Bar News - May 17, 2002
John Garvey's Evidence Wrap Up
By: John
Editor's Note: The following was composed by John B. Garvey's alter ego and presented at the NHBA's Evidence CLE on March 8, 2002. Videotape or audiotape of the entire program is available for rent or purchase by contacting the NHBA CLE office. Click on the heading "CLE Audios/Video/Books" and the Evidence program appears on the pulldown menu under the "Litigation" classification. Garvey, an attorney at Sulloway & Hollis, also teaches at Franklin Pierce Law Center.
Evidence, it's a language, man
Which you've 'gotta learn to speak just as well as you can.
If you want to be good, if you want to win,
You 'gotta learn to figure how you're getting it in
Or keepin' it out, if that's what it's about
When you say "objection" - there's no need to shout
'Cause you've got the rules, and the judge will know,
That you're the real thing and not some ho.
So remember those rules, how they interact,
'Cuz you're 'gonna need'm, and that's a fact.
And they all make sense, if you put'm together and
Then the only issue left is whether
It's staying out or it's coming in
Whose gonna lose, whose gonna win.
When you think it through, now don't get tense
'Cuz you always start with "relevance'"
Under 401, then 402
That's the first thing that you need to do.
And if it is, then you can use it
Unless some other rule excludes it
Like hearsay, under 801
Was it out of court, was it said for fun?
'Cuz if you want to prove it's true
Then this is what you need to do.
If the statement was made by a party opponent
Say, "801, Judge, he's 'gonna own it."
For anyone else, look at 803, or 804 if you need some more
An exception is what you're lookin' for.
If she said it as it happened try 803(l)
Or 803(2) if she excited you.
If she had to tell the doctor so that she could get well,
Then 803(4)'s gonna ring the bell.
If she once made a statement and thought it was true
Here's another thing that you might do
While her memory was good, she wrote it down
But now her memory's not around
Try 803(5) and the statement comes in
With past recollection you still can win.
For business records try 803(6)
It's hearsay, but this is the fix.
If a public record is what you've got
Then 803(8) will hit the spot.
But think about double hearsay, do
A quote in the record? Well, that's your clue -
So you'll need a second exception, too.
Do you want the jury to hear a book? Then 803 (18) needs a look.
A reliable authority, and an expert with a big fat fee.
(Or judicial notice gets it in for free.)
Now what about character, can you prove her
Past behavior makes her a loser?
404(a) says probably not,
As a party she can't be in that spot.
But if you're trying to show intent
Or motive and it's relevant
Then 404(b) gives you the tool
To swallow up the basic rule.
And if a person takes the stand
Then they have entered 600 land 607, 8 and 9
Whose tellin' the truth and who is lyin'.
Their character and reputation
For telling the truth on all occasions
You can't support until attacked
And if you do you may get whacked.
With experts under 702,
You need to know just what to do.
Will their views assist the jury?
If they will, no need to worry.
But remember Daubert and Kumho Tire,
The expert cannot take you higher
Than your gatekeeper will admit,
So show your expert's not full of s*@!,
There's other rules, but they're not tough
You just gotta' study and learn your stuff.
Read the notes and read each rule,
That's what you do when you're goin' to school.
You have to practice to get fluent
It will not work if you are truant.
Before you walk, you have to crawl
But when you can run, you'll have a ball.
'Cuz Evidence, it's a language, man
Which you've gotta learn to speak just as well as you can.
If you want to be good, if you want to win,
You gotta learn to figure how you're getting it in
Or keepin' it out, it that's what it's about
When you say "objection" - there's no need to shout
'Cause you've got the rules, and the judge will know,
That you're the real thing and not some ho.
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