EVIDENCE CLASS OUTLINE



EVIDENCE CLASS OUTLINE

PROFESSOR HARGES FALL 2002

ONE: THE TRIAL – PREPERATION AND STRUCTURE

Arts 101-104A, 105

1 Introduction

i. Scope of Louisiana Code of Evidence

1. Governs proceedings in all courts of Louisiana Art 101

2. Became effective in 1989

3. Modeled after Federal Rules of Evidences

ii. Scope of Federal Rules of Evidence

1. Govern proceedings

a. in all courts of the United States, and

b. before United States bankruptcy judges and

c. United States magistrate Judges

iii. Purpose of the Louisiana Code of Evidence Art 102

1. These articles shall be construed to secure fairness and efficiency in administration of the law of evidence to the end that the truth may be ascertained and proceedings justly determined.

2 What Happens at a Trial?

iv. Jury Selection

1. A trial usually begins with jury selection called voir dire.

2. Jurors are the principal fact finders in trials in Louisiana.

3. Jury selection in Louisiana state courts consists of preliminary remarks by the judge to the panel of prospective jurors and the questioning of the panel by lawyers.

4. The role of the judge during jury selection is to preside over the proceedings and rule on objections made by the lawyers.

5. During voir dire both sides are allowed to challenge potential jurors.

6. A lawyer’s challenge of a juror prevents that individual from serving on the jury.

7. When a party wishes to exercise a challenge to a juror, its lawyer communicates such intent to the judge at a side-bar or bench conference. The judge then excuses the prospective juror, generally without disclosing to the individual the underlying reason.

8. There are two types of challenges

a. Peremptory challenges

i. A party is given a limited number

ii. May generally be exercised for any reason

iii. These challenges are designed to allow lawyers to exclude potential jurors that they believe may be harmful to their case.

iv. These challenges are usually based on a lawyer’s hunch, intuition or “gut reaction.”

b. Cause challenge

i. A party is given an unlimited number

ii. May be exercised when a prospective juror

1. lacks the qualifications the qualifications required by law,

2. cannot be impartial,

3. is related to one of the parties or lawyers or

4. Is unable to accept the law given to him by the court.

5. The trial judge has the discretion to decide whether prospective jurors will be excused for cause.

v. Opening Statement

1. Each party at a trial is allowed to give an opening statement.

2. The opening statement is an opportunity for each side to inform the jury of the nature of the case and to set forth the nature of the evidence that it will present at the trial.

3. The opening statement is not an argument.

a. Arguments should be reserved for closing arguments.

4. During the opening statements the lawyers identify themselves, their clients, the witnesses to be called, state the facts and in general try to persuade the jurors of the validity of its side.

vi. Presenting the Evidence Art 103, 104A, 105

1. The lawyers, as representatives of the parties, usually examine the witnesses and present evidence.

2. The trial judge presides over the trial.

a. The trial judge exercises control over the mode and order of interrogation of witnesses.

b. It is the responsibility of the trial judge to make evidentiary rulings at the trial.

3. The lawyers have the responsibility to make appropriate objections while the judge rules on the objections.

4. Ruling on Evidence Art 103

vii. Closing Argument

viii. The Jury Charge, Deliberations and Verdict

TWO: RELEVANCE AND THE EXCLUSION OF RELEVANT EVIDENCE

3 Introduction to Relevance

ix. It is determined by the trial judge.

x. If evidence is not relevant it is not admissible.

xi. It may be excluded for other reasons even if it is relevant.

4 Definition of Relevance

xii. Evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

1. Two Requirements

a. The evidence must relate to a fact that is of consequence to the determination of the case.

i. A fact of consequence is an issue or defense in the case.

b. The evidence must have some probative value.

i. Evidence has probative value when it makes the existence of a fact more or less probable than it would be without the evidence.

xiii. Relevant Evidence may be either direct or circumstantial

1. Direct evidence

a. Does not require the trier of fact to draw inferences before it can be admitted.

b. Is directly perceived by the witness, which tends to establish or negate a fact that is of consequence to the determination of the case.

c. Example: Evidence that Al saw Bill shoot Cee is direct evidence of the fact that Bill shot Cee.

2. Circumstantial evidence

a. Requires the trier of fact to make inferences by which a conclusion can be drawn.

b. Even if the circumstances for which the evidence is offered is accepted as true, additional inferences must be made before the evidence can be admitted for that factual proposition.

c. Example: the state wants to introduce evidence of the accused’s insatiable gambling habit to establish a motive for the robbery of a convenience store.

i. Even if it is proved that the accused has a gambling problem, the trier of fact must make certain inferences to conclude that the gambling habit was the motive for the robbery.

5 Conditional Relevance

xiv. The relevancy of a particular item of evidence depends on the fulfillment of a related condition of fact.

xv. The judge has the discretion to admit conditionally relevant evidence upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition.

6 The exclusion of Relevant Evidence that is Unfairly Prejudicial

xvi. Relevant 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 considerations of undue delay, or waste of time.

xvii. Balancing Test Art 403

1. Relevant evidence is excluded if the policy considerations substantially outweigh the probative value of the evidence.

2. This is meant to promote fairness by ensuring that the proceedings are justly determined and that they are not tainted by improper or emotional considerations.

THREE: COMPETENCY OF WITNESS

7 In general

xviii. Art 601 Every person of proper understanding is competent to be a witness except as otherwise provided by legislation.

xix. Art 603 Before testifying, every witness shall be required to declare that he will testify truthfully, by oath or affirmation administered in a form calculated to awaken his conscience and impress his mind with his duty to do so.

xx. Art 604 An interpreter is subject to the provisions of this code relating to qualification as an expert and the administration of an oath or affirmation that he will make a true translation.

8 Determination of Competency

xxi. Art 104A The question of a person’s competency is determined by the trial judge.

A. Competency of Children

i. In Louisiana, understanding, not age, is the test of whether any person is competent to testify.

ii. In this sense, a child witness is treated as any other witness.

iii. If the child is of proper understanding, he is competent to testify.

iv. In determining the competency of a child, the trial judge should ascertain whether the witness is able to understand the difference between truth and falsehoods.

B. Mental and Physical Capacity

i. Mental Capacity

1. An insane person will be considered competent to testify in Louisiana as long as he is of proper understanding.

2. The fact that a person is mentally incapacitated goes to his credibility as a witness, not his competency.

3. The test is whether the person understands his duty to speak the truth. If he does, he is competent to testify.

ii. Physical Capacity

1. Questions of physical competency are usually raised when a witness is blind, deaf, or mute.

2. As long as the witness is of proper understanding, he is competent to testify.

3. Physical limitations such as a person’s deafness, blindness or muteness may affect the witness’ ability to perceive and relate events, thereby affecting his credibility at the trial.

4. However, these limitations do not affect his competency.

C. Competency of a Judge as a Witness

i. Art 605 The judge presiding at the trial may not testify in that trial as a witness.

D. Competency of a Juror as a Witness

i. Art 606 A member of the jury may not testify at the trial at which he is sitting as a juror.

ii. Art 606B Jurors are allowed to testify as to whether any outside influence was improperly brought to bear on their deliberations.

E. Competency of a Lawyer as a Witness

i. There is nothing in the Louisiana Code of Evidence that renders a lawyer incompetent to testify at a trial in which he represents a party.

1. Hence, a lawyer is a competent witness in Louisiana.

ii. Because of the possibility that a jury would give far greater weight to the testimony of a lawyer than to that of an ordinary witness, a lawyer should not be allowed to testify at a trial in which he represents a party unless there are exceptional circumstances.

F. Dead Man’s Statute

G. Competency of a Lay Witness

i. Lay witnesses are required to testify based on their personal knowledge. Art 602

ii. Personal knowledge means information obtained by a witness firsthand through his senses.

iii. A lay witness may testify about his opinions or inferences only if the opinions or inferences are

1. rationally based on the perception of the witness; and

2. Helpful to a clear understanding of his testimony or the determination of a fact in issue.

iv. The perception requirement means that a lay witness may express an opinion or inference only if it is rationally based on things perceived by him firsthand.

H. Competency of Expert Witnesses

i. Qualification of Expert Witness

1. If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Art 702

ii. Bases of Opinion Testimony by Expert Witnesses

1. The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or make known to him at or before the hearing. Art 703

iii. The Admissibility of Expert Testimony Based on Scientific Evidence

1. See Art 702 - 703

iv. Testimony of the Ultimate Issue

1. Testimony in the form of an opinion or inference otherwise admissible is not to be excluded solely because it embraces an ultimate issue to be decided by the trier of fact. However in a criminal case an expert witness shall not express an opinion as to the guilt or innocence of the accused. Art 704

FOUR: CHARACTER AND HABIT EVIDENCE

9 Introduction to Character Evidence

v. Character evidence is circumstantial proof that the accused’s action on the occasion in question is in conformity with his conduct.

vi. Limits have been placed on the admissibility of character evidence.

1. Character evidence is not admissible for the purpose of proving that a person acted in conformity with his character on a particular occasion. Art 404A

a. Propensity: If he did it before, then he is more likely to do it again. This is generally excluded.

I. Character in Civil Cases

i. Evidence of a person’s character or trait of his character is not admissible in a civil case to show that he did not do a particular act on a particular occasion.

1. Example: in a civil action of assault and battery where the plaintiff denies the altercation, the defendant cannot introduce evidence that the plaintiff is known to be a violent person.

J. Character in Issue Art 404A

i. Character evidence is admissible in cases where character is directly at issue.

1. Defamation

2. False Imprisonment

3. Entrapment

4. Malicious Prosecution Cases

ii. Character is seldom a direct issue in criminal cases.

iii. Character evidence is admissible when it is an element of the defense. Art 404A

iv. Form that may be used is specific acts. Art 405

K. Character in Criminal Cases

i. Two exceptions to the general rule of inadmissibility of character evidence. Art 404A(1)(2)

1. Evidence of the good character of the accused may be introduced by the accused, and the prosecution may rebut it by offering evidence of the accused’s bad character.

2. Evidence of a pertinent bad character trait of the victim may be introduced by the accused, and the prosecution may rebut that evidence with evidence of a pertinent good character trait.

ii. Art404A(1) permits the accused to offer evidence of a pertinent character trait as circumstantial evidence that the accused’s actions, which are in question, were in conformity with his good character.

1. Such evidence infers that a person with these moral qualities could not have committed the crime for which the accused is charged.

2. By using the word pertinent, the article is referring only to those character traits that are relevant.

3. Example: In a charge of forgery the defendant may offer evidence of his honest disposition.

iii. Placing the accused’s character at issue

1. Evidence of the accused’s character trait must be first offered by the accused.

2. Once the accused has offered evidence of a character trait, it is said that he has “opened the door” for attack by the prosecution.

3. In this instance, the accused has only opened the door with reference to that character trait that he has placed at issue.

iv. Proving Character.....Form

1. When character evidence is offered under Art 404A(1), the requirements of form under Art 405 must also be met.

2. Three types of form

a. Reputation

i. Is adduced by asking the witness acquainted with the community view of the subject to report on the general regard.

ii. May be used under 404A

b. Specific acts

i. The witness is permitted to recount otherwise unconnected incidents in which the subject behaved in a manner exhibiting the characteristic in question.

ii. Allowed on cross-examination of the character witness

iii. Allowed when character is at issue.

c. Opinion

i. We mean simply that a witness may recite his own opinion of the subject’s character as to the relevant trait.

ii. Not allowed at all in Louisiana

3. Foundation:

a. Before a person may be permitted to testify to the reputation of another person, a foundation must be established that the witness is familiar with that reputation.

FIVE: EXAMINATION AND IMPEACHMENT OF WITNESSES

WHEN IS CHARACTER EVIDENCE ADMISSIBLE?

A. To COMMUNITY REPUTATION regarding character, where:

1. A pertinent trait of the accused is offered by him, or by the prosecutor to rebut the same; Art. 404(A)(1)

2. A pertinent trait of a crime victim is offered by the accused (after accused shows victim’s overt act or hostile demonstration), to show that the victim was the first aggressor or by the prosecution to rebut the same (appreciable evidence of overt act). Art 404(A)(2)

3. Character of victim - evidence of dangerous character of victim is admissible when the accused pleads self defense in BWS type case. Art. 404(A)(2)

4. The trait of peacefulness of the victim is offered by the prosecution in a homicide case to rebut evidence that the victim was the first aggressor. Art. 404(A)(2)(b)

5. The trait in question is an essential element of the charge, claim or defense. Art. 405(A)

6. The trait of veracity of a witness (credibility) is attacked or supported. Art. 608(A)

B. To SPECIFIC ACTS as evidence of character:

1. Character of victim - specific instances of conduct and domestic violence are admissible when the accused pleads self defense in BWS type cases .Note also that expert’s opinion of accused’s state of mind is admissible. Art. 404(A)(2)

2. Character of victim - specific instances of conduct (prior dangerous acts) admissible to show accused’s state of mind (reasonable apprehension of danger) when the accused pleads self defense. Note that accused must know of such acts at time of offense. Case law

3. For "KIPPOMIA" (non-character purpose). 404(B)(1)

4. Character of victim - specific instances of conduct and domestic violence are admissible in BWS type case. 404(B)(2)

5. On cross-examination generally 405(A)

6. On cross-examination specifically concerning the trait of veracity of a witness or of another person to whose character the witness has testified; 608(B)

7. Where the trait in question is an essential element of the charge, claim or defense; 405(B)

8. Consisting of prior sexual behavior of a rape victim with persons other than the D to show D was not the source of semen or injury, if within 72 hours of offense. 412(B)(1)

9. Consisting of prior sexual behavior of a rape victim with the D to show consent. 412(B)(2)

10. If the act was a crime for which the D was convicted and it was a punishable by death or imprisonment in excess of 6 months and probity outweighs prejudice. 609 [civil case]

11. If the act was a crime for which the D was convicted and it was an offense of any grade involving dishonesty or false statement (no balancing of probity v. prejudice). 609 [civil case]

12. Any crime 609.1 [criminal case]

13. To show HABIT of a person or ROUTINE practice of an organization to prove conduct in accordance therewith on a particular occasion. Art. 406

C. To OPINION as evidence:

1. To show HABIT of a person or ROUTINE practice of an organization to prove conduct in accordance therewith on a particular occasion. Art. 406

II. A witness MAY NOT testify, except as above:

Art. 404(A)-(B) - [PROPENSITY BAR].

A. Concerning any person's character, character trait or other crimes, wrongs, or acts, in order to prove that he acted in conformity therewith on any particular occasion

Art. 412(A)-(B)[Rape shield statute].

B. Nor may any person give reputation, opinion, or other evidence of the past sexual behavior of a rape victim.

SIX: HEARSAY

A. THE DEFINITION

Hearsay is a statement, other than one made by the declarant while testifying at the present trial or hearing, offered in evidence to prove the truth of the matter asserted. 801(C)

A "Statement" is: 801(A)

(1) An oral or written assertion; or

(2) Nonverbal conduct of a person, if it is intended by him as an assertion.

A "Declarant" is a person who makes a statement. 801(B)

Harges definition – Out of court statement[OCS] presented for the truth of the matter asserted [TOMA] (of the statement) is hearsay

OCS + TOMA = Hearsay

2 + 2 = 4

When is an OCS hearsay?

• The repeated OCS must be offered for the purpose of proving that what the declarant said is true.

• That is, the OCS is hearsay only if the proponent seeks to have the factfinder rely on the declarant’s credibility

B. STATUTORY NON-HEARSAY

Prior Statements of Witnesses 801(D)(1) – The declarant testifies at the trial or hearing AND is subject to cross-examination concerning the statement, and the statement is:

a) Prior inconsistent statement of witness in criminal cases; 801(D)(1)(a)

b) Prior consistent statement of witness 801(D)(1)(b)

c) Prior statement of identification of [by] a witness 801(D)(1)(c)

d) Prior initial complaint of sexually assaultive behavior 801(D)(1)(d)

(4) Things said or done. The statements are events speaking for themselves under the immediate pressure of the occurrence, through the instructive, impulsive and spontaneous words and acts of the participants, and not the words of the participants when narrating the events, and which are necessary incidents of the criminal act, or immediate concomitants of it, or form in conjunction with it one continuous transaction.

SEVEN: STATUTORY NON-HEARSAY

La. C,E. Art. 801(D)

EIGHT: HEARSAY EXCEPTIONS NOT REQUIRING UNAVAILIBILITY

Art. 803. Hearsay exceptions; availability of declarant immaterial –

The following are not excluded by the hearsay rule, even though the declarant is available as a witness:

1) Present sense impression.

2) Exited utterance

3) Then existing mental, emotional, or physical condition. – A statement of memory belief is not admissible.

4) Statements for purposes of medical treatment and medical diagnosis in connection with treatment.

5) Recorded recollection.

6) Records of regularly conducted business activity.

7) Absence of entry in records of regularly conducted business activity.

8) Public records and reports.

9) Records of vital statistics.

10) Absence of public record or entry.

11) Records of religious organizations

12) Marriage, baptismal, and similar certificates.

13) Family records

14) Records of documents affecting an interest in property

15) Statements in documents affecting an interest in property

16) Statements in ancient documents

17) Market reports, commercial publications

18) Learned treatises

19) Reputation concerning personal or family history.

20) Reputation concerning boundaries or general history

21) Reputation as to character.

22) Judgment of previous conviction.

23) Judgment as to personal, family, or general history, or boundaries

24) Testimony as to age.

EXPERT TESTIMONY

Art 702

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.

Types of expert

Educating witness

Opinion witness

History of expert testimony

Late 19 century – focus was on the expert’s qualifications

1923 – Frye general acceptance test – focus shifted to expert’s methodology & procedures

1975 – Fed. Rules of Evidence become effective

1989 – LA C E becomes effective

1993 – Daubert – scientific testimony

argument – not reliable

is scientific analysis relevant & reliable

1993 – State v. Foret – LA Supreme Court adopts Daubert

1999 – Kumho – non-scientific testimony (technical or other specialized testimony)

USSC said Daubert principals apply to all of FRE 702

Qualifications Methodology

1923 – scientific methodology

1993 – relevant and reliable

examples

Cardiologist in medical malpractice case

Medical Examiner

Other scientific evidence a/k/a “soft science”

Behavioral science

Social science

Examples include

Psychology

Psychiatry

Social work

Counseling

The point is Daubert applies to all

Technical or other sp. Evidence

Business consultant

Experienced narcotics officer

Roofer

Mechanic

CPA

Problem 3-24

Relevant?

2 parts

a. qualifications - is the witness reliable

b. methodology - is the evidence relevant and reliable

after he comes in, is it relavent,

balancing test

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