http://www.scribd.

com/doc/75430694/Outline Evidence: about the limits we place on the info juries hear; evidence rules presume that certain evidence will distract juries from their search for the truth and presume wrong results Rules were created to protect juries from information; trying to keep info away from them because we dont think they can handle it; have a healthy skepticism about what juries can handle

Rule: FRE Rule 606(b) prohibits the impeachment of a verdict w/ a jurors testimony except where there is a question as to whether any outside influence was brought to bear on any juror Default rule: Juror testimony is always excluded; exception: outside influences Impact: because our justice system engages in little quality control at the back end, we need quality control at the front end (need a good system of evidence rules); it is very difficult to impeach a jury verdict

Tanner v. US, 7 Facts: Petitioners argue that the district court erred in refusing to admit juror testimony at post-verdict hearing on juror intoxication during the trial; Tanners atty received a call from Juror Vera that other jurors consumed alcohol during lunch breaks (happened day before petitioners were scheduled to be sentenced); Atty also had visit from juror Hardy about juror party (while appeal was pending before 11th circuit) Issue: Whether the DC was required to hold an evidentiary hearing, including juror testimony, on juror alcohol and drug use during the trial Holding: Juror intoxication is not an outside influence about which jurors may testify to impeach their verdict Reasoning: CL rule that prohibited admission of juror testimony to impeach a jury verdict exception: when there was an extraneous influence on jurors or when juror was influenced by an outsider courts have treated allegations of the physical/ mental incompetence of a juror as internal rather than external substance abuse is internal (leg history p.12); public policy Also: Petitioners 6th amendment right to a fair trial in front of fair/ impartial jury is protected by procedural safeguards like voir dire, non-juror testimony, and juror observation by court personnel

SC Evaluation: Looks at: 1. The language of the rule 2. Legislative history important b/c rules are creatures of statute; look at committee notes, house and senate notes (in the annotated rules) (minority view: notes dont mean anything)

House proposed to allow juror testimony on any objective juror misconduct; Senate rejected, said that PP requires a finality to litigation (Senates prevailed) This legislative history provides strong support for the most reasonable reading of the language of Rule 606(b) that juror intoxication is not an outside influence about which jurors may testify to impeach their verdict

3. Common law where outside/ inside distinction originated; rules didnt come out until 1975 before this, everything was case made 4. Public Policy not written but most persuasive/ important; need to have a credible and fair jury system (not satisfied by drunk jurors BUT we have to uphold the integrity of the system) Need people to go to the justice system and not self-help Ensure this by NOT knowing what goes on in the jury room; our system cant handle jury scrutiny; protects the system and the jurors

Common law: Outside/ inside Outside (included): Proper testimony about juror deliberation: 1. 2. 3. 4. 5. Bribe Undue influence (ex. violence) Comments from the outside Information (ex. newspaper; problem now: Facebook) Clerical Mistake

Inside, Improper: 1. 2. 3. 4. 5. 6. 7. 8. How jurors are influenced Emotions Intelligence Drugs and alcohol Medications Physical/ mental illness (ex. cant see or hear; hallucinations) Lack of sleep Physical illness (ex. food poisoning)

RELEVANCE General Principles of Relevance Rule 401: Relevant evidence means evidence having (1) any tendency to make the existence of any (2) fact that is of consequence to the determination of the action more probable or less probable than it would be w/out the evidence

Probative: Any tendency at common law, this meant relevancy; lenient test evidence will be probative if it contributes just one brick in the wall of proof built by a party (hard to argue something isnt relevant) o Makes you slightly more/ slightly less convinced of the Ds guilt o This is due to the liberal thrust of the Fed. Rules preference for more rather than less evidence

Material: Fact that is of consequence; turns on what issues are at stake in the proceeding (often turns on the substantive law of the J) o Ex. Prosecutor in a murder case seeks to offer evidence of the victims lost earning potential defense will object that the evidence is immaterial

Evidence = links in a chain/ bricks in a wall; dont have to be convinced that D is guilty in one single question, instead, have questions that build on each other Ex. Brothers Keeper prosecution asks, Delbert tells obviously false story about his brother saying that Delbert would be blamed for his death in closing, argue that he made up the story, not while hes on the stand; way of telling the jury what the facts mean Tells a story Conscious of Guilt Guilty

Advisory Committee Notes: p. 103: Evidence isnt relevant in and of itself; have to look at what is going on in the case A brick doesnt equal a wall pull all the bricks together and tell the jury what to do with it

Problem 1.1: Show me the body: Wifes show me the body reaction isnt normal; Defense counsel objects that it isnt relevant Is it probative? Yes, makes it more likely that hes guilty Is it material? What does it prove? Not Normal Trying to cover Knows about murder/ knows body is hidden H told her

Wheres body?

Another inference could be that shes trying to protect her husband but this doesnt matter (2 types of inferences doesnt make it irrelevant)

Problem 1.3: Polygraph consent: Judge ruled that you cant bring in poly results, examiner testified that D responded Go ahead doc, hook me up to the test; Prosecutor doesnt want this info in (seems to prove consciousness of innocence) Go ahead D is confident Of his innocence

Different inferences could be drawn that make it less likely (ex. he was confident he could beat the machine, knew it would be inadmissible/ privileged info) Still going to be probative and material but could exclude using another objection b/c it doesnt feel right

Materiality: Problem 1.4: Knowledge: D is charged w/ a violation of statute which hold it unlawful for a person who is convicted in any court of a crime punishable by imprisonment for a term exceeding 1 year to carry a gun across state lines D argues that she didnt know it was a felony Probative because it proves that she didnt have the MR (makes it less likely) Material: not something that can be proved, not material here Ad Notes p. 104 fact of consequence to determination o Intent isnt something that needs to be proved; might be too prejudicial to bring in b/c it appeals to emotion Problem 1.5: Voluntary Intoxication: D and friends out drinking, picking mushrooms; car ends up in a ditch, 2 friends shot in the head; D wants to bring in evidence that he was drunk but Montana law says voluntary intoxication may not be taken into consideration in determining the existence of a mental state prosecution objects on relevance grounds Probative: proves that he wasnt aware of what he was doing, not in control, no MR b/c no intent to kill less likely that hes guilty Cant use it b/c of statue; better objection: not material US v. James, 25 Facts: James on trial for aiding manslaughter; her defense argues that it was in self defense; critical to est. that BF was a threat/ could have been/ reasonably believed he was based on what she knew Evidence: BF told James some violent stories, daughter says the same Jury wants to know if theyre true Defense wants to look at BFs record, prove that he actually did these things; Judge declines (record would villianize the D, says it isnt material because she didnt know his record looking at what she knew at the time), jury convicts her Issue: should Lower Court have allowed in additional info? Holding: Yes; not material to what she knew at the time but was crucial to her defense and credibility; jury didnt believe her

P.103, rules Variety of relevance problems Reasoning: Idea is to be more liberal, to let more rules in

Problem 1.6, Violin Case: Officer tells man to freeze, officer says man picked up case and aimed it at officer, officer shot him, on trial for murder; prosecution wants to bring in evidence that there wasnt a gun in the case, defense objects materiality No gun less likely that hed aim it like a gun no reasonable fear guilt

Materiality: matters what police perceived (actual v. perception)

Conditional Relevance: Rule 104(b): p. 10 rules, advis. Com notes p. 88 Problem 1.7: Threat to Disclose: Jurors permitted to hear evidence concerning Hs possible motive for murdering his wife; argue that he killed her b/c she planned to tell her son Justin that H wasnt his father Defense argues that unless the DA showed that H knew of the facts that constituted a possible motive, it cannot be a motive Hole in proof: Did H know that W was going to tell son? If he didnt, he wouldnt have a motive to kill her Evidence: She told her lover that she was going to tell son; officers testimony that H described boy as her son

104(b) Standard: 1. In order for it to be relevant, fact has to be proved that he knew 2. The proponent must introduce sufficient evidence that the jury could reasonably find the conditional fact by a preponderance of the evidence (Huddleston standard) Rule: 104(b): The contested evidence is admissible only upon, or subject to, the introduction of evidence sufficient to support a finding of the conditional fact Theory: the chain of inferences leading from the contested fact to the conclusion of the Ds guilt is severed if the conditional fact is not est. If theres a big hole in the chain of inferences, make a conditional objection Cox v. State, 39 Facts: Victim shot in the eye; State contended that Cox killed victim as an act of retaliation b/c friend was in prison pending the resolution of charges filed against him by the victim for molesting daughter Cox argued that testimony about hearing was inadmissible b/c it could only be relevant if Cox knew what happened at the hearing Hole: Cox might not know about the hearing

Sufficient amount of evidence for preponderance of the evidence: (1) Over at friends moms house a lot (2) Mom was at the hearing (3) same circle of friends RULE 403: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence Measuring how probative the evidence is, how well does it prove what you want it to prove? This is measured against unfairness Substantially outweighed = the liberal thrust of the rules Rule 403 is a powerful objection

Advisory Committee Notes, p. 403 Ex. Video: Prosecution wants video of dead baby in, defense makes a 403 objection argue that there is a low probative value and a risk of unfair prejudice PV is LOWER is there are other means of conveying the same info (ex. police officer describes what he found still, picture is going to impact the jury much more) Unfair prejudice: Defense will argue that jury is going to look to blame D, exclude all other facts and base their decision solely based on emotion o Objection: this isnt UP b/c jury can handle it, murder is a grizzly business, D shouldnt be able to sanitize the whole trial; also: prosecution has a high burden (beyond a reasonable doubt), should be able to present its case however it wants State v. Bocharski, 39 Facts: D objects that gruesome photos of dead lady are UP; prosecution responds that they are probative, show the method/ manner/ means of death, factual depictions of how victim died Pictures of hand wound: could argue low PV, isnt material, defensive wounds arent proves; gross pic of skull: low PV, highly prejudicial

Problem 1.8: Photo of Guns: machine gun clean and w/ a pile of guns makes D look dangerous; UP because its incomplete evidence (shows outside only when inside of gun is at issue); multiple guns in picture plays on emotional reaction of jury UP CAN be lessened: Crop the picture, take other guns out, put dead baby pic in black and white, reduce picture size, ect

Tyco Videotape, 44: Prosecutor trying to convict D of $ laundering, wants to show video of party (PV: Lavish life = someone has to pay = not business events = stole $)

D objects UP, makes jury FEEL (feel before thinking = BAD); disregard facts, see the horrible party rather than the D, should be looking at the books, not the party Prosecutions experts already described the details of Ds lavish life/ the party should video be included? Probably not, low PV b/c its already been talked about Commonweath v. Serge, 45 Facts: Prosecution wants to use CGI

Defense: video makes the case no longer sterile, takes it out of the courtroom, 3D is worse than a photo o Low PV b/s its cumulative, its already been talked about o UP: Jury will say: I know what happened, I saw it on TV not going to think, will be emotional Unfair prejudice inflames the jury; acknowledges the fact that things can sway them

Prosecution will argue high PV

Fuhrman Tapes, 52: OJ Simpson: Defenses theory: Fuhrman didnt like black people, planted the glove, it was all a set up prove this by showing that he was a racist, said N word 42 times on tape, he said he never said that word Defense: Trying to show that F isnt credible Prosecution: says 41 times is too much, makes objection o Objection can come when youre trying to impeach a witness (Prosecution can use this objection as well) Rule: B/c of the inherent unreliability of evidence of flight, and the danger of prejudice its use may entail, a flight instruction is improper unless the evidence is sufficient to furnish reasonable support for all four of the necessary inferences U.S. v. Myers, 54 flight issue; 2 weeks after robbery, suspect had been avoiding the police; an unidentified man came towards him and he ran; 2 months later, agents violently pulled him over Prosecution: Fleeing, guilty conscience, committed a crime = committed this crime (relevant b/c running = flight) Defense: Have to be conscious of guilt of this crime, need enough circumstantial evidence that D was running from this crime Potential prejudice = Problematic D might have to admit something to the jury thats not so nice, has to tell negative reason why he fled (ex. child molestation charges) = unfair prejudice

Ex. Delbert, dead brother had sperm on leg Pros: wants in that there was sperm found on the victims clothes, looks like incest, high probative value = sex gone wrong (+ abrasions would increase probability) D: object that this will inflame the jurors, disgust them, make them not like the D; could argue: alternate explanations which make this weak; inconclusive, easily explainable

Rule 105: can tell the jury what to do with the evidence, give a limiting instruction Ex. Harrison Ford Youre right, youre always right in response to you killed her Pros: says this is probative, an admission of murder D: says not probative b/c doesnt show the way that he said it o If admitted to evidence, could cross-examine W, try to prove bad relationship b/n W and Harrison (Did you go straight to the police after this confession?) Problem 1.9: D accused of murder, says he fled b/c he was scared that hed be arrested due to prior convictions Pros: Inferences: 1. Ran away (instead of calling ER, victim = his friend) 2. Run = conscious of guilt 3. Conscious of guilt of crime charged (thinks hell be arrested) 4. Guilt D: UP, accused cant explain the real reason he fled (in jail before for unarmed robbery), will convict him b/c they think hes a bad person

Problem 1.10: D says that he fled b/c he had weed, not b/c he killed girl Pros: Probative; prior knowledge, lapse of time (when was murder in relation to hold up?); weed isnt prejudicial Defense: had weed on him, reason to flee

Problem 1.11: After rumors swirled that business man a V were involved, D stayed put argues that he made no attempt to flee though he had opportunity to Pros: Not very probative; staying at home doesnt equal innocence; can make many other inferences from this behavior (ex. fleeing would be used against him) Defense: Inferences: 1. Behavior = non-flight 2. Non-flight = consciousness of innocence

3. Innocence of this crime 4. Innocent o Relevant: in 403 objection, it isnt UP, jury can probably handle it, probably keep it in Probability Evidence People v. Collins, 61 Facts: Robbery, young woman allegedly snatched Vs purse; white girl w/ ponytail and black guy w/ beard in a yellow car Pros: No good witnesses available so pros brings in math guy, says probability of all these things occurring at once and not being the suspects = incredibly rare Def: Bad science has low PV; UP (jury cant see past idea that this guy is an expert, just going to see the big #)

Missing: Jan. 25 and 26 notes (p. 60-120) Rule 411: Problem 2.5 Joan fell down stairs at Ds home while looking for the bathroom; Smith (insurance adjuster) visited Joan in the hospital and she volunteered to give tape-recorded statement describing he recollection of the events Pros: Joan wants in that Smith was employed by Ds insurance company (relevant to show his bias in taking her statement at the hospital) D: Jury will just make decision based on the fact that she has insurance o 403 objection: Low PV b/c she was taped (jury can tell she wasnt being tricked); could employ limiting instruction but still high UP Problem 2.6 Defendant Dr. and her expert witness were insured by the same med. Mal. Insurance carrier; Ps want this fact in (idea that drs would share profits/ losses, drs dont want their insurance rates to go up) Pros: using the rule for another purpose; make 403 objection o PV: high if witness is directly affected/ spread losses; low if lots of drs share insurance, wont affect everyone Problem 2.7 D wants to offer evidence that she had no motive to conceal abuse b/c day care had liability insurance, disprove her own liability under Rule 411 Pros: will be excluded under language of the rule; would probably come in under 403

RULE 410: May only use for a particular purpose (pleas); AC notes p. 126

Problem 2.8 As Ds trial for 1st degree murder approached, prosecutor offered to permit the D to plead guilty to 2nd degree murder; he spurned the offer D sought to offer evidence of this deal Plea for lesser charge knew case was weak less likely hes guilty OR Plea for lesser charge rejected plea shows consciousness of innocence o Defense: NOT barred against D (but would be more probative if it was lesser charge (misdemeanor) and he turned it down) o Pros: argue low PV (other reasons he could have rejected the plea thought he could win at trial); UP: jurors might use info the wrong way US v. Biaggi, 128 D wants in that govt. offered him immunity (no penalty/ trial) and he rejected it infers that he wouldnt have rejected it unless he was innocent Pros: 403 could mean other things, like hes afraid of the guys he would testify against Defense/ Holding: Exclusion of Ds state of mind evidence would deny him of a fair trial; highly significant to a fair presentation of his defense

410 limitations: 410 reaches only statements made in the course of plea discussions; if the D unilaterally offers info w/out 1st est. that he is seeking a concession, a court may determine that no plea discussions began and Ds statements are admissible against him Person has to have actual authority to negotiate (ex. DEA agent has no actual/apparent authority to negotiate plea w/ D)

Character Evidence; Rule 404 Issue: D on trial for murder, find out that D has assaults in other states automatically going to assume that D killed V in this unconnected case Zackowitz, 137 D shot Frank, who offered his wife $2 to lie with him; evidence at issue: D had 3 pistols and tear gas in his apt; inference: D has propensity for violence, this is why he committed this murder Holding: Cardozo says ownership of weapons is only relevant in indicating a general disposition to make use of them thereafter, this isnt relevant; would have been different if guns were bought in expectation of this particular encounter The Propensity Box: Ex. D has killed someone before
Violence Acted w/ violent character More likely violent on this occasion Guilt

Evidence

Rule: Proving ID: Action before is so close to the one now that no one else could have possibly done it like this

Problem 3.1: 2 very similar instances of computer hacking; D plead guilty to one in March; Now February, trying to get in March hacking Pros: wants this in b/c ID is the issue, want to narrow pool of suspects; more probative w/ more info: 2 times used same vendor, same products, sufficient knowledge

Problem 3.2 D caught selling drugs; govt. wants to offer proof that D was previously convicted of selling drugs Pros: ID: different drugs sold differently (would narrow pool); also need to know: what drugs, what quantity, what hes charging, location knew how to sell drugs isnt enough

Ex. Man threatens woman that he knew how to kill, how to do it and not leave any blood behind Pros: Big pool (requisite knowledge to kill) narrowed: fewer people know how to kill and not leave blood behind/ how to get rid of body Defense: 403: UP: jury will see woman beater, convict him

Problem 3.3: Train crash civil case; want in deposition about how conductor had reputation for being drunk drinks on the job more likely that he was drunk that day/ acting in conformity Pros: NOTICE: if suing the company, argue they had knowledge he was drunk, negligent hiring/ supervision; NOT character/ conformity

Problem 3.4: D cops shot; Pros wants in that one D had a warrant out for his arrest (3 years before) Pros: MOTIVE to kill agents; identity not the issue; probative because its a serious charge, D wants to stay out of jail, will become violent Defense: not probative, time has passed, in another state Problem 3.6: Police found the one of the cops guns in Ds car in bag w/ Ds thumbprint along w/ lots of other weapons (ex. AR-15) o IDENTITY: how else would D have this? PV greatly outweighs UP (that jury will see this and be scared) o AR-15, Pros: V shot w/ similar weapon; ID: presence of weapon, he had access to it o AR-15, Defense: anyone could own this weapon Problem 3.5: D negligently failed to stop the train twice; P wants it in to show that he would not/ didnt stop long enough for her to get off the train safely Pros: MOTIVE: he was in a hurry (trying to get off work, 404(b))

Modis Operandi, Rule 404(b):

Rule: Look at totality of the circumstances; (1) does the evidence have some special relevance independent of its tendency to show criminal propensity; (2) PV isnt substantially outweighed by UP ID has to be an issue, whittling down the possible pool of suspects U.S. v. Trenkler, 161 govt. trying to prove ID of bomb maker Pros: Narrow down the pool: Bombs #1 and #2: used to intimidate, got 3rd parties involved, vehicles used, magnets Increases PV o 403: Not unduly inflammatory, give limiting instruction, govt. needs this evidence; evidence of MO not guilt o Cant use: database analysis that selected specific characteristics on purpose Rule: D may introduce reverse 404(b) evidence so long as its PV under 401 is not substantially outweighed by 403 considerations D must demonstrate that the evidence has a tendency to negate his guilt and that it passes 403 balancing U.S. v. Stevens, 170 white air force officers attacked by black male; both picked out Stevens; Stevens sought to introduce testimony of victim of similar crime who stated that Stevens was not his attacker Def: this is irrelevant, will distract the jury Holding: Stevens was entitled to have the jury consider the evidence and draw its own conclusions; no appreciable risk that Stevens portrayal of 2 crimes would distracted jurors MO: 2 crimes so similar that no one else could have done them

Res Gestae: Problem 3.10 D charged w/ possession of revolver w/ obliterated serial #; Ex GF says D use to play Russian roulette with her Pros: prove that ex. remembered what the gun looked like, ID of the weapon, likely that she saw gun/ remembered it b/c it was in her face

Rule: Evidence of a prior act may be admitted if the evidence constitutes a part of the transaction that serves as the basis for the criminal charge/ when it was necessary to do so in order to permit the prosecutor to offer a coherent story regarding commission of the crime (ex. sinking yacht story to ) Ex. Sinking yacht story to get insurance $; want to get in 3 prior sinks story doesnt make sense w/out it put limitations on this evidence to minimize the UP

Absence of Accident:

Problem 3.11: D was charged w/ shooting wife, testified that he was cleaning his gun when it accidently discharged; pros wants in that 3 years before D had shot/killed his 1st wife, claimed same thing Pros: Get in prior accident, b/c its not an accident if he did it before should have been more careful, didnt exercise control a 2nd time, makes it look like less of an accident

Doctrine of Chances debatable The Brides Case, 185: Want in prior death of earlier wife that also died in the tub diffent than gun b/c man didnt have control over the tub Huddleston Standard, 190: Court examines all the evidence in the case and decides whether the jury could reasonably find the conditional fact by a preponderance of the evidence Rule 104(b) Is there a sufficient amount of evidence that a reasonable juror could find, by a preponderance of the evidence In assessing whether the evidence was sufficient to support a finding that the TVs were stolen, the court was required to consider not only the direct evidence on point (low price of TVs, quantity, no receipt) but also Ds involvement in sale of other stolen merchandise (tapes, appliances) given all this, jury could reasonably conclude that TVs were stolen, therefore TC properly allowed evidence to go to the jury Its only relevant to knowledge if its true Exception: Rule 413: Can say someone committed a sexual assault b/c they did it before? Rules p. 138, 142 Purpose: Save others from violence, also hard to prove sex assault cases, have to bolster the witnesses testimony; sex assaulter more likely to do it again

Rule: Depraved sexual instinct evidence will be admitted for purposes such as proof of motive, opportunity, intent, preparation, plan, knowledge, ID, absence of mistake exception thrown out; Lannan v. State, 198 State v. Kircsh, 203 D charged w/ sex assault, one victim, 6 counts of assault; govt. wants in testimony of 2 other girls that claimed he sex assaulted them Huddleston standard: sufficient evidence that reasonable juror could find by a preponderance of the evidence 404(b) Reasons: 1. Common plan/ scheme court says its insufficient here - A pattern or systematic course of conduct is insufficient to establish a plan a. Plan to gain trust of girls from deprived homes in order to seduce/ assault them doesnt demonstrate a common plan/ scheme

2. Motive used to show D had motive to pick young girls 3. Intent MR, meant to do it do prior acts show Ds intent? Cant prove he intended on this occasion b/c he did it in the past Problem 3.14 Pros wants to use past acts to show Ds common plan/ scheme in domestic violence (D obsessed over wife, verbal/ physical abuse, isolation, stalking) ? Rule 609* - only rule that doesnt have to pass through 403 U.S. v. Guardia, 215 D charged w/ sex abuse of 2 women during gyno exam; Pros wants 6 other women to testify under 413 (D has propensity to take advantage of female patients, probative of his guilt) Still have to do 403 analysis w/ significant attn to PV and prejudicial qualities inherent in 413 evidence Holding: Introducing womens testimony = strong chance of jury confusion, prob wont get in U.S. v. Mound, 222 Issue: whether 413 presents so great a risk that the jury will convict a D for his past conduct/ unsavory character that it violates DP (recidivism rate for rape is low) Nope, will usually say this doesnt violate Proof of Ds and Vs Character: Rule 404(a)(2): Exception for criminal cases: 1. D can offer his own character witnesses to prove evidence of his character 2. Prosecution can rebut it, witnesses say the exact opposite (b) D may offer trait of the V Prosecution may rebut trait of this V Pros may bring in bad character evidence of D o Homicide: D presents evidence of V was the 1st aggressor, pros may offer rebuttal character of the V Character Witnesses: must qualify to give an opinion; same community/ circles; whole inquiry is calculated to ascertain the general talk of people about D, rather that Ws own knowledge Have you heard = general knowledge Ex. D charged w/ murder, prosecution not allowed to bring up Ds character until D opens the door; D calls mom to testify that hes not violent Rule 404(a): Even though character is allowed, can only prove it in certain ways (handout): Direct:

1. Knowledge of reputation 2. Individuals opinion Cross: Have you heard can ask about specific instances of conduct (ex. Have you heard D was arrested 10 years ago for) p. 108 Ad. Com.

After D opens door, Rule: Pros may enter rebuttal to pertinent character trait; Pros own Ws can testify about Ds bad behavior, specific instances of conduct (Ex. D is known to be a violent person) Ex. D brings in character W attacking Vs character; W testifies V is known to be a violent person Rebuttal of pros: Call W to testify that V is peaceful; can bring in specific instances of peaceful conduct; Opinion/ Reputation: Have you heard; level of proof necessary = GF (low)

Limiting instruction: D has called a character W, and the basis for the evidence given by the W is the reputation of D in the community you are not to assume that the incidents asked about actually took place use to see whether character W actually knows Ds reputation Use 403: if its too remote/ not pertinent/ cumulative/ UP Specific instances are more convincing, thats why we dont let them in (ad. Com. 11415, last pp.) Michalson, 226 D brings up his own past convictions (pros couldnt do this) Pros can bring in character Ws to rebut character trait; can also ask about specific instances on cross D brings in 5 ch. Ws to say hes a good guy truthful/ law abiding (have to be pertinent to the charge) o Pros: cross-exam of 5 Ws did they know about his prior convictions? (Testing Ws knowledge of Ds reputation) Reasoning: This line of inquiry is denied to the state but open to the D b/c it is relevant in resolving probability of guilt; D may introduce testimony that the general evidence of his character is so favorable that he wouldnt be likely to have committed the offense (HIGH standard of proof) Problem 3.15: D charged w/ killing C; at trial she testified that she only shot the gun when X told her to do so Direct: If you had to do it over again, would you shoot X? Cross: Youve shot other people before, havent you? Rule 607 Impeachment, calling into question the truthfulness of W; could also argue that D opened the door in saying that she wasnt the type of person to kill anyone

Problem 3.16 D charged with paralyzing V, claims he acted in self-defense; during break in trial, V encounters Ds brother, V tells friends to remember his face shows that V is a violent tempered person Brother can only testify about opinion/ reputation, not that he just threatened = frustrating

Problem 3.17: D claims self defense after killing her BF, who boasted about killing a man and getting away w/ it, scary stuff 404(b): not proving conformity, proving FEAR would result in a limiting instruction 405: D could bring in reputation/ opinion through ch. Ws 1. D can bring in good character of himself 2. Opens the door to rebuttal 3. D brings in bad character of V 4. Pros brings in good character of V 5. Bad character of D Problem 3.18: D argues that TC wrongly excluded expert testimony, toxologist that Ws body contained coke, morphine, etc these substances increase likelihood that V was the aggressor Ch of V: get it in: Dr. testifies to an opinion, argue an exception

Rules 413, 14, 15: not limited by 405 prove through using specific instances of conduct (particular character traits), not opinion/ reputation Rule 405(b): when it is an essential element (when element requires proof of ch trait) 1. Entrapment 2. Rebutting truth 3. Family law, best interests trying to prove good parent, can use specific instances of conduct (take child to school every day) Ex. Libel case P should be able to prove that he isnt a thief w/ specifics if D libeled him and said he was

Rule 406 Habit Not limited by 405 can use specifics; ad.com. 117 cant do habit of drinking/ drug use 116 ad. Com. specific conduct/ situation; typically have to have more than one instance (I tend to take the stairs two at a time) Hallorn, 240 heat source/ highly compressed Freon H sues manufacturer of can, says it was defective; manufacturer introduces evidence that H used coil all the time to cool Freon, prove H was negligent

Pro: Reasoning: did it before, more likely to do it again Defense: UP that jury is going to make determination just based on this

Problem 3.19 P thought he was taking anti-allergy, Dr. prescribed steroids; P wants in 8 other people, same thing, show that it was a habit of Dr. to prescribe steriods Slightly different; habit is something semi-automatic Maybe common plan/ scheme, especially if he was getting kickbacks from drug co for doing this

Character for Truthfulness: Put yourself on W stand, can be impeached not character so can use specific instances of conduct; can call other Ws to call into question the Ws character for truthfulness; can then counter w/ Ws character for truth Ways to Attack Witness: Rule 607: bias, inconsistent statements, other conflicting evidence; youre lying today, in this instant, not youre a liar calling into question their testimony that day means that we can use specifics, extrinsic evidence, stuff that we cant use for character for truthfulness Bias: Isnt it true that your dad is in business w/ Ds dad? Inconsistent statements: You told police in repot that light was red after saying on W stand that light was green

Ex. Murder case Pros: 1st W: eyewitness Jane: D shot V Cross: can ask her about specific instances of untruthfulness (lied on law school application/ taxes) if she says she didnt lie on law app, have to stop there Def: can now call ch Ws to testify about Janes truthfulness (limited to opinion/ reputation) rebut w/ truthful character

Ex. A Few Good Men Dr. has interest in giving a correct diagnosis; in this situation, he had a motive to lie Rule 608: character for truthfulness once someone becomes a W, their character for truth can be attacked Ex. D on trial for murder can prosecution bring in character about D = NO, D has to bring it up Ex. Prosecution brings in eyewitness Joe now that hes on the W stand, can attack o Cross examine: specific instances of conduct regarding truth (didnt you lie on your law school app? if he says no, have to take his word on it)

o D can bring in character W, Roy, to testify: Joe has a bad reputation for truth o Now, cross w/ specific instances w/ relation to Joes conduct/ Roys conduct o Prosecution can now bring in a good character W U.S. v. Whitmore, 250 D appealing firearms charge, Officer/ W is the only one that puts the gun in his hand On cross, D wants in that Ws license was suspended/ failed to pay child support/ didnt disclose to his boss (608(a)) looks like attack on character for truth o Need reasonable basis/ GF (ex. copy of license) o If officer lies cant bring in extrinsic evidence (in voir dire, should remind him that he can be charged w/ perjury) Pros: Can now bring in character Ws to rehabilitate the W o Direct: opinion/ reputation o Cross: specific instances of conduct Other details: have to ask character for truthfulness, cant just be general (hes terrible); can ask: knowing what you know about him, would you believe him (170); cant ask about consequences, only lies; not: you were suspended b/c you lied on your law app (173) Problem 4.2 Tyco exec charged w/ stealing $ - pros wants in that he lied repeatedly (to get out of jury duty, to help his daughter get into bus school, to get a license) If D testifies, Pros can ask about this under 608; specific instances of conduct on cross, probative of his character for truth o Using this info for impeachment; D opens himself up to cross exam by getting on the stand Rule 609: Impeachment by a criminal conviction Rule is a compromise; felons couldnt testify previously under CL, we now let them but we can impeach them 609(a)(1): Can attack w/ conviction punishable by death/ imprisonment for more than 1 year (a)(2): For any crime if the crime w/in 10 years if it involves dishonest acts/ false statements (ex. fraud, embezzlement, etc) 1. Witness who isnt the D use 403 test 2. Civil cases, even if its D/P, still use 403 3. Criminal D PV outweighs prejudicial effect 4. Crime of dishonesty; can be a felony or misdemeanor no balancing, must be admitted doesnt have to go through 403

5. Anything over 10 years PV has to substantially outweigh prejudicial effect (presumption that itll stay out) 6. Even harder to get in juvenile convictions presumption that theyll stay out Brewer, 274 - 4 convictions govt. wants to introduce to impeach Ds testimony if he takes the stand, all meet punishable by 1+ year, therefore CT has to determine whether the PV outweighs the prejudicial effect to the D; Five factors: 1. The nature of the crime violent action against individuals has no bearing on honesty/ veracity 2. The time of the conviction and the Ws subsequent history continued conflict w/ the law = factor supporting admission of convictions for impeachment purposes 3. The similarity b/n the past crime and the charged crime convictions for the same crime charged should be admitted sparingly 4. The importance of the Ds testimony 5. The centrality of the credibility issue Problem 4.3: At trial on charges of grand theft in 2007, D takes stand and testifies that he was 10 miles away at the time of the crime; Pros attempts modes of impeachment: 1. Did you shoot a man in 2001? trying to show that hes violent; 609: not a conviction; 608: doesnt go to the truth of the matter - inadmissible 2. W testifies that she saw D shoot a man in a drunken brawl in 2001 inadmiss 3. D convicted of assault/ battery 2001 admiss: felony, under 10 years, PV outweighs UP (but not substantially); inadmiss: not probative of untruth, violent crimes are highly prejudicial 4. Convicted of turnstile jumping probably inadmiss (doesnt go to dishonesty) 5. Lying to a federal investigator, sentenced 2 years crime of dishonesty; PV must substantially outweigh prejudice Rule, Luce v. US: Judge rules convictions are admissible, D chooses not to testify, D convicted and appeals Ds failure to testify bars his appeal Rule, Ohler v. US: A party introducing evidence cant complain on appeal that the evidence was erroneously admitted (D talked about convictions 1st to take the sting out of them) Rehabilitation: do this when Ws character has become an issue Character evidence in support of credibility is admissible under the rule only after the Ws character has 1st been attacked; can rehabilitate if one party has: 1. Offered opinion testimony of the Ws bad character for truth

2. Elicited cross-exam evidence of specific acts of the W that is probative of untruthful character 3. Offered evidence of past conviction of W under 609 Problem 4.6 D on trial for bank robbery, D calls Louise as an alibi W she testifies that at the time of the robbery, she and D were having lunch 1. On cross, pros asks Are you in business w/ Ds dad? 607 impeachment based on bias; if she says NO 608(b): extrinsic evidence isnt admissible, have to stop Can D now call W to testify that Louis reputation for truth is good? 2. Pros asks, Wasnt the deli closed that day? D says Oh yeah, we ate next door instead Can D now call W to testify that Louis reputation for truth is good? Has to be an attack on truthfulness first, looks like theyre just asking if shes lying today, not asking about her character 3. Did you lie on a bank loan? Admissible under 608; if she says no, no extrinsic evidence truth attack, opens door to rehabilitation Ex. D on trial for murder Pros. Wants to prove that he is violent 404(a): Propensity, cant do it Ds case in chief: D testifies: o Pros can now question him about his character for truth specific instances of untruthful conduct (ex. lied on law school app) o 609: ask about prior crimes felony convictions or untruthful crimes test: 609(a)(1)(B) for criminal convictions; if untruthful crime, must be admitted If he testifies about his own character, says hes peaceful: o Pros can now bring in evidence about specific instances of conduct, bring in character Ws, reputation/ opinion about bad character Ex. D on trial for murder; he chooses not to testify Defense brings in ch W (his mom): In my opinion, my son is peaceful o Pros can ask about specific instances of conduct relevant to the pertinent character trait (violence) Mom has criminal record o Bring in her past convictions, bias, past lies (law school app) can Pros do this on their own w/out her first talking about it? o Pros rebuttal can bring up moms bad character

o Defense can rehabilitate, bring in good character Ex. D on trial for murder 1st W: Smith: eyewitness to the altercation o Pros can impeach W (are you a friend of the D?) D CANT call character W to say that W is truthful, his character hasnt been attacked under 608, no rehab o Pros: to W: You lied on your law school app? 608 attack on Ws character for truth; Pros cant bring in extrinsic evidence o Pros asks about Ws felony conviction D can rehab him; if W lies, says no conviction, can ask to put it in record Problem 4.8 On cross-exam of alibi W, Pros asks didnt you like on loan app? W says no 608, cant use extrinsic evidence; Are you in business w/ Ds father? W says no 607, impeach can call dad as separate W Ex. Negligence case, P suing train conductor, trying to prove train conductor was drunk that day; conductor says I never drink on the job If he has a felony DUI can probably get in w/ a limiting instruction

Rape Shield, Rule 412 Total prohibition on other sexual behavior, sexual predisposition; Past sexual behavior = al activities that involve actual physical conduct or that imply sexual intercourse/ sexual conduct Excludes all evidence relating to an alleged V of sexual misconduct that is offered to prove sexual predisposition; excludes evidence that doesnt directly refer to sexual activities but that the proponent believes may have sexual connotation for the fact finder Exception: 412(1)(B): Admissible if its evidence of specific instances of Vs sex behavior w/ the accused, if offered to prove consent

Problem 5.1: D wants online conversations in to prove that V liked kinky sex (Ds defense is that sex was consensual, not rape, shes the kind of woman that would consent to this kind of thing) Is this past sexual behavior? If yes, conversations are excluded

Problem 5.1: Ds fingerprints found in Vs apt, D wants to rebut this by saying that theyd had sex in the past Inadmissible; not offered to prove consent

Rule: 412 is inapplicable in sexual assault cases where D seeks to question W regarding Vs prior false allegations concerning sexual behavior for impeachment purposes

State v. Smith, 320 D wants to present past allegations in which V told mothers friend that cousin assaulted her Under 412, have to decide if these allegations are false; if theyre true, its past sexual conduct and you cant get it in o Past false allegations are not barred by 412 Character Review Ex. Want to prove that D is violent cant go through propensity box, 404(b) Ds case in chief: Mom as a character W: opens door to 404(a) exception, use 405 to say how: opinion/ reputation of nonviolent character

Pros response: Can impeach mom: 607: bias, inconsistent prior statements, other evidence Specific instances of conduct: Call into question knowledge of Ds background (have you heard that D was suspended for fighting?) Attack moms character for truth: 608: did you lie on your law school app? (she says no, stop there); has to be on pertinent character trait (truth) Bring in moms past convictions: 609 Bring in character W to say mom is untruthful Rebuttal about Ds instances of violence (opinion/ reputation)

Propensity box/ actions in conformity M.O.: Crimes so similar that no one else could have done it; identity has to be an issue (ex. bomb set off in Q, bomb in R, so similar no one else could have made them) Knowledge/ intent: D has 2 episodes involving computers in CA, pled guilty to one; his defense is it wasnt me Pros: Hes the only one it could be because hes the only one that has knowledge narrowing pool of possible suspects, makes it probative Different from M.O.: broader characteristics; knowledge asks: does this person have the requisite ability?

Ex. Opening the door by attacking V D opens himself up to attack on his own character and Vs Pros: Case in chief: 404(b) (limited)

Defense: D wont testify, bring in Ws to talk about Vs character (violent person), limited by 405: opinion/ reputation o On cross: ask about specific instances of conduct (test Ws knowledge of Vs reputation) o Can impeach (bias, etc, Ws character for truth (specific instances of conduct)) o 609: bring in Ws felonies

Pros: can now bring in character W to rebut (limited by 405), Vs character for peacefulness

607 v. 608 (youre lying today v. youre a liar) if Ws character for truth is attacked, D can bring in rebuttal W to say that W is truthful D decides to take the stand: 609: Pros can bring in past felonies PV has to outweigh the prejudicial effect 608: Can attack him as a W (did you lie on your LS app?) D says he would never kill anyone 404: might have opened the door to character

Rape shield: Exception: evidence that would violate Ds constitutional rights information Rule: D has a 6th amendment right to cross-examining an accuser to show a prototypical form of bias on the part of the W; bias based impeachment suggests that the W has a motive to lie in this case, not that she has a bad character for truth Olden v. KY, 327 D says sex was consensual, theory is that V concocted rape story to protect her relationship with her BF V gets on stand, says lies and says she lives w/ her mother Holding: D has the right to conduct reasonable cross-examination V shouldnt be able to directly lie on the stand Problem 5.5 Kobe Bryant rape victim evidence that she had sex relationship w/ 2 of the prosecutions Ws, one was an ex-BF; prosecution says this evidence is relevant to their credibility Doesnt reach the level of Olden; could probably get some of it in (close relationship, not sexual relationship)

Rule: A criminal Ds right to testify is not unlimited, may bow to accommodate other interests; no constitutional right to commit perjury Stevens v. Miller, 333 D told drastically different story than V, said he told her that he knew she liked doggy style b/c she had done it w/ other man D argues that the application of the Rape Shield violated his constitutional right to testify

U.S. v. Knox, 340 D trying to prove that V gave looks, was promiscuous (claims that evidence as to his state of mind was constitutionally required) relevant but wont come in under 412 Reasoning: 412 seeks to prevent portrayal of alleged rape V as a bad person who got more than she deserved Also: given the glaring differences b/n Vs and Knoxs stories, he could make no believable claim of reasonable mistake evidence supporting such a strained defense could hardly be deemed critical to Knox

RELIABILITY Hearsay Rule 801(c) out of court statement; if statement is used for something else, not the truth of the matter asserted, its NOT hearsay Hearsay is inadmissible b/c were worried about statements w/out the ability to cross-examine Ex. Declarant: The light was red we like this; perception, memory, narration, sincerity can test all of these things, get at the truth Ex. Declarant: She told me the light was red jury cant see the declarant, cant ask her questions = hearsay Ex. The light was red! excited utterance, prob get it in

Problem 7.1 Ps counsel secured affidavit from W who they were afraid would die before trial; she had watched rollover crash tests Hearsay; statement offered to prove that the makers knew about the rollovers; this is problematic: she was under oath but couldnt be cross-examined

Problem 7.2 To prove Jeff was short on cash, prosecution called one of his friends as a W to test about gesture he made, rubbing fingers together Hearsay; nonverbal conduct meant to assert something, same as if he said he didnt have any $

Problem 7.3 To prove that D was the one that robbed Alice, Pros examined her, on the stand she said that she pointed to #3 Hearsay; out of court statement offered to prove that #3 was the person who robbed her (exception later)

Ex. W charged w/ shooting her H; W to testify about the mean things that H says (Ill shake your head up = truth of the statement) this est. reasonable fear of attack, not that he actually beat her up can cross-examine her about his state of mind, tone; proving effect on the listener Problem 7.4 - Want in read out of blood test for alcohol/ drugs not made by a person, not hearsay BUT still could be some H (people programmed it, lab techs, etc D might want these people at trial)

Verbal Act words themselves have a legal meaning (ex. act of saying I do, accept words that trigger legal duty; Im going to kill you threat/ crime; slander) Impeachment non-hearsay use; used to prove person said 2 different things at 2 different times, not truth of matter Assertions Rule: Nonverbal action is only an assertion when we mean it to be an assertion; When evidence of conduct is offered on the theory that it is not a statement, and hence not H, a preliminary determination will be required to determine whether an assertion is intended; BOP on person saying its H Rule 104(a): Whether or not it was an assertion, sufficient amount of evidence, is a determination made by judge

Problem 7.9 Witness dockworker watched captain inspect ship and embarked upon vessel with his family asserting, in his actions, that the ship was seaworthy, probably not H Problem 7.10 Govt. employee told reporters that he was taking his wife and daughters to the blast site Hearsay because he meant it to be an assertion Ex. In response to fears of mad cow, Beef guy bit into burger and said it was delicious, this was reported in papers H b/c intent to communicate that the beef is safe Ex. Prosecution alleged that Peterson dumped his Ws body from boat; argued that his failure to tell his wife about the boat showed he bought it as a part of his murder plan; offered testimony of sister and facialist that W never mentioned the boat Inference chain: Spouses tell each other about big purchases; W would tell her GFs about it; GFs dont know, therefore W didnt tell o Not saying something can convey a message but this is a stretch Ex. Testify that Marine didnt call anyone/ didnt pack to leave = nonverbal conduct proving that he didnt know he was leaving not an assertion, not trying to assert anything by not packing; not a statement and hence not hearsay Ex. Briefcase in room with meth receipts, no evidence as to whether D or someone else prepared the documents; offered to show D knew how to prepare meth and therefore was more likely a member of a distribution ring Relevant: more likely that people who have recipes for drugs are more likely to make drugs Paper asserts that this is how to make meth; expert test that recipes are accurate; bring in to show that D knew how to do this, therefore involved in drug cartel NOT H, not going to the truth of the matter asserted

Ex. As proof that D was killer, Pros offered Ws testimony that before officer died, he fired both barrels of his riot gun into an alley area from which the shots appeared to have come

Prob not H

Hearsay Exceptions, Rule 801(d) 801(d)(2): Opposing party statements: admissions by a party-opponent are excluded from the category of hearsay on the theory that their admissibility in the evidence is the result of an adversary system rather than satisfaction of the conditions of the H rule (this is war) Have these b/c of: 1. Necessity 2. Trustworthiness Problem 7.11: V alleges injuries; D wants in record that she billed 104 hours of work to show that her capacity for work wasnt diminished fits exception, offered by opposing party, own words, shows that shes lying about something; part of adversary system will be used against her Ex. Troopers testimony that babysitter said baby (that was shaken to death) was fussy fits exception, Ds statement offered by opposing party, shows premeditation/ motive (annoying abby) Problem 7.12: OJs defense atty want transcript in, take my blood offering it to show hes not conscious of guilt BUT statement offered by own party could argue that its a verbal act/ consent Rule: Admission may be made by adopting or acquiescing in the statement of another when silence is relied upon, the theory is that the person would, under the circumstances, protest the statement made in presence, if untrue TEST, adoption by silence or acquiescence: Client heard and understood the statement, was at liberty to respond, circumstances naturally called for a response, client failed to respond or acquiesced

Ex. D accused of insurance fraud, I am a poor man, and was silent when accused; offered by prosecution looks like adoption of admission Idea that a normal person would deny burning their car

Problem 7.13: W: My buddy will sell you some; D says nothing; could come in against W under opposing party statement; would have to argue that D adopted this by silence (made motion towards drugs) Problem 7.14: Jailhouse meeting, D points to monitoring sign issue is was he at liberty to respond (physically could have but theres Miranda) Criminal: silence may be motivated by advice of counsel or a realization that anything you say can/will be used against you

Rule 801(d)(2)(C) and (D): Statements by Agents

Rule: Admission can still come in against a corporation even though D didnt have firsthand knowledge Ex. Kenneth Poos: Poos 801(d)(2)(A) 801(d)(2)(A) Cant be used against him Corp 801(d)(2)(d): Employee acting w/in scope of employment 801(d)(2)(d): 801(d)(2)(c): Minutes made by BOD; BOD authorized to make statement on the subject

Note Poos wrote Statement Minutes from meeting (Poos not there)

Problem 7.15: P fell on ice; after fall, Sherri called mgmt, man w/ shovel appeared shortly thereafter, said that mgmt was supposed to shovel earlier Sherri wants to testify about what he said; 801(d)(2)(D) has to be made by an employee w/in scope of employment 104(a): standard = preponderance of evidence Is he an employee? 1. Can we use the statement itself to prove the precondition (that he was an employee) also have bucket, timing, makes him look like an employee 2. But cant rely on this evidence alone Rule 801(d)(2)(E): Co-conspirator exception Must show: conspiracy exists, statement made during the course of/ in furtherance of a conspiracy Rationale: Conspiracy is a common undertaking where the conspirators are all agents of each other and where the acts/ statements of one can be contributed to all Joint venture: dont have to charge actual conspiracy; knew about it and intended to communicate; standard is preponderance of the evidence (104(a)) Bootstrapping: using what D said to show what D said was true; may consider the statement but must have other evidence Bourjaily, 406 Ex. Statement Delbert made to Lyman: Lets put brother out of his misery If it was Delbert on the stand, could get it in under opposing party statement Lyman on stand maybe co-conspirator; also 801(d)(2)(B): adoption of statement as his own

If Officer testifies b/c Lyman wont: Lyman told me that Delbert told him NO coconspiracy statement; conspiracy is over when youre talking to an officer

Problem 7.16: Undercover officer purchased heroin from N; N informed agent that his cousin Y would be transporting the heroin; during flight together, officer asked Y questions and N interpreted; N later killed, want in Ys statements N to officer: 801(d)(2)(E) made in furtherance of conspiracy N to Y: same Y to N: 801(d)(2)(A) party opponent admission o Issue: we dont know if the translation was accurate BUT the exchange happened exactly as N described, so it probably was Witness Prior Statements; Rules 607, 613 Past inconsistent statements, when offered to impeach, are not offered for the truth of what they assert, but merely to show that the W says different things at different times and therefore should not be believed; jury instruction might be appropriate Ex. Cabbie on stand, D brings up his past statements, how hes not to be trusted Rule 607, 613: Impeach w/ prior inconsistent statements; not truth of the matter asserted (that woman paid fare still dont have substantive evidence of this, can only use this to impeach) but to show that its inconsistent Substantive: 801(d)(1)(A): H exception, Declarant Ws prior statement: call officer to testify, Cabbie told me

Rule: To be received as prior inconsistent statement, the contradiction need not be in plain terms. It is enough if the proffered testimony, taken as a whole, either by what it says or by what it omits to say, affords some indication that the fact was different from the testimony of the W whom it sought to contradict US v. Barrett, 421 Govt. W Bass identified Bucky (D) bragging about crime; Adams also testified that Bucky Bragged Ds Ws were excluded wrongly; they would testify that they overheard Adams say that Bucky wasnt involved (Delaney stated that he met w/ Adams, Adams said it was too bad Bucky was busted b/c he didnt do it; Waitress overheard this) Holding: Adams subsequent statements to Ds Ws were contradictory and so admissible as to impeach his credibility; important art is the clear incompatibility b/n Adams direct testimony and the alleged statement Extrinsic Evidence: Can come in when its for impeachment; they can testify about what they heard THEN Adams has the opportunity to explain himself Impeaching your OWN Ws under 607:

Problem 7.17: Raymond told detective that she saw Davis fire the shot; she denies the statement to the police under 607, you can impeach your own Ws 613(b): Extrinsic evidence of a prior statement: admissible if the W can explain/deny the statement; call officer she made statement to BUT if she still denies, have to stop here; no substantive evidence on the record that Davis fired the shot

More Hearsay Exceptions/ Not Hearsay US v. Ince, 424 Ince on trial for aggravated assault; trial #1: Newman (previously gave signed, unsworn statement to police that Ince fired shots) on stand, says she cant recall details Rule 612: Refresh her recollection Rule 607: She still cant remember, impeach her with prior inconsistent statements (shes lying about not remembering, past statement in the record this wont be substantive) Trial #2: Newman does the same thing, give jury instruction to only use this info to call into question the Ws credibility (jury will be unable to do this) Holding: Court finds fault w/ Pros for knowing that she was going to do this/ trying to get around the rules shes not being inconsistent, just doesnt know what shes talking about; UP: Jury will ignore the limiting instruction Rule: Adoption by Silence: 1. 2. 3. 4. Heard and understood Party at liberty to respond Circumstances called for a response Failure to respond

Problem 7.18: F and G arrested, customs overhears G say to F, Why so much excitement? If they caught us, they caught us; F was silent Post-arrest, pre-Miranda silence: silence may not be used as an adoptive admission, cant be admitted against F as an adoptive admission; reasoning: even in the absence of M warnings, those under arrest might know that its best to stay mum when the law is at hand o Minority: approved of substantive use of silence; Ds silence when told after roadside search of his truck that he was under arrest on drug charges showed that he was not surprised officers found drugs in his truck and therefore that he knowingly possessed the drugs Pre-arrest, pre-Mirada silence: likely will constitute an adoptive admission, as long as the accusation the D failed to rebut was made by friend/ private employer, rather than officer, and no officer was nearby; reasoning: when the law isnt around, we can expect the innocent to speak out against false accusations

May silence be an adoption under 801(d)(2)(B)

D not in custody Circuit split

D in custody, Pre-M Circuit split

May silence be used to impeach?

YES

YES (Problem 7.18)

D in custody, Post-M NO statements taken in violation of M cant come in substantively but may be used to impeach Ds testimony NO

Rule 801(d)(1)(A): Statements inconsistent w/ declarants testimony: 1. Declarant has to be in stand 2. Has to be subject to cross (ex. Owen, cant remember what happened) 3. Statement has to be inconsistent 4. Have to have penalty of perjury Problem 7.19: V first testifies that her BF hit her, later says it was an accident; steps: Try to refresh her memory; if she said she lied this first time, this will be impeachment, not substantive Rule 801(d)(2)(A): Substantive, not H: Can bring officer in to testify, inconsistent statement given under penalty of perjury at trial jury can use either statement, theyre noth in substantively

Problem 7.20: V says she no longer remembers how she fractured eye b/c the injury damaged her memory only inconsistent if V is lying about not remembering Past Consistent Statements, Rule 801(d)(1)(B) Rule: 801(d)(1)(B) permits the introduction of a declarants consistent out of court statement to rebut a charge of recent fabrication or improper influence or motive only when those statements were made before the charged recent fabrication or improper influence or motive Tome v. US, 439 Tome charged w/ sexual abuse of his 4 yr old daughter; Tome had primary physical custody of daughter after break up; mother then contacted authorities about abuse; mother had Ws: doctors, babysitters, social workers who all testified same, that V was molested Holding: Statements had to have occurred before the motive to lie arose had to have come in before mother lost custody of her daughter Statements of Identification, Rule 801(d)(1)(C): Declarant testifies and is subject to cross about the prior statement, and the statement IDs a person as someone the declarant perceived earlier

Necessary and trustworthy The basis is the generally unsatisfactory and inconclusive nature of courtroom IDs as compared w/ those made at earlier time under less suggestive conditions; idea is that memory is better at this point, these IDs are accurate Rule makes clear that non-suggestive lineups, photographic and other IDs are not H and therefore are inadmissible

Ex. W picks man out of line-up, says Thats him Whoppi testifies that W said Thats him statement of ID, hearsay exception Commonwealth v. Weichell, 448 Foley describes who he saw to police who sketched a composite drawing prosecution wants in sketch Holding: Sketch isnt H, fits exception (out of court statement of ID) reason that a pretrial IF is regarded as having equal or greater testimonial value than one made in court b/c the circumstances of the earlier ID were less suggestive and b/c the ID occurred closer to the time of the offense Problem: Who is declarant artist or W? Did artist have a face in mind when he drew D? Cant cross-examine the artist; evidence is strong/ compelling Rule: 802 isnt violated by admission of an ID statement of a W who is unavailable, b/c of a memory loss, to testify concerning the basis for the ID US v. Owens, 451 V on stand, doesnt remember being attacked or who his attacker was, makes hospital bed ID Issue: How do you define available for cross? have to be able to cross examine declarant about what he said Holding: ID will come in; Confrontation Clause guarantees only an opportunity for effective cross, not cross that is effective in whatever way, and to whatever extent, the D may wish it is sufficient that D has opportunity to bring out such matters as Ws bias, lack of attentiveness, poor eyesight, bad memory Problem 7.21: V testified that injury was an accident; Pros offered testimony of a treating nurse who said that V told her that D slapped her, causing the injury 801(d)(1)(C): Statement of ID? Have to make distinction b/n who and what they did could prob get in that V said her H (D) was there but thats it; Pros would have to prove what happened at the house with other evidence

Exceptions to H, When Declarant is Unavailable as a W; Rule 804 Past testimony, Rule 804(b): must consider whether the party resisting the offered testimony at a pending proceeding had at a prior proceeding an interest of substantively similar intensity to prove (or disprove) the same side of a substantively similar issue

Turns on whether the questioner had a substantially similar interest in asserting that side of the issue, not whether the questioner is on the same side of the same issue at both proceedings Must consider whether the party resisting the offered testimony at the pending proceeding had at a prior proceeding an interest of substantially similar intensity to prove (or disprove) the same side of a similar issue o Nature of the 2 proceedings, both what is at stake and the applicable BOP, cross examination at the prior proceeding will be relevant

Problem 7.23: Crewing and Morgan in crash, Crewing charged w/ driving under incident of alcohol; #1: civil suit by Morgan, she testifies; #2: Crewings DUI prosecution, Morgan suffered head injuries and couldnt come to trial Pros wanted Morgans #1 testimony in Ask: did Crewing have same/ similar motive in both trials? Civil: $, preponderance, motives different; Criminal: loss of liberty, beyond reasonable doubt, interest in going after Morgan and her fault US v. DiNapoli, 458: At grand jury, 2 men called to stand, denied awareness of bid rigging; #2: at trial, men refused to testify defendants then offered the testimony the men had given to the grand jury as prior testimony under 804(b)(1) Holding: Similar motive requirement not met prosecution doesnt have same motive in 2 proceedings to develop testimony as he does at trial Relevant: GJ inquiry conducted when investigation was ongoing, important public interest in not disclosing prematurely the existence of surveillance techniques (wiretaps, undercover ops); by trial, this interest will have dissipated and the Pros will have strong motive to confront the W w/ all available contradictory evidence Grand Jury Motives: investigative body, decides if indictment is appropriate, typically dont fit 804(b)(1) exception b/c different motives, D wasnt D yet motives: proving that theres a preponderance, fact finding, subpoena to get people to testify This case: already knew men were lying, had taped conversations; Pros didnt reveal this b/c they didnt want to give up their informant yet Lloyd v. American Export, 463 fight b/n Alvaraz and Lloyd L filed action for injuries during fight; Export joined Alvaraz, Alvaraz counterclaimed against Export, alleging negligence and un-seaworthiness #1: Civil suit, Lloyd v. Export negligence, didnt protect him against A; L doesnt show up, A tells his side and thats all, says L was crazy, jury finds for A #2: Export wants transcript in of a prior proceeding and excerpts of Ls testimony Issue: Did Alvaraz or a predecessor in interest have the opportunity and similar motive to develop the testimony by direct, cross, or redirect examination under 804(b)(1)?

Holding: There was a sufficient community of interest shared by Coast Guard in its hearing and A in the subsequent civil trial to satisfy 804(b)(1) basic interest advanced by both was that of determining culpability and exacting a penalty for the same condemned behavior CG investigating officer attempted to est. at the CG hearing what A attempted to est at the later trial: Ls intoxication, his role as the aggressor, and his prior hostility towards A A suing for injuries, CG similarly wants vindication of rights

Rule 804(b)(3): Statement against declarants interest, when declarant is unavailable as a W; look for trustworthiness and necessity (high b/c declarant isnt there) Reliability: The circumstantial guaranty of reliability for declarations against interest is the assumption that persons do not make statements which are damaging to themselves unless satisfied for good reason that they are true

Ex. Fatal attraction, statement: Michael Douglas tells wife he had affair 1. Other woman found dead, wife charged w/ her murder H on stand, Pros wants statement in b/c it gives wife motive NOT hearsay, W thought affair happened, doesnt matter if it happened or not, offered to show effect on the listener 2. Other woman found dead, H accused statement gives him motive; W on stand need to prove that there was actually an affair, truth of the matter asserted; get in through 801(d)(2)(A), party opponent admission 3. H found dead, other woman charged W testifies, need to prove that there was an affair; 804 hes unavailable and its against his interests Rule: 804(b)(3): Hearsay exception for statements which, at the time of their making, so far tended to subject the declarant to criminal liability that a reasonable person in the declarants position would not have made the statements unless believing them to be true Whether the statement was sufficiently against the declarants interest so that a reasonable person wouldnt have made it unless it was true is answered by the surrounding circumstances Williamson v. US, 469 Harris transporting coke, tells 2nd story implicating coconspirator Williams; Harris refuses to testify (if he had been on the stand, could have gotten in Williams statements through party opponent admission or maybe coconspirator statement) Harris unavailable: statement against interest implicates himself against his interest BUT implicating Williams is not against his interest Statement for purposes of H will be taken apart line by line; part where Harris knew that there were drugs will come in but part about where he was supposed to meet Williams, deflecting culpability, wont govt. will have to make the connection b/n Harris and Williams

Ex. Pros gets Lyman to take the stand, testify about Delberts (D) statements party opponent admission; Lymans statements to Delbert 801(d)(2)(E) joint venture Lyman unavailable: officer: L told me what D told L and what L told D (no longer in furtherance of the conspiracy); 804: statement against interest: Lyman says I decided to kill my brother cant say we b/c its in your interest to implicate someone else

Problem 7.24 Armored truck robbed; officer comes to door, son says Ask M it was her idea Pros wants to offer this statement against son, party opponent admission; cant admit this statement in this form (reform statement or sever trial, cant come in against M) Ex. Jones on trial for murder; Harrison says, youre right, youre always right defense wants this in b/c it implicates someone else in murder BUT problematic b/c hes lying; 804 statement against interest: would need to support w/ corroborating circumstances that indicate statements trustworthiness (timing of the statement, possibility that he was accused of murder; other evidence that he committed the crime, like phone records) Imminent Death, Rule 804 (b)(2) Powerful psychological pressures present, whats the point of lying at this point; necessary (dead person) Dont have to actually die Big deal: In a H situation, the declarant is a W and neither this rule nor 804 dispenses w/ the requirement of firsthand knowledge; it may appear from his statement or be inferable from circumstances

Ex. Audrey Hepburn to testify at trial that dead man wrote name Dyle; Rule 804(b)(2): hes unavailable (dead), believed he was dying Defense could argue that dead man didnt know who killed him so this shouldnt come in

Rule: For imminent death exception to apply, statement has to be spoken w/out hope of recovery and in the shadow of impending death; patient must have spoken w/ consciousness of swift and certain doom Shepard v. US, 479 Shepard was accused of killing his W by poisoning her; evidence offered by Pros of conversation b/n S and W, Shepard poisoned me and that she said she was going to die she died a month later Holding: Not close enough to death, not enough to think you could die Forfeiture by Wrongdoing, Rule 804(b)(6): Statement offered against a party that wrongfully caused the declarants unavailability; statement caused declarants unavailability and did so intending that result Necessity and trustworthiness dont want D to get away w/ it/ use the system to get rid of the W

Run of the mill murder is not going to equal wrongdoing, need intention to prevent them from testifying o Ex. calling/ threatening someone while youre in jail, intend to keep them from testifying US v. Gray, 484 W killed Stribbling (H #1), Gray (H#2), Good (BF) want statements in from Gray that W threatened him (he later died mysteriously) W knew he would be a witness, she engaged in wrongdoing, intent to make sure that he wasnt a W

Court rejects the argument that she did it to get his $, not to prevent him from being a W; (1) W engaged in some wrongdoing, (2) that was intended to procure Grays unavailability as a W and (3) it resulted in his unavailability

Present Sense Impressions and Excited Utterances, Rules 803(1) and (2) These are trustworthy so we let them in, idea that declarant doesnt even need to be there b/c its so reliable

Present sense impression: Statement describing/ explaining an event or condition, made while or immediately after the declarant perceived it Contemporaneity of the event and statement negative the likelihood of deliberate/ conscious misrepresentation

Ex. Graduate: I have a burglar here Pros wants to use 911 tapes as H exception; 803(1): present sense impression, explaining events as theyre happening, doesnt have enough time to lie D objects: Robinson stating a legal conclusion (hes a burglar), lack of firsthand knowledge still prob coming in

Excited utterance: statement made relating to a startling event/ condition, made while the declarant was under the stress of the excitement that it caused Can relate to the event, not just describe it Excitement temporarily stills the capacity of reflection and produces utterances free of conscious fabrication; spontaneity is the key factor; when were really excited we dont lie

Ex. Dog mauling Victim called partner after she was bitten, told her the story of first mauling to partner later after she came home That dog just bit me under the stress of excitement; length of time b/n event and telling about it depends on the event; prove excitement through tone of voice, proximity of bite When partner later comes home = way later, doesnt count unless shes still under excitement (hysterical, etc)

Problem 7.30 Elderly woman calls 911 about dog mauling D wants to use this, show that owner was trying to control the dog present sense impression, perceiving the event and describing it (objection: lack of personal knowledge, she didnt open the door, she didnt know what was going on); could also argue excited utterance Problem 7.31 Police arrive at family residence, W tells officer her H pushed/ hurt her Pros later called her to W stand and she denied pushed Officer to testify about what she said; 803(1): My H hit me prob too far after; (2): excited she was crying/ upset If shes still on the stand: can impeach her but it wont come in substantively

Problem 7.32 Bartender will testify that W said Joe did it maybe present sense, there was a pause though; excited still under stress of event; 602 objection: lack of personal knowledge Statement of declarants then existing state of mind; Rule 803(3): statement such as motive, intent, or plan, or emotional, sensory, or physical condition (mental feeling, pain, bodily health), but not including a statement of memory or belief to prove the fact remembered; cannot prove a past act with a present statement Ex. Im feeling sick, Im going to the store later Trustworthy: Im going to get a coke present, no contemplation, no reason to lie Hillmon, 495 Ms. H suing insurance co, they say its fraud, Hillmon is still alive; insurance said it was Walters who died, H faking it, introduce letters to sister, fianc, that say Im intending to go to another state and go with H D says these letters prove: proximity of 2 men, puts him where the death happened, opportunity, he cared about his family and wouldnt have left them o Trustworthy: contents of a letter; necessity: no other way to prove this, show its more probable that he went and went w/ H, no other proof of this intention Rule now: Could get in intention to travel to another state and to travel but NOT with Hillmon statements of declarant are admissible only to prove his future conduct, not the future conduct of another person

Problem 7.33 Adell left group of friends in restaurant and went to parking lot, never returned; Pros wants in friends testimony that Larry told them he was going to meet D later and hed be right back Cant use this testimony to prove that D was the kidnapper? Confused

Rule: Testimony facing backwards, not forwards, doesnt work; declarations of intention, casting light upon the future, have been sharply distinguished from declarations of memory, pointing backwards to the past Shepard v. US, 499 Defense had Ws testify that Ms. Shepard was weary of life and that she was bent on suicide; Pros wants statements in that she said her H killed her

Though the declarations of unhappy state of mind opened the door to the offer by the govt evidencing a different state of mind, Wifes statements dont work for this purpose

Medical diagnosis statements, 803(4): Past diagnosis/ symptoms get in; statement made for/ reasonably pertinent to med diagnosis/ treatment, describes medical history, past/ present symptoms, their cause Statement need not be made to a doctor (ex. hospital attendants, ambulance drivers, members of family) Reasoning: statements to drs arent going to be untrue, not going to lie to someone giving you treatment; PP: dr relies on what you say to make an accurate diagnosis Look at: subjective purpose of the declarant; purpose of diagnosis/ treatment Fault: doesnt ordinarily qualify under exception (patients statement that he was struck by a car = in; statement that the car was driven through red light = not in); who injured you: often relevant for treatment (ex. child abuse)

Problem 7.34 old man pushed down and hit head, trial for battery/ elder abuse 1. Lawyers testimony that man said he had fallen/ hit his head Hearsay, not present sense, no excitement and not made for the purpose of medical treatment 2. Doctors testimony that man said hed fallen/ hit head gets in, this is something that drs need to know 3. Drs testimony that his caretaker pushed him down likely relevant to treatment, might treat someone differently based on who pushed them if making a diagnosis, will get in Rule: Two-part test for declarants intent: 1. Is the declarants motive consistent w/ the rule? 2. Is it reasonable for the physician to rely on the info in diagnosis/ treatment/ Iron Shell, 511 intent of D at issue (he concedes assault, not rape); In: I was dragged on the ground, he slapped me, he took my clothes off, he told me he was going to choke me Ask: (1) why did she say this? (2) is it something that the dr. relies upon in diagnosis? have to draw line b/n dr. as dr. and dr. as investigator o It was Ironshell pertinent to diagnosis b/c he might have diseases Rule: Dealing with little kids, helps to establish their motivation to tell the truth; 104 question for judge to decide; rationale of rule disappears if you dont know youre not supposed to lie

Problem 7.35: Child tells dr. I was slapped Ive been slapped before = in, medical history Problem 7.37: I think I ate bad meat and pointed towards empty takeout box use to prove that food was the culprit 1. Wifes testimony about her Hs statements/ gesture past statement, not excited; 803(4): prob not for medical treatment, Dr. doesnt really need to know about the deli 2. Nurses statement about Ws call, My H ate bad meat from Deli 2 levels of H; seeking treatment for H rationale = her strong motive to tell the truth, arguable could get in, would help if it was excited 3. Dr.s statement that it looked like arsenic poisoning doesnt fit rationale, hes not the patient, most courts wont let it flow in this direction Recorded recollections, Rule 803(5): Record that is on a matter the W once knew about but now cant recall well enough to testify fully about; was made/ adopted by W when it was fresh in Ws memory; accurately reflects Ws knowledge May only be received as exhibit only if offered by an adverse party

Problem 7.38: Suit based on negligence of driver; W1 called out license plate # to W2, who wrote it down W#s testifies, sees envelope where she wrote it but it doesnt refresh her memory no firsthand knowledge, double H problem (W#1 > W#2; W#2 > note); Witness to Witness: could use present sense impression, excited utterance; 104 preponderance standard W#2 testifies, remembers envelope cant get in as substantive b/c not offered by an adverse party HANDOUT, p. 458 refreshing memory

Requirements for Rule 803(5): 1. The W must have had firsthand knowledge of the event 2. Written statement must be a memorandum made at or near the time of the event while W had clear/ accurate memory of it 3. W must lack a present recollection of the event 4. The W must vouch for the accuracy of the memorandum Johnson v. State, 523 Taylor was uncooperative on the stand; said it was his signature but he didnt remember giving statement/ what he said State then (improperly) allowed to read Taylors statement in its entirety into evidence to the jury

Holding: State didnt lay proper predicate for the admissibility of Taylors statement; Taylor never guaranteed that his memory was correctly transcribed or that the factual assertions contained in the statement were true Ex. State attempts to prove that the D made a threat regarding the V in the presence of the W; W consistently contended she had no present recollection of the appellant having made the threat but that she did give the statement on the night of the offense, that she signed/ swore to it, and that if the statement reflected that appellant made such a threat, it was true Holding: Rules of use of a memo of past recollection met

Business Records, 803(6): A record of an act, event, condition, opinion, diagnosis, if: (a) Record was made at or near the time by or from info transmitted by someone w/ knowledge (b) Record kept in the course of regularly conducted activity (c) Making the record was a regular practice of that activity (just b/c something in record doesnt mean it fits exception, may not be in the business) (d) These conditions are shown by the testimony of the custodian/ another qualified W (e) Record doesnt indicate a lack of trustworthiness Reasoning: Trustworthiness (regular course of business, accurate, systematically checked, produced by regularity/ continuaity); necessity (before had to have everyone who worked on document testify); now can just have affidavit of the custodian of the record, dont have to have him testify Ex. Patient died; Hospital record that showed patient ate an hour before and doctor had notice of this; proof of statement = she ate 1 hour before, showing notice, not H Nurse to testify: The patient told me she ate 1 hr before nurse on notice, not H; if offered to prove that she ate = H 803(4) medical treatment exception Nurse unavailable, want to get in medical record = H; 803(6) business exception o Problem: H statement w/in document (patient > nurse > document) Rule: Accident reports are not for the systematic conduct of the enterprise as a RR business; unlike payrolls, accounts payable, bills of landing, etc, these reports are calculated for use essentially in the court, not in the business; their primary utility = litigating, not RRing Palmer, 532 Couples car hit by train; D argues contributory negligence; engineer of the train, who died before trial, made a statement at freight office where he was interviewed by superintendant D argues it was in normal course of business to take accident report Holding: Accidents arent in the ordinary course of business; (e) they lack trustworthiness because litigation is anticipated/ motivation behind preparation

Ex. National Transportation Safety Board their accident reports dont even come in (even though its their business) Problem 7.39 lawnmower incident, sues manufacturer (1) P offers return records from other customers reporting the same problem, cord came loose; P calls manager of the service counter as a W, familiar w/ record keeping 2 layers of H (customer > clerk > report) business record exception report comes in BUT statements w/in report cant come in to prove that the cord came loose (truth of the matter asserted); can only prove NOTICE (2) D manufacturer seeks to offer form showing that P returned mower b/c it clogged, not b/c of cord: Customer not a part of the business activity: P > Clerk 803(6) party opponent admission, offered by defense; Clerk > Report (clog) = ?

Rule: When statements are made by someone outside the ordinary course of business, need an exception Vigneau, 536 V sending $ to TX through Western Union, filled out form WU didnt check ID at form stage; V objects to the entry of these receipts, says theyre H Statement: I am V; sending forms = course of business but statements within forms arent in ordinary course; get receipts in and avoid H by indicating that person who filled out forms was V: 801(d)(2)(a) party opponent admission for I am V need evidence that he filled out the form (ID recorded, circumstantial evidence forms were in his possession, this is enough) Ex. Exclusion of un-redacted police report incorporating the statement of a bystander (even though the officer recorded it in the regular course of business) b/c the informant was not part of that business Public Records, 803(8) and (10) 8: Record sets out the offices activities; a matter observed while under legal duty to report (including, in a criminal case, a matter observed by law enforcement personnel); in a civil case, or against govt. in crim case, factual findings from a legally authorized investigation; cant indicate a lack of trustworthiness 10: absence of public record: testimony/ certification that a diligent search failed to disclose a public record or if test/ cert admitted to prove that: (a) the record/ statement doesnt exist (b) a matter didnt occur/ exist, if a public office regularly kept a record/ statement for a matter of that kind Ex. A few good men: lack of existence of code red Tom Cruise questions Ws on absence of code red; this is ok: 803(10): if code exists, it should be there; indirect assertion failure to mention a matter which would ordinarily be mentioned is satisfactory evidence of its nonexistence

Test: 4 (nonexhaustive) factors in determining trustworthiness: 1. The timeliness of the investigation 2. The investigators skill/ expertise 3. Whether a hearing was held 4. Possible bias when reports are prepared w/ a view of possible litigation Rule: Evaluative reports are admissible unless they indicate lack of trust; trustworthiness inquiry, and not an arbirtrary distinction b/c fact and opinion, = primary safeguard against unreliable evidence Beech Aircraft, 540 family members say crash was due to plane defect; D says it was pilot error; JAG given the authority to investigate the crash Error: COA decided that 803(8)(C) didnt encompass evaluative conclusions/ opinions, excluded these - reversed Holding: JAGs firsthand observations come in (how plane is supposed to work, etc); reconstruction of possible events come in b/c theyre based on factual matter, as long as theyre trustworthy (worried about oversight, possible bias/ motivation) Rule, Oats, 547: Chemist reports excluded from 803(8) and (6) (public records); police/ law enforcement reports not admissible against Ds in criminal cases under (8) rules are formulated to avoid impinging upon criminal Ds right to confront the W against him cant say these are public records as a back door around prior prohibition of these Rule, Hayes, 550: IRS tax examiner (custodian of records) testified that records were kept in the ordinary course of business showing that D failed to file one year; Holding: admissible exclusionary provision of 803(8)(b) was only intended to apply to observations made by law enforcement officials at the scene of the crime/ in investigating a crime, and not to reports of routine matters in nonadversarial settings Rule, Weiland, 551: D challenged admission of records reflecting his criminal convictions, a booking-style ID photo, and booking-style fingerprint card Govt. used these at trial to prove his status as a convicted felon Holding: Fingerprints/ photos are documents of public record of routine/ non-adversarial matters that fall w/in 803(8)(B), admissible thereunder; these dont contain info akin to police reports that might be biased/ adversarial; public record exception designed to apply to these things Residual Exception, 807 Gets in if its trustworthy, offered as evidence of a material fact, is more probative on a point than any other evidence that the proponent can obtain through reasonable efforts; admitting it will serve the purposes of the rules/ the interests of justice; proponent must give notice to adverse party that its going to be offered

START BRIEFING 2/8 U.S. v. Guardia, 215 Facts: Guardia was charged w/ 2 counts of sexual abuse, conducted in the course of Gs gyno procedures; govt. moved, under 413, to introduce testimony of 4 women who alleged that he abused them during their exams PH: DC applied 403 and excluded the evidence, finding the risk of jury confusion substantially outweighed the probative value Issue: Is the introduction of Rule 413 evidence mandatory or is it subject to the discretion of the trial judge under Rule 403 Holding: DC didnt abuse its discretion; A court must perform the same 403 analysis that it does in any other context, but with careful attention to both the significant PV and the strong prejudicial qualities inherent in all evidence submitted under 413 When balancing Rule 413 evidence under 403, the DC should not alter its normal process of weighing the PV of the evidence against the danger of UP

U.S. v. Mound, 222, dissent Rule 413 brings up deep concerns about fundamental fairness; presents risks that jury will convict D for his past conduct or unsavory character, thus violation of DP Michelson v. U.S., 223 Facts: M convicted of bribing a federal revenue agent, he said he did it due to agents threats/ demands; issue of whether the jury should believe the accused, so he brought in witnesses to prove that he enjoyed a good reputation; in direct examination of D a past misdemeanor for violation of TM law was brought out, also past lie on an application D challenged the right of prosecution to cross examine his witnesses w/ specific bad acts in the past

Rule: 404(a)(1) permits D to bring character evidence for himself; opens the door to the prosecution to get into his character Halloran v. VA Chemicals, 240 Facts: Halloran obtained a verdict in his favor for injuries he sustained while using a can of refrigerant packaged and sold by VA chemical; VA, on cross-exam, sought to est that it was

Hallorans usage and practice to use an immersion coil to heat the water in which the Freon was placed H denied this but D offered a witness to testify that he had seen H on previous occasions using an immersion coil to heat and that hed warned him of the danger of doing so; trial judge sustained the objection Holding: If the use of the immersion coli was part of Hs routine whenever it was necessary to accelerate the flow of the refrigerant, the jury should not be precluding the evidence as aid to its determination Rule: where the issue involves proof of a deliberate and repetitive practice, a part should be able, by introducing evidence of such habit or regular usage, to allow the inference of its persistence, and hence negligence on a particular occasion Has to involve a repetitive pattern of conduct and therefore predictable and predictive conduct

US v. Whitmore, 250 Facts: Officer Soto said he saw Whitmore throw a gun towards an apt building next to an alley Whitmore ran into; D defended on the ground that Soto had fabricated the story about the gun and had planted the gun in the window well He first attempted to call 3 witnesses to testify regarding Sotos character for truthfulness; also sought to impeach Soto by cross-examining him on the suspension of Ss license and his failure to report it and to pay child support

Alleged error: D claimed that DC committed reversible error in preventing him at trial from attacking the credibility of the arresting officer Holding: Witnesses opinions lacked sufficiency supportive factual info to be credible and thus would be UP under 403; DC abused its discretion on excluding the cross-examination Rule: Counsel need only have a reasonable basis for asking questions on cross-exam which tend to incriminate or degrade the witness; and the questioner must be in possession of some facts which support a genuine belief that the witness committed the offense or the degrading act to which the question relates U.S. v. Brewer, 273 Facts: D was charged w/ one count of kidnapping and one count of transporting a stolen car; D moved to suppress introduction of his past convictions as impeachment evidence if he takes the stand; four convictions at issue, one for kidnapping, the others for rape/assault Holding: The probative value of the prior kidnapping doesnt outweigh the prejudicial effect that the knowledge of such convictions would have on the jury 609(a); admission of the other 3 convictions, all involving serious crimes, should sufficiently serve the purpose of impeaching the Ds credibility 609(b) doesnt apply b/c the date that controls is the date that D was released from confinement imposed for each conviction

State v. Smith, 320 Facts: Smith was convicted of attempted indecent behavior w/ a juvenile Alleged Error: D asserted the court improperly precluded him from introducing evidence of prior false allegations of molestation made by the victim D should have been allowed to present to the jury testimony and cross-examination of witnesses regarding the allegations of prior molestation, which were subsequently allegedly recanted, to impeach the victims credibility at trial

Holding: Court agrees rape shield is inapplicable in sexual assault cases where D seeks to question witnesses regarding the victims prior false allegations concerning sexual behavior for impeachment purposes Stevens v. Miller, 333 Facts: Victim and D (Stevens) told very different stories about the night in the trailer; D alleged that he said dont you like it like this? Tim Hall said you did and something else about switching partners this angered V and caused her to run screaming into the next bedroom and accuse him of rape PH: Jury returned a guilty verdict against D on attempted rape, Indiana SC affirmed Alleged Error: D contends that the TC erred when it excluded the proffered testimony/ Rape shield violated his constitutional right to testify Holding: Affirmed TC properly balanced Ds right to testify w/ Indianas interests let him testify that he said something that upset the complainant Also took into account that V and D told drastically different stories and that Stevens directed another man to commit perjury

Dissent: Significance of Ds testimony should be weighed against Indianas policy choice US V. Knox, 341 Facts: D sought to offer evidence of specific sexual acts/ Theresas reputation to show that she was promiscuous Holding: Finding of Ds guilt is affirmed; neither the acts nor reputation had any tendency to make the existence of any fact more or less probable than it would be w/out the evidence Reasoning: Given the glaring conflict b/n the complainant and Knoxs stories, he could make no believable claim of reasonable mistake Knoxs constitutional claim depended on his showing that such evidence was critical to his defense Mutual Life Insurance v. Hillmon, 495

Facts: Hillmon brought action against Mutual for life insurance of her H; also action against 2 other companies for similar policies; D refused to pay alleging Hillmons were conspiring to defraud and H wasnt actually dead At trial P introduced evidence that Brown and H were camping, Brown killed H on accident; Ds introduced evidence to show that the body found was that of Walters, not H Ds introduced letters that Walters expected to leave Wichita w/ H

Issue: Whose body was found at Crooked Creek? Holding: Two letters were competent evidence of the intention of Walters at the time of writing them evidence that before the time when other evidence tended to show that he went away, he had intention of going w/ H, which made it more probable that he did go than if there had been no proof of such intention Rule: 803(3): hearsay exception: a statement of the declarants then-existing state of mind but not a statement of memory or belief to prove the fact remembered or believed In Class Notes, April 12, 2012 Confrontation Clause based on guarantees of the 6th amendment; only applies to criminal cases; statement has to pass BOTH hearsay and confrontation clause Same motivations: need to be able to cross examine

Mattox, 565 CC must sometimes give way to public policy Ohio v. Roberts CA v. Green Crawford, 573 Crawford stabs Lee, charged w/ assault and attempted murder; H makes wife unavailable to testify State wanted to introduce Ws tape recorded account of fight H convicted of murder, says admissions of Ws statements were incorrect

Reliability requirement, particularized trustworthiness Analysis, 583 Reliability is amorphous CC meant to protect against testimonial statements statements prepared in anticipation of litigation; testimonial: govts role in procuring the statement Criminal case: ask: is there an H exception; if exception applies, is the statement testimonial (under Crawford) In Class Notes, April 13, 2012

6th Amendment: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence Confrontation pre-Crawford: Standard of Analysis: The only CC inquiry is the Ohio v. Roberts rule of trustworthiness: 1. Either hearsay falls w/in a firmly rooted exception OR 2. H has particularized guarantees of trustworthiness Firmly rooted exceptions: Spontaneous declarations Statements made for purposes of treatment or diagnosis Co-conspirator statements Dying declarations Past testimony Business records Public records

Not Firmly rooted exceptions: Accomplice confession that inculpates a criminal D Residual Exception (FRE 807)

Crawford v. WA: D is convicted of 1st degree assault w/ weapon; state plays the tape of wifes statements to police using 804(b)(3) hearsay exception Issues: What constitutes testimonial evidence? When, if ever, may the testimonial statements of an absent declarant be admitted against a criminal D? What, if any, constitutional safeguards will apply to admission of non-testimonial H statements?

Inferences from CC history: Principle evil CC was meant to cure: civil law mode of criminal procedure and in particular the use of ex parte examinations of Ws as evidence

Not all H implicates the 6th amendment core concerns

Testimonial: ex parte in-court testimony or its functional equivalent Formal statements to govt. officers Affidavits Custodial exams Prior testimony Pre-trial (w/out cross) Interrogations by police officers Statements that were made under circumstances which would lead an objective W reasonably to believe that the statement would be available for use at a later trial

Non-Testimonial: Off-hand remark Casual remark to an acquaintance Business records Statements in furtherance of a conspiracy Critical element is the govt.s role in eliciting the out-of-court statement

When can testimonial statements be admitted against a criminal defendant? L 1. Declarant testifies at trial 2. Declarant is unavailable and the D had a prior opportunity for cross 3. When statement is not offered to prove the truth of the matter asserted 4. Rule of forfeiture 3 possible definitions of testimonial evidence: Ex parte in-court testimony or its functional equivalent that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to crossexamine, or similar pretrial statements that declarants would reasonably expect to be used prosecutorially. Extrajudicial statements . . . Contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.

Statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.

Kirkland