Sunday, April 30, 2006

By popular (i.e.: one) request, here's my Evidence playlist with explanations for tomorrow's exam (note: all references are to the Federal Rules of Evidence):

  • Does Your Mother Know?, ABBA: leading questions are normally only allowed on cross-exam or with a hostile witness (R.611(c))
  • You Oughta Know, Alanis Morissette: attorney-client privilege is lost if either party knows or should have known that someone was eavesdropping
  • I Ain't the One, Allison Moorer w/ Los Straitjackets: U.S. v. Havens and impeachment rules (R.609) arguably make it very difficult for criminal defendants to testify on their own behalf
  • Presence Dear, Blondie: Certain hearsay exceptions (R.804) require that the declarant (a.k.a.: original speaker) by unavailable to testify
  • Boys Don't Cry, The Cure: Propensity evidence is generally disallowed
  • We Both Go Down Together, The Decemberists; Let's Stick Together, Roxy Music: Co-conspirator statements within the course of and in furtherance of the conspiracy are not considered hearsay (R.801(d)(2)(E))
  • Blasphemous Rumours, Depeche Mode; A Well-Respected Man, The Kinks; Bad Reputation, Reverend Horton Heat; Goody Two Shoes, Adam Ant: Character witnesses may testify to their own opinion of the underlying witness, or to that person's reputation in the relevant community (R.608)
  • It's Now Or Never, Elvis Presley: The prior inconsistent statement of a witness may only be brought in while the witness is still on the stand and has a chance to explain (R.613(b))
  • Til I Hear It from You, Gin Blossoms; Somebody Told Me, The Killers: hearsay generally
  • Please Come to Boston, Joan Baez: Government must subpoena and take all reasonable steps to procure a witness before they will be declared unavailable (R.804(a)(5))
  • He Could Be the One, Josie Cotton: Lineup identifications are considered nonhearsay (R.801(d)(1)(C))
  • All These Things That I've Done, The Killers: Evidence of a criminal defendant's prior convictions is admissible for impeachment purposes if they were for crimes of dishonesty or if they were felonies within the last 10 years (R.609(a))
  • The Impression That I Get, Mighty Mighty Bosstones; More Than a Feeling, Boston: Opinion or inference testimony from non-experts is limited to those rationally based on perception and helpful to the jury (R.701)
  • The Jury, Morphine: Finder of fact makes determinations of conditional relevancy (R.104(b))
  • Let The Idiot Speak, Old 97's: Common law limitations on witness competency for mental capacity have been relaxed, and low mental ability is now merely grounds for impeachment--though states may have their own peculiar rules (R.601)
  • Interjections!, Schoolhouse Rock; Excitable Boy, Warren Zevon: Hearsay exception for excited utterances (R.803(2))
  • Under Control, The Strokes: Chain of custody testimony is a recognized method of authenticating physical evidence
  • Add It Up, Violent Femmes; New Math, Tom Lehrer: Juries are not supposed to consider product-rule calculations (i.e.: if it's 60% likely a happened and 60% likely b happened, then it's 36% likely that a & b both happened)
  • Indian Giver, The Cowsills: Because there are a limited number of federal crimes for others, many of the leading federal evidentiary cases involve crimes on Indian reservations, where federal law applies
  • A Nervous Tic Motion of the Head to the Left, Andrew Bird: Juries determine witness credibility; this can't help the witness
  • In This Diary, The Ataris: Hearsay exception for records of regularly conducted activity (R.803(6))
  • Deadbeat Club, The B-52's: Under U.S. v. Abel, a witness may be impeached via evidence of organization membership
  • Cover of the Rolling Stone, Dr. Hook: Periodicals are self-authenticating documents (R.902(6))
  • Rocked by Rape, Evolution Control Committee: Evidence of Rape Trauma Syndrome is inadmissible for showing lack of consent, but is sometimes admissible to explain post-incident behavior that may otherwise seem inconsistent with rape
  • Do You Realize?, The Flaming Lips: Positive character evidence can be rebutted with questions about whether the witness knows of specific instances of the underlying witness's behavior, but not with extrinsic evidence of that behavior (R.405(a))
  • People Who Died, The Jim Carroll Band: Many states maintain some version of Dead Man's Statutes, which disallow one side of a transaction from testifying about oral representations when the other party is deceased
  • Johnny Are You Queer?, Josie Cotton; She Has a Girlfriend Now, Reel Big Fish: Evidence of an alleged sex crime victim's sexual history or predispositions is usually inadmissible (R.412(a))
  • Selling the Drama, Live: Evidence professors sometimes sit around debating whether what we really want from jury trials is accurate fact-finding, or a social drama that supports the acceptance of verdicts
  • Divorce Song, Liz Phair; D-I-V-O-R-C-E, Tammy Wynette: Divorce cancels the spousal testimony privilege, but not the confidential spousal communications privilege
  • I'm a Believer, The Monkees: Evidence of a witness's religious belief or lack thereof is inadmissible for enhancing or impairing credibility (R.610)
  • Letter from an Occupant, The New P0rn0graphers: In U.S. v. Bagaric the 2nd Circuit said a letter could be authenticated based on its contents and postmark, even if the author and recipient refused to testify because they were the ones on trial
  • Lie Detector, Reverend Horton Heat: The biggest historical case on scientific evidence (People [CA] v. Frey, 1923) ruled polygraph evidence inadmissible, and this is still generally true
  • Why Does the Sun Shine? (The Sun Is a Mass of Incandescent Gas), They Might Be Giants: Qualified experts may testify on matters where specialized scientific or technical knowledge could assist the jury (R.702)
  • Hey Mr. DJ I Thought You Said We Had a Deal, TMBG: Anything that comes out in plea -bargain negotiations is inadmissible (R.410)
  • Fatal Wound, Uncle Tupelo: Hearsay exception for dying declarations regarding the cause or circumstances of the impending death (R.804(b)(2))
Though I remain skeptical as always, I'm going to admit the above as evidence that I may actually be ready for this thing...


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