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A judge can’t use judicial notice to enforce personal beliefs. Official weather records of precipitation times and amounts of rain, for example, could be a subject of judicial notice, but where there is a dispute about the slipperiness of a surface based on each driver’s testimony, it is up to the jury to decide that. It was reversible error for the judge to effectively take a credibility determination on a key point away from the jury. Judicial notice may be employed only if the facts in question are "not subject to reasonable dispute;" if they are "capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Fed.R.Evid. 201(b).
Rule 801 of the Federal Rules of Evidence defines hearsay and gives two instances of non-hearsay evidence. One of these non-hearsay categories is Admissions by Party-Opponent. Rule 801(d)(2) covers the situation of an admission by party-opponent. 801(d)(2)(B) covers “a statement of which the party has manifested an adoption or belief in its truth…” In this question, the defendant company adopted the deceptive information in the news articles as its own, therefore making it a party admission, when it copied and distributed the material to customers.
A waiver has occurred where a party raises a claim or defense that puts privileged communications in issue. It is considered to be “fair play” to allow the other party to probe into the details of the advice given. See Chevron Corp. v. Pennzoil Co., 974 F.2d 1156, 1162-63 (9th Cir. 1992); United States v. Workman, 138 F.3d 1261 (8th Cir. 1998).
Rule 601 of the Federal Rules of Evidence states the general rule that “[e]very person is competent to be a witness…” This is a broader rule than in most state courts where there are still tests for competency. Despite the sweeping statement of competency in the federal rules, however, it is still held that the trial judge has wide discretion in determining the competency of the witness. Rarely will the trial judge’s determination be overruled, except in an egregious case of complete incompetency of the witness.
Rule 403 of the Fed. Rules of Evidence permits the court to exclude evidence whose probative value is substantially outweighed by the danger of unfair prejudice or other factors. The rule is to be applied cautiously and sparingly. The fear of unfair prejudice does not work to keep vital details of the murder and how it happened away from the jury. See, for example, U.S. v. McRae, 593 F.2d 700, 707 (5th Cir. 1979), cert. denied, 444 U.S. 1024 (1979).
Unsupported speculation and conclusions does not meet the reliability requirements of the Daubert test as embodied in Rule 702. There was no personal examination, and no examination of x-rays, which puts the testimony in the speculative realm from the beginning. No explanation of why other causes are ruled out. These all make this highly speculative testimony. Furthermore, the proposed testimony does not even explain how the alleged negligence caused the actual current symptoms. See, for example, McCollin v. Synthes Inc., 50 F. Supp. 2d 1119 (D. Utah 1999).
Rule 609(a)(2) provides for the use of any prior conviction involving “dishonesty or false statement” for purposes of impeaching credibility. Convictions of these crimes are admissible without regard to the balancing test of Rule 403. See United States v. Kiendra, 663 F.2d 349, 353-55 (1st Cir.1981). In fact, admission of these is mandatory, and not within the discretion of the district court. Id.; United States v. Tracy, 36 F.3d 187, 192 (1st Cir.1994), cert. denied, 514 U.S. 1074, 115 S.Ct. 1717, 131 L.Ed.2d 576 (1995) (citing H.R. Conf. Rep. No. 93-1597, 93rd Cong., 2d Sess. 9, U.S. Code Cong. & Admin.News 1974, 9. 7098 (1974)). These “crimen falsi” crimes involve some element of deceit, untruthfulness, or falsification bearing on the accused's propensity to testify untruthfully. Forgery is clearly in that category but the other two offense would not inherently call up issues of dishonesty. Courts considering forgery in light of Rule 609(a)(2) have concluded it is a crime of dishonesty. See, e.g., United States v. Owens, 23 Fed. Appx. 550 (7th Cir.2001); United States v. Newman, 849 F.2d 156 (5th Cir.1988); United States v. Bay, 748 F.2d 1344 (9th Cir.1984). See also, US v. Mahone, 328 F. Supp. 2d 77 (D. Maine 2004).
Rule 404(b) allows evidence of prior crimes, wrongs or acts to be admissible for purposes other than showing character, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. The prosecution provided no further explanation beyond conclusory statements, and the district court similarly gave little explanation for its ruling admitting this highly sensitive evidence. Under the circumstances, its admission was far more prejudicial than its meager probative value. See US v. Murray, 103 F. 3d 310 (3d Cir. 1997).
Rule 803(6) of the Federal Rules of Evidence allows admission of records of regularly conducted business activities. The foundation requirement for Rule 803(6) "may be satisfied by the testimony of anyone who is familiar with the manner in which the document was prepared, even if he lacks firsthand knowledge of the matter reported, and even if he did not himself either prepare the record or even observe its preparation." 4 Louisell and Mueller, Federal Evidence, § 446, at 663-64 (1979). Objections to the identity or competency of the actual preparer may be relevant to the evidentiary weight or credibility of the documents, but do not affect their admissibility. See United States v. Smith, 609 F.2d 1294, 1302 (9th Cir.1979) (quoting United States v. Evans, 572 F.2d 455, 490 (5th Cir.1978).
An excited utterance is made within a very slight passage of time after the incident. It relates to a startling event or condition. The declarant must still be under the stress caused by the incident when she makes the statement. See, for example, David by Berkeley v. Pueblo Supermarket, 740 F.2d 230, 234-35 (3d Cir. 1984).
The privilege protects only communications made for the purpose of facilitating the rendition of professional legal services. If attorney is performing some ministerial act like sending a document to the client or informing him of a date set in the future, these are not the giving of professional legal services and thus are exempt from the privilege. If the attorney is acting as a business adviser or in some non-legal capacity, this is not protected by the privilege. Other exceptions to the privilege are if the material was intended to be disclosed, if they were not communications, or if they were agreed to be non-privileged. Also, if the communications are within the fraud-crime exception, and would tend to further the commission of a crime, they are not protected and are admissible. Here, this was classic legal advice, and it was not followed by the client and the advice did not serve to further the crime. See U.S. v. Bauer, 132 F.3d 504 (1997).
The jury must decide criminal intent not just from the act of taking, but from all of the circumstances in arriving at a decision of whether there was sufficient evidence of criminal intent. Legal presumptions of criminal intent are generally telling the jury to assume intent from an isolated fact and would prejudge a conclusion which the jury should reach of its own volition. Intent is decided from all of the facts, not just the act of taking something.
Rule 602 of the Federal Rules of Evidence prohibits a witness from testifying to matters about which she has no personal knowledge. A foundation of personal knowledge must first be established. Here, the records upon which she based her opinions were not authenticated and not entered into evidence, making her testimony hearsay. If the records had been properly entered, her testimony might have been allowed if a proper foundation was established based on her familiarity with such records.
The statement is not hearsay as it is not offered for the truth of the matter asserted. The assertion by the wife that the husband would not come home as long as the police were there, was not a contention in issue. The statement was offered to prove that the defendant lived there. Whether he would come home and, if not, why not, was not in issue. Therefore, the statement was not offered to prove the truth of the matter asserted and, by definition, was not hearsay. See Fed.R.Evid. 801.
This exception is set forth in Rule 803(1) of the Federal Rules of Evidence: “A statement describing an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter.” The question often arises whether the statement has been made too long after the actual events, which would give the declarant time to reconsider and reconstruct her words. However, there are many cases that have approved the exception on a longer time gap. It is unlikely that ten minutes would be considered too long, especially under these facts where the events were still occurring and the arrest had not even been made. See, for example, United States v. Hawkins, 59 F.3d 723, 730 (8th Cir. 1995).
In Olden v. Kentucky, 488 U.S. 227 (1988), the Supreme Court held that the defendant had a constitutional right to introduce evidence of the complainant’s relationship with another man in order to show that she had a motive to falsely accuse the defendant of rape. Rule 412 of the Federal Rules of Evidence prohibits evidence of prior sexual behavior of the victim, but it excepts from the rule situations where the evidence may prove that a person other than the accused may be the source of the semen, injury or other physical evidence. Further, the Rule makes an exception in criminal cases for evidence that the defendant has a constitutional right to present in his defense.
The main question to be decided is whether the earlier event is similar enough to allow for valid comparisons. See, Nachtsheim v. Beech Aircraft Corp., 847 F. 2d 1261 (7th Cir. 1988). A trial court’s balancing of factors under Fed.R.Evid. 403 is governed by the abuse of discretion standard and will be accorded “great deference” on appeal. Before the proponent can admit evidence of similar accidents it must establish substantial similarity before the evidence will be admitted. Nachtsheim, 847 F. 2d at 1268-69. As the circumstances and conditions of the other accidents become less similar to the accident under consideration, the probative force of such evidence decreases. At the same time, the danger that the evidence will be unfairly prejudicial remains. Id at 1269. See also McKinnon v. Skil Corp., 638 F.2d 270, 277 (1st Cir. 1981) (trial court has great discretion). In this case, the two events were clearly too different from each other to allow the earlier one into evidence.
The asking of leading questions on direct is generally forbidden. Here, it was directed wrongly toward identification of the opposing party, on the main critical issue in contention. That was highly prejudicial to the defendant and could not be corrected after the mistake was made.
The describing of the relationship with the mother’s boyfriend was such that his identity as the girl’s abuser was reasonably pertinent to her course of treatment. The abuser's identity is admissible under Rule 803(4) where the abuser has such an intimate relationship with the victim that the abuser's identity becomes `reasonably pertinent' to the victim's proper treatment. The doctor questioned the girl regarding the incidents of abuse and the identification of the abuser for the purpose of deciding on treatment. There is no evidence the girl did not understand that she was seeking medical treatment when she made these revelations to the doctor.
These documents were not a proper exception to the hearsay rule pursuant to Rule 803 of the Federal Rules of Evidence. Rule 803(6) makes records of regularly conducted activity of a business admissible because, presumably, they would be reliable by being routinely kept. However, here it is strongly suggested by the facts that the records were made up specifically in anticipation of litigation, close to trial and not close to the time when they would have been more reliable and timely.
Rule 407 of the Federal Rules of Evidence prohibits the introduction into evidence of subsequent remedial measures to prove negligence, culpable conduct, a defect in a product, a defect in product design, or a need for a warning or instruction. The rule is based on relevance and public policy concerns.
Out-of-court statements are not considered hearsay if they were made "by a coconspirator of a party during the course and in furtherance of the conspiracy." Fed.R.Evid. 801(d)(2)(E). The determination of whether a statement was made during the course and in furtherance of a conspiracy "is a determination of fact that will be disturbed only if clearly erroneous." United States v. Bazemore, 41 F.3d 1431, 1434 (11th Cir. 1994).
Federal Rule of Evidence 404(a) provides that evidence of a person's character or a trait of character is not admissible to prove that a person acted in conformity with that character or trait on a particular occasion. Attempting to prove conduct by showing a character trait is too general and unreliable a method, and is excluded under the same principle as is reflected in Rule 403 — any probative value is "substantially outweighed by the danger of unfair prejudice." Such prior acts may be admissible in some cases for other purposes under Rule 404(b), such as motive or intent, but that is not applicable here.
A defendant has the right to cross-examine witnesses and expose a witness' motivation in testifying. Cross examining a witness to establish bias implicates a core value of the Sixth Amendment's Confrontation Clause. When the defendant is precluded from showing bias, then the Constitution becomes implicated. In this case, the defendant was prevented from getting a major defense proposition on the record, which was the possible plot between the witness and other gang members to frame this defendant.
When the witness is hostile or adverse, leading questions as if on cross-examination must be used. Also, a party may in civil cases call the opposing party to the stand “as of cross-examination” -- this requires the usual format of leading questions that one uses against adverse witnesses and parties. If the witness on direct is hostile or adverse, then cross-examination is vital to bring out the full import of the testimony effectively. See, for example, Rodriguez v. Banco Cent. Corp., 990 F.2d 7, 12-13 (1st Cir. 1993) (hostile witness).
The trial judge's authority to question witnesses is beyond dispute. See Fed. R.Evid. 614(b). A judge reaches beyond this authority when he or she abandons the proper role and assumes the role of an advocate or betrays "even a hint of favoritism toward either side." Ross v. Black & Decker, Inc., 977 F. 2d 1178 (7th Cir. 1992); see also Fed.R.Evid. 614(b), advisory committee's notes. The questioning here was done for the proper purpose of clarifying the questioning and bringing out objective facts. It was tempered by the judge offering both counsel to add more questioning at the end. A modest 12 questions was not overbearing in any way. See U.S. v. Slone, 833 F.2d 595, 597 (6th Cir. 1987) (discussing situations requiring clarification).
Rule 901 of Fed.R.Evid. deals with Authentication and Identification. F.R.E. 901(a) requires "evidence sufficient to support a finding that the matter in question is what its proponent claims," but does not definitively establish the extent of the proof that is required. The comparison of a tape-recorded voice and the voice of a witness is primarily a matter for the jury to decide. Thus, the tape will be allowed into evidence if some preliminary evidence is given to support its genuineness, and then it’s up to the fact-finder to determine if the tape is ultimately genuine or not. See, for example, Ricketts v. City of Hartford, 74 F. 3d 1397 (2nd Circ. 1996).
See United States v. Ward, 171 F.3d 188, 195 (4th Cir. 1999). (Guns are tools of the drug trade and are commonly recognized articles of narcotics paraphernalia."). There is a well-known and attested-to link between drug distribution and firearms. United States v. Perry, 560 F.3d 246, 251 (4th Cir. 2009). Guns are generally considered tools of the drug trade. It if was a hunting rifle in another room that would be strongly argued to be irrelevant but guns that are configured for violent use that are placed near to the drug operations are relevant to prove the defendant’s participation in drug activities. In addition, their probative value outweighed the prejudicial effect of entering them.
The presumption imposes on the defendant the burden of going forward with evidence to rebut the presumption. But the defendant does not also assume the burden of proof in the sense of the risk of nonpersuasion. The plaintiff retains the burden of ultimate persuasion of the elements required, by a preponderance of the evidence. In other words, if the defendant presents proof that tends to rebut the presumption of discrimination, the presumption falls away, and the plaintiff must still prove her case by a preponderance of the evidence. See Fed. Rules of Evidence No. 301. See St. Mary's Honor Center v. Hicks, 509 US 502 ( 1993).
Evidence is unfairly prejudicial if it has an undue tendency to suggest decision on an improper basis. Propensity evidence carries the risk that a jury will convict for crimes other than those charged—or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment. This creates a prejudicial effect that outweighs ordinary relevance. The court must disallow resort by the prosecution to any kind of evidence of a defendant's evil character to establish a probability of his guilt. See Old Chief v. United States, 519 US 172 (1997).
