Principles of Evidence (Concise Hornbooks) PDF
Preview Principles of Evidence (Concise Hornbooks)
W A P ’ L S EST CADEMIC UBLISHING S AW CHOOL A B DVISORY OARD ————— JESSE H. CHOPER Professor of Law and Dean Emeritus University of California, Berkeley JOSHUA DRESSLER Distinguished University Professor Emeritus Frank R. Strong Chair in Law Michael E. Moritz College of Law, The Ohio State University YALE KAMISAR Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan MARY KAY KANE Professor of Law, Chancellor and Dean Emeritus University of California, Hastings College of the Law LARRY D. KRAMER President, William and Flora Hewlett Foundation JONATHAN R. MACEY Professor of Law, Yale Law School ARTHUR R. MILLER University Professor, New York University Formerly Bruce Bromley Professor of Law, Harvard University GRANT S. NELSON Professor of Law Emeritus, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles A. BENJAMIN SPENCER Justice Thurgood Marshall Distinguished Professor of Law University of Virginia School of Law JAMES J. WHITE Robert A. Sullivan Professor of Law Emeritus University of Michigan PRINCIPLES OF EVIDENCE Eighth Edition Graham C. Lilly Armistead M. Dobie Professor of Law Emeritus University of Virginia School of Law Daniel J. Capra Philip Reed Professor of Law Fordham University School of Law Stephen A. Saltzburg Wallace and Beverley Woodbury University Professor of Law The George Washington University Law School CONCISE HORNBOOK SERIES™ The publisher is not engaged in rendering legal or other professional advice, and this publication is not a substitute for the advice of an attorney. If you require legal or other expert advice, you should seek the services of a competent attorney or other professional. © 1978, 1987, 1996 WEST PUBLISHING CO. © West, a Thomson business, 2006 © 2009, 2012 Thomson Reuters © 2015 LEG, Inc. d/b/a West Academic © 2019 LEG, Inc. d/b/a West Academic 444 Cedar Street, Suite 700 St. Paul, MN 55101 1-877-888-1330 Printed in the United States of America ISBN: 978-1-64242-584-0 GCL to R.M.L. and R.A.L. DJC to Anne SAS to Susan Lee Preface to the Eighth Edition ————— This Concise Hornbook was first published in 1978 and was entitled, An Introduction to the Law of Evidence. The aim then, as now, was to provide readers with a hornbook of manageable size that would enable them to understand the principles and rules of evidence that are usually studied in the basic evidence course in American law schools. Over the years, the explanatory text has increased in size, while the footnote documentation has been reduced, so that the book itself would remain relatively concise. The fact that the Law of Evidence is now largely codified has facilitated this transition, and allowed footnote material to be reduced without sacrificing essential documentation. My distinguished co-authors assumed editorial responsibility for the Sixth Edition and continue to exercise that responsibility. With their dedication and expertise, I am confident that Principles of Evidence will be a useful source of study for students and lawyers for many years to come. G C. L RAHAM ILLY Charlottesville, Virginia January 2019 Summary of Contents ————— P E E REFACE TO THE IGHTH DITION V Chapter I. Introduction 1 Chapter II. The Framework 5 § 2.1 The Adversary System 5 § 2.2 Phases of a Trial 6 § 2.3 Offers of Proof and Objections 7 § 2.4 Examining Witnesses: General Rules 11 § 2.5 Examining Witnesses: When Memory Fails 21 § 2.6 Role of Judge and Jury: An Overview 25 § 2.7 Shortcuts to Proof: Judicial Notice and Other Devices 30 Chapter III. Relevance: General Principles and Special Applications 35 § 3.1 Basic Concepts 35 § 3.2 Exclusionary Counterweights 43 § 3.3 Evidentiary Foundations 51 § 3.4 Conditional Relevancy 65 § 3.5 Direct and Circumstantial Evidence 72 § 3.6 Rules of Relevance Related to Character 73 Chapter IV. Relevance: Special Applications Driven by Social Policy 125 § 4.1 In General 125 § 4.2 Subsequent Remedial Measures 126 § 4.3 Compromise and Offers to Compromise 135 § 4.4 Payment of Medical Expenses 141 § 4.5 Pleas and Related Statements 141 § 4.6 Liability Insurance 149 Chapter V. Hearsay: What Is It? 151 § 5.1 Overview 151 § 5.2 A Definition of Hearsay 155 § 5.3 Statements That Are Not Hearsay: A Sampling 156 Chapter VI. Hearsay Exemptions 177 § 6.1 Introduction 177 § 6.2 Category I: Prior Statements of a Testifying Witness 178 § 6.3 Category II: Party-Opponent Statements: In General 189 § 6.4 Individual and Adopted Party-Opponent Statements 192 § 6.5 Statements by Authorized Spokespersons and Other Agents 195 Chapter VII. Hearsay Exceptions 207 § 7.1 Overview 207 § 7.2 Federal Rule 803 Exceptions: In General 208 § 7.3 Spontaneous Declarations: Excited Utterances and Present Sense Impressions 210 § 7.4 Physical or Mental Condition 216 § 7.5 Statements for Purposes of Medical Diagnosis or Treatment 227 § 7.6 Recorded Recollection (Past Recollection Recorded) 231 § 7.7 Business and Public Records 235 § 7.8 Miscellaneous Rule 803 Exceptions 254 § 7.9 Rule 804 Exceptions—Requiring Unavailability of the Declarant 261 § 7.10 The Residual Exception—Rule 807 283 § 7.11 Applying the Hearsay Exceptions to Multiple Hearsay 290 Chapter VIII. Hearsay and the Confrontation Clause 293 Chapter IX. Impeachment 309 § 9.1 Competency to Testify 309 § 9.2 Impeachment: In General 312 § 9.3 Techniques of Impeachment 315 Chapter X. Privilege 347 § 10.1 Rationale and Characteristics 347 § 10.2 Privileges Under the Federal Rules of Evidence 349 § 10.3 The Attorney-Client Privilege 351 § 10.4 Spousal Privilege for Confidential Communications 373 § 10.5 The Spousal Testimonial Privilege 375 § 10.6 Psychotherapist-Patient Privilege 378 § 10.7 Physician-Patient Privilege 380 § 10.8 The Privilege Against Compelled Self-Incrimination: A Primer 382 § 10.9 Analyzing Privilege Law: A Suggested Approach 388 Chapter XI. Expert Testimony and Scientific Evidence 391 § 11.1 Role and Qualification of the Expert Witness 391 § 11.2 Background of Current Rule 702 394 § 11.3 Amended Rule 702 398 § 11.4 The Expert Witness: Sources of Knowledge and Direct Examination 399 § 11.5 The Expert Witness: Cross-Examination and Impeachment 407 § 11.6 Scientific and Technical Evidence: A Sample 408 Chapter XII. Burdens and Presumptions 417 § 12.1 Burdens of Persuasion and Production 417 § 12.2 Presumptions: General Nature and Effect 424 § 12.3 Some Sample Presumptions 426 § 12.4 Presumptions: Impact upon Opponent and Effect of Rebuttal Evidence 427 § 12.5 Presumptions: Instructing the Jury 432 § 12.6 Presumptions Under the Federal Rules of Evidence 436 § 12.7 Conflicting Presumptions 437 § 12.8 Presumptions in Criminal Cases: Constitutional Problems 438 Chapter XIII. The Best Evidence Rule 447 § 13.1 In General: The Rule and Its Purpose 447 § 13.2 Application: Proving the Contents of a Writing 448 § 13.3 Application: Identifying an “Original” 449 § 13.4 Application: Recordings and Photographs; Statutory Modifications 450 § 13.5 Role of Judge and Jury; Classes of Secondary Evidence 453 Appendix I. Is It Hearsay? 455 Appendix II. Federal Rules of Evidence for United States Courts 461 T C 497 ABLE OF ASES I 501 NDEX Table of Contents ————— P E E REFACE TO THE IGHTH DITION V Chapter I. Introduction 1 Chapter II. The Framework 5 § 2.1 The Adversary System 5 § 2.2 Phases of a Trial 6 § 2.3 Offers of Proof and Objections 7 The Offer of Proof: Federal Rule 103 7 Objections: Rule 103 9 § 2.4 Examining Witnesses: General Rules 11 The Form of Questions 11 Leading Questions 11 When Is a Question “Leading”? 12 Qualifications to the “Leading Questions” Prohibition 13 Federal Rule 611 and Leading Questions 14 Scope of Cross-Examination 15 Federal Rule 611(b) 16 Questions Relating to Credibility 17 The Lay Opinion Rule 18 Federal Rule 701 18 § 2.5 Examining Witnesses: When Memory Fails 21 Refreshing Recollection 21 Federal Rule 612 22 Past Recollection Recorded 23 Federal Rule 803(5) 24 § 2.6 Role of Judge and Jury: An Overview 25 Judge’s Fact-Finding Role in Applying the Rules of Evidence 26 Federal Rule 104(a) 29 § 2.7 Shortcuts to Proof: Judicial Notice and Other Devices 30 Judicial Notice 31 When Judicial Notice Is Conclusive 31
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