. Historically, counsel had the burden of proving the municipal ordinances, town bylaws, and private acts. (ON EXAM). i. Municipal Ordinances ii. Town Bylaws iii. Private Acts of the State Legislature (the objective of which is to benefit a particular person or location.) iv. Example: You cannot stand up in court and ask the judge to judicially recognize the Town of Attleboro Zoning Laws. Counsel must prove 3

the bylaws (get printed copy) and enter them into the record. They will not be judicially recognized otherwise. -Judicial Notice in Regards to Expert Testimony General: There are a couple ways of utilizing judicial notice of expert testimony. Specifically, for the validity and admissibility of certain types of scientific evidence. -ONLY 2 WAYS to admit testimony of scientific evidence: (Scientific evidence can include newly discovered gadgets, techniques, and methodology) 1. Judicial Notice -State v. Finkle convicted of speeding challenges use of radar. Court holds that absence of scientific writings on subject so common does not mandate reversal. Radar falls within the scope of judicial notice. 2. Legislature enacts legislation authorizing the results of the scientific process to come into evidence. (i.e. breathalyzer, blood grouping for paternity, etc) -All Scientific Evidence passes through 3 Stages If the court does not judicially notice what stage the scientific evidence is in, there is no way of admitting the evidence other than through legislative means. (1) Stage 1: Initial Discovery No court should ever allow evidence in at this stage. (2) Stage 2: Research & Development (3) Stage 3: General Scientific Acceptance Virtually everyone in the scientific field recognizes reliability at this stage. (Evidence should only be accepted at this stage) Case Law -Frye v. U.S.: (Test no longer used) Stated that expert opinion based on a scientific technique is inadmissible unless the technique is generally accepted as reliable in the relevant scientific community. -Daubert v. Merrell Dow Pharm: (New Standard for Admissibility of Expert Testimony) -Facts proffered expert witnesses were excluded because the opinions they intended to introduce were not based on methods generally accepted in the scientific community. -Issue Does an expert opinion need to be generally accepted in the scientific community to be admissible? NO. -Rule An expert opinion does not need to be generally accepted in the scientific community to be admissible. -Reasoning FRE 702: The rule provides that if scientific or other specialized knowledge

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