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Evidence (Mueller) Lilly on evidence = short student source/treatise on evidence.

Park and David Leonard = evidence law hornbook

Why do we have evidence law? 1 - Because we dont trust juries entirely. o Examples of devices from Civil Procedure that manifests our mistrust in juries. i.e. Judgment as a matter of law in civil procedure - If proof is insufficient as a matter of law judge can find for other party. Or proof is cogent and compelling (Muellers term). The plaintiff didnt even get to his 20-yard line. i.e. Motion for a new trial - The standard for this is that the juries verdict is against the weight of the evidence (basically saying the jury got it wrong so were going to try the case over again). i.e. Jury instructions - Tell jury what the law is and caution them on certain things. Trying to be sure that they tread the straight and narrow and that they do in the end what we want them to do. Devices from evidence work step-by-step through the trial We control what we want the jury to hear and we say that we dont want the jury to hear certain kinds of proof. i.e. Rule 801 (c) Hearsay. - "Hearsay" is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. Basically we dont want the jury to hear what other people have to say, we want to hear what the witnesses actually have to say. i.e. Rule 404 (a) Character evidence generally - Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion . . . and Rule 405. Methods of Proving 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. Were worried the jury will do the wrong thins with this evidence if they hear it.

2 Serving substantive policies related to the lawsuit. o Rules governing burden of proof. o Rules of presumption when we want to give plaintiffs/defendants cases a little boost. i.e. presumption of discrimination (plaintiffs wont ever win these cases unless they come up with smoking guns so if you show these certain things, there will be a presumption of discrimination). 3 - Implement certain policies that are not related to the substantive rules being applied. o Privileges i.e. journalist source privilege (encourage journalists to gather news and encourage informers to cooperate with journalists); psychotherapist patient privilege. 4 Want to encourage accurate fact-finding and we want courts to be careful. o i.e. Rule 901 - Requirement of Authentication or Identification (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. Proving that the evidence really is what the party is claiming that it is. 5 Control scope and duration of the trial. o i.e. Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time. Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. Exceedingly potent provision. it gets invoked all the time and gives a lot of power to trial judges.

Problem 1-A pg. 25 What is the scope-of-direct rule and why do we have it? Rule 611 (b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. We want D to be able to test the things that P wanted him to say. But we dont want him

Question 1 this is not outside the scope because it affects the credibility of the witness. Could cause this witness to tailor the testimony toward his social friend. Worried about bias here. Question 2 o There is at least and argument that this is within the scope of direct. Direct was regarding the Buick running the red light. So there are two things going on; (1) the light was red; and (2) the Buick was not watching where she was going. This question relates to number two. o There is also an argument against the scope of direct youre going to have a chance to present your evidence when your turn comes. you shouldnt take my witnesses to try to prove that. o So this is an example that the judge can legitimately rule both ways. And we grant the judge a large amount of discretion. Question 3 outside the scope because it directly relates to the cause of the accident. o Cannot make the argument that his relates to something that happened at the intersection, which is what was testified about on direct. Objections We require objections because it draws attention to the issue because it helps the judge to make a proper ruling on the issue. Judges dont spot every evidence violation that it being made so we ask the parties to take a major share of responsibility in this area. Objections help the judge to rule correctly on the issue. It also helps the other party if there is a problem so that he can fix whatever the problem is. We also require objections so that the judge doesnt have to rule on every evidentiary everything. This would make trials take forever. Limits opportunity to complain later. Preserves record for appeal. General vs. Formal objections. Offers of proof Alerts the court to exactly whats going to be offered. Gives other side opportunity to formulate an objection. Limits the opportunities for the parties to complain later about whats going on. 104(a) Preliminary questions for judge Witness competency Privilege Admissibility of evidence Judge determines admissibility. 104(b) Conditional relevancy When relevancy turns on a fulfillment of a condition of fact the judge decides whether a reasonable juror could conclude whether it could what it claims to be. If there are different possible conclusions, the question of relevance goes to the jury. Problem 1-B pg. 46 Dreeves shouldnt have had to have objected because Barton objected to that. If we require all parties on the same side of the issue to object we would hear tons of objections all day. Two of the reasons for objections are served by Bartons objections. The third reason (to limit parties opportunities to complain about the outcome) is not served. But if we required Dreeves to object it would do more to disrupt the trial than further the trial. Chapter 2 - Relevancy Old Chief v. United States, 519 U.S. 172 (1997) Old Chief was charged with being a felon in possession of a firearm. The prosecution has to prove that the defendant was (1) a felon; and (2) in possession of a firearm. Was the fact that he has another felony conviction relevant? o Of course it is relevant, it is an element of the crime. o But, the defendant offers to stipulate that he is a felon with a prior conviction so that the previous crime is NOT relevant. The twin charge is assault. The crime he previously committed was assault. So does this create prejudice? We dont want the jury to think well, he committed assault before, its likely that he did it this time.

The fact to which the evidence is directed need not be in dispute. While situations will arise which call for the exclusion of evidence offered to prove a point conceded by the opponent, the ruling should be made on the basis of such considerations as waste of time and undue prejudice (see Rule 403), rather than under any general requirement that evidence is admissible only if directed to matters in dispute. Evidence which is essentially background in nature can scarcely be said to involve disputed matter, yet it is universally offered and admitted as an aid to understanding. Charts, photographs, views of real estate, murder weapons, and many other items of evidence fall in this category. A rule limiting admissibility to evidence directed to a controversial point would invite the exclusion of this helpful evidence, or at least the raising of endless questions over its admission. Advisory Committee Notes to Rule 401. If you want to prove somebody is a felon, what is the relevancy problem when the proof is that you have an assault conviction? o The proof doesnt exactly match what youre trying to prove. It proves more and less. It shows that youre a particular kind of felon rather than just a felon in general. o *** Cant make the proof match precisely the legal parameters in the case. The court says we dont expect it to. Justice Souter says this is at least one step on the road to conviction. It is close enough, it gets us to where we want to go. o Justice Souters three policy arguments: 1) Freedom to prosecute. Litigants have the right to present their case in the way they want to. Under the adversary system the responsibility for building a case rests with the parties. Subject to certain restraints of course. We have to be able to give them freedom if we want the system to work the way we want it to. 2) Descriptive richness. Proof in the real world is particular as opposed to the vagueness of the elements of the case. Proof of this sort is much more persuasive. Particular proof is more persuasive than abstractness. 3) Juror expectations. Juries come to the jury room expecting to hear a story. If you disappoint jurors they may hold it against you and trial lawyers have to worry about this. If you present jurors with abstractions (you just have to accept that he is a felon), theyll want to know more. Balancing test: Evidentiary value should be weighed against unfair evidence and a waste of the courts time.

Problem 2-A. Was he going too fast? (pg. 60) Circumstantial evidence. What does it look like? When can we tell if it proves a point? Is this proof relevant? It isnt direct evidence that he was speeding, but it was circumstantial evidence. Have to make assumptions/educated estimations of how people behave under various fact circumstances. The assumption that the court would likely make here is that a person who is driving on a long stretch of highway finds a comfortable speed and more or less sticks to it. So if you know he was going at a certain speed prior to the accident it makes it probable that he was going the same speed at the time of the accident. What argument could D make that would focus the courts attention on the issue of relevance in order to keep the evidence out or put a heavier burden on the plaintiff in offering this proof? o Change of speed limit, change of conditions on the road. o I dont want Hill to testify unless we have proof that the road was just a straight road with no intervening towns or construction sites or hills or bends, etc. o They could just say you have to relieve us of other certain doubts that would make this irrelevant in order for the continuity point to hold. Problem 2-B. Boys on the bridge. (pg. 60) Buildright wants to show that theyre not at fault for the damage to the motorist. Their proof is that there are four teenage boys running away from the scene. Nothing else. Teenage boys lack judgment and are mischievous. A piece of concrete fell off the bridge. The boys are running away from the scene. In the real case the court decided that this as relevant and said that teenage boys are known to get into trouble and their behavior was consistent with this and the apparent act of mischief. ***There is no test for relevance, there is merely a standard. This is not a litmus test, it is just a general standard. Does the proof make the point more likely than without the proof? **Monday, August 30 Class Notes** Problem 2-F. The exploding gas tank.

Rule 403 = unfair evidence or if it would be confusing to the jury or misleading. The court in the case this is based off of ruled that the evidence would not be allowed in.

2 definitions of unfair evidence (memorize these, emblazon them on your soul.) 1. Unfair evidence = causes the jury to be angry/passions inflamed. 2. Invites jury misuse. Using the evidence for something its not designed for. Problem 2-G. My insurance will cover it. Rule 411 says you cant use insurance to prove negligence. Is this a good objection? Prof. Mueller says no. Shes not using insurance to prove negligence; shes using the statement as an admission of negligence. What is the argument for the justification of Rule 411? The guy got insurance b/c he knows hes a bad driver. He got insurance more or less as a license to not take care while hes driving. In the actual case in Utah, the Utah Supreme Court said the rule against using insurance does not bar the statement. The insurance company could use Rule 105 to instruct the jury to only use the statement, and not the fact that the person had insurance: Rule 105. Limited Admissibility When evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. Problem 2-H. Power rollback caused the crash. This problem and 2-G involve the use against a party of the partys own statement. Anything you say that relates to the case can be used against you. However you cant offer your own statement, it can only be offered against you. Rule 106 says that Rainey could require the introduction of any other part of that evidence that would complete the entire picture. So during Rockwoods defense when they offer Raineys letter as proof that his wife was tired, etc. Rule 106 is designed as an interruption rule to require the opposite party to introduce parts of the letter. Also sometimes gets interpreted as a cure rule allowing the own party to introduce other parts of the letter on their own. Rule 106 only applies to writings and recorded statements. Problem 2-I. Those library books dont prove he stole a truck. Terrys truck disappeared. Ken is the suspect in the theft and is suspected as stealing multiple trucks. A detective has visited the scene and has found what appears to be the carcass of Terrys truck (they matched the vin numbers). Prosecutor is now calling a second detective to testify about the junk-yard condition a couple years before. The issue here is conditional relevance. Theyre trying to introduce a piece of evidence to show that he actually stole another truck but hes not getting charged with the theft of the other truck. Argument about who decides whether weve proved that he actually stole other trucks. Should the judge or should the jury decide whether there were two other stolen trucks found on Kens property? Rule 104. Preliminary Questions (a) Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those with respect to privileges. (b) Relevancy conditioned on fact. When the relevancy of evidence depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. Clear and convincing evidence is the standard. The Arizona case on which this hypo is based said it was for the judge to answer the question and the judge should have excluded the evidence. Increased protection to defendant especially when coupled with clear and convincing evidence. Under the Huddleston case, the jury probably would hear this evidence, thus the risk to the defendant is increased. Rule 104 is very hard to interpret b/c the question of whether D was involved in prior crimes is both a question of admissibility and a question of conditional relevancy. Theres no real line between admissibility and conditional relevancy. o Questions of admissibility go to the judge. o Questions of conditional relevancy go to the jury. People v. Collins, 438 P.2d 33 (California Supreme Court, 1968) Whats wrong with the math?

1. No actual proof of the various likelihoods (e.g. chances of black guy with beard driving yellow truck 1/100, etc).


Independent? The product rule requires the conditions to be completely independent. There was no proof that all of the factors were independent. Demonstration misconceived. Youve shown likelihood of a single couple existing, not likelihood that Ds are the culprits.

What is the appendix doing? o Demonstrating point #3 above. And showing that there is a 41% chance that there is another second magic couple in LA somewhere. o So theres a pretty good likelihood that this couple is guilty but the prosecutor was using the numbers for a separate, misleading purpose. Court says that this also distracts the jury from their main task (considering the credibility of witnesses.) It also waters down our core concept of proof beyond a reasonable doubt. Likelihood of a discreet outcome.

**WEDNESDAY, SEPTEMBER 1 CLASS NOTES** Problem 2-J. The Exploding Tire. If we allow the statistical case to go to the jury we create a counter incentive for the plaintiff to get better proof. If we allow this we make the company that supplies 80% of the tires liable 100% of the time. Misinterpret reality, because particularized proof usually exists and failing to offer it suggests not so much that it isnt there, but that it is unfavorable to the plaintiff relying on numerical probabilities. Either leave nothing for the jury to decide in the exercise of reason, so that it would have to be directed to find in accordance with the numbers (thus significantly and undesirably reducing its role), or render the jurys work transparent, thus subjecting particular juries and the institution of jury trial to criticism, since observers will see that juries decide cases by or against the odds: The use of probabilities using DNA: Criminal cases scarcity figure only Paternity scarcity and probability of paternity CHAPTER THREE HEARSAY Problem 3-A. Three See a Robbery. 1. Yes, this is hearsay. o How do we know that Ms. Plaintalk is talking about our Higgins and not another Higgins? o Context always gives us clues as to what we talk about i.e. Are you going to class at 11? We know hes probably talking about a law school class because were in a law school, and were both law students. o So the statement is offered to prove that OUR Higgins robbed this bank on this occasion, and the statement is offered to prove that OUR Higgins robbed this bank on this occasion. That makes it hearsay. 2. Yes, this is also hearsay. o Circumstantially relevant point from which were going to prove another inference. Im not offering it to prove the matter asserted (that he was carrying money bags), Im offering it to prove that he robbed the bank. o However, it doesnt tend to prove that he robbed the bank; it tends to prove that he was carrying money bags out of the bank. It circumstantially relates to the point youre trying to prove. 3. Yes, this is also hearsay. o Which Higgins? We get to the point that its our Higgins, not some other Higgins. o What does for this mean? Hes referring to this robbery, not some other robbery. o Why does Oblique speak like this, indirectly? Because people express themselves differently, more colorfully, so as not to be boring. o Once weve unpacked this statement, we conclude that Oblique was saying the same thing that Plaintalk was saying but hes saying it more indirectly. Problem 3-B. Kenworth and Maserati. What does the fact that the Truck was rolling forward tend to suggest? o The driver saw that the light was green. We draw an inference from an act of the driver that the driver perceived that the light was green. We draw another inference that the light actually was green.

What if the truck driver yelled out the window hey buddy, the light is green you can go now. o This would obviously be hearsay because it would suggest that the light was green. o So the act is also hearsay because it similarly suggests that the light is green. **REASONS HEARSAY IS NOT ADMISSIBLE** Line of logic = statement or act tells us something about the state of mind of the actor which in turn tells us something about an act, event, or condition in the world. o two risks inherent in using an actors statement/act in drawing an inference to what he is thinking = candor, and narration (ambiguity) o two risks inherent in drawing an inference from the actors state of mind to the act/event/condition in the world = perception, and memory. Wright v. Tatham Baron Parke says = we should apply the hearsay doctrine equally to everything. Professor Mueller says I can just tell you, that we dont. Finman says = you never know when someone intended to assert something (i.e. its not like the truck driver was trying to fool the Maserati intentionally, he probably just saw a green light and went forward). Its a really tough case because its a mix of a statement (the letter) and an act (the attempt to start a business relationship with Mr. Marsden). **Made the makeup class on Thursday but notes were erased** **Missed class on Friday** **CLASS NOTES WEDNESDAY, SEPT. 8th 2010** Anna Sofers Will, pg. 128 non-hearsay circumstantial evidence of her state of mind. not an adequate argument of nonhearsay statement that she is asserting facts rather than I believe. Anytime you assert facts youre also saying I believe at the same time. Making a public pronouncement about her husband that he is an adulterer. If youre offering it to show a troubled marriage its okay, but if offered to show that he is an adulterer than it is hearsay. This fact pattern is based on a real case = Loetsch v. Omnibus Co. The court said that this was nonhearsay circumstantial evidence state of mind. Using this statement to prove state of mind and predict future behavior as opposed to the paper mache man (below) which were using to show past events/conditions. So this makes no difference whether you admit it under state of mind exception or nonhearsay circumstantial evidence but the paper mache man MUST be admitted as the nonhearsay category because past events cannot be introduced with the state of mind exception. FRE 803(3) = State of mind exception Creates a hearsay exception for a statement describing state of mind, which means that such a statement can be admitted even if it is hearsay. But statements admitted under the state-of-mind exception cannot be used to prove a fact remembered or believed. i.e. Frank saying I think there was a clock on the north end of the classroom. can be offered to prove that Frank thought that, but not the presence of the clock on the north end of the classroom. PROBLEM 3-I. A Papier- Mache Man Her description matches the detectives description of the room and it is a highly unusual and unique account. If the child said there was a bed, a nightstand, a lamp, and a closet. and the detective testified to the same thing, this could not be used, because this is exactly what you would expect to find in the bedroom. So if someone can accurately describe it then it must prove that she had been there because nothing but that kind of experience could account for the fact that shes able to say these things. Circumstantial evidence that this child has been in a room where the defendant happens to live and increases the likelihood that she was molested in this room where D lives. This has to be brought in as nonhearsay because it cannot be brought in with the 803(3) state-of-mind exception because it is being used to show a past condition/event. United States v. Singer, 637 F.2d 1135 Were using the evidence to show that Carlos Almaden lived at 600 Wilshire Side, Minnetonka, MN. Is an assertion being made? YES, indirectly. The landlord is basically instructing the post office that Please deliver this to Carlos Almaden. Carlos Almaden lives at this address. Is this hearsay? I mean it is a statement saying that Carlos Allmaden lives at this address. and it is being used to prove that

Carlos Almaden lives at that address. However, it is an act, not a statement, so the court finds that it is not hearsay. Unfortunately, the categories of hearsay and nonhearsay overlap a little. o

o What if we have a statement that asserts the point were trying to prove (that Carlos lives there) but its bound up in
an action (mailing the letter). = an assertion with performative aspects.

o Assertion with performative aspects = were in an area of choice. It could be classified as either hearsay or
nonhearsay. Professor Mueller tends to lean toward the nonhearsay decision

o This comes up a lot in drug cases. i.e. cop answers phone of drug dealer during a drug bust and hears someone ask
for drugs. Can you use this call as evidence? American courts say yes, you can because its a sort of mixed assertion. It isnt just a statement, its a guys who calls the apt. or goes to the apt. to buy drugs. So the performative aspect of this assertion is the act of evicting someone, NOT, as I thought, the act of sending the letter to the residents. Is the performative aspect significantly sufficient to justify nonhearsay treatment? This is how you figure out whether or not it can be admitted. The performative aspect of evicting someone was sufficiently sufficient.

PROBLEM 3-J. My Husband is in Denver. Wife of suspected bank-robber tells the police that her husband was he could not have committed the robbery. We find out that her statement is false which suggests that she is him, which suggests that she thinks he is guilty which suggests that guilty. Why is this not hearsay?

PROBLEM 3-K. King Air YC-437-CP this is being offered to prove that he didnt know that it was stolen . was stolen he wouldnt have told anyone, much less told 6 people in setting, the fact that it was being stored at his airstrip. It is offered to show the fact of disclosure, not for the truth of the assertion. Disclosure to a large group or to the public can be performative.

RULE - Statements offered not for the truth of the matter asserted but offered to prove that the person is lying is NOT hearsay.

in Denver co covering up for he is indeed

If he knew it a public

United States v. Pacelli, (1974) Facts: Pacelli was arrested and charged for the murder of a woman who had been subpoenaed to testify against him in a drug dealing case. After the murder, several of Pacellis friends met at a friends apartment and discussed the crime. The statements they made did not show surprise or reprehension that Pacelli had been arrested. They only commented on the fact that the murderer had botched the job by leaving the body where it could be found. Procedural Posture: The trial court admitted testimony by one of the friends at the apartment as to what the other conversants said. The defendant appealed, alleging error in allowing hearsay. Issue: Whether testimony by a witness of the statements made by a declarant out of court are hearsay (and inadmissible) if used to imply that the defendant is guilty because the statements do not show surprise at his being arrested (meaning that he told them he did it). Holding: Yes. Reasoning: The admission of the testimony here violated the policy behind the hearsay rule of giving litigants the opportunity to crossexamine the declarant. The statement made may not have been intended by the declarants to assert that they believed that the defendant had killed the victim, or that the defendant told them that he did. Cross-examination would allow the meaning of their statements to be examined. Although there is less danger of insincerity in implied assertions than express assertions, there is the danger of misinterpretation. Thus, the evidence should have been excluded. Dissent: There was no statement here that the defendant confessed to the declarants. Thus, there was no hearsay problem at all. The testimony offers little to the actual eye-witness testimony of the states witness that they are not hearsay, because they are not being offered to prove the ultimate issue, i.e. that defendant killed the victim. They are being used to prove that the declarants assumed that the defendant killed the victim. Betts v. Betts, (1970); pg. 169, briefed 1/28/96

Facts: An ex-husband of a woman sued for custody their daughter. Their son died as the result of a severe beating, but the womans new husband could not be convicted because of lack of evidence. The daughter was put in a foster home. Procedural Posture: At trial, the ex-husband offered testimony by the foster mother that the daughter, then 5, had cried and made statements to the effect that the womans new husband had killed her brother. The statements were let in over hearsay objections, and the woman appealed on losing. Issue: Whether the statements by the daughter made to the foster mother were hearsay. Holding: No. Reasoning: A judicial interpretive addition to the hearsay rule in 801 is that the out of court statement can be used to show the state of mind of the declarant, if such a statement does not depend on the credibility of the declarant herself. The statements here were not being offered to prove that the man killed her brother, but rather that the state of mind of the daughter was such that there would be unhealthy tension between her and her mother and stepfather if they were awarded custody of her. It does not matter if the stepfather actually killed her brother or not, because these statements circumstantially show the state of the childs mind. **CLASS NOTES MONDAY, SEPT. 13th 2010** Hearsay quiz 1 Nonhearsay offered to prove state of mind not that he is Woody. 2 Nonhearsay effect on listener 3 Hearsay out of court statement of another to prove assertion he works for all cure 4 Nonhearsay performative aspect lying to police 5 Nonhearsay live evidence of state of mind crying not intended as assertion (People v. Gwinn) p. 134 6 Nonhearsay Coded marker verbal markers 7 hearsay- ask o to point out who did the robbery in court 8 Nonhearsay because of performative aspect outweighs statement, no intended assertion 9 Nonhearsay effect on the listener 10 Nonhearsay performative aspect 11 Hearsay 801(1)(2) out of court nonverbal conduct intended as an assertion. 12 Nonhearsay effect on listener 13 Nonhearsay performative aspect (non assertive conduct) 14 Hearsay and yea (yes). Statement by jury (verdicts Hearsay) 15 Hearsay out of court statement offered to prove the matter asserted. 16 Hearsay out of court statement i.e. Obliques statement. 2 step inference. State of mind condition in world 17 Nonhearsay. This is an assertion that has a performative aspect. 18 Hearsay. The acts are statements used to prove the matter asserted. 19 Non-hearsay. This is not hearsay b/c it is a verbal act. This sets the terms of availment. 20 Non-hearsay. This is like the corn-crib example. Termination of a lease/contract. 21 Non-hearsay. This is like the motel with the heater and complaint. Non-complaint offered to show that there was cause for complaint. 22 Non-hearsay. This example is most like the paper mache man. A unique thing. 23 Hearsay and Non-hearsay. 24 Non-hearsay. This is an assertion with performative aspects. 25 Hearsay. Assertion used to prove the matter asserted. 26 Non-hearsay. Because this is a verbal marker. This is like the barmaid example. 27 Hearsay. 28 Non-hearsay. This is like the gas company case. Effect on the listener. 29 Non-hearsay. This is performative speech. Hes not just saying this guy is sick he is actually putting him into intensive care. 30 Non-hearsay. This is not a statement that says, Im honest. It is just honest behavior. 31 Hearsay. Reputation testimony. We treat testimony about reputation as hearsay. FRE 803 note 21 = community reputation to prove someone is honest is an exception. HEARSAY EXCEPTIONS: Cross Examination Requirement: lack of memory all the witness basically has to do it State v. Smith, 651 P.2d 207 (Washington Supreme Court, 2002) This is similar to the blue car ran the red light. You can always use an inconsistent statement as a non-hearsay use because

youre using the statement to prove vacillation. However, in this case, the prosecutor doesnt just want to use the prior statement to impeach, but also to use the prior statement as substantive evidence. It is critical for the prosecutor to be allowed to use this as substantive evidence, because without it, he has no case. Were applying Rule 801(d)(1)(A) = Prior inconsistent statement (P/I/S) can be substantive evidence if its made under oath, in a prior proceeding, and the witness is cross examinable. Was this prior statement made in a proceeding? 801(d)(1)(a) = an attempt to help prosecutors who have to deal with the turncoat witness. Saying that this is essentially another way to get an indictment. You dont have to panel a grand jury, etc. you can just get this sworn statement. Most courts dont agree with this.

Problem 4-A. I Got Amnesia Most witnesses who get cold feet all of a sudden dont remember because theyre worried about perjury. It does not have to be a diametric opposition to what you said earlier than as long as it is thought that you are feigning memory loss, than you have satisfied the prior inconsistent statement requirement. But what about the cross-examinable requirement? A lot of courts will say that if a witness will just sit still long enough (physically present, regardless of memory loss) to be cross examined than the requirement is met. Uses of P/C/S a. Place P/A/S in context b. Showing that there was no P/I/S c. Rebutting claim of failed memory d. Rebutting claim of recent fabrication, or improper motive or influence (bias)

**CLASS NOTES WEDNESDAY, SEPT. 15th 2010** Tome v. United States, 513 U.S. 150 (1995) 801(d)(1)(B) Jury is able to use these prior consistent statements which are more detailed and is better able to ascertain what happened (b/c the child is not very specific in court). Timing problem = the defense is accusing the child of saying the things about her father because she is motivated by wanting to live with her mother. Defense is trying to discredit her testimony. So in order to rebut that the prosecution says shes made these statements before so therefore. . . we can rehabilitate her if we can use her prior statements o The problem is she had already developed the motivation to live with her mother when she had made the prior statements that the prosecution wants to use. So they actually dont refute the claim of improper motive because they were already made when the improper motive was in place so they actually reinforce the improper motive. The court says you cant do this. 2 interpretations of this holding: o You have to exclude statement that were made after the motive arose? o You can admit them but you just cant use them as substantive evidence. Breyer says in the dissent says that 801(d)(1)(B) use of consistent statements has 4 different uses: a. Rebut claim of fabrication/motive influence. this is the only use the majority considered in the opinion, however there are other uses of prior consistent statements, listed below. b. Prove that no prior inconsistent statement was made. c. Prove that prior statement was NOT inconsistent. d. Rebut claim that testimony reflects tainted/false memory. Breyer is point out that the rule is not very well drafted. Drafting error in the rules. FRE 801 (d)(1)(A) = Use inconsistent statements to impeach FRE 801 (d)(1)(B) = Use consistent statements to repair accusations of improper motive/repair credibility. Under both of these, the statements are allowed to be used as substantive evidence, as well as the purposes listed above. Under Tome, 801(d)(1)(B) has a pre-motive requirement. o difficulty with this is that its very difficult to figure out when the motive arose. State v. Motta, 659 P.2d 745 (Hawaii Supreme Court, 1983) Iwashita sits down with sketch artist, tells him how the D looked, and told him to draw until it looked like it was him. Thats the out of court statement. All in court identifications are irreparably suggestive (its pretty to easy to figure out who the defendant is, and to point to him when asked do you see the person who robbed you in the courtroom today?) So 801(d)(1)(C) says that the prior statement is actually a better proof of identification than the in-court statement. Thats

why theres the hearsay exception. She has to be available for cross-examination though.

The Admissions Doctrine Problem 4-B. Fire in the warehouse. Carter doesnt have personal knowledge about what hes talking about. Does this matter? No. When you make an admission it can be used against you. We do this because we assume that you will make some sort of investigation before speaking. Carter is making this statement to the insurance statement to get money, hes advancing his interest. Does that matter? No, it doesnt. The statement can be used against the person who made it even though he was trying to further his own aims. Even though he said he put the open flame too close to the fumes people might try to argue that hes drawing a conclusion that a lay person shouldnt be able to draw. Doesnt matter. When Carter talks to the insurance agent, hes probably not think that the statement is going to be used against him. IT doesnt matter. RULE: ANYTHING A PERSON SAYS CAN BE USED AGAINST THEM LATER ON. IT DOESNT MATTER UNDER WHAT CIRCUMSTANCES YOU HAVE MADE THE STATEMENT. o There arent many exceptions. o However, there are some constitutional doctrines that will keep out admissions, but not much beyond that. Problem 4-C. An Encounter Gone Bad. If you represent a well healed person who commits something that is claimed to be a sexual assault. o criminal charges o civil liability possibility. So when you compromise/bargain down the charges on the criminal case you have to think about the civil case and the implications that a guilty plea could have on that case. o Thats because whatever you say in an open court is going to be able to be used against you in a subsequent proceeding. o However, you can plea nolo contender which admits criminal liability without pleading guilty. What about motor vehicle Bruton v. United States, 391 U.S. 123 (1968) One of the defendants in a postal robbery case said Bruton and I did it. Bruton. Why isnt the limiting instruction good enough? o no reasonable jury is going to be able to forget that it had been said. But what about rule 403? o Rule 403. Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time o Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence. What could the prosecutor do here? o Sever the trial? o Redact the statement so it says __________ and I did it. Court says you cant do this. Its just not plausible. Plus you cant redact an oral statement when someone is on the stand, sworn to tell the truth and nothing but the truth, youre not going to be able to tell someone doctor up the statement to take out references to the co-defendant. Thats basically lying or falsifying the statement. o Separate juries? Put 2 juries in the jury room. when the disputed testimony is being offered, you send one jury into the hall so they dont hear it. Bruton only arises when a party makes a confession that names the other guy. o If Evens were to have said I robbed the postal truck, then got into the waiting chevy and it drove off. This would be okay because it doesnt specifically name Bruton. **CLASS NOTES FRIDAY, SEPT. 17th 2010** Problem 4-D. His Masters Car. Obrien v. Napton + Ace Napton: The brakes failed. I was speeding. The statement is admissible against him, but its not admissible against ACE because at the time Napton speaks hes already

been fired. Ladies and gentlemen of the jury, you cant consider Naptons statement as evidence against ACE. o No Brutton instruction b/c it is a civil case so no need to worry about violating the confrontations clause. The statement the brakes failed is not really relevant. Its admissible against Napton, but not against ACE, the only party against whom it would really matter.

Admissions: Can even be admitted w/out lack of personal knowledge Semi-conscious admissions are admitted Apologies are counted as admissions Prior guilty please = Normally a prior criminal guilty plea can be used against you as an admission in civil court however, traffic accidents are not admissible in civil court. ADOPTIVE ADMISSIONS: United States v. Hoosier, 542 F.2d 687 (6th Circuit, 1976) When someone else says something and you make no response that can be used against you as an admission. Silence When can you use statements made in the presence of another? At a minimum, it should be made to appear that (a) the party heard the statement, (b) the matter asserted was within his knowledge, and, perhaps most importantly, (c) the occasion and nature of the statement were such that he would likely have replied if he did not mean to accept what was said. Even if these condition be satisfied, the statement should be excluded if it appears that (d) the party did not understand the statement or its significance, (e) some physical or psychological factor explains the lack of reply, (f) the speaker was someone whom the party would likely ignore, or (g) the silence came in response to questioning or comments by a law enforcement officer (or perhaps another) during custodial interrogation after Miranda warnings have been (or should have been) given. . . Problem 4-E. Did you rob that bank? When you have a statement by an outsider, then you have an ambiguous response by the accused, who decided whether that response gets in? o You could apply 104(a) = question of admissibility which means the judge decides; or o You could apply 104(b) = questions of relevance which means jury decides. o McCormick has gone back and forth on this question. Are you the one? o Naked question that doesnt allege anything. Mueller thinks you can give Ivers response to the jury. Leave it up to the jury to interpret his response and what it means. Youre the one, I was there, it was you, wasnt it? o This isnt really a question, its more of an assertion disguised as a question. o Mueller thinks this should be up to the judge because there is a risk that the jury will use the actual question (disguised as an assertion) as evidence, regardless of what the response is. Doyle v. Ohio, 426 U.S. 610 (1976) Fletcher v. Weir, 455 U.S. 603 (1982) When do you have to give Miranda warnings? Can you just let hi sit there forever, remain silent, without Mirandizing him? o You have to give warnings when the guy is arrested, and youre questioning him.

So after Doyle, whats the police strategy? There was no bar against using silence prior to the Mirandizing, only post Miranda warning silence.

3. Admissions by Speaking Agents - 801(d)(2)(C) speaking agents Lawyers, brokers, public relations agents, etc. When a lawyer files a complaint, it is a document that lawyer prepares that is really a statement of the plaintiff. Lawyer has been hired as a speaking agent of the client. Problem 4-F. Couldnt He See the Boy? If you have alternative theories (1) its the drivers fault b/c he wasnt looking; and (2) its the manufacturers fault b/c the way they designed the mirrors wouldnt have allowed the driver to see the buy even if he was super careful. So can the driver use the complaint filed against the bus company to say they admitted that I was careful, but there wasnt anything I could to b/c the mirrors were faulty.?

So the answer is NO. You cant use the complaint against the plaintiff b/c our rules allow plaintiffs to claim alternate pleadings w/out penalty. Allowing them to be used against them would be penalizing plaintiffs for multiple pleadings. Rule = you cannot use an alternative pleading against the plaintiff.

Mahlandt v. Wile Canid Survival & Research Center, 588 F.2d 626 (8th Cir. 1978) 801(d)(2)(D) = statements made in the scope of his employment. What is the evidence issue in this case? Court says that personal knowledge is not required in 801(d)(2)(D) just like it wasnt required in 801(d)(1)(A). What does the court say about the Cedek case? Well talk about this on Monday. **CLASS NOTES MONDAY, SEPT. 20th 2010** Mahlandt v. Wild Canid Survival & Research Center (cont.) Cedeck v. Hamiltonian, 551 F.2d 1136 (cited on pg. 205) o What is the difference? In Cedeck, the manager at the bank says I have been told that . . . but in Cedeck he doesnt say I have been told that . . . , he just says whats hes been told. o Presumably the manager was quoting one of his superiors. So, according to Mueller, it should have fit the same exception and have been admissible under FRE 805, however, it was ruled not admissible in Cedeck. Many cases dont follow Cedek. Rule 805. Hearsay Within Hearsay o Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. RULE: Admissions dont require personal knowledge. w/r/t the statement made by the corporation board in its minutes is not admissible against Poos b/c statements made by employees can be used against higher ups, but not vise versa. CO-CONSPIRATOR STATEMENTS: Problem 4-G. I was on an errand for my boss. In order to bring this statement w/in the admissions doctrine 801(d)(2)(D) (statements made by an agent admissible against the employer). BOOTSTRAPPING PROBLEM: Do you have to have independent evidence apart from the statement as proof that the statement falls into the exception? o You can consider the statement as partial evidence that it satisfies the exception, but you need additional evidence to prove that it falls into the exception. o So in this case, the additional proof can be the fact that he was driving the employers truck, wearing the uniform, etc. Bourjaily v. United States, 483 U.S. 171 Lonardo says to Greathouse I have a friend who wants to buy some cocaine. This friend turns out to be D (Bourjaily) Can Lonardos statement be admissible against Bourjaily? What requirements do you have to satisfy in order for this to fall into the exception? o The declarant and the defendant have to be in a conspiracy together. (Conspiracy) independent evidence beside just a statement or idle chatter. the independent evidence can be a statement to a third party. o The statement has to further the venture. (Furtherance) has to be in main part of conspiracy and not just in concealment phase unless the concealment phase was an essential part of the conspiracy. Attempted furtherance counts. o The statement was made in the course of the conspiracy. (Pendancy) everything is pendence until its the conspiracy is complted or defendants have been arrested. 2 problems in the co-conspirator exception: o Circularity/bootstrapping problem o Coincidence problem Bourjaily says all we require is a preponderance of the evidence standard that a conspiracy existed in order to use the exception. Bourjaily says: o Judge makes the decision o Conspiracy must be shown by a preponderance of the evidence. o Order? (show conspiracy before admission statements or vise versa?)

this is left up to the discretion of the judge. Independent evidence? yes at least some additional evidence before it is admissible. o Conditional instruction to the jury? No. 801(d)(2)(E) = the exception most commonly cited in federal criminal cases. o

Problem 4-H. Drugs across the border. A) Bud to Carol = Arlen fronted us the drug money o Connie present (Arlen objects) o When the court says that the furtherance element is not satisfied they usually say it is mere narrative or idle chatter about the circumstances.. o However, statements that are designed to reassure fellow co-conspirators are viewed as in furtherance of the conspiracy. o This is could go either way. It may be admissible b/c it meets all of the elements. It may not be admissible b/c of the idle chit-chat (above). Spoken by a conspirator to a conspirator but its in the presence of a casual setting in a bar. so it could go either way because it could be argued that it was just idle chatter. B) Arlen to Don Bud went south to make the buy (Bud objects) o hes reassuring the customer so this is in furtherance of the conspiracy. o A statement to an undercover agent can further the venture. C) Carol to Agents Bud made the buy (Bud objects) o No more conspiracy at this point. o Not in furtherance of the conspiracy (it was to save her own butt) o This is like the Bruton case. In that case, the court says we emphasize that the hearsay statement inculpating petitioner was clearly inadmissible against him under traditional rules of evidence [citing Kruelwitch and

**CLASS NOTES WEDNESDAY, SEPT. 22nd 2010** (I missed class on this day) **CLASS NOTES FRIDAY, SEPT 24th 2010** Mutual Life Insurance Co. v. Hillmon Critical language in the case = The letter in question were competent not as narratives of facts communicated to the writer by others, nor yet as proof that he actually went away from Wichita, but as evidence that, shortly before the time when other evidence tended to show that he went away, he had the intention of going, and of going with Hillmon, which made it more probable both that he did go and that he went with Hillmon than if there had been no proof of such intention. i.e. I intent to take the bus to Denver. This tends to show that I went to Denver and that I took the bus there. But could you use this statement to prove that the bus went to Denver? No you couldnt. o This case is different though. They werent trying to use Walters statement to show where Hillmon went because both parties agreed that Hillmon was at Crooked Creek. United States v. Pheaster, 544 f.2d 353 (1976) This case seems to be saying that you CAN use Larrys statement to prove where Adell was. Facing the question that Hillmon did not face. They didnt face it because both parties agreed where Hillmon was. The question was can you Adells statement to prove where Angelo was? i.e. that the bus went to Denver Grand ambiguity of the Pheaster opinion = the rules of evidence were not in effect at the time that Pheaster was tried. The exception, however, according to the Congressional Committee, seems to say that you cant do this. o So the court is basically saying, its okay, but since the rules of evidence are in effect now, you cant do it anymore. What are courts now doing? o The split the baby in half. o See Nersesian, 824 F.2d 1294 and James, 717 N.E.2d 1052 (as described on pg. 250). o As long as there is other evidence that put the defendant and the victim in contact with one another you can use the statement to show what defendant did. o So they dont say absolutely you cant use one persons statement of intent to show what another did, they instead say you can use the persons statement of intent if there is some other evidence corroborating their contact. FRE 803(3) Two problems

o o

State of mind statements usually state or imply other acts, events or conditions State of mind statements are often more important for thaw they imply or say about others.

Problem 4-K. Fright Ponits the Finger. 1 Clearly does not get in. Its an expression of fear and it impliedly asserts that Donald has done something to hurt her. You cant use that to show that Donald has behaved that way. 2 This is the statement that looks forward, its a statement of intent, its like Hillmon/Pheaster. Can you use this to show that Donalds had done something? If you had a little more in addition to this forward looking conduct then you can use this, but if you have nothing more youre not going to use this. 3- She fled, therefore shes afraid, therefore Donald must have done something to her that was hostile, therefore Donald had a hostile attitude toward her, therefore Donald may be guilty. Principles to engrave in our memories according to Mueller Prejudice is making the jury mad and jury misuse. Statements of fear on the part of the victim generally get in in extortion cases but do not get in in murder cases. o So the statement gets in in problem 4-J, but not in problem 4-K. Blake v. State, 933 P.2d 474 (Wyo. 1997) Issue = whether statement by a child-victim as to who the abuser was can be admitted to identify the perpetrator? Holding = yes under FRE 803(4) Whats the difference between FRE 803(3) and 803(4)? o 803(3) allows you to describe present symptoms. When you talk of present symptoms you talk in historical ways too. this only allows you to prove present feelings and perceptions. o 803(4) allows you to prove the inception. When the feelings of your current ailment began. Statements describing the location of the pain, in workers comp cases, many courts balk. Because where you felt the pain is not pertinent to the treatment of the patient. Mueller thinks this is hogwash because to say WHERE it was where you first felt the pain is very natural. o Courts however have been mistrustful to use this exception to prove that it was the companys fault. o It is clear that the exception does not embrace fault. Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Courts have said that everything in the language above stops short of using the statement to prove fault. The Pennsylvania case on pg. 258 o Says that it surely is the case that the framers of this rule in the 70s is that people who are talking to doctors are likely to be truthful b/c theyre trying to help them. It defines treatment as ****. Change that 803(4) introduced to the exception that was not true before 1975 which is true now. o The use of diagnosis along with treatment. before 1975 it was only statements to TREATING physicians, now it is TREATING and DIAGNOSING physicians. Diagnosing physicians usually meand physicians who are brought into the case b/c theyre going to testify at trial. o Whats the rationale to expanding?

FRE 703 - The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. So 803(4) was introduced because if an expert whos testifying in a case can rely on hearsay even if it wouldnt be admissible (first sentence in rule 703 was originally the only text of the rule), we ought to just make it admissible because the jury is going to hear about it anyway. The last sentence in 703 was later added to limit the inadmissible stuff an expert could introduce. But 803(4) was never modified.

**Class Notes MONDAY, SEPT 27th 2010** Ohio v. Scott, 285 N.E.2d 344 (Ohio Supreme Court 1972) Statements D made to his girlfriend at a movie theatre. o He shot someone.

o He needed help. On the witness stand, she forgets exactly what she said when she gave a conclusive statement to police not long after the attack. Shes starting to step back because now shes realizing the consequences of her conclusive statement. When she claims she cant remember exactly what she said, the prosecutor attempts to refresh her memory with her previous statement. Are the elements of the exception, FRE 803(5) satisfied in this case? o 1) Witness must be suffering from a lack of memory. o 2) The witness must once have had knowledge. o 3) Made/adopted in this case she signed the statement. o 4) The statement accurately reflects past knowledge. o 5) Fresh there was a date on the statement which shows that it was made shortly after the incident. Dissent is concerned about the lack of memory element. There is no incentive for the prosecutor to push the witness to get them to remember because if you push them too hard you might get them to the other side and say opposite of what you want them to. o So once they claim they cant remember, they invoke 803(5).

United States v. Booz, 451 F.2d 719, 724-725 (3rd Cir. 1971) As the bank robbers flee by caar, a bystander comes to the door of the bank (locked, now that the horses have bolted) and raps on the glass. A guard, shaken from the experience, gos to the door. Were closed, he says, byt the bystander replies, The license number of that car that just drove off is WJF6898. The guard fetches a deposit receipt, gets the bystander to repeat the number, and scribbles it down, taking also the name of the bystander. At trial, the prosecutor can link the car to the defendant and wants to use what the bystander said to link the car to the crime. Can he get into evidence the license number that the guard wrote on the deposit slip? o Yes. Of course he cant remember the license plate number but he can remember that he gave accurate statement after the robbery. Business records exception Petrocelli v. Gallison, 679 F.2d 286 (1st Cir. 1982) To be admissible as business records under Rule 803(6), the referenced notations would have to represent either the opinions or diagnoses of the Massachusetts General Hospital doctors who made the notations or the diagnoses of some other person with knowledge )such as medical colleague) who reported to the maker of the record as part of the usual business of professional routine of Massachusetts General Hospital. Rule 803(6) requires that information in a business record be transmitted by a person with knowledge acting in the course of a regurarly conducted business activity. In this case, it was not clear where the information came from. Couldnt tell if it came from the doctors observation, or from the patient just telling the doctor that he thought that was what happened. You cant use the business records exception to get in data from an unknown source unless you can show that the unknown source is an expert on the area of the information. Norcon, Inc. v. Kotowski, 971 P.2d 158 (Supreme Court of Alaska, 1999) Ruder, Stamply, and Cole are not making statements in the regular course of their duties. Theyre job isnt to rat out Posehn or keep an eye on him. So the business records exception was not enough to get it into evidence. They had to invoke the admissions doctrine, 801(d) (2)(D) because Ruder, Stamply, and Coyle were agents and authorized to speak for them at the time. A party cant use the business records exception in order to get its own business records in. i.e. Been v. Montana Board of Labor Appeals, 965 P.2d 256. There is a debate about whether we want to use companys investivations against them in trial. We might incentivize companies to be truthful in required reports to the government if they wreent allowed to be used against them. Public records exception Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir. 1979) **Class Notes WEDNESDAY, SEPT 29th 2010** Melindez-Diaz v. Massachusettes Issue: The Massachusetts courts in this case admitted into evidence affidavits reporting the results of forensic analysis which showed that material seized by the police and connected to the defendant was cocaine. The question presented is whether those affidavits are

testimonial, rendering the affiants witnesses subject to the defendant's right of confrontation under the Sixth Amendment. Rule: The Sixth Amendment to the United States Constitution, made applicable to the States via the Fourteenth Amendment provides that [i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him. In Crawford, after reviewing the Clause's historical underpinnings, we held that it guarantees a defendant's right to confront those who bear testimony against him. A witness's testimony against a defendant is thus inadmissible unless the witness appears at trial or, if the witness is unavailable, the defendant had a prior opportunity for cross-examination. Class of testimonial statements, which the accused shall enjoy the right to confront: ex parte in-court testimony or its functional equivalento that is, material such as affidavits, o custodial examinations, o prior testimony that the defendant was unable to cross-examine, or o similar pretrial statements that declarants would reasonably expect to be used prosecutorially; extrajudicial statements ... contained in: o formalized testimonial materials, o such as affidavits, o depositions, o prior testimony, o or confessions;

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. Id., at 51-52, 124 S.Ct. 1354 (internal quotation marks and citations omitted). (I missed class on this day) **Class Notes FRIDAY, SEPT 31st 2010** Problem 4-L. The Government Let Her Go. o Depositions for use at trial are to be taken only at exceptional cases. o If the govt does take a deposition, and then low and behold the witness is unavailable at trial, what suspicion does that raise? o Based on real cases which said that the government cannot use the deposition especially when the govt takes the deposition and then low and behold the witness is not available at trial, theres a suspicion that the govt knew that the person wouldnt be available at trial. This violated the confrontation clause. o Rule 804(a) says that if you procure the unavailability of a witness, you cant claim the witness is unavailable and use the exception. In a case like this, the govt did procure the unavailability of the witnss so they cant use the exception. o We dont let the govt do an end run around the requirement of the govt to bring live witnesses to trial in cases like this. This puts the govt in an impossible position. o What other common circumstance coiuld the witness be unavailable to the government in in which the government may be to blame? Not immunizing a witness and either forcing her to testify against herself, or claim that the witness is unavailable. Courts have said that refusing to immunize a witness is a decision of the justice department and can be used to justify claiming the witness is unavailable. Refusal to immunize is not procuring the unavailability of the witness. Barber v. Page not required to read. Lloyd v. American Export Lines, Inc., 580 F.2d 1179(3rd Circuit, 1978) o Alzarez is impleaded o Question is whether Lloyds testimony can be offered against American Export. o Rule 804(a)(5) = unavailable declarant = he was absent from the hearing and the proponent of his statement [be] unable to procure his attendence . . . by process or other reasonable means. o Can be used by predecessor in interest. o The court says that the testimony should be available because there is a sufficient unity in interest. The court said that government agencies speak therefore they are predecessors in interest. They have the same motive, to make sure the ships are manned by good and competent people. IN that sense, they are American Export Lines interest. o Justice Stern in his dissentin opinion argues for a narrow interpretation that requires property interest. i.e. grantor and grantee or lessor lessee or decedent heir, etc. Notes after Lloyd v. American o 2) They were predecessors in interest.

o o

3) Blue Bus is Anne a predecessor in interest to Bart? no way. They both have the same interest but you cant say that they are in privity w/one another. 4) Enterprise liability, theyre basically all predecessors in interes.

EXEPTIONS FOR STATAEMENTS AGAINST INTEREST For years prior to 1975, this exception was only available in civil cases. The promulgation of the FRE made it available to criminal cases as well. Williamson v. United States, 512 U.S. 594 FRE 804(b)(3) = A statement which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. The court talks about the two different ways to define statement. IT can either be defined narrowly or broadly. Harris makes a seemingly inculpatory interest and referring to another person makes you a consporator. Hes attempting to difuse the blame here = in his own interest. Hes cooperating for better treatment = in his own interest. Hes hoping to get a better deal by implicating someone else = in his own interest. Implicating someone else could lead to conspiracy charges = against his own interest. Admitting he knew there was cocaine in the car = against his own interest because he forfeited his only defense (lack of knowledge). Dissent = its perfectly reasonable to think that a person makes an incriminating statement solely for the purpose of making a deal. You an no longer say that it is so against your interest that you wouldnt make it if it were not true. Part B of the opinion = the exception only reaches statements that are themselves against ones own interest. o everything he said is against interest. **CLASS NOTES 10.4.10** Problem 4-M. He Had Nothing to Do with It. Even some statements exonerating the other guy can perceivably be argued that it is in defendants own favor. Hes not promising to help get anyone here so this is clearly not a statement of currying favor which makes if very different from the situation in Williamson. The actual case did admit the entirety of the statement, not just the clear statement against his own interese. The Williamson approach of divvying up the statement cuts both ways. If it limits what prosecutors do, it also limits what defendants can do. Sometimes you just cant tell from the abstract whether its an against interest statement (i.e. Sam and Todd on pg. 314). It has to be viewed in the larger context. With the against interest exception, it has to be looked at in an even broader sense (more so than that of excited utterante, etc.) o i.e. 315 Mrs. Demasis example. Statements that look on its face to be against interest can turn out to be something other than that. Why wasnt the against ones interest exception applied in the Brutton case? because there wasnt an exception like this for penal cases until 1975. 6. Statements Admissible Because of Forfeiture by Misconduct. Problem 4-N. If You Want to Stay Healthy. The witness is scared, thats why the judge holds the hearing in his chambers like he did. Were keeping a secret from the defendant like we do when we deal with confidential informants. Also like the typical rifle-shot child victim hearsay exception (pg, 353). So this is typically they way the proceedings are done. Prosecutor talks to judge to see if hell grant the exception. Giles v. California, 128 S.Ct. 2678 (2008) If any act that kills a witness gives exception to the ocnfrontation clause, what would happen? o What would happen to the hearsay doctrine in murder cases? basically ANYTHING the victim has said would be admissible. Scalia asks, why havent we seen this happen earlier? What rule does the dissent favor? If we swallow this pill in the co-conspirator exception. o The co-conspirator exception is at least somewhat narrower. It doesnt admit all evidence, just statements about the furtherance of the conspiracy.

According to Scalia = the purpose of this exception is to prevent defendants from getting in the way of the work of courts. Its to deter defendants from going around and frustrating the work of courts. There used to be a sentence in the ACN to FRE 804(b)(6) saying that the exception applies to actions taken after the event to prevent a witness from testifying. o This sentence mysteriously disappeared. What is the problem with the domestic abuse cases? o Attempts to isolate the victim and keep victim from getting in touch with the police. FRE 804(b)(6) A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to, and did, procure the unavailability of the declarant as a witness. o Is this really necessary to have this exception? If you forfeiture the larger right, the Confrontation right, youve also forfeited your right to the smaller right, the hearsay doctrine. Colorado = you can forfeiture your confrontation rights by killing her but if youre going to introduce that evidence against the defendant it has to fit in a separate exception. Does this make sense? The exception CO courts are most likely to apply is the catch all exception. Argument for this = Theres a difference between the Confrontation doctrint and hearsay doctrine. Hearsay is there to ensure the truthfulness and trustworhiness of the statement. Even the bastard who kills someone to prevent them from testifying should still be conviced on trustworthy and truthful evidence. Argument against this = if we want to maximize the incentive to not tamper with prosecutions proof, we need to say anything theyre said is going to come int. Giles case more or less assumes that if you lose your Confrontation rights you lose your hearsay rights. o Colorado is the only state Mueller knows of that doesnt recognize this.

**CLASS NOTES 10.06.10** CRAWFORD DOCTRINE (FINALLY) Other constitutional doctrines: MAPP DOCTRINE= 4th Amendment doctrine/prophylactic rule (prevent police misconduct) MIRANDA DOCTRINE= 5th Amendment doctrine/prevent police misconduct MESSIAH DOCTRINE= 6th Amendment right to counsel/prevent police misconduct ROBERTS DOCTRINE= stuck out like a sore thumb/Hearsay concerns revisited o Very different from the other exceptions NOW WE GET THE CRAWFORD DOCTRINE = Procedural doctrine Mueller would argue that it is also a prophylactic doctrine (prevent prosecutor misconduct. This is trying to regulate the way prosecutors gather and use evidence at trial.) Crawford stands for . . . the confrontation doctrine has some separate meaning separate from the hearsay doctrine. Other cases different under Crawford: o United States v. Arnold (pg. 226) This is the case where she calls the police because she thinks he mothers boyfriend is going to kill her. Prosecutor tries to introduce the evidence under the excited utterance exception. Under Crawford this would be hearsay because she was talking to police and she could expect the statements be used in the prosecution, therefore it is testimonial, and it was not subject to crossexamination. Expectation rather than purpose. i.e. does she expect that when she talks to police that theyll investigate this guy, he might get arrested, and he might get prosecuted. The Arnold court admits the statement under the emergency exception. o Problem 4-J He Says Hell Kill Me. Factual statement but it fits the state of mind conception b/c of his own fear and it gets in b/c you need to prove fear of someone if youre prosecuting for extortion. o United States v. Pheaster Can you use declarants statement to prove what someone else did? Courts allow this as long as you have independent evidence to prove what the other person did. In this case, he doesnt have any expectation that a crime is even going to happen! So he cant expect it to be used in an investigation.

In addition, this statement is made to his friends. Problem 4-K. Fright Points the Finger (pg 251). (1) Probably not testimonial. Conversation between private parties. (2) Not testimonial. (3) Confrontation clause does not apply to nonhearsay statements. This is not hearsay so no problem here. Ohio v. Scott (1972) This is clearly a testimonial statement. However, it should be admitted because the person is on the witness stand and is subject to crossexamination. Melindaz-Diaz case Statement by public official, not victim of a crime. This is definitely a testimonial statement. The purpose of preparing the report is to prosecute the crime. This is not routine and non-adverserial as in the Orozco and Puente cases below. Williamson v. United States against interest exception.

We dont have to talk about these curry favor statements in criminal cases anymore b/c these statements are clearly testimonial under the Crawford doctrine. Today its just easier to say its a testimonial statement so its inadmissible. What is testimonial? According to Professor Rich Friedman: o A statement made: Knowingly to the authorities that describes criminal activity is almost always testimonial. By a person claiming to be the victim of a crime and describing the crime is usually testimonial, whether made to the authorities or not. o In the case of a crim committed over a short period of time: if a statement is made before the crime is committed, it almost certainly is not testimonial. o A statement made by one participant in a criminal enterprise to another, intended to further the enterprise, is not testimonial. o Statement made in the course of going about ones ordinary business, made before the criminal act has occurred or with not recognition that it relates to criminal activity is not testimonial. (i.e. Pheaster) Public records exception? o In Orozco and Puente (pg. 292) says routine and non-adverserial records can get in b/c they are not hearsay. o Pg. 368 in Crawford most of the hearsay exceptions are by nature not testimonial like business records and statements in furtherance of a conspiracy.

**CLASS NOTES: 10.08.10** Davis v. Washington, 126 S. Ct. 2266 (2006) The circumstances in Davis that led the court to conclude that it was not testimonial was that she was describing an ongoing emergency. She calls 911 and describes what happened to the 911 operator o SCOTUS in footnote says 911 operators could be agents of police and thus considered police for Crawford purposes. Court points to 4 factors: o 1) Ongoing emergency o 2) Purpose of cops was to resolve/assist with an ongoing emergency rather than investigate a crime. o 3) Statements relating to events that were actually happening rather than describing past events. o 4) The formalities between the two situations were striking. In Davis the statements were frantic and not tranquil. Difference between Hammond situation and the Davis situation? o In Davis situation, the assailant is out there somewhere. People v. Bryant were awaiting SC decision. o 768 NW2d 65 (Mich. 2009), cert. granted Pg. 383 Scalia says that testimonial hearsay is the only thing covered by the Confrontational Clause. Problem 4-O. Your Witness The question in this case is whether or not the defendant had an opportunity to cross-examine. The prosecutor should have tried to refresh her memory by asking her questions like do you remember ***** happening? or do you rememeber telling ****** this or this? o prosecutor doesnt want to do that b/c it might be tough to get the kid to say anything on the stand which might

look bad. So what hes doing is putting the kid up there, knowing he isnt going to say anything substantive, just so the defendant cant say he didnt have the an opportunity to cross examine. The point of this is that the prosecutor should be required to try to get the witness to remember instead of just putting up there and saying to the defense there she is, make her your witness. Supreme Court says the confrontation clause

**CLASS NOTES: OCTOBER 11, 2010** Problem 5-A. Red Dog Saloon Part I. Prosecutor cannot offer this evidence under Rule 404. o we dont allow prosecutors to do this because were afraid that the jury will just decide that the guy is a bad person, and should go to jail regardless whether or not he did the crime. o Risks of inflaming the passion of the jurors. o Shouldnt require defendants to defend their entire lives everytime theyre on trial for a crime. o Relevant trait of character? What makes it relevant? Honest (courts generally view this as too general and wont admit it), law-abiding (in general courts will admit this). If Rev. Graham testifies, then Coach Jones can also testify. (or by prosecutor to rebut the same FRE 404) If D offers proof that hes not a violent person, and prosecutor offers proof that he is. Is Ds character an element of the case at that point? o NO!!!! It is not a defense to the crime that youre a good person. It is only a defense to say that you didnt do it. Problem 5-B. Red Dog Saloon Part II Rape and sexual assault cases aside, defendants can offer evidence of a pertinent trait of the victim. Ernies testimony can be offered in this case because its relevance is that it suggests that Vince started the fight. Problem 5-C. Red Dog Saloon Part III. This is opinion testimony. What foundation is necessary to get the above testimony into evidence? o Does the witness know the accused and if so, then how does he know him? o To what extent does the witness know the accused? o And have you been able to form an opinion? If so, what is that opinion?

Use FRE 405 (a) opinion testimony 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 crossexamination, inquiry is allowable into relevant specific instances of conduct. o There is nothing in the testimony about reputation in the community, the testimony is based solely on the witnesses own perception/opinion of Dons character. o Witnesses cannot testify to specific instances of Dons conduct that reflects his character because under FRE 405 such testimony is only permitted where the trait of character of the person is an essential element of the charge, which is not the case here. What if Ernie testifies to specific threats thaad Vince made against Don? o That is admissible. o The ban against offering specific instances does not extend to specific threats against the defendant. It can help prove that Vince started the fight. Whether or not D knew about those threats is insignificant. It shows: 1) That when they had the violent altercation it may well be that Vince started it. 2) Opinion and reputation testimony hes a fight starting person 3) Prove you know a lot about Vince and thats why you didnt go to that bar and you knew Vince was a fight started. So youre proving whether or not D acted reasonably in response to Vince. You reasonably apprehended bodily harm and therefore you had a reasonable reason to beat him up because. o Using threats is not using character to prove conduct so 405 does not apply.

Problem 5-D. What Price Truth. This is absolutely allowed. On cross inquiry into relevant specific circumstances is allowed. Whats the problem here? Inflaming the jury because they find out he is a wife beater makes them hate them. How do we resolve this problem? o Cant just make this question up. So there needs to be some sort of basis for a question like this (like he has in fact committed the acts that are inconsistent with the testimony that has been given.) o So what we do is ask the prosecutor to have a reasonable basis for these weapons. You can ask a character witness do you know if the defendant was arrested before?

One thing youre doing with questions like this is testing the knowledge of the person. If Rev. Graham didnt know that D was arrested 5 times in the last 3 years, he probably doesnt know him very well, maybe not well enough to testify about his peacefulness. o Mueller thinks this is a pretty poor proxy of knowledge of a person. I dont know if anyone in this class was arrested, or any of my friends have been arrested, but I can still testify to their witnesses. What does this type of question prove? o Suppose its true that Don beat his wife and Rev. Graham didnt know about it. 1) Knowledge about the defendant. 2) Calls into question the judgment of the witness. o What if Rev. Graham says yes? Impeachment. If he testifies that hes a peaceable person but he beats his wife maybe hes either (1) not being honest; or (2) he has bad judgment. You cant afford to call a witness about Rev. Graham if you have a speckled past, if you have committed other crimes and the Rev didnt know about it because that will (1) admit testimony against your character and (2) impeach your character witness. o

Problem 5-E Shes a Known Thief. Gretta is charged with shoplifting and store times without tags are found in her purse. Gretta claims she had the items to change into after work, and prosecution seeks to introduce testimony that Gretta has stolen previously, has a reputation for shoplifting, and has prior convictions for theft. o What we are trying to prove here is that Gretta stole at a particular time and place? o None of the information is admissible. o If Gretta takes the stand and testifies that she has never been in trouble, she opens the door to introduction of evidence about prior convictions. Although all evidence might be relevant, the prior convictions are most likely to pass the FRE 403 balancing test. o Suppose Gretta sues the store for violating the Fourth Amendment, then all evidence contributing to reasonableness comes in (assuming the Amendment applies). o She hasnt been accused of being a thief. Theres no crime of being a thief. Shes being accused of a particular theft. Stealing something is a crime, being a thief is not a crime. Often people who are charged w/ crimes of theft and/or drug crimes claim that theyre being picked on by police. o I was walking around, not doing anything wrong. I picked up a bottle and walked near the exit and the police arrested me. o So if youre claiming youre just being persecuted by police, and thats why you were arrested, the courts will say well, if youve done this before, that explains the police actions this time. Sometimes prosecutors can get in evidence when the defendant alleges persecution by the police. Civil cases where character is an element Negligent entrustment o P bringing suit under respondeat superior, it is worth it for him to add a negligent entrustment account. o R/S = must prove employment, scope, negligence by employee o N/E = must prove empllyment, scope, negligence + employer knew the driver had a bad driving record. o So adding negligent entrustment lets you prove all the previous accidents the driver has had. Its basically an excuse to get in previous bad acts. Without the N/E the plaintiff would not be allowed to bring proof of previous bad acts. o I like this idea. This is really smart to me. Wrongful death o This puts people in a dilemma. i.e. dead husband, and you have proof that he gambled, and drank, etc. do you really want to say the person who I ran over and killed who is your husband and father was really a drunk, and a gambler, etc. so youre really better off without him. o The character of the decedent bears on the amount of damages youre allowed to recover. Child custody cases Problem 5-F. Drug Sale of Scam? Whether Gore intended to sell cocaine. The proof he had the intend stems from testimony from his ex=-girlfriend that he engaged in many other sales of hashish/cocaine. Does selling hashish previously tend to show that youre likely to sell cocaine? o Courts say yes. Even if its a different drug it is said to bear on intent.

FRE 404(b) = the prosecution shall provide reasonable notice in advance of trial, or during the trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence to introduce at trial. o no obligation to rule on a pre-trial motion in liminy to exclude bad acts. o Often time the trial court says it depends on how the trial goes o If D offers to stipulate that theyll not raise an issue during triall, the judge may make a decision on whether or not to exclude.

Problem 5-G. He Came Running in All Hunched Over. Used to show identity/proof of modus operandi. o 1) Unusual behavior o 2) Extensive resemblance. o If we have both of these things than it is admissible. Here it seems like this is not unusual for bank robbers. However, the judge found that because of the temporal connection and the similar times of the day that each of them happened. Mueller doesnt think this is unusual for bank robbers at all.

Reverse 404(b) evidence When D offers proof that someone else did the crime b/c someone else committed similar crimes, does D have to meet the same standard that the prosecutor would have to meet? Most of the time the court doesnt like this, and wont admit it. o Why do they have a problem with this? this raises the burden for prosecutors. We tell Ds we dont want you to have to defend your whole life. We also dont want prosecutors to have to prove that Ds did it beyond a reasonable doubt but aldo to disprove every other plausible person who may have done it. o Also dragging people who have never been charged with an offense through the mud and theyre not there to defend themselves. o These two can co-exist. The prosecutor could prove that D committed the crime beyond a reasonable doubt and at the same time have proof by a preponderance of the evidence that someone else may have done it too. Problem 5-H. The Corrupt Judge. Using the RICO Act, prosecutor can get in the prior acts to show the pattern. Can use other acts to show there was another plan, scheme, to commit these acts. Problem 5-I. It was an Accident. If you get enough instances of significant injuries tha require hospitalization, it suggests something other than accident. Rule 404 says you can use it to shoe absence of mistake or accident. United States v. Miller (pg. 423 n. 2) Charge of stealing a Chevy which was a series of events including kidnapping a policeman and robbing a bank.. Courts invoke the idea of inextricably intertwined offenses in order to provide context for the charged offense. But at some point you reach a limit. In the Miller case, the court said you hve a lot of proof that guy stold Chevy, you dont also have to show that they kidnapped a cop, etc., while they did it. United States v. Huddleston, 485 U.S. 681 (1988) 1. Court does not have to make any preliminary finding as to whether D committed the prior offense. 2. Jury decides whether D committed the prior offense by a preponderance of the evidence standard. a. Prior conviction no problem. You committed the prior offense. b. No prior conviction judge only have to figure out whether it is probative and whether it fits 404(b) then jury decides whether . 3. Prevails in federal system Character in Sex Offense Cases W/out 412 it would be open for Ds to say Im claiming consent and the way Im proving consent is to show that she consented on other occasions. o What type of proof woiuld they be to shoe specific instances? Either under 405 (element of crime) or 404(b) (shes done the same thing before, and that bears on what she did this time which shows that it is not rape.) Thankfully, we do have Rule 412. o Reason for it is that it was so hard for women to prosecute rape cases. o Just b/c she consented previously, it doesnt mean that she consented on this occasion.

Problem 5-J. Ordeal of Leslie or Fred. Freds testimony that he and Leslie had consensual sexual relations once during the previous summer. o This is admissible under 412(b)(1)(B) o However, one instance a year ago is very thin, and therefore its relevancy may be diminished. o That is why the Rule says that its admissible if otherwise admissible, therefore it has to meet the other relevancy standards. Gregs testimony o Opinion testimony. o This is not admissible b/c the rule says evidence offered to prove the victims predisposition. o This cant get in at all. Thomas testimony that he had sex with Leslie earlier in the night. o Freds defense is consent, not that he didnt have sex with her. o You have to make the argument that what I did to her couldnt have resulted from any bruises so you get Thomas to testify, maybe they caused the bruises. o Look at CLASS NOTES: 10-18-10 Rule 406. Habit; Routine Practice 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. Habit = behavior that is specific in nature, not general in nature like character. Unconscious behavior. Problem 5-M Death on the Highway This is something that does not qualify as habit because it is not specific enough. This is probably character evidence which would not be admissible. Evidence was excluded in the real case. Problem 5-N The Exploding Can. This is likely to be admissible. It was ruled admissible in the real case. How is habit proved? Originally 406 had a second sentence saying that habit may be proved by testimony in the form of an opinion or by specific instances of conduct. o Mueller doesnt know why they took this out, but this is how you prove habits. Problem 5-O Question of whether an illegal alien was properly served. INS doesnt produce the actual agent who says that he served the alien. Instead, INS wants to have a different agent testify to the SOP of the INS. This particular agent has never personally served this type of warrant, and his knowledge of the procedure is based solely on what hes heard from other agents. Agent is testifying not to the truth of this particular matter, but rather to the process by which such a warrant is served. Its up to the jury to make a decision as to whether in this particular instance the procedure was followed. In the case upon which this problem is based, the judge allowed this into evidence Note 2: Law favors institutional habit over personal habit. Can you prove a habit of intoxication? No, unless you truly are an alcoholic. It needs to be viewed as almost constant drinking, involuntarily, not a personal choice. Can you use habit to prove violent behavior? Usually not. It may come in under 404(b) as proof of animosity or intent, but its not habit evidence. You dont beat somebody the same way you signal a left hand turn, it is a personal thing. Tuer v. McDonald, 701 A.2d 1101 (Court of Appeals of Maryland 1997) Rule FRE 407 = We have this rule in order to avoid penalizing people from making things safer. In product liability cases, whether or not you need this rule depends on where you are in the run of the product. If you dont make a change but you could make a change what happens?

Conduct begins to look purposeful and malicious. There is such enormous incentive to make changes that you dont need the incentive of this rule in order to behave responsibly. In the hospital setting, the concern is different b/c youre not talking about thousands and thousands of lawsuits youre looking at only one or two lawsuits. The exception the plaintiff wants to invoke: o Feasibility and Impeachment o Did the defendant really controvert feasibility in this case? The defendant said it was not advisable to restart the Heparin. o The hospital was worried about the patient bleeding to death if the Heparin was in their system and if they punctured the artery because the Heparin is an anticoagulant and the blood wont clot. Why does the court decide that feasibility is not controverted? o Court took the narrow view and since the hospital did not say it was impossible to re-start the Heparin it did not controvert feasibility and therefore it is excludable. This is a very difficult issue. negligence and feasibility are often indistinct issues. The feasibility of a precaution may bear on whether the defendant was negligent not to have taken the precaution sooner. 2 Weinstein Federal Evidence 407.04[3]. MUELLER THINKS THIS IS THE CORRECT APPROACH (THE NARROW APPROACH). o o

Note 3, Pg. 448 If the case is removed to federal court, he cant prove subsequent Erie problem? Is this a procedural or substantive rule? What are arguments for this to be substantive (other than the York standard that anything that affects the outcome of the state if substantive?) o This is about out of court conduct, not just about how you prove things. o Not so much about getting at the truth, but how people behave outside of court. A change in outcome if affected by a rule that is in place to affect out of state conduct so that makes the rule substantive in its nature. The difficulty in arguing that the federal court should apply the state rule and that it that Congress enacted the FRE as statutes and Commerce is affected in product cases so using the federal rule is affected as D. Settlement Negotiations 1. Civil Settlements Rule 408. Compromise and Offers to Compromise (a) Prohibited uses.Evidence of the following is not admissible on behalf of any party, when offered to prove liability for, invalidity of, or amount of a claim that was disputed as to validity or amount, or to impeach through a prior inconsistent statement or contradiction: (1) furnishing or offering or promising to furnish or accepting or offering or promising to accept a valuable consideration in compromising or attempting to compromise the claim ; and (2) conduct or statements made in compromise negotiations regarding the claim, except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. Permitted uses. This rule does not require exclusion if the evidence is offered for purposes not prohibited by subdivision (a). Examples of permissible purposes include proving a witness's bias or prejudice ; negating a contention of undue delay; and proving an effort to obstruct a criminal investigation or prosecution. Problem 5-P. Two Potato, One Potato. Is what he said to the farmers excludable or not? There is no dispute or controversy at this point, and the rule only kicks in when there is a dispute when P is saying youre liable, and D is saying were not liable. This is more like an admission. If theres a compromise b/c theres no dispute then you have an admission. Fully admissible. Problem 5-Q. This is criminal; You cant exclude civil settlements here. 408(a)(2) - except when offered in a criminal case and the negotiations related to a claim by a public office or agency in the exercise of regulatory, investigative, or enforcement authority. o There are certain statements not covered by the rule in criminal case

Soyes, the rule applies in criminal cases b/c they have an exception for statements offered in some criminal cases. However, the 408(a)(2) exception does apply here b/c they are statements made to a public office or agency so it is admissible after all in the criminal prosecution. Bottom line = Rule applies in criminal cases, but it does not apply here b/c it was made to a regulatory agency. The statements that he made to the civil authorities in Indiana are admissible in thecriminal prosecution. The fact that he paid the fine can not be used against him because 408(a)(1) offers no exceptions like 408(a)(2) does.

**CLASS NOTES - 10.20.10** FRE 410 Problem 4-C. An encounter gone wrong. pg. 186 o Can Kobe plead guilty to the criminal case or would that harm me in the civil case? the answer we arrived at in this case was that it would count as an admission and it would be admissible. o Condiser if Kobe plea bargained in this case. Rule 410 says that certain plea bargaining statements are exludable. o Rule 410. Inadmissibility of Pleas, Plea Discussions, and Related Statements Except as otherwise provided in this rule, evidence of the following is not, in any civil or criminal proceeding, admissible against the defendant who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceedings under Rule 11 of the Federal Rules of Criminal Procedure or comparable state procedure regarding either of the foregoing pleas; or (4) any statement made in the course of plea discussions with an attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statement is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record and in the presence of counsel. Basically, all of these things above are excludable if they DONT result in a plea. If they do result in a plea and the plea is withdrawn, they are also excludable. If the plea does not stick they are NOT excludable. Problem 5-R. I Used His Stuff. o They ask him to sign a waiver of Miranda rights. D refuses to sigh the waiver. Agents are there to investigate crime and gather evidence D and Ds lawyer are there to try to bargain a plea. o Can statements by a D to an arresting agent ever be excluded as plea bargaining? This change, it must be emphasized, does not compel the conclusion that statements made to law enforcement agents, especially when the agents purport to have authority to bargain, are inevitably admissible. Rather , the point is that such cases are not covered by the per se rule of [FRCrimP] 11(e)(6) [which was and is identical to FRE 410] and thus must be resolved by that body of law dealing with police interrogations. comment by the Criminal Rules Advisory Committee o When Ds talk to agents, mostly thats admissions, and not plea bargaining. However this doesnt always remove the problems because sometimes prosecutors want these agents to participate in plea bargaining like the facts in thie problem. Problem 5-S. Just Keep Them Out of It. o 2 lawyers for 2 Ds are talking to US Attorney in a convorsation that involves their two clients. Clients are trying to save their wives and girlfriends by saying they were with us, but we did it, they didnt do anything. o Prosecutor says okay, Ill release them and they wont be charge with anything. o Is this plea bargaining or admissions? This looks like plea bargaining, but theyre not trying to get themselves off the hook, theyre trying to get their girlfriends off the hook. FRE 410 doesnt contemplate bargaining for someone else, it only contemplates bargaining for themselves. o In most of the cases that have considered this = the deal is admissible. The deal is well incriminate ourselves in exchange for letting the innocent bystanders go. Rule only means bargaining for your own release, not someone elses release.

IMPEACHMENT OF WITNESSES United States v. Abel, 469 U.S. 45 (United States Supreme Court, 1984) o Prosecutors attempting to counter attack (attack the attacking witness that hes a member of the Aryan Brotherhood.) o What about the fact that the Federal Rules of Evidence dont specifically mention bias? Body of tradition is not overruled by silence, by adopting a set of rules that simply dont mention that body of learning. Maybe you throw it out by expressly rejecting it, but if the rules are silent on that point it is not thrown out. Rehnquist uses Rule 611(b) Scope of cross-examination. Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. o What about Rule 608(b)? Rule 608 (b) = Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which character the witness being cross-examined has testified. The defense is arguing that the extrinsic evidence of Mills behavior = he joins a group. Thus it is excludable under Rule 608(b). Rehnquist says that Rule 608(b) only applies to specific incidents introduced for the purpose of showing character for truthfulness. Were not attacking Mills character for truthfulness here, were saying, Mills, youre biased b/c youre a member of this group. Act of affiliation that shows bias. o BOTTOM LINE OF THIS CASE = You can attack a witness by showing bias So how can you show bias? Either through cross examining a witness or by extrinsic evidence (calling another witness to testify to things that show that the first witness is bias). Problem 8-A. The Hired Gun Defense counsel goes through the introduction so he can just get everything out in the open. I dont want to pull the wool over your eyes, ladies and gentlemen of the jury, were paying this guy. This actually kind of helps them out because if he isnt getting paid, its even more suspicious. Plaintiffs counsel is attempting to push the inquiry a little further in order to show bias. Enlarging the inquiry an regaining the rhetorical initiative. Plaintiffs counsel is trying to make this a point on his side. How should a court deal with this? o The courts have to cut it off at some point: Total compensation okay to question about that. Total compensation you get from this particular clinet over the course of a year okay to querstion about that. Whats every case youve ever testified in and the toal amount of money youve ever gotten. this probably goes too far. o Witnesses in criminal cases are taking on huge personal risk so the government pays thee witnesses. The government will sometimes bring out that the witness is paid ofr his testimony in this case. Can the government show that the witness promised to tell the truth when they entered into the deal with the witness? i.e. were going to pay you $20,000 and youre going to tell the truth NOT were going to pay you $20,000 and youre going to say the defendant did it. Most courts wont let the government bring out the fact that the witness promised to tell the truth. They think thats going too far. Unless the defendant brings it up then you can bring that up. Where does the court draw the line? Bias can be anything: friend, ex friend, being paid, being under the thumb of prosecutor b/c there are pending charges against the witness. Sensory and Mental Capacity this is not mentioned in the rules either (just like bias). Rule 601. General Rule of Competency Every person is competent to be a witness except as otherwise provided in these rules. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law. . . . except as otherwise provided in these rules = ONLY judges, and jurors in order to impeach their verdict. People who are spouses of parties, parties themselves, people who have been convicted as a felony, children, insane people, etc., etc., etc.

EVERYBODY CAN TESTIFY. BUT . . . lack of capacity is now an impeaching fact. Concerns about privacy though dont want these people to have to answer questions about anything theyve ever said to a shrink. We want something beyond the fact that youre seeing a shrink to play into it.

**CLASS NOTES 10.22.10** Impeach by Character for Truth and Veracity We do this three ways Rule 608 showing character for truth and veracity through non-conviction misconduct. Rule 609 showing character for truth and veracity through prior criminal convictions. United States v. Manske, 186 F.3d 770 (7th Cir. 1999) Broad view of Rule 608 virtually any conduct indicating bad character indicates untruthfulness, including robbery and assault. Narrow view of Rule 608 considers a crime as bearing on veracity only if it involves falsehood or deception, such as forgery or perjury. Middle View of Rule 608 behavior seeking personal advantage by taking from others in violation of their rights reflects on veracity. The court takes the middle view here. If youre going to ask questions of this sort, what are the responsibilities of the judge and the lawyers? o You cannot as a lawyer go up to somebody and say isnt it a fact that you lied on your tax return in 2007, and you lied on your resume, and you etc. etc. o Just asking the question is going to smear him b/c the jury will assume that there is a basis for it even if there isnt a basis for them. o You have to tell the trial judge that you actually do have a basis. There will be a preliminary ruling on the admissibility of evidence, so hearsay evidence is okay. o There has to be a basis for the questioning. How does bias fit into this case? o Being afraid and slanting that testimony because of your fear. o Bias is the way the defense got the extrinsic evidence into the case. Masters testimony consisted of extrinsic evidence saying he knew they were threatened by Pzincka because he was there. So this would not be admissible if just to prove non-conviction misconduct, but it is admissible to show bias. Rule 608 proving character for untruthfulness through non-conviction misconduct: Cannot use extrinsic evidence to show this kind of misconduct. There are few cases using this rule showing bad character through non-conviction misconduct because this type of behavior is not readily available to the other parties. The most popular way of showing bad character is using rule 609 because its easy to get this information o When the parties know something about each other though this comes up many times. Rule 609 Most recent amendment United States v. Lipscomb, 702 F.2d 1049 (1983) o All felony convictions are probative of credibility to some degree. Even convictions for robbery, theft Mueller thinks these have a high probative worth on veracity. Forms of violence, etc Mueller thinks this is less probative. o In most cases that generate appeals, the defendant is being impeached. o Prosecutor is resisting the trial court inquiring into the extrinsic circumstances Gordon v. United States o Gordon factors are what everybody looks to in applying the 609 test. (1) The nature of the conviction (2) Its recency or remoteness the rules built in remoteness is 10 years (3) Whether it is similar to the charges offense VERY important factor In Lipsbomc, the prior conviction was theft, he was on trial for drug offense If it is the same offense, there is a tremendous risk of prejudice.

When its the same crime hes now charged with, the jury will almost absolutely not make the distintion between the past offense and the reason for introducing it - to show credibility. (4) Whether defendants record is otherwise clean (convictions are presumably more probative of credibility if they show a continuing pattern rather than isolated instances) (5) The importance of credibility issues, and (6) The importance of getting the defendants own testimony. What can you ask once its okay to ask about convictions? o Name of crime o Date o Sentence imposed What can you not ask? o Underlying facts like the most horrid details of the crime. But sometimes the person being impeached tries to minimize the guilt, then further questions into it may be allowed. I didnt mean to kill the victim then its okay to ask what do you mean you didnt mean to kill the victim? didnt you cut him up into 56 little pieces? o

Problem 8-B When anyone other than the accused is the witness then the standard ir Rule 403. Rule 403 standard is cast in favor of admissibility you admit unless . . . The standard when the accused is the witness then its a reverse 403 standard. You DO NOT adis unless . . . Rule 609(a)(1) Rule 609(a)(2) evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment, if it readily can be determined that establishing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. o This is not limited to felonies you can ask about misdemeanor convictions is it readily can be determined . . . o The rule used to say if it was Accomplished by means of a lie o Defense bar wanted to change it to if and Element involved false statement o Prosecutioin bas didnt want to tighten it up that much

Problem 8-C 1. This clearly fits under FRE 609 (a)(2) and so its admissible. 2. This fits 609(a)(1) because its a felony. However, it probably doesnt satisfy the readily determination clause so it probably doesnt fit (a)(2) 3. Even though this souds like it fits (a)(2) this doesnt fit 609(a)(2) b/c in order to prove theft, you do not have to prove that she lied. It also doesnt fit (a)(1) because its a mindemeanor and not a felony. **CLASS NOTES: 8.25.10** 609(a)(2) crimes of dishonesty or false statement embraces both felonies and misdemeanors. o There is no discretion to exclude. That is to say if the conviction fits (a)(2) there is no discretion to exclude. o If it readily can be determined that establilshing the elements of the crime required proof or admission of an act of dishonesty or false statement by the witness. o Murder? If (a)(2) said involving dishonesty or false statement, it would be admitted If (a)(2) said the elements include dishonesty or false statement it wouldnt be admitted. It doesnt say either of these things. Instead what we have is readily determine that establishing the elements of the crime = somewhere in the middle. PROBLEM 8-C: A History of Lying o 1) Can only ask about it if it fits (a)(2). Yes you can ask about this because it readily can be determined that establishing . . . . o 2) Can only ask about this if it fits (a)(2) this fits(a)(2) o 3) No, it doesnt fit (a)(1) b/c it isnt a felony, and it doesnt fit (a)(2) b/c prosecuting for shoplifting cant readily be determined . . . cant make a ready determination that this would be part of the prosecutors case. o 4) Fits (a)(1) and (a)(2) since it fits (a)(2) (satisfies the ready determination test) it HAS to be admitted. No discretion.

5) Fits (a)(1) because its a felony, but not (a)(2) because you cant readily determine that it involved dishonesty or false statement. o 6) Fits (a)(2) this ls a little like shoplifting conviction but this one appeared on the fact of the indictment (alterning the meter to steal electricity) so the heart of the crime involves dishonesty or false statement. Problem 8-D. Faker Thug? o If you go under 609 you can only ask a limit of questions. where were you convicted? where was it? what was the crime? what was the punishment? end of discussion. o If you go under 608 you can bring out these three specific acts that he did. o The courts that have considered this question have said the prosecutor gets his choice Either you can ask about the acts under 608, or you can ask about the conviction under 609, but you cant ask about both. o In US v. Osazuwa, 564 F3d 1164 (9th Cir. 2009) The court said if the acts led to a conviction, YOU HAVE TO USE 609 AND YOU CANT USE 608. YOU DONT HAVE A CHOICE. o

Luce v. United States (1984) , Defendant did not testify at trial after in limine ruling that prior conviction was admissible, The defendant must testify at trial in order to preserve issue of improper impeachment by prior conviction on appeal. The reviewing court must weigh the probative versus prejudicial value based on the record. Why does the trial judge not want to rule on this type of thing? In limine ruling? o They have to rule in the abstriact. You dont want to take a position until you have to take a position. Judge doesnt know what the defendant is going to testify about, what prosecutor is going to use, or not use, etc. o Trial judges are always asked to rule in advance and they are always reluctant to do so. The issue in this case was when they do rule in advance and say Im inclied in this case, and D decides not to testidy because of this ruling, is D entitled to review? Mueller thinks this kind of impeachment is so horrible that there should be a mechanism of review even if D doesnt take the trial. o This does not mandate state courts to do anything. This only applies in federal courts o He doesnt like this ruling. He things there ought to be some sort of mechanism for review like; What the D counsel could do is tell the judge in a private conference this is what my client is going to testify to. Then you can put in front of the reviewing court what the trial judge took into account when making his decision. Specific Impeachment 1. Prior Insonsistent Statements Problem 8-E. Hes Trying to Sandbag Us. o The issue here is that Welch is gone, he cant clarify his story or respond to the charges that hes being dishonest. o Common law was that the counsel would have to remind Welch of the inconsistent statement he made earlier while he was on the stant. o 603 says = the opposing counsel doesnt have to gently remind the witness of anything. However, the witness youre attacking with Murphys testimony Welch needs to be around to respond. o The attacking party bears the risk. If the witness youre attacking is gone and cant be brought back to respond to the attack then you cant attack his testimony with an extrinsic witness. o So if you know youre going to call Murphy to testify as to what Welch said, what can you say to the trial judge? Judge, please tell Welch not to leave, not to go anywhere, tell him to stay in the court room building so that after Murpjhy has testified, if the other side wants to call Welch back to explain it hes still here. o The rule doent tell us but probably the attacking party pays the penalty. Either ask Welch about all these statements on cross-examination before calling Murphy (the extrinsic witness) as in the common law or make sure hts still around. United States v. Webster o The drafters of the rules wanted ALL inconsistent statements to be used as substantive evidence. o Congress instead instead refused to allow the use of ALL prior inconsistent statements and instead only allowed the use on inconsistent statements given under oath in a prior proceeding.

o o o

So where are we now? Some prior incons statements can be used to impeach Some of them can be used both as substantive evidence and used to impeach Cant call a witness knowing hes going to testify against you and then give his prior inconsistent statements which otherwise would be inadmissible, hoping the jury will ignore the judges instrictions and use the statements as substantive evidence and not just impeaching evidence. Mueller = the test should not be good faith but is this witness essential to the prosecutors case. 801(d)(1)(a) = says that anything given under an oath, in a hearing, is admissible as substantive evidence. so you can use grand jury testimony, preliminary hearing testimony. the only thing it doesnt include are unsworn statemtns and statements given to cops in the policehouse station.

**CLASS NOTES: 10.27.10** Harris v. New York, 401 U.S. 222 (1971) What is the justification for using the Miranda barred statement here? o Miranda says we wont allow you to testify falsely in a case, all were doing is saying you we cant use your preMiranda statements to convict. o This applies to the 5th Amendment (basically the prosecutor can use 5th Amendment violations for impeachment purposes). o 4th Amendment Mapp is the basic 4th Amendment exclusionary case. Havens is like Harris in that is says the prosecutor can use violations for impeachment purposes. o Harvey modifies Massiah w/r/t violations of the 6th Amendment. What is the concern in Miranda? o Is the concern coerced confessions? If so, what should be the solution? o Miranda is all about cleansing confessions. IT says to cops get confessions but under the ground rules. o It still allows cops to pressure defendants to confess, we just require them to give Miranda warnings. What is the strongest argument you can make that Harris is wrong? o It incentivizes police misconduct. The incentive is to get as many statutemts as you can and if some of them get thrown out, so what. You can still use them to impeach. What is the strongest argument that Harris is right? o Miranda did not alter the basic statiopnhouse dynamic which was get a confession from this guy at all you can. o It created some rules though. But police still dont know where the line is, and when to stop. o If our concern is police behavior in the police house, the cop had so much incentive even after Miranda and Harris that he wont alter his behavior after these cases were decided. Why is this in the book? o b/c this is one of the biggest issues you face in impeaching in criminal context. o Moral principle = we dont want the cops to act like the Gestapo. Jenkins v. Anderson, 447 U.S. 231 (1980) FRE 801(d)(2)(B) = tacit admissions o We read the Hoover case where the girlfriend said that aint nothing, you chould see all the cash we have in our hotel room. When D didnt say anything the question was whether tht was a tacit omission. o Doyle is the case where D claimed he was a buyer, not a dealer. When the prosecutor asked whether he told the police officer that he said no. The court said you could use his silece on the matter to impeach him AND could be used as substantive evidence. Now were talking about silence before Miranda warnings, in Doyle it was after Miranda warnings. So what police can do is arrest a defendant, sit with him for 5, 10, 30, minutes, etc before giving Miranda warnings. If he spills his guts after Miranda warnings, you can use it against him. If he doesnt speak before receiving Miranda warnings you can use that against him. Contradiction Contradiction is new meth o Bias o Bad Character for truth and veracity 3 ways to do that o Prior inconsistent statement = takes us htrough Miranda o Now were onto contradiction. Contradiction offering proof that something the witness said on testimony was wrong. Contradiction is not mentioned in the rules. What can you contradict? 3 kinds of testimony.

o Testimony that tends to prove a substantive point. o Testimony that tends to prove some other impeaching point. o Testimony that Problem 8-F. o Kinneys testimony = This shouldnt be admitted. Contradicts on the edges but doesnt contradict on the direct point which is July 14th. But, it is collateral impeachment b/cause you are still asking, well okay, he was in Portland on June 27th, but what about July 14th, on the day of the robbery. o Sammuels testimony = this should be admitted becsue it is directly contradictory to Ds testimony.\ o However, errors in allowing impeachment on collateral matters are not likely to warrant a reversal. o However, I nthe real case this is based on, the D did get a reversal. Could have caused jury to reject Ds alibi.

**CLASS NOTES: 10.29.10** United States v. Havens, 446 U.S. 620 (1980) Whats the difference between Harris and Havens? What does this case add to Harris? o Harris says you can use 5th Amend material to impeach the defendants testimony. o This case says you can use 4th Amendment excludable material to impeach testimony induced on cross-examination. Justice Brennan goes ballistic. He characterizes the problem as the majoritys holding here allows the prosecutor to opens his own door. Its one thing to say that D can sacrifice constitutional protections by testifying on the stand, its another thing to pass control of the exclusionary rule over to the prosecutor. o Mueller agrees with the Brennan dissent even though he complains about Brennan constantly in class. He thinks hes right here. o Havens is the only case that says the constitution doesnt block the use of evidence to contradict testimony adduced on CROSS examination. Prosecutors can open his/her own door! o Mueller doesnt think the majority even had to get to that point b/c the testimony the D gave on direct is exactly equivalent to what he said on cross, he just used different words for exactly the same thing. So they could have said it was proper b/c it contradicted what was said on DIRECT testimony! Problem 8-G Mueller thinks this should NOT be admitted, but it probably would be admitted by invoking Havens. If the only thing that blocks this question that it be reasonably related to direct, it is probably a proper question. However, we should not allow constitutional doctrines to poison/undermine EVIDENCE law. We should try to keep them separate, sop just b/c evidence obtained in violation of 5th or 4th Amendment could have gotten in, doesnt necessarily mean that ALL evidence could get in. Evidence law is a WHOLE LOT MORE IMPORTANT than Constitutional law if were interested in fairness in criminal trials. Havens is about adjusting constitutional policy to regulate police behavior. The reason for evidence law is fairness ant to only make sure guilty parties get admitted. What they do on the constitution front should not infiltrate what they do on the evidence law front. People are blinded by the bright light of constitutional law so they say Oh, if thats what were doing in the constitutional area, thats what we should do in the evidence area. This is like the Crawford doctrine and hearsay. o REPAIRING CREDIBILITIY the last part of the impeachment chapter Cannot repair credibility until credibility has been attacked. Must repair AT THE POINT OF ATTACK United States v. Medical Therapy Sciences o can you use character evidence to repair the credibility of a witness who has been attacked bor bias and giving false testimony? o No, you cant use good character evidence to repair attack for bias. if you think about it, bias is irrepairable. Calling a good character witness is not responsive to an attack of being a friend, family member, same profession, etc. o In this case, the court is good at showing that beginning to show bias can lead to what looks like an attack on truthfulness and veracity. So even if it starts out as an attack for bias, it can become truth/veracity attack. o Ways to show lack of veracity

Prior untruthful misconduct Prior convictions Call Coach Jones this guy is a liar, he is always a liar, I would not believe him under oath If the attacks these forms, OF COURSE you can call a character witness.

o When can you offer prior consistent statements?

Problem 8-H She handed me the Heroin Facts: Case involves a heroin transaction involving two women. Both women testify that Clair handed the heroin to the UC officer, but the officer testifies that although Clair initiated the transaction, Arla handed it to him. Defense accuses him of fabricating evidence in order to implicate both women in the transaction. Issue: Did Turner already have the bias/motive so the prior consistent statement did not repair? o Motive = get two women for the price of one. If you apply the pre-motive standard to cops statements, it is easy to say theyre already motivated!! If you say that theyre already motivated at the time the investigation starts, you will never be able to get post-arrest statements in by police officers becase you can say they always had the motive. The thing that saves this for the prosecutor is the attack for lack of memory. So the lesson here for defense lawyers = confine your attack to lack of memory. Lets re-visit Tome v. United States and talk more about 801(d)(1)(B) = offered to rebut a claim of improper motive or influence. Tome says it has to be a pre-motivation statement. Mueller thinks its okay to use a prior consistent statement as both substantive purposes and repair purposes and vise-versa. Half the courts say Tome only applies to the substantive use of consistent statement. If all youre doing is repairing youre not subject to Tome and you can do what you want with the pre-motive requirement. Other courts say you can only use as substantive evidence if it is a pre-motive requirement. w/r/t attack for lack of memory, there is no pre-motive requirement. Not subject to Tome. Other ways to get prior consistent statements in is to rebut attacks on: o Improper motive/influence, o Memory, o Never made inconsistent statement, o You made prior statement but it was not inconsistent. CHAPTER NINE OPINION AND EXPERT TESTIMONY; SCIENTIFIC EVIDENCE A. Lay Opinion Testimony Rule 701. Opinion Testimony by Lay Witnesses - If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, and (b) helpful to a clear understanding of the witness' testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. CLASS NOTES 11.01.10 It used to be the case that we required witnesses to testify to facts, and not opinions. We gave up trying to restrict lay witness testimony in that way. Differences between fact testimony and opinion testimony Problem 9-A o The issue here is: o If you were trial judge would you allow her to testify? o The case on which this problem is based did not allow the testimony. It was such a central issue in the case and you were asking people to infer a conclusion based on . . . o Mueller thinks this is a very close case though, and could go either way. Problem 9-B o I would guess thats him over there = guessing is not enough to get in. If he had said thats probably him that would have been good enough. I think is good enough. But you cant guess. o To take her daughter to ballet lessons = the little kid is in a ballet outfit, she goes every Tuesday, or Saturday morning. Thats going to bass muster, it will be admitted. o Speed of the car was 35 mph = this is admissible. We all have had enough experience with automobiles so that

o o

o o o o o

courts will allos us to testify as to what the speed of a moving vehicle is. But the law says you can go only 20 if youre within 500 feet of a school = Lay witnesses cant give testimony on a legal doctrine ut thats the hornbook rule. This would probably get in because he lives there. there was a strong smell of pot = Now were getting to something thats an important issue in the case. Negligence, whether or not he was under the influcence of marijuana, etc., Have to establish that the witness known what pot smells like. Im sure thedriver was smoking a joint. had been anyway. You can sometimes testify as to peoples actions even if you didnt see them do it. Would you say he was stoned? = we also allow ordinary lay witnesses to testify as to the level of intoxication. He had a real guilty look = this goes too far. This is way too distant of a conclusion. like he was afraid he was going to lose his license this goes way too far. No court would allow testimony for this.. Injuries and damage to the vehicle =

B. Expert Witnesses Rule 702. Testimony by Experts - If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case. Rule 703. Bases of Opinion Testimony by Experts - The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in assisting the jury to evaluate the expert's opinion substantially outweighs their prejudicial effect. Rule 704. Opinion on Ultimate Issue - (a) Except as provided in subdivision (b), testimony in the form of an opinion or inference otherwise admissible is not objectionable because it embraces an ultimate issue to be decided by the trier of fact. (b) No expert witness testifying with respect to the mental state or condition of a defendant in a criminal case may state an opinion or inference as to whether the defendant did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. Rule 705. Disclosure of Facts or Data Underlying Expert Opinion - The expert may testify in terms of opinion or inference and give reasons therefor without first testifying to the underlying facts or data, unless the court requires otherwise. The expert may in any event be required to disclose the underlying facts or data on cross-examination. **CLASS NOTES: 11.03.10** Problem 9B continued o I think she was upset about daughter being hurt Probably a pretty easy supposition Courts do allow lay witnesses to testify to the visible emotions, external signs of mood o Looked like a broken back Pretty clear thats a medical opinion that you cant say You could however describe responses, ie. they were holding their back or back was bleeding, etc., but not a diagnoses o Car was totaled Need an insurance adjuster for that Maybe if it was a flattened tin can you could say this though o Approx value He couldnt give this but owner could o In a hurry Ok o Did they do everything they could ok o Assuming we could ID perfect driver Courts dont like such hypos

Courts dont want to know what you imagine Expert testimony o 3 basis Best - first hand knowledge 2nd best - information learned at trial Sometimes bring him in and feed him other witnesses testimony b.c you dont want to pay him to sit and listen for 3 days Outside data o Problem 9C - they saw it the way I did Doc speaks with 11 colleagues Conduit problem - you can use what others have told you but you cant just state they told you Have to take into account the info they told you and form your own opinion Proving local standard is almost be necessity verbal Its a set of practices but to find it you have read it or talked about it Problem for P trying to get outside doc to testify to local standard They have to talk to local docs and try to pick up local standard Saying heres the local standard and the way I found out is talking to others and I gleaned xyz from those consults Thats ok, its what we want them to do to determine local standard Necessarily some element of hearsay involved Subtle distinctions - we say experts can rely on hearsay but they cant just parrot hearsay - must glean that info and form own opinion Could cross on the basis of that testimony - all docs they talked to were barred from practice or not local, you could question on that But saying they all see it the same way is going too far o Rule 705 Hypo questioning method All the emphasis on lawyers talk, expert is anti climax Not putting on a good show (drama), and not good at educative function of testimony Direct questioning method Vior dire of experts See my cousin vinney Happens often Challenge credentials before witness says anything Also can challenge basis for knowledge of case Dont want a failed voir dir, see again mcv Attempts to misuse vior dire to impeach o Ie. isnt it a fact that 3 of 4 people you talked to have a different view than you o Thats not a disqualification - others will often disagree o That would be an impeachment question - other attny must object Voir dire just about qualifications and basis for testimony Frye Advantage of Frye standard is it gets the trial judge off the hook, he can put responsibility on the experts peers o Put the onus on someone else Judges could reject without having to determine it was quality testimony Rule 702 Mueller thought that 702 didnt overrule Frye - the advis. Com. Notes didnt even mention Frye o Not a standard, just a description Could conclude there is no standard, any scientific info from a qualified witness gets in Daubert Says Frye is overruled by 702 Blackman standard seems to have 3 elements o 1 - reliable o 2 - fit o 3 - subject to 403 Ie. even if reliable and fits can be excluded under 403 (as is all evidence) Took word in the rule (scientific) and pumps it up to be a normative term

Judge cannot side step anymore b/c he must determine reliability o 5 things he can think about 1 - tested 2 - peer review 3 - known rate of error 4 - standards 5 - general acceptance o Downing case Also talks about a couple other points Nonjudicial uses Novelty and relationship to other methods Qualifications Types of error Existence of body of literature o Blackman didnt meant to limit to his 5, so downing extras still ok to consider Colorado - Shreck standard o Similar to daubert o Reliable o Qualified

Useful to jury

**CLASS NOTES: 11.05.10** Kumho Tire Company v. Carmichael What was the choice the Supreme Court faced in this case? o Whether or not to extend Daubert to all expert testimony. Under 702, the court says, we cant say there is one standard for science, and another standard for technical evidence. There is no line between scientific testimony and other expert testimony. How do you classify one or the other? The court said that the distinction was too arbitrary so we need to have the same standard for both. o Cant draw a line between them. The legal reason for applying 702 to all testimony is that the text of the Rule doesnt distinguish. o The problem with this is that Daubert said it was just scientific evidence. The practical reason is that it is impossible to distinguish scientific evidence from other expert testimony. Discretion = central point in Kumho Tire o Discretion is not even present in the Daubert opinion. o It is in Kumho 9 times. Why? Because if you apply the criterium to all testimony as disparate as perfume sniffers to tire inspectors, there HAS to be FLEXIBILITY for the trial judge. o Trial judge has discretion on two points: 1) Reliability. Whether the theory is reliable, whether the method is reliable. Whether the relevant Daubert factors have been satisfied. 2) Daubert criteria. The trial judge has discretion to choose which Daubert factors to look at. o The court latched on to this principle of discretion which it first pulled out in Joiner (see below) o If trial judge has discretion, what happens on review? There arent very many reversals. Mueller (in note 3 on pg 651) argues that this isnt a good way to do it. He thinks that appellate courts are better than trial courts to determine whether or not expert testimony is reliable or not. Were telling trial judges, you have to confront the validity of science, and here are the criteria we want you to apply. and we want you to be really tough, and careful, in making this determination, but Were not going to second guess you. We probably wont overturn whatever decision you make. Mueller thinks Appellate courts need to play a bigger role in this process, and give the trial judges more guidance

General Electric Co. v. Joiner First case decided after Daubert. Decided before Kumho tire. SCOTUS says that expert testimony is not presumptively admissible, rather trial judge has discretion.

Rule 702. Testimony by Experts If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the product of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case when Daubert was decided, 702 ended with the word otherwise. Now, they have clarified these with (1)(2)(3) Mueller says that in his opinion, 702 (2)&(3) are pretty much contained in Daubert. w/r/t (3) Kumho tire says what reliability means is not just that you have a reliable method in theory, but that you have applied that reliable method reasonably for the particular case. w/r/t (1) it isnt explicitly in Daubert, but it is implicitly in Daubert. The A lot of opinions after Daubert have decided that (3) is for the jury to decide. A lot of what this comes down to, is did you follow laboratory protocols. However, 702 changes that, and now leaves it to the judge to decide whether (3) has been met. Bottom line = 702 fairly read captures the idea of Daubert. The one thing it changes is that it gives the decision to the judge instead of the jury.

2. Modern Science in the Courtroom Problem 9-D. They Become Anxious and Guilt-Ridden Expert testimony from Dr. Burton saying that what the kid did in this case is characteristic of sexually abused children which would explain This testimony would be admitted in every state. Should we be putting this kind of testimony in front of juries? o The jury will transfer an account of what happens and just say that is the case in this case. Juries would shift too easily from the general (this is how abused children behave) and plant it on the particular. Why do we admit it? Is any of it inadmissible? o The part on page 658 that says she fits the exact pattern and paired with these kids dont lie. o Should only testify generally about these tyes of victime. o If she used the name of the syndrome that would probably be excluded too. Courts usually dont like exterts to testify to using the exact name of the syndrome because it sounds too much like youre diagnosing that particular patient. Genreally courts have rejected the defenses first and second objections. w/r/t the third objection most courts have concluded that it can help. w/r/t the fourth objection this objection has some traction. Dr. Burtons testimony comes too close to telling the jury who to believe. w/r/t fifth objection there is traction to this objection as well. There is some notion that this simply is going to overwhelm juries and that as a result of a battle of the experts, the juries will just throw in the sponge. In Bledsoe the California Supreme Court ays that the job of rape counslers is not to establish whether or not the event actually happened, but to make them feel better. RTS is a theraputic tool, and shouldnt be admitted for evidentiary purposes. **CLASS NOTES: 11.08.10** DNA Evidence We have an opinion in Colorado that is similar to State v. Moore. They did this to lay out a lay description about the way in which DNA testing works. The two most common techniques are PCR & RFLP RFLP = highly discriminating technique generating astronomical numbers (1 in many billion people). PCR = you can take a very small sample, multiply it and test it, but it doesnt produce quite as discriminating results. Problem 9-E. We Found a Match o Objection 3 = a great deal of fighting goes on over this area. See Note 3 on pg 666 to see some of the ways in which this technique can go awry a lot of problems can happen b/c lab of lab testing techniques. The lab protocol goes to the jury under Rule 702 as a matter of admissibility. o Objection 2 = whether the particulat technique is scientifficllly sound. i.e. RNLD, PCR, etc (there are still more out there). So every time a new technique comes alont, there has to be a new opinion that analyzes the new technique.

Objection 4 = statistical analysis different frequencies in different population subgroups? Item 4 on pg. 667 the ceiling principle = take the subgroup where it was most common, that woiuld minimize the impact of the evidence. i.e. err on the side of making the mistake in favor of the defendant. o Objection 5 = who do you compare the defendant with? Pick a subgroup in which the particular match is most common so as to minize whatever type of error there might be. Its not like you can assume that the person who did the crime is definitely a Hispanic, or a White, or a Black, etc. o Objection 6 = Collins revisited. Should we put in front of jurors this DNA evidence or is this going to blow the jury out of the water causing them to forget about credibility issues, distracting them from other evidence, and they will end up fixating on the 1 in a billion statistic? Argment about what to do with these numbers that you come up with. o If you give the numbers = theyre astronomical numbers, and likely to prejudice the jury, or confuse the jury, etc. o If you dont give the numbers, you just say theres a match = this is even more prejudicial. The jury will just think the D is automatically guilty. So the real question I guess is how definitive is DNA evidence? Is it better than what we used to BAYES THEOREM o

State v. Moore Brief Fact Summary. Defendant, Larry Moore, was charged with murdering Brad Brisbin. He gave conflicting testimony regarding his encounters with Brisbin the day he was killed. DNA evidence was used connecting Defendant to the murder by analyzing blood, muscle, and tissue found in the Defendants truck. Synopsis of Rule of Law. DNA testing satisfies the Daubert standard for admission. Facts. Larry Moore, Defendant, was charged with murdering Brad Brisbin. The body was never recovered, but Brisbins wife testified that he had said Defendant called and asked to meet him at a truck stop. Defendant gave inconsistent statements regarding Brisbin. DNA evidence was allowed on the analysis of human blood and small pieces of human muscle and brain tissue found in Defendants truck. The DNA evidence showed that the evidence could have come from Brisbin, but it was not conclusive. Issue. Was the DNA properly allowed and admissible under Daubert? Held. The Montana Supreme Court found that the trial court properly allowed the DNA evidence. Discussion. The Montana Supreme Court carefully and thoroughly reviewed the analysis and science of DNA testing before allowing admission as is necessary under Daubert. Problem 9-F. Paternity Index 624 In the case of children, you has mothers DNA and fathers DNA. If theres a match, youre basically the father. Theres not much you can do to help your case. **CLASS NOTES: 11.10.10** Pleading Burdens In a contract claim the plaintiff has to plead agreement, consideration, performance, breach, and damages. o We dont require plaintiffs to plead everything in Williston on Contracts because it is often not an issue in the case. i.e. We dont usually require the plaintiff to plead capacity to contract unless it is in issue. Plaintiff alleges generally all the conditions have happened that need to happen to require D to do what he needs to do. o If D wants to claim that this is not so, D has to plead this SPECIFICALLY. Reason for burdens o Substantive policy choice


Contributory Negligence = on the burden of D to plead, and also have the burden of persuasion w/r/t Contrib. negligence. the reason for this is substantive policy choice. We want to make it easier for the injured party to recover. Lack of information i.e. someone gone for 7 years w/no contact w/anyone is presumed dead. Likelihood/convenience how is it most convenient to structure a trial?

Can appear in practically any case. i.e. the presumption fothe mailed letter. Basic facts lead to the conclusion to the presumed fact. o Basic fact = you proper posted the letter o Once this is proved, we have a presumed fact = the letter was delivered in due course (usually 3 days). What happens to the presumption if it is met by counterproof? o The basic facts = the guy works for the company, and hes driving the company truck. o Presumed facts = he is acting in the scope of his employment. WHAT HAPPENS TO THE PRESUMPTION? o Presumption unopposed: If the employer doesnt refute or bring counterproof, the jury MUST find the presumed fact. o Presumption vanquished: If the employer brings awesome (cogent and compelling) counterproof explaining the entire accident, the presumption is vanquished and drops out of the case. o Contingent case (aka in-between case): Problem 10-A. The Unhappy Harpsichordist. o Basic facts = you gave it to the bailee undamaged, you got it back from the bailee damaged. o We have this presumption because: Probability Inability for the plaintiff to prove what happened while the bailor had the property. The bailee will have more information on what happened to the thing than the bailor o There is a dispute over the basic facts i.e. whether or not the harpsichord was undamaged when the bailee got it. o We will typically send an issue like this to the jury. What we should do in this case is that if you find that it was already damaged, you have to make the presumption. If you dont find the [basic fact], then you must not find the [presumed fact]. Rule 301. Presumptions in General Civil Actions and Proceedings o In all civil actions and proceedings not otherwise provided for by Act of Congress or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast. o One way of reading the rule is that this is pure Thayer = this is just the bursting bubble rule. This is not how Mueller reads the rule, and a number of cases refuse to reads it that way as well. Rule 302. Applicability of State Law in Civil Actions and Proceedings o In civil actions and proceedings, the effect of a presumption respecting a fact which is an element of a claim or defense as to which State law supplies the rule of decision is determined in accordance with State law. o What this is saying is that presumptions are so close to burden of persuasion that we are going to treat them as substantive for Erie purposes, and STATE presumption law controls in diversity cases. Problem 10-B. The Death of Mason Parnell o Presumptions only have an impact in the case if they operte in favor of the person with the burden of persuasion. This makes sense but a good way to think about it. o So in this case, the widow has the burden of persuasion that the D didnt kill himself and that it was an accident, but since there is a presumption that a death is NOT a suicide, the burden shifted to the insurance company, whose job it now is to prove that it WAS suicide. o Basic fact = sudden death by violence is usually an accident. The basic fact is that we have a sudden violent death. o Presumed fact = the death was an accident. o So what do we do now that there is counterproof? This s different from 10-a in that it goes to the presumed fact not the basic fact. o Without a presumption, the widow loses here because it cant get to ta jury. It is so clear that he killed himself. With a presumption however, its different. There is at least a good chance that it doesnt get to a jury, SO the presumption is critical in this case.

**CLASS NOTES: 11.12.10** Presumptions in Criminal Trials The Presumption of Innocence o Reminder that prosecutors have a heavy and significant burden to prove the defendant guilty beyond a reasonable doubt.

Why do we have the presumptions we have in Sandstrom and Ulster? Like the statutes. o Worried about the difficulty to prove these elements when it is so easy to lie about it. o A lot of these crimes are anticipatory offenses, like aiding and abetting. Were trying to criminalize the steps that lead to more serious crimes. When you are criminalizing anticipatory steps, youre getting farther and farther away from clarity. i.e. so how far do you want to extend possession? The legislature in Ulster said they wanted to extend possession beyond merely having the gun in your hand. Theyre trying to say to juries that the person doesnt HAVE to be in actuyal possession, they can convict anywyas. Essentially these are nudging instructions from the legislature to the jury. Mullaney v. Wilbur o SCOTUS held the presumption was unconstitutional. o Two things concerned the court here you can infer malice aforethought from deliberate killing this waters down the idea malice aforethought and heat of passion are inconsistent things This shifted to the defendant the burden of proof on this point. Patterson v. New York o SCOTUS holds this presumption to be constitutional. o No risk that D had to disprove an element in the prosecutors case. o Powell dissent = this is just formalism. The majority makes a constitutional distinction here but it is not really reflected in the law. Does Patterson Destroy Mullaney? What does Patterson mean? o (1) Purely Procedural Approach: State must prove BRD everything that bears on culpability. So understood, Patterson destroys Mullaney. o (2) No Holds Barred Approach: Under Patterson, the legislature is completely free to do whatever it wants to in allocating elements. The good thing sabout this is that it might recognize some defenses that it would be reluctanat to recognize if everything that was required to prove guilt or a defense was on the prosecutors shoulders to prove. o (3) Final Check Approach: Legislature can allocate elements except insofar as they define the states case in such a way that they are at risk or imposing punishments that Violate the 8th Amendment (barring cruel and unusual punishments), meaning essentially that punishment must be proportional to culpability. o (4) Patterson majority includes important sentence: There are obviously constitutional limits beyond which the States may not go in this regard, such as declaring an individual presumptively guilty of a crime. And look at Powells concurrence (text pg. 709): Prosecutor must bear burden of proof beyond reasonable doubt on every factor that makes a substantial difference in punishment and stigma, as reflected in the Anglo-American legal tradition. o Where are we? Were in a no mans land in between Mullaney and Patterson w/r/t burden of persuasion. Sandstrom v. Montana o 4 possible meanings of the instruction given by the trial judge: 1) The jury must find intent. This would be a conclusive presumption, not a mandatory presumption (because a mandatory presumption can be rebutted). Brennan says you cant do this. 2) It shifts the burden of persuasion to D to disprove intent. Brennan says you cant do that either. These first two are enough for Brennan because a reasonable juror could interpret the instruction in this way. Is must be struck down because of this. 3) It shifts burden of production to D = Brennan doesnt say anything w/r/t/ this interpretation. Footnote 5 on pg 717 4) It creates a rebuttable inference = Brennan says this is okay. County of Ulster v. Allen o Presumption, arising on proof of presence of gun in car, that every occupant of car possessis the gun in question (eith exceptions for a gun upon the person of one of the occupants, and for situation in which one occupant has license to carry the gun, and for taxis, where presumption does not apply to driver).. o Supreme Court Affirms conviction: Crucial passages are the quoted parts of the instruction given in the case (pg. 727, footnote 19 in majority opinion; text page 730 in dissenting opinion.) o Two kinds of presumptions:

(1) Permissive (relly just an allowed inference): Here the presumption need only satisfy rational basis test, interpreted in County of Allen to mean that the basic fact must make the presumed fact more likely than not (a test that we would normally apply in civil cases to measure the sufficiency of the evidence). (2) Mandatory (really just a statement that the basic fact is by itself sufficient evidence to justify

o o

conviction): Here the presumption must satisfy the beyond reasonable doubt standard, meaning that the basic fact must support an inference of the presumed fact beyond reasonable boudt. In Turner case (text pg. 715), the Court found that the presumption, arising upon proof that defendant possessed heroin, that he knew that the heroin was imported, does satistfy this stringent standard. Powell in dissent looks at a separate part of the instruction says that the instruction isolates the presumption. Majority says this is contextualized instructions.

**CLASS NOTES: 11.15.10** Jaffee v. Redmond, Supreme Court of the Unites States (1996) Was there a federal psychotherapist-patient privilege? Court says yes there is and it applies in this case. What is the content of the psychotherapist patient privilege? FRE 501: Privileges are substantive. In diversity cases court applies the law of the state. In Fed. Question cases they apply federal privilege law. o Why are they substantive? Because it regulates out-of-court content. It regulates the relationships that the law decides are important. Problem 12-A. A Bum Rap. There is no exception for a circumstance like this. Gallo can raise a defense of due process violation possible Attorney-Client privilege belongs to client lawyer claims it on clients behalf because we imply authority on the part of the laywer and also a duty to the layer. Privilege attaches as soon as someone comes to you for legal services. Applies even if the person to whom the client is speaking is not licensed to practice law in the jurisdiction. Applies if the client reasonably believes youre licensed to practice law. What destroys the privilege? o Covell case = does the presence of clerks destroy the privilege? Court said no, the privilege is not destroyed by the presence of outsiders if theyre reasonably necessary for the render of legal sercives. Like the clerks in the covell case and like the investigator in the Merideth case. Also experts like doctors, etc. who are helping you understand the case. o Anyone else like cients boyfriend, etc. if theyre not necessary would destroy the privilege. Problem 12-B. The Bail Jumper. This is not protected. The lawyer is going to lose if he claims the privilege. Its a notice function, not legal advice. Youre not trying to get at what the client said to the lawyer with this question, only trying to ascertain whether or not the client got notice. Problem 12-C. The Tipsy Client The privilege covers the words spoken to the lawyer, but doesnt cover the observations made. o so it doesnt apply to what the client looked like, smelled of alcohol, etc. Courts distinguish observations vs. substance of clients communications to the lawyer. People v. Merideth Why the hell did the lawyer even want to look at the wallet anyways? There is nothing he could have hoped to find that would have helped his client. So he shouldnt have even gone out there. Prosecution uses = we should be able to use this b/c the wallet belongs to the victim and it was found in Scotts dumpster, so its all linking D to the murder. Note 8 = suggests a stipulation. If D agrees to a stipulation then youre able to keep out the fact that D informed someone where the wallet was. The only think that will get in is whose wallet it is and where it was found. Difference between who is removing the wallet o If D removes it and gives it directly to you it is protected information. You still have to turn it over to prosecutor, but the prosecutor has no way to connect it to the defendant b/c you dont have to reveal the source. hell have to link D to the evidence some other way (i.e. fingerprints, picture of D with evidence, etc.) o If lawyer removes it the prosecutor has less problems here b/c the lawyer will have to reveal where he go it and so the connection to D will be established. **CLASS NOTES: 11.17.10**


12 short answer questions. Questions are directive. Understanding of the principles. Application of the rules to the facts of the case. Do not discuss constitutional issues unless expressly asked to. Do not invoke the catchall exception. You should assume that he proper objection and offer of proof was made.

Attorney-Client Privilege Problem 12-D. A Failed Venture. o 1. This is privileged. The problem here is that what one of them said was said in front of the other one, and vise versa. This does not matter though because they are joint-clients. So against outsiders, there was confidentiality intended, so the privilege applies. o 2. In this case, one client is suing the other. In this case most courts would say that there is no privilege because there was no confidentiality intended. o 3. The two criminal defendants have areas of common ground where the lawyers from both defendants can get together to discuss common defense strategy. This is covered in proposed Rule 503(b)(3). This is to encourage. Upjohn v. United States Justice Rehnquist begins by being moderate. Exercising judicial restraint. He says theyre only going to decide the case at hand and not adjudicate on a broad set of rules or abstract proposition of the law.

2074. Rules of procedure and evidence; submission to Congress; effective date (a) The Supreme Court shall transmit to the Congress not later than May 1 of the year in which a rule prescribed under section 2072 is to become effective a copy of the proposed rule. Such rule shall take effect no earlier than December 1 of the year in which such rule is so transmitted unless otherwise provided by law. The Supreme Court may fix the extent such rule shall apply to proceedings then pending, except that the Supreme Court shall not require the application of such rule to further proceedings then pending to the extent that, in the opinion of the court in which such proceedings are pending, the application of such rule in such proceedings would not be feasible or would work injustice, in which event the former rule applies. (b) Any such rule creating, abolishing, or modifying an evidentiary privilege shall have no force or effect unless approved by Act of Congress.

1) The subject matter standard The communications concerned matters within the scope of the employees corporate duties. o These types of communications are privileged. 2) The directors told the employees to speak to the attorneys. 3) The purpose of the communication was to get legal advice. 4) What was said to the lawyer was not run up a flag pole it was kept highly confidential. i.e. it was kept on a need to know basis. Why does he reject the control-group standard? Salzburg criticism of this opinion = employees do not own and cannot invoke corporate attorney-client privilege themselves, so extending its protection to them is unnecessary.

**CLASS NOTES: 11.19.10** In Re Osterhoud, 722 F.2d 591 (Ninth Circuit Court of Appeals, 1983) GENERAL RULE: There is privilege w/r/t identity of client and fee arrangement b/w client and lawyer. Facts: The government wanted to know about Luxanas legal fees and issued him a subpoena. Proc Hist: District Court denied Luxanas motion to squash the subpoena. He appeals. Issue: Is the fee arrangement covered by the attorney-client privilege?

Holding: No. Rule: Generally, the identity of a client and the nature of his fee arrangements with his clients are not confidential communications protected by the attorney-client privilege. The exception to this general rule, however, is where there is a strong probability that disclosure of such information would implicate that client in the very criminal activity for which legal advice is sought. Baird was interpreted in a number of different ways Privileged if disclosure would show the reason why someone went to a lawyer Privileged if disclosure would be the last link in the case Privileged if identity would disclose the substance of the communication. This is narrowest of the interpretations and the interpretation the court in this case went with. Pg. 796 = different situations where the privilege protects the identity of the client: When a lawyer returns stolen property on behalf of an unnamed client = generally the privilege DOES NOT apply in this situation because the lawyer is only a conduit, not giving legal advice. When a client comes to a lawyer and says I saw someone do something wrong, I want to report it but I want to remain anonymous. = the privilege DOES apply. When a lawyer represents a person charged with a crime but is hired and paid by an anonymous third party = COURTS SPLIT. On one hand, this is a case where legal services are being paid for (its helping the drug boss to get legal help for the underling b/c it helps him avoid implication). Consultation on crimes past vs. consultation on crimes ongoing United States v. Zolin, 491 U.S. 554 (1989) IRS enforcement proceeding. How does a court find out whether or not a communication was in furtherance of a crime or fraud? Court says, you cant just read 104(a) as blocking the court from looking at the material itself. 104(a) says the court is bound by the privilege. You just have to let the court look at it. Next question = on what kind of a showing can a court be allowed to look at the privileged communications? o Security - Is there enough security so that the matter doesnt get out? o Burden burden on the judge. Could be hundreds of pages of material. Court says the judge dont have to review it automatically every time someone claims there is an exception to the privilege. Standard the court comes ups with = before engaging in in camera review to determine the applicability of the crime-fraud exception, the judge should require a showing of a factual basis adequate to support a good faith belief by a reasonable person that in camera review of the materials may reveal evidence to establish the claim that the crime fraud exception applies. Basically the preponderance standard applies to both the privilege and the exception to the privilege.

Assertion and Waiver The lawyer can invoke the privilege, then the prosecutor can get a court order from the court, if the court overrules the privilege and orders the lawyer to testify, then . . . the ethical rules say that if youre asked by a court to do so even after youre claimed the privilege, you dont have to go to jail to protect your clients interest. o If this does happen, the privilege claim can still be appealed because disclosure under a court order is not itself a waiver. It did not sacrifice the privilege. If you get a court order, and refuse to turn it over, can you get an appeal? o If it is a grand jury proceeding the courts have problems with this because neither lawyer or client are parties to the action (yet). o o If the lawyer is found in contempt, he can appeal from the contempt citation if he has to go to jail for it. But most of the times courts sentence a lawyer to jail then immediately suspend the sentence. With the increase of the volume of information to which privileged information might be attached, it becomes difficult to figure out where the privilege claims attaches, etc. It becomes easy to make a mistake. FRE 502(a) & (b) o When you disclose things in the course of a federal proceeding and you disclose things that are arguable privileged, that disclosure affects everything else w/r/t the privilege if you did it intentionally. o If it is an accident that the privileged info was turned over, then the privilege doesnt apply to everything else as long as you took reasonable steps to prevent the disclosure, and you took reasonable steps to rectify the error.

What often happens is that the parties enter into an agreement = if we accidentally disclose any privileged material, we can claim the privilege later on. If you enter into this agreement its binding on only the parties, not third parties. 502(d) allows parties to get this agreement through court order. If they do this, EVERYONE is bound by it, including third parties.

Spousal Privilege Trammel v. United States, 445 U.S. 40 (1980) Wife is witness. She was named as a co-conspirator but not indicted. Holding = w/r/t testimonial privilege, only the testifying spouse can claim the privilege. In Colorado, the statute vests the authority to claim the privilege in the party spouse. Only if both spouses agree can the other spouse testify. Point of the privilge = dont force spouses to testify against each other to protect the marriage. Court says = if the wife is willing to testify against her husband, the marriage is on the rocks, and theres no marriage to protect anyways. Whats wrong with this? o She is pressured to tear the marriage apart b/c she was threatened with 40 years of prison if she didnt testify. o In Colorado, spouses dont have to choose one or the other. Mueller thinks the Colorado rule was the better rule. He thinks the Supreme Court was wrong to cut the privilege in half Exception to the spousal testimony privilege = if both spouses were participating together in an ongoing crime. o The Court here could have said that both privilege and wife own the privilege (they said that only the wife owns it) but the wife still has to testify because of this exception. CLASS NOTES 11.29.10 MISSED CLASS **CLASS NOTES: 12.01.10**

1. The Photograph Problem 13-E a. P seeks to enter a photograph of the intersection where his accident occurred. b. It used to be that phorographs were demonostrative evidence (used simply to illustrate a description/testimony).
Nowadays, photographs are evidence in their own right.

c. Best way to authenticate is to have the photographer testify. d. Other ways to authenticate:
(1) Must be shown the photograph is the same location and accurately reflects the way the intersection appeared on the day of the accident (2) It is not necessary to have the photographer e. Change in circumstances in that there is a new stop sign? (1) This could be enough to keep the photograph out. (2) For instance it could be a subsequent remedial measure if the city put up a new stop sign or something. X-Ray - Problem 13-F a. This is a civil case, and often authentication is taken care of in civil cases before you even get to court (1) Stipulation of parties (2) Attach to a pleading and get the adverse party to admit what it is and its relevance b. X-ray picks up images that no human being has seen. (1) so to authenticase you have to have proof of the process that was taken. (2) i.e. the technician testifies that he operated the machine, and that everything was in good working order when the image was taken, etc. c. Getting the X-Ray into evidence (1) Need a witness with knowledge of the object of the photograph (2) See Rule 901(b)(1) d. Things you need to do in order to get the X-Ray admitted: (1) Establish the Business Records exception to the hearsay rule (2) May be able to use the keeper of the records, who can explain standard procedure, to establish foundation for the competency of the operator, chain of custody, etc. This is probably about weight and not sufficiency. e. Steps in establishing admissibility (1) Operator was qualified X-ray technician



(2) Establish that the operator and the person came together at a particular time and place (3) Certain eqipment was used (4) The equipment was in good working condition (5) The operator used the correct procedures (6) The operator used an identification assembly on the X-Ray (7) Chain of custody (8) This piece of evidence is the product of the machine used. f. See the Authentication Continued handout for the logical arrangement of questions to ask in order to authenticate particular types of evidence. Computer Printout - Problem 13-G a. Issues to deal with (1) Best Evidence Rule issues raised by a writing. (i) FRE 1001(3) - If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original. (2) Hearsay (i) probably covered by the Business Record exception b. Authentication (1) Want the testimony of a person who knows something about the way this computer functions and also this account. Person needs to be able to testify to the accuracy of the computer printouts. (2) Chain of custody were there any opportunities to alter the printout c. Follow the scheme on the Authentication Continued handout (1) Competent computer operators were employed (2) The computer equipment employed is accepted in the field as standard, reliable equipment (3) Careful procedures, including reasonable controls, tests, and checks for accuracy, were followed with respect to the input and output of information (4) The machine was operated and programmed properly (5) Because of the above factors and any other relevant factors, the output has the significance claimed by the proponent (6) Identification of this printout and the data it contains as being relevant to the litigation

United States v. Poole Court says that self-authentication is not enough. Need to have more than that. o very helpful if youve heard the voice before, or some other way to know that the voice on the other end of the line is Chip (i.e. youve called him and talked to him before, he told you something on the other end of the line that only Chip would know.) Problem 13-H. This is ORourke 901(6) is not going to help here b/c ORourke was not reached at his phone number, or home number, etc. What could be done = testify that the conversation had with someone (presumably orourke on the other end) was responsive to what was going on. This can be circumstantial evidence that it was ORourke on the other end (i.e. he asked when can you start? he responded when asked do I have the job) Problem 13-I. The Rejected Easement Rule 902(b) = (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment executed in the manner provided by law by a notary public or other officer authorized by law to take acknowledgments. Can a jury reject this self-authenticating document even though theres no proof of a lack of authentication? (i.e. what is the effect of self-authentication)? The RULES are silent on this point. They used to have language that gave it a presumption, but now they took the language out Problem 13-J. The Death Certificate This death certificate is signed by three separate people Can you prove a public record by using a copy? This is a best evidence question FRE 1005 - The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with Rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given.

Self authenticating = the original death certificate could be offered if it was signed and under seal under 902(1) Domestic public documents under seal. A document bearing a seal purporting to be that of the United States, or of any State, district, Commonwealth, territory, or insular possession thereof, or the Panama Canal Zone, or the Trust Territory of the Pacific Islands, or of a political subdivision, department, officer, or agency thereof, and a signature purporting to be an attestation or execution. Can be self-authenticated if it is signed w/no seal if you attach to it something that IS signed and sealed (i.e. certificate) under 902(2) Domestic public documents not under seal. A document purporting to bear the signature in the official capacity of an officer or employee of any entity included in paragraph (1) hereof, having no seal, if a public officer having a seal and having official duties in the district or political subdivision of the officer or employee certifies under seal that the signer has the official capacity and that the signature is genuine. You can authenticate by submitting a copy of a record even w/no seal under 902(4) Certified copies of public records. A copy of an official record or report or entry therein, or of a document authorized by law to be recorded or filed and actually recorded or filed in a public office, including data compilations in any form, certified as correct by the custodian or other person authorized to make the certification, by certificate complying with paragraph (1), (2), or (3) of this rule or complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority. o however, the Clerk does not say that th is is a correct copy so he has not complied w/902(4) o BUT. . . there are provisions in the civil rules AND criminal rules that deal with this. provide that an official record may be evidenced by a copy that is attested by the officer having the legal custody of the record, or by his deputy, and accompanied by a certificate that such officer has the custory, and that the required certificate may be made by an officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. (9) Commercial paper and related documents. Commercial paper, signatures thereon, and documents relating thereto to the extent provided by general commercial law. UCC documents are self-authenticating (11) Certified domestic records of regularly conducted activity. The original or a duplicate of a domestic record of regularly conducted activity that would be admissible under Rule 803(6) if accompanied by a written declaration of its custodian or other qualified person, in a manner complying with any Act of Congress or rule prescribed by the Supreme Court pursuant to statutory authority, certifying that the record: o (A) was made at or near the time of the occurrence of the matters set forth by, or from information transmitted by, a person with knowledge of those matters; o (B) was kept in the course of the regularly conducted activity; and o (C) was made by the regularly conducted activity as a regular practice. A party intending to offer a record into evidence under this paragraph must provide written notice of that intention to all adverse parties, and must make the record and declaration available for inspection sufficiently in advance of their offer into evidence to provide an adverse party with a fair opportunity to challenge them.

**CLASS NOTES 12.03.10** - Review session Thursday, Dec. 9 @ 9:00am Best Evidence Doctrine Why is this important? o The modern version expands the doctrine. It now has broader reach. Traditionally it covered writings only, today it covers writings, recordings, and photographs. o It has also softened/lessened the bite a little bit b/c we not submit duplicated in addition to originals. This is because of newer technology making it more easy and reliable to make copies of things. o Does not cover other things like physical objects like automobiles and guns. so a witness can describe what these things looked like, you dont have to offer these things themselves. Description of a scene of house is also okay. You can describe these things to the juries and dont have to take the jury there. What does the term writing mean? o In Duffy, a laundry label on a shirt that says D.U.F. is not a writing. o Best Evidence Doctrine FRE 1001(1) = Says that writings" and "recordings" consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. What is an original? o Problem 14-B. The Unprivate Physician. Physician provides a photocopy of adoption records to adoptee and is sued by biological mother for breach of privacy. Physicians attorney objects to introduction of photocopy under BRE. If the photocopy was provided to the daughter, then that is the original evidence in this case because the

original document was never at issue. We define original by what youre trying to prove in the case. FRE 1001 says that original = an original of a writing is a writing itself. So whats an original is that which counts in the case. What is a duplicate? o FRE 1001 = A "duplicate" is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic rerecording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. o Basically all this means is that a duplicate is a machine made copy. o A handmade copy is NOT a duplicate. We dont have these anymore. In the days of Bob Cratchet these were more popular b/c there was no other way to make copies. o FRE 1003 = duplicate is virtually as acceptable as the original. When does the Best Evidence Doctrine apply? o 2 situations. #1 = The best evidence applies when the substantive law forces the writing into issue. in contract cases: the parol evidence rule if a K is embodied in a writing you cannot alter or amend that writing by oral agreement. This means you have to prove the writing. statute of frauds = they have to be in writing So youre forced to prove what is in the writing. Obsenities = if youre accused to trafficking in obscene movies, you have to prove what is in the movie. Libelious statements #2 when party strategy resorts to using a writing to prove something i.e. if youre trying to prove whether the teenagers ran the red light by using the report by an officer. i.e. Problem 14-F. The Surveillance Photograph. They have to give the video into evidence. When does it not apply? o In all the other cases. o Myers is a good example of when it doesnt apply. o Dissent it is idiotic to prove perjured testimony to have someone testify as to what was said at the testimony if you have a reporters transcript. o But the court is correct in saying that perjured testimony is not what the transcript says, rather it is the words that came out of the person perjuring himself. You dont have to prove the words of the transcript to show this. o RULE: You dont have to introduce a writing/recording/pohotograph just because one exists. o The crime of perjury is making false statements. If the crime he committed was forgering signing a document, THEN YOU HAVE TO INTRODUCE IT INTO EVIDENCE. Problem 14-G. The Recorded Conversation. o DEA agent records scumbag conversation. DEA agent recorded AND listened to the conversation. DEA agent can testify as to what they said OR the recording can be offered to prove what was said. Problem 14-C. There Never Was Such an Original. o FRE 1003 Eva raises a genuine question as to the authenticity of the original. Does this mean the duplicate should be excluded? o Maybe. Look at FRE 1008 When the admissibility of other evidence of contents of writings, recordings, or photographs under these rules depends upon the fulfillment of a condition of fact, the question whether the condition has been fulfilled is ordinarily for the court to determine in accordance with the provisions of rule 104. this has to do with if youve lost the original if youre excused from losing the original. However, when an issue is raised (a) whether the asserted writing ever existed, or (b) whether another writing, recording, or photograph produced at the trial is the original, or (c) whether other evidence of contents correctly reflects the contents, the issue is for the trier of fact to determine as in the case of other issues of fact. So its for the jury to decide. o It looks as though what we have here is: Under 1003 it should be excluded Under 1008 it should be admitted and up to the jury. o Mueller thinks 1003 should have said, unless no reasonable jury could find that the duplicate really does duplicate the original. instead of unless a genuine question as to the authenticity of the original. Problem 14-D. Nine House or One? o This is a fight over authenticity and the Best Evidence Doctrine should not bar her testimony.

Dups are admissible If theres a fight over the original than there is a disagreement b/x 1003 and 1008. FRE 1005 - The contents of an official record, or of a document authorized to be recorded or filed and actually recorded or filed, including data compilations in any form, if otherwise admissible, may be proved by copy, certified as correct in accordance with rule 902 or testified to be correct by a witness who has compared it with the original. If a copy which complies with the foregoing cannot be obtained by the exercise of reasonable diligence, then other evidence of the contents may be given. FRE 1006 summaries o cant expect a jury to interpret and digest huge voluminous digests of documents. o originals themselves have to be admissible as evidence. o it is routing to prove piles of documents by way of summary and1 1006 allows that provided the originals are available and made available to the other side. FRE 1004 when can you sue even though uyo dont have the document and the contents of the document are at issue when the originals are lost/destroyed. o The original is not required, and other evidence of the contents of a writing, recording, or photograph is admissible if- (1) Originals lost or destroyed. All originals are lost or have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original not obtainable. No original can be obtained by any available judicial process or procedure; or (3) Original in possession of opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) Collateral matters. The writing, recording, or photograph is not closely related to a controlling issu (Mueller adds) it is helpful if the content is simple (i.e. the D-U-F in the Duffy case).