1 EVIDENCE OUTLINE TABLE OF CONTENTS

EVIDENCE OUTLINE ................................................................................................................................ 1 TABLE OF CONTENTS ............................................................................................................................. 1 CH 1: RULES OF EVIDENCE IN AN ADVERSARY SYSTEM ........................................................... 2 CH 2: RELEVANCE ................................................................................................................................. 12 CH 3: HEARSAY ....................................................................................................................................... 17 CH 4: HEARSAY EXCEPTIONS ............................................................................................................ 23 CH 5: RELEVANCE REVISITED .......................................................................................................... 48 CH 6: COMPETENCY OF WITNESSES ............................................................................................... 56 CH 7: PRESENTING EVIDENCE: DIRECT AND CROSS-EXAMINATION REVISITED ............ 59 CH 8: IMPEACHMENT OF WITNESSES ............................................................................................. 62 CH 9: OPINION & EXPERT TESTIMONY; SCIENTIFIC EVIDENCE............................................ 69 CH 10: BURDENS OF PROOF AND PRESUMPTIONS ....................................................................... 73 CH 11: JUDICIAL NOTICE .................................................................................................................... 79 CH 12: PRIVELEGES .............................................................................................................................. 82 CH 13: FOUNDATION EVIDENCE, AUTHENTICATION ................................................................. 85 CH 14: THE BEST EVIDENCE DOCTRINE ......................................................................................... 86

2 CH 1: RULES OF EVIDENCE IN AN ADVERSARY SYSTEM A. Why Rules of Evidence? 1. Mistrust of Juries: that they cant properly evaluate statements made outside their presence (hearsay rule) 2. Serve Substantive Policies Related to Matter Being Litigated: In hopes they affect outcome/recovery Ex) Rules re burden of persuasion (preponderance) 3. Serve Substantive Policies Not Related to Matter Being Litigated: Affect behavior / quality of life outside the courtroom Ex) Spousal privileges 4. Ensure Accurate Fact Finding Ex) Rules re: authentication, and Best Evidence doctrine 5. Control Scope and Duration of Trials: Organize the dispute and increase efficiency. Ex) Judges right to exclude evidence that would take more time than its worth. 6. Federal Rules of Evidence contain 63 provisions that are easily accessible. 41 states use - NY does not. B. What Happens at Trial? Have a trial when theres a Q of fact. Read Answer - if theres no denials = no trial, if there are denials = trial. If Q law only, move for summary judgment. 1. Jury Selection Voir Dire: Interview prospective jurors. Lawyers attempt selection most favorable to their client, and start to sell case. In state courts, usually lawyers do this. In federal, and in some states, the judge does this (w/ requests from lawyers). 2 Types of Challenges: a. Exclude For Cause: Unlimited number based on prejudice b. Preemptory Challenge: Limited number (3-5) for any reason at all. Cannot be racially motivated 2. Opening Statement The story. Provide a roadmap of whats to come. a. Sum up the facts, including background facts about the parties (humanizing / garnering sympathy). b. Discuss the evidence you intend to produce. c. Not a legal argument but do try to persuade. d. May not cause jurors to draw inferences e. Objections are allowed f. Push envelope of gray areas g. Ds opening = canned speech (if nothing much else to do) 3. Presentations of Proof a. Depositions: Only in civil cases b. Order of Proof: Party bearing the burden of proof goes 1st (usually P) Make sure you research the substantive law so you know what you must prove at trial. 2

3 i. Initially, P presents Case In Chief establishes everything must prove in order to prevail. Call all witnesses by direct examination, present all tangible evidence (things, records) P rests ii. Next D presents his Case In Chief. D attacks Ps evidence and credibility of witnesses. Brings in affirmative defenses. D rests iii. P presents Case in Rebuttal. Limited to addressing stuff brought up by D (P cant redo stuff brought up in his Case In Chief). P may challenge affirmative defenses. iv. D presents Case in Rejoinder ( Case in Rebuttal) v. Each side presents further Cases in Rebuttal. c. Order of Examination: i. Direct examination by the calling party ii. Cross-examination by the adverse party iii. Redirect examination by the calling party: Limited to addressing new stuff (again, cant redo old stuff) iv. Further redirect and re-cross as necessary 4. Trial Motions As a matter of law, if no reasonable juror would disbelieve that things happened the way P claims (a criminal prosecutor cant do this) a. Most often granted for defendants in Criminal or Civil K suits b. Routinely denied in jury-tried cases (better to let the jury deliberate a similar motion can always be granted later and if so, but the case is appealed, the jury verdict can be reinstated by appellate court). 5. Closing Argument Powers of persuasion to sway jury no matter how the evidence looks. a. Dont read your closing argument. b. P has right to make 2 closings 1 before and 1 after adversary (so P opens 1st, and closes 1st and last). c. Tell FF what conclusions they should draw d. Technically, can only speak to: i. The evidence, and ii. What is relevant (Poverty is not relevant) Otherwise the skys the limit, & Push Envelope! 6. Instructions One of the leading grounds for appeal (Civil) a. Explains applicable substantive principles, and allocates and defines burdens of proof on various issues. b. Always object to instructions you wanted but didnt get, and instructions you didnt want but got. You need to make a record of your objections in case of appeal. c. Must bring up your objections to instructions twice: 1. During the charge conference 2. When judge is finished with the charge

4 d. Curative instructions: Admonishment during trial -- to jury to disregard what just said. Can be counterproductive. You should: 1. Object 2. Ask for curative instructions 3. Call for a mistrial e. Limiting instructions: To jury to consider certain proof on only 1 point and not another (or only against 1 party). To obviate unwanted side effects of the presentation of certain evidence. Given similar to Curative 7. Deliberations Jury must be in seclusion and deliberate in secret. In a criminal case, an acquittal by a jury cant be touched. Dynamite Charge judge encourages a jury having trouble reaching a verdict to get it together. Cr Ds: Infringes on constitutional safeguard requiring proof beyond a reasonable doubt! 8. The Verdict a. General Verdict [(Cv: Who wins and how much) (Cr: Guilty or Not-guilty)] b. Special Interrogatories (Cv): Jury resolves particular issues 9. Judgment and Post-Trial Motions Clerk enters judgment in docket book, judgment becomes effective, and time for appeal begins to run. a. After P rests, D moves for a judgment as a matter of law. If judge hesitant he will deny at this time, waiting for jury verdict. After verdict, P can renew motion for judgment. This helps to avoid a retrial, cause if successfully appealed, appellate court just reinstates original jury verdict. b. Judgment NOV (Cv): Routine by losing party. 10 days to file. 10. Appellate Review Very hard to get an appeal based on evidence law (if dont get it w/ trial judge, forget it). a. Finality must wait until end of trial before appeal. Exception (NY): Interlocutory appellate review of an order or ruling by a trial court. b. Most criminal cases are appealed (and lost) because defendants have a right to appeal. c. Must preserve claim with objections during trial, or Insufficient Counsel (Criminal). d. Will only lead to relief if appellate court finds: 1. Trial court erred, and 2. Error affected substantial rights of the appellant (reversible rather than harmless) C. Making the Record While trying to convince jury, also need to be conscious of preserving the written record for appeal. 1. What is the Record and how is it Made? a. Clerks will help you if you ask them - nicely b. Court Reporter prepares the record of trial c. Official Record consists of 5 things: 4

5 1. Pleadings a) Civil: Complaint and answer, 3rd party claims, counterclaims, cross-claims. b) Criminal: Indictment and plea of accused 2. Filed Documents: All papers filed in court motions, documents seeking and providing discovery, jury instructions, court orders 3. The Record of Proceedings: Verbatim memorial of all words spoken on the record. Court reporter stands ready to prepare a full transcript only if necessary (like for appellate review which relies heavily on this) 4. The Exhibits: All physical exhibits identified by 1 of the parties and lodged with the court whether or not admitted for consideration by the trier of fact. Be sure to get the stuff marked. 5. Docket Entries: Couts ledger of the proceedings the docket book. Dated line items of all filed documents and important orders made by the judge 2. Avoid Pitfalls - What Not To Do a. Echoing: Annoying habit of repeating witness answers b. Overlapping: Judge / lawyers interrupting each other or witnesses. Lawyer responsible to make sure everything recorded legibly c. Numbers, names, big words: Clarify spelling, etc. for jury and reporter. Provide list of names to reporter in advance d. Exhibits: Refer to by exhibit # (is an unambiguous way to refer to evidence) Only witness can bring an exhibit into the trial witness is the bridge between the real world and the trial. Authenticates. Witness can be crossed about this e. Non-verbal Cues: Must be clarified verbally for the reporter and the jury. f. Going Off Record: Can help or hurt depends on what is said. Problems: a) Need to tell him when to go back on record (reporter doesnt know) b) Forget off record. g. Sidebar Conference: Procedural or evidentiary points out of jurys earshot. Always ask court reporter to join you you want these discussions on the record in the event that the Judge fucks up. If he doesnt it still cant hurt you! 3. Taking Care - What To Do Be aware of the court reporter and his task, and pitch performance toward both the live audience and the remote audience (record). a. Ensure that all favorable utterances are recorded b. Ensure those utterances will have meaning in typewritten form D. How Evidence is Admitted or Excluded 1. Getting Evidence In: Foundation and Offer Witness may or may not obey a Subpoena (typically do) 5

6 a. Direct Examination Do 3 things w/ each witness: a) Bring out Background information: name, address, occupation, etc. b) Lay foundation for testimony to follow: show witness has personal knowledge re matters to which he will speak. c) Ask Substantive Questions: getting at witness knowledge of facts d) Its okay to read pre-written questions on direct, because you presumably already know what the witness will say. However, on cross you shouldnt do this because its more of a dialogue with the witness where you must listen to their responses and react accordingly. No Leading Questions on direct: One that hints at an answer. Cant unnecessarily push the witness toward a particular response. Can be objected to, as the witness should do the testifying. FRE 611(c): Leading questions should not be used on the direct examination of a witness except as
may be necessary to develop the witness' testimony. Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions.

a. Leading questions should not be used in direct except as may be necessary to develop witness testimony... Exception for unimportant background stuff (were you on the corner of Main on Sunday) If no objections as good as gold!

b. Cross-Examination Direct is followed by cross. Seek to bring out inconsistencies in the direct testimony. An art frame the questions any way you want, but try not to ask questions you dont know the answer to. FRE 611(b). Scope Of Direct Rule. Cross-examination should be limited to subject matter of direct, and matters affecting credibility of the witness... [hard to administer what the subject matter of the direct really was (how broad or narrow)] FRE 611(c). Leading Questionsordinarily leading questions should be permitted on cross. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. FRE 607. Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling the witness. [this does away with voucher principle, where a calling party vouched for his witnesses and was bound by their testimony.] c. Real Evidence Tangible things (the weapon) directly involved in the transaction. 6

7 Law of evidence does not require production (like the Best Evidence Rule w/ writings), and their existence may be established by testimony. Must be Authenticated by Stipulation or Testimony Excluded items should still be marked (preliminary) and recorded in case you need to appeal. d. Demonstrative Evidence Illustrates testimony for the jury can be a graphic, model, demonstration. Doesnt stand alone. Exists to back up testimony. e. Writings Must be introduced at trial (v proved by testimonial description). Have to be authenticated, usually through discovery or stipulations during pretrial (Cv). Circumstantial evidence may also do this (this letter was a response to mine). Need to do 2 things with a writing: i. Authenticate it (specific rules covered later) ii. Show it falls within hearsay exception 2. Keeping Evidence Out FRE 103: Rulings on Evidence. (a) Effect of erroneous ruling. Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of the party is affected, and (1) Objection. [in ruling admitting evidence] a timely objection or motion to strike appears of record, stating the specific ground of objection, if the specific ground was not apparent from the context; (2) Offer of proof. [in ruling excluding evidence] the substance of the evidence was made known to the court by offer or was apparent from the context within which questions were asked. Once the court makes a definitive ruling a party need not renew an objection or offer of proof to preserve a claim of error for appeal. (b) Record of offer and ruling. The court may add any other or further statement which shows the character of the evidence, the form in which it was offered, the objection made, and the ruling thereon. It may direct the making of an offer in question and answer form. (c) Hearing of jury - In jury cases, proceedings shall be conducted to prevent inadmissible evidence from being suggested to the jury by any means (d) Plain error - Nothing in this rule precludes taking notice of plain errors affecting substantial rights although they were not brought to the attention of the court. The Objection: Must be timely, and should include a statement of the underlying grounds (specific, not general). Evidence not objected to is as 7

8 good as gold (should object before W answers as motions to strike suck). Forfeit right to appeal if dont object. a. Substantive: Rest on principles in rules of evidence. 90% of this course. Object without seeming (to jury) to obstruct. 1. Hearsay 2. Best Evidence: An original writing, tape, must be presented rather than testimony that it exists. If no original, need copy. 3. Attorney-Client and Marital Confidence Privileges b. Formal: Focus on the manner of questioning. Many are mere tactical weapons (to obstruct, delay, break cadence) 1. Asked & Answered: Drumming away to hard on W, asking same Q over and over (Triangle Fire) 2. Assume Facts Not In Evidence: If question contains information, the info must be supported. 3. Argumentative: Questioner contradicts W. Sarcastic grandstanding unacceptable. 4. Compound: A Q framed as Yes/No that suggests alternative responses. Did you call or see her after that? This is for a question where the answer would be ambiguous, or if the question is really two questions, etc. 5. Leading Question: Lawyer testifying 6. Misleading: Q misstates the evidence in an attempt to trip the witness up. 7. Speculation or Conjecture: Opinions not admissible. Only what witness knows counts not what he thinks, guesses, supposes. 8. Ambiguous, Uncertain, and Unintelligible: Q cant be understood or captured by the record. 9. Non-responsive to Question: Only questioner may object striking an inappropriate answer and instructing W to answer properly. 10. General Objection: Not specific. Ex: Incompetent, Irrelevant and Immaterial. Does not preserve for review whatever point objector has in mind. 11. Calls for a Narrative: Cant ask for a narrative thats too long (such as asking witness to explain everything that happened since they were born). The Motion in Limine: An advance ruling only on important stuff. Have to know its coming. Both parties brief the issue, constructing elaborate arguments. Judge provides a more carefully considered ruling. Judges loath to be put in advisory position, and to decide matters before they come up. Ex: Motion to Suppress. FRE 103 (a)(2) Offer Of Proof (amendment): Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal. 8

9 Definitive makes the rule worthless what if the evidence changes just a little? Trial goes differently than expected? Judge may change ruling!

3. The Offer of Proof Get what would have been said in front of the jury recorded while jury excused (make its substance known to court). Idea is to accord offering party a fair shot at getting in his proof. If not allowed, and appealed, reviewing court can assess its significance. FRE 103 Rulings On Evidence (b). The court may direct the making of an offer in question and answer form FRE 103 (c). to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means. 4. Judicial Mini-Hearings Objections and Offers Of Proof. Many rules of evidence depend on factual issues, and the judge is a preliminary fact finder in matters regarding evidence. Judge decides if evidence is adequate to enable a reasonable jury to make a final decision. FRE 104. Preliminary Questions. (a) Questions of Admissibility Generally: Preliminary questions regarding 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 [decisions are based on a preponderance] The judge determines whether something is relevant. The judge will let it in if he thinks a reasonable person could conclude, from the evidence, that the fact trying to be proven is true. (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. [This is the conditional relevance exception to the general rule that the Judge makes all preliminary calls on evidence matters. Here, the jury may be asked to decide if a condition precedent exists necessary to allow the evidence.] Forgery is an example of this. (c) Hearings of Jury. Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury (d) Testimony by Accused. The accused does not, by testifying upon a preliminary matter, become subject to cross-examination as to other issues in the case. (e) Weight and Credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. E. Consequences and Evidential Error 9

10 3 main causes for imperfection: 1. Evidence rules are complex: So reviewing courts will award relief only if errors believed to have affected outcome. Are no automatic reversals for evidence errors, and harmless errors will not be reviewed 2. Some rules framed as vague standards, and depend on factual issues of each case: Suggests deference to trial judge. 3. Adversary system: Places lion share of burden on trial lawyers holding them to their performance at trial. No Object = No relief. 1. Appraising Such Error On The Merits Distinguish errors that matter from those that dont. Evidence must have affected a substantial right (outcome), and there must be some assurance that error had such affect. Need a standard of proof. Typically a judgment will only be reversed if error probably affected the result. Kinds of Error: a. Reversible Error: A mistake which probably did affect judgment b. Harmless Error: A mistake which probably did not affect judgment c. Plain Error: Warrants relief on appeal even if appellant failed to take adequate steps at trial to preserve his rights. Slim Hope (losers argument) d. Constitutional Error: (criminal) Evidence that should have been excluded based on the constitution. Deemed harmful unless DA proves otherwise beyond a reasonable doubt. Distinguishing Harmless from Reversible Error: Hardest task for appellate court, as many errors may have affected outcome. Generally, found by looking at the balance of the evidence (would outcome have been the same?) 3 circumstances most often turn reversible into harmless error: a. Cumulative Evidence Doctrine: Supports affirmance despite errors in admitting or excluding. Has to do with probability it affected outcome. So much other evidence was properly received, jury would have found as did even if evidence was excluded/admitted b. Curative Instruction Doctrine: Judge can avoid reversal by giving a curative instruction (limiting, or to disregard). Doesnt work. Most people dont thin this works, but we do it anyway. c. Overwhelming Evidence Doctrine: If reviewing court believes evidence was overwhelming, it will affirm, even in the face of evidential errors. However, judges are hesitant to do this because it clogs up the system. 2. Appellate Deference: The Discretion Of The Trial Judge Appellate opinions often refer to the broad discretion of the trial judge when it comes to evidence. Major ground of abuse -> if judge says something not in accord with the law. Major reason decisions are reversed = Judges abuse in exercising discretion. 10

11 a. Deference is fostered by evidential doctrines framed in loose terms: i. Trial Judge can exclude even competent and relevant evidence if they believe it will prejudice the jury (FRE 403) ii. Judge may control the manner and sequence of presenting evidence. b. Deference is fostered by doctrines that turn on FF by trial judge to administer rules of evidence. Reviewing court will reverse only if they strongly disagree (in the event of an abuse of discretion) 3. Procedural Pitfalls and Adversarial Gambits In limiting or refusing relief, reviewing courts will often hang their hat on the trial behavior of the appellant. Generally, 3 kinds of behavior: a. Failing to Object or Offer Proof: Failing to object waives right to claim error in admitting evidence. Need to preserve the point. Accordingly, only Plain Error can save you (and it is seldom if ever found in evidence matters). Policy of objections is to alert the Judge of a possible error so he can fix it. Theory is, you make the proper objections; youll get the proper ruling. Must be sufficiently precise in specifying grounds for an objection or offer of proof: An objection or unsuccessful offer of proof resting on certain grounds will suffice only to preserve that ground for review. (The fact that other exceptions may exist dont mean squat). Giving grounds for objections educates Judge too! At the same time, where a trial court sustains an objection on the wrong ground, the ruling will likely be sustained on appeal if some other ground exists even if unmentioned below! Bottom line = system favors affirmance. b. Inviting Error: Counsel puts questions that produce otherwise excludable answers. Also invite error by relying on evidence offered by opponent that he otherwise might have succeeded in excluding by objection. [But what about after the Judge overrules your objection? Do you forfeit if address what was permitted?] c. Opening The Door: Overboard assertions (Ive never taken drugs in my life) opens door for otherwise inadmissible proof of a past record, rehabs, etc. F. Obtaining Review Of Evidence Points 1. Appeal From Judgment. Evidence rulings are generally appealable only after final disposition of case. 2. Interlocutory Appeal Two exceptions to above rule. a. Privilege Rulings: When a person claims privilege (4th Amendment, etc.) and refuses to answer despite an order telling him to do so. May or may not be held in contempt. b. Pre-trial suppression orders: DA gets an automatic appeal if evidence suppressed by trial judge. 11

12 c. NY is one of the only states where there is an interlocutory appeal. In most other states you must wait till your case is complete. CH 2: RELEVANCE A D lawyer will have the jury look at individual pieces of evidence individually vs. real life, where you look at the big picture, how all the evidence fits together the picture it paints. Direct Evidence: If accepted as true, establishes the point for which it is offered (eyewitness testimony). Circumstantial Evidence: Even if fully credited, may nevertheless fail to support, let alone establish the point in question because an alternative explanation is probable. Can be stronger than direct (DNA vs. 90 year old eyewitness!). FRE 402: Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible. All relevant evidence is admissible, except as otherwise provided by the constitution, by acts of congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. A. Logical Relevance 1. Relevance and Materiality FRE 401: Definition Of Relevant Evidence. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. We cannot understand rule 401 without understanding 403, which discusses the exclusion of evidence. 403 gives the judge the power to keep out relevant evidence on grounds of prejudice, confusion, or waste of time. This helps speed up the trial and keeps out unnecessary evidence even if its relevant. Prejudice means the jury may over value the evidence. Thus, when a lawyer says objection, relevance they usually mean the judge should consider keeping the evidence out under 403. This is because technically, most evidence is relevant. When in doubt, you should let evidence in. Example - Is evidence that someone was speeding 30 miles before an accident relevant? Its relevant if the evidence of him speeding 30 miles away makes it more or less probable that he was speeding at the time of the accident than it would be without the evidence of him speeding. A judge would likely admit this, however you never know. Maybe the judge hates speeding tickets and would say this cant be admitted. 12

13 Relevance - Evidence that makes the point to be proved more probable than it was w/o the evidence. Example - Is knowing a guy left town after a robbery relevant? Probably, yes. If he left town for an innocent reason, thats for the jury to decide. A very lenient standard that favors admissibility. Sets the standard for relevance, requiring tendency to prove or disprove a fact. Evidence is relevant if it makes the point to be proved more probable than it was without the evidence. Old Chief I: [Convicted felon possesses gun v statute]. In face of offer to stipulate by D, whether name of the felony (assault) was relevant. a. Background facts may have relevance under FRE 401 if they act as an aid to understanding." b. Descriptive richness important. Persuasive power / emotive influence of evidence are of concern to court. Jury might be reluctant to ruin this guys life without the color of the background facts. c. You cannot force the prosecution to stipulate around facts they want to use to prove their case. The reason being that facts can be more persuasive than conclusions. d. See other outlines for information about this case. Fit and Offers to Stipulate: Cant cut off Ps case with an offer to stipulate. P is entitled to prove his case free from Ds offer to stipulate the evidence away. a. An offer to stipulate doesnt make relevant evidence irrelevant. b. Shannon: Consequences of a guilty verdict is an irrelevant fact for the jury. Evidence of Attempts to Avoid Capture: Eluding capture is generally admitted, but not given much weight. a. The wicked flee when no man pursueth; but the righteous are bold as a lion. Proverbs 28:1 b. There are reasons for flight apart from guilt. Evidence is often subject to doubt c. Courts often suggest that relevancy depends on the reasonableness of the assumption that D knew he was under investigation. d. P will fight for instruction that invites jury to consider flight as evidence of guilt. But, If Ds conduct cannot support an inference of flight, it may be reversible error to invite the jury to consider flight as evidence of possible guilt. e. Similar kinds of proof include evidence that D i. Used a false ID or aliases ii. Destroyed or concealed evidence iii. Fabricated evidence iv. Impeded / killed / threatened witnesses for P v. Attempted suicide vi. Sought to bribe public officials 13

14 2. Problem of Induction Dilemma of Inductive Logic: (Hume) Assumes that the future will resemble the past. If any reason to doubt it will, experience becomes useless and can give rise to no inference or conclusion based on inductive logic. post hoc ergo propter hoc: after this, therefore on account of this => can be carelessly advanced. B. Pragmatic Relevance 1. Prejudice and Confusion (FRE 403) Judge has broad discretion to exclude relevant evidence. What 410 giveth, 403 taketh away. Many times, P might argue relevance while D argues prejudicial. 403 is a balancing act based on probative value (probative of element). Can only keep evidence out if its prejudice substantially outweighs its probative value. Proponent has the burden of proving magnitude of probative value. 403 favors admission. FRE 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 State v Chapple: [Color photos of murder victims charred body and skull admitted, but only ID of D is at issue]. Inflammatory evidence should not be admitted if not probative of any contested issue in the case. The usual relevancy rule (401) will not be followed if inflammatory nature substantially outweighs probative value. Old Chief II: Although name of prior conviction is relevant, the risk of unfair prejudice substantially outweighed its probative value. Why should jury hear assault when felony will satisfy the element of the crime (a prior felony conviction)? a. http://en.wikipedia.org/wiki/Old_Chief_v._United_States (is this the right case?) b. http://www.oyez.org/cases/1990-1999/1996/1996_95_6556 (is this the right case?) Hold - In an opinion authored by Justice David Souter, the Court ruled that a district court abuses its discretion under the Federal Rules of Evidence if it spurns a defendant's offer to concede a prior judgment and admits the full judgment record over the defendant's objection, when the name or nature of the prior offense raises the risk of a verdict tainted by improper considerations, and when the 14

15 purpose of the evidence is solely to prove the element of prior conviction. If there is a non-prejudicial or less prejudicial substitution for evidence, that evidence should be used. Dissent - It was the intent of Congress, based on the statute, that the jury should know the specifics of the past crimes the D was convicted of. Remember that this ruling is regarding the FRE, and thus did not bind the states and their laws.

Notes on Gruesome Photographs and Prior Crimes: Just because evidence is gruesome, doesnt mean it will be excluded. Indeed, gruesome can be a good reason to admit (to show atrocity), as long as its also more probative than inflammatory. It comes down to a balancing act by the court. o Most of the time, graphic photos are admitted. 2. Limited Admissibility Evidence may be admitted to prove fact #1 (because its relevant), but not to be considered with regard to fact #2 (because its prejudicial). This is done with a limiting instruction. Evidence is used on the point for which it is competent, but limited to prevent misuse on other issues. o Note that this limiting jury instruction probably doesnt work as intended. FRE 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. 3. Completeness Providing Context If proponent introduces only 1 part of a piece of evidence, the opponent may introduce the other part(s) right away (without waiting) to paint the whole picture. Its OK to break the flow of oppositions argument to get the information in. FRE 106: Remainder of or Related Writings or Recorded Statements. When a writing or recorded statement or part thereof is introduced by a party, an adverse party may require the introduction at that time of any other part or any other writing or recorded statement which ought in fairness to be considered contemporaneously with it. Trial courts have authority (401,403, 611) to apply this rule to statements that have not been written or recorded and to other sorts of evidence as well. Also called the interruption rule, but allows adverse party to answer an incomplete presentation later in the trial if wish (rebuttal rule) 4. The Shortness of Life Trial judges can exclude probative evidence if it would be a waste of time, inefficient, needless presentation of cumulative evidence. 15

16 3. The Functions of Judge and Jury The judge alone determines admissibility under FRE 104(a). But, with regard to relevance, sometimes both the Judge and jury determine together. Whatever side the jury would favor fights that an issue is conditional relevance (so the jury makes the decision), while the other side fight s that its simple relevance (so the judge makes the decision). It really does matter! Simple Relevance: [ admissibility] Judge alone decides whether an offered item of evidence tends to establish (or refute), and whether it is consequential within the meaning of FRE 401 (tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable). Judge also decides whether proffered evidence really has a tendency in reason to prove the point for which it is offered. But its ultimately up to the jury to weigh the evidence (weight v simple). FRE 104 (a): Questions of Admissibility Generally. Preliminary questions regarding 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. Conditional Relevance: When the relevancy of evidence depends upon the fulfillment of a condition of fact, the judge performs only a screening function. When different answers are reasonable the jury decides whether the condition is satisfied. Conditional evidence is admitted subject to introduction of enough other evidence to support the appropriate jury finding. FRE 104 (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. Example: The letter will be admitted conditioned on whether Joe wrote it. Conjunction: When 2 witnesses, the relevance of what each says is conditional on what the other says. Jury will not consider and accept each of the witnesses accounts separately (ignoring questionable aspects of 1 testimony while considering the other), but will consider the conjunction of the 2 accounts. 4. The Relevance of Probabilistic Analysis Whether cases should be decided based on probabilities/numbers/odds. This type of evidence does get admitted (DNA includes probabilities). a. Sam is hit by a bus, but doesnt know whose bus. If 80% of the busses in the area belong to Joes Bussing, should Joe be liable based on only this evidence? A preponderance of the evidence (51%) so numbers alone could be said to satisfy this (8051) 16

17 b. Problems with allowing a party to bear the burden based on numbers alone (Market Share Liability, Summers v Tice) i. Permits recovery on proof inferior to particularized evidence, which at least tends to establish critical points. ii. Discourages active pursuit of particularized proof iii. Leaves nothing for the jury to decide has to find in accordance with the numbers iv. Quantifies the margin of error tolerated in the system, revealing that a civil claimant may recover nothing even when the probability is as high as 49% that he should have won. CH 3: HEARSAY Lushings objections (in order): 1) Hearsay, 2) Irrelevant, 3) Prejudicial FRE 802. Hearsay Rule. Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress. A. What Is Hearsay? The rule against hearsay - Hearsay is not admissible. 801(c) Hearsay. An out of court statement, not made by declarant while testifying at the trial or hearing, offered to prove the matter asserted. 801(a) Statement. (1) an oral or written assertion or, (2) nonverbal conduct of a person, if it is intended by the person as an assertion. Assertion: A factual statement about something. Can be true or false. 801(b) Declarant. A declarant is a person who makes a statement. Not a machine * If you dont care whether the statement is true or false, its probably not hearsay. Wright v Doe d. Tatham (England 1838) Procedural History: Cousin of the deceased challenges the will of the deceased, claiming it was procured by fraud by his steward. Facts: Cousin seeks to challenge a will that left decedents assets to his steward Cousin testifies that decedent was incapable of conducting business, childish, weak in understanding and irrational in his old age Business letters sent to decedent are introduced by will beneficiary to show that decedent was capable of conducting complex affairs Issue: Whether complex business letters are inadmissible as hearsay. Holding: Yes, the letters are inadmissible. Reasoning: The letters are being introduced to assert the proof of a matter that was the opinion of a person outside of the court. The letters would be admissible if the matter asserted was that they were 17

18
sent, but the matter asserted is the decedents competence that is merely an opinion expressed by the writer. Evidence of the beliefs of others who cannot be cross-examined and were not under oath is hearsay. Evidence is hearsay if beliefs are implied from conduct of those not in the courtroom and not under oath. If the statement of the person to the implied facts would be inadmissible, the facts that are presented to imply the statement are also inadmissible. Disposition: Letters are excluded as hearsay. Notes: 1. Start with the definition of hearsay. 2. http://en.wikipedia.org/wiki/Wright_v_Tatham 3. Conduct not intended as an assertion is not considered hearsay. 4. Remember, if something is hearsay, you can always try to argue that it should be admitted as an exception to the rule against hearsay. 5. Also, you can also argue that even if there isnt hearsay, there are the four risks involved, which should keep the evidence out anyway. Cain v. George (______, 1969) Facts: Son dies in a hotel room from carbon monoxide poisoning. When his body was discovered in the morning, there was a smoldering chair in the room. There was also a gas heater in the room. Procedural Posture: The parents brought a wrongful death action, claiming that the heater was defective and unmaintained and that caused the death. The defendant motel offered evidence of the number of people who had stayed there previously without complaint. The plaintiff objected that the silence was hearsay (made by persons not testifying). Issue: Whether silence by someone who could reasonably be expected to report a problem is hearsay if used to prove that there was no problem. Holding: No. Reasoning: As a practical matter, silence is not hearsay in this case because it derived its value solely from the credit to be given the actual witnesses themselves (i.e. they could be lying that there were no complaints). Notes: 1.

Judge decides if conduct was meant to be an assertion. [Unless its covered in 801(d)(1or 2) Statements Which are Not Hearsay.] 1. Underlying Theory: Risks and Safeguards Reasons to exclude hearsay / safeguards of trial process / why live testimony is preferable (3 absences) a. Inability to cross examine b. Lack of demeanor evidence (is this good or bad?!) c. Oath The 4 Hearsay Risks. Always use these to object to hearsay evidence: a. Misperception b. Faulty Memory c. Narrative Risk (Misstatement / Ambiguity) d. Insincerity / Distortion / Lying B. A Closer Look at the Doctrine 1. What is a Statement? 18

19 A statement is an oral or written assertion, or, nonverbal conduct if it is intended as an assertion (an assertion is a communication; a claim of something factual.) Always look for the 4 risks (perception, memory, narrative, insincerity) a. Assertive Conduct: The 4 risks appear with nonverbal conduct as well where that conduct has assertive intent (nod head, shrug shoulders, coded signal). Evidence of this behavior, if offered to prove the idea the actor sought to convey, is hearsay. b. Nonassertive Conduct: Is not Hearsay (In Federal Courts, only assertive behavior may be hearsay). Just look at the rule did the actor intend to assert a proposition, or not? i. Wright v Doe d. Tatham: [Non-assertive conduct was hearsay in old England. The act of writing the letters and the complexity of their content somehow should imply that the recipient of the letters was competent. The actual content of the letters themselves was not at issue] 1. Look at 4 risks. 2. Court likens the written statements to spoken words by a third party, which if offered for their truth, would be inadmissible statement of opinion (HS). 3. Was sending the letters assertive re: the sanity of the recipient? (no) 4. In a Federal court, this would not have been HS. ii. Cain v George: Evidence regarding non-complaints (negative hearsay) is not hearsay, as the evidence is not dependent on the veracity and credibility of declarants (past hotel guests). Non-reporting is an act, not an assertion. 1. But can still argue the 4 risks: a) Perception: Its hard to detect CO2. Maybe past guests didnt know b) Narrative: No complaints No problem c) Insincerity: Some people dont give a shit, so wont complain. c. Indirect Hearsay: Indirect hearsay cant be relied on to prove contested and substantial points in the case. i. Personal Knowledge. (FRE 602. Every witness must be shown to have personal knowledge about the matter testified to = knowledge gleaned directly from the senses.) ii. US v Check: Framing testimony to suggest what an unavailable informant (declarant) said cant circumvent the hearsay rule. (Unethical crap by US Attorney, having W recite only his side of the conversation). d. Machines and Animals Speak: FRE 801(b) provides that a declarant is a person. i. Machines: A clock would probably not be hearsay, but a screen read can be hearsay.

19

20 ii. Animals: A dog cant be a declarant. Animals treated like machines. Could try laying foundation (who trained dog, etc) 2. When is a Statement Not Hearsay? First look at why its being offered. These things are not hearsay because they are not offered to prove the truth of the matter asserted. 6 Categories: impeachment, verbal acts, effect on reader or listener, verbal objects, circumstantial evidence of state of mind, circumstantial evidence of memory or belief: a. Impeachment: A prior inconsistent statement by W is not hearsay when offered only to impeach / attack credibility (not to offer statement for its truth). Evidence of prior statement will show that W once thought the [light was green]. Judge gives limiting instruction so jury only uses prior statement for credibility purposes (not for its truth of fact). Otherwise, prior statements by W would generally be considered hearsay: 1. W was not crossed at time originally said it 2. W was not under oath when originally said it 3. No demeanor evidence when originally said it b. Verbal Acts: (overused) the statement itself has an operative effect. For example, an oral K, or solicitation. The truth behind the statement doesnt matter all that matters is that it was said. i. Content is not important. Doesnt matter if true, only matters that it was said. ii. Doesnt matter what W was thinking all that matters is what a reasonable person would believe. iii. Someone may be able to testify that someone else yelled Ill kill you! because this is operative language. c. Proving Effect on Hearer or Reader: Putting W On Notice, or to show W behaved reasonably, or had knowledge i. Example: W heard mechanic tell Joe his brakes were bad. This evidence can be allowed in, not to show brakes were bad, but to show Joe was told (put on notice) that the brakes were bad. Of course, you would also need other independent evidence showing brakes really were bad, or all this is bullshit. ii. Look at whether the statement would have affected Ws behavior. Whether W did something differently because of what was told to him. d. Verbal Objects: Ex: a book of matches with the name of a restaurant imprinted on it may be presented to show D was at that establishment. But a verbal legend is still a human expression or communication. The 4 dangers can still appear. A book of matches can be a misprint. e. Remember, generally speaking, what someone thinks (their state of mind) is irrelevant. We only care about what actually happened. So you cant get around the rule against hearsay by saying youre only offering it to show a witnesses perception of what happened. 20

21 f. Circumstantial Evidence of State Of Mind and of Memory: Conceptually troublesome. Statements admitted under the 803(3) exception cant be used to prove a fact remembered or believed i. Anna Sofers Will: Annas statement not offered to show her husband was an asshole only to show what Anna thought of him. ii. Papier-Mch Man: What Sharon said was offered to prove her memory, hence where she has been. Offered to prove she knows what the room looks like. You would need additional evidence of what the room really looked like 3. Prior Statements by Testifying Witnesses (sometimes not hearsay) FRE 801(d)(1) Statements That are Not Hearsay - Prior statement by witness: The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the (out of court) statement is: (A) Inconsistent with the declarants testimony, and was given under oath subject to penalty of perjury at a trial, hearing, or other proceeding or (B) Consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive, or (C) One of identification of a person made after perceiving the person Bottom Line: As long as a prior inconsistent statement by W was made under oath subject to penalty of perjury, it can be introduced even if its offered for the truth of the matter asserted. This takes it one step further than impeachment. [E.g.: Grand Jury testimony]. Things in 801(d) are Not Hearsay because the rule says they arent. Otherwise, just based on 801(a-c) they would be. While the 6 Non-hearsay uses (above) are simply not hearsay plain and simple because they are not used to prove the truth of the matter asserted. Distinguish between statements that are not hearsay because of the way they are used (the 6), and statements that are not hearsay because 801(d) says so. The prior statement may have more credibility with a jury. Theyll think who got to that guy since the accident? Prior Inconsistent Statements as Substantive Evidence: Disadvantage = the lost advantage of an immediate cross (strike while the iron is hot). The ghost of the prior statement still stands (who got to him since the incident?) Cross examination will always sound like attempts to permit W to explain why he changed his story just before court. The whole adversarial thing is out the window. Cross examiner becomes Ws friend. 21

22 C. Hearsay Under Rule 801 - Nonassertive Conduct 1. Nonassertive nonverbal conduct, where a 2-step inference (to prove actors belief in a fact, hence the fact itself) is used, is not hearsay by definition of 801. 2. Visible psychological, physical, and emotional reactions even though they may suggest something about what happened are not seen as HS. a. Ex: Burst out crying is not seen by court as an assertion. It is a spontaneous reaction, and will be allowed. Neither is the nervous reaction of a bank teller. 3. Non-assertive verbal conduct is also excluded from the definition of hearsay like screaming ouch or saying hello. D. Hearsay and Nonhearsay Borderland of the Doctrine 1. Statements with Performative Aspects Problem areas of hearsay doctrine involve indirect-uses of statements, where the purpose is to use words to get at something that seems to be on the speakers mind, but is not asserted in the statement. ACN to 801: Verbal conduct that is assertive but offered as a basis for inferring something other than the matter asserted is not hearsay. Ex: Anna Sofer / Papier-Mch Man: Both had assertive verbal conduct offered as a basis for inferring something other than the matter asserted. They also had performative aspects Anna makes a public display of distaste for her husband, Sharon displays knowledge she could not have without underlying experience. Placing a bet with a bookie has a performance aspect, as does solicitation, oral K US v Singer (1983): Evidence of conduct, not intended as an assertion of fact, is not hearsay. Addressed envelope was allowed in because the fact he addressed the letter to D means he believed D lived there. a. When evidence of conduct demonstrates behavior based on belief, implications of untrustworthiness are not brought into play (people conform their behavior to their beliefs). b. Idea that an inference drawn from out-of-court behavior is trustworthy. Assumes people base their actions on their true beliefs. c. Envelope would not have been admitted if it had been offered to assert the implied truth of it (that D lived at that address). Instead, its purpose is to imply from the landlords behavior his mailing the letter that D lived there. d. The letter isnt just an assertion, its an action (an eviction notice). Mailing is important because its not just talk its an action. e. But look at 4 problems. They can still exist. Lying and Hearsay: Lying is not HS its not offered to prove the truth of the matter asserted its offered for its falsity! 22

23 a. Lying has a performative aspect To Mislead. When someone lies they are trying to do something. b. Theres no point in cross-examining c. Sometimes, lying itself is a criminal act (perjury) Significance of Disclosure: (Bruno casually mentioned the drug plane was parked at his airstrip) Not offered to prove the plane was at the airstrip rather, to prove he was aware the plane was there, and had no qualms about sharing that information. Its what the statement does, not because it tends to prove what Bruno says is true. 2. Using Statements to Prove Matters Assumed Implied Assertions: US v Pacelli: Testimony regarding statements which imply facts presented to prove their own truth is hearsay. An Implied Assertion. Out of court statements and behavior by Ds family regarding the murder clearly implied knowledge and belief on the part of 3rd persons, not available for cross, that D did it. These statements may not have been actual assertions, but the assertions were easy to imply. Statements that are Not Declarative Sentences: Questions, Commands, and Imperatives can still express and communicate factual points, yet they dont really look like assertions in the formal sense. Yet, a question may have assertion implicit in it, and may therefore be hearsay. Look at intent to communicate. Many times, courts rule these as nonassertive questions, and not hearsay. But these can be argued both ways. a. Ex: In order to prove there is a barn, evidence is offered that D said look at the red barn. This is a nonassertive statement but it communicates a factual point, and is hearsay. b. Ex: In order to prove D is Gato, evidence is offered that everyone called him Gato. These are nonassertive statements, but they do communicate factual points and are hearsay. Using Statements to Prove Unspoken Thoughts: Statement I didnt tell them anything about you. if what D was really thinking was we both know youre in this up to your ass, and Ps purpose of offering the statement is to show he was involved, then it is HS because the statements probative value depends on the truth of an assumed fact it implies. CH 4: HEARSAY EXCEPTIONS 37 Exceptions to HS are categorized into 4 groups: 1. Prior Statements by Witnesses 3 exceptions found in 801(d)(1) apply to certain prior statements by testifying Ws. Statutory magic makes these not hearsay. 2. Admissions Doctrine 5 exceptions found in 801(d)(2). Statutory magic. 3. Unrestricted Exceptions 24 listed in FRE 803. May be offered to prove what they assert regardless whether declarant testifies, and regardless of whether declarant can be produced. 4. Unavailable Witness 5 exceptions set out in 804(b) may be invoked only if declarant is unavailable as a witness under 804(a). 23

24 A. Exceptions Declarant Testifying 801(d)(1) defines as not hearsay, 3 different kinds of prior statements by a witness. Evidence offered under 801(d) is offered for its truth, and is also subject to cross-examination. 1. Prior Inconsistent Statements FRE 801(d)(1)(A): A statement is not hearsay if the declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (A) inconsistent with the declarants (current) testimony, and was given under oath subject to penalty of perjury at a trial, hearing, or other proceeding, or in a deposition

a. Reluctance to admit prior statements by Ws expresses: i. Strong preference for live testimony ii. Fear that admitting these will encourage reliance on them iii. Fear that admitting these will add pressure to obtain these statements iv. Deferred cross is inferior to instant cross b. 801(d)(1)(A) is a compromise. Allows prior statement if three conditions met: i. Witness must now be cross-examinable on the prior statement (these special circumstances do not require that W was cross-examinable back when he said the prior statement). ii. Statement must be inconsistent with present testimony iii. Prior statement must have been said under oath in a prior proceeding or deposition. c. State v Smith: A sworn written statement (written under penalty of perjury), inconsistent with current testimony, may be introduced if reliable. What constitutes other proceeding? i. To find out, look at legislative intent / policy behind the rule: 1. To remove doubt as to whether statement was actually said 2. To provide minimal guarantee of truthfulness that an oath and formal setting provides. ii. Key Q: Is prior statement reliable? A statement made nearer to the time of the incident is more likely to be reliable. iii. Analyze each situation on an ad hoc basis, considering totality of the circumstances, and looking toward reliability. d. Prior Proceedings: Most federal cases exclude stationhouse declarations. Grand juries and preliminary hearings suffice. e. Memory Loss and Cross Examinability: Forgetfulness of a prior statement is considered inconsistent for the sake of 801(d)(1). 24

25 i. Inconsistency is found in evasive answers, silence, or changes in positions. ii. Judge makes the call in a 104(a) ruling. 1. Feigned: The prior forgotten statement will be allowed in as inconsistent if its considered feigned or a refusal to testify. W can be subject to cross on his prior forgotten statement. 2. Genuine: If memory loss really is amnesia, in some cases it will not be allowed in because of inability to cross. 2. Prior Consistent Statements FRE 801(d)(1)(B): A statement is not hearsay if The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (B) Consistent with the declarants testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive a. Prior consistent statements are not hearsay under 3 Circumstances: i. W must be cross-examinable at trial (now) re prior statement ii. Statement must be consistent with present testimony iii. Must be offered to rebut a charge of recent fabrication or improper influence or motive (like cross-examiner says you just made that up, you can prove you said the same a long time ago) b. Allowing these statements in repairs or rehabilitates the witness, only if it was uttered before the accused influence or motive came into play. c. Permits substantive use of prior consistent statement may be taken as proof of what it asserts. 3. Prior Statement of Identification FRE 801(d)(1)(C): A statement is not hearsay if The declarant testifies at the trial or hearing and is subject to cross examination concerning the statement, and the statement is (C) One of identification of a person made after perceiving the person a. Concept: Eyewitness testimony (remembering a face seen for only a short time) is unreliable evidence. An ID made closer to the incident is little more reliable than one made months or years later. b. Wade-Gilbert Doctrine: per se rule that blocks use of some pretrial statements of identification that might otherwise fit 801(d)(1)(C) i. Those obtained in post indictment lineups where no counsel present ii. Those obtained in unnecessarily suggestive circumstances prior to indictment. 25

26 c. The identifier must be subject to cross. A cop who was present could describe the nature of circumstances and even tell what identifier said, but cops testimony cannot substitute for the necessary cross. d. W tells a cop on the scene he did it (pointing to D) but then, cant be sure during trial 1 year later. Under 801(d)(1)(C), testimony by cop can fill in the gap using Ws statement as a verbal marker e. Generally, cross is satisfied despite assertion of memory loss because its the very result examiner is looking for anyway (Owens) [PL: Bullshit]. f. State v Motta (1983): A composite sketch is not made inadmissible by the hearsay rule. i. Sketch is technically hearsay, as its an assertion but not hearsay by virtue of 801(d)(1)(C). ii. Psychological Studies: Identifications made by nonsuggestive methods (lineups, mugshots) reasonably soon after the offense are more reliable than in-court identifications. iii. Evidence is admissible as substantive evidence. B. Admissions by Party Opponent FRE 801(d)(2) Statements Which are Not Hearsay - Admission by partyopponent. A statement is not hearsay if The statement is offered against a party and is: (A) the party's own statement or (B) a statement of which the party has manifested an adoption or belief in its truth, (C) a statement by a person authorized by the party to make a statement [can include independent contractors] (D) a statement (1) by the party's agent or servant (2) concerning a matter within the scope of theemployment, (3) made during the existence of the relationship, or (E) a statement by a coconspirator in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under C-E. a. These statements can be testified to by anyone b. Generally, all admissions are statements with hearsay aspects that are treated as not hearsay by FRE 801(d)(2). c. Reflects adversary system idea that each is responsible for their own success by their conduct in and out of the courtroom. d. Playground Morality / Fairness dictates that what a party says can be used against him. e. Not binding. A party can try to explain away or reject what he said before. f. D cant complain that he cant be crossed! g. The last half of 801(d)(2) [The contents of the statement shall be considered] means that evidence, other than the statement itself (in 26

27 addition to), is necessary for the judge to decide if the authority, relationship, or conspiracy exists [as noted in the rules for (C, D, E)]. Note, the statement itself will be looked at to decide if the statement is allowable! 1. Individual Admissions FRE 801(d)(2)(A) A statement is not hearsay if The statement is offered against a party and is the party's own statement, in either an individual or a representative capacity a. Almost no limits, and many plausible objections routinely rejected i. Objection that declarant lacked personal knowledge rejected by FRE 801 (dog bite cases) ii. Admissions doctrine is not limited only to admissions against interest iii. Admissions of a conclusory nature. Admissions need not conform to statements the W could make on the stand in his own behalf. iv. Declarant drunk, or on pain medication when admission was stated will not bar it. v. Clear exceptions a) Declarant talking in their sleep! b) Involuntary confessions (criminal) where state played an active roll (coercion by voice of god wont do it). Confessions signed under the influence of intense drugs/pain was inadmissible because involuntary. c) If declarant is a child b. Prior Guilty Pleas: Generally, prior guilty pleas are allowed in during damage suits arising from the incident. i. With the exception of traffic violations which may vary by jurisdiction by statute. a) Citations that allow you not to come in if you just pay the thing are less likely to be admitted. b) Federal courts will not honor a state statute barring admission of a prior guilty plea to a traffic ticket. c) Way around it: Plead No Contest nolo contendere c. Bruton v US: Co-defendants confession can be used against him (801d2A), but cant be allowed in against a D who was not present and in no way a party to it (then its hearsay) i. Humans cant be relied on to obey a limiting instruction, and ignore a confession of guilt. In certain cases like this way too prejudicial. ii. Bruton could not cross the Co-defendant (a D cant be made to testify) iii. This decision binds the state courts d. Redaction. When the name of a Co-D is __ out of a confession! 27

28 i. In cases where its obvious who X is, Gray v Maryland (1998) states that redaction is too close to Bruton, and is inappropriate. Remaining alternatives: a) Separate trials (costly judges hate) b) Dont offer confession (never happen) c) Two juries (good one!) e. His Masters Car: Statement of admission by ex-employee can be used against himself as an admission but it cant be used against his employer unless employed at the time. 2. Adoptive Admissions FRE 801(d)(2)(B) A statement is not hearsay if The statement is offered against a party and is a statement of which the party has manifested an adoption or belief in its truth a. One who adopts the statement becomes the declarant of the statement. b. US v Hoosier: Failure to protest a statement, which if untrue one would be expected to protest, is deemed an adoption. Silence may constitute an adoption no oral manifestation necessary. i. Hoosier never denied his girlfriends statements to W ii. This is not determinative, but it is admissible c. Tacit Admissions: Silence can be an admission under certain circumstances. This can include the use of a third partys written statement (in using a physicians statement to support an insurance claim, you adopt the physicians statement as your own if you saw it before using it). Similarly, a cops warrant affidavit is adopted by the government. Elements: i. The party heard the statement ii. The matter asserted was within his knowledge iii. 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. iv. Even if these conditions are met, should still exclude statement if: a) The party didnt understand the statement b) Some physical factor explains the lack of reply c) The speaker was someone who the party was likely to ignore d) The silence was in response to questioning or comments by a cop during a custodial interrogation after Miranda warnings were (or should have been) given. d. Doyle v Ohio: Post-Miranda silence cant be used against you. A state may not impeach Ds exculpatory story by noting his failure to tell the same story (silence) post-Miranda. i. Key to this case = he was given Miranda. No inference of guilt allowed from post-Miranda silence because it violates due process. 28

29 ii. Fletcher: In cases where cops refrain from reading Miranda Ds silence can be admitted against him! iii. Jenkins: Doyle does not apply to pre-arrest silence. iv. Perkins: Jail cell questioning by undercover agent does not fall under Miranda (Miranda forbids coercion not strategic deception). v. Mauro: Conversations recorded in interrogation room between D and his wife when cops not present also not protected by Miranda (no interrogation) e. In deciding whether a statement was adopted, either the judge will decide alone, or the judge will decide that a reasonable jury could reach a conclusion (judge acts as gatekeeper). 3. Admissions by Speaking Agents FRE 801(d)(2)(C) A statement is not hearsay if The statement is offered against a party and isa statement by a person authorized by the party to make a statement concerning the subject a. The law of agency dictates conditions where one person can act for another. b. Many times, what agents say are really verbal acts (Ks) c. Pleadings in prior lawsuits, and pleadings superseded by amendment in the pending suit, are generally admissible against party who filed them. But an admission filed in response to a request to admit [FRCP 36(b) says these cant be used for any other purpose] d. Statements admitted are not dispositive of the suits outcome. 4. Admissions by Employees and Agents FRE 801(d)(2)(D) A statement is not hearsay if The statement is offered against a party and is a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship Mahlandt v Wild Canid Survival: Statements made by employee while acting within scope of employment, during existence of relationship, are admissible against employer. a. No implied requirement that W have personal knowledge of facts he states (Poos didnt really know that the wolf bit the kid) he manifested his adoption or belief in its truth. b. Note and statement he made are good against him (as individual admission) and his employer (fit under 801d2D) c. Board minutes, where Poos wasnt there, are not good against him but are good against employer Public Employees / Government: Trend is not to give the government a special rule. In a criminal case, the government is Ds party-opponent. The entire Federal Government in all its capacities may not apply, but 29

30 prior written / oral statements by the Justice Department do (under adoptive admissions doctrine). Internal Statements: Airline Crash Investigation committee findings can be used against them as admissions. Board meeting minutes can be used as admissions. Cedek: A statement by P that her superior had repeated to her what his superior had said. This admission may be allowed in because of the organizational setting all are agents of the company speaking on activities within the scope of their employment 5. Coconspirator Statements FRE 801(d)(2)(E) A statement is not hearsay if The statement is offered against a party and is a statement by a coconspirator of a party during the course and in furtherance of the conspiracy a. Elements P must show: i. Coventurer (declarant was in cahoots) ii. Pendency (said it during the course of the venture not before or after although exception made for re-painting the stolen car) iii. Furtherance (said it in trying to reach the goal of the substantive crime) b. Review: Conspiracy is an act of agreeing to commit a crime i. Very hard to keep this evidence out ii. Agreement can be implied in fact iii. Prosecutors love conspiracy because it 1. Gives advantages in selecting venue (anywhere any part of conspiracy transpired) 2. Can join multiple defendants who committed different crimes at different places 3. Provides possibility of conviction even if main substantive counts fail 4. Useful evidential conventions (only slight evidence needed to link a D to a conspiracy) c. Problems: i. Bootstrapping: Judge will look at the statement itself in order to determine if the conspiracy exists that would allow the statement to come in. ii. Coincidence: Conspiracy is both a predicate fact in the exception, and an element of guilt. The judge will be deciding if one existed in deciding whether to let evidence in, while the jury will decide if one existed in deliberating ultimate guilt or innocence. Judge and Jury may reach different conclusions: 1. Different Standards for finding whether a conspiracy existed: a) Judge = preponderance; 30

31 b) Jury = beyond reasonable doubt. 2. Judge knows the law better than the jury. iii. Many of these statements are verbal acts (committing a crime) iv. D does not have to actually be charged with conspiracy in order to have evidence brought in against him this way. v. Declarant does not need to have Personal Knowledge vi. Can be used in a civil suit too! d. James Hearing: Resolve threshold issues before admitting coconspirator statements without the jury around i. Order of Proof where some courts require a showing of conspiracy and of the connection to D before admitting declarations of conspirator. e. Bourjaily v US: A court, in determining if a conspiracy existed, can consider the out-of-court statements which themselves are the subject of admissibility (bootstrapping is OK) i. Court uses plain meaning of FRE 104 rather than look at legislative intent [ala Scalia]. PL: Nonsense! If something doesnt seem right - but its clear, doesnt mean you just leave it at that! Need to look at legislative intent 1. Court decides that per 104(a), lower judge was not bound by rules of evidence in determining whether a conspiracy existed (ok) 2. Court decides that judge was not required to look at independent evidence alone in determining if conspiracy existed. That 104 allowed Judge to just look at the hearsay evidence itself. ii. This has now been changed, somewhat, by amendment [last part of 801(d)(2)]. Now, The contents of the statement shall be considered but are not alone sufficient iii. FRE 104(a) decisions must be based on a preponderance of the evidence. C. Unrestricted Exceptions 23 of em. In most cases (except 5 and 18), even if declarant unavailable. This stuff is just as good as in-court testimony. 1. Present Sense Impressions and Excited Utterances These two overlap. They originated in CL res gestae (things that happened). Idea is that the event and the statement were so close that the event impelled the statement. Also the declarant had no time to lie or forget, and that he focused his attention on what he described. FRE 803(1) Present sense impression. A statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. a. Immediacy is the key. Declarant describes what he sees/hears very soon after as he sees/hears it. 31

32 i. Idea is there is no time to lie, and no memory problem (but there are still perception problems). ii. Helps identify criminal iii. Usually, testifying witness has seen and can corroborate whatever is described in a present sense impression - but corroboration is not required. iv. A present sense impression can be written. b. Nutall v Reading: Wife overhears husbands side of the telephone call. His present sense impressions used to prove what his boss was saying on the other side of the line (that he was coerced to go to work). i. Both parties to the conversation were dead ii. Personal knowledge not necessary 803(2) Excited utterance. A statement relating to a startling event or condition made while the declarant was under the stress of excitement caused by the event or condition. a. Excitement is the key. Declarant sees a startling event that rivets his attention, and then (or later but still in its sway) he speaks in reaction. i. But - excitement can make perception and memory even worse! There are also narrative problems. ii. Used a lot to admit statements by victims of criminal assault and people injured in accidents. iii. Emergency 911 calls fit this exception iv. Its the declarants stress that matters not the witnesses! b. US v Iron Shell: Providing that declarant remains in a continuous state of excitement, statements hours later can still qualify under this exception. i. Totality of the circumstances approach is used to determine, on a case-by-case basis, whether this exception applies: ii. A lapse of time is relevant (whether she is still under stress) but not dispositive. Whats most important is whether statement was spontaneous, excited, and impulsive rather than the product of reflection or deliberation. Other factors to be considered: a) Age of declarant b) Physical and mental condition of declarant c) Characteristics of the event d) Subject matter of statements iii. But cops asking her questions gave her time to reflect before answering. Lacks spontaneity. iv. Alternative holdings = weaker precedent 2. State of Mind FRE 803(3). Then existing mental, emotional, or physical condition. A statement of the declarant's then existing 32

33 state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health) .

Four (4) Basic Uses: To prove (1) declarant's then existing physical condition, his (2) then existing mental or emotional condition, (3) his later conduct, and (4) facts about his will. 1,2,4: What declarant said is probably the best source of information 1,2,3: Prior statement has virtue of immediacy 1&2: A backwards looking statement (stated now) is next best alternative 1-4: Risk of misperception is small, and risk of faulty memory nonexistent. Risks of candor and ambiguity remain Every out-of-court statement includes an implied assertion of belief (if W said the light was red then it implies he believed the light was red), but the belief is not usually relevant (thats why irrelevant is a good objection if proponent says hes not offering the evidence to prove the matter asserted). This exception comes up when declarants belief is relevant like in criminal trials, proving mens rea. Generally, problems are Narrative and Sincerity not memory or perception. a. Then-existing Physical Condition In PI suits, this invoked for statements describing aches and pains. It does not matter whether declarant speaks close to the time of the injury, as long as he describes how he feels as he talks. No matter who statements are told to. b. Then-existing Mental or Emotional Condition Where state of mind is material (typically criminal cases) i. Exception only reaches statements of present mental state. Sometimes a state of mind will persist over time, but generally, courts will not draw inferences of continuity particularly to the past. ii. You can offer your own, or a non-partys out-of-court statements too. iii. Have to ask yourself Whose state of mind is relevant? A victims state of mind is not relevant in a murder trial [unless claiming self-defense!] iv. Proving State of Mind by Fact-laden Utterances: Often factual statements indicating mental state. A factual denial of a credit report says, in effect, you cant be trusted. 33

34 You can get statements like this in under 803(3) to prove state of mind. c. Subsequent Conduct Statements of intent are allowed. All about what declarant intended to do. Im going to the movies with Dan can be introduced to prove I went, and Dan went, to the movies. i. Mutual Life Insurance v Hillmon (1892): Whenever an intention is a distinct and material fact (not necessarily an ultimate issue), it may be proved by oral or written statement. 1. Hillmon Rule: Evidence of intention tends to prove the doing of the act intended. 2. The state of mind does not have to be an issue in the case it can still be used inferentially to prove other matters that are an issue. 3. When performance of an act is an issue in the case, the actors intention to perform the act may be shown. From that intention, the ff may draw inferences that the person performed the act. ii. US v Pheaster (1976): Carries the Hillmon doctrine one step further the use of declarants statement of intention to draw inferences about what another person did. Hearsay evidence of statements of intention to do something with another person is admissible to show he intended to do it, from which the ff can infer that they both did it. 1. Out-of-court statement used to prove that declarant and D met in the parking lot. No other corroborating evidence existed! 2. I am going to meet Angelo = a) Statement of declarants intention b) Statement of Angelos intention (note that this has nothing to do with declarants state of mind) 3. Problems: a) Unreliable inference b) Inference is inconsistent with the state-ofmind exception, because part (half?) of the statement has nothing to do with the declarants state-of-mind. iii. State of Mind as Proof of Conduct 1. Declarations of intention, casting light on the future, must be distinguished from declarations of memory pointing backwards to the past. The exception does not apply to statements of memory or belief about past actions or events, when offered to prove the past event took place (Sheppard - I believe that my husband has poisoned me cant be admitted to prove she was poisoned) 34

35 2. Some post-Pheaster cases have stated that state-ofmind statements can be used to prove a later meeting between the speaker and another only if there is corroborating evidence. 3. Annunziato: Intent can be inferred. The statement John wants money = Im going to give John money. iv. Statements and Behavior by Murder Victims Indicating Fear: A victims fear is not relevant because its not an element of murder (only the assailants state of mind is relevant) d. Facts about Declarants Will Typically, the state of mind exception can only be used to prove state of mind, and not the fact remembered or believed. With wills, the guy is dead. Necessity requires a more lax treatment evidence can be used to prove the fact remembered or believed. Backwards looking is OK. Its the best evidence you are going to get! i. Declarant is likely to be well informed on the subject ii. Declarant is dead iii. Declarants own views on the subject may be as trustworthy as live testimony by interested parties disputing the estate. 3. Statements to Physicians FRE 803(4) Statements for purposes of medical diagnosis or treatment. and describing medical history, or past or present symptoms, pain, or sensations insofar as reasonably pertinent to diagnosis or treatment. a. Assume declarant is going to be careful, accurate, and sincere when describing symptoms to his doctor. b. Applies even if the doctors visit is for diagnosis only. c. Includes both present and past symptoms (complaints of pain in the past so broader than the state of mind exception). d. Includes statements by third persons describing accident/wounds (parent of a sick child, etc.) e. Includes statements to psychiatrists as long as treatment/diagnosis requirement is met. f. All statements consistent with the purposes of promoting treatment, and which are reasonably relied upon by doctor in treatment or diagnosis. g. Statements as to fault do not ordinarily qualify. Doctor needs to know a car hit you not that the car ran a red light. h. Blake v State (1997): Child Sexual Abuse exception i. Court says ID of assailant is part of the diagnosis / part of the medical treatment ii. Age goes to weight rather than admissibility iii. Child abuse cases blot out all traditional evidence rules 35

36 4. Past Recollection Recorded FRE 803(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party. a. Not refreshing memory with notes (thats always ok) here, actually reading the notes. b. Idea is get more accurate information with the notes than without. c. As long as declarant is testifying as a witness, and can be crossed d. Must demonstrate 4 things: i. W lacks present recollection ii. Statement accurately reflects knowledge W once had (W testifies to its accuracy) iii. W made or adopted the statement iv. W did so while the matter was fresh in his mind e. Adopted: Where one person writes a statement that another reads and then signs. f. Bank robbery hypo: Observer who saw license plate and guard who wrote down number both testify that their parts were accurate. g. Sworn statements to an agent qualify 5. Business Records FRE 803(6) Records of regularly conducted activity. A record of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the record unless [there is a ] lack of trustworthiness FRE 803(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). Evidence that a matter is not included in the records kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a record was regularly made and preserved a. Four (4) Elements of the exception: i. Regular business; regularly kept record. Source of the information must have been acting in the course of regular business activities. ii. Personal knowledge of source: Creator of the records must have had personal knowledge. 36

37 iii. Contemporaneity: The record is made close to the time of the event. iv. Foundation testimony: All hearsay requires a foundation, but this one requires it by custodian of records or other qualified W. W does not have to be the creator of the records just competent to testify regarding them. b. Police records count for civil suits. c. Accident Reports may be doubted. Examined on case-by-case basis to see if self serving or untrustworthy (Palmer). d. Petrocelli v Gallison (1982): For a business record to be admissible, the source of the information contained therein must be known (person with knowledge) i. Here, doctors records not allowed in because it was possible that the record was created based only on the patients complaints. If so, and it was not a professional record of doctors observation, then the record was created by an unqualified individual. ii. If the record had been based solely on Ps complaint, then it probably could have gotten in under 803(4). 6. Public Records FRE 803(8) Public records and reports. Records of public offices or agencies, setting forth (A) the activities of the office or agency, [mundane stuff like court transcripts] or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, [building department inspections] or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted by law, [FAA reports, accident reports] unless the sources of information or other circumstances indicate lack of trustworthiness.[wildcard] a. Public officials do not remember much of what they record in the course of their duties. b. Do not need a W a certified copy is sufficient (seal or affidavit) c. Cannot convict someone on a police report but a police report can be used in a civil suit between two private parties. d. 803(8)(c) can save you a lot of work! e. Trustworthiness is based on: i. Timeliness of the investigation ii. Use of hearing procedures iii. Skill and motivation of investigator f. Baker v Elcona Homes (1978): Factual findings, including evaluations and opinions in public reports are admissible unless grounds for untrustworthiness. 37

38 i. Here, a police report, including vector analysis was admitted in a civil accident suit ii. These reports can be used in a civil suit, or when the government is the defendant in a criminal proceeding iii. To determine Trustworthiness of the source of the information, ACN looks at four factors: a) The timeliness of the investigation b) The special skill or experience of the official c) Whether a hearing was held and the level at which conducted (not dispositive) d) Possible motivational problems of investigator g. US v Oates (1977): In criminal cases, reports of public agencies setting forth factual findings from investigations are inadmissible hearsay if sought to be introduced against the accused. i. Reason inadmissible deprives the accused of constitutional right to confrontation ii. Think twice before you stipulate to a fact iii. Between legislative history and balance of rules, you shouldnt be able to get in through a hole in the fence when evidence is clearly meant to be excluded. 7. Learned Treatises FRE 803(18) Learned treatises. To the extent called to the attention of an expert witness upon cross-examination or relied upon by the expert witness in direct examination, statements contained in published treatises established as a reliable authority by the testimony or admission of [a] witness or by judicial notice. If admitted, the statements may be read into evidence but may not be received as exhibits. 803(18) allows full use of treatises where it is shown to be a reliable authority, and either the expert relies on it in direct examination, or it is called to his attention on cross. a. Use on cross get opponent to concede that its a reliable authority, and then use it to weaken their basis b. If admitted into evidence, it can be read to the jury D. FRE 804. Hearsay Exceptions; Declarant Unavailable Declarant must be unavailable in order to use these exceptions. Idea is thats its better than nothing at all although not as good as live testimony. FRE 804: Hearsay Exceptions; Declarant Unavailable (a) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant (1) is exempted by ruling of the court on the ground of privilege or (2) persists in refusing to testify or (3) testifies to a lack of memory of the subject matter or (4) is unable to be present because of death or physical or mental illness or 38

39 (5) is absent and the proponent of a statement has been unable to procure the declarant's attendance by process or other reasonable means. A declarant is not unavailable as a witness if absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. (b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness [per 804(a)]: (1) Former testimony. Testimony given as a witness at another hearing if the party against whom the testimony is now offered, or, in a civil action a predecessor in interest, had an opportunity and similar motive to cross (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action a statement made by a declarant while believing that [his] death was imminent, concerning the cause or circumstances of [the] impending death. (3) Statement against interest. A statement which was at the time of its making so far contrary to the declarant's interest that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. (4) Statement of personal or family history. (A) a statement concerning the declarant's own birth, adoption, marriage or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge or (B) a statement concerning the foregoing matters of another person, if the declarant was related or was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. (5) [Transferred to Rule 807 ] (6) Forfeiture by wrongdoing. 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. 1. The Unavailability Requirement 804(a) "Unavailability as a witness" is satisfied where the declarants testimony is unobtainable. Declarant himself can be sitting in the courtroom! The judge determines if he is unavailable for purposes of the rule. Includes the following 5 situations: (1) Claim of privilege. is exempted by ruling of the court on the ground of privilege from testifying [5th Amendment; litigated and ruled by the judge]; or (2) Refusal to Testify. persists in refusing to testify [must refuse direct orders; threat of contempt]; or (3) Lack of Memory. Cant remember the event itself not just the statement; litigated and ruled by the judge. 39

40 (4) Death, Illness. (5) Unavoidable absence. is absent, and the proponent of a statement has been unable to procure the declarant's attendance. Cant get by subpoena; cant get deposition testimony either; expected to try very hard. Procurement or wrongdoing. A declarant is not unavailable as a witness if the unavailability is due to wrongdoing by the proponent. Procured Absence: If government refuses to grant immunity procurement. Gov. can detain a material witness in which case, W has to post bail or get put in jail! Barber v Page (1968): A witness is not considered unavailable for this exception unless there is a good faith effort to bring him in. a. Can get a W out of prison to testify b. Constitutional case law re: due process. Deprived D of his right to confrontation. You have to try to make W available. c. Never accept that cross at a preliminary hearing is a sufficient substitute for cross during a trial. Much more limited / restricted. Different motivations. Purpose of a preliminary hearing = establishing whether there is probable cause to bind D over for trial. Depriving D of his right to cross just cause he didnt do so at preliminary hearing is unfair. 2. The Former Testimony Exception 804(b)(1) Once you get past the threshold question of unavailability, then look at 804(b): FRE 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (1) Former testimony. Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. a. Key: opponent (or predecessor in interest if civil) had an opportunity to cross b. Let jury hear what was said previously usually by means of a transcript. c. Does not require judicial proceeding. Includes depositions, administrative hearings, and preliminary hearings in criminal cases. d. Generally, its unfair to impose upon the party against whom the hearsay evidence is being offered, responsibility for the manner in which another party previously handled the witness. 40

41 i. Only exception is where its a Civil action, and the partys predecessor in interest had the opportunity and similar motive to examine the witness (doesnt mean he did cross) ii. Concept of Privity where a person may be bound or affected by what his predecessor in interest has done like res judicata or collateral estoppel. e. Difference between 804(b)(1) and 801(d)(1)(A) [prior inconsistent statements]: i. 804(b)(1) ReMquires a prior opportunity to cross the declarant. ii. 801(d)(1)(A) Requires a present opportunity to cross the declarant. f. Lloyd v American Export Lines (1978): In civil case, prior testimony of an unavailable witness is admissible if party against whom it is offered or their predecessor in interest had the opportunity and similar motive to cross. i. Former testimony was subject to cross by another party D himself never had the opportunity. Court considers the Coast Guard a predecessor in interest. ii. Predecessor in Interest was never defined by congress. Court says if it appears that in the former suit a party having like motive to cross-examine about the same matters as the present party would have, and was accorded the opportunity, the testimony may be received against the present party. In other words, similar motive and community of interest is sufficient. iii. Lesson of this case stupid arguments can win! Here, Attorney has court believing that the Coast Guard was a predecessor in interest to the D just because they shared some common goals that Ds interests were adequately represented. 3. Dying Declarations 804(b)(2) FRE 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (2) Statement under belief of impending death. In a prosecution for homicide or in a civil action or proceeding, a statement made by a declarant while believing that the declarant's death was imminent, concerning the cause or circumstances of what the declarant believed to be impending death. a. Declarant has to believe his death is imminent (Sheppard case there must be a settled hopeless expectation) AND b. Statement must be about the cause or circumstances surrounding his death (Id assailant or describe accident) 4. Declarations Against Interest 804(b)(3) FRE 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (3) Statement 41

42 against interest. A statement which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarant's position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. a. General Considerations Reasonable people do not say things against their self-interest unless its true. Traditionally a civil concept, but is also applied to statements against penal interest. Better to go for Admissions doctrine when able less restrictions. i. Declarants Understanding: Declarant has to understand his own interests and how the statement could affect them. Must know statement is against your interest at the time that you say it (knowledge is required) ii. Context: is important. I owe Joe $5 is not against interest if I really owe him $10. iii. Conflicting Interests: A single statement may further one interest and impair another. (Ex. signing a document waiving right to $100 tomorrow in return for $50 today) Courts will either: 1. Exclude the statement on the grounds that the conflicting statements cancel each other out 2. Determine whether the statement was predominantly disserving or self-serving, and admit accordingly iv. One Way Interest: Sets a maximum or minimum based on statement that gives a clue to the direction of the interest: 1. If declarants intent was to aim high (projected revenues in lieu of sale) statement used to set maximum 2. If declarants intent was to aim low (income taxes) statement used to set minimum v. Effect of Later Events: Against interest requirement is not satisfied if statement only becomes damaging after it is said in light of unexpected events vi. Can offer your own statement against interest vii. All Judge can do is let it in can still argue weight to the jury. b. Criminal Cases Statements Implicating the Accused: Statements made against the declarants own penal interest fit the exception. But, difficult cases arise where the declarants statements implicate or exonerate a third party 42

43 i. Lilly (1999): Curry-favor statements are suspect, and are generally not admitted. The against-interest exception is not firmly rooted under the constitutions confrontation clause when applied to a confession implicating the accused. 1. Hearsay fitting a firmly rooted exception may be offered against the accused without infringing on his Confrontation rights. Hearsay that does not fit a firmly rooted exception (like this) may be admitted only if specific factors indicate that it is trustworthy and corroborative evidence does NOT count. 2. Special Inquiry is Necessary. Evidence not admitted if it cant be deemed trustworthy by virtue of its own inherent trustworthiness (independent of corroborative evidence). 3. Lilly made this a constitutional thing. ii. Williamson v US (1994): 804(b)(3) does not allow admission of non-self-exculpatory statements, even if they are made within a broader narrative that is generally selfinculpatory especially when the statement implicates someone else! 1. Majority (6): Single declarations / individual remarks must be considered individually (as to whether they are self-inculpatory). a) Collateral statements (statements that are merely related to against-interest statements) made as part of a confession even neutral ones, are just excluded hearsay. 2. Minority (Kennedy + 2): If confession as a whole is against self-interest, collateral statements within the confession can be admitted 3. Declarant refuses to talk hes unavailable for purposes of 804(a), even though hes sitting in the courtroom. Jury does not hear that he refuses to talk too prejudicial. 4. Self-inculpatory statements must be examined in terms of whether a reasonable person would believe the statement is against interest. 5. Context is important, and co-defendants make the analysis more complicated. A statement that appears on its face to be against self-interest may really be an effort by Declarant to save his ass by sharing the blame. Need to look at declarants motivation. A reasonable person in Ds shoes might think that implicating someone else might decrease his own exposure to criminal liability at sentencing c. Criminal Cases Statements Exonerating the Accused: A statement tending to expose the declarant to criminal liability and 43

44 offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. d. Corroboration Requirement; Other Details: Many modern courts apply the corroboration requirement to statements that implicate as well as those that exonerate. 5. Statements of Personal or Family History 804(b)(4) FRE 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (4) Statement of personal or family history. (A) [Self] A statement concerning the declarant's own birth, adoption, marriage, divorce, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history, even though declarant had no means of acquiring personal knowledge of the matter stated; or (B) [Another person] a statement concerning the foregoing matters, and death also, of another person, if the declarant was related to the other by blood, adoption, or marriage or [even if only] was so intimately associated with the other's family as to be likely to have accurate information concerning the matter declared. a. Part (A) Acknowledges that declarant lacks personal knowledge (My mother told me I was born in NYC). Proof of relationship is probably not required. b. Part (B) Includes a statement about someone elses family as long as intimately involved with that family. Court may require independent evidence that declarant belongs to or is intimate with the family. c. Courts will sometimes exclude self-serving statements and those motivated by greed, ill will, or forces suggesting untruthfulness. d. Evidence as to motive or purpose, highly debatable or controversial matters are not within the scope of the exception e. Can involve hearsay within hearsay 6. Statements Made Admissible Because of Forfeiture by Misconduct 804(b)(6) FRE 804(b) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness: (6) Forfeiture by wrongdoing. 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. a. PL: Its like saying you were bad so were going to take away your procedural rights b. Forfeiture Waiver. Waiver = voluntary relinquishment of a right 44

45 Forfeiture = a penalty for not playing by the rules c. Judge decides if D did this based on (as always) a preponderance standard. d. What the heck is the meaning of acquiesced here anyway? e. Generally, D has a due process right to be present in a hearing regarding whether hearsay statements can be admitted against him. In cases where declarant is killed, these hearings can resemble a mini murder trial. f. If a D knows that others are acting in his interest in threatening a W, forfeiture will occur if D does nothing to stop them (but hard to prove). E. The Catchall Exception FRE 807. Residual Exception. A statement not specifically covered by Rule 803 or 804, but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that: (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence. However, a statement may not be admitted under this exception unless the proponent [gives notice] to the adverse party sufficiently in advance of the trial or hearing to provide the adverse party with a fair opportunity to prepare to meet it 1. Rarely allowed by the judge 2. Only admitted in cases of extreme probative worth, where the offered evidence is the best evidence available (more probative than any other evidence) 3. Cannot be invoked without prior notice to adversary 4. Child Abuse: Generally all evidence will be allowed (rules of evidence and civil procedure protections go out the window) F. The Minor Exceptions 1. Ancient Documents FRE 803(16) Statements in ancient documents. Statements in [an authenticated] document in existence twenty years or more 2. Market Reports, Commercial Lists FRE 803(17) Market reports, commercial publications. Market quotations, tabulations, lists, directories, or other published compilations, generally used and relied upon by the public or by persons in particular occupations. a. Telephone books! 45

46 b. If people rely on this stuff in daily life, why shouldnt the courts? 3. Felony Convictions FRE 803(22) Judgment of previous conviction. Evidence of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a [felony], to prove any fact essential to sustain the judgment, but not including, when offered for purposes other than impeachment, judgments against persons other than the accused a. Not available for pleas of nolo contendere b. To prove facts essential to sustain the judgment c. In criminal cases, government cannot introduce prior convictions of third persons for purposes other than impeachment (would violate confrontation clause) 4. Absence of Records FRE 803(7) Absence of entry in records kept in accordance with the provisions of paragraph (6). to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a record was regularly made and preserved FRE 803(10) Absence of public record or entry. To prove the absence of a record or the nonoccurrence or nonexistence of a matter of which a record was regularly made and preserved by a public office or agency, evidence that diligent search failed to disclose the record 5. Birth, Marrige, and Death FRE 803(9) Records of vital statistics. Records of births, deaths, or marriages, if the report thereof was made to a public office pursuant to requirements of law. FRE 803(11) Records of religious organizations. Statements of births, marriages or other similar facts of personal or family history, contained in a regularly kept record of a religious organization. FRE 803(12) Marriage, baptismal, and similar certificates. Statements of fact contained in a certificate that the maker performed a marriage or other ceremony or administered a sacrament, made by a clergyman, public official, or other person authorized to perform the act certified, and purporting to have been issued at the time of the act or within a reasonable time thereafter. FRE 803(13) Family records. Statements of fact concerning personal or family history contained in family Bibles, genealogies, charts, engravings on rings, inscriptions on family portraits, engravings on urns, crypts, or tombstones, or the like. 46

47 6. Real Property FRE 803(14) Records of documents affecting an interest in property as proof of the content of the original recorded document and its execution and delivery by each person by whom it purports to have been executed, if the record is a record of a public office and an applicable statute authorizes the recording of documents of that kind in that office. FRE 803(15) Statements in documents affecting an interest in property. A statement contained in a document purporting to establish or affect an interest in property if the matter stated was relevant to the purpose of the document FRE 803(20) Reputation concerning boundaries or general history. Reputation in a community as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community in which located. 7. Reputation Evidence FRE 803(21) Reputation as to character. Reputation of a person's character among associates or in the community. FRE 803(19) Reputation concerning personal or family history. Reputation among members of a person's family or associates, or in the community, concerning a person's birth, adoption, marriage, divorce, death, legitimacy, relationship by blood, adoption, or marriage, ancestry, or other similar fact of personal or family history. FRE 803(20) Reputation concerning boundaries or general history. Reputation in a community as to boundaries of or customs affecting lands in the community, and reputation as to events of general history important to the community in which located. G. Constitution as a Bar Against Hearsay 1. The 6th Amendment provides three clauses to protect the rights of an accused to defend himself against criminal charges: a. Confrontation Clause: The right to confront witnesses against him b. Compulsory Process Clause: The right to compulsory process subpoena witnesses c. Assistance of Counsel 2. Some hearsay exceptions passed by states may violate confrontation clause 3. Unavailability of a witness can violate confrontation clause. 4. It is possible that the invocation of an exception in certain circumstances would violate a confrontation or due process clause. If so, the constitution can be invoked as a bar against hearsay. (where confrontation clause is more stringent than evidence law) 47

48 5. Object invoking the constitution lays ground for appeal on constitutional grounds H. Hearsay Within Hearsay FRE 805: Hearsay within Hearsay. Hearsay included within hearsay is not excluded if each part of the combined statements conforms with an exception to the hearsay rule I. Attacking Declarants Credibility You can impeach a declarant too FRE 806. Attacking and Supporting Credibility of Declarant. When a hearsay statement, or a statement defined in 801(d)(2) (C, D, or E) has been admitted in evidence, the credibility of the declarant may be attacked, and if attacked may be supported, by any evidence which would be admissible for those purposes if declarant had testified as a witness. If the party against whom a hearsay statement has been admitted calls the declarant as a witness, the party is entitled to examine the declarant on the statement as if under cross-examination. CH 5: RELEVANCE REVISITED In all of the following rules (A-F), the trick for the proponent of the evidence is to find other allowable purposes to get the evidence in, where the evidence would otherwise be barred. A. Character Evidence Character evidence is usually not admissible to prove conduct on a particular occasion. 404(a) creates exceptions where character evidence can be admitted to prove conduct for example the accused can resort to such proof to show he did not commit the crime. When character evidence is admitted as proof of conduct, the proof must take the form of opinion or reputation testimony (rather than proof of specific instances). Specific instances may be raised on cross. Remember that when calling a character witness, who the witness is is more important than what he has to say. The more important the witness (for example if it was Mayor Bloomberg) the more likely he jury will believe them. This is why you dont call a convicted felon as a character witness. FRE 404 Character Evidence Not Admissible to Prove Conduct; Exceptions; Other Crimes. (a) Character evidence generally. is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accused. [Character] Evidence offered by [the accused himself], or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused evidence of the same trait of character of the accused offered by the prosecution; (2) Character of alleged victim. offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a 48

49 homicide case to rebut evidence that the alleged victim was the first aggressor; (3) Character of witness. Evidence of the character of a witness, as provided in rules 607, 608, and 609 (b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident provided that upon request the prosecution shall provide reasonable notice FRE 405 Methods of Proving Character (a) Reputation or opinion. In all cases in which evidence of character is admissible, proof may be made by testimony as to reputation [or opinion]. On cross-examination, inquiry is allowable into relevant specific instances of conduct. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. 1. Relevancy and Form a. FRE 404(a) General rule is that propensity evidence is not allowed. You cant prove D stole by showing hes a thief. Prejudice outweighs probative worth. b. Character as Evidence of Conduct: A persons nature and inclinations can be predictive of his conduct Propensity Argument: [contra to law] Justifies using proof of character as substantive evidence of conduct on a particular occasion 1. Good character is more probative than bad. If a person is of good character it makes it less likely he did it where if he is of bad character, it doesnt mean he did it this time! c. Form of Evidence: FRE 405 allow 3 ways, all involving testimony by character witnesses. i. Opinion: Witnesss opinion that D has the trait in question ii. Reputation: Witness describes Ds reputation iii. Specific Instances: Witness describes acts by D that indicate existence of a trait (past deeds). This is the most restricted form of evidence. 2. Character to Prove Conduct on a Particular Occasion a. Character of Criminal Defendant. FRE 404(a)(1). Character of accused. Evidence of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evidence of a trait of character of the alleged victim of the crime is offered by an accused and admitted under Rule 404 49

50 (a)(2), evidence of the same trait of character of the accused offered by the prosecution; i. D should be allowed to show that hes a good guy. Many times, if no alibi, this is all the evidence he has! ii. If D opens the door, P can rebut it iii. This evidence is only as good as the witness who testifies! iv. Pertinent depends on the charge v. Evidence that D is law abiding will generally be allowed vi. Evidence of good character can be enough to raise a reasonable doubt! vii. PL: Amendment is good. Before D could bring in character of V, but P could not, in turn, bring up character of D. Now P can. b. Character of Crime Victim FRE 404(a)(2) Character of alleged victim. Evidence of a pertinent trait of character of the alleged victim of the crime offered by an accused, or by the prosecution to rebut the same, or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor; Character of a victim is not an element of a crime. However, the victims character may be an element to Ds defense. If so, then D can bring in evidence of victims character to show his own stateof-mind (show D acted in fear / self defense). Character of victim then becomes an issue, with D offering evidence he was violent, and P offering evidence he was peaceful. c. Methods of Proving Character FRE 405 Methods of Proving Character (a) Reputation or opinion. [Typical] 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 P cannot ask W about Ds reputation after the crime was committed. (b) Specific instances of conduct. In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct. Specific instances will only be allowed in where victims character is an element of Ds defense (Ds behavior reasonable because D knew V had been violent in the past so D had to take self-protective measures). 50

51 d. Cross and Rebuttal FRE 405 Methods of Proving Character (a) Reputation or opinion On cross-examination, inquiry is allowable into relevant specific instances of conduct. If D offers character evidence testimony on his own behalf, P can bring in prior bad acts to rebut that testimony (specific instances that could not be brought in otherwise) P can use prior acts to challenge Ws knowledge of D (you think hes honest but did you know he stole candy when he was 10?). Cross-examiner needs only a good faith basis to bring in accusations of prior acts. Allows in innuendos and damage done to D.

e. Civil Cases FRE 404(a) does not really cover civil cases [only (3) character of W applies]. Character evidence, when offered to prove behavior in a particular instance, is never admissible in civil cases unless the underlying act was criminal in nature. 415 carves out a narrow exception for sexual assault or child molestation 3. Character as an Element of a Charge, Claim or Defense Character can be offered for reasons other than to prove conduct on a particular occasion, and, ala 405(b), even specific instances of conduct are admissible whenever character is an essential element of a charge or a defense Criminal Cases: Character is never an element of a crime. However, Character can be used in an Entrapment Defense (D never would have done it unprovoked) Civil Cases: Character is an element of several civil C/As. Where it is an element, P can bring in specific instances under [405(b) Specific instances of conduct In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that person's conduct.] a. Defamation: If newspaper accuses P of shaving points, proof of past point shaving would be admissible. b. Child Custody: Proof of parental fitness c. Negligent Entrustment: Proof of specific instances of prior negligence d. Wrongful Death: Amount of damages turns on character of the dead. 4. Prior Acts as Proof of Motive, Intent, Plan, & Related Points 51

52 Although prior acts cant be brought in as character evidence that D did it this time, prior acts can be brought in for other reasons. P can do this during case-in-chief FRE 404(b) Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, b. General Considerations: Many times the evidence is still too prejudicial under FRE 403. Many courts endorse a 4-part test: i. decide whether evidence is offered for a particular purpose ii. decide if the evidence is relevant for that purpose iii. decide if its probative worth outweighs the risk of unfair prejudice iv. Give a limiting instruction on request c. Proving Intent: Evidence of prior drug selling to show that D intended to sell drugs this time. i. FRE 404(b) requires P give D advance notice of the general nature of the evidence to be brought ii. Entrapment defense raises Q of intent d. Identity, Modus Operandi: To show a peculiar way that the crime is committed Reverse 404(b) Evidence where D wants to prove other crimes by a third person in a mistaken identity claim e. Plan, Design: To show a single, overarching scheme. First, D stole a gun as a preliminary step to robbing the bank. f. Other Purposes Knowledge: Rebut I didnt know they were drugs Malice: Motive and Opportunity = skill or capacity to do criminal acts. Child abuse cases courts tend to admit proof of previous abuse Beyond listed uses are others not mentioned in the rule but within its contemplation (list is exemplary rather than exhaustive) g. Proving the Prior Act: Prior Crimes Evidence. You can bring in victims of past crimes as witnesses to prove any of the above. 52

53 Judge first determines threshold question if probative. The rules do not require a preliminary finding by the court that the government proved a prior act by a preponderance judge just makes a threshold decision whether evidence is probative of a material issue other than character If admitted, jury will use the evidence if they determine the evidence is relevant by a preponderance.

5. Character in Sex Offense Cases a. Sexual History of Victim Rape Shield Statutes. FRE 412. Sex Offense Cases; Relevance of Alleged Victim's Past Sexual Behavior or Alleged Sexual Predisposition. (a) Evidence generally inadmissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b)&(c): (1) Evidence offered to prove that any alleged victim engaged in other sexual behavior. (2) Evidence offered to prove any alleged victim's sexual predisposition. (b) Exceptions. (1) [Criminal] In a criminal case, the following evidence is admissible (A) evidence of specific instances of sexual behavior by the victim offered to prove that a person other than the accused was the source of semen, injury, or other (B) [to prove consent] evidence of specific instances of sexual behavior by the victim with respect to the person accused offered to prove consent or by the prosecution; and (C) evidence, the exclusion of which would violate the constitutional rights of the defendant. (2) [Civil] In a civil case, evidence offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victim's reputation is admissible only if it has been placed in controversy by the alleged victim. (c) Procedure to determine admissibility [of (b) type stuff] (1) A party intending to offer evidence under subdivision (b) must -(A) file a written motion [limine] at least 14 days before trial 53

54 (B) serve the motion on all parties and notify the alleged victim or (2) Before admitting evidence under this rule the court must conduct a hearing in camera and afford the victim and parties a right to attend and be heard FRE 412(b)(1) allows in specific instances of sex to prove Consent (A) with other people, and (B) with accused. FRE 412 (c) requires a pre-trial procedure to bring in (b) evidence re V. Includes a motion in Limine, filed no less than 14 days before the trial. D is entitled to introduce evidence of victims sexual history to show a motive for making a false charge against the defendant.

b. Prior Offenses by Defendants in Sex Crime Trials. In 1994, Clinton and congress enacted three provisions (FRE 413, 414, and 415) inviting Ps to prove sexual assault or child molestation by means of evidence that D assaulted or molested others (this one turned around and bit Clinton on the ass!). Reaction was very negative. Summary: FRE 413 provides that where a D is accused of sexual assault, evidence of other sexual assault offenses is admissible and may be considered on any matter to which it is relevant. FRE 414 provides parallel language for child molestation cases. FRE 415 extends 413 and 414 to civil actions of sexual assault or child molestation. FRE 413-415 are all bare face exceptions to the hearsay rules. In all cases, you have to give advanced notice to the defendant that youre going to do this. B. Habit and Routine Practice FRE 406: Habit; Routine Practice. Evidence of the habit of a person or of the routine practice of an organization is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine 1. Habit evidence gets in. This is good relevant evidence that would have been admissible without this rule. 2. If always did things a certain way, chances are you did it that way on a particular occasion 3. Reflex, mechanistic behavior 4. Habit Character. The more specific / particular the more likely its habit. Habit is by nature regular if not invariable and has greater probative value for proving conduct on a particular occasion than character evidence does. 5. Organizational custom and practice included: a. A cop who always gives Miranda when he busts someone 54

55 b. A clerk who always posts envelopes left in the outbox c. Proof of industry practice can be admitted to show standard of care C. Remedial Measures FRE 407. Subsequent Remedial Measures. When, after an injury or harm allegedly caused by an event, measures are taken that would have made the injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove negligence, culpable conduct This rule does not require the exclusion of evidence of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, or impeachment. 1. Cant prove fault / negligence by showing D [fixed the sidewalk, fired the employee, modified the machine, changed the label] after the accident 2. Policy: If this stuff was admissible, it would deter people from fixing the sidewalk 3. Juries would overvalue this evidence 4. Rule is not limited to actions taken by D. In some cases, even P could be the one who took subsequent remedial measures (like stopping medication after an adverse reaction) D. Settlement Negotiations 1. Civil Settlements FRE 408. Compromise and Offers to Compromise. Evidence [of settlement negotiations] is not admissible to prove liability for or invalidity of the claim or its amount. This rule does not require the exclusion of any evidence otherwise discoverable merely because it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evidence is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. a. Encourages compromise / settlement. b. What was said during unsuccessful settlement negotiations cant be brought in later at trial to prove liability or invalidity of the claim. c. But can use discovery from negotiations for example, you can ask W during trial about something you learned about during negotiations d. This rule really just does away with ritual protections the way lawyers used to have to talk to each other. e. Statements must have been made during a dispute to qualify for this exception. If a guy jumps out of his car after an accident and offers $500, it is admissible because the statement was not made as part of negotiations. f. This evidence not so probative anyway. In negotiations, both parties just want peace and will say lots of stuff to get there. 55

56 2. Criminal Cases Plea Bargaining Law encourages plea bargaining. Rule effective where a plea bargain is vacated or fails. FRE 410: Inadmissibility of Pleas, Plea Discussions, and Related Statements. 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; (4) [real purpose of rule] 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. E. Proof of Payment of Medical Expenses Fair play why punish / discourage niceness of Ds willing to pay medical bills? FRE 409: Payment of Medical and Similar Expenses. Evidence of furnishing or offering or promising to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. F. Proof of Insurance Coverage This rule is a holdover from the days where negligent people tended to be insured more often than non-negligent people FRE 411: Liability Insurance. Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose. CH 6: COMPETENCY OF WITNESSES A. Historical Note In CL, lots of different people were deemed incompetent to testify. Parties to an action were even deemed incompetent. Some old CL grounds for in incompetency were: 1. Mental Incapacity (no mas) 2. Religious belief (no mas). Rule 610. Religious Beliefs or Opinions. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. 3. Criminal convictions (no mas but can be used to impeach credibility ala FRE 609) 4. Child witnesses (no mas) 56

57 5. Spouses (today, there is a limited spousal privilege for adverse testimony) 6. Accomplices (no mas) B. Modern View The modern trend is to include as much testimony as is realistic. FRE 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. 1. Little or no per se rules re incompetency 2. Judge finds competence in a preliminary hearing 3. US v Lightly (1982): Legal insanity alone does not make a W incompetent to testify. Even though W was judged insane and incompetent to stand trial, he was still competent to be a witness in someone elses trial! Every W is presumed competent unless: a. There is an absence of personal knowledge b. W does not have capacity to recall c. W does not understand the duty to testify truthfully 4. Insanity / alcoholism goes to weight (credibility), not admissibility. In US v Van Meerbeke (1976): Witness was found competent who was high on opium while testifying C. Oath Requirement FRE 603: Oath or Affirmation. Before testifying, every witness shall be required to declare that the witness will testify truthfully, by oath or affirmation administered in a form calculated to awaken the witness' conscience and impress the witness' mind with the duty to do so. 1. US v Fowler (1979): Taking the oath is a precondition to testifying. No witness has the right to testify but on penalty of perjury and subject to cross. 2. Neither raising the hand nor using the word solemn is required. 3. W must understand the meaning of the oath or affirmation, and understand the concepts of truth and falsehood 4. Purpose of oath: a. Impress in witnesses mind the duty to speak the truth. b. Make W amenable to prosecution if perjured testimony is given. D. The Child Witness Ricketts v Delaware (1985): A young child may testify if he understands the meaning of the concepts of truth and falsehood: 1. Mental or moral capacity goes to credibility, not competency 2. FRE 601 presumes competency 3. No per se rule re: kids 4. Judge does a voir dire examination 57

58 E. Previously Hypnotized Witnesses Rock v Arkansas (1987): A criminal D may not be prevented from introducing testimony influenced by hypnosis. 1. D has a right to testify on his own behalf (5th, 6th, 14th amendments) the right to tell his story even if he needed a little help getting there! 2. State cannot exclude this testimony on a per se basis. No proof this evidence is always unreliable 3. It is unconstitutional to bar D from using this testimony in a criminal trial a. Not unconstitutional to bar civil or P in criminal F. Dead Man Statutes 1. Since the decedent cant be called, its unfair to let certain testimony in. 2. There is an incentive to testify falsely against a dead dude 3. Writings can get in but not testimony about the writings 4. If estate goes after you you are still banned from testifying 5. Bars: Conversations, and Transactions 6. Big price to pay = the valid claims 7. Exceptions: If executor opens the door G. Lawyers as Witnesses Dont lawyer a case where you will have to testify violates code of professional responsibility. Exceptions: 1. The testimony relates to an uncontested issue 2. The testimony relates to nature and value of legal services rendered in the case 3. Disqualification of the lawyer would be a substantial hardship for the client. H. Jurors as Witnesses FRE 606. Competency of Juror as Witness. (a) At the trial. A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting. (b) Inquiry into validity of verdict or indictment. [Regarding] the validity of a verdict or indictment, a juror may not testify as to any matter occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent to or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. 1. Preverdict Testimony If the juror is called so to testify, the opposing party shall be afforded an opportunity to object out of the presence of the jury. Issue rarely arises problems usually identified in voir dire. 58

59 Jury cant hear the testimony. 2. Postverdict Testimony Juror may not testify re what was said in deliberations. General rule is this testimony is not allowed. Only exception is where there has been an improper outside influence (improper inside influences like being wasted not good enough to qualify for this exception) a. Testimony by a juror that another juror read a newspaper, went to the scene = Allowed (external influence) b. Testimony by a juror that another juror got high or is a racist = Not Allowed. Tanner v US: Juror testimony that fellow jurors were drunk (alcohol, pot, and coke) is insufficient basis to grant a new trial. Finality: To hold otherwise would open jury verdicts up to postverdict probing c. Juror misconduct may not be proved by postverdict juror testimony (but can prove some other way) d. Jurors can report juror misconduct before the verdict but not after I. Judges as Witnesses FRE 605. Competency of Judge as Witness. The judge presiding at the trial may not testify in that trial as a witness But judges often do cross-examine. They have the power to ask questions but its grounds for reversible error if it goes too far. J. The Personal Knowledge Requirement FRE 602: Lack of Personal Knowledge. A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge may, but need not, consist of the witness' own testimony. CH 7: PRESENTING EVIDENCE: DIRECT AND CROSS-EXAMINATION REVISITED FRE 611. Mode and Order of Interrogation and Presentation. (a) Control by court. The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment. (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. (c) Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' 59

60 testimony. Ordinarily leading questions should be permitted on crossexamination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. A. Direct Examination 1. Nonleading Questions Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness' testimony. But judge does have discretion to permit leading Qs. 2. Exceptions Leading Questions OK a. To develop Ws testimony b. When W uncooperative / hostile W c. When more trouble than its worth not to (Matters uncontested, preliminary matters) d. Baker v State (1977): Anything (no limit) can be used to refresh a Ws recollection / memory aid as long as other side gets to inspect it. e. When memory is exhausted. Just abut anything can be used to revive memory even a banana! FRE 612 deals with this subject. Its different than 803(5) learned earlier FRE 612. Writing Used to Refresh Memory. [Past recollection revived here, the testimony is the evidence the writing is just used to revive memory so testimony can be offered] Writing used to refresh memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, an adverse party is entitled to to inspect it, to cross-examine , and to introduce in evidence those portions that relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. VS FRE 803(5) Recorded recollection. [Past recollection recorded here, the document is the evidence] A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party B. Cross-Examination 60

61 FRE 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. 1. Leading Questions Ordinarily leading questions should be permitted on cross-examination. When a party calls a hostile witness, an adverse party, or a witness identified with an adverse party, interrogation may be by leading questions. 2. Cross-Examining on Witness Preparation Material James Julian, Inc. v Raytheon (1982): A cross examiner may inspect the materials that a witness was prepped with, unless privileged. So, because of FRE 612, the work product privilege may be waived if such product is used to prepare a witness. 3. Cross-Examination as an Entitlement D has a 6th Amendment constitutional right to confront witnesses against him. If cross is cut off its good grounds for appeal. C. Excluding Witnesses FRE 615: Exclusion of Witnesses. At the request of a party the court shall order witnesses excluded so that they cannot hear the testimony of other witnesses. This rule does not authorize exclusion of a person whose presence is shown by a party to be essential to the presentation of the party's cause, or a person authorized by statute to be present. 1. The General Principal Courts will sequester Ws to be sure they get matching independent accounts. a. Does not authorize exclusion during opening statements b. Authorizes the court to direct witnesses not to confer privately 2. Traditional Exemptions from the Witness Rule If disobey, its contempt. But violation of sequestration order does not necessarily mean excluded testimony. This rule does not authorize exclusion of: a. A person who is a party to the action b. An officer or employee of a party who is designated as a partys representative, or c. a person whose presence is essential to the presentation of the party's cause like an expert W, or d. a person authorized by statute to be present 3. The Special Case of Crime Victims a. Crime victims get to stay. They are not parties, nor are they persons whose presence is essential to the presentation of the cause. 61

62 b. However, congress enacted a statute, which provides that victims shall not be excluded from a trial just because they are to testify hence, victims are person[s] authorized by statute to be present. c. Courts may exclude victims who become disruptive CH 8: IMPEACHMENT OF WITNESSES FRE 607. Who May Impeach. The credibility of a witness may be attacked by any party, including the party calling the witness. 4 ways to impeach a W: (1) Show Bias / Motivation / Corruption. This is the strongest ground for impeachment. Can bring in extrinsic evidence. (2) Show Defect in Sensory and Mental Capacity. Can bring in extrinsic evidence. (3) Show Untruthful Character (for Truth and Veracity). 3 ways to show: a. Cross-examine about nonconviction misconduct [608(b)] Cannot bring in extrinsic evidence. If D denies Ps attack, P is stuck with Ds answer! 608(b) is limited to showing untruthful disposition. Does not apply to impeachment by contradiction (you can bring in extrinsic for impeachment by contradiction) b. Cross-examine about Convictions [609] c. Testimony by other character Ws that W is untruthful [608(a)] (4) Prior Inconsistent Statements [613] Can bring in extrinsic evidence. [Contradiction] At the same time, may be getting in evidence that will influence jury to the truth of the matter asserted. A. Nonspecific Impeachment 1. Bias and Motivation One has a constitutional right to confront accuser question credibility / show they may be a liar. Courts give a wide range in admitting evidence of bias. US v Abel (1984): If evidence is probative of a Ws bias, it should be admitted (prison gang). If evidence is disallowed under one rule, but allowed under another, it gets in! Crossing the Paid Witness: Dont you get paid for this? Many times, Ps witnesses were an accomplice and will get a sentencing break if they testify. Pulling the Nettels: Government P will bring out these deals during direct so jury doesnt think P trying to hide it as they would if D brought it up for the first time 62

63 2. Sensory and Mental Capacity Reliability of eyewitness testimony is a major issue, but many times difficult to bring in expert W testimony about this: a. memory diminishes exponentially, b. stress causes inaccuracies in perception and recall, c. accuracy bears no relationship with certainty, d. observers assimilate and incorporate new information they learn afterward and confuse it with their orig memory, e. later conversations reinforce opinions about identification, f. cross-racial ids contain more mistakes, etc g. No W is incompetent because of mental illness 3. Character for Truth and Veracity 3 Ways to Prove Prove a witnesss bad character to attack veracity. These rules apply to D and only if he chooses to testify. If D testifies, cant use the impeaching evidence to prove the truth of the matter asserted (that he killed someone), you can only use the evidence to prove he lied when he said he didnt! These attacks are strictly limited to proving veracity. If D testifies, otherwise inadmissible evidence about Ds past is admissible. a. Cross-Examining on Nonconviction Misconduct FRE 608. Evidence of Character and Conduct of Witness.(b) Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' credibility, 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 [only] 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 giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accused's or the witness' privilege against self-incrimination i. No extrinsic evidence allowed can only cross on this stuff. ii. Do not have to give pretrial notice to adversary that going to do this iii. Most modern cases disapprove of questions re: nonconviction prior bad acts that do not directly involve lies or deception. b. Cross-Examining on Prior Convictions.

63

64 FRE 609. Impeachment by Evidence of Conviction of Crime [PL: only worry about getting the basics down re this rule] (a) General rule. For the purpose of attacking the credibility of a witness, (1) [Felonies] Evidence that a witness other than an accused has been convicted of a crime shall be admitted, subject to Rule 403 [probative value balanced v. unfair prejudice] if the crime was [a felony], and evidence that an accused has been convicted of such a crime shall be admitted if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect to the accused; and (2) [Dishonest crimes note that 403 not repeated in this section judges hands may be tied] evidence that any witness has been convicted of a crime shall be admitted if it involved dishonesty or false statement, regardless of the punishment. (b) Time limit. Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines. [and] unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest (c) Effect of pardon, annulment, or certificate of rehabilitation. Evidence of a conviction is not admissible under this rule if (1) the conviction has been the subject of a pardon, annulment or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. (d) Juvenile adjudications. Evidence of juvenile adjudications is generally not admissible under this rule... The court may, however, in a criminal case allow evidence of a juvenile adjudication of a witness other than the accused if conviction of the offense would be admissible to attack the credibility of an adult (e) Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction inadmissible. Evidence of the pendency of an appeal is admissible. i. Includes convictions obtained by nolo pleas ii. Good strategy to bring out your own Ws prior convictions during direct to avoid surprise. Time honored rule even though irrelevant. iii. US v Lipscomb: Generally, only the type of crime and the date not the dirty details can come in. But judge has 64

65 discretion in determining whether underlying facts would be more probative then prejudicial. iv. Since FRE 403 not mentioned again in (a2) as it was in (a1), implies judge has less discretion regarding the admission of these crimes. v. Preserving Error for Review: Luce v US (1984): To raise and preserve for appellate review the claim of improper impeachment with a prior conviction, D must testify. Or a) No developed record sufficient for review b) Reviewing court cant assume that D would have testified anyway c) No way to know that the ruling effected the outcome c. Use of Character Witnesses FRE 608. Evidence of Character and Conduct of Witness. (a) Opinion and reputation evidence of character. The credibility of a [principal] witness may be attacked or supported by evidence in the form of opinion or reputation, but subject to these limitations: (1) the evidence may refer only to character for truthfulness or untruthfulness, and (2) evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. i. Character witness may say what he personally thinks of the Principal witness. ii. Foundation for opinion testimony required. From same community will suffice. iii. Expert Opinion re Credibility: 1. Shrink testimony is seldom admitted 2. Secondary Ws can be crossed to test their knowledge but rarely done. Opens the door to redirect and can get nasty (be afraid to open the door). B. Specific Impeachment 1. Prior Inconsistent Statements FRE 613. Prior Statements of Witnesses (a) [cross-examining] In examining a witness concerning a prior statement the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. (b) [Extrinsic] evidence of prior inconsistent statement of witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon This provision 65

66 does not apply to admissions of a party-opponent as defined in rule 801(d)(2) a. Can do both cross and extrinsic i. Can cross on the petty stuff if you must, but ii. Forget about using extrinsic evidence for the petty stuff. b. Want to stick close to the issues that truly matter dont piss off jury by picking on stupid inconsistencies. c. Applying FRE 613(b) i. You can impeach your own witness if he changes his testimony ii. Impeaching use of a prior inconsistent statement is considered a nonhearsay use. iii. The prior statements can come in even if they are hearsay, because theyll only be used for impeachment purposes. d. Abuse of FRE 607: Bad faith = Calling a W, knowing you will impeach him, with the purpose of bringing in otherwise inadmissible evidence, is not permissible. i. US v Webster (1984): Impeachment by prior inconsistent statement not permissible if used solely and in bad faith to get otherwise inadmissible evidence before the jury. 1. Places hearsay evidence in as (substantive) evidence against D 2. Abuse all comes down to Good or Bad faith. ii. US v Morlang: Question is whether government examined the witness with the primary purpose of submitting to jury otherwise inadmissible substantive evidence e. Impeachment by Miranda-barred Statements i. Harris v NY (1971): Its OK to impeach a witness with a prior statement obtained in violation of Miranda. 1. D cannot perjure himself with impunity just because prior inconsistent statement was improperly obtained 2. This case was the writing on the wall that the Warren days were over! 3. PL: But cannot use coerced or involuntary statements to impeach! So, dont argue Miranda argue coercion! Coercion or involuntary are slam dunk grounds for reversal. ii. Oregon v Hass: If D invokes right to counsel, statements obtained thereafter and improperly can also still be used to impeach. iii. Doyle v Ohio: You cant use post-Miranda silence to impeach iv. Jenkins v Anderson (1980): Pre-arrest / pre-warning silence can be used to impeach a Ds credibility (doesnt violate 5th or 14th). Likewise, If waive right to remain silent, silence can be used against him. 66

67 v. Weir v Fletcher: However, can use post-arrest but prewarning silence to impeach. In absence of assurances in Miranda, it doesnt violate due process to use post arrest silence. 2. Contradiction Impeachment by contradiction not covered in FRE but it happens every day. Showing that something the witness said in their testimony is not true. Sometimes, this is done by cross (like on TV), but more often by extrinsic evidence. Depart from normal trial sequence. Procedurally, a contradicting W will testify during case-in-rebuttal, rather than case-in-chief (when occasion to disprove most strongly arises). Ordinarily, you cant prove Joe is a bad driver by prior accidents, but if Joe says hes a good driver, you can bring in evidence of accidents. Judge may issue a limiting instruction (cant use the evidence to prove Joe is a bad driver only that he lied when he said he was a good one) Be careful not to let your client / D say anything that will open the door to get this impeachment evidence in. Statements like Ive never seen coke can hurt you! FRE 608(b) provides that the attacking party may cross a witness on nonconviction misconduct, but that such conduct may not be proved by extrinsic evidence. However, 608(b) only applies to Impeachment showing untruthful disposition, it does not apply to Impeachment by Contradiction! a. Collateral Matters and the Relevancy of Counterproof Offered to Contradict. Setting a Limit: No extrinsic evidence is allowed on merely a collateral point. Courts will bar contradiction on trivial points, allowing only evidence that has additional relevance in the case independent of its contradicting effect. Dual Relevancy: Counterproof will be admitted if it had dual relevancy is relevant independent of its contradicting effect. Three kinds of relevancy i. Contradict + prove substantive point: Counterproof (extrinsic) gets in ii. Contradict + prove another impeaching point: Counterproof gets in iii. Only contradicts: Counterproof does not get in. Viewed as contradicting only a collateral point. When Joe testifies to his accident free past, counterproof of prior accidents comes in because (A) it contradicts Joe (impeaches him) AND (B) it bears on the question whether hes a careful driver. However, the evidence comes in only to contradict not to prove 67

68 he caused the accident in the instant case because the bar against character evidence makes it incompetent to prove negligence. i. Always allowed to cross to contradict but dont piss off jury with trivial stuff ii. Allowed to bring in Extrinsic evidence = Counterproof only if issue is a lynchpin in the testimony (fundamentally important), and only if its going to pull the rug out from beneath adversarys testimony. b. Contradicting Witness by Constitutionally Excludable Counterproof US v Havens: Evidence suppressed as fruit of an unlawful Search and Seizure may be used to impeach a defendants false testimony given in response to cross. Illegally seized evidence should not to be perverted into a license to use perjury as a defense. Such evidence may also be used to rebut testimony given on direct. If you say youve never seen dope before, evidence of illegally seized dope at a prior arrest can be brought in. C. Repairing Credibility After W has been attacked, proffering party will want to try to repair Ws credibility. 2 limitations: (1) Cant repair before attack [608(a)(2)], and (2) Repair should be made at the same point of attack. 1. Rebutting Impeaching Attacks First condition not violated when a party anticipating an attack seeks to deflect it by bringing out on direct the points he expects the adversary to raise. It is permissible to raise on direct: a. An expert is being paid to testify b. Ws prior convictions c. Plea bargain arrangements d. Obvious grounds for bias the other side would raise Ohler: If pull Nettles (out your own W during direct in anticipation of an attack), cant complain about pretrial ruling that forced you to do so. 2. Evidence of Good Character W3s testimony re: bad character can be repaired with W4s testimony re good character [608(a)] a. FRE 608(a). The credibility of a witness may be supported by evidence in the form of opinion or reputation, but only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise. b. US v. Medical Therapy Sciences (1978): i. P can bring out negative stuff about his own W during direct in anticipation of an attack from D. Rule does not require that other party be the one to attack. 68

69 ii. This way, it will not look like P was trying to hide anything, and doesnt force P to hide until bad stuff brought out by D. iii. 608(a) contains no limitation that precludes a party from offering character evidence under circumstances where it anticipates impeachment. c. Generally, courts exclude expert testimony that a witness is telling the truth, or even comes off as endorsing a Ws truthfulness. However, after deluge of sex crime concentration in the 80s experts do testify re social framework or syndrome testimony focusing on behavior patterns of actors. This type of testimony comes close to commenting on the veracity of particular Ws, and courts tend to allow it. 3. Prior Consistent Statements a. Sometimes, the attacking party suggests that Ws testimony has been improperly influenced. This may be done by opponent bringing in a prior inconsistent statement. b. A prior consistent statement, in order to rehab, mustve been said before the alleged influence / inconsistency. c. Different than FRE 801(d)(1)(b) which regulates hearsay. When 801 applies, the prior statements are let in to prove what they assert. This rule regulates impeachment rehabilitating a W by a prior consistent statement involves a non-hearsay use. The restrictions of 801 do not apply when used for this limited purpose (conditions of 801 do not have to be met). D. Forbidden Attacks FRE 610. Religious Beliefs or Opinions. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness' credibility is impaired or enhanced. CH 9: OPINION & EXPERT TESTIMONY; SCIENTIFIC EVIDENCE A. Lay Opinion Testimony FRE 701. Opinion Testimony by Lay Witnesses. If the witness is not testifying as an expert, testimony in the form of opinions or inferences is limited to those (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 FRE 702 1. You need all 3 to satisfy 701 2. CL was tough. Witnesses had to break the facts from the opinions. Typically, was used more as a toll to shut the witness up. 3. FRE 701 is more generous. Opinion is allowed when opinion is rationally based on Ws perception and helpful to FF. 69

70 4. Lay Ws can give opinion testimony, speaking in generalities or conclusions, providing the FRE 602 Personal Knowledge requirement is met (cant have speculation or guesswork) 5. Facts can be more persuasive than conclusions anyway (well laid out facts then let jury draw its own conclusion) 6. FRE 701 is reliant on effective cross-examination to cut through the bullshit rather than interrupting the testimony. 7. Dont ask opponent to lay foundation unless you are sure you will not be hearing really good foundation! 8. Lays are not to give the type of specialized testimony reserved for experts 9. Lays will be permitted to testify on their impressions based on witnessing nonverbal behavior (he looked guilty) as long as perception is based on personal knowledge 10. Trial courts will be liberal in admission of lay testimony, describing any acts, conduct, declarations, and appearance. Although lay testimony not supposed to be specialized knowledge, can include cars/driving. Some other pre-rules allowable testimony: speed of moving object, distance, value, velocity, size, height, weight, identity, age, odors, flavors, color, handwriting, sickness and health, mental and moral aspects of humanity, disposition and temper, anger, fear, intoxication, veracity, excitement, general character B. Expert Witnesses If an expert is testifying for one side, one will probably be testifying for the other side too. This means that at some point, I will have to cross an expert. When I do, I will need to know as much about the particular subject matter as the expert does. Requires preparation. Can get briefed by own expert. You can always find an expert to testify about something in some particular way. 1. Who is an Expert? Expert Ws are those who are paid. Can be paid for their time in and out of court. Do not need any certifications, education, or training. There are no limitations on what type of background an expert has to have just a specialized knowledge of some kind. (Your Uncle Hank who knows how to weld!). Deep pockets: can always find an expert to tell your side of the story 2. When Can Experts Testify? FRE 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 in the form of an opinion or otherwise, if (1) 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.

70

71 a. When what he says will assist the FF to understand the evidence or determine a fact at issue is a generous standard b. Even in cases of common knowledge, expert testimony may help the jury to better understand familiar matters gain a more refined understanding c. FRE 403 used to determine if this type of testimony should be allowed. 3. Bases for Expert Testimony FRE 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. The proponent of the opinion or inference shall not disclose facts or data that are otherwise inadmissible to the jury unless the court determines that their probative value substantially outweighs prejudicial effect. FRE 705. Disclosure of Facts or Data Underlying Expert Opinion. The expert may testify in terms of opinion or inference and give reasons therefore 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 [but see balancing at end of 703]. Expert can base his testimony on any facts or data, provided they are of a type reasonably relied on by those in his field, and even if otherwise not admissible into evidence. Expert can: a. Rely on facts or data learned before the hearing. Facts or data learned by firsthand observation (this is what is always required of laypersons) Facts or data gleaned by consulting other sources b. Rely on facts or data learned at the hearing Testimony by others heard during the hearing Hypotheticals presented in courtroom FRE 705 realizes that outside data will come before the FF, if only because the opposition crosses on the bases of the experts opinion (looking to make expert look stupid). FRE 703 amended (2000) blocks proponent from disclosing otherwise inadmissible facts unless probative value > prejudicial effect An expert cannot just come to court and summarize / parrot out-of-court statements made by others. This would deny Ds right to cross. 4. Formal Problems Ultimate Issues, Legal Elements 71

72 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 FF (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 a. Criminal cases: Experts cant draw conclusions about Ds state of mind if state of mind is an element of the charge or defense. They should only explain how Ds disease relates to the offense / his conduct. b. If get objected to, change the focus of the testimony using words or phrases that are not elements of the crime or defense. Just give the facts so the jury can draw their own conclusion. c. No particular degree of certainty is required 5. Presentation of Expert Testimony a. Establish that the matter could benefit from this expert testimony b. Next lay the foundation: Educational background, Experience, and Familiarity with subject matter. c. Qualify the witness as an Expert. Before W can testify to matters of substance, calling party asks to qualify the W as an expert. i. Adverse party may try to stipulate to avoid having the jury get too impressed. ii. Or, adverse may try to challenge the W can request opportunity to voir dire the W. Question is then governed by the judge [104(a)] d. Bringing out expert opinion: i. 3 Bases of bringing out expert opinion: 1. Firsthand Knowledge 2. Facts learned at trial 3. Facts reasonably relied on by others in field ii. Calling party may either: 1. Ask directly for the experts opinion or inference. a) FRE 705 lets you go straight to the heart of the matter after qualifying. (This makes an effective cross that much more important) b) Lay testimony would never get in this way! Would first need to lay foundation show W has personal knowledge. 2. Resort to hypotheticals. Lawyer does most of the talking. May take 20 minutes to ask, 3 seconds to answer! 6. Court Appointed Experts 72

73 Rarely done an exception to the adversary system, and compensation is problematic draw public funds to finance a civil suit? FRE 706. Court Appointed Experts (a) Appointment. The court may on its own motion or on the motion of any party enter an order to show cause why expert witnesses should not be appointed, and may request the parties to submit nominations. The court may appoint any expert witnesses agreed upon by the parties, and may appoint expert witnesses of its own selection. (b) Compensation (c) Disclosure of appointment. In the exercise of its discretion, the court may authorize disclosure to the jury of the fact that the court appointed the expert witness. (d) Parties' experts of own selection. Nothing in this rule limits the parties in calling expert witnesses of their own selection. C. Scientific Evidence Frye: [old law] Idea was to keep astrology out of court. Only accepted scientific evidence that was generally accepted by scientific community. Daubert v Merrell Dow Pharm (1993): If scientific knowledge will assist the FF to understand the evidence or determine a fact in issue, an expert W may testify about it. a. FRE 702 (amended) is Daubert codified. b. Now, (post-Frye) the fact that scientific evidence is generally accepted in scientific community is relevant, but not a necessary a precondition to admissibility (as it was in Frye.) c. Its the trial judges job to determine that an expert Ws testimony rests on a reliable foundation and is relevant to the task at hand. Pertinent evidence based on scientifically sound principles will satisfy those demands. d. Daubert requires court to consider whether principles and method have been tested, whether they have been peer reviewed, what rates of error appear, and general acceptance. CH 10: BURDENS OF PROOF AND PRESUMPTIONS A. Burdens and Presumptions in Civil Cases Burden is on P to bring in evidence. If no evidence, D wins! 3 Points to keep in mind: 1. Various burdens are functionally related 2. Every burden raises questions of allocation (who bears it), and weight 3. Different burdens have different consequences Start with what has to be proved (substantive law) Prima Facie case => burden is on P. Affirmative defenses => burden is on D 73

74 1. Pretrial Burdens (Pleading, Pretrial Statement) Trend is toward reducing the impact of pleadings in litigation. Pleading burdens are the least important and least difficult to grasp. Pleading burdens are allocated out of concern peculiar to the process of pleading. Help make the pleadings make sense. D has the burden of pleading affirmative defenses. The burden of pleading usually, but not always, runs parallel with the burden of proof. For a suit on a promissory note, P must plead nonpayment. However, at trial, the burden is on D to prove payment! 2. Trial Burdens (Production & Persuasion) Burden of Proof = Burden of Production + Burden of Persuasion a. Burden of Production: Producing enough evidence that, if believed by FF, could lead FF to conclude D did it i. Party with this burden runs the risk of losing the case automatically (on a motion for judgment as matter of law before or after the verdict) if dont offer sufficient evidence to enable a reasonable person to find in her favor. ii. Majority of time, party with burden of persuasion also has the burden of production. iii. Burden of production has been met if a rational juror could find the particular fact based on the evidence offered. iv. If carry burden very well (Cogent and Compelling), this burden shifts to opponent, and opponent will lose if he doesnt offer rebuttal evidence. b. Burden of Persuasion: Party can win only if the evidence persuades FF of the existence of the facts needed in order to prevail. i. This type of burden never shifts. ii. If D does not meet burden in an affirmative defense, judge will not instruct jury re the defense! c. Elements in these Burdens: Parties need not produce evidence on every element that might bear on liability, any more than they must plead them. May ignore if dont affect outcome. d. Allocating the Burdens: Ordinarily, burdens of pleading, production, and persuasion, all fall on the same party. i. Elements of substantive law allocate burden to P ii. Elements of affirmative defenses allocate burden to D e. Reasons for Allocating Burdens: 4 broad concerns. Burdens are allocated: i. To serve substantive policy making it easier or harder for Ps to recover or Ds to avoid liability. Insurance companies may fight for d having to prove contributory negligence. ii. To recognize what is most probably true D in a K suit has to prove a certain condition did not occur, as we presume most conditions did occur or there would be no suit 74

75 iii. To the party most likely to have access to the necessary proof 1. In a suit against a bailee for damages goods, D has access to proof he wasnt negligent. 2. Its easier for a debtor to prove payment than for a creditor to prove non-payment. iv. To help resolve cases where definitive proof is unavailable. Absence for 7 years = a presumption of death unless someone can prove otherwise. f. Weight of the Burdens: i. Burden of Production: Requires party to produce sufficient evidence to permit reasonable persons on the jury to find the point with the requisite measure of certainty, as defined by the burden of persuasion ii. Burden of Persuasion: 1. Civil: Proof by Preponderance. A reasonable juror would find the points to be proved are more likely than not 2. Criminal: Proof beyond a reasonable doubt. 3. The Presumption: a Device for Shifting and Allocating Burdens FRE 301: Presumptions in General in Civil Actions and Proceedings. In civil actions and proceedings, 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. [Only the burden of production shifts the burden of persuasion never shifts]. a. Sources and Nature of Presumptions Presumptions resolve recurring problems of proof without the need for extended debate. i. Courts believe that after witnessing a pattern time and again, certain evidence is proof positive of a certain fact [E => F]. ii. Presumptions are a process - if you believe E, you must find F unless defendant offers other E that F is not true. iii. A successful presumption becomes a jury instruction iv. If a husband is missing for 7 years, a jury in a divorce proceeding may presume he is dead. Burdens can be allocated by a presumption. A presumption is a device that requires the FF to draw a particular conclusion when certain basic facts are established in the absence of counterproof. A presumption unopposed controls decision on the point in question. E.g.: In a suit against a bailee for damaged goods, it is presumed that if the goods were in good shape when turned over, but damaged upon retrieval, then the bailee caused 75

76 the damage by his negligence. The bailor bears the burdens (pleading, production, and persuasion) on the basic facts, and if he succeeds, he gets the benefit of the presumption. Terms: i. Mandatory presumption or Presumption of law: The true presumption. Controls the decision if unopposed. In jury trials an instruction is given and in bench trials the judge has no option but to find the presumed fact ii. Irrebuttable presumption: Not really a presumption at all. An illiteracy. If a presumption is not rebuttable, its not an evidence issue its substantive law. iii. Permissive presumption or Inference: Conclusions that are permitted, but not required. Inference instructions = judicial comment on the evidence. Nudges the jury to draw a conclusion. E.g.: Res Ipsa Loquitur permits a finding of negligence to rest on circumstantial evidence. iv. Prima facie case: used in two different ways Evidence requires a particular conclusion (like an unanswered presumption) Evidence permits a particular conclusion (like an inference) b. How they Work in One Sided and Contingent Situations One-sided situations: i. On one end of the spectrum, the unopposed presumption controls. If the basic facts are established by cogent and compelling evidence and there is no counterproof, the FF must find the presumed fact. ii. At the other end of the spectrum, the presumption disappears. If the party opposing the presumption offers cogent and compelling evidence that the presumption fact is not so, the presumption drops from the case iii. Contingent case: The presumption affects the decision only if the FF finds the basic facts to be so. Jury gets a conditional instruction: if you find the basic facts, then you must find the presumed fact. This occurs when there is enough proof of the basic facts to support a finding that they exist, but not enough proof to require such a finding. c. How they Work in the In-Between Situations When a party hurt by a presumption offers sufficient, but not cogent and compelling counterproof that the presumption is not so, the presumption no longer controls the decision. We are in the middle of the two ends of the spectrum discussed above. Two approaches:

76

77 i. Bursting Bubble: (FRE 301). The presumption vanishes in the face of counterproof. A presumption shifts the burden of production to the party against whom it operates. You can burst a presumption (and proponents must find instruction) merely by producing conflicting evidence (vs having to actually persuade the FF that the presumption is false). If successful, jury will not get the must find instruction. FRE adopted the bursting bubble approach, but not well received. ii. Reformist / Morgan (PL). A presumption should shift the burden of persuasion not just production. D can lie and get off easier. How can a presumption be strong enough to require a finding in the absence of counterproof, yet so week that it vanishes in the face of counterproof which a jury could reject. d. Operation of Rule FRE 301 Texas Dept. Comm. Affairs v Burdine (1981): i. First, P had the burden of establishing a prima facie case for discrimination by a preponderance of the evidence. This creates a presumption that she was discriminated against. ii. The burden then shifted to her employer to articulate a legitimate, non-discriminatory reason for her rejection [burden of production]. That is all that is required of D to rebut the presumption. The employer is not required to do so by a preponderance. Really, all he has to do is produce admissible evidence! iii. Once he does so, the P then has the opportunity to prove by a preponderance that the legitimate reasons offered by D were not his true reasons, but just a pretext. iv. The ultimate burden of persuasion always stays with P. The only burden that shifts is the burden of going fwd w/ evidence (of production). v. If FF believes Ps evidence, a presumption is created. If D is silent the court must enter a judgment for P because no issue of fact remains in the case. e. State Presumptions in Diversity Cases FRE 302: Applicability of State Law in Civil Actions and Proceedings. 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 a rule of decision is determined in accordance with state law. In federal courts, state law controls the effect of presumptions relating to a fact that is an element of a claim or defense. 77

78 Presumptions are substantive for Erie purposes Erie provides that federal courts have to apply state presumptions. B. Burdens, Presumptions, and Inferences in Criminal Cases 1. Burdens of Persuasion Due process clauses of 5th and 14th require that P prove beyond a reasonable doubt every element in the crime charged. It violates due process to shift the burden of persuasion on an element of a crime to D (ask D to disprove an element of a crime). Most acquittals are based on beyond a reasonable doubt burden. Insanity: One is presumed sane. The accused bears one or more of the burdens of proving otherwise. Mullaney: Lower court had said that malice could be implied by Ds failure to produce evidence of heat of passion. In effect, unconstitutionally shifting the burden to D to persuade regarding an element of the crime. The defense, unproved, amounted to an element of the crime charged. If D failed to prove his defense by a preponderance = amount to an element of the crime being proved beyond a reasonable doubt. Patterson v NY (1977): Requiring D to prove an Affirmative Defense is not a violation of due process because the burden of proof placed upon D did not require him to negate any element of the charged crime (malice is not an element in the NY penal code for murder). Here, the affirmative defense was a totally separate issue. D has to prove his affirmative defense by a preponderance of the evidence. 2. Presumptions and Inferences Both the constitutional rights to a jury trial, and to due process restrict the use of presumptions against the accused on an element of an offense. a. Mandatory Presumptions: In a criminal trial, it is unconstitutional to tell a jury that if they find E, they must find F. It is also unconstitutional to tell the jury if they find E, they must find F unless D proves otherwise. b. Permissive Presumptions / Inferences: However, it is OK to use the word may instead of must. c. A permissive presumption on an element cannot control the decision, even if D offers no counterproof. This is because directed verdicts against the accused are not allowed, and a presumption instruction binding the jury amounts to a partially directed verdict. d. A jury has the right to acquit a D no matter what. A binding directive is improper, even where the evidence is cogent and compelling that anyone would conclude beyond a reasonable doubt that D is guilty.

78

79 Sandstrom v Montana (1979): This case got rid of mandatory presumptions in criminal cases. Now, only permissive presumptions and Inferences allowed. you have to say may find instead of must find. a. Due process requires that the state prove every element of a crime charged beyond a reasonable doubt, and may not shift the burden of proof to D by means of a conclusive presumption. b. In a case where intent is an element of the crime charged, due process prohibits instructing the jury that the law presumes that a person intended the ordinary consequences of his voluntary acts. c. Whether a defendant has been accorded his constitutional rights depends on the way in which a reasonable juror could have interpreted the instruction. A reasonable juror could interpret a may as a must in certain circumstances, or could interpret a presumption as conclusive. d. Neither burden-shifting presumptions (Mullaney) nor conclusive presumptions (Morrisette) are kosher. Either deprives D his right to due process. Leary: There must be a rational connection between the basic facts proved, and the ultimate facts presumed, and the latter is more likely than not to flow from the former. An inference must have a basis in reality it must reflect what common sense and experience tells us about the world. County of Ulster v Allen (1979): For a permissible presumption to be constitutional there must be a rational connection between the basic facts submitted, and the ultimate fact presumed. The ultimate fact presumed must be more likely than not to follow from the facts submitted. a. NY law made the presence of a gun in a car presumptive evidence of its illegal possession by all occupants of the car. b. Permissive Presumption or Inference: The only way to challenge is if there is no rational way the FF could make the connection permitted by the inference. c. The ultimate test of a presumptions constitutional validity is that the device must not undermine the FFs responsibility at trial to find the ultimate facts beyond a reasonable doubt. d. Existence of other evidence in the record sufficient to support a conviction is relevant in analyzing a purely permissive presumption, but not a mandatory one. e. Allen allows nudging inferences, as it encourages the jury to infer one fact on the basis of another, where the inference is plausible but less than certain. CH 11: JUDICIAL NOTICE Process by which court determines certain matters without formal proof. Judge tells FF these are the facts. 4 types: adjudicative, evaluative, legislative, and notice of law. A. Adjudicative Facts 79

80 Facts that normally go to the jury in a jury case. Those that would have to be proved by evidence if notice were not taken. A substitute for evidence. Matter must be beyond reasonable controversy. Judicial notice without providing opportunity for parties to be heard violates due process. Notice is mandatory if court is supplied with necessary information. Requires an instruction (201[g]), informing jury notice has been taken and explaining what that means. This is the only type of judicial notice that is regulated by FRE 201. FRE 201. Judicial Notice of Adjudicative Facts (a) (b) Kinds of facts. [room to litigate here] A judicially noticed fact must be one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. (c) A court may take judicial notice, whether requested or not. [Judge can interrupt you and take notice] (d) A court shall take judicial notice if requested by a party and supplied with the necessary info. (e) Opportunity to be heard. [other party] A party is entitled upon timely request to an opportunity to be heard as to the propriety of taking judicial notice and the tenor of the matter noticed (f) Judicial notice may be taken at any stage of the proceeding. (g) Instructing jury. [civil and criminal are treated differently] In a civil action or proceeding, the court shall instruct the jury to accept as conclusive any fact judicially noticed. In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed. Gov. of Virgin Islands v Geraeu (1975): Court may not take judicial notice of a fact merely because the judge has knowledge of that fact in his personal capacity. Judicial knowledge is really known to him in the fictional sense that it is known and notorious to all men. E.g.: It rained last Thursday; NY is more than 1 hour from EH. B. Judicial Notice in Criminal Cases FRE 201(g): In a criminal case, the court shall instruct the jury that it may, but is not required to, accept as conclusive any fact judicially noticed [Although 201(g) is conclusive in a civil case, it is not so in a criminal case]. US v Jones (1978): Failure to plead a fact in a criminal proceeding may not be cured by judicial notice. No facts may be found as a matter of law in a criminal case. Contrary to spirit of the 6th amendment right to a jury trial. The jury must pass on all facts that are judicially noticed. Jury is never required to accept a fact as true. C. Evaluative Facts 80

81 Matters of common knowledge judges and jurors bring to their deliberation. Background information. No evidence is offered to prove these. This is all common knowledge stuff not a word has to be said about it no instructions are given. In judicial reasoning, not a step can be taken without assuming something that has not been proved. The capacity to do this competently and efficiently is imputed to judges and juries as part of their necessary mental outfit. Jurors expected mental baggage. E.g.: The usual meaning of words, idioms, slang expressions, what is meant by various forms of assertive conduct, ordinary judgments about the world. D. Legislative Facts Facts considered by a trial or appellate court in ruling on a question of law. The legal question may be the interpretation of a statute or the creation of modification of a CL rule. Court may look at anything and everything no rule regulates this. These involve established universal truths and facts pronouncements that do not change from case to case. Encompasses nonlegal matters (scientific, sociological, historical) considered by the court in making a legal ruling. No jury instruction is given because legal rulings are beyond the province of the jury. E.g.: Whether a rational relationship exists between a statute and a legitimate state purpose; Court finds a rational basis for a statute limiting the number of hours women can work. Court looks at studies (physical attributes of women, rearing and education of children), and legislative history. E. Judicial Notice of Law Process by which the court determines the controlling law. To the extent notice is given, parties are then freed from the obligation of proving law. If notice is not taken, this responsibility rests with the parties. Determination of controlling law is always made by the judge never the jury. How the law is fed into the judicial machine is not a matter of concern for the rules of evidence, but rather the rules of procedure. F. Problems with Classification Classification is important because the restrictions and procedures of FRE 201 apply only if the matter is noticed as an adjudicative fact. Many facts are not readily justifiable as adjudicative or legislative. Some can be mixed. US v Gould: Schedule of controlled substances included coca leaves and its derivatives, but not cocaine. Q was whether cocaine was included on the schedule. This is a question of scientific fact applicable to the administration of a statute =\ legislative fact. If a notice is of a legislative fact, then FRE 201 is inapplicable (201 is only for adjudicative facts). A court is not precluded from instructing the jury that it must accept as conclusive a legislative fact of which the court has taken judicial notice.

81

82 CH 12: PRIVELEGES Designed to protect certain societal relationships and values, and may impede the search for the truth. A. Introduction: FRE 501 FRE 501. General Rule. [Basically, FRE stays out of this, leaving it up to states and CL] Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, [any] privilege shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. 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 privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. B. Attorney-Client Privilege General rule: Confidential communications are privileged if the attorney is acting as legal counsel. (A clients communication to counsel in the presence of an outsider is generally beyond the reach of the privilege). Substantive law if you violate it you can be sued. Someone under subpoena may have a right not to testify. 1. Professional Services Privilege only applies to confidential communications made for the purpose of rendering professional legal services to the client. Other services that attorneys perform for their clients may not be privileged. Similarly, not all communications are considered confidential or legal in nature. a. In distinguishing in a mixture of business and legal advice look to see that work is primarily legal before the privilege will attach. b. Activities that do not constitute professional legal services: Accounting; preparation of tax returns; Shipping agent; Investigator; Scrivener; Business agent / negotiator; Business partner; Attesting witness. 2. Communications Privilege protects communications from the client. You cant tell the cops where the bodies are even if its to save the life of an innocent. a. Communications by an attorney to his client are privileged only to the extent necessary to avoid revealing confidential information provided by the client. Lawyers advice to a client may be within the scope of the privilege, as his advice may be used to draw inferences regarding the clients communications. b. Physical characteristics and observations are generally not privileged such as complexion, demeanor, sobriety, address 82

83 anything that is observable by anyone is fair game. A lawyer may be forced to testify that his client looked drunk on a particular occasion. c. However, Observations and physical evidence derived from privileged communications are privileged d. ABA Model Rules of Professional Conduct: A lawyer shall not obstruct another partys access to evidence or unlawfully alter, destroy, or conceal a document or other material having potential evidential value e. A client is privileged from disclosing what he discussed with his attorney, but not what the client saw, did, remembers, events People v Meredith (1981): The attorney-client privilege protects all observations resulting from privileged communications leading to physical evidence. a. However, the original location and condition of that evidence loses the protection of the privilege if defense counsel chooses to remove or alter the evidence. b. If move physical evidence, have to tell the cops where you got it from and the condition it was in. c. Idea is youve deprived P the opportunity to observe the evidence in its original condition or location (cops would have eventually found it). d. If D counsel leaves the evidence where he finds it, his observations are shielded from revelation. e. Physical evidence is not protected by the privilege. 3. Required Confidentiality Privilege is intended for confidential communications only. However, disclosure may be made to others besides the attorney without losing the cloak of confidentiality. a. Involving or Disclosing to Communicative Intermediaries: Generally, the privilege does not extend to nonlawyers. However, its ok to disclose to intermediaries if the communications are made to a nonlawyer for the purpose of relaying the information to a lawyer to aid the lawyer in the understanding of the case so he can offer more sound advice. b. Joint Clients and Pooled Defenses: Can communicate without losing confidentiality. c. Leaks or Eavesdroppers: Generally, leaks or eavesdroppers do not destroy the privilege, however, the privilege is waived if adequate safeguards are not employed. i. Relevant consideration: Ds intent to maintain confidentiality based on precautions taken ii. Garbage = abandoned property => no privilege 4. The Corporate Client Any corporate employee assisting an attorney qualifies for the privilege 5. Exceptions 83

84 a. Clients identity is not privileged, unless something that would be revealed could incriminate him. b. Future crime or fraud. If client discloses crimes he will do, its not privileged. 6. Assertion and Waiver a. The client holds the privilege, and only the client can waive it. b. Attorney must assert on the clients behalf. c. Judge can try to overrule the privilege. C. Psychotherapist-Patient Privilege Jaffee v Redmond: Creates the privilege even for clinical social workers. Only where there is serious threat of harm to the patient or others may the privilege give way to disclosure by the therapist There is no future crimes exception to this privilege. D. Spousal Privileges Testimonial: Wife cant be forced to testify against husband, but if she wants to, she can and he cant veto it. (The privilege belongs to the testifying spouse). Confidences: Husband does have veto power over wife from revealing confidences of the marriage. It doesnt matter that they are no longer married. Statements about past crimes made to a spouse are privileged. However, there is no privilege regarding ongoing criminal enterprises. There is no parent-child privilege! E. The Privilege Against Self Incrimination 1. Applies to both criminal and civil cases, but only applies if there is a crime involved. Humiliation or loss of job does not count. 2. Miranda cures compel. 3. 5ASI: Triggered by subpoena or threat of contempt compulsion 4. Any information that could help P applies. Liberally construed 5. If already found innocent, pardoned, or immunized, no incrimination is possible 6. If D takes the stand, the fact that he invoked the privilege in the past cant be used against him (but can be used to impeach). 7. W has to expressly invoke the right. D does not. 8. P can challenge, then Judge will hold an In Camera / Ex Parte hearing to determine if privilege should apply. 9. P will grant testimonial immunity. Cant use what D testifies about against him. If do prosecute in the future, P has to prove an independent source for his evidence. High burden of proof. NY has transactional immunity. 10. Corporations are not persons within the meaning of the 5th. 84

85 11. Writings. Contents of business record are not privileged, because their creation is not compelled. However, the act of production may be privileged. Production may have compelled testimonial value (affirming D knew they exist and that they are what purported to be). 12. There is a Required Records exception to the 5ASI. (Administrative / regulatory). 13. Client can invoke a 5ASI against production, and then give the paperwork to his attorney. If client is subpoenaed, attorney can invoke the attorneyclient privilege and does not have to produce. Client invokes 5ASI Attorney invokes attorney-client CH 13: FOUNDATION EVIDENCE, AUTHENTICATION You cant just offer evidence. You need a witness to testify about the thing, laying the foundation to get it in. First, you mark the evidence for identification. FRE 901. Requirement of Authentication or Identification. (a) General provision. authentication is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. (b) [Examples] Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule: (1) Testimony of witness with [personal] knowledge (2) Nonexpert opinion on handwriting (3) Comparison by trier or expert witness... with authenticated specimens. (4) Distinctive characteristics and the like. (5) Voice identification. Identification of a voice, whether heard firsthand or through recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker. (6) Telephone conversations by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business (7) Public records or reports (8) Ancient documents or data compilation (9) Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result. (10) FRE 902. Self-authentication. [things you can just get in] evidence of authenticity as a condition precedent to admissibility is not required with respect to the following: (1) Domestic public documents under seal. (2) Domestic public documents not under sealpurporting to bear the signature in the official capacity of an officer or employee 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. (3) Foreign public documents.. . (4) Certified copies of public records. (5) Official publications. Books, pamphlets, or other publications purporting to be issued by public authority. 85

86 (6) Newspapers and periodicals (7) Trade inscriptions and the like. Inscriptions, signs, tags, or labels purporting to have been affixed in the course of business and indicating ownership, control, or origin. (8) Acknowledged documents. Documents accompanied by a certificate of acknowledgment (9) Commercial paper and related documents (10) Presumptions under Acts of Congress. Any signature, document, or other matter declared by Act of Congress to be presumptively or prima facie genuine or authentic. Voir Dire: Judge is the gatekeeper. Facts are shown to the judge, and are a precondition to admitting evidence. You can cross the witness in front of the judge before he rules on the evidence. This has nothing to do with the right to cross later in front of the jury on the merits. CH 14: THE BEST EVIDENCE DOCTRINE There is no rule that you have to use your best evidence (you would anyway!) FRE 1002. Requirement of Original. To prove the content of a writing, recording, or photograph, the original is required, except as otherwise provided in these rules or by Act of Congress [but if testimony is not about the content, may not need original]. FRE 1003. Admissibility of Duplicates. [Its easy to get copies in] A duplicate is admissible to the same extent as an original unless: (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. FRE 1004. Admissibility of Other Evidence of Contents. [can get evidence in without original or a 1003 duplicate in some circumstances] 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 unless the proponent lost or destroyed them in bad faith; (2) Original not obtainable by any available judicial process or procedure; or (3) Original in possession of opponent [and] 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 issue. FRE 1006. Summaries. The contents of voluminous writings, recordings, or photographs which cannot conveniently be examined in court may be presented in the form of a chart, summary, or calculation. The originals, or duplicates, shall be made available for examination or copying, or both, by other parties at reasonable time and place.

86