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Foundation of a photo as real evidence
- 1. What does the proponent claim it is
- 2. Is it relevant in B's trial for ______
- 3. What foundation is necessary
- 4. Who do you call to lay the foundation
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Probative Value > Prejudicial Effect (evidence)
admit the evidence
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Probative Value = Predudicial Effect (evidence)
Admit the evidence
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Prejudicial Effect > Probative Value (evidence)
Depends, must Substantially outweigh for evidence to be excluded
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Prejudicial Effect >> Probative Value (evidence)
Exclude
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Hearsay Analysis
- 1. is the statement Hearsay? if no admit
- 2. If hearsay, is there an exception? if no exclude
- 3. If there is an exception is it a "testimonial statement", if not then admit
- 4. If testimonial, is the declarant subject to cross at trial, if yes then admit
- 5. if declarant isnt subject to cross at trial, is the exception 804(b)(2) or (6), if yes then admit
- 6. If not covered by 804(b)(2) or (6) did the accused ahve the opportunity to cross when the staeemnt was made, if no exclude if yes admit
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Other crimes, wrongs or acts (uncharged) analysis
- 1. evidence must be offered for a proper noncharacter purpose
- 2. Evidence must be relevant for that purpose
- 3. Court must perform a 403 balancing test
- 4. Under FRE 105, and upon request, court must provide a limiting instruction to the jury that the evidence of the uncharged conduct may be considered only for the admitted purpose
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FRE 407 Analytical Framework
- 1. When was the action taken
- 2. What type of action was taken
- 3. What point does the action prove
- 4. Who took the remedial measure
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FRE 408 Analytical Framework
- 1. Is there a claim
- 2. Is the claim disputed
- 3. Is the evidence offered for another purpose
- 4. Is the evidence an offer to settle or an admision of liablility
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Impeachment by Bias
- witness had:
- 1. motive to hurt party
- 2. Motive to favor a party
- 3. Motive to protect self-interest
- 4. predudice or other motive
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Impeachment by Capacity
- 1. Deals with the physical ability to observe, rememeber and relate those observations
- 2. Problems with perception
- 3. Problems with recollection
- 4. Problems with the ability to accurately relate
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Impeachment by Character
- 1. once on stande character for truthfulness is fair game
- 2. opinion and reputation for bad character and truthfulness
- 3. Certain prior convictions
- 4. Prior misconduct relevant to truthfulness
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Impeachment by Inconsistencies
Prior inconsistent statements
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Impeachment by contradiction
Facts that contradict the witness' version of events
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FRE 609 Analytical
- 1. Who is the witness
- 2. What is the punishment
- 3. Did the offense involve dishonesty or false statement
- 4. when was the conviction or release from prison
- 5. What balancing test mus be satisfied
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6 Factors to balance for the Balancing Test (Gordon)
- 1. Nature of the prior offense
- 2. How recent or remote is the prior offnse
- 3. Similarity of the prior offense to the crime charged
- 4. Extent and nature of overall record
- 5. Importance of credibility issues in the case
- 6. Importance of defendants Testimony
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