Short Attack Plan

I. Has there been a proper foundation for E?

II. Is there a problem with the form of E?

1. 611: Goals, Scope of Cross, Leading Qs

2. Opinion Testimony
3. Best Evidence Rule

III. Is E relevant to a fact of consequence?

IV. If so, is it excluded anyway?

1. More prejudicial than probative?

2. Is the E protected by some privilege?

3. Character Evidence To Show Propensity = N/A

4. Protecting Socially Valuable Behavior

5. Rape Shield Law

6. Hearsay?
a. Hearsay within Hearsay?
b. Not Hearsay?
c. Hearsay Exceptions Regardless of Availability
d. Hearsay Exceptions Requiring Unavailability
e. Residual Exception?
f. 6th Amendment Problem in Criminal Case?
g. Attack Credibility of Non-Testifying Declarant Through Article 6

V. Below Applies to Witnesses and Non-Testifying Hearsay Declarants?

1. Getting On The Stand

2. Toolbox of Tactics To Challenge Testimony

 Detailed Attack Plan

I. Has there been a proper foundation for E?

1. Authentication

II. Is there a problem with the form of E?

4. 611: Goals, Scope of Cross, Leading Qs

a. Adverse Party and Court Rights When Refreshing Recollection
b. Excluding Witnesses
c. Court Calling Witnesses
5. Opinion Testimony
a. Expert
i. Qualify, Gatekeeper, Reliability, Applied, Fit, 403
ii. Basis of Opinion/Elicited Properly?
b. Lay
i. Personal Knowledge, Helpful, Not Specialized
c. Opinions on Ultimate Issue
6. Best Evidence Rule

III. Is E relevant to a fact of consequence?

IV. If so, is it excluded anyway?

7. More prejudicial than probative?

8. Is the E protected by some privilege?

a. Self Incrimination
b. Attorney-Client
c. Attorney Work-Product
d. Spousal
i. Testimony
ii. Confidential Comm.
e. Psychotherapist-Patient
f. Executive
g. Clergy-Communicant

9. Character Evidence To Show Propensity = N/A

a. Mercy Rule
b. Crimes, Wrongs, or Other Acts For Non-Character Purpose
c. Witnesss Character for Truthfulness
d. Witnesss Past Criminal Convictions
e. Similar Crimes Child Molestation or Sexual Assault
f. Element of a Crime
g. Habits Are Not Character
10. Protecting Socially Valuable Behavior
a. Subsequent Remedial Measures
b. Compromise offers and Negotiations
c. Offers to Pay Medical or Similar Expenses
d. Pleas, Discussions, and Related Statements
e. Liability Insurance

11. Rape Shield Law

12. Hearsay?
a. Hearsay within Hearsay?
b. Not Hearsay?
i. Declarant-Witness Statement
1. Inconsistent Statement
2. Consistent Statement
3. Statement of Identity
ii. Opposing Party Statement
1. Said by party
2. Adopted
3. Authorized
4. Agent/employee
5. Coconspirator
c. Hearsay Exceptions Regardless of Availability
Related to declarants perception
i. Present Sense Impressions
ii. Excited Utterances
iii. Then-Existing Emotional or Physical Condition
1. State of Mind
2. Physical Condition
iv. Statements for Medical Diagnosis or Treatment
v. Recorded Recollection
Related to Records, Public and Private
vi. Records of Regularly Conduct Activity
vii. Absence of Such Records
viii. Public Records
ix. Public Records of Vital Statistics
x. Absence of Public Records
Documents
xi. Statements in Ancient Documents
xii. Market Reports or Similar Commercial Publications
xiii. Statements in Learned Treatises, Periodicals or Pamphlets
d. Hearsay Exceptions Requiring Unavailability
i. Establish Unavailability
ii. Apply Exceptions:
1. Former Testimony
 2. Dying Declarations
3. Statements Against Interest
4. Forfeiture Exception
e. Residual Exception?
f. 6th Amendment Problem in Criminal Case?
g. Attack Credibility of Non-Testifying Declarant Through Article 6

V. Below Applies to Witnesses and Non-Testifying Hearsay Declarants?

1. Getting On The Stand

a. Every Person
i. Presumption of CompetenceFour Capacities
ii. Lay Persons Need Personal Knowledge
iii. Oath or Affirmation
b. Interpreters
i. Qualified
c. Judge
i. Cannot Testify on Own Trial
d. Jurors
i. At The Trial, Testify Away From Other Jurors
ii. After The Trial, RE Validity of Verdict, only when:
1. Extraneous prejudicial information brought to deliberation
2. Outside influence on juror
3. Mistake in Entering the Verdict Form
e. Experts
i. Oath or Affirmation
ii. Daubert Test

2. Toolbox of Tactics To Challenge Testimony

a. Offense:
>Rebut bad testimony
>Complete the story
>Clarify ambiguity
>Introduce expert
b. Defense:
>Competent4 capacities?
Narration
Memory
Truth
Perception
>Character for Untruthfulness?
Reputation or Opinion
Specifics on cross
Past criminal convictions (extrinsic E OK)
 >Prior Inconsistent statements (extrinsic E OK)
>Bias
Religious belief/opinion
Consider the socially valuable exceptions to relevance
c. Look to the Judge
>403
>Hearsay
>Opinion
>Character