There is a lot of evidence law you need to know for the bar exam. How can you remember it all? I once heard someone quickly recite all of the hearsay exemptions and exceptions. Since then, I was determined to figure out how to make bar study fun and memorable.
Watch the Law in Action
When the Johnny Depp and Amber Heard bombshell trial was televised, I took advantage of this opportunity to integrate the law into my life outside of my rigid bar prep schedule. I would watch Court TV clips during breaks and hear the attorney commentators give their legal insight. Similarly, you can also make evidence simple and fun with illustrations of real cases and listening to the analysis and attorney commentators on cases of interest.
Expert Testimony
A professor helped me memorize how expert witnesses are deemed qualified experts using the acronym “S.K.E.E.T.” Specifically, under the Federal Rules of Evidence 702, we can look to their skills, knowledge, education, experience and training.
This concept really comes to life with the recent and highly publicized Gwyneth Paltrow skiing case, in which a plaintiff accused her of negligence and causing his injuries during a ski collision accident that occurred in 2016. During the trial Gwyneth’s legal team made power moves by bringing a qualified biomechanical engineer and scientific experts to testify, who establish that they possess the “S.K.E.E.T” to testify as an expert. It essentially sounds like they are reading their resume or biography.
The opposing party predictably inquired into the expert’s underlying facts and data in attempt to undermine their expertise. In response, the expert showed that they utilized sound principles and methods in a reliable manner. The opposing party then raised for the jury to have doubt about their ability to be unbiased, by inquiring into how much financial compensation the expert is being paid for their research and testimony—an attempt to impeach the expert on the basis of financial bias. In response, some of these witnesses testified to being paid over $10K.
Hearsay
As we know, hearsay is an out-of-court statement made by a declarant, and the statement is being offered to prove the truth of the matter asserted. A defense attorney protecting their client during a trial is going to exercise the hearsay objection from keeping oral or written assertions that were made by the declarant outside of the current trial to show that this information cannot come in. You may have heard of the Murdaugh case also referred to by Court TV as the “Murdaugh Family Murders.” Alex Murdaugh, a once-prominent South Carolina attorney from a legal dynasty, was recently found guilty on all counts in the deaths of his youngest son and wife, Maggie, who were shot to death on his family’s property.
A key piece of testimony came from his family’s housekeeper, Blanca Simpson. Her testimony was described by viewers as “explosive” because she testified about her conversation with the now deceased wife, Maggie, about finances a month before she was murdered. In response, Alex’s attorneys moved for a mistrial on the basis of her testimony being hearsay. The judge overruled. Prosecutors said the testimony was admissible because hearsay evidence can come in under certain circumstances. In this case, and for the purposes of the hearsay rule, Blanca is the testifying witness and Maggie is the hearsay declarant. The out-of-court statement in excerpt included “[Maggie] was worried about a lawsuit and stated they wanted $30 million and started crying. ‘We don’t have that kind of money […]’”
Another high-profile case to tune into is the O.J. Simpson trial (known as the trial of the century in the 1990s) and the ways that a variety of statements by Nicole were admitted including a phone call she made to a shelter shortly before she was murdered, entries in her diary, and a letter to the defendant. While watching, you can play attorney and predict what objections should be raised next and on what grounds as if thought were actually answering to the judge in real time.
Relevance
Many of us were glued to the screens for the Amber Heard and Johnny Depp defamation case, in which Depp accused Heard of damaging his reputation and causing him injury including losing movie roles and facing public scrutiny.
One of the most popular aspects was the near-constant objections made by Depp’s rockstar attorney, Camille Vasquez. Among numerous objections she made, she also included relevance objections where she states “Objection, irrelevant!” His attorney’s goal was not to become an overnight internet sensation (which happened!) but to make timely and substantiated objections to testimony that was irrelevant, misleading, and highly prejudicial. Why? In order to effectively represent and protect her client.
On the other hand, legal commentators pointed out that Heard’s attorneys were not jumping out of their seats and missed opportunities to object on behalf of their client with regard to testimony that could have been excluded. As you know and will review during bar prep, if a trial attorney doesn’t make a timely and supported objection, then it cannot be raised later.
Your Turn
The next time you are on YouTube, or your favorite streaming device, check out a high-profile case. You never know what useful evidence law for the bar that you can passively pick up from popular and televised cases. You can also watch excerpts and interpretations of famous trials like the Menendez brothers, O.J. Simpson, Casey Anthony through various streaming outlets.
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