Evidence II

Best Evidence Rule - if using writing to prove content of writing (rather than something else, like, that X was able to write on that day, or that contract existed at all) - General preference for original - either produce it, or account for its absence

1. Applies to legally operative documents (documents creating legal relationship in dispute) and when the witness’ sole knowledge comes from the document (so, witness doesn’t actually have personal knowledge).
2. Does not apply to facts independent of the writing (personal knowledge of W) and collateral documents (writings of minor importance, not involved in dispute)
3. Certified copies of public records, summaries of voluminous documents, duplicates that “accurately reproduce the original” (unless there’s a genuine Q raised about the original’s authenticity or it would be unfair to admit the duplicate in lieu of original), are all OK to admit.

Mass: Uniform Photographic Copies of Business and Public Records Act - primary evidence ok if the record made, kept, or recorded in the ordinary course of business.

Witnesses and Testimonial Evidence

A. Competency

1. Personal Knowledge and Oath
a. perception/observation of witness (saw event)
b. memory of witness (remember seeing it)
c. communication (can tell you)
d. sincerity (under oath)

2. Obsolete Forms of Witness Disqualifications
a. Lack of Religious Belief
b. Infancy
c. Mental Incompetency
d. Prior Conviction(s)
e. Interest in Outcome

3. Dead Man Acts - You’ll be told if there is one applicable
An interested survivor cannot testify for his interest against the decedent or decedent’s representatives about communications or txns w/the decedent in a civil case unless there is a waiver.

There is no Dead Man Statute in MA.

B. Form of Examination
1. Leading Q’s permitted when cross-examining, on direct for preliminary matters, or necessity otherwise requires it (difficulty eliciting testimony, adverse party or someone under their control, or genuinely hostile witness).
2. Witness use of writings in Aid of Testimony
a. refreshed recollection
W doesn’t remember, refreshes memory w/document (a writing, song, smell, etc.), resumes testimony. Must show refresher to opposing counsel, and they can use on cross, and put into evidence.
b. recorded recollection
W doesn’t remember, but used to know, wrote it tdown themselves, when fresh in their memory, and it was accurate then. The writing is read aloud into evidence.

C. Opinion Testimony

1. Lay
Rationally based on perception of witness
Helpful to the trier of fact
2. Expert
Subject matter appropriate for expert testimony, assists the trier of fact (reliable methodology, relevant)
Qualified (skilled, not necessarily ph.d)
Possess rsble certainty/probability regarding opinon (more than guessworkd)
Supported by proper factual basis
facts in personal knowledge of expert
facts supplied to expert in court (through a hypo)
facts of a type experts in that field rsbly rely on in the course of making professional decisions (doctors relying on technician’s reports)

Mass: as long as those facts are of a type experts in the field rsbly rely on AND those facts could be admissible if offered.

Learned Treatise - used to impeach other side’s expert, OFFERED FOR ITS TRUTH, under FRE may be used to support own expert’s opinion - is read into evidence
Establish by
* opposing expert used this src themselves
* eliciting admission from expert on cross that it is learned treatise
* call own expert to get them to admit it
* judicial notice (so well known in field ask judge to take notice it is authoritative and reliable)

D. Credibility and Impeachment

1. Cross-Examination
FRE: cross doesn’t exceed scope of direct
Mass: cross is wide open
Collateral Matters Doctrine - can’t bring extrinsic evidence to contract a witness on a collateral matter (b/c it’s a collateral matter, not material to the case)

2. Accrediting Your Own Witness
Wait until your witness is impeached
Prior Consistent Statement would be admissible if the statement was one of identification (hearsay exclusion). Anybody can testify to the i.d., doesn’t have to be person who made it. But, the person who made i.d. must be avail for cross.

3. Impeaching Your Own Witness

Mass: can only use prior inconsistent statement

4. Impeaching Your Adversary’s Witness

Things to ask yourself:
can I use extrinsic evidence?
If I can, what foundation do I need to lay?

a. prior inconsistent statement
generally admissible only to impeach W
but if given under oath in a prior proceeding, may be allowed in for its truth
extrinsic evidence admissible to prove prior inconsistency
W must have opportunity to deny/explain inconsistency
Prior Inconsistent Statement qualifies as an admission

Mass: prior inconsistent statement only to impeach, but grand jury testimony can come in for the truth of the matter if it was not coerced, if the statement was the W’s own (not responding to leading Q), and some reliability satisfied.

b. showing of bias/interest/motive

great way to sneak stuff in

c. prior conviction (character)

Only if the right sort of crime: involving dishonesty, or any felony (upon court’s discretion), but not too remote (not > 10 years)
Extrinsic Evidence OK

Mass: Any crime OK to impeach W, but court has discretion to exclude D’s convictions. Also, if > 10 yrs, too remote, unless W committed another crime w/in the past 10 yrs. For misdemeanors, it’s a 5-yr rule.

d. specific acts of deceit/lying (character)

NOT IN MASSACHUSETTS AT ALL

in discretion of court
must ask in good faith (can’t go fishing for acts you don’t know about)
acts inquired must involve deceit/lying
NO EXTRINSIC EVIDENCE; cross-exam only

e. bad rep or opinion (FRE) as to truthfulness/veracity (char.)

MASS: REPUTATION ONLY, NOT OPINION

5. Rehabilitating After Impeachment