Federal evidentiary objections

Presentation on theme: "Federal evidentiary objections"— Presentation transcript:

1 Federal evidentiary objections

2 1. ambiguors Rule 611(a) 2. argumentative Rule 611(a) 3. asked and answered Rule 611(a) 4. assumes a fact not in evidence Rule103(c);611(a) 5.authentication lacking Rule103(c);901(a) Proof must be offered that the exhibit is in fact what it is claimed to be 6. Best evidence rule Rule1002 If rule applies, original document must be offered or its absence accounted for. If contents of document are to be proved, rule usually applies 7. Beyond scope(of direct,cross,ETC) Rule611(b) 8. Bolstering Rule608(a) 9.compound Rule611(a) 10.conclusion Rule103(c);602;701

3 11.confusing Rule611(a) 12. counsel testifying Rule103(c);603 13. cumulative Rule403;611(a) 14.foundation lacking Rule602;901(a) 15. hearsay Rule103(c);802 16. improper question or improper form-- -Rule103(c);611 17.improper characterization Rule103(C); 18.improper impeachment Rule 19. incompetent witness Rule103(c); 20. irrelevant Rule401

4 21.leading Rule611(c) 22.misquoting witness Rule103(c) 23.narrative Rule103(c);611(a) 24.opinion Rule103(c);602; 25. prejudice outweighs probative value Rule403 26. privileged Rule103(c);501 27.speculation Rule602;701 28. Unresponsive Rule611(a)

5 prejudice outweighs probative value Rule403
Although 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, waste of time, or needless presentation of cumulative evidence

6 FRE 403

7 prejudice outweighs probative value Rule403
Historically, the approach was to bar evidence of previous convictions (as such) in relation to propensity; and to allow evidence of previous misconduct only if it exhibited features going beyond "mere" or "general" propensity. those features were required to have sufficient probative value to outweigh the risk of unfair prejudice.

8 Historically, some liberality was allowed when the previous conviction or misconduct evidence was advanced not in relation to propensity to offend, but in relation to the defendant's credibility.

9 hearsay Hearsay is information gathered by one person from another concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of the use of such information as evidence to prove the truth of what is asserted. Such use of "hearsay evidence" in court is generally not allowed. This prohibition is called the hearsay rule.

10 For example, a witness says "Susan told me Tom was in town"
For example, a witness says "Susan told me Tom was in town". Since the witness did not see Tom in town, the statement would be hearsay evidence to the fact that Tom was in town, and not admissible. However, it would be admissible as evidence that Susan said Tom was in town, and on the issue of her knowledge of whether he was in town. There are a number of significant exceptions to the hearsay rule.

11 The hearsay rule and the adversary system
Hearsay rule protects right to cross-examine Cross-examination tests a witness’ ability to Remember; Observe; Tell the Truth; and Communicate The hearsay dangers: sincerity\perception\memory\communication difficulties

12 Hearsay example2 Q: and on that date and time ,what happened? A: I saw two cars collide Q:Did you speak to either of the drivers after the collision? A: I did. I walked over and spoke to the driver of the blue car. Q: And what did you say to the driver of the blue car? A:I told the driver that the mercedes ran the red light Q:Did you notice either of the cars prior to the collision? A: Yes. I saw the Mercedes, and it ran the red light.

13 一、不必亲自陈述的例外 美国《联邦证据规则》第803条规定了传闻证据的第一个例外：陈述者可否亲自出庭作证无关紧要。根据这一规定，下列24种情况即使陈述者可以作证，也不受传闻证据规则排除： 　　(1)陈述者在事发当时或时隔不久作出的关于该事件的陈述。陈述者感觉有关事件或情况时当场作出或随即作出的描述或解释该事件或情况的陈述。 　　(2)陈述者就令人吃惊的事件在极度兴奋或受刺激的状态中所作的陈述。 　　(3)陈述者关于当时的心理状态、感情、知觉或身体状态(如意图、打算、动机、内心情感、疼痛或身体健康)的陈述，但不包括以记忆或想念来证明被记忆或被确信的事实的陈述，除非其与实施、撤销、识别、终止陈述者的愿望相关。 　　(4)出于医疗诊断或治疗目的的陈述。

14 (5)证人亲身经历但已不能充分回忆时，其记忆犹新时所作的记录。如果允许采纳，该备忘录或记录可以作为证据宣读，但除非由对方当事人提供，否则其本身不能作为一个物证接受。
(6)关于日常行为活动的记录。 　　(7)第(6)项规定的各种形式的备忘录、报告、记录或数据汇编中缺乏关于某事项的记载的证据，用以证明该事项没有发生或不存在。 　　(8)公共机构或公务员依其法定职责就其进行的活动或观察的情况所作的记录、报告等。但是，不包括在刑事案件中由警察或其他执法人员观察的事项。 　　(9)重要统计资料。关 　　(10)缺乏公共记录或没有记载。 　　(11)宗教组织的记录。 　　(12)婚礼、洗礼和类似证明。 　　(13)家庭记录。 　　(14)反映财产利益的文件记录。 　　(15)文件中反映财产利益的陈述。

15 (16)在陈年文件中的陈述。己制作20年或以上的文件中记载的陈述，其真实性被确认。
　　(17)市场报告，商业出版物。 　　(18)学术论文。为在交叉询问中引起专家证人的注意，或者在直接询问中为专家证人所依赖，记载在发表或出版了的论文、期刊或小册子中有关历史、医学或其他科学、艺术的陈述，经过该专家证人或其他专家证人的作证或允许，或者司法认知确认可靠证据。如果采纳，该陈述可以作为证据宣读，但不得作为物证接受。。 　　(19)关于个人或家庭历史的名声。 　　(20)关于边界和一般历史的名声。 　　(21)性格方面的名声。 　　(22)先前定罪的判决。 　　(23)关于个人、家庭、或一般历史、或边界的判决。

16 Examples (Assault-----Self-defense case) Direct examination
Q:Do you have a personal opinion of the victim’s character for peacefulness? A: Yes, I ‘ve known him for a long time. Q:what’s your personal opinion of his character? Prosecutor: Objection. improper character evidence. Judge: Overruled. The witness may answer. A: In my opinion, he’s an extremely violent person. Q: Can you give us examples of times he has been violent? Prosecutor: Objection. Now they are trying to get into specific instances of conduct. They are improper under Rule 405 Judge: Sustained.

17 Cross examination Q: You say the defendant’s Character for peacefulness in the community is good? A: That’s right Q: Did you hear that the defendant assaulted another man at the city Chicago last year? Defense: objection, your honor. They’re trying to go into specific instances of conduct. Judge: Overruled. This is cross-examination. The witness may answer A: No, I didn’t hear anything about that.

18 students assignments Each student must come to class with prepared questions that are objectionable. No question can raise the same objections as another question. Student No.1 will read the first question. Student No.2 must then object, using the correct form and stating the reason for the objection. If correct, Student NO.2 will then read a question prepared by him/her, and Student No.3 will have an opportunity to object. If not correct, the objection then passes to Student NO.3.

19 Direct examination of your own witness.
Defendant’s lawyer Plaintiff’s lawyer 1.Bar 2.Manager’s office 3. Talking while waiting for wangping’s friend. 1. late for the work 2. clothing 3. no report of the harassment to the person in charge.

20 Refreshing recollection recitation
1.what was the date? A. I don’t know 2.Will anything refresh your recollection? 3.Your honor, may I have this document marked next in order, for identification? 4.May the record reflect that I am showing exhibit No.1 for identification to opposing counsel

21 5.may I approach the witness?
6.I am showing you exhibit No.1 for identification. What is it? 7. Please read it to yourself, and let me know when you have finished. 8. has your memory now been refreshed? 9. please give me the report. May the record reflect that I have taken the report from the witness. 10. what was the date?