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Barbara E. Bergman Professor of Law Pamela B. Minzner Chair in Professionalism University of New Mexico Law School 1117 Stanford, N.E. Albuquerque , New Mexico 87131 (505) 277-3304 Email: [email protected]. Creative. &. Aggressive. Uses of Evidence to Win. - PowerPoint PPT Presentation
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BARBARA E. BERGMANProfessor of LawPamela B. Minzner Chair in ProfessionalismUniversity of New Mexico Law School1117 Stanford, N.E.Albuquerque, New Mexico 87131(505) 277-3304Email: [email protected]
Aggressive
Or, at least, stay out of trouble.
CreativeUses of Evidence to Win
&
Impeach Everyone Who Doesn’t Show
Up
Especially Co-Conspirators
U.S. v. McClain 934 F.2d 822, 832-33 (7th Cir. 1991)
Only applies to hearsay statements offered for the truth.
(co-conspirators statements admitted only to put defendant’s statements in context
not admitted for the truth;Rule 806 did not apply)
Rule 806 In Practice
Brady/Giglio disclosure
Severance
U.S. v. Perez299 F. Supp.2d 38 (D. Conn. 2004)
Defendant’s severance motion granted
R. 806 Impeachment Opportunities
- Prior Convictions- Inconsistent Statements
- Bias and Motive
- Opinions and Reputation
- Bolstering a Witness
R. 806
- Extrinsic Evidence May be Admissible under Rule 608(b) in Federal Court
- Defense Attacking Reliability of the Defendant’s Out-of-Court Statements
- Advanced Course
Gov’t can Impeach your Non-Testifying Client, too.!
Make the Prosecutor EAT Her Words
Make Prosecutor
Her Words.
Fed. R. Evid. 801(d)(2)
• Statements from Other Cases• Statements from the Bill of Particulars• Statements from Pretrial Proceedings• Statements from Search Warrants• Statements by Informants• Statements in Writings• Statements on Appeal
Fed. R. Evid. 801(d)(2)
STATEMENTSM-DQ
Make Prosecutor
Her Words.
Fed. R. Evid. 801(d)(2)
STATEMENTSM-DP Violation
(Publicity) Goals: 1) win, 2) educate the court;
used State’s admission from DQ motion
Make Prosecutor
Her Words.
Fed. R. Evid. 801(d)(2)
STATEMENTSM-Change of
Venue
Make Prosecutor
Her Words.
Fed. R. Evid. 801(d)(2) – NON-EVIDENCE ISSUES
Judicial Estoppel
Due Process
Make Prosecutor
Her Words.
No Eat Words.
FRE 106 Get your Evidence On During
Prosecution’s Direct
Do NOT wait ‘til Cross
Usually does NOT apply to oral statements (unless
recorded) R.106
FAIRNESS TEST:
Relevance of What you Want
Efficacy – will admission “qualify explain, or place in context...”
Your Evidence Is Otherwise Inadmissible?What
if:
A “Writing or Recording Complete”
WhEN iS: ?
!Don’t Open the Door to Admission of Otherwise Excluded Evidence.
R. 608: Work That
Lie
Use Their Documents
Obtain the documents that Prosecution witnesses use to refresh their memories while testifying.
Obtain the documents that Prosecution witnesses use to refresh their memories before testifying.
PROTECT YOUR DOCUMENTS
To aid your cross-examination.
To exclude prosecution’s evidence.
