Evidence

US v. Crumby **polygraph test

11/15/2011 3:33:00 PM

(1) it is the juries job to determine the credibility of the parties and witnesses (2) Historically- not very reliable and generally accepted( even though this has gone away) Hold: admitted for a very limited purpose only to impeach or corroborate the testimony of the Defendant if the defendant testifies and the government impeaches his credibility Prerequisites: (1)must provide sufficient notice (2)opposing party must be given a reasonable opportunity to have its own competent examiner administer courts are very reluctant to allow polygraph evidence those that do only allow it if it is stipulated to or for very limited purposes 9.14 (like 1.3(p.22)) hook me up doc affirmatively and without hesitation improper opinion evidence- not even expert opinion testimony Rather-it is being offered to show credibility of the party truthfulness of character o It is relevant- although very small chance that this is that great of evidence that he had consciousness o Is it admissible- 403 Kumho Tire v. Carmicheal Issue: when it is out of scientific testimony do the same factors apply in non-scientific testimonyHold: making Daubert more flexible (1) took Daubert out of being solely for scientific context (2) to the extent that we can apply some of the factors we apply (3) we look to other factors that may be reliable Effect- applied flexibility to an already flexible test Testimony is not allowed: demanded more science, testimony internal inconsistent, admits certain things than contrary statements said, very cursory examination of the object Methods: Introducing or challenging expert testimony under Rule 702 requires very fact specific arguments

Trial attorneys must probe the methods used by their experts, as well as those of the opponent.

**kinds of questions that come up in Daubert hearing have to asked prior to the hearing Plaza-duabert standards had been applied a little over zealously Fingerprinting- more a technique than a natural science talking about overall value of human life as a practical matter who can put a value on human life o not very helpful to the jury counter-not a technique that the ordinary juror would be acquainted with 9.15-hedonics

Does his opinion rest on proper data-how much people are spending average selling price of various life saving and the degree they reduced death 703- is it reasonably relied upon: hearsay inadmissible on its own so has to pass reasonable reliance test Daubert Factors: Can theory be tested? Almost impossible to test this method Has it been subjected to peer review? Doesnt say that it has Is there a known error rate? Cannot test how can we know an error rate(seems to be connected to prong 1 if prong1 is a no than this is probably a no also) Are there standards controlling techniques? a particular method itself-are there certain things that are examined in this method Has the theory been generally accepted? Waivering general acceptance might be a stretch Holes in the analysis- making a lot of assumptions, wrongly presumed conclusions Result- failure of two, no idea if we have general acceptance 403 argument is really strong to keep out method lacks fit- methodology doesnt fit in this case

NON-Science-rabbi prayers -peer review, generally accepted standard and publication Kumho-look outside of the Daubert factors because it was non-scientific expert testimony

Rule 403- courts take 403 challenges seriously in the expert context confusion of issues and waste of time are really common

Authentication and Identification 901 and 902 **dont see many of these Purpose: before entering the evidence is the attorney must establish that the evidence is what they say it is Laying a foundation-referred to at times but this is more than authenticating and identifyin Authentication- 3 purposes: (1) help establish relevance-if it is not what we say it is it is not relevant ex, bag of drugs unless we first establish that this is the bag the accused had in his possession (2) held show genuineness-practical issue, want them to know that it is real and genuine to have credibility (3) Place evidence in context-practical why is the evidence particularly significant Does not- guarantee the authenticity can still be challenges later rules Article 9 in general 1 categories (1) things that need authentication 901 901(b)- illustrations of things that can be done to authenticate ex, just examples and is not exclusive (get creative) (2) self-authenticating 902 do not have to go through authentication usually pretty obvious and this list is exclusive 903- evidence rules way of overriding a previous common law requirement-subscribing witness 901(1) condition precedent to admission- prerequisite to admissibility must meet the authenticity requirement Ex, tampered with, switched out, unattended -does not establish compliance with other FRE rules-still need to establish it under all other

(2) threshold to establish is very low- all you need is to submit evidence sufficient to support a finding that it is what its proponent claims it to be Chain of custody Arise- anytime you have a situation where either the evidence doesnt have a unique identifier or has passed a couple hands Effect- have to address that Sufficient- if can be shown that it is the same item and is in substantially the same condition as when they received Recap: (1) what does the proponent of the evidence claim it to be? Crack rock is crack rock but we are establishing it is the Ds crack rock (2) Some reasonable jury could find that the evidence is what the proponent says it ismeets article 9 requirements (3)Chain of custody issues- if situations are present that cause this issue exchanging of hands, movement, if person on the stand not the one who retrieved the evidence 10.1- document to send money non-expert hand-writing for hand-writing analysis o o o witness familiar with hand-writing(how became familiar with it) example of hand-writing-comparison expert analyst-

distinctive characteristics or circumstances-901(b)(4) Example 4-characteristics of the offered item itself, considered in the light of circumstances, afford authentication techniques in great variety. o Includes- document or telephone conservation by virtue of its disclosing knowledge of facts known peculiarly to him o Ex, letter may be authenticated by content and circumstances indicating it was in reply to a duly authenticated one. intended to mean distinctive characteristics in the document itselfattaches the crime to the form o alternative-forms were attached to other personal items with his personal information

hearsay statement- witness that another person told him that he was the standard D to the other that he was the standard-801(d)(2)(a) Other to the w that D was the sender-co-conspirator 801(d)(2)(e)

o inspection

Finger prints, video camera(be creative)

10.2 Hand-writing opinion postal inspector who became familiar over course of 901(b)(2)-Familiarity was acquired solely for the purpose of litigation o Example 2-recognizes that a sufficient familiarity with the handwriting of another person may be acquired by seeing him write by exchanging correspondence or by other means, to afford a basis for identifying it on subsequent occasions Caveat- where testimony is based upon familiarity acquired for purposes of the litigation(but litigation is often times differentiated from investigation) counter- to solve a crime or investigation distinct from legislation o but many courts say that investigation leads to litigation (we follow this if it is acquired in investigation, litigation or anything related to this case it will be inadmissible) 10.3 Anonymous Note-indicating that the cars had been switched and the license place number purporting- that this item is a letter confessing that this note was left by a good Samaritan Chain of custody- that it is in the same condition (authentication is easy) Hearsay issue- no clue who wrote it, confrontation clause issue( if it was testimonial) Phone Calls Authenticating through voice identificationExample 5-requisite familiarity may be acquired either before or after the particular speaking which is the subject of the identification, in this respect resembling visual identification of a person rather than identification of handwriting. -Lay voice identification -comparison -voice identification expert(very rarely allowed)

-Evidence of the contents-specific or particular unique knowledge, acceptance of identification -Phone trace- telephone directory doctrine, we trust the phone people enough that the numbers in the phone book are trustworthy. Requires other circumstances that identify the recipient of the phone call Example 6- mere assertion of identity by a person talking on the phone is not sufficient evidence of the authenticity of the conversation. Additional evidence need not fall in any set patternthus the content under Ex 4 or Ex 5 may furnish the necessary foundation (1) the calling of a number assigned by the phone company reasonably supports the assumption that the listing is correct (2) number of a place of businessmaintenance of the phone connection is an invitation to do business without further identification OR some additional circumstance of identification of the speaker is required. Mixed authorities- whether self-identifying statement of the person answering suffices. G/R usual conduct respecting phone calls furnish adequate assurances of regularity Compare with *69: 4 inferences: (1)have to infer that he was the one who answered the phone show who else would be calling can we use evidence of star 69-901does not address this type of technology o need to establish how the technology works-may stipulate to or expert from phone company (3)the phone the police called was at the business could use a phone record show that other things add to the fact that he is the only likely (4)the person who called the manager was the D (2)the phone the police called was the one the robber used

State v. Small Authenticate- the calls that were received were by the D Stands for in 901(b)(4)- is fairly liberal and can put together distinctive characteristics **gunshot wound to mouth is the cause of death, authentication of a phone conversation by a witness and corroborated facts by the wife of the D

Hold: sufficient evidence to identify the D -accent and topic of conversation coupled with -testimony of Ds wife that the D was known as identity and had accent and conversation was in context of reality Additionally, reliability is furthered by the evidence the phone call originated in the witness who testified he did not know D or Ds wife Rationale-chance of imposter having the accent and would respond to an unexpected phone call in a manner tending to incriminate D is very slim; the evidence presented suffices to meet requirements Key- the threshold is very low but it can all be rebutted by the defense Reasoning: 901(b)(6)- Evidence that a call was made to the number the phone company assigned at that time to a particular person can satisfy the authentication requirement, if circumstances, including self-identification, show the person answering to be the one called Problem- unavailable because the record does not disclose whether the number dialed was a number assigned to Ds phone 901(b)(5) Voice identification Problem- testimony did not indicate he could identify Ds voice as that of the D 901(b)(4)-distinctive characteristics and contemplates that a caller may be identified because only he could utter the speech under the circumstances Standard: May be related to a particular person by the very fact that the matters set forth in the letter or the telephone conversation were known peculiarly to a particular person Test- must produce direct and circumstantial evidence which reasonably identifies the D as a party to a phone conversation. G/R mere fact that a caller identified himself is insufficient rather the contents of the conversation, the characteristics of the speech itself or the circumstances of the call, must render it improbable that the caller could be anyone other than the person the proponent claims him to be.

Photograph Introduction Not necessary- do ot have to call the person who took the photograph Sufficient- just need someone to confirm that it is a fair and accurate depiction As long as they can say yes it is authenticated properly Staged Photo

(1) whether the judge should allow the photo? Completely ok because he was present because there o o But what would require is that it is disclosed to be a recreation Defense argue-that this was a recreation and how could you remember

If outside source hired to recreate the event more of an obstacle Anything done with this point of view would be speculative If offering to show that there was a clear view

(2) shooters point of view?

Best Evidence Rule 1001,1002,1003,1004 Trigger- writing recording or tape Focus- to prove the content of the writing recording or tape(1002) This is where there is most of the litigation G/R if you a proving the content of the writing or recording you have to used the original of it or a duplicate Ex, we dont want testimony about a contract is we have the contract 2 Categories (1) independent probative value or legal significance- At Issue: where the writing, recording or photograph is itself at issue in the litigation has significance in and of itself must introduce the document because it has legal significance-the content of the document itself controls some facet of the litigation Common situations: Most copyright infringements Most libel actions Privacy infringement lawsuits Child pornography

KEY- each of these cases prosecutor must prove the content of the writing or photograph to make out her case G/R 1002 requires the production either the original or duplicate of it Caveat- only if the original has been destroyed or is otherwise inaccessible may he substitute human testimony describing the content of the writing or photograph **contingencies addressed Rule 1004

(2) party chooses an item falling in one of those categories as a convenient option or Where the Writing or the recording is all you have to prove your case- where trying to prove that event by proving the content of the tape party could have chosen some other means of proof but settled on one of these types Unless- tape is lost or destroyed or otherwise inaccessible the prosecutor may not replace with an imperfect human substitute Ex, proving robbery through the tape cannot be replaced by a detectives testimony about what she saw when watching the tape When it is being offered for proof of content: Ex, offering proof that she shipped certain goods with either witnesses or could use business records (803(6) authenticated under 901/902) -if records she will be proving their content and will be bound by 1002 Rationale- records have independent probative value in showing that the goods were shipped KEY- they are not being offered simply to illustrate or enhance a witnesss memory of the shipment, for no such witness takes the stand. 4 Propositions: these types are far more detailed and nuanced than many other forms of evidence differences in fine details often sway the outcome of the case proving such details with the needed precision is particularly hard because of susceptibility of forgery even when forgery and fraud are not issues, human memory simply fails in the task of reproducing with the precision of the thing itself.

1004 excuses for failure to produce original(1 and 2 will be tested on) (a) lost or destroyed- my communicate other evidence only after showing that it was lost or destroyed Caveat- where in bad faith the party caused this

(b) cannot obtain by any available judicial process or procedure (c) original in possession of the opponent if wont produce then you can use other evidence

(d) collateral matter a lot of times under this exception the court will keep it out all together because it is viewed as unimportant Problem (2) pornographic testimony can testimony be used even where the photo is available and in the possession of the proponent 10.8- Best evidence doesnt mean you have to admit something over human memory, LucasFilms: Writing or recording- can be construed liberally Duplicate- does not include copies subsequently produced by handwriting G/R cannot offer evidence of contents other than originals or duplicates if originals are lost or destroyed or withheld in bad faith **cannot be the cause of the destruction or loss of the original and still invoke the exception to the rule Hold: since the contents are material and must be proved must either produce the original or show that it is unavailable through no fault of his own. Rationale- rule would ensure that proof of the infringement claim consists of the works alleged to be infringed. Otherwise reconstructions which might have no resemblance to the purported original would suffice as proof for infringement of the original Scope: blueprints, engineering drawings, architectural designs may all lack words or numbers yet still be capable of copyright and susceptible to fraudulent alteration. Reasoning: I. When contents of a writing are at issue oral testimony as to the terms of the writing is subject to greater risk of error than oral testimony as to events or other situations. A. Human memory is not often capable of reciting the precise terms of a writing and when the terms are in dispute only the writing itself or a true copy, provides reliable evidence not trying to prove the contents of the car but the license plate while the card is much more reliable than the memory it is not legally significant

II. Rationales- importance of precise terms of writings in the world of legal relations the fallibility of human memory as reliable evidence of the terms AND the hazards of inaccurate or incomplete duplication are the concerns addressed by the best evidence rule G/R application- In proving the terms of a writing, where the terms are material, the original writing must be produced unless it is shown to be unavailable for some reason other than the serious fault of the proponent. Problem 10.9 GPS Data Testimony- GPS with back track feature showed that the Should have shown the GPS instead of the Testimony Prosecution wanted to prove content GPS is a writing Couldnt describe through oral testimony

1004-exceptions (b) cannot obtain by any judicial means G/R typically negligence is not enough to have bad faith If accomplice printed- where accomplice didnt take care to get the picture-so bad faith wouldnt even have been involved US v. Jackson **centered around online chats and the copy-past method of gathering the conversations contents Expert testimony- about a number of methods that could have been utilized to accurately capture the chats but none of these methods were used Hold: Document does not accurately represent the entire conversations that took place between the D and Margaritz. Method used was: -not an accurate original or duplicate, because it does not accurately reflect the entire conversations between -document was changed by including comments(edited and modified) Thus- cut and paste document inadmissible Further, it is clear that proposed copy does not accurately reflect the contents of the original Last- the fact that the file sat on the desk for two years is significant and very intentional thus had the file been promptly filed against the D reliable evidence would likely have been available and not destroyed.

Quiz Notes: (1) from the perspective of the proponent (d) no matter what is not correct unless it is non-assertive common purposes for out-of-court statements that do not depend on truth of the matter asserted (not an exhaustive list) o o o o o knowledge of the speaker notice to a listener effect on the listener legally binding statement publishing (2) C. letter is not hearsay but the contract is not

These are not hearsay- so if admitted will have limiting instruction

(3)(B) admissible to impeach the defendant and as evidence that he did not in self-defense 801(b)(2)(a)admission by party opponent not statement against interest because he was available (4)(D) excluded because they are hearsay not within any exception not the type of conduct in the course of regular business also the statements were not generated by the employees themselves if trying to prove side effects but here used to prove the warnings are actually given

(5)(D) not hearsay since it is not being offered for the truth of the matter asserted

Privileges: 501/502 Attorney-Client Privilege and Work-Product Justifications: (1) privileges are essential to protect certain socially beneficial relationships a. relationship must be one that society wants to foster b. Confidential communications must be essential to maintaining the relationship c. the injury to the relationship from disclosure must be greater than the benefit to the truth-seeking process from that disclosure (2) the inherent value of privacy-privacy as an end in itself Overview: Scope- protects all confidential communications between a client and her attorney that are made for the purpose of legal advice or representation

**includes those made to any individual working with attorney to provide legal services Also- includes work-product Preliminary Determination by Judge- whether facts of asserted relationship, any claims of waiver and similar matters to determine if the privilege exists but not able to look at the privileged information itself Contours- prevents an attorney from offering testimony or other evidence about confidential client communications -it protects attorney-client communications even if the attorney is subpoenaed to testify in court -narrow because it only covers confidential communications made to obtain legal services Who Holds the Privilege?(Players) Effect- this determines who may waive the privilege A- the client because that is who the privilege protects Client- any individual or entity who obtains legal services from a lawyer or consults a lawyer about obtaining those services. Upjohn- when it is a corporate entity Factors to determine who the client is: (1)purpose of communication was to provide information to help the company secure legal advice (2) managers knew this was the purpose of supplying the information (3) provided this information in response to a superiors request (4) communications related to matters within the scope of the managers duties **key to the test (5) other employees could not provide this information to counsel (6) All parties treated the communications as highly confidential Alternate Test-Control-Group-more narrow it includes only corporate officers authorized to act on advice given by the companys attorney. Attorney- any person who is authorized to practice law or who the client reasonably believes is authorized to practice law Representative- includes temporary consultants When Does the Privilege Apply?(Trigger) **prevents disclosure of privileged information in any context-applies at trial but also to grand jury proceedings, pretrial hearings and every other stage of litigation.(MOST IMPORTANT IN DISCOVERY)

Waiver: 502 G/R attorney may not waive privilege without clients privilege Inadvertent disclosureG/R does not waive the privilege if (a) the holder of the privilege took reasonable steps to prevent AND (b) the holder took reasonable steps to rectify the error ALTERNATIVELY- Intentional disclosure G/R intentional disclosure of some privileged information other privileged communications remain protected unless (a) they concern the same subject matter and (b) the communications ought in fairness to be considered together G/R Intentional-Disclosure to 3d: once client reveals the communication to someone outside the privilege he waives the privilege in other contexts as well Requirement-to waive client must reveal the content of her communications with a lawyer not merely the same facts she told the lawyer. What does Privilege Cover?(Scope) I. confidential communications made for the purpose of facilitating the rendition of professional legal services to the client II. between the client or his representative and his lawyer or lawyers representative Subcomponents-Elements of Privilege: (1)client or his representative (2)attorney or her representative (3)communication between those two parties(area of the most dispute) G/R includes written or oral as well as verbal acts BUT does not protect the underlying information Underlying- allows independent evidence of information Ex, if party discussed with a 3d that person can be called as a witness Principle- the principle means that a client cannot hide information, documents or objects by communicating them to an attorney G/R Any writings which came into existence independent of the attorney-client representations are not privileged. Rhea-the physical object rather than communication between accused and attorneys- giving object to he attorneys does not transform it into privileged communication

BUT- cannot ask where or how the attorney obtained the object Affirmative Duty- to disclose any contraband or physical evidence of a crime that comes into their possession (3)Confidentiality of the communication and Exception- communications lose their confidentiality if they occur in the presence of people who fall outside the privilege Test-unintentional existence of privilege depends on whether the client took reasonable precautions to ensure confidentiality. **notice of a 3d listening-destroys the privilege G/R Identity of Client-not confidential unless disclosure of the clients identity would implicate the client in the very matter for which legal advice had been sought in the first case. (4) A purpose of facilitating professional legal services to the client G/R shields communications made to further any type of legal representation; the privilege is not limited to legal advice related to litigation. Requirement- services must relate to law How Strong is the Privilege?(Exceptions/Caveats) A. Furtherance of crime or fraud-a client needs to be able to discuss prior illegal acts to further his legal representation but no reason to facilitate the new crimes Elements: (1)the client is committing or intending to commit a fraud or crime AND (2) attorney-client communications are in furtherance of that alleged crime or fraud. **it doesnt matter if the attorney knows of the illegality or is ignorant Principle- communication is not privileged because it relates to an ongoing crime B. Breach of duty by lawyer or client- allows the attorney or a third party to break the privilege when the lawyer and client dispute a breach of duty between them Ex, malpractice or ineffective assistance claim Reasoning- implied waiver for all communications related to the alleged breach of duty

C. Joint clients-any party may disclose confidential communications if the joint representation breaks down; the other parties will not be able to prevent disclosure under those circumstances. Ex, usually occurs in divorce cases

Differences between: A-C- any receipt of legal services, communications between client and lawyer, absolute privilege W-P-only in anticipation of litigation, Any documents prepared, Qualified for facts about the dispute

Spousal Privilege Testimonial Almost like a witness incompetency rule Only applies in criminal cases(WY applies in both criminal and civil) Created when there is a lawful marriage; terminates when the marriage terminates(not civil unions/not common law unions) Testifying spouse is the holder of the privilege and they are the only one who can waive the privilege Communications in Confidence Has to be confidential communication-statement made in front of a group of people would not be confidential or 3d party present or disclosure of the communications destroys it(just like attorney client that it has to be the content of the communication but disclosing underlying facts does not destroy the privilege) Applies-to anything during the course of the marriage Both hold the privilege so waiver has to come from both

Caveat- crimes within the family abuse to spouse or child within the union Problems: 5- H happy to testify against W, still married Atestimonial privilege applies but he is willing to waive it communication privilege

Psychotherapist Holder-Patient holds the privilege Qualified- where there is extreme reasons for the the privilege to be waived it will be(attorney-client is absolute) Effect- psychiatrist would not be excused if there is severe harm/where an attorney would be excused o G/R attorney-client privilege is much stronger than the psychotherapist privilege o Where there is a communication that possibility to harm another Attorney-client privilege: crime-fraud exception-compel to testify Psychotherapist privilege: we want a client to tell these people this because they professionally might be able to help them

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