1. 3 filters of admissiblity
    • 1. relevance
    • 2. reliability
    • 3. rightness
  2. BARPH --> documents
    • 1. Best Evidence: FRE 1001-1008
    • 2. Authentication: FRE 901-903
    • 3. Relevance: FRE 401-415, 601-615, 701-706
    • 4. Privilege: FRE 501
    • 5. Hearsay: FRE 801-807
  3. RAPHOOP --> overarching approach
    • 1. Relevance: FRE 401-403
    • 2. Authentication: FRE 901-903
    • 3. Policy: FRE 404-415, 601, 603-615
    • 4. Hearsay: FRE 801-807
    • 5. Original Document: FRE 1001-1008
    • 6. Opinion: FRE 602, 701-705
    • 7. Privilege: FRE 501
  4. reasons for keeping information away from the jury
    • 1. mistrust of juries
    • 2. public policy or social goal
    • 3. promote accurate fact-finding
    • 4. control scope/duration of trial
  5. claim of error factors (FRE 103)
    • 1. whether erroneously admitted evidence was the primary evidence relied upon
    • 2. whether the aggreived party was nonetheless able to present the substance of its claims
    • 3. existence/usefulness of curative jury instructions
    • 4. extent of jury argument based on tainted evidence
    • 5. whether erroneously admitted evidence was merely cumulative
    • 6. whether other evidence was overwhelming
  6. what is evidence
    Testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact…Directed at the words spoken by witnesses and the tangible evidence shown to the fact finder
  7. real evidence
    tangible item that is evidence in its own right
  8. demonstrative evidence
    chart, diagram, or courtroom reenactment of an event that illustrates the testimony of the W
  9. 3 audiences trial attorney must keep in mind when presenting its case
    • 1. judge
    • 2. jury
    • 3. CoA
  10. Plain Error Factors (FRE 103)
    • 1. an error
    • 2. clear and obvious under current law
    • 3. affects the D substantial rights
    • 4. seriously affect the fairness, integrity, or public reputation of judicial proceedings if left uncorrected
  11. 3 step process for appeal of evidence issue
    • 1. party preserves the issue for appeal
    • 2. party must pursuade the CoA that the trial court committed an error in the admission or exclusion of the evidence
    • 3. party must convince the court that the error affected a substantial right of the party
  12. plain error exception (FRE 103)
    Is so obvious that a formal objection shouldn’t be necessary to alert the trial court to the problem
  13. timely objection
    stated as soon as the basis for the objection is clear…must be specific…must be made as soon as the ground of it is known, or reasonably should be known, to the objector
  14. offer of proof
    to make a record of what the substance of the excluded evidence would have been
  15. harmless error
    one that purely technical in nature or likely didn't affect the jury deliberations or the outcome of the case
  16. standard of review for rulings on evidence
    abuse of discretion
  17. 2 sources of evidence
    • 1. witnesses
    • 2. real evidence
  18. General rule of competency (FRE 601)
    every person is competent to be a W unless otherwise stated in the rules

    When Erie doctrine applies competency is determined under state law
  19. application of Erie doctrine regarding W competency (FRE 601)
    • 1. civil action/proceeding
    • 2. concerns an element of the claim/defense
    • 3. claim/defense is one as to which state law supplies the applicable substantive law
  20. W competency rules
    • 601 - general rule
    • 602 - lack of personal knowledge
    • 603 - oath or affirmation requirement
    • 605 - judge as W
    • 606 - juror as W
  21. 2 categories of ppl incompetent to testify
    • trial judge
    • jury member
  22. Dead Man's Act (NC 601(c))
    makes incompetent a party witness proposing to testify about a conversation or other X with a person now deceased when that testimony is offered against the estate of the deceased...prevents claimant from putting words in the deceased's mouth
  23. Lack of Personal Knowledge Elements (FRE 602)
    • perception
    • comprehension
    • recollection
    • communication
  24. FRE 602 - lack of personal knowledge
    W may not testify to a matter unless ESSF that W has PK on the matter...must establish a foundation for the W testimony
  25. PK standard of proof (FRE 602)
    ESSF by a reasonable juror that the W has PK on the matter
  26. percipient W
    Witness can have personal knowledge of facts only if she perceived those facts with one or more of her senses
  27. proving personal knowledge (FRE 602)
    • show that W was at the scene of the event
    • establish the W was in a position to hear, observe, or otherwise record the event with her senses
    • ask the W to testify to what she perceived
  28. PK inquiry (FRE 602)
    • PK as to what?
    • relevance of that "what" as to the case?
    • excluded by any other rules?
  29. FRE 603 --> oath or affirmation
    before testifying a W must take an oath/affirmation to tell the truth administered in a form calculated to awaken the W conscience and impress his mind with the duty to testify truthfully
  30. Authentication Analysis (FRE 901)
    • what does the proponent claim the evidence to be?
    • is it relevant to the question at issue?
    • what foundation is necessary?
    • who would you call to lay the foundation?
    • what questions would you ask?
  31. authentication (FRE 901(a))
    proponent must show that the evidence is what he claims it to be under the ESSF standard
  32. illustrations of authentication (FRE 901(b))
    • testimony of W with knowledge
    • nonexpert opinion on handwriting
    • comparison by trier or expert W
    • distinctive characteristics and the like
    • voice identification
    • phone conversation
    • public records or reports
    • ancient documents or data compilations
    • process or system
    • methods provided by statute or rule
  33. general principles of FRE 901(a) - authentication/identification
    • authentication is condition precedent to admissiblity
    • condition satisfied by proponent showing that evidence is what its claimed to be
    • showing must be sufficient to support a finding
    • bona fide disputes as to authenticity/identity are decided by jury and not judge
  34. self-authentication - FRE 902
    • some evidence does not require extrinsic evidence of authenticity before admissible:
    • 1. domestic public docs under seal
    • 2. domestic public docs not under seal
    • 3. foreign public docs
    • 4. certified copies of public records
    • 5. official publications
    • 6. newspapers and periodicals
    • 7. trade inscriptions and the like
    • 8. acknowledged docs
    • 9. commercial paper and related docs
    • 10. presumptions under acts of congress
    • 11. certified domestic records of regularly conducted activity
    • 12. certified foreign records of regularly conducted activity
  35. writings and recordings definition (FRE 1001)
    letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation
  36. photograph definition (FRE 1001)
    include still photos, X-ray films, video tapes, and motion pictures
  37. original definition (FRE 1001)
    • the writing/recording itself or any counterpart intended to have the same effect by a person executing or issuing it
    • photograph - includes the negative or any print therefrom
    • if data are stored in computer or similar device, any printout or other output reasonable by sight, shown to reflect the data accurately
  38. duplicate definition (FRE 1001)
    counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original
  39. proper foundation for duplicate (FRE 1001)
    testimony by a person with personal knowledge of the contents of the original that the offered writing is an accurate reproduction of it, produced by some identified process which accurately reproduces the original
  40. Requirement of Original - FRE 1002
    • Best Evidence Rule
    • applies and requires the production of the original when party seeks to prove the contents of a writing
  41. BER only operates when
    • 1. a writing is itself the thing to be proved; OR
    • 2. a party seeks to prove a matter by using a writing as evidence of it
  42. key phrase of BER (FRE 1002)
    to prove the content of a writing
  43. BER limited in 2 ways
    • 1. doesn't apply to tangible evidence other than writings, recordings, and photos
    • 2. doesn't apply to all evidence concerning writings, recordings, and photos...only when offered to prove the contents of these
  44. admissibility of duplicates (FRE 1003)
    • duplicates are admissible to same extent as an original unless:
    • 1. a genuine question is raised as to the authenticity of the original, or
    • 2. in the circumstances it would be unfair to admit the duplicate in lieu of the original
  45. admissibility of other evidence of contents (FRE 1004)
    • if any of the 4 conditions are established the proponent can prove content by any secondary evidence he chooses:
    • 1. originals lost or destroyed
    • 2. original not obtainable
    • 3. original in possession of opponent
    • 4. collateral matters
  46. 3 factors for determining collateralness (FRE 1004)
    • centrality of the writing to the principle issues of the litigation
    • complexity of the relevant features of the writing
    • existence of a genuine dispute as to the contents of the writing
  47. summaries - FRE 1006
    • when contents can't conveniently be examined in court they may be presented in the form of a chart, summary or calculation
    • original/duplicates should be made available for examination, copying, or both by other parties at reasonable time and place
    • court may order that they be produced in court
    • only applies to summary created for use at trial
    • doesn't allow for summary witnesses
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