Petroski : Evidence : Fall 2011

INTRODUCTION AND BASIC CONCEPTS

The Anglo American Trial Trial: 1. Pretrial Stages in Civil Cases A civil suit commences with the filing of a complaint. A summons along with the complaint is then served on the defendant, who is required to respond with an answer. The party must either admit or deny the averments in the complaint, unless unsure. Failure to deny may result in an admission. Affirmative defenses must also be set forth in the answer. Once the pleadings are closed, a party may move for a judgment on the pleadings. In Limine- evidentiary motions heard before trial to distinguish them from objections raised during trial. 2. Pretrial Stages in Criminal Cases a. Charging Instruments Criminal cases may commence with the filing of a complaint or an arrest, which then is followed by a complaint. The process may also start with a grand jury indictment or in some jurisdictions, with the filing of a prosecutors information. b. Preliminary Hearing The preliminary hearing is a screening device, much the same as the grand jury is a screening device, designed to insure that persons are not made to stand trial for a felony in the absence of substantial credible evidence. Unlike a grand jury, a preliminary hearing is an adversarial proceeding. c. Grand Jury Proceedings State law generally governs indictment issues. Indeed, approximately two-thirds of the states do not require grand jury indictments for felonies. The rules of evidence, constitutional or otherwise, are generally inapplicable to grand jury proceedings. 3. Jury Selection & Voir Dire The examination of prospective jurors (voir dire) is conducted to determine whether challenges are warranted. There are two types of challenges: (1) for cause and (2) peremptory. Challenges for cause are typically based on statutory provisions that contain age, citizenship, and other disqualifications such as a felony conviction or some relationship with one of the parties. The impartiality of jurors, of course, is required. Thus, evidence of personal bias is grounds for challenge. A peremptory challenge can be exercised for any reason except peremptory strikes may not be based on race or gender, a rule that also applies in civil cases. 4. Order of Proceedings at Trial The trial begins with opening statements. Evidence is first presented in the plaintiffs (prosecutions) case-in-chief, which is followed by the defense case-in-chief, plaintiff rebuttal, and defense surrebutal. The trial ends with closing arguments by counsel and jury instructions. The judge has the discretionary authority to alter this scheme. 5. Jury Deliberations, Verdicts & Posttrial Motions a. Exhibits in the Jury Room Real and documentary evidence admitted at trial usually goes with the jury to the deliberation room. In contrast, pedagogic devices, such as models, do not go to the deliberation room. b. Post-Verdict Hearings & Motions When the jury returns its verdict and it is read in open court, losing counsel may ask for the jury to be polled. If there is a conviction in a criminal case, a sentencing hearing is scheduled after a presentence investigation and report is completed. A motion for a directed verdict may also be made at this time, as well as a motion for a new trial. Role of a Judge: 1. Trial judges authority- FRE 104(a) the court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. In so deciding, the court is not bound by evidence rules, except those on privilege. 2. Trial judges discretion- FRE 103 Courts must disregard errors that do not affect the substantial rights of the parties.(a)requires objections and offers a proof for plain error. 3. United States v. Walton: Circuit court afforded great deference to the trial cts determination of admissibility of evidence because of the trial judges first-hand exposure to witnesses and evidence as a whole. 4. Bandera (proponent) v. City of Quincy (opponent): Opponent made objections but did not give substantive reasons why. Her testimony passes the first component of 401, that the sexual harassment is more probable than not.

RELEVANCE FRE 401-403, 104

A. Relevance and Irrelevance Rule 401 RELEVANCE Does the evidence make the factual proposition more likely than it would be without the evidence? Is there a link between the factual proposition which tends to establish the substantive law? 1. "Relevant evidence" means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.
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Probative Value - ANY tendency to prove the issue (an inference) i. To prove elements of your case, or ii. To rebut the opposition b. Materiality - ANY issue that is of consequence to the case i. Properly provable must have something to do with what you are trying to prove. 2. Knapp v. State: the evidence must be connected to the issue by an open and visible connection, through a logical process. 3. United States v. Dominguez: The effort to replace gun=effort to eliminate features of the gun linked with the bullet found in victims body=suggests consciousness of guilt. 4. State v. Larson: Value of evidence is determined by logic and experience, in proving proposition for which it is offered. Relevant because it aided the jury in applying their experience and logic to determine whether intoxication clouded judgment. 5. Types of Evidence: a. Direct evidence evidence that directly proves the ultimate issue in the case. When evidence is direct, it is relevant. b. Real evidence tangible things (ex. Murder weapon) c. Circumstantial evidence that which does not directly prove the case, but requires inferences 6. With the exception of the credibility of witnesses, the consequential facts in a particular case are a matter of substantive law (1) the elements of the charged crime, (2) the elements of a cause of action, (3) the elements of an affirmative defense, and (4) damages in civil cases. Rule 402 makes relevant evidence admissible in the absence of a rule of exclusion. 1. All relevant evidence is admissible - If it is not relevant, it is NOT admissible 2. EXCEPTION Evidence that might be excluded by the: a. Constitution i.e., 4th Amend. (ex. improper search and seizure) b. Act of Congress/federal statutes (ex. Wiretapping rules) c. The FRE hearsay, privileges B. Probative Value (how usual evidence is) and Prejudice Rule 403 BALANCING: Is the probative value substantially outweighed by an undue tendency to suggest decision on an improper basis, commonly and emotional one? Is it outweighed its tendency to confuse or mislead the jury from the main issue? Is it outweighed by its tendency to waste time? 1. Even if evidence is relevant, Trial Judges have discretion to exclude evidence that is more trouble that its worth either because it will likely impairs rather than assist in search for truth or take too much time. Judge considers the following factors in determining whether to admit: a. Probative value is substantially outweighed - Prejudicial value must be more than 50% (greater than preponderance of the evidence) b. By danger of 1. Prejudice things that elicit emotional response from jury 2. Confusion of the issues 3. Misleading the jury 4. Undue delay, waste of time, or needless presentation of cum. Evid. c. Court must balance the probative value of the evidence; exclusion is discretionary. The word substantially is significant; it makes Rule 403 biased in favor of admissibility. d. When weighing, the court should normally compare the proffered evidence against other possible evidence on the same point. If the alternative evidence has the same or nearly the same probative effect, and much less prejudicial value, the court should normally insist that the less-prejudicial be used. 2. United States v. Flitcraft: Evidence would present danger of confusing the jury by suggesting the law is unsettled. 3. Old Chief v. United States: Full description of the prior offense had NO probative value; defendant had conceded that he was a felon. Similar Happenings; Other Accidents 1. Frequently, similar events are offered in evidence - the test is often stated as whether there is substantial similarity between the other happening and the present litigation.
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a.

2.

Notice & dangerous conditions - Prior occurrences are sometimes admissible to show notice or a dangerous condition. Additional examples include other claims, misrepresentations, contracts, and business transactions, as well as sales of similar property as evidence of value. 3. Absence of other happenings - The lack of other accidents (good safety history) may be admissible to show the absence of a dangerous condition. Showing probative value, however, is far more difficult. Adverse Inferences In some cases an adverse inference can be drawn from a partys conduct as an implied admission. 1. Admissions by Conduct flight, alias, etc. Conduct of a party, such as intimidating witnesses, may be used circumstantially to draw an adverse inference. Other examples include evidence of false statements, escape, offers to bribe witnesses, refusal to provide handwriting exemplars, and use of an alias. 2. Destruction of Evidence (spoliation) - a type of circumstantial evidence, an implicit admission of the weakness of a partys case. Documents destroyed in good faith pursuant to a valid record retention policy should not be subject to this inference. 3. Failure to Produce Evidence - Sometimes a partys failure to produce evidence may be used to draw an adverse inference. Perhaps the most familiar instance is an accuseds failure to testify, which is prohibited on constitutional, not evidentiary, grounds. See Griffin v. California, 380 U.S. 609, 614 (1965) (accuseds failure to testify cannot be the subject of comment by the court or prosecutor). 4. Missing Witness Rule - a partys failure to call a presumably favorable witness may give rise to an adverse inference. C. Conditional Relevance Rule 104 (b) Relevance That Depends on a Fact: When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition that the proof be introduced later. 1. The preliminary question the judge asks in the case of conditional relevance is not whether the preliminary fact is actually true, but whether a reasonable jury could think so, given the other evidence in the case. 2. Must produce the extra material that relates the conditionally relevant information in the case. 3. ACN Note to F.R.E. 104(b): a. Relevancy of an item of evidence depends upon the existence of a particular preliminary fact. b. Judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition. If it is, then item is admitted. c. Order of proof is subject to the control of the judge. 2. FRE 105: limiting instructions as alternative to exclusion, generally assumed to be effective

SPECIFIC EXCLUSIONS OF RELEVANT MATERIAL

CHARACTER EVIDENCE A. The Basic Rule and Its Exceptions Rule 404 Character Evidence Is the persons character being used NOT to show that he acted in conformity with the present occasion but to show that some element of the case is satisfied (character at issue 405(b))? Is the character evidence being offered by a criminal defendant to show evidence of a (good) pertinent trait (relevant to the crime charged) of his own character? Is the criminal defendant offering evidence to show pertinent character of the victim (but not to show sexual behavior of a rape victim)? (If so, admissible). 1. Evidence of a character trait is barred only if it is offered to prove conduct in conformity with the trait. Propensity inference that a person did something because he or she is the type of person who would likely have done it, is often forbidden because it is extremely prejudicial. Three exceptions: a. The character of a criminal defendant - Once the CRIMINAL defendant chooses to open up the question of his character, or character of victim, prosecution can follow suit. b. The character of the victim or alleged victim of a criminal offense - The CRIMINAL defendant may show that the victim was the aggressor by introducing evidence of the victims character of violence. Prosecution may also rebut this with character evidence about the victims peaceful character or about the defendants aggressive nature. c. The character of a witness process of impeachment permits propensity inference. Where an issue at trial is whether a witness testified truthfully, evidence about that witnesss character for truth telling is permitted to support the inference that the witness has acted at the trial in conformity with the witnesss truthful or deceptive conduct at trial. 2. ACN to FRE 404(a) Character questions arise in two fundamentally different ways; a. Character in issue- Character that may itself be an element of a crime, claim, or defense is allowed. Involves those rare cases in which character is an element of a cause of action, a crime, or a defense. Rule 405(b) specifies the methods of proof when character is in issue.
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3. 4. 5.

6.

Circumstantial- Character evidence is susceptible of being used for the purpose of suggesting an inference that the person acted on the occasion in question consistently with his character. c. In most jurisdictions, the circumstantial use of character is rejected but with important exceptions: i. Accused can introduce pertinent evidence of good character in which event the prosecution may rebut with evidence of bad character; ii. Accused may introduce pertinent evidence of the character of the victim to support of a claim of selfdefense to a charge of homicide or consent in a case of rape, and the prosecution may introduce similar evidence in rebuttal of the character evidence, or, in a homicide case, to rebut a claim that deceased was the first aggressor. iii. The character of a witness may be gone into as bearing on his credibility Remember: Prosecution cannot offer defendants character UNLESS defendant does so first. Cleghorn v. NY Central: Evidence of flagmans prior drunkenness admissible because defendants knowing and continuing employment of the drunken flagman was directly relevant to the claim. Berryhill v. Beryhill: character is at issue in a child custody proceeding and "evidence touching the character, conduct, and reputation of the parties, or any other evidence tending to throw light on their fitness to be the custodian of the child, is admissible." Larson v. Klapprodt: Since damage to reputation was at least part of Klapprodt's claim, evidence of his reputation or past misdeeds was admissible both in establishing truth and in mitigating damages.

b.

B. Methods of Proving Character Rule 405 governs the methods of proof: Generally, only opinion and reputation evidence (not specific acts) are permitted to prove character when a Rule 404(a) exception applies. However, specific instances of conduct may be used during crossexamination of a character witness to test the witnesss qualifications to testify on character. 1. How to PROVE character: a. Reputation or opinion In all cases in which evidence of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. b. Specific instances of conduct - Is the character or a trait of character of a person an essential element of a charge, claim, or defense, proof? If so it may also be made of specific instances of that person's conduct. 2. When 1 of the 3 exceptions apply, it applies only to certain kinds of evidence of character such as testimony about persons reputation, witness own opinion about the persons character and NOT evidence of how the person actually acted on other occasions. 3. Evidence of specific conduct allowed only: a. on cross-examination of character witness; form of questioning usually wont make difference 405(a). b. if character is element of claim or defense 405(b). 4. Accuseds Character in Sex Offense Cases: FRE 413-15 In sex offense cases, the prosecution (plaintiff) may offer evidence of the accuseds character under Rule 413 (rape cases), Rule 413 (child molestation), and Rule 415 (civil cases). 5. Michaelson v. US: When the defendant elects to initiate a character inquiry: cannot testify about defendant's specific acts or courses of conduct or his possession of a particular disposition or of benign mental and moral traits BUT is allowed to summarize what he has heard in the community. (A witness is not allowed to base his testimony on anything but hearsay. 6. ACN to FRE 405: a. Of the three methods of proving character provided by the rule, evidence of specific instances of conduct is the most convincing. This rule confines the use of evidence of this kind to cases in which character is, in the strict sense, in issue and hence deserving of a searching inquiry. b. According to the great majority of cases, on cross-examination inquiry is allowable as to whether the reputation witness has heard of particular instances of conduct pertinent to the trait in question. c. The express allowance of inquiry into specific instances of conduct on cross-examination (a) and the express allowance of it as part of a case in chief when character is actually in issue in (b) contemplate that testimony of specific instances is not generally permissible on the direct examination of an ordinary opinion witness to character. 7. ACN to FRE 803(21): The exception deals only with the hearsay aspect of this kind of evidence. Limitations upon admissibility based on other grounds will be found in Rules 404, relevancy of character evidence generally, and 608, character of witness. 8. Government of the Virgin Islands v. Roldan: By asking the questions about Roldan's social habits, Roldan's counsel had put Roldan's character in issue. 9. US v. Setien- scope of 405(b): Evidence of good conduct is not admissible to negate criminal intent. The testimony attempted to portray defendant as a good character with prior good acts therefore it is inadmissible evidence. C. Other Uses of Specific Conduct
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Evidence of uncharged misconduct is routinely admitted in criminal cases- comes in the theory that it is being used to prove something other than the defendants character, so that the character evidence rule does not come into play at all. Permissible Purposes Is the evidence offered for purpose OTHER than to show propensity? Is the evidence relevant to the proper purpose? Does the probative value outweigh the prejudicial effect? 1. Uses of specific conduct evidence - Purpose is to prohibit inferences from specific conduct. a. To rebut character evidence (FRE 405(a)) b. Where character is essential element (FRE 405(b)) c. For purpose listed in FRE 404(b): evidence of other crimes or acts can be offered to show motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. i. Prosecution must give reasonable notice of any such evidence intended to offer in trial before the trial! ii. ACN to FRE 404: Amendment to 404(b) adds pretrial notice requirement in criminal cases and is intended to reduce surprise and promote early resolution on issue of admissibility. 2. 2 Step test: MUST DETERMINE that the extrinsic offense evidence is relevant to an issue other than the defendant's character. The evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet the other requirements of rule 403. 3. Motive: Other-crimes evidence may be used to establish motive. a. Example: US v. Boyd: Defendants participation in the charged conspiracies in order to support his personal drug use is admissible under rule 404(b) as proof of his motive for participating in the conspiracies. 4. Opportunity: Other-crimes evidence may be used to establish opportunity to commit crime. a. Example: Defendant had access to the scene of crime, or was present at the scene of crime. 5. Intent: Other-crimes evidence may be used to establish that the defendant acted maliciously, deliberately, or with the specific intent required for the crime. a. There must be a substantial degree of similarity between the crime charged and other crimes. b. Guilty state of mind as to the other crime suggests the guilty state of mind as to the act charged. Beechum. c. Example: Lewis v. US: Testimony that the defendant had participated in the burglary of a garage store earlier in he evening of the post office burglar established defs plan and intent. 6. Preparation: Other-crimes evidence may be used to establish preparation for the crime charged. 7. Plan: Other-crimes evidence may be used to establish the existence of a larger plan, scheme, or conspiracy, of which the crime on trial is a part. 8. Knowledge: Other-crimes evidence may be used to show, that the act in question was not performed inadvertently, accidentally, involuntarily, or without guilty knowledge. a. Example: US v. Crocker: Defs knowing participation in the conspiracy was a crucial element as knowledge. The fact that the defendant had been arrested before with co-conspirator while in an automobile with counterfeit checks was highly probative of his knowledge that his co-conspirators checks and trips to the bank were for an illicit purpose. 9. Identity: Other-crimes evidence may be used to establish the identity of the present perpetrator. a. Other crimes must be so very similar to the method used in the crime charged that the court will find it substantially probative of identity. b. Example: US v. Dossey: The evidence of the Arkansas robbery was admissible to prove identification of the person who robbed the Little Rock bank, an issue that was important due to the teller's inability positively to identify appellant. The substantial probative value of this evidence was not outweighed by the possibility of unfair prejudice and it was properly admitted. c. Defendant may present 404(b) evidence that some third person has committed prior crimes, in order to show that the third person, not the defendant, committed the present crime under identity signature evidence. 10. Absence of mistake: Other-crimes evidence may be used to establish absence of mistake. 11. Lack of accident: Other-crimes evidence may be used to establish lack of accident. 12. US v. Wright: Bragged about being a drug dealer over the phone. The judge admitted the conversation to establish identity and intent, however, no issue of intent in this case. BUT 404(b) forbids the use of evidence of other crimes to establish a propensity to commit the type of crime charged. 13. Assumption of continuity of character - earlier drug use can be relevant only if we assume the defendants drug behavior forms an unchanging pattern. Requisite Proof 1. Requisite requirement to prove to the court that the misconduct (uncharged) actually occurred is not required under Huddleston. 2. Huddleston v. US: All 404(b) requires is that the evidence of the other crime be strong enough that the jury could reasonably find that the other crime was committed by the defendant. Court considered all evidence: the low price of the televisions, the large quantity offered for sale and petitioner's inability to produce a bill of sale and determined that the jury
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reasonably could have concluded that the televisions were stolen, and the trial court therefore properly allowed the evidence to go to the jury. The court examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact -- here, that the televisions were stolen -- by a preponderance of the evidence. a. REMEMBER!!! Use FRE 104(b) to analyze admissibility of specific conduct evidence!!!! D. Character and Habit Rule 406 HABIT: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Was the evidence offered to show that the person followed his habit or routine practice in the particular occasion? 1. Evidence of character is generally not admissible to prove conduct in conformity with character BUT habit IS admissible to prove conduct in conformity with habit on a particular occasion. Habit/routine is relevant to prove that the particular occasion is in conformity with the habit, REGARDLESS if whether it is corroborated or no eyewitness is present. 2. ACN to FRE 406: Character is a generalized description of one's disposition, or of one's disposition in respect to a general trait, such as honesty, temperance, or peacefulness. Habit, is more specific, it describes one's regular response to a repeated specific situation. 3. Habit is the regular response to a recurring particular circumstance e.g., always stopping at a particular stop sign. The key elements in determining whether conduct is habit are (1) specificity, (2) repetition, (3) duration, and (4) the semi-automatic nature of the conduct. 4. Loughan v. Firestone Tire and Rubber, Co.: FRE 406-Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. Court found the three sources of drinking problem, taken together, demonstrated a uniform pattern of behavior. 5. Burchett v. Commonwealth: If habit evidence were admissible, Appellant's drinking practice would have been admissible as substantive evidence that Appellant had likely been drinking on the day of the collision. BUT IN FACT, Appellant did not drink any alcohol that day, as was confirmed by the blood alcohol test, which was the only reason the evidence of Appellant's drinking "habit" was excluded. BUT as to the marijuana, blood sample could not be tested and the drug test results could not corroborate his testimony that he did not smoke marijuana that morning so that evidence was admitted when it should have been excluded. 6. 2 types of understanding of habit: a. Psychological theory- nonvolitional or semiautomatic nature of a habit i. Involuntariness ii. Happened for a long period of time iii. Always happens/ nature and consistency b. Probability theory- focuses entirely on a specific situation. Prior Similar Happenings No FRE rule, based on C/L: Evidence of prior similar happenings is admissible, as long as: 1. Substantial Similarity: other accidents/events occurred under circumstances substantially similar to those at the time of the injury in question. 2. Probative: Evidence must be probative on a material issue in the case. E. Sexual Assault and Child Molestation Rule 412 SEX OFFENSE CASES: Rape Shield Statutes- reduced the ability of defendant to offer evidence of victims character to prove consent. Rule 412 generally precludes evidence of a victims character in sex offense cases. There are three exceptions in a criminal case: (1) to prove that the origin of semen, pregnancy, or other physical evidence was someone other than the accused, (2) to prove a victims past sexual activity with the accused (evidence of consensual sexual encounters b/w and V to prove consent), and (3) when constitutionality required. In civil cases: evidence may be admitted to prove a victims sexual behavior or predisposition if the probative value substantially outweighs the prejudicial effect. In addition, notice and inchamber procedures are mandated. **FRE and some state codes amended to allow prosecutors and plaintiffs in sexual assault and child molestation cases to offer evidence of the defendants character. Character of the Victim 1. Graham v. State: The bad reputation of the victim and that she engaged in previous acts of intercourse with the defendant. The general rule that, on the issue of consent, proof of the victims general reputation for chastity was bad, and that she had engaged in previous acts of intercourse with the accused had no application because App said it did not happen (thus, there was no issue of consent). 2. ACN to 412: Applies to both civil and criminal proceedings. 412(b)(2) governs admissibility of otherwise prohibited evidence in civil cases. It employs a balancing test rather than the specific exceptions stated in subdivision (b)(1): the proponent of the
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evidence, whether plaintiff or defendant, to convince the court that the probative value of the proffered evidence "substantially outweighs the danger of harm to any victim and of unfair prejudice of any party." 3. US v. Saunders: Reputation and opinion evidence about a victim's past sexual behavior are never admissible, and evidence of specific prior acts is limited (to the extent constitutionally permitted) to directly probative evidence. When consent is the issue, section (b)(1)(B) permits only evidence of the defendant's past experience with the victim AND NOT with a third person. Sexual Assault Cases Character of Defendant In sex offense cases, the prosecution may offer evidence of the accuseds character under Rule 413 (rape cases), Rule 413 (child molestation), and Rule 415 (civil cases). 1. FRE 413 - Character evidence of similar crimes in sexual-assault cases may be considered on any matter relevant. No purpose or relevance restriction. If it is relevant it is admissible. Prosecutors are also free to use even unproven allegations of sexual misconduct that may be many years old. 2. The new rules for sex offense cases authorize admission and consideration of evidence of an uncharged offense for its bearing on any matter to which it is relevant a. Includes the defendants propensity to commit sexual assault or child molestation offenses, and assessment of the probability or improbability that the defendant has been falsely or mistakenly accused of such an offense. 3. FRE 414(a) Permitted Uses - In a criminal case in which a defendant is accused of child molestation, the court may admit evidence that the defendant committed any other child molestation. The evidence may be considered on any matter to which it is relevant. 4. US v. Lecompte: Evidence otherwise admissible under Rule 414 may be excluded under Rule 403's balancing test but Rule 403 must be applied to allow Rule 414 its intended effect. Reversed and held that the D Ct erred in its assessment that the probative value of T.T.'s testimony was substantially outweighed by the danger of unfair prejudice because they were substantially similarthe differences were small, the time lapse in between was long. 5. US v. Cunningham: As between two suspected molesters, when only one of whom has a history of such molestation, the history establishes a motive that enables the two suspects to be distinguished. A person whose motive to commit the crime with which he is charged is revealed by his past commission of the same crime.

OTHER FORBIDDEN INFERENCES

A. Subsequent Remedial Measures Rule 407 excludes evidence of subsequent remedial measures when offered to prove negligent or culpable conduct, including strict liability in federal courts. Is the evidence of subsequent repairs? Is it offered to show the repairers culpability? If so, evidence is inadmissible. 1. ACN to FRE 407: The rule incorporates excludes evidence of subsequent remedial measures as proof of an admission of fault. Based on 2 grounds: a. Conduct is not in fact an admission, since the conduct is equally consistent with injury by mere accident or through contributory negligence. b. Social policy of encouraging people to take, or at least not discouraging them from taking, steps in furtherance of added safety. 2. Exclusion is called for only when the evidence of subsequent remedial measures is offered as proof of negligence or culpable conduct. a. HOWEVER, subsequent remedial measures are admissible when offered for another purpose, such as: i. Proving ownership or control of the property that caused the accident. ii. Feasibility of precautionary measures taken if the party denies/controverts Must be raised by defendant- no safer way to handle the situation/all feasible precautions were taken. iii. Impeachment (asking questions to show the witness is lying or making an error) Can be used to rebut claim of there was no hazard b. If the evidence is offered for some other purpose, such as proof of ownership, control, feasibility of precautionary measures, or impeachment, Rule 407 does not apply. Rule 403 applies, however. 3. Remedial Measures - Rule 407 covers the installation of safety devices, changes in company rules, discharge of employees, disciplinary action against employees, changes in drug warnings, and modifications in product design. 4. Timing of Repair - The repair or remedial measure must take effect after the accident or incident being litigated. A repair or remedial measure that takes effect after purchase but before the accident being litigated is not a subsequent measure. 5. Third-party Remedial Measures - When a subsequent remedial measure is made by a third person, the policy of encouraging such measures is not implicated, and thus the rule does not apply. In these cases, however, the relevance of the subsequent measure becomes doubtful and is subject to exclusion under Rules 401 and 403.
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6. 7.

8.

9.

Required Remedial Measures - When a subsequent remedial measure is required by governmental regulation, the policy of encouraging such measures is not be implicated. However, relevance issues remain. Forbidden-inference rules: a. Because____ it is more likely that ___ b. Hearsay bar: because D said it was raining, it is more likely that it was raining c. Character evidence bar: Because defendant is a dishonest person, it is more likely that plaintiff forged a check Clausen v. Storage Tank Development Corp: Plaintiff slipped, fell, and injured his back while working as a pile driver at a job site at a fuel terminal facility. Storage Tank then replaced the ramp on which Clausen fell with a set of steps. FRE 407 evidence of subsequent remedial measures can be admitted to "prove negligence or culpable conduct,"."when offered for another purpose, such as proving control." Control of the ramp area where Clausen's injury occurred was a material issue in this case. In Re Asbestos Litigation: 407 states that a defendant must first contest the feasibility of a warning before the subsequent warning would become admissible. Crane at no point argued that it was unable to issue a warning.

B. Settlement Efforts Civil Cases Rule 408 excludes evidence of compromises and offers of compromise when offered to prove liability for or the invalidity of a claim or its amount. A different provision, Rule 410, governs the admissibility of offers to plead guilty or no contest in criminal cases. However, if offered for some other purpose, the rule does not apply. Providing a witnesss bias or prejudice- Ex. Settlement b/w C and B admissible to show Cs bias as witness in case b/w A and B negating a contention of undue delay - if a party claims the opposition is causing undue delay during litigation, opposition can introduce E of a history of offers to settle, to show a good-faith effort proving an effort to obstruct a criminal investigation or prosecution - That opposition tried to bribe a witness 1. ACN to FRE 408 a. Evidence of an offer-to compromise a claim is not receivable in evidence as an admission of, as the case may be, the validity or invalidity of the claim. b. Based on 2 grounds: i. Evidence is irrelevant, since the offer may be motivated by a desire for peace rather than from any concession of weakness of position. ii. Promotion of the public policy favoring the compromise and settlement of disputes. 2. Collateral statements barred an admission of fact, if it occurs during the course of settlement negotiations, is not admissible, even if it is quite separable from settlement offer. 3. Ramada Development Co v. Rauch: Goldsmith was commissioned by Ramada to prepare a report that would function as a basis of settlement negotiations regarding the alleged defects in the motel. The report was to identify defects that would be discussed in the negotiations. Thus, it is within the exclusionary scope of 408. Court said that the exception does not cover the present case where the document, or statement, would not have existed but for the negotiations. Under 408, there must be a balancing of the need for evidence against the policy of encouraging settlements. Here, the district court's judgment in this regard will be upset only for abuse of discretion. 4. Carney v. American University: Under 408, although settlement letters are inadmissible to prove liability or amount, they are admissible "when the evidence is offered for another purpose." The letter could have been used to establish independent violation (retaliation) unrelated to the underlying claim, which was subject to the correspondence. 5. Admissibility for Other Purposes - If the evidence is offered for some other purpose, the exclusionary rule does not apply. The list of other purposes in Rule 408 proving bias, negating a contention of undue delay, or proving obstruction of justice is not exhaustive. Admissibility, however, is not automatic in this context; the trial court must still apply Rules 401 to 403. If evidence of settlement is introduced for another purpose, a limiting instruction is required upon request of a party (Rule 105). 6. Civil Settlement negotiations: Because offered to settle s claim, it is more likely that was in fact liable to . Criminal Cases Equivalent to a settlement in a criminal case is the guilty plea Rule 410 CRIMINAL PLEAS AND OFFERS excludes evidence of (1) withdrawn pleas of guilty, (2) nolo contendere pleas, (3) statements concerning these pleas made during proceedings to determine their voluntariness under Criminal Rule 11, and (4) certain statements made during plea bargaining discussions. However, OK for clarification or perjury proceeding. 1. Virtually all of the evidence covered by Rule 410 would be admissible as an admission of a party opponent in the absence of Rule 410. See Rule 801(d)(2)(A) (individual admissions). There are two explicit exceptions: (1) for perjury and false statement prosecutions, and (2) the rule of completeness. Other exceptions have been read into the rule. 2. ACN to 410 a. Withdrawn pleas of guilty were held inadmissible in federal prosecutions.
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3.

4.

The present rule gives effect to the principal traditional characteristic of the nolo plea, i.e., avoiding the admission of guilt which is inherent in pleas of guilty. U.S. v. Mezzanatto: Because prosecutors have limited resources and must be able to answer "sensitive questions about the credibility of the testimony" they receive before entering into any sort of cooperation agreement, prosecutors may condition cooperation discussions on an agreement that the testimony provided may be used for impeachment purposes. The mere potential for prosecutorial overreach and abuse with respect to such a waiver agreement was an insufficient basis for foreclosing negotiation altogether. Impeachment if a defendant introduces evidence of a statement made during plea bargaining that he believes is exculpatory, prosecution is free to use other statements made during the same discussions to impeach him, if the statement prosecution seeks to introduce ought in fairness to be considered contemporaneously with the one defendant introduces.

b.

C. Medical Payments and Liability Insurance Medical Payments Rule 409, sometimes known as the Good Samaritan rule, governs the admissibility of evidence of furnishing, offering, or promising to pay medical, hospital, or similar expenses. Such evidence is inadmissible if offered to prove liability for the injury. Is the evidence of furnishing/offering/promising to pay medical, hospital, or similar expenses occasioned by an injury offered to prove liability? If so, inadmissible. 1. ACN to FRE 409 - considerations parallel FRE 407, 408 a. Evidence of payment of medical, hospital, or similar expenses of an injured party by the opposing party, is not admissible, because such payment or offer is usually made from humane impulses and not from an admission of liability, and that to hold otherwise would tend to discourage assistance to the injured person. b. This does not extend to conduct or statements not a part of the act of furnishing or offering or promising to pay. 2. Collateral admissions of a fact are admissible here. Ill pay your doctor bills because if Id been driving on the right, the accident wouldnt have happened. Liability Insurance Rule 411 Evidence that a person was or was not insured against liability is not admissible upon the issue of whether the person acted negligently or otherwise wrongfully. However, evidence of insurance is allowed when offered for another purpose, such as proof of agency, ownership/control, or bias/prejudice of a witness. 1. ACN to FRE 411 - The courts have with substantial unanimity rejected evidence of liability insurance for the purpose of proving fault, and absence of liability insurance as proof of lack of fault. 2. Theory of 411 - whether one has insurance coverage reveals little about the likelihood he will act carelessly. 3. Charter v. Chleborad: The existence of a liability insurance policy is not admissible to show one's negligence or other wrongful conduct because such evidence is of questionable probative value or relevance and is often prejudicial. BUT may be offered for other purpose. Here, the fact that defendant's insurer employed Mr. Alder was clearly admissible to show possible bias of that witness. Remanded for a new trial. 4. Higgins v. Hicks Co.: Plaintiffs contend that it was error for the district court to refuse to admit evidence that the State of South Dakota carries liability insurance. Plaintiffs argue that this was admissible to eliminate any bias of the jurors as taxpayers of the State of South Dakota. Evidence of liability insurance may be admitted if relevant to an issue in the case or to prove bias or prejudice of a witness. It is not admissible to prove negligence of the insured person. Evidence of the state's liability insurance was irrelevant to any issues in this case and that the evidence was properly excluded by the district court. 5. Medical Payments and insurance: Because offered at the scene of the accident to pay s hospital bills, it is more likely that was at fault in the accident. _________________________________________________________________________________________________________

TRIAL MECHANICS
A. Order of Proof Generally Rule 611 Examination of Witnesses: written in broad terms. Among other things, the trial judge has the authority to re-open the case, alter the order of proof, permit the recall of a witness, and grant continuances. In addition, the judge may authorize special methods to deal with child witnesses and set time limits for the presentation of evidence. Rule 611(c) Leading Questions: Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimony. 1. Three steps in examining witnesses: a. Direct Examination The party calling the witness has the first crack at the witness b. Cross-Examination i. Contains more rules than for direct examination ii. s right to cross-ex is tied to the 6th Amend right to Confrontation in a criminal trial
LEVY EVIDENCE 9

2. 3. 4.

5.

6. 7.

8.

9. 10. 11. 12. 13.

c. Re-direct the party calling the witness rehabilitate or answer the cross-ex. ACN to FRE 611: The ultimate responsibility for the effective working of the adversary system rests with the judge. How many layers of redirect and re-cross are necessary to present full testimony to the jury is entirely within the discretion of the trial judge. Leading Question - Leading questions are prohibited on direct examination because it is thought that a witness is particularly susceptible to suggestion under questioning by the party calling the witness. A leading question is one that suggests the desired answer. Exceptions Rule 611(c) recognizes several exceptions to the prohibition against leading questions on direct examination: a. when necessary to develop a witnesss testimony, b. when the witness is hostile, c. when the witness is an adverse party, and d. when the witness is identified with an adverse party (relative) Scope of Cross-examination - 611(b) adopts the restrictive rule: cross-examination is limited to the subject matter of the direct examination and matters affecting the credibility of the witness. Redirect & Recross-examination - redirect examination is limited to new matters raised on cross-examination, and recross is limited to new matters raised on redirect. Because trials are rarely this neat, the trial court has discretion to permit the elicitation of new matters on redirect and recross-examination. Other Common Objections - There are numerous trial objections that are not specifically referenced in the Rules of Evidence. Some of the more common are: (1) argumentative questions, (2) asked and answered, (3) assuming facts not in evidence, (4) misleading questions, (5) compound questions, and (6) nonresponsive answers. Preparation (Coaching) of Witnesses - Under the adversary system as practice in this country, counsel is allowed to interview witnesses prior to trial. Nevertheless, an attorney cannot ethically assist in the fabrication of testimony. Refreshing recollection any item may be shown to a witness for the purpose of jogging the ws memory, BUT the item isnt admitted into evidence because the testimony comes from the witness. 612. Stone v. Peacock: FRE 611(a) gives courts reasonable control over the order and presentation of the evidence. Not giving Stone proper notice is a harmless error and cannot be reversed absent showing of any harm. FRE 611: trial courts discretion to adjust traditional sequencing extends to scope of cross-ex, form of questions FRE 615: sequestration of witnesses rule and exception

IMPEACHMENT AND REHABILITATION

B. Character for untruthfulness In General 1. Stages of Credibility - Credibility may be viewed in three stages: (1) bolstering, (2) impeachment, and (3) rehabilitation. Impeachment involves attempts to diminish or attack a witnesss credibility. There are also rules regulating attempts to support credibility. For example, as a general matter, a witnesss credibility may not bolstered (supported) prior to impeachment. Moreover, under certain circumstances a witnesss credibility may be rehabilitated (supported) after impeachment. 2. Impeachment of own witness under the CL rule, the direct examiner may not impeach his own witness. ABANDONED BY THE FRE. 3. Types of Impeachment a. Bias or interest The witness may be shown that the witness may be shown to be biased or have a motive to lie. This can be shown on cross-examination, but may also be shown by extrinsic evidence, which is evidence that isnt from the witness own mouth, such as a document of testimony by some other witness about the principal witness. b. Sensory or mental defects Any defect the witness has in the capacity to observe, remember or narrate accurately may be shown for impeachment. Example: bad eyesight. c. Character for untruthfulness, which includes impeachment by reputation, opinion, prior convictions, and prior untruthful acts. Can be shown that the witness has a poor reputation for truthfulness or can be shown that another witness is of the opinion that principal w is untruthful. Prior criminal convictions If a witness prior crime is a 1) felony or 2) misdemeanor involving dishonesty, it is admissible to impeach. If it is not a felony involving dishonesty the court must balance probative value against prejudicial effect. Prior bad acts a cross-examiner may ask the w about a prior bad act by the witness if: The act is probative of truthfulness. The examiner has a good-faith basis for believing witness committed the bad act. Bad reputation can be shown that witness had a bad reputation for not telling truth,
LEVY EVIDENCE 10

Specific contradiction Another witnesss statement that contradicts the principal witness statement may be introduced, if it relates to a material and NOT collateral matter. e. Prior inconsistent statements (self-contradiction) May be shown that the witness has made a prior statement inconsistent with his trial testimony, BUT ONLY IF the witness is given the opportunity to explain or deny the prior statement, and ONLY IF it relates to a material issue. 4. Extrinsic Evidence (collateral matters) - Depending on the method, the impeaching evidence may be elicited on crossexamination or through other witnesses i.e., extrinsic evidence. The admissibility of extrinsic evidence depends on the type of impeachment whether the method is considered collateral. The word collateral is a conclusory label. a. If witness is asked about specific instance of conduct and the witness denied, the party cannot offer other evidence on that specific instance. 5. Untruthful Character Impeachment - character evidence is generally inadmissible under Rule 404(a) however, another exception deals with credibility. 6. There are three possible methods of proof: (1) reputation evidence, (2) opinion evidence, and (3) specific acts. Rule 608(a) sanctions the use of reputation and opinion, which is consistent with character on the merits under Rule 405(a). Specific acts are treated differently in this context. Rule 609 permits impeachment with prior convictions (specific acts) under some circumstances. Rule 608(b) allows impeachment by specific acts that have not resulted in a conviction under limited circumstances. 7. US v. Rosa: In analyzing impeachment you might have to analyze whether prior conduct allows proving the truthfulness or untruthfulness. In other words, analyze its relevance to the particular case. Here, bribery of an official does not justify whether or not he is truthful about a particular statement. Prior Criminal Convictions Rule 609: For the purpose of attacking the character for truthfulness of a witness, evidence of a prior conviction is admissible. 1. A witness can be impeached with evidence that it is in his or her nature to be deceitful, but not by extrinsic evidence of specific acts of dishonesty. However, this is waived for certain criminal convictions. 2. Rule 609 governs the admissibility of evidence of prior convictions offered for impeachment by showing untruthful character. The rule applies in both civil and criminal cases, and it applies to the impeachment of any witness, including a criminal defendant. Subject to 403 but the evidence does not need to substantially outweigh the probative value. 3. Prior Felony Convictions of the Accused - Under Rule 609(a)(2), prior convictions involving crimes punishable by death or imprisonment in excess of one year may be admissible against a criminal defendant only if the probative value of the prior conviction outweighs the unfair prejudice to the defendant is the evidence admissible. a. Witness is THE accused -> is the convictions probative value outweighed by its prejudicial effect? 4. Felony convictions: Other witnesses - Under Rule 609(a)(1), prior felony convictions of witnesses other than an accused is permitted witnesses in civil cases and prosecution and other defense witnesses in criminal cases subject to the trial courts discretion under Rule 403. a. Witness is not the accused -> apply balancing test 403, is the convictions probative value substantially outweighed by danger of unfair prejudice? 5. Falsehood or dishonesty convictions Under 609(a)(2), any crime, REGARDLESS of the punishment (can be a misdemeanor) must be admitted by the trial court if it is a crime in which dishonesty or false statement in an element. a. Covered crimes are those involving some element of deceit, untruthfulness, or falsification bearing upon the accuseds propensity to testify truthfully. 6. Untruthful Character Prior Acts: FRE 608(b) - Specific instances of conduct are admissible only if (1) the conduct reflects untruthful character, (2) its probative value outweighs the danger of unfair prejudice, (3) a good faith basis for the inquiry exists, and (4) the evidence is introduced on cross-examination (and not through extrinsic evidence e.g., other witnesses). 7. Other theories of admissibility - If prior-conviction evidence is offered under an impeachment theory other than untruthful character or for reasons other than impeachment, Rule 609 does not apply. a. Ex. - evidence of a conviction may be admissible to show that a witness has received or expects to receive favorable treatment from the prosecution (i.e., bias). Similarly, evidence of other crimes may be admissible under Rule 404(b) as proof of motive, opportunity, intent, and so forth. (Note that Rule 404(b) does not require a conviction.) b. Also, if a witness testifies that he has never committed a crime in my life, a prior conviction may be offered in rebuttal. c. Finally, sometimes a prior conviction is an element of a subsequently tried offense, in which case the prior conviction must be proved. Admissible and Inadmissible convictions 1. US v. Wong: The admission of prior convictions involving dishonesty and false statement is not within the discretion of the Court. Such convictions are peculiarly probative of credibility and, under this rule, are always to be admitted. Thus, the court held that the general balancing test of Fed. R. Evid. 403 is not applicable to impeachment by crimen falsi (falsehood or dishonesty) convictions under Fed. R. Evid. 609(a)(2).
LEVY EVIDENCE 11

d.

2.

US v. Amaechi: Rule 609 limited to crimes involving "some element of misrepresentation or other indication of a propensity to lie and excluding those crimes which, bad though they are, do not carry with them a tinge of falsification." Thus, petty shoplifting does not in and of itself qualify as a crime of dishonesty under Rule 609. 3. US v. Sanders: Sanders' convictions for assault and possession of contraband fall under 609(a)(1), and the district court therefore was required to balance the probative value of the evidence against its prejudicial effect in assessing its admissibility. Court said that because of prior convictions could only "prove the character of Sanders in order to show action and conformity therewith," the district court erred in admitting this evidence under Rule 404(b). 4. US v. Oaxaca: Prosecutor sought to impeach defendant by evidence that he suffered 2 prior felony convictions. Prior convictions for attempted robbery and receiving stolen property can be properly admitted against a defendant charged with bank robbery. The convictions reflected adversely on the defendants honesty and integrity. It was relevant to the question of defendants credibility. 5. US v. Hernandez: The court acted within its discretion when it determined that, given the importance of the credibility issue in this case, evidence of conviction for possession of cocaine and marijuana ought to be admitted. Preserving Claims of Errors 1. Luce v. US: To raise and preserve a claim for improper impeachment with a prior conviction for review, defendant must testify. 2. Ohler v. US: A defendant who preemptively introduces evidence of a prior conviction on direct examination may not on appeal claim that the admission of such evidence was error. 3. 609(a)(1) requires felony conviction and, if witness is also criminal , modified prejudice balancing test a. Prior similar crimes may be prejudicial b. Balancing test keeps out more than 403 does 4. 609(a)(2) makes all convictions for crimen falsi admissible; no balancing test 5. To preserve claim of error, must testify yet not introduce conviction evidence C. Prior Inconsistent Statements Rule 613: extrinsic evidence of a witnesss prior inconsistent statements is inadmissible only if the witness is given a chance to explain or deny it, and the opposing party is given a chance to ask the witness about it. APPLIES ONLY TO WITNESS WHO IS NOT A PARTY! 609(b) 1. Relation to the hearsay rule if prior inconsistent statement is not barred by the hearsay rule, it can be used for substantive purposed (prior statements made in an earlier trial or proceeding, where the declarant spoke under oath). Prior inconsistent statements barred by hearsay is admissible only for impeachment purposed. 2. No specific rule about extrinsic evidence on collateral matter.ACN to FRE 613: The traditional insistence that the attention of the witness be directed to the statement on cross-examination is relaxed in favor of simply providing the witness an opportunity to explain and the opposite party an opportunity to examine on the statement, with no specification of any particular time or sequence. 3. US v. Lebel: FRE 613 (b) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. 4. US v. Dennis: Prior inconsistent statements of witness who was obviously frightened at trial. The judge considered Miller's grand jury testimony weak or confused, so he read the transcript himself and determined which portions could be called to the jury's attention. The trial judge has considerable discretion in determining whether testimony is "inconsistent" with prior statements; inconsistency is not limited to diametrically opposed answers but may be found in evasive answers, inability to recall, silence, or changes of position. The court here said that reading them to the jury was the proper method to put it into evidence. 5. US v. INCE: FRE 607- Govt did not need to attack her credibility because the in-court testimony did not affirmatively damage the Government's case; she merely refused to give testimony that the Government had hoped she would give. Evidence attacking her credibility had no probative value for impeachment purposes. 6. US v. Webster: Prosecution cannot call a witness that it knew would not give it useful evidence, just so it could introduce hearsay evidence against the defendant in the hope that the jury would miss the subtle distinction between impeachment and substantive evidence -- or, if it didn't miss it, would ignore it. This would not be to impeach the witness but to put in hearsay as substantive evidence against the defendant, which FRE 607 does not allow. BUT no bad faith here. D. Bias and Incapacity 1. The fact that a witness is biased is never collateral. 2. Impeachment for bias-proving that a witness has a reason to lie or slant his or her testimony. 3. Impeachment for incapacity- demonstrating that memory or perception of the witness is unreliable. 4. US v. Abel: The court found that it was permissible under the Federal Rules of Evidence to impeach a witness by showing his bias and that the rebuttal testimony was sufficiently probative of the possible bias to warrant admission.
LEVY EVIDENCE 12

5. 6.

US v. Sasso: A not-unpredictable depression resulting from her involvement in a specific catastrophic event, the fact that her depression was relatively recent did not necessarily suggest that that condition had any probative value. Henderson v. Detella: Absent a connection to Chavez's cognitive abilities, Jones' testimony would have served only to impeach her character, a purpose repeatedly deemed improper.

E. Specific Contradiction (part of what the witness said is demonstrably untrue) Collateral Evidence Rule: a witness cannot be impeached upon matters collateral to the principal issues being tried Cant use extrinsic collateral evidence if it concerns a collateral issue, but CAN if it concerns the main issues; also can use intrinsic evidence. 1. Collateral evidence rule - bars extrinsic impeachment by specific contradiction on a collateral matter a. Extrinsic impeachment means impeachment through evidence other than testimony elicited from the witness being impeached. (Is it the same witness who made the statements?) b. Does not restrict the ability of a party to impeach a witness by eliciting testimony on cross-examination contradicting part of the witnesss earlier testimony. c. Collateral matter- asks whether the fact in question could be proven for any purpose other than contradicting the witness. Collateral if it fails this test. Not collateral if: the issue is a material issue in the case. 2. Simmons, Inc v. Pinkertons: The evidence relating to the security company's hiring practices and the employee's background was highly relevant, and the potential prejudicial impact of the evidence was relatively slight, such that the admission of the evidence was not reversible error in the circumstances presented in this case. The employee's testimony was properly admitted pursuant to Fed. R. Evid. 608(b). 3. US v. Copelin: the rule disallowing the use of extrinsic evidence to impeach a witness as to a collateral matter is irrelevant to this case, because defendant was impeached by his own statements on cross-examination, not by the testimony of another witness or by physical evidence. "Cases upholding a court's exclusion of extrinsic evidence offered to impeach a witness, on the ground of the issue's being "collateral,' do not govern the scope of cross examination itself." F. Rehabilitation Has the credibility of the partys witness been attacked by the other party? If so, a party may support that witnesss credibility with evidence of good character for truthfulness. 1. Opposite impeachment. Impeachment is the introduction of evidence that suggests a witnesss testimony lacks credibility. ON THE OTHER HAND, Rehabilitation is the introduction of evidence that suggests a witnesss testimony in fact is worthy of belief. 5 modes of rehabilitation: honesty, consistency, disinterest, capacity, and specific corroboration. 2. NO BOLSTERING: a party may not offer evidence supporting its witness credibility, unless the credibility has first been attacked by the other side. 608(a). 3. US v. Lindemann: Bolstering is the practice of offering evidence solely for the purpose of enhancing a witness's credibility before that credibility is attacked and is inadmissible because it has the potential for extending the length of trials enormously, asks the jury to take the witness's testimony on faith, and may reduce the care with which jurors listen for inconsistencies and other signs of falsehood or inaccuracy. Once a witness's credibility has been attacked, however, the nonattacking party is permitted to admit evidence to rehabilitate the witness. Character for truthfulness Rule 608(a) Impeaching any W by calling a W to testify to the character of the other W for untruthfulness. Once a W has testified, his character may be attacked (Negative W) or supported (Positive W), subject to these limitations: The E may refer ONLY to character of truthfulness or untruthfulness (MUST BE SUFFICIENTLY DIRECTLY RELATED to impeaching evidence) E of truthful character is admissible ONLY AFTER character for truthfulness has already been attacked. 1. ACN TO FRE 608 Character evidence in support of credibility is admissible under the rule only after the witness character has first been attacked. 2. Beard v. Mitchell: Rule 608(a)(2) provides that "evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise." The use of prior inconsistent statements may constitute an attack on truthfulness. 3. US v. Danery: The "attack" on the defendant's credibility consisted of a vigorous cross-examination and the pointing out by the prosecutor of discrepancies between the defendant's testimony and that of other witnesses and did not call into question the reputation of the defendant for truthfulness. The mere fact that a witness is contradicted by other evidence in a case does not constitute an attack upon his reputation for truth and veracity. 4. US v. Drury: An "attack" that consists only of government counsel pointing out inconsistencies in testimony and arguing that the accused's testimony is not credible does not constitute an attack on the accused's reputation for truthfulness within the meaning of Rule 608.

LEVY EVIDENCE 13

5.

US v. Murray: A witnesses' proponent is not entitled to present extrinsic evidence of specific instances of the witness' conduct for the purpose of supporting his credibility. Fed. R. Evid. 608(b). Evidence of misconduct, including conviction of crime, permits rehabilitation. a. Extrinsic evidence is evidence offered through other witnesses rather than through cross-examination of the witness himself or herself. Prior Consistent Statements Did the opposing party FIRST claim that the testimony of a partys witness was a recent fabrication or result of improper influence or motive? If so, prior consistent statement can be used to rehabilitate a witness credibility. 1. Tome v. US: FRE 801(d)(1)(B) only permitted the introduction of consistent, out-of-court statements to rebut a recent fabrication, improper influence, or motive charge, when those statements were made prior to the time the charges of recent fabrication, improper influence, or motive arose. a. Declarants consistent oocs can be introduced to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive. _________________________________________________________________________________________________________

HEARSAY
A. Hearsay rule and its rationale FRE 801(a)-(c); 805, 806 1. Factual disputes in criminal and civil cases should be decided based on live, sworn testimony, not secondhand accounts of what other people said outside of court. Hearsay- statement that declarant makes outside trial and proceeding AND offered in evidence to prove the truth of the matter asserted in the statement. What is the out-of-court statement by the declarant? What is the PURPOSE/Issue that the statement is being used to prove? If a statement is relevant for any other purpose other than proving the truth of the matter asserted then the statement will not be considered hearsay. Ex: oocs offered to prove that the declarant believed something, but not offered to prove that the belief was correct is not hearsay. 2. Statement means: a. a persons oral assertion, a written assertion (documents created out of court), or nonverbal conduct, b. if the person intended it as an assertion (intended to be communicated). 3. Declarant means the person who made the statement. 4. Witness means someone who sees or observes something. 5. Value of testimony depend on: a. Perception-Declarant believed x-> x is true/ risk that declarant misperceived. b. Memory- Declarant believed x-> x is true/ risk that declarant misremembered c. Narration- Declarant said X->declarant believed x/ risk that words did not convey declarants intended meaning d. Sincerity of the witness- Declarant said X->declarant believed x/ risk that declarant lied. 6. To encourage witnesses to put their best efforts and to expose inaccuracies, three conditions under which witnesses are required to testify: a. Oath (punishment for perjury) - Protects against insincerity and perjury. b. Personal presence at trial (helps reveal insincerity)and c. Cross-examination (important- the adversary must cross-examine) (Helps clear up ambiguity , reveal insincerity, faulty memory, perception.) 7. 4 testimonial infirmities: ambiguity, insincerity, erroneous memory, faulty perception Non-hearsay uses of out-of-court statements 1. How to circumvent hearsay rule? a. Use the ooc statement to prove something other than the truth of the matter asserted b. Use the ooc statement to prove the truth of the matter asserted BUT a) show that ooc statement is defined by law as not hearsay b) show that ooc statement falls within one of the exception to the general rule 2. Important uses of oocs that are not for the truth of the matter asserted: a. Was the OOCS offered to show the speakers state of mind? If that person makes a statement that manifests her state of mind, the statement is relevant. (Including knowledge and intent) b. Was the OOCS offered to show the listeners state of mind or statements effect on listener? A statement offered to show its effect on the person who heard the statement is not hearsay e.g., where the statement is offered to show (effect) that the listener had certain knowledge, certain emotion, good faith, or reasonableness.
LEVY EVIDENCE 14

c.

Ex. Subramaniam v. Public Prosecutor: If the statements made by the terrorist to the defendant might have reasonably apprehended him of instant death then the evidence goes to the very root of his defense of duress. Was the OOCS offered to show that a legally operative statements or verbal acts occurred? a) Verbal acts - the uttering of certain words has independent legal significance under the substantive law e.g., words of an oral agreement, contract, libel, slander, threats, and the like. The court only care that these words were said, not that they are true. b) Verbal parts of acts are closely related to verbal acts - statements are offered in evidence only to show that they were made and to explain an otherwise ambiguous act. Most importantly, they must have independent legal significance. Ex. O hands money to X, a mayor of the town. It is not clear whether the transfer was a loan, gift, or bribe. Therefore, Os statement to X at the time of the transfer, this to repay you for the money you lent me last year will be non-hearsay, since it is a verbal part of the act of transferring the money.

a)

Implied Assertions Was the non-verbal conduct intended as a form of communication? 1. The critical distinction under the Federal Rules is between assertive and nonassertive conduct. 1) Assertive Conduct Sometimes people use conduct to communicate e.g., nodding the head and pointing a finger. Rule 801(a) treats conduct intended as an assertion (assertive conduct) as hearsay. 2) Nonassertive Conduct - Conduct that is not intended by the declarant to be an assertion (implied assertions) has divided courts and commentators. Wright v. Tatham declared such conduct hearsay, a position rejected by the Federal Rules. 2. United States v. Zenni: Implied assertions are not hearsay IF the conduct is intended to be an assertion concerning the said matter. The conduct of the callers was intended to assert that it was a betting place ->this was not a an assertion about the fact sought to be proved. 3. State v. Dullard: Unlike the committee, the court did not believe indirect or unintentional assertions in speech are reliable enough to avoid the hearsay rule. The best approach is to evaluate the relevant assertion in the context of the purpose for which the evidence is offered. 4. Implied assertions 1) Common-law approach: conduct hearsay if offered to show implicit belief of person engaging in the conduct 2) FRE approach: conduct hearsay only if it was intended as an assertion

CONFRONTATION CLAUSE
C. Hearsay and Confrontation Clause th Confrontation clause- 6 Amendment of U.S. Constitution gives every criminal defendant the right to be confronted with the witnesses against him. In all criminal prosecution, the accused shall enjoy the right to be confronted with the witness against him. Was the evidence offered against criminal ? Was it testimonial? Was the witness present at trial and the witness was confronted? Or did the have prior chance to cross-ex? 1. First, the right of confrontation includes the right of the accused to be present at trial. Second, it guarantees the accused the right to face adverse witnesses (face-to-face confrontation). Third, the defendant also has the right to cross-examine these witnesses. Finally, the hearsay rule by permitting the admission of evidence without the cross-examination of the declarant raises confrontation issues. 2. 3 limitations on the reach of the C.C. are: a. Clause only applies in criminal prosecutions b. Clause grants a right of confrontation to the accused. c. The right is satisfied if the accused is confronted. 3. Broad consensus that the requirement is fully satisfied by in court testimony, in the presence of the defendant, subject to cross-examination. 4. No implications for hearsay in: a. civil cases, b. against the prosecution in criminal cases, and c. declarations from someone who winds up testifying in open court, subject to cross-examination 5. Common law- Ohio v. Roberts- C.C. allowed hearsay from a declarant who does not testify as long as the evidence fell within a well-established exception to hearsay rule or carried reasonable indicia of reliability. 6. The Court says that what matters now is whether the out-of-court statement was testimonial. 7. Crawford v. Washington: Where an outof-court declaration is testimonial, no matter how reliable, CC prohibits the use of it unless declarant is available for cross-examination at the trial or when the declaration was made. Testimonial statements
LEVY EVIDENCE 15

are statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. 8. Davis v. Washington: What does testimonial mean? Statements are non-testimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. a. TESTIMONIAL if the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution. b. Testimony is typically a solemn declaration or affirmation made for the purpose of establishing or proving some fact. i. Accuser who makes formal statement to govt officers=testimony. ii. Person making a casual remark to an acquaintance=not testimony. Confrontation Clause Excerpt on Twen 1. The Primary Purpose Test: Michigan v. Bryant - the primary purpose of the questions asked, and the answers given, was to enable the police to identify, locate, and apprehend the perpetrator. The circumstances of the interaction between Covington and the police objectively indicate that the primary purpose of the interrogation was to enable police assistance to meet an ongoing emergency. Therefore, Covingtons identification and description of the shooter and the location of the shooting were not testimonial statements, and their admission at Bryant's trial did not violate the Confrontation Clause. 2. Melendez-Diaz v. Massacussetts: Lab reports created by or for law enforcement personnel are testimonial under Crawford and Davis. Purpose of the certificate under state law was to serve as evidence. Affidavits- they were signed and notarized. Identical to in court testimony doing precisely what a witness does on direct examination. 3. Michigan v. Bryant (2011): The court held that the identification and description of the shooter and the location of the shooting were "not testimonial statements because they had a 'primary purpose . . . to enable police assistance to meet an ongoing emergency.' Therefore, their admission at Bryant's trial did not violate the Confrontation Clause." 4. Bullcoming v. New Mexico (2011): clarified confrontation right in forensic report cases. Confrontation Clause does not permit the prosecution to introduce a forensic laboratory report containing a testimonial certification, made in order to prove a fact at a criminal trial, through the in-court testimony of an analyst who did not sign the certification or personally perform or observe the performance of the test reported in the certification," "The accused's right is to be confronted with the analyst who made the certification." 5. Conf Clause: Melendez-Diaz (lab reports are testimonial), Bullcoming ( must have opportunity to confront creator)

STATEMENTS THAT ARE NOT HEARSAY

Rule 801 (d) statements that are defined as not hearsay: (1) Certain prior statements and (2) Admissions of a party-opponent. Prior Statements by Testifying Witnesses Inconsistent Statements 801(d)(1)(a) Required to have been made under oath. Always admissible.

Consistent Statements 801(d)(1)(b) Not required to have been made under oath. Only admissible to rebut claimed improper influence or recent fabrication. Was the prior, inconsistent statement by the witness given under oath at a trial, hearing or deposition? 801(d)(1)(a) Was the prior, consistent statement by the witness offered only to rebut an express or implied charge against the witness of recent fabrication or improper influence or motive? 801(d)(1)(b) 1. FRE: Prior inconsistent statements 1. Allows substantive use of 2. A previous statement made under oath at a proceeding or in a deposition. 2. Advisory note to FRE 801(d)(1) a. Hearsay problem arises when the witness on the stand denies having made the statement or admits having made it but denies its truth. b. Reported testimony is required to have been made under oath. c. Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence. Under Uniform Rule 63(1), this allows ooc statement of a declarant, present at trial, and available for cross examination as substantive evidence. 3. Prior Inconsistent Statements 801(d)(1)(a): made admissible as substantive evidence prior inconsistent statements with his present testimony. 4. Prior Consistent Statements 801 (d)(1)(B): Prior consistent statements are admissible as substantive evidence if offered to rebut an express or implied charge of recent fabrication or improper influence or motive. As with all exempted prior statements, the witness must be subject to cross-examination at trial. In Tome v. United States, the Supreme Court held
LEVY EVIDENCE 16

5.

6.

7.

that the rule applies only when the statements were made before the charged recent fabrication or improper influence or motive i.e., premotive. Prior identification FRE 801(d)(1)(C) a. Many common-law courts allow the prior ID as substantive evidence if it appears to have probative value. b. FRE- mirrors CL approach, identification under 801(d)(1)(c) need not have been made under oath or at a proceeding. United States v. Owens: Even where the witness suffers from memory loss and did at the time of the out of court identification, the opportunity to cross examine affords defense counsel the opportunity to highlight this loss of memory and argue to the jury that the testimony should be given little weight as a result. REMEMBER: the same OOCS may be admissible both as a prior inconsistent statement for impeachment purposes, and as an admission for substantive purposes.

Admissions by Party opponents Rule 801(d)(2) exempts admissions of a party-opponent from the scope of the hearsay rule by defining admissions as nonhearsay. Under the common law, an admission was characterized as an exception to the hearsay rule. The Federal Rules do not change this result; admissions are admissible, although under a different theory. The rule recognizes five types of party admissions: (1) individual admissions, (2) adoptive admissions, (3) authorized admissions, (4) agent admissions, and (5) coconspirator admissions. Was the OOCS made by a party to the present proceeding? Is the statement offered against, not for, the party who made it? Representative admission: vicarious or adoptive admission or co-conspirator statement? 1. Evidential & Judicial Admissions Distinguished Rule 801(d)(2) does not govern the use of judicial admissions, such as admissions in pleadings or in stipulations. Unlike evidential admissions which can be rebutted at trial, a party is bound by its judicial admissions. 2. Firsthand Knowledge & Opinion Rules Generally, neither the firsthand knowledge rule nor the opinion rule applies to admissions of a party-opponent Direct Admissions- Generally 1. Salvitti v. Throppe: Acknowledgement by a party that it was he who was at fault is admissible as a declaration against interest. Personal knowledge is not required in the case of an admission. The weight of the admission would depend on whether it was made by the defendant on the basis of his own knowledge or of info imparted to him by others. 2. Advisory committee note to FRE 801(d)(2): No guarantee of trustworthiness is required in the case of an admission. 3. McCormick on Evidence- no requirements that admission must be against interestjust need to be offered against the party who made them 4. United States v. McGee: Statement does not have to be inculpatory. The rule says that statement need only be made by the party against whom it is offered. 5. United States v. Phelps: the admission is must be offered against the party. Cannot be offered in his favor, only against him. Direct Admissions- Admissions and multiple hearsay Rule 801(d)(2)(A) Statements, oral or written, of a party, in either an individual or representative capacity, are admissible as substantive evidence if offered against that party. An individual admission is any statement made by a party at any time that is (1) relevant and (2) offered by the opposing party e.g., guilty pleas, confessions, deposition testimony, or statements to friends. 1. Declarations Against Interest Distinguished. Party admissions are often confused with the hearsay exception relating to declarations against interest, Rule 804(b)(3). 2. Reed v. McCord: If an admission is against a party's own interest and is evidence in favor of his adversary of a fact material to the issue, then it is admissible. 3. Foster v. Commissioner of internal revenue: Admission is not hearsay but admission within hearsay is hearsay subject to an exception. Lack of personal knowledge does not make the admission inadmissible. 4. Beech Aircraft Corp. v. Rainey: FRE 106- Rule of completeness- designed to prevent the type of prejudice in this case. (Rule of completeness allows a party to comeback to the opposing party by offering their own statement to complete the understanding). When a party has introduced part of a writing, an adverse party may require the introduction of any other part which ought in fairness to be considered contemporaneously -- was designed to prevent exactly this type of prejudice. Adoptive Admissions Rule 801(d)(2)(B) A statement that a party adopts is admissible as substantive evidence if offered against that party e.g., adoption by use. Would a reasonable person in the partys position have denied the statement had it not been true? 1. Adoption by Silence. A party may adopt the statement of a third person by failing to deny or correct under circumstances in which it would be natural to deny or correct the truth of the statement. It is not sufficient that the statement was merely made in the presence of a party.
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2.

ACN to FRE 801(d)(2)(b) - Admission may be made by adopting the statement of another. When silence is relied upon, the theory is that the person would, under circumstances, protest the statement made in his presence, if untrue. a. All courts agree that the mere fact that the party remained silent does not itself amount to an adoption..the entire factual setting must be considered. b. The statement is offered against an opposing party and is one that the party manifested that it adopted or believed to be true 3. US v. Fortes: When the incriminating statement is made against a person and is not denied or objected by the person, his failure to deny and the statement are both admissible in criminal prosecution against him. 4. Southern Stone v. Singer: BUT the mere failure to respond to a letter does not indicate an adoption unless it was reasonable under the circumstances for the sender to expect the recipient to respond and to correct erroneous assertions. 5. Hanson v. Waller: Rule 801(d)(2)(c) specifically excludes statements used against a party which were made by another person authorized by the party to make a statement concerning the subject, from the definition of hearsay. Although an attorney does not have authority to make an out-of-court admission for his client in all instances, he does have authority to make admissions, which are directly related to the management of litigation. 6. Authorization to speak on a subject - difference between authorized/agency: In 801d2d, it must be made within the scope of the relationship while 801d2c, you just have to be authorized to make a statement. 7. ACN to 801 (D)(2)(C) a. Communication to an outsider has not generally been thought to be an essential characteristic of an admission b. Party books or records are usable against him, without intent to disclose to third persons Agent and Employee Admissions Was the admission made at a time when the employment relationship existed? Was it made by an agent acting in the scope of his employment? 1. ACN to 801(d)(2)(d): Trend favors admitting statements related to a matter within the scope of agency or employment. 2. Authorized admissions (801(d)(2)(C)): declarant must have been authorized to speak on the subject. 3. Agent & employee admissions (801(d)(2)(D)): must have been made in the course of and within scope of employment. 4. Coconspirator admissions (801(d)(2)(E)): must have been made in the course of and in furtherance of conspiracy. 5. Mahlandt v. Wild Canid Survival & Research: As to the entry in the records of a corporate meeting, the directors as primary officers of the corporation had the authority to include their conclusions in the record of the meeting. Evid would fall within 801(d)(2)(C) as to Wild Canid Survival and Research Center, Inc., and be admissible BUT not against Mr. Poos because none of the conditions of 801(d)(2) cover the claim that minutes of a corporate board meeting can be used against a nonattending, non-participating employee of that corporation. Co-conspirator Admissions Was the admission made by one conspirator implicating another while the conspiracy was still in force? Was it made in furtherance of the conspiracy? 1. ACN to FRE 801(d)(2)(e) a. A statement is not hearsay ifthe statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under subdivision b. The rule is consistent with the S Ct. in denying admissibility to statements made after the objectives of the conspiracy have either failed or have been achieved. 2. Hearsay and Conspiracy: Co-conspirators are co-agents and, as such, liable for each others declarations. However, conspiracy is a hard thing to prove. 3. Bourjaily v. United States: There must be evidence that there was a conspiracy involving the declarant and the nonoffering party, and that the statement was made during the course and in furtherance of the conspiracy. 4. Out of Court statements may be admissible if: a. Offered for nonhearsay purpose i. Declarants state of mind ii. Effect on the listener iii. Verbal act with direct legal relevance iv. Impeachment or clarification b. Defined as not hearsay by FRE 801(d) c. Satisfying exception under 803 or 804

HEARSAY EXCEPTIONS, UNAVAILABLE DECLARANT IMMATERIAL: FRE 803

Spontaneous and Contemporaneous Statements. Rule 803(1)-(2) Were the statements made contemporaneously with the events they describe; or with the events, which placed the declarant under some emotional strain?
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1. 2.

3.

4.

5.

6. 7.

Difference between 803-804. If the declarant is unavailable, you look under 804. If declarant is available you cannot use 804 exception, you must look at 803. Present Sense Impressions - No material time must pass between event being perceived and the declarants statement about it. Statement must describe or explain the event that the declarant has perceived (cannot learn about it from some other means). Excited Utterances Statements made under the influence of a starling event. Requirements: a. Even giving rise to the statement must be sufficiently startling to eliminate capacity to reflect before speaking and b. The statement was made while the declarant is still under the influence of the startling event. ACN to FRE 803 a. First exception: The underlying theory of Exception (1) Present Sense Impression is that substantial contemporaneity of event and statement negate the likelihood of deliberate of conscious misrepresentation. b. Second exception: The theory of Exception (2) Excited Utterance is simply that circumstances may produce a condition of excitement, which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication. c. Time element: Exception (1) recognizes that in many, if not most, instances precise contemporaneity is not possible, and hence a slight lapse is allowable. Under Exception (2) the standard of measurement is the duration of the state of excitement. d. Participation by the declarant is not required: a nonparticipant may be moved to describe what he perceives, and one may be startled by an event in which he is not an actor. e. Permissible subject matter of the statement is limited under Exception (1) to description or explanation of the event or condition, the assumption being that spontaneity, in the absence of a startling event, may extend no farther. In Exception (2), however, the statement need only "relate" to the startling event or condition, thus affording a broader scope of subject matter coverage. US v. Obayagbona: Under Rule 803(2), a statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition is not excluded by the hearsay rule. When a statement is offered as an excited utterance, the trial court must find two conditions: a. there must be an occurrence or event sufficiently startling to render inoperative the normal reflective thought processes of an observer b. the statement of the declarant must have been a spontaneous reaction to the occurrence or event and not the result of reflective thought. Bemis v. Edwards: the declarant must have firsthand knowledge of the events he describes. US v. Elem: When the utterance of certain words constitutes or is part of the details of an act, occurrence or transaction which in itself is relevant and provable, the utterance may be proved as a verbal act, just as may be a visual observation of an event. It is not hearsay evidence; it is not admitted for the purpose of proving the truth of what was said, but for the purpose of describing the relevant details of what took place. Res gestae- spontaneous exclamation, which may or may not be exactly contemporaneous with the provable act or event.

State of Mind Rule 803(3) Were the statements of present state of mind offered to prove that state of mind? Or were the statements of present state of mind offered to prove future conduct? Or were they offered to show then existing emotional, sensory, or physical condition such as mental feeling, pain, or bodily health? 1. Proof of State of Mind that is a Material Fact - Statements made by an accused may be offered under this exception to show that the accused did not have the requisite mens rea. In some cases, statements concerning a victims fear of the defendant have been admitted because it reflects the victims state of mind. 2. State of mind directly at issue - mental state exception only applies only to statements about the declarants then existing mental state. 3. Proof of subsequent act OOCS may be introduced to prove the mental sate, to prove that a subsequent act took place, where the act is at issue. i. To show the declarant had the Intent (or plan or design) to take a certain action, to prove that the declarant did in fact eventually take the action, where whether that act took place is an issue in the case. 4. Always check for relevance as with the declaration of mental state. A statement offered to prove that ANOTHER person participated in the act will only be admissible if there is independent corroboration that the participation occurred. 5. US v. Harris: defense sought to portray Hariss conversation with Steward, the informant to show that Harris knew he was an informant and only played along with him out of fear of what would happen to him if he refused. The evidence would have been admissible as non-hearsay or an exception to the hearsay rule. Such statements were admissible, not for their truth, but instead as a circumstantial evidence of Harris state of mind- his knowledge of the cooperation.
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State of Mind - Hillmon Doctrine Were the statements of intent offered to prove that the declarants actually did what they said they would, to prove that the declarant subsequently acted in accordance with that state of mind? 1. Rule 803(3) excludes statements of memory or belief to prove the fact remembered or believed except in cases involving the declarants will. Evidence will not be admitted if its relevancy is to prove an historical event or condition, typically the fact that caused the state of mind. 2. Rule 803(3) also covers statements of present physical condition in addition to mental condition. The critical requirement is that the statement relate to a present condition and not to past conditions, pains, or symptoms. 3. To Prove Future Conduct allowed- Mutual Life Ins. Co. v. Hillmon: expressed intentions were verbal acts reliable for proving a then existing state of mind from which a jury could decide reliability. A man's state of mind or feeling can only be manifested to others by countenance, attitude or gesture, or by sounds or words, spoken or written. Wherever the bodily or mental feelings of an individual are material to be proved, the usual expressions of such feelings are original and competent evidence. Letters were the best available proof of intention to go with Hillmon, and that intention made it more probable both that he did go and that he went to Hillmon, than if there had been no proof of such intention. 4. To Prove Past Conduct not allowed - Shepard v. US: The testimony spoke to a past act, and more than that, to an act by some one not the speaker and did not fall under exception 803(3). Past tense= statement of memory (not an exception under 803(3)). 5. Report of the House Judiciary Committee - 803(3) must be construed to limit the Hillmon doctrine to render the statements of intent by a declarant admissible only to prove his future conduct and not the future conduct of another person. 6. REMEMBER: A statement about the declarants present memory or belief about past events are generally inadmissible to show the fact remembered or believed. 7. US v. Houlihan: The statement of James Boyden Jr. to his sister that he intended to meet Herd (to show that it was Herd who killed him later that evening). SPLIT OF AUTHORITY: a. The Report of the House Judiciary Committee - limit the doctrine of Hillmon to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person." b. Some courts have held that a declarant's statement of intent may be admitted against a non-declarant only when there is independent evidence connecting the declarant's statement with the non-declarant's conduct. c. The Second Circuit has also held that "declarations of intentions or future plans are admissible against a nondeclarant when they are linked with independent evidence that corroborates the declaration." th d. BUT the 9 circuit has held that statements of a declarant's intent are admissible under Rule 803(3) to prove subsequent conduct of a person other than the declarant withoust corroborating evidence. i. MOST COURTS require corroboration independent, corroborative evidence that the declarant actually participated in the activity. 8. Hillmon: OOCS of declarants plan or intent admissible to prove declarants conduct in accordance with plan 9. Shepard: OOCS of memory or belief inadmissible to prove fact remembered or believed (see 803(3)) 10. Houlihan: OOCS of declarants intent may be admissible to prove conduct of third party (split of authority) Injury Reports FRE 803(4) exempts from the hearsay rule a broad range of statements made to physicians or others for the purpose of medical diagnoses. No time restriction for statements that fall under this exception. HOWEVER, there is subject-matter restriction-Was the injury report made for the purpose of medical diagnoses? 1. Theory - Person seeking medical diagnosis and treatment is highly motivated to speak carefully and honestly about symptoms and conditions in order to receive the proper medical care. 2. ACN to FRE 803(4): Statements as to fault would not ordinarily qualify under this latter language. Under the exception the statement need not have been made to a physician. Statements to hospital attendants, ambulance drivers, or even members of the family might be included. 3. REMEMBER: Where a declarant is making a statement about his physical condition, especially about pain hes feeling, not that it is both likely to be PRESENT SENSE IMPRESSION and STATEMENT OF PHYSICAL CONDITION. 4. Rock v. Huffco Gas and Oil Co.: The court should determine whether the statements were reasonably considered by the declarant as being pertinent to the diagnosis or treatment sought. The doctors stated that they only needed to know that Rock had twisted his ankle; they did not need to know how in order to diagnose or treat Rock's injury. Statements concerning how or why (such as the car ran the red light, or whose fault it is) is inadmissible. 5. State v. Moses: An out-of-court statement to a social worker is admissible if made in the course of diagnosis and treatment. Testimonial: if it was for the express purpose of gathering evidence for a future prosecution or developing testimony for prosecution.

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6.

Testimonial concept and exceptions to CC: Legal requirement imposed on Drs in most states to report reasonable suspicion of abuse would seem to have some bearing on the testimonial issue. HOWEVER, none of the lower cts opinion has a ct ruled that the reporting requirement renders the statement automatically testimonial.

Recorded Recollection Rule 803(5) Did the witness (1) make or adopt a record, (2) based on firsthand knowledge, (3) when the matter recorded was fresh in the witnesss memory, and (4) the record correctly reflects the witnesss knowledge? Finally, did (5) the witness at trial have insufficient recollection to testify fully and accurately about the matter recorded? 1. Doctrine of past recollection recorded- allows the record, in certain cases, to be introduced into evidence - or read to the jury - to prove the truth of what it asserts, notwithstanding the hearsay rule. Cannot be introduced as EXHIBIT unless offered by adversary. 2. ACN to FRE 803(5): The guarantee of trustworthiness is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them. Multiple person involvement is consistent with the exception. 3. Relation to business records exception - business records exception applies whether or not person who made the entry is available to testify while past recollection recorded applies ONLY where the person who made the entry is available to testify about the making of the entry. 4. Fisher v. Swartz: A writing may be used by a witness in different ways: a. "Past recollection recorded" - having no present recollection even with the aid of the writing, he may use it merely as a record of his past knowledge. The judge in his discretion may permit a witness "to incorporate in his testimony a writing expressive of his past knowledge, and to read it and even to show it to the jury." FRE 803(5) b. "Present recollection revived" - to revive or stimulate a present recollection. The witness, although he may use the writing to refresh his recollection, must testify to the fact as he remembers it and he may not read or show the writing to the jury. FRE 612 5. US v. Ricardi: The primary difference between 'past recollection recorded' from 'present recollection revived' classifications is the ability of the witness to testify from present knowledge: where the witness' memory is revived, and he presently recollects the facts and swears to them, he is obviously in a different position from the witness who cannot directly state the facts from present memory and who must ask the court to accept a writing for the truth of its contents because he is willing to swear, for one reason or another, that its contents are true. a. Past recollection recorded: Record is a substitute for his memory and is offered for the truth of its content. Required to meet certain standards. b. Present recollection revived: The witness relates his present recollection, and under oath and subject to crossexamination asserts that it is true. Not so important when the statement was made or by whom if it serves the purpose to refresh the mind and unfold the truth. Business Records Rule 803(6): Business Records Exception requires: A record of an act, event, condition, opinion, or diagnoses, made at or near that time, by, or from information transmitted by, a person with knowledge, Which was kept in the course of a regularly conducted business activity, if it was the regular practice to make such record, as shown by the testimony of the custodian or other qualified witness or as provided by Rules 902(11), 902(12), or statute, unless the source of information or the method or circumstances of preparation indicate a lack of trustworthiness. 1. Was the record a product of regular business routine? Regular Activity; Routine Records requires that the record be the product of the regular practice of that business activity. This typically means that the record is the product of a routine practice. 2. Was it made at or near the time of the matter recorded? Time Requirement the record must have been made at or near the time of the matter recorded to ensure the reliability of business records. 3. Did the person who originally supplied the information have first-hand knowledge? The record must have been made (1) by a person with knowledge of the matter recorded or (2) from information transmitted by a person with such knowledge. 4. Lack of Trustworthiness Clause A record that satisfies the requirements of Rule 803(6) may nevertheless be excluded if the source of information or the method or circumstances of preparation indicate lack of trustworthiness. 5. ACN to 803(6)- The element of unusual reliability of business records is supplied by: a. systematic checking, b. by regularity and continuity which produce habits of precision, c. by actual experience of business in relying upon them, or
LEVY EVIDENCE 21

d. by a duty to make an accurate record as part of a continuing job or occupation. State v. Acquisto: A memorandum in any form of acts, events, or conditions made "at or near the time by, or from information transmitted by, a person with knowledge," may be admitted into evidence. 7. Foundational Requirement for Business Records foundation for the admissibility of business records may be shown by the testimony of the custodian or other qualified witness or as provided by Rules 902(10) and (11), which make business records self-authenticating. The foundational witness must be sufficiently acquainted with the records management system to establish that the requirements of the exception have been satisfied, but the witness is not required to have firsthand knowledge of the particular entry. Qualifying Businesses 1. Report of the conference committee- Businesses=institutions and associations like schools, churches and hospitals are admissible under this provision. Business is defined very broadly to include non-profits, instutions and callings of any kinds 2. Keogh v. Commissioner of Internal Revenue: reliability usually found in business records may be established in personal records if they are systematically checked and regularly and continually maintained. 3. US v. Gibson: Witness testified that it was her regular practice to enter the number of balloons that went out on a particular day and how much money she took in into the ledger and that she relied on it. Court said this is sufficient to satisfy the requirement. Did not matter if it was incomplete and contained several blank pages. Qualifying Records (Uniqueness of record. Could it still be counted as a business record?) 1. Palmer v. Hoffman: The fact that a company makes a business out of recording its employees versions of their accidents does not put those statements in the class records made in the regular course of the business within the meaning of the act. It was not a systematic conduct of the enterprise as a railroad business. 2. Lewis v. Baker: Defendant offered into evidence a personal injury report and an inspection report to show that the brake had functioned properly immediately prior to the accident when the plaintiff checked it and immediately after the accident when it was checked in connection with the preparation of an accident report. Court said here there is no motive to fabricate because neither of them were involved in the accident or could have been targeted by a law suit. The reports were of utility to the employer in finding out if the equipment involved was defective to protect from future accidents. Court said that such factors are sufficient indicia of trustworthiness to establish the admissibility of the reports. 3. ACN to FRE 803(6) a. the rule specifically includes both diagnoses and opinions, in addition to acts, events, and conditions, as proper subjects of admissible entries b. The decisions hinge on motivation and which party is entitled to be concerned about it. c. McCormick believed that the doctor's report or the accident report were sufficiently routine to justify admissibility. d. the rule proceeds from the base that records made in the course of a regularly conducted activity will be taken as admissible but subject to authority to exclude if "the sources. Sources of information 1. All that is required is that there be a witness who knows enough about a particular record-keeping process to be able to testify. 2. Wilson v. Zapata Off-Shore Co.: Double hearsay exists in a business record when the record is prepared by an employee with information supplied by ANOTHER person. Exception: If both the source and the recorder of the information, as well as every other participant in chain producing record, are acting in the regular course of business, the multiple hearsay is excused by Rule 803(6). BUT if the information is an outsider, the business record CANNOT be admitted under 803(6). However, the court said that even if it was admitted as an error, ct did not reverse it because it was harmless. Ct held that it is highly probable that the admission of these medical reports did not affect Wilson's substantial rights. 6. Absence of Record Rule 803(7) recognizes a hearsay exception for absence of a business record. Did the regularly kept business record fail to contain a record of a particular event, and are the circumstances such that if it had taken place, the records would probably have reflected it? 1. ACN to FRE 803(7) - Failure of a record to mention a matter, which would ordinarily be mentioned, is satisfactory evidence of its nonexistence. 2. US v. Gentry: testimony of an employee of the manufacturer that there were no other reports of pins in the candy. FRE 803(7) allows use of business records to show the nonoccurrence of an event. Public Records (Document prepared by a governmental body) Rule 803(8) consist of 3 separate exceptions: Those setting forth the activities of the office or agency,
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Those recording matters observed pursuant to a duty imposed by law (matters observed by police cannot be used against criminal defendants), Investigative reports (cannot be used against criminal defendants). Did a government agency make a report about its own activities? Did a government official make a written record of observations he made in the line of duty, as required by his job? Cannot be used against criminal defendants. Did the government conduct an investigation, and make factual findings in that investigation? Cannot be used against criminal defendants. 1. ACN to FRE 803(8): a. Public records are a recognized hearsay exception at common law and have been the subject of statutes without number because of the assumption that a public official will perform his duty properly and the unlikelihood that he will remember details independently of the record. b. Further support is found in the reliability factors underlying records of regularly conducted activities (types of public records that may independently satisfy the exception.) i. Cases illustrating the admissibility of records of the office's or agency's own activities are numerous. ii. Cases sustaining admissibility of records of matters observed are also numerous. iii. The more controversial area of public records is that of the so-called "evaluative" report. c. Factors which determine whether an evaluative report is sufficiently trustworthy to be admissible: i. The timeliness of the investigation ii. The special skill or experience of the official iii. Whether a hearing was held and the level at which conducted iv. Possible motivation problems suggested by Palmer v. Hoffman: courts will exclude the record where they sense a strong motive on the business or the employee-declarant to behave in a self-serving manner. 2. Beech Aircraft Corp v. Rainey: Portions of investigatory reports otherwise admissible under 803(8)(c) are not admissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the rules trustworthiness requirement, it should be admissible with other portions of the report. 3. US v. Brown: Because there is a lack of motivation of the recording official to register an unambiguous factual matter, records such as public records are inherently reliable. 4. US v. Orozco: Court said that congress did not intend to exclude matters observed by law enforcement personnel because the reason for this exclusion is that observations by police officers at the scene of the crime or the apprehension of the defendant are not as reliable as observations by public officials in other cases because of the adversarial nature of the confrontation between the police and the defendant in criminal cases. However in this case, the simple recordation of license numbers of all vehicles which pass his station is not of the adversarial confrontation nature which might cloud his perception. The TECS cards were admissible unless the sources of information or other circumstances indicate lack of trustworthiness. 5. State v. Forte: Difference between business records and testimonial evidence: Business records are neutral, are created to serve a number of purposes important to the creating organization, and are not inherently subject to manipulation or abuse. Reports here are routine and nonadversarial and are prepared for a number of purposes including statistical analysis and construction of databases. 6. Hinojos-Mendoza v. People: Lab reports, like police reports generated by law-enforcement officials, do not qualify as public records. 7. Use of business records or other rules: Majority favor the use of other exceptions if it does not qualify under this exception. For example: a lab report may qualify under the business record exception or a police offers contemporaneous notes of a crime he has witness might qualify under past recollection recorded.

HEARSAY EXCEPTIONS, UNAVAILABLE DECLARANT REQUIRED: FRE 804

Former Testimony of Rule 804 Is the declarant unavailable to testify in trial where his or her statements are offered as evidence because of one of the conditions under section a? Did party make good effort to procure the declarants attendance? Rule 804(a) contains five conditions of unavailability: Claim of privilege, Refusal to testify, Lack of memory, Death or illness, Unable to procure testimony (good faith effort required). CIVIL CASE CRIMINAL CASE Former testimony made in a prior proceeding. Former testimony made in a prior proceeding.
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Opponent (the same person) must have had an opportunity to examine declarant. Opponent (the same person) must have had similar motive to develop testimony in prior proceeding. Did the defendant intentionally make the witness unavailable for the purpose of preventing witness from testifying? --> if so, defendant automatically forfeits his confrontation clause rights. Rule 804(b)(1) Was the sworn testimony given in a prior proceeding, made either in a hearing or deposition (affidavits are not covered)? Did the opponent against whom the prior testimony is now offered have an opportunity (actual examination is not required) to cross-examine that witness on the subject of the statement in the earlier proceeding? IF CIVIL CASE: Did the predecessor of interest have an opportunity and similar motive to develop it by direct, cross-, or redirect examination? IF CRIMINAL CASE: Was the criminal defendant a party to earlier proceeding and did he have an opportunity and a similar motive to cross-examine the now unavailable declarant? 1. ACN to FRE 804(A) and (B)(1): Testimony given on the stand in person is preferred over hearsay, and hearsay, if of the specified quality, is preferred over complete loss of the evidence of the declarant 2. Theory former testimony must be a reasonable substitute for the unavailable live testimony. Same motive = same issues, same stakes, and same parties (civil case: predecessor in interest). 3. When testimony is offered as a transcript there are 2 levels of hearsay. Transcript is a statement of the court reporter about what was said on the witness stand at the prior trial. Exception: public record. The witness testimony at the prior trial is also hearsay. Former testimony can impeach a witness with prior inconsistent statement. FRE 801(d)(1)(A) 4. US v. Bollin: A declarant is "unavailable" when the declarant "is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement." Def was "unavailable" because he had invoked his Fifth Amendment privilege against self-incrimination. a. HOWEVER, FRE Rule 804(a)-a declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. Bollin made himself unavailable for the purpose of preventing his testimony, and he therefore cannot invoke the exception in Rule 804(b)(1). 5. Clay v. John-Manville Sales Corp (predecessor in interest is loosely interpreted predecessors in interest unlike the salerno case.) FRE 804(b)(1)- Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, (CRIMINAL CASE: the predecessor MUST be the same If CIVIL the interest must be aligned) had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. a. Rule 804(b)(1) would have admitted prior testimony of an unavailable witness if the party against whom it is offered or a person "with a motive and interest" similar to him had an opportunity to examine that witness. 6. Commentators: Predecessor in interest under common law meant persons in privity. a. Predecessor from whom the present party received the right, title, interest or obligation that is at issue in the current litigation. b. HOWEVER, courts have disagreed with its meaning. i. Some courts say that 804(b)(1) to be strictly construed because of fairness considerations ii. Some courts have excluded prior testimony as evidence iii. Some courts say that former testimony may be admitted when a substantial identity of issues existed in 2 actions, coupled with a similar motive and meaningful opportunity to cross examine 7. US v. Salerno (Grand jury testimony): Cannot introduce former testimony under Rule 804(b)(1) without showing a similar motive. Similar motive is strictly enforced, even though this may deprive the defendant of valuable evidence that he may have no other way to get. Dying Declarations Rule 804(b)(2) The exception for dying declarations is based (1) on necessity (i.e., the unavailability of the declarant), and (2) on a circumstantial guarantee of trustworthiness. FRE (opposite CL) actual death is not required, admissibility is not conditioned on the declarants death, and any of the conditions of unavailability specified in Rule 804(a) is sufficient. FRE COMMON LAW Actual death not required. Actual death required. Applies to civil suits and homicide. Applies only to homicide. Was the declarant aware of his impending death? Did he make the statement while believing that his death was imminent? Were the statements related to or concern the circumstances of the killing? 1. Like the business record doctrine, the exception has traditionally been justified on reliability and practical necessity. a. Statements of suspicion are usually excluded.
LEVY EVIDENCE 24

Predecessor in Interest must have had an opportunity to examine declarant Predecessor in Interest must have had similar motive to develop testimony in prior proceeding.

2. 3.

4.

5. 6. 7.

b. Limited to statements that are unusually reliable because they come from declarants direct observation. Imminent Expectation of Death Requirement - A declarant who does not believe that death is near may not feel compelled to speak truthfully. Subject Matter Requirement - Only statements concerning the cause or circumstances of what the declarant believed to be his or her impending death are admissible. This requirement follows from the theory underlying the exception statements beyond cause and circumstances indicate that the declarant may no longer be acting under an expectation of imminent death. Shepard v. US: To make out a dying declaration the declarant must have spoken without hope of recovery and in the shadow of impending death. Fear or even belief that illness will end in death will not avail of itself to make a dying declaration. There must be "a settled hopeless expectation". To let the declaration in, the inference must be permissible that there was knowledge or the opportunity for knowledge as to the acts that are declared. Here She spoke as someone sick (Declarants state of mind), saying her beliefs and the conjectures of the moment. US v. Sacasas: the exception is inapplicable because Mahan was not dying following a homicidal attack, and neither appellant, "the Greek," nor Mahan had been prosecuted for a homicide. Report of the House Judiciary Committee - The committee approved the expansion to civil actions and proceedings where the stakes do not involve possible imprisonment. State v. Lewis: while an expression of opinion and testimonial in nature, it was admissible as a dying declaration. In Crawford, dying declarations that are testimonial may be admitted. Several states have allowed d.d. as exception to the Crawford testimonial rule.

Declarations against Interest Rule 804(b)(3) Declarations against interest are based (1) on necessity (i.e., the unavailability of the declarant), and (2) a circumstantial guarantee of trustworthiness that eliminates the risk of insincerity. STATEMENT AGAINST INTEREST 804(3) ADMISSION 801(D)(2) Declarant can be anyone. Declarant must be a party in current case. Declarant must be unavailable. Declarant can be available or unavailable. Must be against interest when made. Does not have to be against interest when made. Admissible against: any party. Admissible against: declarant, coconspirator, and declarants employer. Was the declaration against declarants pecuniary interest when it was made (did it seem damaging to the defendant)? Is the declarant unavailable? Did the declarant have first-hand knowledge of the facts asserted in the declaration? 1. UNLIKE ADMISSIONS, the exception for declarations against interest applies to statements by anyone, not just statements made by or attributable to the party against whom they are introduced. UNLIKE ADMISSIONS, the exception applies only to statements that are obviously contrary to the interest of the declarant, that a reasonable man would make the statements only if it was true. 2. Theory a person will not make a statement against his own interest unless the statement is true. 3. Strategy: If you represent a party and want to get a declaration by the opposing party into evidence, treat it as an admission, not declaration against interest. 4. Against Interest Requirement - focuses on the declarants situation and motives at the time the statement was made. 5. ACN to FRE 804(B)(3) a. If the statement offered by his opponent- then admission 803(d)(2), no need to inquire whether it is against interest. b. FRE discards CL limitation & allows statements tending to expose declarant to hatred, ridicule, or disgrace. c. Whether a statement is in fact against interest must be determined from the circumstances of each case. 6. Report of House Judiciary Committee- Needed further provision insuring trustworthiness. Added the language unless corroborating circumstances clearly indicate the trustworthiness of a statement 7. US v. Duran Samaniego: 804(b)(3) a statement against interest to be admissible under Rule 804, however, the declarant must have been unavailable at the time of the trial within the meaning of Rule 804(a). 8. US v. Jackson: Rule 804(b)(3) admission of a hearsay statement by an unavailable witness is allowed if that statement at the time of its making . . . so far tended to subject the declarant to civil or criminal liability . . . that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. Did not satisfy 804(b)(3) because the statements by Brown that Jackson sought to introduce at trial were not themselves self-inculpatory as to Brown. *DO an even if analysis to get extra points!!! *Pay attention to the circumstances in analyzing how the statement was made. Forfeiture by Wrongdoing

LEVY EVIDENCE 25

Rule 804(b)(6) statements offered against a party when the unavailability of the declarant is due to the wrongdoing of the party e.g., killing a witness. The rule applies when the party against whom the statement is offered has engaged or acquiesced in wrongdoing that procured the unavailability of the declarant as a witness. Did the opponent engage or acquiesce in wrongdoing intended to, and did procure the unavailability of the declarant as a witness? 1. ACN to FRE 804(B)(6): a. Rule 804(b)(6) has been added to provide that a party forfeits the right to object on hearsay grounds to the admission of a declarant's prior statement when the party's deliberate wrongdoing procured the unavailability of the declarant as a witness. This applies to all parties, including the government. b. The usual Rule 104(a) preponderance of the evidence standard has been adopted in light of the behavior the new Rule 804(b)(6) seeks to discourage. 2. Giles v. California (Continue to detach cc from hearsay analysis): Statements (matter asserted us that Giles had beat her) that girlfriend made to the police officer responding to a domestic-violence report about 3 weeks before the shooting. She told the police officer that Giles accused her of cheating then lifted her up the floor and choked her. Giles also punched her in the face and threatened to kill her if he found her cheating on him. a. Court said the statements were testimonial. Two forms of testimonial statements that are admissible even if unconfronted: i. Declarations made by a speaker who was both on the brink of death and aware he was dying ii. Forfeiture by wrongdoing- witness statement who was detained or kept away by the means of procurement of the defendant. Applies only when the defendant engaged in conduct designed to prevent the person from testifying. NOT typical murder cases involving accusatory statements from the victimconduct NOT designed to prevent person from testifying. b. Common Law doctrine- Applies only when the defendant has in mind the particular purpose of making the witness unavailable. Key to determining whether the defendant acquiesced in wrongfully causingthe declarants unavailability as a witness. c. Where such an abusive relationship culminates in murder, the evidence may support finding that the crime expressed the intent to isolate the victim and to stop her from reporting abuse to the authorities which makes her statements admissible under the forfeiture doctrine. d. Court said that the state courts erred in not considering the intent of the defendant. Residual catchall Exception- MUST BE RELIABLE Does the hearsay fail to satisfy the exceptions? Consider the residual exception. Rule 807 Observe that 804(b)(6) does not contain any requirement that the oocs be reliable in order to be admitted. 1. A declaration that does not fall within a specific hearsay exception can be admitted by meeting certain requirements, but only if it possesses equivalent circumstantial guarantees of trustworthiness as well as enumerated requirements. 2. ACN to FRE 807: contents of Rule 803(24) and Rule 804(b)(5) have been combined and transferred to a new Rule 807 3. US v. Laster: if a statement is admissible under one of the hearsay exceptions, that exception should be relied on instead of the residual exception. D. Hearsay and Due Process 1. 2 Significant constraints on hearsay: th a. CC of the 6 amendment th th b. Due Process clause of the 5 and 14 amendments i. Due process can require the admission of some evidence offered by a criminal defendant, even if the hearsay rule (or other rules of evidence) would otherwise prohibit use of the statements. th ii. 5 amendment: applies to federal government: No person shall be deprived of life, liberty, or property, without due process of law. th iii. 14 amendment: applies to state law: same as above. rd 2. Chambers v. Mississipi: Where the accused seeks to exculpate himself by use of 3 persons declaration against interest, the accused may be able to make an argument based on due process clause. If the evidence defendant wants to present is critical to his defense and has indicia of trustworthiness, it may be admissible even if it is not admissible under FRE. Apply this when the evidence is the defendants only evidence. 3. Fortini v. Murphy: The few Supreme Court cases that actually undid convictions based on a Chambers analysis involved far more horrible situations. The basketball court incident that was excluded is indirect evidence and does not rise to the level of a Chambers violation and does not add up to the kind of fundamental unfairness that warrants a federal court in finding a violation of due process. Limits of Chambers: Evidence is not relevant & Character evidence. 4. Chambers: due process may sometimes require court to admit evidence made inadmissible by evidentiary rules a. Guarantee of trustworthiness b. Critical to defense
LEVY EVIDENCE 26

EVIDENCE: CHECKLIST APPLICATION-BASED AREAS: Is this statement admissible? HEARSAY

a) Definition - Out of court statement offered to prove the truth of the matter asserted in the statement i) Rationale: Denies the opponent the opportunity to cross-examine the person whose perception, memory, and sincerity are in issue b) Approach i) Is it an out of court statement? ii) What is the statement? iii) Is it being offered for the purpose of establishing its truth? c) NOT HEARSAY: Offered for some other purpose other than truth i) Verbal actslegally operative facts: importance is that the statement was made (1) Offers (2) Acceptances (3) Defamation (4) Conspiracy (5) Bribery (6) Cancellation (7) Misrepresentation (8) Waiver (9) Permission ii) Effect on Listener to show (1) Notice (2) Good faith (3) Reason of action/inaction (4) BY THE PERSON WHO HEARD OR READ THE STATEMENT iii) Statement to show circumstantial evidence of declarants relevant state of mind (I am the Pope) d) Federal Rules Non-hearsay i) NOTE: If the answer says one of these is an exception, the answer is not correct because they are not exceptions to the rule against hearsay ii) Prior Inconsistent Statements (1) Under oath (2) At a trial, hearing, other proceeding or deposition (3) Includes grand juries iii) Prior Consistent Statements (1) used to rebut charge of (a) recent fabrication (b) improper influence (c) motive iv) Prior Statements of Identification Made by the Witness v) Admissions made by a party and offered against that party (1) Need not be based on personal knowledge (2) Can be a legal conclusion (I was negligent) vi) Vicarious AdmissionsPOST ACCIDENT ADMISSIONS OF EMPLOYEES (1) Statement made by a partys agent (2) Concerning a matter within the scope of employment (3) Made during the existence of the relationship e) Former Testimony Exception i) Always two (2) proceedings ii) Declarant unavailable iii) Party against whom the statement is offered had the opportunity to examine the witness in the prior proceeding iv) Prior proceeding involved the same issues v) Party against whom offered had the same motive to examine the witness in the prior proceeding vi) Party against whom offered must have been a party in the first proceeding (if civil case, privity with the party in the first is enough) vii) NOTE: NOT applicable to grand juries because no opportunity to cross examine f) Statement Against Interest i) Unavailable ii) Statement is against declarants pecuniary, proprietary, or penal interest iii) At the time the statement was made iv) Declarant must have personal knowledge v) Can be anyone, not just a party vi) Third party confessions to benefit the in a criminal case must be corroborated by circumstances indicating that the statement is trustworthy g) Dying Declaration i) Unavailable, not necessarily dead ii) Homicide case or civil action iii) Declarant believes death is imminent at time statement was made iv) Statement is about the cause or circumstances of impending death h) State of Mind Exceptions (Res Gestae) i) Then-existing state of mind (1) State of mind, emotion, sensation, or physical condition (2) Existing at the time the statement was made (3) Used to establish intent or circumstantial evidence that intent was carried out (4) Statements of memory or belief not admissible to prove the fact remembered or believed ii) Then-existing intent to prove intended act (1) Statement of existing intent (2) To do something in the future
LEVY EVIDENCE 27

(3) Offered to infer that the intended future act was carried out (4) E.g., Declarant stated, On Monday, I am going to meet George offered to prove that declarant was with George on Monday iii) Excited Utterance (1) Statement relating to startling event (2) Made while under the stress of excitement (3) Concerns the facts of the startling event (4) Look for (a) Type of event (b) Time lapse (c) Words of excitement iv) Present Sense Impression (1) Statement describing or explaining an event or condition (2) Made while declarant is perceiving the event or immediately thereafter (3) Need not be a startling event (4) Statement must be contemporaneous with the eventno time lapse v) Declaration of Then-existing Physical Condition (1) Declaration of physical or mental condition (2) Existing at time the statement was made (3) Admissible to show the condition (4) E.g., It hurts!

i)

vi) Declaration of Past Physical Condition (1) Statement made to medical personnel (2) For diagnosis or treatment Business Records i) Rationale and Function (1) Employees are under a business duty to be accurate in observing and reporting facts (2) Record can substitute for the testimony of the reporting party (employee) (3) Exception applies if the entry is germane to the business ii) Requirements (1) Business (2) Entry made in regular course of business (3) Reporting party had personal knowledge of the entry (4) Entry made at or near time of the event (5) Record must be authentic: custodian testifies or record is certified iii) Watch out for multiple hearsay, i.e., statement to a reporting employee (hearsay) reporting employee reports in the business record (hearsay, but excepted under this rule)

RELEVANCY
a) Is the evidence relevant? i) Relevant evidence is any evidence that tends to prove or disprove a material fact ii) General rule: evidence must relate to time, event, or person in controversy iii) Exceptions: Similar Occurrences not relating to time, event, or person in controversy can be relevant (1) Complicated issues of Causation ( shows that 6 non-parties got sick at the same time, place, as ) (2) Prior Accidents or Claims of the Plaintiff (a) Relevant to show a common plan or scheme of fraud (b) Relevant to show damages to the plaintiff caused by something other than the current damage (3) Prior Accidents or Claims Involving the Same Instrumentality (a) Relevant if occurred under the same or similar circumstances (b) Relevant to show notice or knowledge of the that the instrumentality is dangerous (c) Relevant to show that instrumentality is dangerous (4) State of Mind or Intent (a) Previous similar acts of relevant to show s intent or motive (b) E.g., history of sex discrimination to show that did not hire because of her sex (5) Comparable Sales to Establish Value (a) Sale price of other chattels or parcels of real property (b) Must be same kind, place, and time (6) Habit of Individual (a) Relevant to show that individual acted the same way on the occasion in question (b) Specific, detailed conduct (c) Recurrence of detailed conduct (d) At least three (3) or more times = habit (e) Look for instinctively and automatically and invariably and always for habit (7) Business Routine (a) Habit of the corporation relevant to show that an event occurred (b) Same as habit evidence for individual (8) Industry Custom (This evidence is nonconclusive) (a) Relevant to show adherence to or deviation from industry standard of care b) If relevant, should it be excluded? i) Judicial Discretion to Exclude Relevant Evidence (1) Probative value of the evidence must be substantially outweighed by the danger of (a) Unfair prejudice (b) Confusion of issues
LEVY EVIDENCE 28

ii)

(c) Misleading the jury (d) Undue delay (e) Waste of time (f) Cumulative evidence (2) Unfair surprise is not a choice. If the answer says this, it is wrong. If the question is Which is the least likely to be grounds for excluding the evidence the answer is unfair surprise because it is not a ground for excluding evidence. (3) If the answer does not have substantially then it is not a correct statement of the law Public Policy Reasons to Exclude Relevant Evidence (1) Withdrawn guilty pleas and offers to plead guilty are almost always inadmissible (2) Liability Insurance (a) Generally inadmissible to prove negligence or ability to pay (b) Exception: Admissible to prove ownership or control or impeach credibility of witness (i.e., arent you the claims

adjuster for the s insurance company that will pay this claim?) (3) Subsequent Remedial Measures (a) Generally inadmissible to prove negligence, culpable conduct, or strict liability (b) Exception: Admissible to show ownership or control if in dispute or to rebut a claim that precautions were impossible (4) Settlements (a) Generally inadmissible to prove negligence, culpable conduct, or amount of damages (b) Limitation: Will not apply unless (i) There is an actual claim (ii) The claim is disputed as to liability or amount (5) Offers to Pay Medical Expenses (a) Generally inadmissible to prove culpable conduct (b) Exception: Admissions of fact during the offer to pay are admissible

CHARACTER EVIDENCE
a) Civil Cases i) Inadmissible by either party to prove conduct ii) Admissible if character is directly at issue (1) Defamation (2) Negligent hiring (3) Negligent entrustment iii) If character directly at issue, party can prove character by (1) Specific acts (2) Opinion testimony of witnesses (3) Reputation in the community b) Criminal Cases i) Inadmissible if initially offered by the prosecution to show that has propensity to commit crimes ii) Admissible if offered by the to show that his character does not adhere to the crime charged (1) calls a witness to testify (2) Limited to opinion or reputation testimony (NOT specific acts) iii) Prosecution can rebut by cross examining the s witness or introducing its own character witness (1) Cross examination of the witness (a) No extrinsic evidence allowed (b) Limited to whether witness heard of specific instances of misconduct (2) Rebuttal witnesslimited to opinion or reputation of the iv) Admissible if puts victims character at issue (1) Homicide or assault case (2) Plea of self defense (3) Offered to show that victim was the aggressor (4) Limited to reputation or opinion (5) Prosecution can rebut by showing (a) good character of the victim or (b) bad character of regarding the same trait as victim (6) Does not apply in rape cases Civil and Criminal Cases i) Character evidence admissible under the MIMIC Rule: specific acts of misconduct ii) Relevant to some issue other than character (1) Motive (2) Intent (3) Mistake, absence of (4) Identity (5) Common plan or scheme iii) Probative value must not be substantially outweighed by danger of prejudice etc. iv) s prior bad acts of sexual assault or child molestation admissible in such cases (civil or criminal)

c)

IMPEACHMENT
a) General Rules i) Any party can impeach a witness, even if its your own witness ii) No bolstering credibility until witness has been impeached (limited to rehabilitation) iii) Party has absolute right to cross-examine a witness who testifies live
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iv) Must be within the scope of direct v) Collateral matters: cross-examiner is bound by the answers given by the witness on collateral matters and cannot use extrinsic evidence to contradict the witness on collateral matters (1) Extrinsic evidence is anything other than cross-examination (2) Collateral matters are matters relevant only to contradict the witness b) Ways to Impeach i) Prior Inconsistent Statements (1) Cross examination (2) Extrinsic evidence permitted if statement is relevant to an issue in the case (3) Foundation: Witness must be given opportunity to explain or deny the prior inconsistent statement at some point (not necessarily before using extrinsic evidence) ii) Bias or Interest in Outcome of Suit (1) Cross examination (2) Extrinsic evidence permitted if first asked about the facts of bias or interest iii) Prior Convictions (Conviction must not be 10+ years old) (1) Cross examination (2) Any crime involving dishonesty (3) Any felony (4) No foundation required

c)

iv) Specific Acts of Deceit or Lying (No Conviction) (1) Good faith on cross-examination (reasonable basis for believing that witness did the deceitful act) (2) Acts are probative of truthfulness (3) NO extrinsic evidence permitted (4) No foundation required v) Sensory Deficiencies (1) Cross examination (2) Extrinsic evidence permitted (3) No foundation required vi) Bad Reputation for Truth and Veracity (1) Call another witness to testify (2) No foundation required Rehabilitation i) Good reputation for truth after a character attach (prior conviction; deceitful act; reputation evidence) ii) Prior consistent statement (1) Generally not admissible to rehabilitate (2) Admissible to rebut an express or implied charge that the witness has a motive to lie or exaggerate (3) Must be a pre-motive statement (made before the alleged motive arose) (4) Previous statement is substantive evidence of its truth

RULE-BASED AREAS PRESENTATION OF EVIDENCE

a) Competency of Witness i) Personal Knowledge and Oath or affirmation ii) Dead Man Statute (1) Interested witness (2) Testified for their interest (3) Against decedent or his representative (4) About transactions/communications with decedent (5) Civil case (6) No waiver b) Form of Examinations i) No narrative questions ii) Leading questions only permitted if (1) Cross examination (2) Preliminary matters on direct (3) Difficult to elicit testimony because of handicaps on direct (4) While examining an adverse party or hostile witness iii) No misleading or compound/argumentative questions c) Cross Examination Party has absolute right to cross-examine a witness who testifies live ii) Cannot exceed the scope of direct. iii) Scope is any issues raised expressly or impliedly on direct. d) Lay Witnesses i) Admissible if based on the perception of the witness and ii) Helpful to the trier of fact iii) Cannot be legal conclusions (He was negligent) e) Expert Witnesses i) Admissible if assists the trier of fact (1) Methodology is reliable (2) Opinion is relevant ii) Witness is qualified (can be a skilled witness not necessarily formal or academic) iii) Expert must possess reasonable certainty or probability regarding the opinion (NOT speculation) iv) Opinion must be supported by proper factual basis (1) Personal knowledge of the expert i)

LEVY EVIDENCE 30

f)

g)

(2) Hypothetical question based on the facts of the case posed to the expert by the attorney or (3) Facts used are of a type that experts in the field use for out of court determinations (e.g., examining report of x-rays) v) Learned Treatises (1) Authoritative if (a) Actually relied on by expert (rare) (b) Attorney elicits admission by expert that treatise is authoritative and reliable (c) Bring in your own expert to say it is reliable and authoritative (d) Judicial notice of treatise (2) Used to impeach expert (3) Used to support your own expert (4) Hearsay, but admissible under learned treatise exception if established as reliable (as above) (5) Treatise is read to the jury not received as evidence (6) Expert must testify unless judge takes judicial notice Refreshing Recollection i) Generally, witness cant read from a writing in aid of oral testimony ii) When memory of witness fails you can refresh recollection iii) Anything can be used to jog the memory of witness iv) Not received into evidence v) Not read to the jury vi) Opposing counsel has right to see it, us it on cross, and introduce into evidence Recollection Recorded i) Generally, witness cant read from a writing in aid of oral testimony ii) When witness cant remember something which she previously had knowledge and wrote down iii) Requirements

(1) Witness had personal knowledge (2) Statement is made by witness, under his supervision, or adopted by him (3) Timely made by the witness (at time of event) (4) Accurate (5) Necessary to recall the information (I cant remember) iv) Writing does not go to the jury v) Writing can be read to the jury vi) Hearsay, but exception under the recorded recollection exception h) Role of Judge and Jury i) Court decides (1) Qualification of witness (2) Existence of privilege (3) Admissibility of evidence (not bound by rules of evidence) ii) Jury decides (1) Agency (2) Authenticity (3) Credibility (4) Personal knowledge iii) Jury can be present during preliminary fact determination except for confessions i) Judicial Noticerecognition of a fact as true without formal presentation of evidence i) Indisputable facts of common knowledge in the community (notorious facts) ii) Capable of verification by resort to easily accessible sources of accuracy (manifest facts) iii) Limited to adjudicative facts, not legislative facts (purpose of laws, etc.) iv) MUST take judicial notice of federal and state statutes and regs v) MAY take notice of municipal ordinances and private acts or resolutions of Congress/local state legislature vi) MAY take notice of laws of foreign countries

WRITINGS
a) Authentication i) Writing not admissible until authenticated ii) Need testimonial foundation that the writing is genuine iii) Authentication of Document (1) Admission (2) Eyewitness testimony (3) Hand Writing proof (a) Lay witness that is familiar with the signature (b) Expert witness comparison (c) Jury comparison iv) Ancient Documents are authentic if (1) 20+ Years (2) Regular on its face (3) Found in place of natural custody v) Proof that disputed document came in response to a prior communication (solicited reply doctrine) vi) Self-authenticating Documents (1) Certified copies of business or public records (2) Official publications (3) Newspapers and periodicals (4) Trade inscriptions or labels (5) Acknowledged documents (affidavits) (6) UCC signatures on commercial documents vii) Photographs (1) Any familiar witness (2) Testifies that photo is fair and accurate representation (3) Automated Cameras: If no witness, testimony that the camera was operating properly at
LEVY EVIDENCE 31

time picture was taken and processed correctly b) Best Evidence (Original Document Rule) i) Arises when the content of a document is in dispute ii) Must produce the original or a reasonable explanation why original cannot be produced iii) If there is a reasonable explanation for originals absence, then foundation needed for the secondary evidence (copy or oral testimony) iv) Writings Include films, photos, x-rays, recordings v) Original needed if legally operative document (Contract; Deed; Will; Trust) vi) Original needed when witnesses sole knowledge comes from a writing

vii) Original not needed if witness has personal knowledge of facts which happened to be contained in the writing viii) Original not needed for collateral documents (documents of minor importance) ix) Public records can take the place of originals x) No need for original of voluminous documents that cannot conveniently be examined in court if (a) originals would be admissible and (b) opposing party has access to originals xi) Duplicates are admissible to the same extent as originals unless (1) Genuine question of originals authenticity or Circumstances indicate unfairness to admit duplicate

LEVY EVIDENCE 32