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Make the Courtroom Feel Like Home: Evidence & Admissibility Tips

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Make the Courtroom Feel Like Home: Evidence & Admissibility Tips

The courtroom may seem like a scary place, but it does not have to be. This course will discuss the evidentiary and admissibility rules that every attorney needs to know and will guide you through what to do during trial so that you have the best chance of getting your evidence admitted into the record. The goal of this course is to untangle the complicated world of evidence and admissibility rules and procedures, so that no matter how inexperienced you may be, you will feel at home in the courtroom.

Transcript

Right. Hello, everyone. My name is Lisa Campo. I am a partner at the law firm of Hale Ball Murphy, PLC. We are located in Fairfax, Virginia, about 20 miles outside of Washington, DC in northern Virginia. I have been practicing. I'm in my 10th year of practice. I do primarily estate and trust litigation, contested guardianships and conservatorships and other types of civil litigation. So probably about 90% of my practice is involved in courtroom litigation. The other 10% is administration. So hopefully today I can give you guys some tips on evidence and admissibility that will help make the courtroom feel a little more like home, kind of help you temper down those nerves and make it so that if you've been practicing one day or ten years, like me or even more, the courtroom is going to feel like home. And you can go toe to toe with those attorneys who might have a little bit more experience than you. Because if you can get a command of your evidence and your admissibility rules, I think you'll find trial isn't really as scary and hard as you might think it would be. So we'll go ahead and get started And. First, we're going to talk about just a general introduction to evidence. So what is evidence? Well, evidence is basically anything that is used to prove or disprove a fact. And it can be a direct or circumstantial. And by direct, we mean something that absolutely proves that thing. Maybe in a product liability case, it's the widget that's at issue, or it can be circumstantial. And that means that through inference, it establishes an element of a cause of action or a piece of the case. And evidence can basically take a number of forms. Really, pretty much anything can be evidence. So what kind of forms does it take? Well, it can be testimony. And a lot of times I have clients come to me and they go, well, I don't have any documents. I don't have any anything that shows this. And I have to tell them, Well, your testimony is also evidence, of course, your documentary evidence, which we'll get to in a little bit, is given maybe a little bit more weight. But don't forget, testimony is evidence. It can be expert opinion. So scientific knowledge, medical knowledge here in Virginia, where we practice our expert standard is just somebody who has specialized knowledge more than the average person. So a lot of times it can be an accountant, it can be another attorney, it can be somebody who serves as like in my case, as a trustee, it can be a doctor. Basically, anyone with specialized knowledge. Evidence can also be physical or tangible evidence. So, you know, if it's a criminal case, maybe the weapon that was used in commission of the crime, like I said earlier, in product liability, it's the widget or the actual product that is part of the evidence, obviously, documentary evidence. So emails, contracts, you know, pretty much any any kind of document. But it can also be demonstrative evidence. And that's like charts, graphs, summaries, things that kind of help with the factfinder kind of navigate the issues and the evidence that they have before them. And so evidence is going to play a role in every part of a trial. It has a role. And it's and your job as the trial attorney is to control the evidence, because essentially a trial, it starts and it ends with the evidence and it's going to weave throughout the various phases of trial. So we have first the opening, and this is where you're going to introduce the court or the jury. If you have a jury trial or a bench trial, the judge, you're going to introduce them to the evidence, tell them the things that they should be looking for in the evidence. Tell them the things that the evidence is going to show. Kind of give them a primer or a roadmap about what they're going to see, what they're going to hear in terms of the evidence. And then when you get to your case in chief, whether you are the plaintiff or the defendant, this is where evidence is sort of the star of the show. So here's where your witness and your exhibit order matters and you're going to tell your story, tell your client's story through the evidence. And then if you're a plaintiff, you're going to get rebuttal. So the evidence is still going to be the star of the show, but you're going to be a little bit more strategic with how you use it. So it's going to add to your case in chief, but it's not necessarily going to repeat things. So you're still going to have your witnesses, you're still going to have your exhibits, but you're responding to the evidence that came in through the defense's case. And evidence even has a role to play in the closing argument. And that's where you're going to summarize the evidence. You're going to kind of tie it all together in one pretty package, put a little bow on it and, you know, tell the court or the jury summarize the evidence and how it shows that you've proven your claim and you've met all of your elements. So you're going to want to make sure that throughout the opening the case in chief, the rebuttal, the closing, that your evidence is sort of been throughout that and had a role in each part. And as we talk about evidence, you're going to hear a lot about and if you read cases on evidence, you're going to see a lot about burdens. And that's burden of proof, burden of persuasion, burden of production. So I thought it'd be helpful to at least just start with sort of a general discussion of what these terms you're going to be hearing and seeing are. So your burden of proof, it's really a party's duty to prove a disputed assertion or charge the burden of proof is kind of the overall term. And then you get down to burden of persuasion and burden of production. So we'll start first with burden of persuasion, and that's a party's duty to convince the factfinder to view the facts in that way. And you've got different burdens of proof, persuasion, different levels, depending on the type of case in your civil cases, you're going to have to you're going to have preponderance of the evidence and you're going to have clear and convincing and preponderance of the evidence. That's usually the burden of proof that's in most civil trials. And it's really just that one side has the stronger evidence, even if slight edge, then they're going to have met the burden and they're going to have proved their case clear and convincing is the highest level in civil trials, and that is evidence indicating that the thing to be proved is highly probable or reasonably certain. It is your civil equivalent of beyond a reasonable doubt, which we're going to get to. So clear and convincing evidence. There has to be no no question that the set of facts are what they are and that you've proven your claim. And then beyond a reasonable doubt, that's going to be your criminal, the highest level in your criminal trials. And it is the belief or the real possibility that a defendant is not guilty. And there's also the burden of production. And that's a party's duty to introduce enough evidence on an issue to have the factfinder decide the issue. And if there isn't sufficient evidence, then that's where you want to make a motion for summary judgment. Motion to strike. If they haven't met their burden of production a directed verdict. So your goal is to ensure that the legal decisions are made based on facts, not guesswork. And that's sort of what we're talking about here when we talk about burdens is we're making sure that whatever the outcome is, it's based in fact and it's not based in guessing and speculation that we've got a real concrete basis for reaching the conclusion that was reached. And so as we go through today, we're going to be talking about the rules of evidence. And so just as a brief sort of introduction before we kind of delve into and we're going to be talking today about the federal rules of evidence. Be aware that your state rules of evidence may be slightly different. They may be exactly the same. But I know here in Virginia we have some slight nuances with our rules of evidence. We track pretty much the federal rules, but there are some nuances and differences. So you're going to want to be aware of the state rules of evidence and where things differ. But today we're going to be talking just generally about the federal rules of evidence. And so the federal rules of evidence are broken into 11 articles. And while that seems like a lot and, you know, your your evidence books tend to be pretty thick and you're thinking, oh, my God, how am I ever going to get a command of all of this? It really all of the rules together can be kind of summed up by the following principles. Fact witnesses must have personal knowledge. They must have seen. They must have heard. They must have observed. They must know personally the things that they are testifying to. Documents must be authentic. Basically, we must they must be what they purport to be. And we'll talk about this in more detail. And evidence must be trustworthy. We must be able to trust that this is the truth and this is what really happened. And then finally, evidence must be relevant to the material issues in the case. And my advice to you, no matter how long you've been practicing, read the rules. Commit to the rules. Understand the rules. Each time you sit down and you're looking at a different evidentiary issue. Read the rules again. Don't assume that that you know them, you know. Oh, I read them last time. I always expect the rules to change. They don't always change. They really infrequently change. But I always try and read them every every time. I'm kind of preparing for another trial. And I do find that if you commit to them and you take the time to study them, you can go toe to toe with someone who's been doing it for 20 or 30 years, who's maybe fallen into the habit of I know what they are, I know how to do this. I've done it a thousand times. So if you've got one day of practice or one week of practice, if you really understand the rules, you're going to be just fine. And the courtroom is not going to be as scary as you might think it is. So now let's get into sort of the the meat of what we're talking about. And we're going to first start with foundation authentication and relevance. And this is sort of the basic rules that you need to understand in order to get your evidence admitted into the record. So what exactly is foundation? Well, it involves the process of establishing facts to support a basis for the evidence to be admitted into the record. And I encourage you to start looking at foundation from the moment you start receiving documents. So don't leave it until right before trial. I start looking at foundational requirements in the initial consultation with the client when they provide me documents and like, okay, how am I going to be able to use this? How am I going to be able to get this admitted into evidence? Because they could have a wealth of information. But if it can't get into evidence, it doesn't really do you any good. So you want to start looking at it as soon as possible. And it's something that you continue to look at throughout the case because circumstances change, plans change. So foundation is something that you really ought to be thinking about through the life of your case. And when we're talking about foundation and we're looking at admissible evidence, we're looking for evidence to be relevant, to be material and to be competent. And we're going to talk about each of those in more detail. And it's the proponent of the evidence. So the person who wants to put the evidence into record that has the burden of establishing the foundation for the evidence coming into. So we're talking about authentication and we're talking about relevance. So when we talk about authentication, well, what do we mean? Well, authentication really boils down to establishing that a piece of evidence is what it purports to be. So if it's a letter, we establish that it is a letter from from the plaintiff to the defendant, or vice versa. If it's an email, we establish that it's an email. If it's a photograph, we establish that it is a photograph of the the traffic scene or the condition of a piece of property. So we're just basically establishing that it is what it looks like it is. And so we can do authentication in a number of ways. It can be done through a witness with knowledge. So you have the sender of the email, the receiver of the email, the recipient of the letter, the person who took the photograph. If you've got handwriting, which is the evidence that you're trying to get admitted, you don't need an expert. You can just do that through a layperson who's familiar with the handwriting. So if it's mom's handwriting at issue, you know, a child who how are they familiar with mom's handwriting? Well, she wrote me notes for school. She sent me birthday cards every year. I've seen her handwriting. I could pick her handwriting out. Somebody who's just familiar with the handwriting, not necessarily an expert, just someone who's seen it. Co-worker, maybe who's seen the handwriting. We can authenticate something by comparison, by looking at the characteristics of maybe a physical piece of evidence, you know, through the distinctive characteristics comparing in terms of if your evidence is a voice opinion about a voice. So kind of similar to the handwriting we can authenticate it by. That's my dad's voice. I hear it every day. That's a coworker's voice. I'm very familiar with it. So lay opinion again. You don't need expert opinion, just someone who's familiar with because they've heard that voice before. We can authenticate things through establishing a process or a system. So this is the we follow the following process and as a result we get the following outcome. And that's how we get it every single time. So we know that this is what it purports to be. There's also authentication by statutes or local rules, So you're going to want to be familiar with any rules that you have on authentication, and usually that's going to come into play in our next topic, which is self authenticating evidence. So there are some forms of evidence that are by rule deemed self-authenticating, which means that you don't have to do anything further to establish it is what it is. And a lot of times with self authenticating evidence, we're talking about certified copies of public records. So Deeds certified copies of orders, certified copies of things that are in public records that you can just get, and you've got the seal. So you don't need to do anything else other than showing that the seal is on the document. Foreign public documents. A lot of times we're talking about like an Apple steel, some kind of certification, that this is a true and accurate copy business records, which we'll talk about a little later on in the program. But if you have a certification by a records custodian, those business records are going to be deemed self-authenticating. And you don't have to do anything else. Keep in mind, there are, as I said before, statutes in your state that may make other forms of evidence. Um, self authentic so that you don't have to go through the process of establishing it. So whether you're dealing with evidence that has to be authenticated or self authenticating evidence, authentication can occur through testimony. Again, you have someone talk about and just basically establish their receipt of the email, their signature on the contract. You know, any kind of testimony to show it is my opinion. The distinctive characteristics of an item, proof of the recording in public record and then by statute. So what are some examples of questions that you should ask in the courtroom to authenticate evidence? Well, you put someone on the stand and you say, Mrs. Jones, are you familiar with this document? Can you tell me what it is? How are you familiar with it? Well, it's a letter I received from my brother. Or you can ask, Do you know what this document is? Have them explain what it is. Do you recognize it? You want them to. To basically establish that they've seen it before. You can ask them, how do you know what the document is with a picture? You're going to want to ask them, Is it a true and accurate depiction of the condition of the property through an accurate depiction of the traffic intersection? So basically, any kind of question to establish it is what it purports to be. So we've talked about authentication. And then the next step to getting something admitted into evidence is that it be relevant and relevant evidence is admissible and irrelevant evidence is inadmissible. That's the general rule, which sounds simple enough, but when you think about it, what does this mean? Well, relevant evidence is something that has any tendency to make a fact and issue more or less probable than it would be without the evidence. Again, there's a lot wrapped in there. So relevant evidence is basically something that makes this more likely than not. That's what happened. So an email about what we're going to do to take care of mom, an email about a discussion in the workplace, something that makes it more likely that that conversation happened than just somebody's word, you know, he said she said, We're trying to avoid the he said she said, So you're looking for relevant evidence that pushes the bar a little bit and says, all right, yes, this is this is something we can take and establish as a fact more than a than a probability would be without it. So even though evidence is relevant, that doesn't mean, though, it comes into the record, even if it's relevant, it can be excluded if it's prejudicial. So if it would make an unfair advantage to one side or the other, even though it's relevant, if it's going to confuse the jury, if it's going to mislead the jury, if it's cumulative. So if we've already seen and that fact has already been established, we don't need to beat a dead horse, essentially. So, you know, even though it's relevant, if that fact has already been established, we don't need it again. Um, and then also, if the dangers of the prejudice or the misleading outweigh the probative value, it can be excluded and exclusion is going to rest in the sound discretion of the trial judge. And that's because, you know, courts trust that the judge is there in the moment. They can kind of assess the credibility of the of the the evidence, either the witness or the evidence itself. They can kind of make that decision because they've got it in front of them. So we're going to trust the trial judge's discretion and it's really sort of up to them. Um, so with every piece of evidence, I want you to be prepared to explain what the issue or what the element or what the fact it's meant to address and how it ties into the overall case. And that way if you are met with a relevance objection, you're already prepared to answer that and you don't lose any time. So on that subject now, let's talk about making and meeting objections, because that's sort of now we've got the foundation for how we get the evidence into the record. But is there an objection that we have to be prepared to meet in order for it to come in the record? Or if we're trying to keep evidence out, if we're the defendant, is there an objection that we make to keep it out of the record? And so what's the general rule with objections is that they must be made contemporaneously with the admission of evidence. And your objections have to state the specific grounds for the objection. Now, you don't have to go into detail, but you need to say objection, hearsay, objection. Lack of foundation, objection, speculative, something that gives a specific grounds. But you don't need to necessarily go beyond that and provide more explanation unless the judge invites you to do that. And the purpose and the reason we make what's called a contemporaneous objection is because you want to give the judge an opportunity to correct an error that might require either a new trial or appellate review. So we don't want to have to go through a new trial. We don't want to have to go through an appeal if it's an issue that can be corrected in the moment. So when you're making your objection, you state your objection concisely. You don't want to be argumentative. So like I said, objection, hearsay, objection. Calls for speculation. Objection. Lack of foundation. Um, and so my advice to you is with objections. Live by the rule that just because you can does not necessarily mean you should. And what do I mean by that? Well, if there is an objection, a technical objection that you can make, but it might slow down the process, it might confuse the jury. It might draw attention to something that is otherwise innocuous. Maybe you don't want to make that objection. You know, there's a there's a strategy sometimes. Look, judges like things to move along. And while you might have a technical valid objection, if it's just going to slow things down, I've had a mentor. Tell me if it's not going to hurt you, don't worry about it. Don't don't, you know, break up the flow and draw more attention to something if it's not really harmful. So kind of be strategic in when you make your objections, when you don't make your objections and think about is this something that I do need to do because it could harm me, Obviously you want to make the objections. If you're preserving the record for appeal, obviously you want to make the objection, but an objection to a form of a question, maybe not something that's going to really sway things one way or the other and might just kind of annoy the judge. Same with if you keep making objection after objection after objection, I've had some judges tell me, look, I can I can figure it out. I'm the, you know, the Trier of fact. I'm not going to let this sway me. Let's just move this along. So kind of be strategic and thoughtful in when you should really make one and when maybe it's okay to let it go. So why ultimately do lawyers make objections? And this is going to help us kind of understand those situations when maybe we let the objection go or we know we need to make it? Well, the first and foremost reason to keep evidence out of the record. So if it's irrelevant, if it's prejudicial, if it's hearsay, if it's confusing, you're going to want to make the objection so it stays out of the record. The other reason, keep the judicial process fair, and it kind of goes back to the prejudice argument because something is wrong with the question asked. Either it mischaracterizes the testimony, it uses a word that is confusing and don't really know, then you're going to want to make an objection if it's going to result in sort of an inartful or an inaccurate answer. You may make an objection to draw the Trier of fact, the judge or the jury's attention to something else. Sometimes, although you want to do it sparingly. I've used objections as a chance to give a client an opportunity to kind of regroup or refocus, especially if they're being cross-examined, because the the other attorney's doing the cross-examination is taking things at a at a quick pace. And they kind of need just a moment to catch themselves. So you may need to make an objection in that instance. Obviously, you don't want to do it too much, but sometimes that might be a reason. And also then the to preserve the right to an appeal if there is an appealable issue. You're going to want to make sure that you make that objection on the record. So what are some objections that every trial lawyer should know? Well, the number one is hearsay. And we're going to discuss hearsay in much more detail a little bit later. So I won't spend the time now. But another objection you should know beyond the scope of direct or cross. So if you represent if you've called the witness, you've done your direct examination, the other attorney gets up to do their cross examination and they ask a question of a subject you never even touched on in your direct examination. You're going to want to raise that beyond the scope of direct, beyond the scope of cross if we're in redirect. So you're going to want to pay attention and remember, what are the questions you ask? What are the subject matters or the topics that you ask? And are the questions on cross or redirect? Are those within that subject matter that that you talked about? Another objection that you probably commonly going to use is improper expert or improper lay opinion. So if someone has not been qualified as a as an expert witness, they can't be giving expert opinion. So you've got to watch for it. Now, if there's permissible lay opinion, like we talked about earlier, familiarity with handwriting, they can give kind of descriptions. You know, you hear about commonly someone says, well, the car was going fast. That's a lay opinion. They can give their opinion of how fast a car was going or someone was stumbling all over themselves. If you're dealing with, you know, an intoxication case. So but if they have not been qualified as an expert and they're giving specialized knowledge, that's when you're going to want to raise the improper expert the improper lay opinion. Objection. Another objection, lack of foundation. If they haven't authenticated the document, if they haven't established its relevancy. You know, when when we were talking about getting something admitted, if they haven't established the foundation, they haven't laid for the foundation for a business record, you'll raise the lack of a foundation in direct examinations. Only an objection you need to know is leading. So if the attorney is asking questions, suggesting the answer indirect direct examination, that's when you want to raise the objection on leading indirect. The question should be your open ended who, what, where, when, why, how? Those are fair. But if they're saying, Well, isn't it true that you told Mr. So-and-so that you didn't like him, that we've got a leading question there? And if it's indirect examination, that's improper. So you're going to want to raise an objection. If you've got a non-responsive answer to the question, that's an objection you might want to raise. Relevance kind of goes hand in hand with lack of foundation if they haven't established how it's relevant to the issues or the elements in the case and then calls for speculation. So if a question asks now, expert witnesses can answer hypotheticals. But if a lay person is given a hypothetical, well, it calls for speculation or if we're if it's a question sort of future focused, you want to raise the objection? Calls for speculation. So those are some of the objections that if you know, no others, those are probably the ones that you're going to most commonly run into. There is a laundry list of objections and we just unfortunately don't have time to to hit everyone. But I wanted to give you sort of the most common ones, the ones that you're most likely to use on a regular basis. So when you're making and meeting objections, what should you do? Some advice? Well, prepare and anticipate. So before you get into the courtroom. Prepare and anticipate. What is the response when I try to get this piece of evidence admitted? What is going to be the likely objection I get and be prepared to have a response ready for that objection. And that way you keep things moving and you don't have to to think about it. There's a lot that goes on in trials. You've got information coming from the judge. You've got information coming from the witness. You are thinking of where you need to go with the questioning. Your client is trying to get you information. So there's a lot going on. So the more you can do ahead of time in preparing and anticipating, the easier it's going to be for you to just make those objections and meet those objections. So when you get your witness in exhibit list before trial, the other side's witness and exhibit list, go ahead and look through what are the objections that I'm going to. Yo raise when this piece of evidence goes into the record and then same saying, look at your evidence. What do I think the objections that they're going to make are going to be and how am I going to be prepared to do that? And a lot of times what I like to do is I sit down and I make a chart and I have in one column, you know, the piece of evidence I have, the foundation that I'm going to do if I need a citation to a certain rule or citation to a certain case, then I have it. And that way in the moment I can really quickly flip. And I'm already sort of ready to have that discussion with the judge. Same thing. Next thing, listen. Just because you're not asking the questions doesn't mean you tune out. So if you are if it's your client or someone else's witness up there, you want to make sure you're listening to the questions. And is there something that should be objected to? Same thing. If your client's on the stand, you want to make sure you're listening both to the question and the answer. So you want to make sure you're listening, even if you are not actively doing the questioning hand in hand. Pay attention. Not the time to zone out. So you want to make sure you're paying attention because if you get an objection, you want to make sure you're responding to that objection and you want to make sure that you're paying attention to know the objection to raise. Be confident. I know this one is tough, especially if you're a new attorney. But that's why we go back to if you read the rules, if you study the rules, if you commit to the rules, be confident that you know the objection that you're making and say, objection, hearsay. That's all you have to say. You don't you don't need a big explanation. So be confident. And that goes with know the rules of evidence. You know, every state, I'm sure, has a little trial book on the rules of evidence. Bring that with you always have it with me. And do not give up. If you get an objection, you respond to it and the objection is sustained. Have a backup plan for especially if you're dealing with a key piece of evidence. You need to have a plan A, a plan B, a plan C, depending on how important that evidence is. If you can't get it in the first way, you try have a backup plan. If it's really important and don't give up. So, you know, be thinking about ways that you can kind of turn the chessboard and figure out if I can't do it this way, is there another way that I can do it? Because and don't just don't just give up. So we've talked a lot about the foundation and sort of the basics that we need to lay to get evidence into the record. We've talked about objections, how to make them, how to meet them. No evidence discussion would be complete without some discussion of hearsay. So we're going to talk about hearsay next, which is something that I think every trial attorney you need to know, you need to understand, because there are situations where even judges don't necessarily understand hearsay. And so you may need to step in and educate them. So when we talk about hearsay. The basic definition of hearsay. It's an out of court assertion which can be verbal or non-verbal that's offered for the truth of the matter asserted, and that truth of the matter asserted is the key. If evidence is not offered for the truth, then it's not hearsay and we're not seeking to keep it out. So what are some statements that are offered not for the truth? So if the statements being offered to establish that the declarant was alive at the time, we don't necessarily care what he or she said. We're just offering to show they were conscious they were alive when they made it. Um, if. We're offering it to explain why the declarant acted the way he, he or she did. You know, so if they say, I need a jacket. We don't necessarily care the truth of whether or not they did or didn't need a jacket, but maybe we're offering it to explain, you know, why they acted a certain way. To establish that the listener was in the presence of the declarant. Again, we don't necessarily care about the exact statement, but we're just offering. Look, he could hear it to establish that the listener or the recipient of a statement was on notice of some situation. A lot of times you see this come up in, you know, negligence cases where we're not necessarily concerned with the exact statement, but we're showing that the grocery store was on notice that there was water on the ground. You know, so it's basically showing or that they received and somebody received an email or they received a letter. We don't care what the letter says. We don't care what the email says. We're not offering it for what it says. We're just offering it to show that on this date they were given notice of the condition. And so with hearsay, you've also got to be aware of what we call hearsay within hearsay or double hearsay. So in some instances, the statement that you seek to admit has somebody speaking within a statement. And a lot of times this is going to come up in medical records where you have. The person who actually types the medical records, quoting the nurse or quoting the doctor. So you've got a statement within a statement. The medical record itself is a hearsay statement. And then the doctor's statement or the nurse's statement within that medical record is another statement. And so when you've got hearsay within hearsay or double hearsay. You've got to have a hearsay exception for each statement that you want to come in. And we're going to talk about some of the hearsay exceptions. So first, just as a general overview of the hearsay exceptions, we're looking at rules 803 and 804 of the federal rules of evidence. And those are the exceptions for when a statement, even though it's hearsay, may still be admitted into evidence. So even though it is an out of court statement, it's being offered for the truth. There is a reason why we confer upon it some level of trustworthiness, ness, some believability. So Rule 803 has 23 exceptions that are going to apply regardless of whether or not the declarant is available. 804 has four exceptions that apply only when the declarant is unavailable. And you're going to want to notice any differences between your state statutes. So in Virginia, our Rule 803 actually has 24 exceptions. In our 804 has five exceptions. So this is the federal rules. But be aware that your state rules may have some differences or some additional exceptions. And so even if a statement falls within a hearsay exception, you do still need to be looking for the relevance that justifies that coming into evidence. So just because it falls within a hearsay exception, it's not relevant to the case doesn't mean it comes in. So what are some of the most common hearsay exceptions that you should know so that the courtroom is kind of comfortable to you? And these are the ones that you should know regardless of the declarant's availability, and that's party admission. That's probably the one exception you are going to deal with the most. That's in federal rules of evidence 800 and 1D2. So it's not in the 803, but it's in 800 and 1D2. And the federal rules, when I said Virginia has 24, that's because our rule put the party admission into into our 803. But a party admission if it is a statement of the opposing party is coming into evidence. As long as you are admitting it as as an opposing party so plaintiff can admit their own statements, defendant can admit their own statements, but plaintiff can admit the statements of the defendant. In this situation where you have like a company, you can admit statements of a an agent of the principal. So basically the opposing side, their statements are going to come into evidence under the party admission. Present sense impression. And that is a statement that describes an event that's going on. So it's the present descriptive statement of an event. You might run into excited utterance. We've all you might remember from law school, sort of the excited utterance is the statement at time of death or Oh my God, I just saw the car crash into the truck, something that is prompted by a spontaneous observation of an event. Then that's a hearsay exception. That's going to bring it into evidence. Then existing mental, emotional or physical condition and we'll get into each of these in more detail. But just kind of giving you a brief, general overview and then we'll talk about each more in more detail. So then existing mental, emotional or physical state and business records. So party admission. The first one, as I said, all that is required for this statement is that it be made by an opposing party. So and and there's a couple different ways that you can satisfy this party. So you can have the party directly. You can have it through adoption. So a lot of times with emails, especially if there's something in a in an email and somebody, you know, the opposing party forwards it and says, Hey, I think this is exactly what we need. You might be able to use it as an adopted admission or if there's something that sort of shows agreement with it or they've adopted it as as a statement that they believe, then it can come under this exception. So you've got them directly, but you can even have party admissions indirectly. And that's like we were talking about earlier, a person with authority. So an employee, an agent. If you've got an agency relationship, you can even get party admission when you're dealing with co-conspirators. And so the party against keep in mind, though, the party against whom the statement is offered against is entitled to have the entire statement admitted evidence. So if you try and admit something out of context, if there's a context that's missing, the opposing party can ask that the entire statement come into evidence. So present sense impression. It is a statement that, as I said, describes or explains an act, and it's made contemporaneously with the event it describes or explains. Make a note that there is no requirement that the declarant directly participate in the event. It's just the only requirement is that he or she observe the the event. They perceive it and they describe it at the same time that it's happening. Slightly different is the excited utterance and the difference being here, it's got to be spontaneous or impulsive. You've got to have a startling event. And so we're looking for circumstances where the possibility that it was made with premeditation, reflection, deliberation or design or eliminated. So again, it's that in the moment statement as someone sees a car accident. So not something that they've thought about, not something that they've reflected on. It is what they said in the moment. Um, then existing mental, emotional or physical condition. And this is a statement of the declarant's existing state of mind, their emotion, their sensation or their physical condition. So a lot of times this exception is also called the state of mind exception. Um. Because there's a lot there. But essentially, in order to use this exception, you need to have the declarant's mental or emotional or physical condition be relevant to the litigation. So you need to have a capacity issue in the case. Their physical condition. If you're dealing with a personal injury, you need the mental state or the physical state to be an issue in the litigation for this to come in. Um. And again, you need that mental state, that emotional state, that physical condition to exist at the time the declaration is made. You can't have it after. We can't have it before we need it. At the time that the statement we're trying to get admitted into evidence. But it expressly excluded from this state of mind exception are statements of memory or belief. If you're just offering its approval, they remembered or they believed that statement, that's not going to come in here. We are using it again, like I said, where someone's mental capacity, their physical condition is at issue. We're not doing it just to say, well, they remembered this or they believed it. We want a statement that they made showing that they couldn't have possibly had mental capacity. You know, they said Ronald Reagan is the president. Business records. So if there's two hearsay exceptions that I would encourage you to make sure you have a command of. It's the party admission and business records is the second one. Those are probably the two hearsay exceptions you are going to run into on a regular ongoing basis. Um. A business records. That's how it's commonly called. But it can also be called records of a regularly conducted activity. You'll see it. But business Records is the how it's usually called. And these are records of events that may be admitted if they are made by a person with knowledge of the information contained in it. So usually you need a records custodian, the person who's charged with keeping the file, you know, if you're trying to get the business records of an accounting office, you want the accountant that maintains that file, the records clerk who maintained that on behalf of the company and the record has to be made at or near the time of the event that's described in it. Again, you need it contemporaneously or within normal. You know, we don't want something that's made reflecting an event that happened a month ago with business records. You also need to establish that the business regularly makes and keeps that type of record. It's just in their normal course of business, and that's part of the reason why we allow hearsay to come in. We can believe its trustworthiness because if a business is regularly doing this as part of their process, we can believe that it's truthful. And this wasn't just something created offhand on a one time event. And again, it's kept in the ordinary course of a regularly conducted business activity. So those are the four elements you need. But keep in mind that only facts or evidence within the records are admissible. You are not going to get opinions or conclusions admitted into the record under this exception. The exception also applies to records that are generated by the company, not records that are received by it. There can be an exception in some instances for emails. If it is their practice of keeping emails, then you might be able to get them under the business records. But if it's just a letter that was sent to them that they have no connection to, it's not going to be something that that will come under the business records because we're looking at the records of the entity who produced the records. So it's not going to be a third party that they just got it from. It is not necessary that business records be authenticated by oral testimony. The federal rules and some state statutes. We have it here in Virginia, allow for a written certification of the foundational requirements. So here in Virginia, we can have a records custodian sign an affidavit that establishes all of the elements of the business records made by someone with knowledge made in the ordinary course of business. It's regularly kept in the ordinary course of business. It is their practice to maintain such records. And then with that certification and affidavit, the record can come in without having to call a records custodian. So those are the most common hearsay exceptions when we don't really care whether the declarant is or isn't available and the availability is going to depend on your state law in terms of when someone is considered to be unavailable for the exceptions that we're about to talk about, which are those when the declarant is not available. And so we'll talk about each of them, but their former testimony statement under belief of impending death. Statement against interest and statement of personal or family history. So first, though, before we get into our discussion, we've got to figure out when is a declarant considered unavailable? Because you're only going to be able to use these former testimonies. So former testimony is what it sounds like. They testified in a former case statement under belief of impending death, something they said believing that this was the end for them. Statement against interest, something that is contrary to their pecuniary interest or the statement of a personal or family history. You're going to first need to establish that the declarant is unavailable. So. The a prior ruling from the court that a privilege applies that exempts the declarant from testifying about the subject matter. Of the Declarant's statement. So if you've got. So under the rules, these are what's considered when someone's unavailable. So if you have a prior ruling from the court that exempts the declarant from testifying about a subject matter that's going to make them unavailable, and then you can use one of these 804 exceptions. A declarant will also be considered unavailable if they refuse to testify despite a court order directing them to testify about the subject matter. So if you've got them in contempt, then they're going to be considered unavailable. If the declarant testifies to a lack of memory concerning the subject matter of the statement, then you can use one of the unavailable exceptions. If you have a situation where the declarant is deceased, is incapacitated, has a physical illness, a mental illness and can't be present or is unable to testify, then that will make them unavailable where you can use these exceptions. Another example of unavailability the absence despite reasonable attempts to obtain the declarant's attendance and presence. So if you make reasonable efforts, you do your due diligence to get them to come to court in order to be able to testify and you can't get them there, they can be declared unavailable. Now, the caveat being you can't have somehow forced their inability to be present. So there's a lot involved with hearsay. So I want to leave you with some practice tips. And if the response to a hearsay objection is that the statement is not offered for its truth, pressed for the purpose, I have had a lot of much more experienced attorneys. When I give the hearsay objection, they go, Well, I'm not offering it for the truth. Okay, well, then why are you offering it? Because it may be Then it's not relevant. So do not just take the it's not being offered for its truth. Press for the purpose so that you can figure out if. If it is. And I've had situations where they say not offering it for the truth when in fact they actually are. So you have to be kind of on your game and say, no, that is the truth. Well, I'm not offering it for the truth. I'm just offering it to show that he said he didn't like him. Okay. Well, that's the truth. So kind of dig deeper if you get that not offered for its truth. Um, you know, I've had some evidence in a business dispute case where they go. I'm not offering it for the for its truth. I'm just offering it to show that on January 4th, an email was sent. Okay, well, then I'll allow it in. For that, I'll withdraw my objection if that's the only reason it's coming in. So at the end of the trial, he had a bunch of evidence in that was just dates that emails were sent, not of the content of the email, not the purpose of the email. So my advice to you is if you get that not offered for its truth kind of press for the reason and see if there's strategy you can employ. If the purpose is giving, given something along the lines of it's simply to show that it was said or simply for background, you still might need a relevance. Objection is still probably going to be appropriate because it's unlikely that the fact that it was said is going to or the background is going to be relevant. So again, if you raise a hearsay objection, you go, oh, I'm just I'm just offering it to show that it was said or I'm just giving it for background. Well, is the fact that the statement was said or the background even relevant? So kind of two layers don't just stop at hearsay. Also look behind it. So when we're talking about evidence, we're also talking about witnesses, because that's frequently how you're going to get the evidence into the record. So what are witnesses? Well, they provide facts. They authenticate evidence. They illustrate the ultimate issues that the Trier of the fact will decide. And witnesses can be both lay or fact witnesses, we call them. They're used interchangeably. Expert witnesses. They can be independent, which means they don't have a stake in the outcome. Or they can be interesting. But regardless of what type of witness they are, every witness that testifies must be competent, and that's going to be governed by state law in civil cases, what is considered competency and it's going to usually come up most frequently in situations where there is a mental capacity issue or age if you've got a young witness. So let's first talk about lay witnesses for lay witnesses. There opinion must be limited to one that's based on personal perception. So again, they can only talk about things they saw things they heard things they observed things they witnessed, not anything that someone else saw, someone else told them. It's got to be personal perception and it has to be helpful to understanding the testimony or determining a fact in issue. It cannot be based on scientific, technical or specialized knowledge. So they've got to just be someone who's talking about the facts. Um. And they can only testify about things within their personal knowledge, with expert witnesses. They can offer opinions so lay witnesses cannot offer opinions. Experts can. Based on scientific, technical or other specialized knowledge. But that expert opinion has to help the Trier of fact understand the evidence or determine a fact in the issue. And there's got to be a sufficient factual or data basis for that opinion. They can't just render their opinion without showing how they got there, the factual support for it, the data behind it. It's got to be based in something. It's got to be based in reliable principles and methods. So course of conduct, usual standard of care, those kinds of things, and its principles and methods that have reliably been applied to the facts of the case. So we are looking for more with an expert witness. We are looking for a basis for believing this opinion, and we're looking for something that's been tested before that's tried and true. You may end up with an opinion that's novel, so that doesn't mean that it can't be expert witness opinion, but it's based in literature, It's based in some kind of study in that particular area that that expert witness is qualified in. So whether you're dealing with a lay witness or an expert witness, one thing you need to keep in mind is impeachment. And there's different ways a witness can be impeached. And essentially with impeachment, we are calling into question the credibility of a witness. So is this someone we can believe and take what they are saying as truthful? So you're focusing on their perception. You're focusing on their reputation, their recollection, their narrative, their sincerity. And if there are holes in those areas, you want to point it out. Well, isn't it possible that you're not really remembering or isn't it possible your view was obstructed by the tree out the window? So there's different forms of impeachment, but that and some of those forms can include the bad general reputation for truth telling. If they just don't have a reputation for being truthful and honest, that's something that can be used to impeach them. If there's a prior conviction where their trustworthiness and their honesty was at issue, that's a way to impeach them. Prior inconsistent statements, probably one of the most common ways you're going to impeach them. Well, you said over here that you didn't hear him say that. Now you're saying he he said it like, which one is it? Related to that is contradiction. And basically any other evidence that's relevant to their credibility is how you can impeach a witness. You can also impeach hearsay. So when you have a hearsay statement that's admitted into evidence, you can attack the credibility of the declarant just as if they were on the stand testifying. So, again, when you when you're dealing with hearsay, it's not just enough to go, yep, hearsay, we're done. There's some other layers that you need to look at. Is this something where we need to raise a relevancy objection or is this something where I need to impeach the credibility of the statement and you do it just as if the the declarant were testifying and like you would normally impeach someone. So you don't have to do anything different. It's just you're impeaching the statement. So when we talk about evidence, we also need to talk about character evidence. And that's because you're going to get clients that say, well, I want I want to put on evidence that my brother is just a horrible person and he's always treated me bad or I want to put on evidence that my neighbor has always been mean to me. There are limitations on when character evidence can come into play, so you're going to want to be familiar with those rules. Generally, evidence as to someone's character is not admissible to prove they acted in accordance with that character. Unless we're dealing with trustworthiness, veracity, their credibility. But if you just want to show that they are annoying, it's not going to be admissible. Now, character evidence can, however, be used if it's an issue in the case. So, for example, defamation. They're always talking bad about me. That's different. Or if it's going to show motive, knowledge, intent or identity. So if you're seeking to use the character evidence to impeach or if it's relevant to an issue in the case, then you can use it. But, you know, with estate and trust litigation that I do, I get all the time I want to show how horrible of a person my brother is. I want to show how my cousin is, you know, the scum scum. It's not going to come in. It's not relevant. So before we wrap up today, we've talked all about sort of the the admissibility and how you get evidence admitted into the record. But if we're going to make the courtroom comfortable and somewhere that you feel like home, we also need to know how to manage it. And so let me give you some tips on evidence management. So to become an effective trial attorney, you need to know how to administer, how to control and how to manage the evidence. So what should you do? Be organized. You need to have a plan. You need to have a plan A, a plan B, You need to have charts. You need to be organized because this is not something that you want to do on the fly. So be organized. You want to plan ahead. As I said in the courtroom, you've got a lot coming at you, a lot of different things, stimulants. You're paying attention to the judge. You're paying attention to opposing counsel. You're paying attention to the witness. You're thinking about where you need to go next. So you need to already kind of have it planned. Do not be married to that plan because things change in the moment. Trials take turns that that you didn't initially plan. Hopefully you anticipated for it. So when you have a plan, have a general idea, but don't be so tied to that plan that you can't think outside of it and figure out a backup or another way to do something. Do not procrastinate. So we talked about it earlier. When you're thinking about your evidence and how you're going to manage it and how you're going to get it admitted and how you're going to lay the foundation, that's not something you leave to the night before trial. It is something that you're kind of thinking about and working on throughout the life of the case. Do not discredit written advocacy. And what I mean by that is motions in limine to exclude experts, motions to limit written evidence. Those are ways to manage it too. So you manage it not only once you get in the courtroom, but is there a motion that you can file that can also manage the evidence and utilize the full range of the discovery process with your evidence management? So you issue your interrogatories, you issue your request for production of documents. You issue your request for admissions. Don't forget about subpoenas to third parties. Depositions of third parties use the full range of the discovery process. So you've got every possible piece of evidence so you know how to manage it and you're not leaving anything out. You also need to plan your evidence. And so when you sit down to plan your evidence for trial, what kind of questions should you be asking yourself? Well, you should start with who are the key witnesses that's going to determine what documents you're admitting, which which witnesses you're admitting certain documents through. So figure out your key witnesses, figure out your key evidence, and which witnesses are telling which part of the story. I like to think of them as like chapters. So I have this witness telling this chapter, this witness telling this chapter through that chapter. I'm getting this evidence admitted through the next chapter. I'm getting this evidence admitted. And then that kind of helps you figure out to the order so that you've got a consistent flow in the presentation of evidence. You also need to plan on how much time do you anticipate the witnesses testimony taking if it's going to take a little bit longer, strategically, where do you want to put them in the order or is it somebody to that you want to end with because they're going to make more stronger points? Are they a little more weak? Do you want to kind of put them in the middle to to, you know, bury their testimony? How much time? Because you don't have all the time in the world in the trial. So you need to plan on how much time you anticipate taking with that witness. You know, I said in the beginning, your evidence kind of flows into your theme and your overall story. So what part of your theme does this witness in the exhibit relate to? And that's going to help you figure out your relevancy, planning on what is the foundation for the admissibility of your evidence? Are you going to use a certain hearsay exception? Do you have everything you need to lay that if you're doing a business record, Do you have a custodian of record lined up? Do you have a certification or an affidavit lined up? And I cannot stress if a piece of evidence is key or critical. Critical. What is your backup plan for getting that evidence into the record? If plan A doesn't work? So you should have a plan A, A plan B, especially with your key pieces of evidence. So that brings us to the end of our program today. I hope I have given you some tips and some tools and some tricks that you can use so that the courtroom is not a scary place, whether you've been practicing a day, a week, year. Years, decades, so that the courtroom really feels just a place where you feel at home. And so I hope you can go into the courtroom confidently and you can get your evidence into the record.

Presenter(s)

LCJ
Lisa Campo, JD
Partner
Hale Ball Murphy

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