ITT: Evidence Forum

[brotherdarkness]

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[stillwater]

i thought the idea was to call this the Evidentiary LawBarn in homage to the dormant but never defunct Property TreeHouse

[brotherdarkness]

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[brotherdarkness]

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[brotherdarkness]

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[HiiPower2015]

Rule 406 says that evidence of a person's habit or organization's routine practice is admissible irrespective of whether or not there is corroborating evidence or an eyewitness. If there's no eyewitness, how does this evidence come in?

We didn't go into that much detail in class, but wouldn't that just be a judgment call made by the Court not in front of the jury and the standard would be a preponderance of the evidence. Also, they may be able to bring in eyewitnesses to prove the existence of the habit for the court outside of the jury, but do not need to bring the witnesses during the substantive trial

[Birdnals]

Doesn't this thread already exist: http://www.top-law-schools.com/forums/v ... e#p7265020 ?

Also, can somebody poast that westlaw practice questions link again? I can't seem to find it.


Brother: to answer your question, habit evidence is things like involuntary reactions to stimulus. So say somebody was claiming he didn't push a guy off a bridge, but that the guy saw a bee and freaked out and jumped. If he put on the guy's mother as a witness to say the guy was deathly afraid of bees and had jumped out of a car to avoid one before or something then this evidence could get in.

[Birdnals]

ETA: or in a car crash the car maker claims the guy must have slammed on the breaks and swerved can be rebutted by habit evidence that the guy doesn't ever swerve when he slams on the breaks, so it had to be a manufacturing error. Think things like that.

[brotherdarkness]

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[Pleasye]

Taaaag.

[Birdnals]

Forgot about that other thread. Oh well.

Westlaw hearsay questions: --LinkRemoved--

And thanks for the clarification, that helps. The no need for eyewitnesses part is simply stating that no-one needs to have seen him jump off the bridge this time, but someone needs to have seen him demonstrate the habit in the past?

Thanks!

And yeah, I believe that is correct. Obviously, as with any evidence it is better to have witness/collaboration for 403 balancing because it makes it more probative with those.

[Blumpbeef]

Taaaag.

[Pleasye]

Can a court clerk testify?

You mean like a court reporter/stenographer? I think we did a hypo where the stenographer was the witness so I assume yes. (Also as long as they have personal knowledge and aren't under some type of privilege etc I don't see why not)

[brotherdarkness]

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[brotherdarkness]

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[Birdnals]

803(6) says that business records are admissible if they meet the conditions in (A)-(D) and then (E) says that they can be excluded if there's an indication of a lack of trustworthiness. Is the lack of trustworthiness thing a question for the judge under 104(a)?

Yes? I mean, it wouldn't be a 104(b) so it has to be to show why it is/isn't trustworthy.

[brotherdarkness]

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[JG7773]

If I take a video of someone saying something and then try to introduce that video into evidence, is the statement recorded in the video considered hearsay? I'm guessing yes, but I'm hesitant for some reason.

I think that it would be hearsay, unless you could wedge it into one of the 803 exceptions. Assuming you are the person who took the video (and are the one that is on the witness stand), the statement was made out-of-court, and the video recording is unlikely to be viewed as a machine (eliminating an exclusion). Based on this, I would say agree that this is probably hearsay.

[brotherdarkness]

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[gdane]

If I take a video of someone saying something and then try to introduce that video into evidence, is the statement recorded in the video considered hearsay? I'm guessing yes, but I'm hesitant for some reason.

If this is a criminal trial there may be confrontation clause issues with this if it's testimonial hearsay. Whole different analysis, but always keep the confrontation clause in mind when there's a criminal law hypo involved.

In your above example with the radar gun you would need the officer that took the reading, not just someone that knew what speed the defendant was traveling at. With machines, you almost always need the person that ran the machine at trial.

[Tom Joad]

If I take a video of someone saying something and then try to introduce that video into evidence, is the statement recorded in the video considered hearsay? I'm guessing yes, but I'm hesitant for some reason.

Only if the video is put on to prove the truth of the matter stated by the declarant.

[Birdnals]

I don't have my Evidence shit in front of me because I am working on Employment shit this week, but isn't there something in the best evidence rule that says if it is a recording of an independent event and you are not relying on the tape it doesn't matter?

For example: If it is a recorded confession, you could simply have the guy in the room testify about what was said in the confession and could even use the tape under refreshing recollection if he forgets parts, because it is the oral confession that matters, not the video of it.


For the machine thing, there needs to be no human error/control really. Think mathematical/statistical printouts, everything is automated/ no user error possible. I don't think normal video falls under this type of exception.

You could use it to rehabilitate if there is some claim of recent fabrication or something though.

[Stringer6]

If I take a video of someone saying something and then try to introduce that video into evidence, is the statement recorded in the video considered hearsay? I'm guessing yes, but I'm hesitant for some reason.

hearsay according to page 127 of the E&E

page 142 also talks about a tape recording -- same deal

[brotherdarkness]

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[TTRansfer]

If essay, everything is 403.

If MC, you are on your own.