announcement--fri. apr. 3, 12 noon--tue. apr. 7, 12 noon--park mccall--law school cafeteria--ask your casual eviden

1. 1 Note: I was not able to do all the preliminary inconsistent statement question, the Abel stuff, and also do the entire witness examination (I had to skip the drunk driving part). So you may need to shorten this. Note: I was not able to do all the preliminary inconsistent statement question, the Abel stuff, and also do the entire witness examination (I had to skip the drunk driving part). So you may need to shorten this.

2. 2 Hearsay - This is a loser when the statements is offered only for impeachment. It either fits 801(d)(1)(A), in which case it is admissible as substantive evidence, or 801�, in which case it is admissble with a limiting instruction. --Statement is not inconsistent. E.g., Officer on stand testifies to smelling marijuana, police report doesn�t mention it. This is a loser too. It doesn�t have to be flatly inconsistent � red light one time, green light the next. If the prior statement throws doubt on the credibility of the in-court statement, that�s enough. 3. No foundation for extrinsic evidence. The witness has to be given a chance to explain or deny in order for extrinsic evidence to be admissible. Some jurisdictions require a prior chance, FRE only require a chance at any time. --Collateral impeachment. See Park, Leonard and Goldberg, p.510-12. Turkey sandwich and ham sandwich example. Hearsay - This is a loser when the statements is offered only for impeachment. It either fits 801(d)(1)(A), in which case it is admissible as substantive evidence, or 801�, in which case it is admissble with a limiting instruction. --Statement is not inconsistent. E.g., Officer on stand testifies to smelling marijuana, police report doesn�t mention it. This is a loser too. It doesn�t have to be flatly inconsistent � red light one time, green light the next. If the prior statement throws doubt on the credibility of the in-court statement, that�s enough. 3. No foundation for extrinsic evidence. The witness has to be given a chance to explain or deny in order for extrinsic evidence to be admissible. Some jurisdictions require a prior chance, FRE only require a chance at any time. --Collateral impeachment. See Park, Leonard and Goldberg, p.510-12. Turkey sandwich and ham sandwich example.

3. 3 References: Fed. R. Evid. 801(c), 801(d)(1)(A CEC �� 1235, 770 True in federal court, false in CA state court True in both False in both False in federal court, true in CA state court

4. 4 Objection to prior consistent statement Tome case, p. 513: Statements offered under Rule 801(d)(1)(B) to rebut a charge of recent fabrication or improper influence or motive are admissible only when those statements were made before the motive for fabrication or influence arose.

5. 5 United States v. Abel, p. 520 United States Supreme Court, 1984 For the prosecution, Ehle testified that he and the accused (Abel) participated in a bank robbery. For the defense, Mills testified that Ehle told him he was going to lie in order to curry favor by incriminating Abel. For the prosecution, Ehle testified that he, Mills and Abel were all members of a secret prison organization whose tenets required members to deny its existence and �lie, cheat, kill [and] steal� for each other. Question: What was the relevance of Ehle�s testimony about the prison gang? Answer to question: Ehle said it would have been suicide for him to have told Mills what Mills said he told him. It also shows Mills� bias. (It�s not clear this is a good question.)Answer to question: Ehle said it would have been suicide for him to have told Mills what Mills said he told him. It also shows Mills� bias. (It�s not clear this is a good question.)

6. 6 The strongest argument in favor of excluding Ehle�s testimony that the three individuals belonged to a secret prison organization whose tenets required members to �lie, cheat, kill and steal for one another� was It is prejudicial evidence precluded by Rule 403 It is extrinsic evidence precluded by Rule 608(b) In describing the tenets of the gang, the witness is repeating an out-of-court statement barred by the hearsay rule. On the prejudice point. The trial judge already excluded the name of the gang (Aryan Brotherhood) as too prejudicial. How about excluding its odious tenets and just have him testify that they were part of the same prison gang? Ans. Just to say that they were part of the same prison gang wouldn�t support the witness� claim that it would have been �suicide� for him to have told Mills what Mills said he did. On the prejudice point. The trial judge already excluded the name of the gang (Aryan Brotherhood) as too prejudicial. How about excluding its odious tenets and just have him testify that they were part of the same prison gang? Ans. Just to say that they were part of the same prison gang wouldn�t support the witness� claim that it would have been �suicide� for him to have told Mills what Mills said he did.

7. 7 The Supreme Court held that the testimony about the tenets of the prison gang was -- Admissible Inadmissible I haven�t read the case.

8. 8 Reasoning of the Supreme Court (p. 522): Rule 402 says that relevant evidence is admissible unless otherwise provided by the Constitution, Act of Congress, or these rules. Bias evidence is relevant. It is not prohibited by the Constitution, an Act of Congress, or the Federal Rules of Evidence. Therefore it is admissible. Take-away lesson: There doesn�t have to be a specific rule saying that a certain type of evidence is admissible. If it�s relevant and there�s no rule against it, then it comes in.

9. 9 True. False

10. 10 Hypo. Plaintiff sues the Chair of the Biology Department in a dog bite case. Prof. X, a biologist, testifies for the plaintiff. Would the defendant be allowed to ask Prof. X whether Prof. X had recently been denied an NIH grant because he fabricated the results of a biology experiment? Yes No It depends.

11. 11 Hypo. Same dog bite case. If Prof. X denied fabricating the results of a biology experiment, would defendant be allowed to call a witness to testify that Prof. X confessed the fabrication to her? Yes No It depends.

12. 12 Hypo. Same dog bite case against the Chair of the Biology Department. If Prof. X denied fabricating the results of the biology experiment, would defendant be allowed to call the Chair to testify that she had disciplined Prof. X for fabricating the results of a biology experiment? Yes No It depends. Spring 2009: On the first polling, less than half said �1.� After discussion with neighbors, it went up to 58%. Spring 2009: On the first polling, less than half said �1.� After discussion with neighbors, it went up to 58%.

13. 13 Mock trial objection exercise Object if any questions are objectionable. Possible grounds for objection include: Hearsay Character attack No personal knowledge Improper impeachment Minor objections to form, such as: Leading question Assumes a fact not in evidence Calls for a narrative answer Cross beyond the scope of direct

14. 14 From Roger Park 2009From Roger Park 2009

15. 15 From Roger Park 2009From Roger Park 2009

16. 16 From Roger Park 2009From Roger Park 2009