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Table of Contents 1. Introduction to Evidentiary Foundations §100 In General: Laying a Foundation §100.1 Miscellaneous Tools for Foundations (Documents, Discovery Responses and Prior Testimony) §100.2 Inapplicability of the Federal Rules §100.3 Purpose and Construction of the Rules §101 Witness Preparation §102 Witness Preparation Checklist §110 Direct Examination §111 Judicial Control Over Presentation of Evidence §112 Judicial Control Over Jury’s Right to Interrogate Witness §113 Judicial Control Over Structuring Admission of Evidence §120 Cross-Examination §121 Judicial Control of Cross-Examination §122 Requests for Admissions §130 Trial Tactics §131 Deficiencies §131.1 Effects of Erroneous Rulings §132 Objections §132.1 Responding to Objections §132.2 Remedial Actions §132.3 Objections Based on Prejudicial Evidence §133 Offers of Proof §133.1 Plain Error Doctrine §134 Rule of Completeness §135 Harmless Error Doctrine §136 Constitutional Error §140 Practice Pointers 2. Trial Proceedings and Motions §200 In General §201 Voir Dire §202 Opening Statements §202.1 Checklist on Opening Statements §203 Closing Arguments §203.1 Checklist on Closing Arguments §210 Motions in Limine §210.1 Appealability of Motions in Limine §211 Conditional Relevance §212 Curative Admissibility §220 Motion to Strike §230 Motion to Voir Dire §240 Request for Limiting Instructions §250 Motions Heard Outside Presence of Jury §251 Pretrial Testimony by Accused §251.1 Special Cases: Testimony by the Accused in Criminal Cases (Arguments by the Prosecutor) §252 Attacking Weight or Credit to Be Given Evidence §260 Practice Pointers 3. Witnesses §300 In General §310 Competency: General §311 Competency to Stand Trial §312 Criminal Responsibility §320 Competency: Specific Areas §321 Personal Knowledge §322 Child Witness §322.1 Self Representation Right and Child Witness §322.2 Guidelines for Child Witness Testimony §322.3 Statutory Presumption of Child Witness’ Competency to Testify §323 Witness Spouse §324 Miscellaneous Attacks on Competency §324.1 Dead Man’s Statutes (Survivorship Statutes) §324.2 Felons §324.3 Language Barriers §324.4 Inability or Unwillingness to Take Oath §324.5 Testimonial Privileges §324.6 Insanity §324.7 Mental Deficiency §324.8 Judges §324.9 Jurors §324.10 Hypnosis §324.11 Attorneys §324.12 Narcotics Users §324.13 Facilitated Communication §325 Witnesses Called by the Court §330 Credibility: Establishment §331 Prior Identification §332 Fresh Complaint §333 Expert Testimony Relating to Credibility §340 Credibility: Attack §341 Impeachment §341.1 Prior Bad Acts §341.2 Character Trait of Untruthfulness §341.3 Convictions §341.4 Bias §341.4.1 Evidence of Pending Charges Against State Witnesses §341.5 Prior Inconsistent Statements §341.6 Deficiencies in Mental or Physical Capacity §341.6.1 Psychiatric Testimony to Attack a Witness’ Competency §341.7 Exclusion of Witnesses §341.8 Impeachment of a Party’s Own Witness §341.9 The Empty Chair Doctrine §341.10 Impeachment Through Other Witness Contradiction §341.11 Impeachment of Hearsay Declarants §350 Rehabilitation §351 Prior Consistent Statements §352 Character Trait of Truthfulness §353 Underlying Acts Resulting in Conviction §354 Rehabilitation of Hearsay Declarants §355 Rehabilitation Through Evidence Attacking Party’s Prior Bad Act §356 Rehabilitation: Daubert Challenges §360 Practice Pointers 4. Opinion Evidence §400 In General §410 Lay Witness §411 Collective Fact Opinion §412 Skilled Lay Observer Testimony §420 Experts §421 Medical Experts §422 Economic Experts §423 Forensic Experts §423.1 Technical Experts §424 The Daubert Standard §424.1 Daubert on Remand §424.2 Daubert and Non-Scientific Evidence §424.3 Standard of Review on Daubert Rulings §424.4 Daubert and Kumho Tire §425 Eyewitness Identification §426 Battered Woman Syndrome §427 Battered Child Syndrome §428 Rape Trauma Syndrome §430 Practice Pointers 5. Authentication §500 In General §510 Writings: Private §520 Writings: Business §530 Writings: Official §540 Oral Statements §550 Audio Recordings §560 Video Recordings §560A Evidence Rules Applicable to Computer-Generated Evidence §560B Authentication and Identification of Computer-Generated Evidence §560C Particular Types of Computer-Generated Evidence §570 Real or Physical Evidence §580 Demonstrative Evidence §581 Specific Forms §582 Miscellaneous Scientific Evidence §583 Application of Rule 403 to Real Proof and Demonstrative Evidence §590 Practice Pointers 6. Hearsay §600 In General §610 Assertive Versus Non-Assertive Conduct §620 Hearsay Versus Non-Hearsay Purpose §621 Prior Statement by Witness §622 Former Testimony §623 Judicial Findings of Fact §624 Confrontation Clause Issues §630 Admissions §631 Personal §631.1 Confessions §631.2 Suppression of Confessions, Admissions and Other Incriminating Evidence §632 Adoptive §633 Vicarious §633.1 Co-Conspirator Statements §634 Rule 36 Admissions §635 Judicial Admissions §640 Declarations §641 Against Interest §641.1 Bruton - Declarations Against Interest §641.2 Defense Use of Third Party Exculpatory Statements §642 State of Mind §643 Bodily Condition/Medical Diagnosis and Treatment §644 Anticipation of Death §645 Residual Exception §650 Records §651 Business §651.1 Authentication of Domestic and Foreign Records §652 Official §652.1 Records of Vital Statistics §652.2 Absence of Public Record or Entry §652.3 Records of Religious Organizations §652.4 Records of Marriage, Baptismal, and Similar Certificates §652.5 Family Records §652.6 Records of Documents Affecting an Interest in Property §652.7 Statements in Documents Affecting an Interest in Property §652.8 Statements in Ancient Documents §652.9 Market Reports and Commercial Publications §653 Prior Testimony §654 Past Recollection Recorded §655 Present Recollection Refreshed §656 Other Hearsay Exceptions §656.1 Learned Treatises §656.2 Reputation Concerning Personal or Family History §656.3 Reputation Concerning Boundaries or General History §656.4 Reputation as to Character §656.5 Judgment of Previous Conviction §656.6 Judgment as to Personal, Family, General History, or Boundaries §656.7 Catchall Hearsay Exceptions §656.8 Witness Intimidation §656.9 Forfeiture by Wrongdoing §657 Affidavits and Depositions §660 Excited Utterances §670 Present Sense Impression §680 Practice Pointers 7. Privileges §700 In General §701 Application of State Law §710 Waiver §711 In Court §712 Out of Court §712.1 Potential Waiver of Opinion Work Product Privilege and Attorney-Client Privilege When Privileged Materials Are Shown to a Testifying Expert Witness §713 Practice Pointers §720 Specifics §721 Work Product §721.1 Absolute Work Product Privilege §722 Attorney-Client §722.1 Appellate Review of Orders Compelling Disclosure of Attorney-Client Communications §722.2 The Attorney-Client Privilege and Corporations §723 Physician-Patient §723.1 Psychotherapist-Patient §724 Clergyman §725 Husband and Wife §725.1 Parent-Child Privilege §726 Trade Secrets §726.1 Self-Evaluation Privilege §727 Government Information (Identity of Informants), Military Secrets, State Secrets, Decision-Making and Deliberative Process §728 Journalist’s Privilege §729 Accountant-Client §730 Self-Incrimination 8. Other Evidence Rules §800 In General §801 Relevant Evidence §802 Relevant Evidence Versus Irrelevant Evidence §803 Exclusion of Relevant Evidence §804 Recurrent Factual Issues §804.1 Similar Incidents §804.2 Consciousness of Guilt §804.3 Possession of Weapons or Other Criminal Paraphernalia §804.4 Evidence of Indebtedness §804.5 Codes and Standards §804.6 Profile Evidence §810 Original Documents (Best Evidence Rule) §820 Compromise Statements: Civil and Criminal §821 Payment of Medical and Similar Expenses §830 Subsequent Remedial Measures §840 Consent Orders/Stipulations §841 Confessions §842 Jury Views §850 Judicial Notice §851 Presumptions §852 Stipulations §860 Prior Convictions/Sentence Enhancement §861 Victim Impact Evidence §870 Liability Insurance §880 Character and Habit Evidence §880.1 Amendments to Rules on Evidence of Accused’s Character §880.2 Habit and Corporations §880.3 Similar Happenings Evidence §881 Character of a Witness §882 Methods of Proving Character §883 Habit and Routine Practice §884 Sex Offense Cases §885 Experts and Character Evidence §890 Motions to Suppress Evidence §891 Practice Pointers §892 Spoliation of Evidence H7 |
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