Davis Evidence

Evidence OutlineSpring 2004
Professor Onwauchi-Willig
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OUTLINE DETAILS: Author: School: Course: Year: Professor: Text: Text Authors: Anonymous University of California, Davis School of Law Evidence Spring, 2004 Professor Onwauchi Evidence, 10th Edition Waltz and Park
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GENERAL OVERVIEW Definition A. General: Something presented to the trial court to prove or disprove a fact. It is anything that can be perceived B. CEC 140: Evidence means testimony, writings, material objects, or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. Classification of Evidence A. Testimonial Evidence: Witness gives testimony or statements under oath as to what she observed B. Tangible Evidence: Physical evidence that can be seen at trial 1. Documentary evidence (e.g. lease, writing, audio or video tape) OR thing (e.g. rope in a murder trial) 2. Introducing Tangible Evidence a. Put witness on stand who can authenticate and lay the foundation for the tangible piece of evidence (1) Authenticate = Witness explains to the court that it is really what it purports to be (2) Laying foundation = Providing facts to make the evidence admissible b. Have the evidence marked for identification (1) This does NOT mean that the evidence will be entered into evidence. Only labeling it for the court record. c. Show item of evidence to opposing counsel d. Question the witness about the evidence e. Introduce the item into evidence [by motion] (1) Evidence is only shown to the jury after the judges permission Second Classification of Evidence A. Direct Evidence: Will prove the fact in issue if you do one thing: believe it B. Circumstantial: It will prove the fact if you: (1) believe it and (2) add some other information to it and draw some inferences MAKING THE RECORD Objections A. Timelyat best, after the question and before the answer 1. Will preserve the argument on appeal 2. Can object after the answer and ask the court to strike it, but the jury has already heard it a. Striking the answer: Answer still in the transcript, but the judge will ask the jury to disregard it B. Specific RELEVANCY General Rule: If it is not relevant, it is not admissible A. FRE 401, Definition of Relevant Evidence: Relevant evidence means evidence having any tendency to make the existence of any
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fact that is of consequence to the determination of the action more probable or less probable than it would be without this evidence. B. FRE 402, Relevant Evidence Generally Admissible; Irrelevant Evidence Inadmissible: All relevant evidence is admissible, except as otherwise provided by the Constitution of the United States, by Act of Congress, by these rules, or by other rules prescribed by the Supreme Court pursuant to statutory authority. Evidence which is not relevant is not admissible. C. CEC 210, Relevant Evidence: Relevant evidence means evidence, including evidence relevant to the credibility of a witness or hearsay declarant, having any tendency in reason to prove or disprove any disputed fact that is of consequence to the determination of the action. II. Relevancy Test A. What fact am I trying to prove with this piece of evidence? B. Is the fact that I am trying to prove a fact of consequence to this case? 1. To determine whether the fact is of consequence: a. Research the substantive law governing the case b. Look at the pleadings and other papers filed in the case to see how issues are being shaped and narrowing for trial. C. Does the evidence help establish that fact? 1. On the Probative value meter, the needle only need to be higher than zero (i.e. none) to satisfy this test 2. Evidence only needs to be a brick, not a wall. (i.e. does not need to solve the entire case itself) Cases/Hypos A. Judgment of Solomon: 2 women arguing over whose child is the living one. King proposes to cut the baby in half w/ a sword, then asks each woman for her response. Evid: Reaction to proposal to divide the child in half 1. Fact trying to prove: To prove who is the mother 2. Fact of consequence: Yes, since biological mother has rights to own child 3. Does evid help establish the fact?: King believes that the one who spare the child is really the mother. B. Union Paint and Varnish Co: Waterproof paint destroyed the shingles on a roof. Buyer suing for breach of warranty. Evid: First drum was only defective, not all drums of paint defective. 1. Fact trying to prove: Paint was defective 2. Fact of consequence?: Yes b/c possible or likely the second drum also defective 3. Probative value?: If the second batch of paint is also defective, could indicate more of a manufacturing defect C. Knapp v. State: convicted of killing a police officer. Wanted to apply self-defense that he heard that the same police officer had killed another elderly man. Evid: Doctors testimony that the elderly man was actually killed w/o bruises 1. re: Testimony of
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a. Trying to prove reasonable fear of the police officer b. Fact of consequence b/c rsbl fear of danger is an element of self-defense c. Evidence helps to establish this fact 2. re: Physicians testimony a. State trying to prove no basis for fearing the police officer b. Fact of consequence b/c can show the had no basis to believe this rumor that the police officer was violent or had a reputation for being violent c. Evid helps to establish the fact [by inference: elderly man died peacefully never heard the story had no rsbl basis to believe the police officer was violent lying.] D. Sherrod v. Berry: Police stopped a car and told them to put hands up. Decedent put hand toward jacket and was shot dead. Evid [challenged by police]: That there was actually no gun in decedents jacket. 1. P trying to prove: officer had no reason to shoot the suspect, unlikely decedent made move towards his jacket 2. Fact of consequence: yes 3. Probative value: detracts the officers credibility and may raise a question to whether it was rsbl for the officer to make a movement IV. Exception: Prejudicial Effect A. FRE 403, Exclusion of Relevant Evidence on Grounds of Prejudice, Confusion, or Waste of Time: Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation or cumulative issues. B. CEC 352: The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time, or (b) create substantial danger of undue prejudice, or confusing the issues, or of misleading the jury. C. 4 steps to analyzing evidence: 1. What fact am I trying to prove with this piece of evidence? 2. Is the fact that I am trying to prove a fact of consequence to this case? 3. Does the evidence help establish that fact? 4. What is the probative value of the evidence v. risks of unfair prejudice? a. The burden is on the party wishing to introduce evidence to show its relevance. To exclude evidence due to prejudice, the burden is on the party wishing to exclude the evidence to show it is to be excluded. b. FRE 403 is the judges discretionv. 401/402, where relevance does not necessarily involve the judges discretion
D. Old Chief v. US: charged w/ possession of a firearm by anyone
with a prior felony conviction; assault; violence w/ a firearm. Evid: Whether the record of prior conviction (assault causing serious bodily injury) should be introduced. wanted to admit to prior crime w/o specifying the actual crime. Trial ct + 9th Cir. allowed evidence in; 1. S.Ct: reversed b/c trial court judge abused discretion b/c: a. Here, all that mattered was the prior felony conviction b. Stipulation of claim = conclusive evidence to one element c. Alternative/substitute evid present here d. Danger of prejudice outweighed the probative value. Danger of the risk that jury would deem as a bad character. 2. Against general rule of allowing the govt to present its own case b/c: a. Need to tell story in own words b. Meet jurys expectation of evidence c. May have unforeseen relevance 3. OLD CHIEF BALANCING TEST a. On objection, trial judge will decide whether a particular item of evidence raises a danger of unfair prejudice b. If yes, the judge will evaluate the degrees of probative value and unfair prejudice for the evid in question but also for any possible substitutes c. Judge will decide whether the alternative item has nearly the same probative value as the original. In doing so, the court will compare the discounted probative value of the substitute with the danger of unfair prejudice. E. Ballou v. Henri Studios: Car accident w/ P and s Ee, the driver of the truck. argues that P was intoxicated @ time of accident. P offers testimony of a nurse who examined P minutes before the accident. Evid: Results of a blood alcohol test of P taken after the accident 1. Trial court doubted the credibility of the test and excluded it. 2. Appellate court: Reversed. Rule 403 inquiry into probative value is if the evidence is believednot the degree the court finds it believable. For the jury to weigh the credibility of the evidence a. Here, no alternative present, so simply weigh probative value v. risk. 3. Unfair prejudice: Tendency to suggest a decision on an improper basisusually an emotional one. F. HYPO: D charged w/ forgery of a check and using it to obtain cash from V. D cashed the check by endorsing the check w/ a forged signature of someone offered to sign the check. D offers evidence that he made restitution to V a week after the incident. Prosecution objects to evid as irrelevant. 1. Sustained. Evid does not help to prove that D did or did not sign the checkalthough V. Exception: Character evidence
A. FRE 404(a): Evidence of a persons character or a trait of character
is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except: (1) Character of accusedEvid of a pertinent trait of character offered by an accused, or by the prosecution to rebut the same, or if evid of a trait of character of the alleged victim of the crime if offered by the accused and admitted under Rule 404(a)(2), evid of the same trait of character of the accused offered by the prosecution; (2) Character of the alleged victimEvid of the pertinent trait of character of the alleged victim of the crime offered by the accused, or by the prosecution to rebut the same, or evid of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evid that the alleged victim was the first aggressor; (3) Character of witnessEvid of the character of a witness, as provided in Rules 607, 608, and 609. 1. Definition: Evid of general human trait (e.g. honesty, violence, cowardice, carefulness). Also called propensity evid. 2. General rule: Character evidence is inadmissible to show action in conformity with character. Can use character evidence when character is an ultimate factbut not to show conduct. If you have to infer something about a persons character, then it is improper. a. Rationale: (1) Prejudice: giving evid too much weight, punishing the for a prior crime (2) Waste of time litigating collateral issues.
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in its case-in-chief. can offer character evidence (reputation and opinion only) to prove that he did not do it. Once offers that good character, the prosecutor can cross-examine those character witnesses. In the course of cross-examination, the prosecutor can inquire about specific acts in the s past which may affect s reputation or opinion. a. HYPO: charged w/ perjury before a federal grand jury. As part of its case in chief the prosecutor offers: Witness 1s testimony that he knows of at least 5 other occasions on which lied. (Not admissible b/c during the prosecutions case in chief. Does not help to prove this case, only shows conformity that lied.) Witness 2s testimony that has a reputation in the community for dishonesty As part of the defense, offers the following evid: Witness 3s testimony that has reputation for honesty (Admissible) On cross-exam of #3, prosecutor asks:
Did you know that was convicted of perjury 5 years ago? (Admissible) Have you heard investigated for filing false tax returns 10 years ago? (Probably admissible if false tax return deals w/ honestybut can be subject to Rule 403 objection) In rebuttal, prosecution offers the following evidence: Witness 4s testimony that in her opinion, is dishonest (Admissible b/c it is opinion testimony) Witness 4s testimony that this opinion is based on her having observed lie and cheat on several previous occasions (Inadmissible b/c of specific instances not addressed at cross-examination) 4. Types of character evidence: a. Opinion Testimony by witness who know the person b. Testimony by witnesses who may or may not actually know the person as to his reputation in the community c. Evidence of specific acts (past conduct) by the person that reflect the particular character trait involved (1) e.g. Libel case where newspaper attacks P. Evid: fact that P had a mistress. presents this evid to show that the reputation of P could not be injured by what a newspaper might say about him. B. Character v. Habit Evidence 1. C: B is a drunk; H: B stops at Cs tavern every night after work and has 4 beers. 2. Cleghorn v. NY Central: Train accident. Switchman negligent in giving signal and switching track. Evid: Habits of the switchman that he was frequently drunk. [Inference drawn: that switchman was likely to be drunk @ time of accident) a. Ct: Admissible. Evid could show that Er knew the switchman was a drunk, so they should have fired him. b. May also be admissible to show punitive damages c. Jury may consider the evid in an improper way (1) Co atty needs to ask for limiting jury instruction (2) Co atty should object under FRE 403 3. Michelson v. US: convicted of bribing a fed agent. admitted passing $$, but claims it was done b/c of agents threats. Evid: [ previously convicted of a misdemeanor.] introduces witnesses to testify to s good character. Cross-examination asked witnesses whether theyd ever heard of s bad deeds. a. S.Ct: allowed to introduce character evidence. Prosecution can challenge the witness credibility and their actual knowledge. (1) Trial judge must ensure a good faith basis for the questioning and make a limiting instruction to the jury b. General rule: Prosecution cannot introduce evid of s bad character just to show that he probably committed the crime. BUTaccused can introduce
evid of his good character (opinion or reputation only). Accused can also introduce character evid of a victim to aid in his defense (e.g. a homicide case to show the victim was violent and the aggressor). (1) Prosecution can respond: (a) Own character witness to testify about s character (b) Challenge how well the witness knows (c) Attack witness credibility or character (2) Prosecution needs: a. Good faith basis for asking questions, and b. Show that their character evidence is inconsistent w/ that of the . (a) Thus, prosecution can offer evid that is actually not peaceful when claims to bebut cannot offer evidence showing that is dishonest.
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Exceptions to the General Rule against Character A. FRE 405(a), Reputation or opinion: In all cases in which evid of character or a trait of character of a person is admissible, proof may be made by testimony as to reputation or by testimony in the form of an opinion. On cross-examination, inquiry is allowable into relevant specific instances of conduct. B. FRE 405(b), Specific instances of conduct: In cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may also be made of specific instances of that persons conduct. 1. Defamation casecharacter evid can be used as an affirmative defense that only spoke the truth C. FRE 404(b), Other crimes, wrongs, or acts: Evid of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. 1. Prosecution CAN show these acts in the case-in-chief IF not used to show character 2. In criminal cases, need pretrial notice to use this evid 3. KIPPOMIA [Knowledge; Intent; Plan; Preparation; Opportunity; Motive; Identity; Absence of mistake of accident] (1) Evid does not need to fall neatly into one of the categories. It is the cts discretion to decide the issue in dispute. 4. HYPOS (1) charged w/ possession of marijuana w/ intent to sell. Evid: plants found in s backyard & 15 yrs ago, sold drugs to neighbor. testifies that he thought they were
weeds (Admissible to show knowledge of what marijuana looks like. Also may be relevant to intent to sell) (2) charged w/ murdering V. Evid: Prior week, killed Vs cat. (May be too prejudicial, but admissible to show s animosity towards V. Animosity motive for killing V) (a) Animosity character. (Difference b/t having the character of being a hater and having the emotion of hating a particular person). (3) living in a halfway house where they can work during the day, but must come back at night. accused of robbing an armored truck during the day. Evid: a sex offender living in a halfway house, and did not return on that night when required to. (Admissibles failure to return is evid that he fled the halfway house to avoid arrest. Thus, would show consciousness of guilt. Fact that he was a sex offender probably too prejudicial. (a) Consciousness of guilt of a particular crime trait of character (4) accused of armed robbery. V picked out of a lineup, but is not sure. To show identity, the prosecution offers evid that committed 3 previous armed robberies in the past 6 months. (Inadmissible unless prosecution could show that robberies were so similar that they were signature crimes involving the same mode of operation.) (a) Evid seems to be showing the character of a person, showing action of conformity w/ propensity to be a bank robber. (5) and X commit robbery together. murders X. Evid: robbery. (Admissible to show motive, that wanted $$ for himself or wanted to kill eyewitnesses.) (6) Foster mother charged w/ murder of her infant son. Evid: on 20 other occasions, her foster children were treated for blue coloring due to lack of oxygen. (Admissible to show absence of mistake and identity (i.e. since acts were unusual and similar) (7) Letter carrier charged w/ stealing 1890 silver dollar from the mail. testifies that he intended to turn the silver dollar back to his supervisor. Evid: has a stolen laptop in his apt. (Inadmissible b/c showing that is the kind of person to steal. Also excluded as prejudicial). 5. US v. Carrillo: charged w/ distribution of heroine and cocaine. Undercover cop purchased heroine from man on the street and idd via computer record. s defense: mistaken identity, claims he was not there. Evid: 2 prior heroin sales by when put drugs in a balloon & stood on this street corner. (1) Ct: No similarity shown. Use of balloon is common. Nothing unusual about this sale. (a) Also questionable since this officer had trouble in the past iding s.
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(2) Need to prove identity NOT in itself sufficient to get evid in. US v. Beasley: , a PhD chemist. Went to dr to get drugs & claimed it was for his experiment to feed drugs to vegetables. charged w/ intent to distribute drugs, obtaining a controlled substance. Evid: s past acts [to show s pattern of conduct] acquired/distributed drugs b/t 1981-84, s conversation about how to fake pain to obtain drugs & how to raise the price on the black mkt, showed drug user how to dilute drugs for injection, used prostitution. (1) Held: Cannot use evid to infer that is more likely to commit crime. Excl. evid of prostitution. (a) Also in admitting bad evidence, must weigh the prejudicial value (2) Patterns may show identity, intent, plan, absence of mistakebut is not in itself reason to admit the evidence US v. Cunningham: , a nurse who had past Demerol addiction. Was one of 5 nurses having access to cabinet of syringes. Demerol injections missing from the cabinet. Evid: s past violations for stealing drugs from the hospital + s past addiction to Demerol + s falsifying of drug test. (1) Held: Admissible to show motive (i.e. addiction) + opportunity (i.e. access to drugs) Tucker v. State: 1957, T fell asleep after drinking, went into dining room and found someone shot, called police, not charged w/ crime. 1963: T fell asleep after drinking, went into dining room and found someone shot, called police, charged w/ 2d degree murder. Evid: info about 1957 incident. (1) Held: Not admissible b/c of prejudicial effect. Nothing to show that T guilty of the earlier crime. (a) Criticism: What if there are a series of events? Also, 404(b) applies to things other than criminal convictions (2) This was overturned in Huddleston Huddleston v. US: charged w/ sale and possession of stolen memorex tapes. s trailer had over 3200 tapes. s defense: Didnt know the tapes were stolen. Evid: [to show knowledge] 1) Record store owner testimony that had offered to sell tvs in the past; 2) Undercover FBI agent testimony offered to sell him stolen appliances while posing as a buyer. (1) Held: No preliminary finding [by the court] of whether committed the other acts is necessary. Only need to show that a reasonable juror can find that committed the other acts. (2) FRE 104(b) governs the reception of other-crimes evidence. Thus, evid whose relevancy depends upon the fulfillment of a condition of fact is admissible when there is sufficient evid to support a finding that the condition fulfilled.
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(a) Here, the condition is that the be the person guilty of the other crimes. Four Steps to Apply to Specific Act Evid (1) Is the evid being offered as support for any inference that acted in conformity with a general trait of character? If so, then not admissible. (2) If not, is the evid being offered to support a theory of relevance that would fit under Rule 404(b)? (3) Could a rsbl juror find by a preponderance of the evid that committed the other crime(s)? (4) Is the probative weight of the evid outweighed by its danger of prejudice? 11. HYPO: charged w/ murdering a store clerk in an attempted robbery. Evid: (1) was homeless on the day of the robbery; (2) had a $200/day morphine addition at the time; (3) was turned over to the police 6-months earlier for shoplifting by the same store clerk. a. (1) is inadmissible as improper character evidence (since this is based on the assumption that homeless ppl need $$ those who need $$ steal or rob shows action in conformity). b. (2) is probably admissible, would need more foundation, since just robbing a store, not a pharmacy. But also, most people dont have an unusual taste for drugs. c. (3) is admissible to show motive for to shoot the clerk. makes it more likely that the clerk was a target. (1) This differs from #1 since not inferring anything about s characteri.e. that he was a bad person and likely to shoot pplbut that there was a definite motive involved. D. Habit Evidence 1. FRE 406, Habit or Routine Practice: Evid of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person of organization on a particular occasion was in conformity with the habit or routine practice. a. Rejects the eyewitness rule (i.e. witness does not need to be present on the day in question). b. Factors: (1) Similarity of situation (2) Consistency c. e.g. S. Dakota congressman ran stop sign @ 71 mph in 50 mph zone and killed motorist. Evid: s driving record of 12 speeding tix + bragged about his speeding. Held: Inadmissible. No similarity of situation and no evid to show that speeded @ that stop sign. Speeding stop sign. 10.
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d. Rationale: Habit is more probative and a better predictor of what actually happened under the circumstances. 2. Habit v. Character: a. Habit evid describes a persons regular response to a specific set of circumstances b. Character evid describes a persons general way of responding to a specific set of circumstances. 3. Perrin v. Anderson: P in car accident. Walked home after leaving his car. Officers went to Ps home to question P about accidents. P reluctant to talk to officers. P in scuffle w/ officers. P dies, and Ps estate sues officers for 1983 civil rts action. Evid: Eight other officers testimony that on previous occasions, P had fought w/ other officers/responded violently to police on 5 other occasions [to show Ps aggressiveness and that he instigated the fight]. a. Held: Dist. ct let in 4 testimonies [appellate finds this was a fair compromise]. This evid of specific incidents is admissible b/c it is habit evid. Moreover, ct could invoke 404(a) [character of the accused] even though this is a civil case b/c the central issue in the case is essentially criminal. 4. HYPO: charged w/ murder arising from a barroom brawl. s defense: V was the first aggressor and that acted in selfdefense. a. offers evid that V had a bad reputation for violence (1) Admissible b/c it is a pertinent character trait of V. Evid can be in the form of reputation or opinion testimony Rule 404(a)(2)) b. offers evid that V previously shot someone in a fit of road rage (1) (Inadmissible cannot offer evid of a specific act to show Vs violent character) c. offers evid that weeks before the incident, V attacked in a fit of road rage (1) (Admissible can offer specific acts of evid as proof that he rsbly feared that V would cause him serious bodily harm or would kill him d. offers evid that weeks before the fatal incident, he heard that V shot someone in a fit of road rage (1) Admissible can offer specific acts evid as proof that he rsbly feared that the victim would cause him serious bodily harm or would kill him. (2) This could be subject to a Rule 403 objection e. After the judge has admitted evid about the bad reputation of V for violence, prosecution evid of the bad reputation of for violence is admissible, even if has not offered any evid of s own good character (1) Admissibleonce has offered evid of a character trait of V under 404(a)(2), the prosecution may offer evid of the same trait of character of the under 404(a)(1))
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5. Holloran v. Virginia Chemicals Inc: P, auto mechanic, suing
Chemical Co in products liability action. P used heating source to heat refrigerant to increase pressure. s say the label warned against this and that this was a regular practice of P. Evid: Whether prior incidents of using a heating source to heat the refrigerant could be used to show habit a. Held: Showing carelessness is not admissible, but can show that Ps using the hot water is routine. Here, evid should have been admitted at trial. 6. HYPO: Mary has sued John for injuries received in a car accident that took place on Friday. M claims that J was drunk @ time of the accident and that he ran a stop sign. M offers the following evid: a. One of Js co-workers to testify that J has intemperate drinking habits. (Inadmissible b/c talks of his general drinking habits) (1) Differs from RR case, where evid of Ees drinking habits admissible. There, character was at issue + Ers knowledge. b. Another co-worker to testify that on most Fridays after work, she, J, and others go to a tavern near work and John usually has 3-4 beers. (1) (Admissible b/c it is his regular response to particular circumstances) c. Friend to testify that he frequently rides in a car w/ J and that J is usually a careless driver (1) (Inadmissible b/c does not suggest a regular response to a particular set of circumstances. Improper inference from careless driver careless on that day.) d. Testimony that on the four occasions she has ridden w/ J, he failed to stop completely for that stop sign at the intersection where the accident occurred. (1) (Admissible, but may be contested whether 4 times is enough to establish habit) e. Co-worker refuses to ride with J b/c he is a bad driver. (1) (Inadmissibletrying to infer bad driver on that day, J was a bad driver) VII. Other Acts : Rape-Shield Legislation A. Elements of rape: (1) forceable intercourse; (2) w/o consent B. FRE 412(a), Evidence generally inadmissible: The following evid is not admissible in any civil or criminal proceeding involving alleged sexual misconduct except as provided in subdivisions (b) and (c): (1) Evid offered to prove that any alleged victim engaged in other sexual behavior; (2) Evid offered to prove any alleged victims sexual predisposition 1. Burden is on the person who wants to admit the evidence to show it should be admitted (differs from most evid rules)
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2. Rationale: Previously evid admitted to show victim has a low moral character or that she was unchaste. Reflects a general distrust of rape claims, especially when victim was promiscuous. Also, traumatic for women to testify. Other policy considerations include: a. Encourage victims to step forward b. Protect privacy w/ victim c. Protect risk of jury misusing the evid (e.g. forceable sex less deserving of punishment for promiscuous women) d. Prohibits a propensity inference b/c of past conduct FRE 412(b)(1), Exceptions: In a criminal case, the following evid is admissible, if otherwise admissible under these rules: (A) evid of specific instances of sexual behavior by the alleged victim offered to prove that a person other than the accused was the source of semen, injury, or other physical evidence; (B) evid of specific instances of sexual behavior by the alleged victim w/r/t the person accused of the sexual misconduct offered by the accused to prove consent or by the prosecution; and (C) evid the exclusion of which would violate the constitutional rights of the FRE 412(b)(2), Exceptions: In a civil case, evid offered to prove the sexual behavior or sexual predisposition of any alleged victim is admissible if it is otherwise admissible under these rules and its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evid of an alleged victims reputation is admissible only if it has been placed in controversy by the alleged victim. State v. Cassidy: V and had a prior sexual relationship. V willingly went back to s house. V claims forceable rape and assault. claims they had consensual sex, but V talked about her husband during sex. Evid: Witness testimony of previous incidence w/ similar sexual encounter where V got hysterical over husband in the middle of sex. 1. Held: Evid excluded. One incident is not enough to show a pattern. Low probative value and no proximity in time. Olden v. Kentucky: V out drinking. She left w/ 2 individuals, alleges that she was raped a few times. Was eventually dropped off at alleged rapists half-brothers home, w/ whom she was having an affair with. Half-bro saw her get out of the car. Evid: wanted to question V about her current living arrangements (i.e. that she is now living with the half-bro). 1. S.Ct: Error to exclude evid b/c prevented from presenting entire defense and cross-examine alleged victim in this case. 2. Normally, this evid would be excluded, but probative value is high here since Vs boyfriend saw her getting out of the car. V had reason to fabricate the story
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G. US v. Platero: V goes to bar w/ co-worker. Theyre stopped by
claiming to the police. V claims he raped her, then brought her back to her car. contends sex was consensual. Evid: @ time of the incident V was having an affair w/ co-worker. 1. Held: Admissible. The evid should have been presented to the jury (not the judge) to decide issues of credibilityi.e. whether V had a motive to lie. 2. Huddleston: Jury decides questions of material fact. But the judge must conclude that before presenting evid to jury, there is enough evid for the jury to conclude that the relationship existed. 3. Distinguishable from Olden: Here, no reason to believe that her lover would suspect that she consented to the sex H. HYPO: Kobe Bryant accused of rape. It is uncontested that they had sex. The issue is whether the sex was consensual. Kobe wishes to introduce the following evid: 1. Evid that the victim overdosed on drugs about a month before the incident a. (Inadmissible b/c only proves sexual predispositionnot sure if Rule 412 even applies here) 2. Witnesses at a party two weeks later in which victim allegedly bragged about the incident and gave a graphic description of Bryants anatomy a. (Admissible to show motiveRule 412 doesnt apply here b/c not going to whether V and Bryant had sex earlier.) 3. Detective testimony that the underwear worn to the rape exam by the V contained sperm from another man a. (Admissible under 412(b)(1)(a)to prove other persons were the source of the injury) 4. Detective testimony that the woman told him she had consensual sex with another man two days earlier and had used a condom. a. (Possibly admissible to show injuries happened b/c of another person. But cannot be admitted if more prejudicial or for being too remote in time) I. FRE 412(c), Procedure 1. File a motion before trial 2. Serve motion on all parties involved 3. Ct must have in-camera hearing to decide on the admissibility VIII. Other Acts: Character Evidence in Sex-Crimes A. FRE 413(d): Definition of sexual assault (1) any conduct proscribed by chapter 109A of title 18, USC; (2) contact, w/o consent, b/t any part of the s body or an object and the genitals or anus of another person; (3) contact, w/o consent, b/t the genitals or anus of the and any part of another persons body;
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(4) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on another person; or (5) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(4) FRE 414(d): Definition of child molestation: child means a person below the age of fourteen (1) any conduct proscribed by chapter 109A of title 18, USC, that was committed in relation to a child; (2) any conduct proscribed by chapter 110 of title 18, USC; (3) contact b/t any part of the s body or an object and the genitals or anus of a child; (4) contact b/t the genitals or anus of the and any part of the body of a child (5) deriving sexual pleasure or gratification from the infliction of death, bodily injury, or physical pain on a child; or (6) an attempt or conspiracy to engage in conduct described in paragraphs (1)-(5) FRE 414(a)-(c), Child molestation cases 1. Criminal cases 2. Doesnt have to be a conviction 3. Govt must disclose the evid to the (15 days before trial) FRE 415: Civil cases Test for Determining Admissibility of Evidence Under Rules 413-415 1. Does the other offense constitute sexual assault of child molestation as defined in Rule 413(d) and Rule 414(d)? 2. Is the other offense relevant? a. What fact am I trying to prove w/ this piece of evid? b. Is the fact that I am trying to prove a fact of consequence to this case? c. Does the evid help establish that fact? 3. Could a reasonable juror find by a preponderance of the evid that the committed the other offense? 4. Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice? Johnson v. Elk Lake School District: P claimed that her guidance counselor sexually harassed her and abused her (touched her, attempted to kiss her, sent her flowers, made advances) while she was a h.s. student. Evid: Testimony of a TA where had lifted her and put his hand under her skirt. 1. Held: Evid excluded b/c of fear of unfair prejudice. Act not substantially similar to the alleged misconduct in this case and not detailed enough, was an isolated incident. 2. Rule 413s scope extends to prior convictions, uncharged conduct, instances where person tried and acquitted.
16
a. Evid will be admitted if ct is satisfied that the evid is relevant

and that jury could find that past incident was committed by .
IX.
Other Acts: Similar Happenings A. General Rule: If you want to prove what happened on an occasion, present evidence about that occasion. Do not offer evidence about what happened on some different occasion 1. Rationale: a. May allow litigation of collateral issues and distract jury from issues to be determined b. Allowing evidence in other accidents out of s control may cause jury to lose interest in real interests B. Exceptions to General Rule 1. Admissibility factors for similar happenings: a. How close are the similarities? b. How narrow is the issue on which you are offering the similar happenings? c. How strong is your need for the similar happenings evidence? 2. Proper use of similar happenings evidence a. Where similar accidents were caused by the same event or condition, evidence of those prior accidents or injuries is admissible to prove: (1) that a defect or a dangerous condition existed (2) that had knowledge of the defect of dangerous condition, AND (3) that the defect or dangerous condition was the cause of the present injury 3. Simon v. Kennebunkport: Old woman fell on sidewalk operated by and breaks hip. Sues city. Evid: Testimony by shopowners who owned shops in front of sidewalk that approximately 100 ppl fell @ that same spot under similar conditions in a 2-year period a. Held: Evid admissible (1) Blanket rule is incompatible w/ justice (2) Evid shows s award of defective sidewalk (3) High probative value b/c same location, under same conditions, high # of ppl 4. HYPO: Woman suing store in whose door she claims she was caught. Can introduce evid that P has brought 6 previous suits against various persons for the same mishap? a. Admissible to show that past suits were fraudulent/frivolous or to narrow the issue. b. Also can be introduced as habit evid showing she is a klutz 5. HYPO: A sues golf course in slip and fall when A slipped on cement veranda in spikes. Golf mgr testifies that during year, 3500-4000 ppl have walked that area w/ golf spikes and does not know of any accidents.
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a. Probably admissible, even though does not discuss same
hour or weather conditions b/c of substantial number of ppl. Seems rsbl to prove similarity of use/conditions/circumstances.
X.
Evidence Affected by Extrinsic Policies A. Subsequent Precaution 1. FRE 407: When, after an injury or harm allegedly caused by an event, measures are taken that, if taken previously, would have made the injury or harm less likely to occur, evid of the subsequent measures is not admissible to prove negligence, culpable conduct, a defect in a product, a defect in a products design, or a need for a warning or instruction. This rule does not require the exclusion of evid of subsequent measures when offered for another purpose, such as proving ownership, control, or feasibility of precautionary measures, if controverted, or impeachment. a. Exception: Can offer evid of feasibility of making the change IF the other side argues that the change was not feasible. (1) e.g. P injured in a car accident on a mountain road. State argues that there was no other way to make the road safer. Can rebut the defense of infeasibility to show that the state could have made the road safer. b. Rationale: Encourage people to take further precautionary safety measures 2. Tuer v. McDonald: P hospitalized for heart condition. Prior to scheduled surgery, P taken off of Heparin b/c of risk of poking neck vein during surgery. P not operated on for four hours later. P dies. Evid: Hospital changing policy to not take patients off of heparin until right before surgery (versus old practice of 3-4 hours before), showing that it was feasible to have this practice. a. Held: Evid excluded b/c Dr. testified only to his opinion at the time that he believed it was unsafe to Heparin. (1) Dr. could be impeached if unsafe as a matter of fact to take a patient off of Heparin. (2) Feasibility = 1) probability; 2) practicability 3. HYPO: P bitten by neighbors dog. Witness testifies that prior to accident, allowed dog to roam freely. But after biting P, chained dog up. a. (Relevant, but not admissible) 4. HYPO: A sues X for damages for injuries in a slip and fall on steps in a store owned and operated by X. A testifies that a strip of abrasive tape on the step on which she slipped was worn, and that the step was slippery. X calls B, the store mgr, who testifies that the tape strips on the steps were not worn and that the steps were not slippery. In rebuttal, A offers to prove that a week after the accident, X replaced the old steps of tape w/ new ones, and A offers in evid photographs of the steps with the new strips of tape. X objects to As offer of proof on the ground of the policy exclusion of evidence of subsequent remedial
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conduct. What result? (SustainedA is offering the evid of Xs installation of new strips of abrasive tape on the steps to prove that the old steps were slippery; thus, X was negligent and liable for permitting the steps to get into such condition.) a. Assuming the same facts, except that A adds to her offer of proof the fact that B, the store mgr, was the person who authorized installation of the new abrasive tape strips after As accident. X makes the same objection. Result? (Overruled. Evid that X made subsequent repair to the steps becomes admissible for the limited, relevant purpose of impeaching the testimony of B. The fact that B authorized installation of the new abrasive strips for the steps tends to contradict his testimony that the old steps were neither worn nor slippery.) B. Offers for Compromise 1. FRE 408: Evid of (1) furnishing or offering or promising to furnish, or (2) accepting or offering or promising to accept, a valuable consideration in compromising or attempting to compromise a claim which was disputed as either validity or amount, is not admissible to prove liability for or invalidity of the claim or its amount. Evid of conduct or statements made in compromise negotiations is likewise not admissible. This rule does not require the exclusion of any evid otherwise discoverable merely b/c it is presented in the course of compromise negotiations. This rule also does not require exclusion when the evid is offered for another purpose, such as proving bias or prejudice of a witness, negativing a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. a. Basic rule: Settlement offers and agreements and statements made during such negotiations are not admissible to show liability or non-liability for an underlying claim. (1) This also extends to 3d party agreements. Cant use one settlement agreement (b/t party A and B) as evid in another case (b/t B and C) b. Exceptions: Evid admissible if offered for another purpose besides culpability (bias, prejudice of a witness, negativing a contention of undue delay, of proving an effort to obstruct a criminal investigation or prosecution) (1) Also info obtained during settlement negotiations is admissible to use in subsequent proceedings should settlement fail c. Rationale: Encourage settlements w/ the belief that settlements serve useful function of alleviating the courts and bringing peace to litigants. Encourage parties to talk freely in negotiations w/o fearing that those statements will be used against them later should the settlement fail. 2. Davidson v. Prince: P injured by steer after s truck fell and animals escaped. Issue: How close P to steer and whether P was
19
contributorily negligent to the accident by being too close to the cow and provoking the cow himself. Evid: Letter from P stating that P was only 10 ft away from the cow. a. Held: Admissible b/c no language in the letter to show that this was a settlement. Letter was largely factual + tone of the letter did not seem to be compromisingwas demanding full judgment. (1) To make clear letters is part of settlement negotiations: a) fellow up after letter sent; b) avoid stating facts altogether or state facts as hypotheticals; c) write in a tone suggesting negotiationsmake clear you are in settlement negotiations (2) Letter couldve also been used to impeach the witness (since @ trial, P alleged he was 22 ft away and depo, 40 ft). C. Guilty/No Contest Plea 1. FRE 410: Except as otherwise providing in this rule, evid of the following is not any civil or criminal proceeding, admissible against the who made the plea or was a participant in the plea discussions: (1) a plea of guilty which was later withdrawn; (2) a plea of nolo contendere; (3) any statement made in the course of any proceedings under Rule 11 of the Fed. R. Crim. Proc. or comparable state procedure regarding either of the foregoing please; or (4) any statement made in the course of plea discussions with any attorney for the prosecuting authority which do not result in a plea of guilty or which result in a plea of guilty later withdrawn. However, such a statements is admissible (i) in any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, or (ii) in a criminal proceeding for perjury or false statement if the statement was made by the under oath, on the record, and in presence of counsel. a. Rationale for excluding guilty plea: Would undermine the purpose of the ability to take away the guilty plea. Unfair to bind a to the plea + to use the plea as evid to prove his guilt b. Rationale for excluding the no-contest plea: is not actually admitting guilt, so less probative value. Also, may have cases where wants to accept criminal consequences and doesnt want to be subject to criminal liability. 2. Andy v. Woodberry: Traffic accident where was driving a car and hit a police on a motocycle. Evid: pled guilty in traffic court for an improper turn + failing to signal.
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guilty (i.e. more convenient) D. Offers to Pay Medical Expenses Occasioned by an Injury 1. FRE 409: Evid of furnishing or offering or promises to pay medical, hospital, or similar expenses occasioned by an injury is not admissible to prove liability for the injury. a. This does NOT exclude collateral admissions of liability (1) e.g. If in a car accident and person says, it was my fault. b. Rationale: Want to encourage people to help 2. HYPO: X bitten by dog. P wants to offer evid that dogs owner ran out of the house and took P to hospital and paid for costs. (May be relevant, but inadmissible) E. Insurance 1. FRE 411: Evid that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evid of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness. a. Rationale: Dont want people to be seen as willing to take risks just b/c they have insurance. Also dont want jury to give excessive awards if they believe the insurance company will pay. b. Evid of insurance is admissible for other reasons than to prove the liable.
a. Held: Admissible, but can give explanation why he pled
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HEARSAY I. General Principles A. Definition: Hearsay is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted. B. Elements 1. Out of court statement 2. Offered to prove that what it asserts is true C. Rationale for excluding hearsay: 1. Likely to be unreliable; reliability is not tested a. Better to rely on traditional tools to evaluate the reliability of testimony (oath, watching and listening to the witness testify, questioning and cross-examining the witness) 2. 4 testimonial qualities a. Perception b. Memory c. Sincerity d. Narration/meaning 3-Step Hearsay Test: A. Is there an out of court statement? 1. FRE 801(a), [Definition of statement]: A statement is (1) an oral or written assertion or (2) nonverbal conduct of a person, if it is intended by the person as an assertion. 2. Essentially this includes any human statement except those made in the courtroom from the proceeding in question from the witness stand. B. What does the statement assert? 1. Need to look @ declarants intent when he makes the statement a. e.g. of statements that make assertions: That car was going too fast!; Hes driving like a bat out of hell!; Whoa! Wheres he rushing to? b. e.g. of statements that make no assertions: Did you see Janets breast at halftime?; Tackle that man!; Burp! (1) Generally, commands and questions for info are not meant to assert anything. C. Are we using the statement to prove that what it asserts is true? 1. Crucial question: What is the statement being used to prove? If evid is being used to prove what the declarant meant it to say, then it is hearsay. D. Even if the statement is being offered to prove the truth of the matter asserted, is it admissible under some exception to the hearsay rule? (see next section) E. Simple hearsay test: If the fact that the statement was made is relevant, even if the facts in the statement are not relevant, then the statement is NOT HEARSAY 1. General rule: **The hearsay rule is NOT APPLICABLE, under any definition of hearsay, where evidence of the out-of-
II.
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F.
G.
H.
I.
J.
K.
court words or actions is offered only to show that the statement was made or that it had a certain effect on a listener or observer, rather than to prove the truth of the facts asserted ** State v. English: English convited of 2d degree murder. Another man, Locke, admitted to the murder and described the contents of the house. Evid: Lockes testimony of the contents of the house 1. Held: Hearsay and thus, inadmissible. Statement is used to prove the truth of the matter asserted. Also no way to test the credibility of the . 2. Ct feared the historical reason for excluding hearsay: concern w/ coercing slaves to make a statement for to be let off. Estate of Murdock: Arthur left estate to wife, then children from first marriage. Sarah left estate to A, then children from first marriage. A and S died together. Evid: testimony of the 1st officer at the scene heart A say, I am still alive. 1. Held: This is NOT hearsay. The probative value is in the fact that the statement was madeeven if the facts in the statements are not relevant. It ultimately does not matter what he said, only that he made a statement at all. 2. This fits w/ the rationale of the hearsay rule. The statement does not rely on the probative value of As credibility, sincerity, ability to communicate + no need to cross-examine A. 3. Example of a PERFORMATIVE UTTERANCE, an expression that serves to effect a transaction or that constitutes the performance of the specified act by virtue of its utterance. a. Legal effect: Very fact that the words are spoken has consequences HYPO: In a custody hearing, a childs out of court statement Daddy tried to kill me is offered to show the childs fear of her father for the purpose of showing that it would not be in the best interests of the child to give custody to the father. Hearsay? (Not hearsay. Only goes to the childs state of mind, not that dad actually tried to kill her.) HYPO: To show the declarant offered the proponent $3k a carload for widgets, the proponent offers into evid the declarants out of court statement to the proponent I offer you $3k a carload for your widgets. Hearsay? (Not hearsay b/c the statement itself is legally significant to the k dispute. Legal rights of the k depend upon what oral assurances were made.) 1. In a k formation caseissue is not whether the statement is true, but whether it was made at all. 2. If the fact that the statement was made is relevanteven if the facts in the statement are not truethen it is not hearsay. HYPO: K calls B a liar. B responds w/ an action for slander. Evid: Bs testimony [at trial] that K called him a liar. Hearsay? 1. (Not hearsay. The evid is being offered to show that a statement was made at all.) HYPO: C died two days ago. A dispute arises regarding whether B is Cs surviving spouse. B wants to offer testimony that she and C
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L.
M.
M.
N.
O.
responded I do to the traditional questions of the marriage ceremony and that a minister then said, I now pronounce you husband and wife. Hearsay? 1. re: I do. Not hearsay to the fact that it was said. Admissible b/c it has a legal effect. Doesnt matter whether they meant the words or not. a. Example of performance of utterance 2. re: I now pronounce you husband and wife. Improper hearsay unless it is interpreted as a verbal act that would have legal effect Subramanian: traveling and caught w/ 20 rounds of ammunition. Evid: claims that he was caught by terrorists who threatened to kill him if he didnt take up arms against the British. 1. Held: Not hearsay. Admissible b/c helped to establish the fact that the statement was madenot the truth of the statement itself. Went to the root of s defense of duress. 2. Here, the evid is meant to show the effect of the statement on the person testifying Vinyard v. Vinyard Funeral Home: P slipped in s parking lot. Evid: Other peoples complaints to an officer of the company showing that ## of people had complained of the slippery surface. 1. Held: Admissible to show that KNEW of the slippery surface not whether the surface was actually slippery 2. should ask for a limiting instruction Johnson v. Misericordia Hospital: P sued hospital for negligence in allowing Dr. Salinsky to operate on his hip. Evid: Reports that dr. Salinsky was incompetenti.e. other hospitals restrictions imposed on the doctor; other hospitals refusal to let the dr. on the staff. 1. Not hearsay. Admissible to prove that the hospital had access to info w/r/t Dr. Salinskys prior record. a. Different result if these documents were private and not open to the public. 2. This does not go to the fact that the dr is actually incompetent Reis Biologicals v. Bank of Santa Fe: R distributed medical supplies to DMS. DMS couldnt pay, so R stopped sending supplies. Banks v.p. guaranteed orally that they would cover DMS debt (to ensure the supplies were still shipped). Evid: Oral guarantee that the company would pay. 1. Held: Not hearsay b/c the fact that the oral k was made has some legal effect Fun-Damental Too v. Gemmy Industries: P developed a toilet bank and refused to buy b/c didnt think that it would sell. eventually develops a similar product but cheaper b/c they used cheap Chinese labor. P brings a trade dress infringement lawsuit. Evid: Statement by Ps sales mgr to demonstrate confusion b/t the two products by testifying about complaints from other retailers 1. Held: Not hearsay b/c not offered to prove selling the toy at a lower price, but showed to prove confusion (the heart of the trade infringement lawsuit).
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a. Would also fit under Rule 803(3)showing the state of mind

@ time the statement was made.
P. US v. Hernandez: convicted of possession/distribution of cocaine.

Arrest occurred by informant and DEA agent trying to do a transaction w/ . Evid: DEA agent said that investigation began when custom officer pointed out who idd as a drug smuggler. 1. Held: Reversed b/c evid offered to prove that was a drug smuggler. Q. HYPO: OJ case. Detective Furman testified that after he arrived at OJs house, he interviewed Kato who said, Last night, I heard a thumping on the wall outside my room. Fuhrman testified that he went to the wall outside Ks room and found a bloody glove. s theory: the glove was planted. Is Ks statement hearsay? 1. Not hearsay if explaining why the detective was looking in that area. But cannot be offered to show the truth of the matter (i.e. the thump happened). R. HYPO: X prosecuted for assault w/ a deadly weapon on A by use of a billiard cue. Xs defense: self-defense. Evid: Bs testimony that a week before the fight, A told him that X truck him with a baseball bat a month before in a sudden fit of temper. Hearsay? 1. No. The out of court statement is not offered to prove the truth of the statementthat X actually struck A w/ a baseball bat, but rather that A believed that X had committed the violent acts. (As belief A feared X A would not have been the aggressor in the dispute) S. HYPO: X prosecuted for murder of A, his wife. Undisputed that while A was seated in a chair watching tv, X pulled a pistol from his pocket and fired three shots into A. In order to negate the intent requisite for first degree murder, X testifies to a history of marital difficulties, which he claims impaired his mental condition. In rebuttal, to prove As state of mind, the prosecution calls B, who proposes to testify that in a telephone conversation with A on the day before her death, A said, I know X is going to kill me. I wish he would hurry up and get it over with b/c he will never let me leave him. X objects to Bs testimony. Hearsay? 1. Yes. Xs only defense is his claimed lack of intent for murder. As out of court statements (to prove her state of mind prior to her death) are irrelevant b/c they do not tent to prove or disprove any disputed fact in issue. 2. Modified HYPO: A is a battered wife, she kills X on the couch, and to prove that she killed X in self-defense, she offers this statement, I know X is going to kill me. He will never let me leave him. a. Not hearsay b/c being offered to show her state of mind that he actually feared him (i.e. feared actual harm). b. This is different if she said I believe that he will never let me leave him. (1) But would be admissible under 803(3)hearsay exception.
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T. US v. Zenni: US govt inspecting bookies apt. Evid: Calls to s apt
while police were there, offered to show that ppl believed that the bets were to be placed there 1. Held: Admissible b/c this is non-assertive verbal conduct 2. General rule: Commands are not hearsay 3. General rule: Non-verbal conduct is hearsay ONLY IF it is intended to be an assertion. Burden is on the person objecting to the hearsay to show that the conduct is assertive. a. e.g. Person opening an umbrella is not hearsay b/c not asserting that it is raining b. e.g. A person reinacting the act on video for purpose of showing what happened can be assertive. 4. In rare instances, some questions can be assertive (e.g. is that money from the bank you robbed?) 5. e.g. of assertive statements: documentary evid; bill from a plumberasserts services rendered) U. HYPO: Key disputed issue is whether the mind was safe on that day. Evid: Acts or statements by a federal coal mine inspector, now deceased, who inspected the mine on that day. B will testify to what he saw 1. B will testify that the mine inspector spent the morning looking through the mine. When he came out for lunch, he said, The mine is safe. a. (Inadmissible hearsay) 2. B will testify that as the mine inspector walked out of the mine, someone asked him, Is the mine safe? The inspector responded by giving a thumbs up. a. (Inadmissible b/c it is a statement of non-verbal conduct that is intended to make an assertion.) 3. B will testify that, after the mine inspector spent the morning looking through the mine, he sat down inside the mine and ate lunch. a. (Admissiblenon-verbal, non-assertive statement) 4. B will testify that, after the mine inspector spent the morning looking through the mine, he came out for a break. After lunch, the inspector saw a miner head back to go inside the mine. The inspector did nothing and said nothing. a. (Probably admissible. Inspector probably did not intend to make a statement when he let the miner go into the mine. Thus, sincerity is high, risk of lying is low, conduct guarantees that the statement is reliable.) V. Silver v. NY Central RR: Woman riding in the crowded train. Got sick b/c she claims it was the result of the temperature of the car. Evid: train co wants to introduce evid that no one else complained about the temperature. 1. Held: Admissible. Assertive conduct as absence of a defect. 2. Using the failure to make a statement as proof of nonexistence of a fact. a. Silence = assertive conduct
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W. US v. Suarez: accused of selling cocaine + conspiracy. Evid:
pay/owe sheets found in s apt that recorded drug transactions 1. Held: Admissible b/c only offered (as circumstantial evid) to show that the place where the sheets were found were places where drug were sold (i.e. the character and use of the residence)not that transactions actually occurred. X. HYPO: Police raid Bushmats apt. in his desk, they find an address book w/ an entry that says, Beanny 559-0067 Later, they offer the entry as evid that Beanny and Bushmat were acquaintances. B objects to the evid as hearsay. 1. (Admissible b/c not trying to show that the entry was Beannys number, only that the two were acquainted.) 2. This is also admissible against Beanny. Y. HYPO: In Bushmats apt, the police find a briefcase w/ a nametag on it saying, beanny. The briefcase contains 2 kilos of cocaine. Evid: The name tag is offered to show that Beanny is the owner of the cocaine. 1. (Not admissible b/c offered to show the truth of the matter assertedi.e. that Beanny owns the briefcase and thus, it is his cocaine) Z. HYPO: Child accuses of kidnapping and molesting her. Young girl ids items in an apt to her mother. The girls statement is offered solely to show that she was in the apt. Other evid shows that the apt has the features she described. Hearsay? 1. (Not hearsay b/c only showing the girls knowledgethe fact that she was in the house, not the items of the house itself.) AA. HYPO: The dispatcher reported a hit and run at Larkin and Turk, saying that two teenagers in a red SUV hit a pedestrian in the crosswalk. The officer went to Larkin and Turk and measured the skidmarks. Later, another officer arrested the suspects. Admissible? 1. (yes, showing that the officer was responding to a call) BB. US v. Brown: on trial for improperly doing others tax returns (tax fraud). Evid: IRS agents testimony that 90-95% of s 160 tax returns had overstated itemized tax deductions. Agent didnt specify any conversations. 1. Held: Inadmissible hearsay. Agent had to have spoken to people to get this informationImpossible to have gotten info just from looking @ docs. 2. Dissent: Not hearsayno reliance on any out of court statements. CC. Review: The following are not hearsay: 1. Statements where we do not need to know what the said (Murdock: Doesnt matter what was said, only that it was said) 2. Using statements to prove the effect they had or should have had over someone reading/hearing itout of court statements used to show the reason behind subsequent conduct (Submarianian; Funeral Home; Dr. Salinsky; Hernandez)
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3. Performance of utterancesmaking of the statement carries legal consequences (Bank oral K case) 4. Commands 5. Non-verbal, non-assertive conduct
III.
Hearsay Exemptions (i.e. NOT HEARSAY) A. Admissions 1. FRE 801(d)(2), Statements which are not hearsay. A statement is not hearsay if.(2) Admission by party-opponent. The statement is offered against a party and is (A) the partys own statement, in either an individual or a representative capacity or (B) a statement of which the party has manifested an adoption or belief in its truth, or (C) a statement by a person authorized by the party to make a statement concerning the subject, or (D) a statement by the partys agent or servant concerning a matter within the scope of the agency of employment made during the existence of the relationship, or (E) a statement by a coconspirator of a party during the course and in furtherance of the conspiracy. The contents of the statement shall be considered but are not alone sufficient to establish the declarants authority under subdivision (C), the agency or emmployment relationship and scope thereof under subdivision (D), or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). 2. Basic rule: An admission of a party opponent is a statement made by your party opponent or by someone whose statements are attributable to your party opponent. a. Doesnt matter whether the statement was based on personal knowledge b. Doesnt matter if statement is a normally inadmissible lay opinion c. Doesnt matter if the party opponent is actually available to testify d. This rule also includes admissions of conduct (e.g. trying to bribe a juror, destroying evid, etc) e. Rationale: Supports the theory of justiceif an opponent says something against him/her, you should be able to use it. f. This is not to be confused w/ a declaration against interest 3. Categories of Admissions by Party Opponent a. Own statement b. Adoptive admission c. Authorized admission
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4.
5.
6.
7.
d. Admissions by Ee/agent within scope of employment, during employment e. Admissions by co-conspirator during the court of and in furtherance of conspiracy Reed v. McCord: PI case for negligence. Evid: talked about defective machinery which was used to kill the decedenteven though he did not have actual knowledge about this accident. a. Held: Admissible under the admissions exception. The issue of s admission not being based on person al knowledge (& only repeating what conclusions others had made) will be weighed by the jury at trial. US v. Hoosier: accused of robbing the bank. Evid: Friend of who was told was about to rob the bank & 3 weeks later, friend saw w/ $$ and diamond rings w/ s gf bragging about how much $$ they had. a. Held: Admissible b/c s silence (i.e. nothing said to deny robbery after gfs statement) indicates implied admission (1) By being silent, manifested his belief in the truth of that statement b. To consider s silence an implied admission, look @: 1) content of the statement; 2) whether heard the statement; 3) s relationship to the person who said the statement; 4) whether this is a situation where the declarant should/would have spoken up or denied the admissions. (1) EXCEPTION: If a person is read his/her Miranda rights, cannot construe s silence one way or another if chooses to exercise their right to remain silent HYPO: Testator Harry has just died, and four beneficiaries are meeting w/ Erica executor for Hs estate. E opens Hs safe and pulls out 7 bundles of $$, saying theres $500 in each bundle. At this point, S, one of the beneficiaries, says, no theres $5k. E does not respond to the statement and moves on to other matters. E is later charged with the crime of not reporting as part of Hs estate the $33k in cash taken from the safe. Can another beneficiary testify to the statements of E and S w/r/t the amount of $$ in the bundles to show that the bundles contained $5k each? a. Yes, admissible as an adoptive admission--b/c you would expect E to respond in this case. Silence is construed as a non-denial. State v. Carlson: Domestic violence dispute. charged w/ possession of meth and endangering children. Officers show up and ask about needle marks on his arm; he claims he got the marks from fixing his car. Wife yells, you liar. hangs his head. State trying to get this in as an adoptive admission. a. Held: Issue of adoption is a preliminary question of fact for the trial judge (1) This is an EXCEPTION to the general rule of distinguishing 104(a) and 104(b).
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b. **Onwauchis test to distinguish 104(a) and 104(b)**

Does this fact ultimately go to the relevancy of the evidence? (jury) Does this fact ultimately go to the admissibility of the evidence? (judge) Are there facts that are fuzzy re: whether prior events actually occurred? (jury) EXCEPTIONS: (1) Authentication; (2) Admission by a party opponent by own statement 8. HYPO: Car accident b/t P and D. D allegedly makes false statements to the police for their report. P seeks to introduce evidence that when P confronted D on the phone, D responded, Well, I did it b/c I was fearful over my insurance. a. b/c D is a party to this action, her statements are admissible as adoptive admissions. D manifested her belief in the truth of Ps accusations by responding, well, I did it b/c I was fearful of my insurance. 9. HYPO: A sues B for the price of goods sold to X Enterprises. A claims that B is a partner in X Enterprises. A testifies that, before he sold the goods to X Enterprises, while at Xs office, X, the president, introduced him to B with the statement, Meet my partner in X Enterprises, Ms. B, and that B then shook hands with A and said nothing. a. Adoptive admission. When you adopt an admission, are manifesting your belief that what the other person said was true. 10. HYPO: Louise, a law firm associate, sued an airline for a rough landing. She claimed that injuries prevented her from working to her full capacity. At trial, offers records signed by Louise in which she billed clients an average of 104 hours per week for 6 weeks after the flight. To prove her capacity for work was not in fact diminished, are the records admissible? a. Yes b/c the records are her own statement. Doesnt matter that they were not against her interest at the time the statements were made. 11.HYPO: Driver ran into and injured Walker. Passenger was w/ D in her car. W sues D, alleging that D was drunk and ran into W when W was in a marked crosswalk. Ws counsel wants to have a police officer testify at trial. The officer said to D, The accident was all your fault. (no response from D). then the officer said, Im arresting you b/c you are drunk. (no response from D) a. Need to look @ timing issues whether it was an adoptive admission. b. re: Im putting you under arrest b/c you are drunk. Not admissible b/c once in custody, has the right to remain silent 12. STATEMENTS BY AGENTS OR Ees IN COURSE OF AGENCY OR EMPLOYMENT
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a. Authorization can be express or implied (1) e.g. of implied authority: a mgr in a store apologizes and takes blame for someone falling in their store. assume that the mgr is authorized to make a statement on behalf of the store. b. 2 conditions for Ees to make a statement on behalf of the Er: (1) Must concern a subject in the scope of the agents duty to act on behalf of the principal (2) Must be made while the agent-principal relationship is still in existence c. Mahlandt v. Wild Canid Survival & Research Ctr: Boy slips under a fence of a wolf cage. Witness (neighbor) sees the wolf standing over the boy. Boy has injuriesnot clear if they are from the fence or the wolfs bite. Evid: Wolfs caretaker (Poos) leaves a note to his boss saying that the wolf had bitten the child and later reported the same thing to his Er. Also have transcribed minutes of a mtg w/ the centers directors. Child sues center and Poos (1) re: Note from Poos to boss, Owen, call me at home. Sophie [wolf] bit a child. Admissible against both Poos and the Center. Poos wrote it himself and wrote the note as he was saying it factually (indicates his belief in what he wrote). Admissible against Center b/c made while in the course of Poos employment (2) re: Telling Er, Sophie bit a child tht day. Admissible against Poosown statement or adoptive admission. Admissible against Center b/c happened while in the scope of his employment (i.e. caring for a wolf as part of his employment) (3) re: Meeting minutes. Inadmissible against Poosb/c Center is not the agent for Poos, no authority to speak on Poos behalf. Admissible against Center b/c it is the bd of directors speaking on behalf of the center. d. Big Mack Trucking Co, Inc. v. Dickerson: 2 drivers of big rigs. One trucks had a brake malfunction. Drivers were at a rest stop & parking on an incline. Driver was crushed when standing b/t two trucks; his family is suing for wrongful death. Evid: 1) Surviving driver telling the Cos VP that the brakes were faulty and there was an air pressure problem; 2) Also telling officer on the scene that the brakes were faulty and he had been experiencing brake problems (1) Under TX law, the statement by an agent is not admissible unless he is authorized to speak on behalf of the company (2) Under FRE, agent is performing an act w/in his duties (as a driver) in the course of employment. Probably admissible
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(3) HYPO: What if the Co had fired the driver and then the driver made the statement? (Not admissible b/c then the driver wouldnt have been an agent or Ee) (a) Rationale: Want to avoid a disgruntled Ee from saying terrible things that happenedperhaps not reliable. e. Sabel v. Mead Johnson & Co: User of antidepressant medication user developed pripism. Brought action against mfr. Evid: Wants to introduce tape of mtg w/ s ees and outside experts of potential connection b/t drug and condition. (1) Held: Inadmissible b/c consultants didnt have the authorization to act on s behalf. No fiduciary relationship (2) Here, the Er didnt have control over what the experts were saying. Experts more like independent contractors (a) Differs from a medical researcher who works for a company turns in a formal report saying that the medicine may have side effects (3) 3 essential characteristics of an agency relationship (a) power of the agent to alter the legal relationships b/t the principal and the 3d parties, and the principal and himself (b) existence of a fiduciary relationship toward the principal w/r/t matters w/in the scope of the agency/employment; (c) right of the principal to control the agents conduct w/r/t matters w/in the scope of the agency/employment f. HYPO: Charles, a grocery deliverer for Raleys crashed into M. C told a passerby, I was speeding, trying to deliver my last bag of groceries for Raleys when i missed the stop sign and collided with the car in the intersection. Later, C repeats the saem story to a police officer sent to investigate the accident. If M sues Raleys, can Cs statements be admitted? (1) Yes, admissible b/c C was acting within the scope of his duties. (2) BUTindependent evidence must support this. A statement alone is not sufficient to establish the declarants authority under 801(d)(2)(C)-(E) 13. STATEMENTS BY CO-CONSPIRATORS a. Preliminary Facts Required to Use Statements by CoconspiratorsFinding of these facts goes to the legal question of whether the evid is admissible, thus, this is determined by the JUDGE under 104(a) (1) Show that the party opponent and the declarant were members of a conspiracy (2) Show that the declarants statement was made during a conspiracy
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b. c.
d.
e.
f.
(3) Show that the declarants statements was in furtherance of the conspiracy. Although you have to prove that the declarant and coconspirator are part of a conspiracy, the rule is not limited to cases where there is a conspiracy charged. Rationale: Encourages ppl to deal w/ enterprises and helps to facilitate the goals of business since legit partners are able to bind each otherthus, statements of a conspirator offered against her partner in crime should also be admissible. Also b/c of necessity. (1) Criticism: Individual, part of a conspiracy, doesnt need to know that a conspiracy existsor need to know other people in the conspiracy. Also, late-joiners to the conspiracy are responsible for statements made before they joined. US v. Doerr: charged w/ unlawful prostitution conspiracy using the facilities of interstate commerce, and with tax crimes related to the enterprise (i.e. massage parlor and dance clubs as prostitution rings). Evid: M, former customer of the club, mentioned that the red curtain on the patio attracted unnecessary attention + Owner said to bro, I cant believe you didnt know what was going on at the club. (1) Held: Statements were erroneously admitted by the trial court (but was harmless error). (2) Statements were not in furtherance of the conspiracy, only harmless chatter. Statements did not relate to the effort to accomplish the illegal objective (a) e.g. of statements in furtherance of the conspiracy i) Updating co-conspirators ii) Statements made to conceal objectives of the conspiracy iii) Statements to induce another into the conspiracy HYPO: Mr.P is inside an apt trying to sell cocaine. He tells them that his partner, Al, is waiting outside. Admissible against Al? (yes, assuming that the conspiracy exists, statement is made in furtherance of the conspiracy and during the conspiracy) (1) Judges decision whether this statement was made in furtherance of a conspiracy (2) Also assumes that there are other independent facts to prove the existence of the conspiracy HYPO: Mr. P arrested for possession w/ intent to sell. From jail, he writes to a friend and ask the friend to help cover up the fact that he and Al were involved in selling cocaine. Is the letter admissible against Al? (1) No. Usually, conspiracy ends at the arrest (2) Statement can be used against the friend, but not against Al b/c it is not a conspiracy to sell drugs.
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(3) Now a second conspiracy is present g. Bourjaily v. US: Drug deal w/ FBI informant. L got his friend to help distribute the drugs. Friend & , was working w/ the informant to carry out the deal via phone. Police arrested L and . Evid: phone call b/t L and informant w/r/t s participation in the drug transaction. (1) Held: Admissible (2) Ct can determine whether the members are part of the conspiracy (a) BUTthe contents of the declarants statement is NOT alone sufficient to determine whether person is part of the conspiracy. (3) Judges std: Preponderance of the evid std. Judge can use the hearsay statement itself to determine whether the foundational facts exist. h. FRE 104(b): Relevancy conditioned on fact, When the relevancy of evid depends upon the fulfillment of a condition of fact, the court shall admit it upon, or subject to, the introduction of evidence sufficient to support a finding of the fulfillment of the condition. (1) 2-step process for 104(b): (a) Judge determines whether there is enough evid to support a finding by the jury (i.e. that evid means what it really should mean). (b) Judge instructs the jury to decide what the submitted evid means i. HYPO: Mr. P brags to his tennis partner that B has some really fine cocaine and that B and Mr. P are going to make a fortune selling it. Admissible against B? (Probably not b/c no evid that this is in furtherance of the conspiracy. But, possibly admissible if the evid shows that Mr. P is trying to get his tennis friend to join the conspiracy) B. Prior Statement by Witness 1. FRE 801(d)(1)(C): A statement is not hearsay ifPrior statement by witness. The declarant testifies at the trial or hearing and is subject to cross-examination concerning the statement, and the statement is(C) one of identification or a person made after perceiving the person a. Prior ID need not be made close to the time of the event b. Can be admitted @ trial through the witness or through other witnesses who went through the process of identification (e.g. police officer who helped to make a report) (1) i.e. If witness cannot remember or denies making the out of court ID, another witness can testify to making the ID 2. Rationale: Considered to be more reliable than in-court statement b/c in-court statements are tainted by the passage of time 3. Requirements a. The declarant must testify at the trial or hearing AND must be subject to cross-examination concerning the statement
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b. The statement must one of identification of a person made

after perceiving the person.
4. US v. Owens: Correctional officer was attacked and beaten by

prisoner. Memory was severely impaired. FBI agent spoke to victim, and victim Idd the . @ trial, victim remembers iding the and doesnt remember seeing the @ time of the assault and doesnt remember other visitors to his hospital room. objected to the id b/c victims memory loss deprived him of the opportunity to cross-examine victim. a. Held: This rule was made to solve the very problem here (1) Cross-exam cross-exam in any way the wishes. (2) Cross-exam = victim is on the stand to answer questions (a) Factor of memory loss is the very result sought to be produced by the cross-exam b. HYPO: Had victim died before trial, could FBI agent have testified prior to id? (1) No, b/c declarant would not be available to testify and for cross-exam 5. HYPO: Witness testifies @ trial that X robbed him. He points her out in the courtroom. Then he testifies that soon after the robbery, he was asked to view a line-up. He testifies that, at the line-up, he pointed at X and said, thats the robber. Admissible? a. Yes. Declarant is there @ trial and subject to cross-exam. Also, someone else who witnessed the id can also testify @ trial to corroborate the id. b. HYPO MODIFIED: Witness testifies @ trial that X robbed him. He points her out in the courtroom. Then he testifies that soon after the robbery, he was asked to view a line-up. He testifies that, at the line-up, he pointed at X and said, thats the robber. Then a police officer gets on the stand, and testifies that he saw the victim point to X and say, Thats the robber. Admissible? (1) Yes, since it corroborates the id of a person c. HYPO MODIFIED: Robbery victim ids the at a line-up, but is too sick to testify at trial. Can the police officer testify about the identification? (1) No b/c the declarant is not subject to cross-exam d. HYPO MODIFIED: The robbery victim testifies at trial that he identified the s car out of court. (1) Not admissible b/c it must be a person IV. Hearsay Exemptions/Exclusions (i.e. hearsay, but excepted from the general prohibition of the evidence) A. Dying Declaration (Declarant Unavailable) 1. FRE 804(b)(2): The following are not excluded by the hearsay rule if the declarant is unavailable as a witness(2) Statement under belief of impending death. In a prosecution for homicide of in a civil action or proceeding, a statement made by a declarant while believing that the declarants death was
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imminent, concerning the cause of circumstances of what the declarant believed to be impending death. a. Declarant does not actually have to die for the statement to take effect b. BUTdeclarant must believe that death is imminent c. Rationale: (1) Based on on Judeo-Christian notions that we want to redeem ourselves before we die; (2) Necessity-Exceptional need for evidence in homicide cases 2. FRE 804(a) Definition of Unavailability. Unavailability as a witness includes situations in which the declarant (1) is exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarants statement; or (2) persists in refusing to testify concerningthe subject matter of the declarants statement despite an order of the court to do so; or (3) testifies to a lack of memory of the subject matter of the declarants statement; or (4) is unable to be present or to testify at the hearing b/c of death or then existing physical or mental illness or infirmity; or (5) is absent from the hearing and the proponent of a statement has been unable to procure the declarants attendance (or in the case of a hearsay exemption under subdivision (b)(2), (3), or (4), the declarants attendance or testimony) by process or other reasonable means. A declarant is not unavailable as a witness if exemption, refusal, claim of lack of memory, inability, or absence is due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying. 3. 4-Step Test for the Admissibility of Dying Declarations: a. Is the declarant unavailable as a witness, as defined in Rule 804(a)(1)? b. Is the statement being used in either a civil action or in a prosecution for homicide? c. Was the statement made upon a belief of impending death? d. Did the statement concern the cause of circumstances of what the declarant believed to be impending death? e. Does the declarant have personal knowledge of the facts asserted? 4. HYPO: Civil case to recover money owed to T. On his deathbed, T said, I am aware of the imminence of death, and Dan never paid me back the $5k that he owes me. Admissible to recover the $5k? a. No b/c does not concern the cause of circumstance of the impending death.
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5. Soles v. State: S convicted of murdering L. Fathers testimony
that L made a statement before he died (25 minutes after he was shot). Issue: who makes the determination that death is imminent? Held: the Judge determines whether death was imminent. a. FRE 104(a), Questions of admissibility generally. Preliminary questions concerning the qualification of a person to be a witness, the existence of a privilege, or the admissibility of evidence shall be determined by the court, subject to the provisions of subdivision (b). In making its determination it is not bound by the rules of evidence except those w/r/t privileges. (1) Factors for Judge to Consider under FRE 104(a) (a) The declarants direct statements regarding his feelings or injury (b) The nature of the declarants injury or wound (c) Administration of last rites (d) The making of a will (e) Statements by 3d persons such as doctors or nurses that ones death is certain or near. (2) Evid used to test the admissibility before the judge can later be used at trial to challenge the credibility of the dying declarationi.e. if the judge decides against a party, can still use the evid to show the jury that the dying declaration should not be believed. b. Generally, judge determines questions of law and jury determines questions of fact (1) Is the evidence legally admissible? (Judge) (2) Issue of fact that a reasonable person can find either way (Jury) c. HYPO: Airline pilot is seen drinking in a bar before a flight. Pilot, charged with flying while impaired, claims mistaken identity. Who decides the fact question here? Jury d. HYPO: PI action, P offers evid that is a person of great wealth. objects on the ground of irrelevancy. Who decides issue of relevance? Judge b/c question is not of fact (whether he has wealth), but is a legal question (relevant) 6. HYPO: X is prosecuted for murder in shooting A to death in a barroom brawl. In defense, X calls B and makes an offer of proof that B will testify that she talked w/ A in the hospital the day before his death, that A had difficulty in breathing, and said, I dont think I can make it. It was not Xs fault. C was going after X with a knife before X drew his gun. C ducked when X fired and thats how I got shot. The prosecutor makes a hearsay objection to Bs testimony and offers to prove by Y, a nurse, that five minutes before B talked with A, A told her that he was feeling fine and expected to be able to leave the hospital within a few days. The judge listens to testimony of B and Y out of the jurys presence and believes both witnesses are telling the truth. Must she admit As statement into evidence?
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a. Yes, if the judge believes that the declarants statement to B accurately reflected his state of mind at the time. (1) No, if the judge is not convinced by the evid of existence of the disputed preliminary factthat the declarant was aware of the imminent death. b. Modified HYPO: Judge admits As statement to B upon finding that the requirements of the dying declaration exception are satisfied. The prosecutor calls Y, the nurse, to testify before the jury to As statement made to her. X objects that Ys testimony is inadmissible in view of the courts ruling admitting As statement to B. What result? (1) Overruled. This is not a second attack on admissibility. It is an attack on the weight or credibility of the admitted evidence, which is permissible. (a) FRE 104(e), Weight and credibility. This rule does not limit the right of a party to introduce before the jury evidence relevant to weight or credibility. 7. HYPO: Ins. co seeks to avoid paying the beneficiary of a life insurance policy. Ins. co claims that Pillgiver caused the insureds death by intentionally giving him an overdose of a prescription drug. Pillgiver admits an overdose, but contends it was by mistake. Doctor @ emergency room heard decedent say, I know Im dying, and it must be the pills. I told Pillgiver not to make me take so many of them. Can the doctors testimony be admissible in a lawsuit b/t ins. co and Pillgiver? a. Yes, admissible hearsay (satisfies the 4-part test)
B. Excited Utterances (Availability of Declarant Immaterial) 1. FRE 803(2): The following are not excluded by the hearsay rule,
even though the declarant may be available as a witness.A statement relating to a startling event or condition made while the declarant was under stress of excitement caused by the event or condition. 2. 3-Step Test for Excited Utterances a. Was there an exciting event or condition? b. Was the declarant under stress of the excitement caused by the exciting event or condition? c. Does the statement relate to the exciting event or condition? 3. Truck Ins. v. Michling: Wife trying to collect from ins. co. She testifies that her husband came home one day stumbling and said that he hit his head on the bulldozer when he slipped off. a. Held: Not a startling eventthe husband took 35 minutes to get home. Need more corroborating evidencenot just the statement itself.
C. Present Sense Impression (Availability of Declarant Immaterial) 1. FRE 803(1), Present Sense Impression. A statement describing or explaining an event or condition made while the declarant
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2.
3.
4.
5.
was perceiving the event or condition, or immediately thereafter a. Differs from Excited Utterances: (1) Doesnt need to be exciting (2) Must be made during or very closely after the event 2-Part Test for Present Sense Impression a. Is a statement describing an event or condition? b. Was the statement made while the declarant was perceiving the event or soon thereafter? Prof. Waltzs General Rules: a. Declaration need not cause excitement b. It need not relate to the principal litigated event c. Speaker need not be a participant in the perceived event d. Speaker must have been a parcipient witness e. Speaker need not be idd f. Speaker need not be oath-worthy g. Subject matter is limited to the observed event h. Minimal time lapse is permissible i. Statement still admissible if the speaker is available j. Impressions in the form of an opinion are also available k. Doesnt matter if the speaker is on the witness stand Lira v. Albert Einstein Med. Ctr: Medical malpractice case. Evid: Ps husband testifies that when another doctor examined P, physician asked, whos the butcher who did this? a. Held: Not an excited utterance. Doctors statement was only his opinion. Unlikely this was an exciting event for the doctor. b. Also not a present sense impression under Penn. state law b/c statement must be instinctive not deliberative (1) Possibly could be admitted under FREs present sense impression, although doctor not describing the event. Arguably, the court does not need to interpret description so narrowly. State v. Jones: Female and friend driving on a highway and were pulled over by a police officer. She alleges that he assaulted her in his car. He denies. Police car takes off w/o lights and the pinto chases. Evid: Two truckers on the road talking on the CB at the time, saying Look @ Smokey bear southbound w/ no lights at a high rate of speed, and the second speaker, Look @ that little car trying to catch up to him. a. Held: Evid admitted under the present sense impression. Statements made while the witness was perceiving the conversation. b. Differs from statement, It was smokey bear going southbound b/c there is nothing to show that the person is perceiving the event as they are describing it. c. HYPO: What if the statements said, Theres a squad car on Hwy 35 going at a high rate of speed w/ no lights on.
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person is perceiving the event at the time of the statement 6. HYPO: P hit while crossing the crosswalk. s defense: A blue car struck P and tossed her onto his red car. P calls a paramedic who got to the accident 10 minutes after it happened, he saw P lying on the ground in great pain, but not in shock. P said, OMG! Help me! That red car hit me while I was in the crosswalk. Admissible? (Yes, even though the statement was 10 minutes after the accident, it described an exciting event and was made while A was under the stress of excitement from her observation. a. HYPO: Same facts. calls a police officer, who will testify that she arrived at the scene 5 minutes after the accident occurred; that a number of people were gathered around P, and that she heard someone say, That lady was hit by a blue car which didnt stop and she was thrown up in the air and landed on the red car." Admissible? (1) Here, not admissible b/c no showing that declarant actually observed the event. D. Former Testimony (Declarant unavailable) 1. FRE 804(b)(1), Former testimony, Testimony given as a witness at another hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. 2. Requirements for Former Testimony a. The hearsay declarant must be unavailable as defined in Rule 804(a) b. Testimony must have been under oath, whether at a trial or hearing or similar proceeding c. There must have been an opportunity to examine the declarants testimony at a former proceeding with similar interest and motive d. The prior testimony must have been given against the same party, or, in a civil case, against a predecessor in interest of the present party. 3. Rationale: Still reliable (under oath, etc.) + necessity 4. 2 situations in civil case where a deposition can be used: a. 804(b)(1) : Former testimony exception b. FRCivP 32(a)(3): Depo can be used by any party, for any purpose, if witness is dead or greater distance of 100 mi from trial, or outside the US, or if the witness is unable to attend b/c of age/illness/infirmity/prison, or if the party offering the depo is unable to subpoena the witness, or upon a showing of extraordinary circumstances.
(1) Probably inadmissible b/c nothing to suggest that the
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5. re: Criminal acquittal a. Generally not admissible as hearsay. b. Irrelevant b/c not to prove s innocence, only that the prior prosecution failed in proving that committed a crime beyond a reasonable doubt. 6. Travelers Fire Ins. v. Wright: 2 bros, also biz partners. Own a warehouse that burned down. Bring suit for ins. One of the bros convicted for arson. 2 witnesses say that they were hired to burn the building. Evid: former testimony from the arson trial to show that the bldg was burned. a. Held: Admissible. Witness unavailable + previous trial litigated for similar circumstances + identity of the issues is the same + parties have the same motive for crossexamining the witness b. Doesnt matter that didnt have an opportunity to crossexamine. What matters is If had an opportunity to crossexamine, he wouldve done it the same way c. Also doesnt matter that one party (here, the state) is not a party in the present suitonly matters that the suit involves a party against who the evidence is being offered. d. Most federal courts interpret predecessor in interest broadly so long as the same motive and interest are involved 7. US v. Salerno: Mafia case; RICO violations. Grand jury testimony that did not implicate Salerno. S wants to use this testimony @ trial, but not allowed b/c no similar interest a. Held: Case to turn on whether similar motive present in a grand jury proceeding. Remanded. b. re: Grand jury proceedings (1) Different interest in the prosecutor in grand jury testimony. Motive to keep some info secret. (2) HYPO: If witnesses had implicated Solerno, could govt have used their testimony in trial? (a) No, not under the former testimony exception. In a grand jury proceeding, no right to cross-examine witnesses 8. HYPO: X prosecuted for robbery of A. Evid: B, As witness, who has been subpoenad but not appeared. B is in NYC, and plans to stay there for 6 months. X makes a hearsay objection to As transcript testimony. (Sustained. Not beyond courts process b/c declarant is in another state.) a. Under fed law, a criminal subpoena may be served anywhere in the country. 9. If wants to introduce preliminary hearing transcript testimony b/c declarant is unavailable.Even though prosecutor has an opportunity to cross-examine, and motive/interests are the sameat a preliminary hearing, only showing that there is enough to go to trialnot that did it beyond a reasonable doubt.
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E. Declaration Against Interest (Declarant unavailable) 1. FRE 804(b)(3), Statement against interest: A state ment which was at the time of its making so far contrary to the declarants pecuniary or proprietary interest, or so far tended to subject the declarant to civil or criminal liability, or to render invalid a claim by the declarant against another, that a reasonable person in the declarants position would not have made the statement unless believing it to be true. A statement tending to expose the declarant to criminal liability and offered to exculpate the accused is not admissible unless corroborating circumstances clearly indicate the trustworthiness of the statement. 2. Requirements for a declaration against interest a. The declarant, not a party to the case, must be unavailable as defined in Rule 804(a) b. The statement must have been so far against the declarants interest when made that a reasonable person in the declarants position would not have made the statement unless believing it to be true. c. In a criminal case, if the statement tends to expose the declarant to criminal liability and to exculpate the accused, the statement is not admissible unless circumstances to corroborate the statement 3. Examples a. Statement against monetary interest I owe Joe $1k b. Statement against civil interestif it subjects declarant to civil liability, e.g. I was at fault since I ran the red light c. Statement against civil interestif it renders a claim invalid to one another, e.g. I didnt see that car. 4. GM McKelvey Co. v. General Casuality Co of America: Er w/ ins policy to protect Er from Ees losses caused by embezzlement by Ees. Ers wants to recover. Evid: Written and signed confessions of Ees of the amount of the embezzlements a. Held: Admitted under the declaration of interest exception since statements were against the declarants penal and civil interest + declarants unavailable. b. Declarant must have a way of knowing the facts 5. US v. Barrett: convicted on sale of stamp collection. Evid: Declarant, now dead, implied that (Bucky) was not in the conspiracy. a. Held: Admissible b/c the statement implies that not having in the conspiracy was against it. Also, need corroborating circumstances. b. Also, to show knowledge of the conspiracy can be against the declarants penal interest 6. Williamson v. US: Harris pulled over while delivering cocaine. Makes 2 statements to implicate . S.Ct.: Non-self-inculpatory statements are not admissible under this exception unless it appears the declaration is being offered in evid w/r/t its disserving aspect (i.e. for the purpose of prejudice to declarant)
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a. Rationale: Unreliable b/c person may only be trying to shift the blame. Thus, neutral or self-serving parts of the statement are not allowed. 7. HYPO: X prosecuted for possession of marijuana found in a jacket. Xs defense is that the jacket is As. B testifies that A told him on the day before Xs arrest he had been riding with X and left his jacket in Xs car. Admissible? a. Nono showing that A knew the jacket had marijuana and knew that his statement of ownership would subject him to risk of criminal liability. b. Thus, need declarants realization that his statement was against penal interest at the time it was made. 8. Declaration Against Interest v. Admission of Party Opponent Declaration Against Interest Admission of Party Opponent Declarant must be unavailable No unavailability requirement Based on personal knowledge Requires no personal knowledge May be offered against anyone Offered against party opponent only Against interest @ time it is Can be in interest at time it is made made F. Then Existing Mental/Emotional/Physical Condition (Unavailability Immaterial) 1. FRE 803(3): A statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health), but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification, or terms of declarants will. a. Does not involve statements of past memory or belief b. Provides: (1) Direct evid of the declarants then existing state of mind; (2) Circumstantial evid of what the declarants existing state of mind probably was 2. Adkins v. Brett : P (husband) sued (wifes lover) for alienation of his wife. Needs to prove he (1) lost affection of his wife; (2) this was b/c of the lover. Evid: Wifes statement that she had an affair w/ the (to show wifes state of mind) a. Held: (CA S.Ct): Admissible under present state of mind exception. Even though statements would go to the truth of the matter (i.e. that lover did help wife lose her affection). b. can protect himself (from misuse of the evid): (1) Request limiting instruction (2) Protract parts of the statements that only go to the issue 3. HYPOs: a. On seeing Buzzy sitting in the ball park, Declarant said, I believe thats the man I saw running out of the bank.
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Declarants statement is offered at trial to prove that Buzzy robbed the bank. (1) Inadmissible b/c offered to prove a fact remembered or believed. b. To show Declarants insanity, proponent offers testimony that Declarant said, "I believe I am Napoleon. (1) Admissible b/c offered to prove declarants then existing state of mind c. Declarant said of his older cousin, I believe hes as sharp as he ever was. Statement offered to show that the older cousin was mentally competent at the time of the statement. (1) Inadmissible b/c offered to prove the truth of the matter asserted, and is not being used to prove the declarants then existing state of mind. d. Declarant wrote to his older cousin, Please talk to my daughter; shes fallen in love with day trading and is going to lose all of her money. Statement is offered at trial to show that the older cousin was mentally competent at the time. (1) Not hearsay, as it is not being offered to prove the truth of the matter asserted. Instead, it is being used to show that the declarant believed that the older cousin was competent enough to speak sensibly to the daughter. 4. Mutual Life Ins. Co v. Hillmon: H had life insurance policy. Wife trying to collect b/c he has disappeared and apparently dead. Body found in the creek, but ins. co. claims that it is the body of W. Evid: Written letter by W to his wife saying that he was planning to go to CO (where creek is located) a. Held: Admissible. Statement of intent to do something in the future = state of mind. (1) This is ok b/c the statement of intent of a declarant can ONLY show his future conduct, NOT the conduct of another person. b. Jury can then infer that W was at the creek and that the body may be W. 5. Shepard v. US: S convicted of murdering his wife by using poison. s defense: Wife committed suicide. Evid: Wife told the nurse, Dr. S poisoned me. a. Held: Inadmissible under the state of mind exception. This was a declaration of memory pointing back to the past. b. This differs if the wife had said, Help me! Ive been poisoned! Then admissible b/c goes to her present state of mind. 6. HYPOs: Buzzy is being prosecuted for murder. The state offers testimony about a statement that the victim made before the victims death. a. Bs defense: accidenthunting rifle accidentally went off when they were cleaning guns. Prosecutor wants to admit the following statements: (1) V told a friend, I hate B.
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(a) [Admissible to show that, circumstantially, victim felt the same way at the time of death. Animosity makes it less likely that V would have cleaned rifles w/ Buzzy.] (2) V told a friend, B has been stalking me. He threatened to kill me. (a) [Not proving the truth of the matter asserted. Not offered to prove the truth of the matter asserted whether B stalkingbut to show the V feared B and thus, unlikely to be hanging out w/ him and cleaning guns] 7. US v. Pheaster: Larry disappeared for ransom. Before disappearance, L told his friends that he was going to meet in the parking lot of a restaurant. a. Held: Admissible to show what L, the declarant intended to do. Inadmissible to show what someone else did (here, ) b. Need limiting instruction for evid to show that only L was therenot to also determine was there. c. Applies to a statement by the declarant which infers action into the futurebut does NOT apply to actions of a 3d party 9. Zippo Mfg v. Rogers Imports: Zippo sues Rogers, another lighter mfr, on TM infringement and unfair competition. Evid: Public opinion poll which shows that consumers are confused over the lighters. Hearsay objection. a. Held: Admissible under present state of mind, attitude, belief b. Also impractical to get all respondents to testify (1) Trustworthyno motive to lie (2) No danger of faulty impression 10.HYPO: Testator of will says, I do not want to give C a cent. He then goes to the safe deposit box and rips will up. Can the statement be used to prove that he intended what he meant? a. Can use the statement of his state of mind as circumstantial evid @ time the will was ripped. 11.HYPO: A sues X for damages in wrongful death arises out of an auto accident in which As husband, B, was killed. A testifies that they had a warm and affectionate relationship during their marriage. X calls C, a business associate of B, to testify that about 6 months before Bs death, B said several times that he hated A and that he was very unhappy in his marriage. A makes a hearsay objection. a. Overruled. Bs statements are admissible to prove declarants state of mind or emotion at the time of the statement and also subsequent thereto, as an issue in the case. It is circumstantial evid of what the declarants state of mind probably was at a later time. b. HYPO CONT: X proposes to have C also testify that on one occasion 3 months before Bs death, B said, I just cant forget that 3 months ago, I caught A out with another man and that this has changed my love for her into hate. A makes a hearsay objection.
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(1) Sustained. Bs statement to C is one of then-existing memory regarding a past fact remembered. It is being offered to prove the fact remembered: that B caught his wife in an act of infidelity that changed his feelings for her. 12.HYPO: X is prosecuted for murder of A, his bro. X admits that he shot A, but claims the shooting was accidental. X calls B, a police officer, to testify that several hours after the shooting, he had a conversation w/ X in which X stated that he was sick and grief-stricken over As death. Prosecution makes a hearsay objection. a. Overruled. The statement is a statement of present state of mind. It is circumstantial evid of what the declarants state of mind probably was at an earlier time. G. Statements for the Purposes of Medical Diagnosis or Treatment (Availability Immaterial) 1. FRE 803(4), Statements for purposes of medical diagnosis or treatment: Statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. a. Covers past statements (1) e.g. My hand started hurting last week. (a) This still refers to an existing condition b. Also covers statements regarding causes or circumstances that affect the bodily conditionto the extent that there to render proper treatment to the declarant (1) e.g. Last week, a dog bit my hand. c. Also applies to statements made to medical personnel (e.g. ambulance driver) or member of the declarants familyif statement made in seeking medical treatment. d. Statement does not have to be made by the injured person (1) e.g. Mother bringing in child for diagnosis 2. Rationale: Reliable b/c assume that ppl will tell the truth in order to seek the correct medical treatment. 3. Three-Step Test for Statements For Medical Diagnosis a. Was the statement made for the purpose of seeking medical diagnosis or treatment? b. Does the statement describe medical history, or past or present symptoms, pain or sensations, or the cause or external source of the injury? c. Was the statement reasonably pertinent to obtaining medical diagnosis or treatment? 4. HYPO: In an action for termination of parental rights, the state offers evid that a pediatrician asked a 5-year-old, What happened to your arm? and the 5-year old said, Buzzy burned me. Buzzy = step-father.
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a. May be admissible. General rule: statements about the id of the person responsible for injuries or condition are not pertinent to treatment of diagnosis. b. BUTif the perpetrator is a family member to a child, may be considered relevant to getting treatment for the child (i.e. removing the child from the home). 5. HYPO: PI action by a P who slipped and fell in a supermarket. P offers the following evid: a. P complained, my neck hurts to friends for weeks after the fall. (1) Admissible under 803(3) as a statement of present physical condition. b. P told his doctor, My neck has been hurting for six months. (1) Admissible under 803(4) as a statement made for medical diagnosis and treatment c. P told the same thing to a non-treating doctor hired by his lawyer to give expert testimony at the trial. (1) Admissible under 803(4). (2) Statements made to forensic physicians (i.e. expert witnesses) whose only function is to provide testimony fall w/in the ambit of the rule b/c of the rules reference to diagnosis. d. P told the paramedic who came to the fall scene, I slipped and fell on a banana that had been dropped by a stocker. H. Past Recollection Recorded 1. Ways Witness can Recall Testimony (in general) a. Based on own memory b. Exception of past recollection recorded c. Present Recollection Received (method of bringing back memory of witness who has temporarily forgotten something) d. Present Recollection Refreshed (1) Here, the evid is the witness testimony to after the witness is revived (2) Foundation (a) Witness testifies to an inability to recall a fact or event (b) Witness indicates that a certain writing or object could help refresh his or her memory (c) Proponent has the writing marked as an exhibit for id and shows the writing to the witness (d) Proponent asks the witness to read the writing silently (e) Witness testifies that the document has revived a forgotten memory of a fact or event (f) Witness then testifies to his or her recollection of the fact or event (3) Key: If a testimony is refreshed w/ a writing, must furnish the writing to the other side.
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(a) Opposing side can cross-examine based on the writing, and can introduce part of the writing into evid based on FRE 612 (4) Baker v. State: accused of robbery and murder. Officer B takes the victim to the station shortly after the attack, and victim said, is not the person who robbed me. Another officer H wrote the report of the confrontation. (a) Held: Counsel is allowed to use the report to revive Officer Bs memoryeven though he is not the one who prepared the report. (b) Officer Bs testimony, then, would be the evidence 2. Foundational Requirements: a. Witness must have perceived the event (i.e. personal observation) b. Counsel must show that the witness cannot sufficiently remember the event to accurately testify (i.e. a type of unavailability) c. Counsel must show that the witness made the record with a fresh memory d. Counsel must show that the record is accurate e. Authenticate: must show that this is, in fact, the document 3. In practice, used: a. Witness put on the stand b. Cant recall the answer to the question c. Counsel tries to refresh their memory d. Witness still cannot remember the events enough to testify e. Counsel uses present recollection recorded and witness reads it into the record 4. FRE 803(5): The following are not excluded by the hearsay rule, even though the declarant is available as a witness, Recording recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify full and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evid but may not itself be received as an exhibit unless offered by an adverse party. a. Rationale: Writing was @ time when witness recollection was fresh, and thus, more reliable than their memory @ time of the trial. Designed to get the document for the jury to see i.e. to be treated just as the person remembered it, even though this is hearsay b. Requirements (1) Witness must have personal knowledge of the fact or event recorded (2) Witness must now be unable to remember that event or fact sufficiently to describe it fully and accurately
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time when the fact or event was fresh in his/her memory (4) Record must be an accurate recording of the witness perception of the fact or event (5) Document must be the record made 5. Adams v. NY Central RR: PI case. trying to prove Ps injury was from another date. Evid: Memo by an insurance agent after interviewing P close to the accident. Ins. agent could not recall writing the documenteven once presented w/ the document. a. Held: Not admissible b/c witness must adopt the statement & must believe the facts to be true @ time the statement was made 6. HYPO: X prosecuted for robbery. Prosecution calls A, who testifies that she saw the getaway car and noticed the license number, and that 10 minutes later, a police officer came to the scene and she told him exactly what license number she observed, but that she has no recollection now of that number. The prosecution then calls B, police officer, who testifies that at the robbery scene, A told him the license number and that he wrote correctly on a sheet in his book the number stated by A, and produces the sheet. Prosecutor asks B to read the license number written on the sheet. X makes a hearsay objection. a. Admissible if A, the declarant checks the officers notation and says its correct, thus, adopting it. Then the record could be put in through the testimony of A. (1) Otherwise, there is a double hearsay problem for which you can admit As statement under Rule 803(5) and the officers statement under 803(1)present sense impression b. Inadmissible if A does not adopt the notation. (1) But prosecution can argue that As statement is admissible as present sense impression (but tough b/c made 10 minutes later), and that the police officers notes are the officers past recollection recorded under 803(5). I. Business Records Exception (Availability Immaterial) 1. FRE 803(6), Records of regularly conducted activity, A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or dianoses, made @ or near the time by, or from info transmitted by, a person w/ knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record or data compilation, all as shown by the testimony of the custodian or other qualified witness, or by certification that compilies with Rule 902(11), 902(12), or a statute permitting certification, unless the source of info or the method or circumstances of preparation indicate lack of trustworthiness. The term,
(3) Witness must have prepared or adopted the record @
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business as used in this paragraph includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. a. Rationale: Align the Rules of evid w/ modern business practice. Practicalitymodern businesses are large and complex; impossible to call everyone who had taken part in making the 2. Elements a. Records in question were maintained by an activity or organization that comes w/in the broad definition of business b. It was the regular practice of the business to keep this type of record, AND the entries in the record were made close to the time of the event to which they relate c. The source of the information must have had personal knowledge d. There must be a real business purpose for accurately recording the particular piece of info the party wants to rely on e. There is a proper authenticating witness on the stand who knows about this business record and can supply the other elements of the foundation f. The record is trustworthy (1) The opposing party has the burden of showing lack of trustworthiness 3. Johnson v. Lutz: Wrongful death for motorcycle accident hit by s truck. Disagreement over the situation. Evid: wants to introduce police officers report of statements by by-standers. Issue: Is a police record a biz record? a. Held: Inadmissible b/c not based on the officers personal knowledge. No info to show the witnesses actually saw the accident. b. Even thought the police officer was under a duty to write the report, the SUBSTANCE of the report was 3d parties who did not have a duty to make statements w/in the ordinary course of business. (1) Witnesses had no incentive to make an accurate report 4. US v. Vigneau: Brothers convicted on participation in a drug distribution scheme. P appeals $$ laundering charges b/c improperly introduced evid(i.e. Western Union send $$ forms). Wants the forms redacted. [essentially, the forms, have a hearsay problem b/c it was saying, I am Patrick and am sending this money. My address is + Western Union did not have a say of verifying the Id of the person they claimed they were] a. Held: Inadmissible. Forms created w/in regular business, BUT statements from are out of court, where he is not part of the business.
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(1) If the clerk had required id, then it would have constituted independent/circumstantial evid that Patrick was the sender of the money. b. Statements by one not part of a business are not admissible for the truth of the matter asserted c. This is also not an admission of a party opponent b/c no independent evidence exists to prove the truth of the matter asserted 5. HYPO: Suit by A against B arising out of an automobile accident. Police report contains the following statement which P wants to introduce: a. I arrived w/in 5 seconds of the impact and heard a bystander scream, Did you see that crazy red car go through the red light? (1) Inadmissible under only 803(6). (2) But can be an excited utterance, if could prove that they were still under the stress of the excitement. Question also indicates that the statement was not intended to make an assertion. (a) Thus, combine 803(6), duty to make the report w/ present sense impression/excited utterance. b. I arrived a few minutes after the accident and Officer Jones told me that she had gotten there just before I did and asked the Chevrolet driver what had happened and that he had said, I fell asleep at the wheel and I dont rightly know. (1) Admissible under 803(6) and Rule 801(d)(2)(A) admission of a party opponent. Both police officers made the statements w/in the organization, and the business record is a record of an admission of a party opponent. c. I arrived 25 minutes after the accident and I asked a bystander what had happened. He said that he saw it and the red Chevy went through the red light and hit the green Ford. (1) Inadmissible as hearsay on hearsay. The bystanders statement is not w/in any exception. The bystander was not under any duty to report what happened, and 25 minutes is too long for a present sense impression. 6. US v. Duncan: Mail fraud and conspiracy case. s ins. fraud to defraud ins. cos by taking out hospitalization policies and falsifying accidents, filing claims. Evid: Ins. records as business records. objects b/c medical records not properly authenticated. a. Held: Admissible b/c medical records are relied upon as accurate for their own interests. No need to attest to their accuracy. b. No reason to doubt the truth of these records. Dont want to force all witnesses to have to testify about making these records. (1) This fits the rationale for the biz records exception
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7. Williams v. Alexander: P struck by s car. insists that vehicle
in back of him struck him and forced him to hit the . Evid: Ps statement to treating physician that a vehicle behind s car hit the who then struck P. Physician not called to testify. a. Held: Hospital record = inadmissible. Entries in the hospital record are admissible ONLY IF made in the regular business, for purpose of carrying out their business. Not so important to know exactly how P was hit; just that he was hit by the s car b. Could have had the doctor testify as an admission of party opponent 8. FRE 803(7), Absence of entry in records kept in accordance with the provisions of paragraph (6). Evid that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with the provisions of paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of the kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness. 9. Hahnemann Univ. Hosp v. Dudnick: treated @ hospital. Hospital is suing to collect outstanding bill. Evid: Computer billing (printout) a. Held: Admissible. Dont need expert testimony to speak to the reliability of the computer records. b. Systematically prepared computer records are admissible. If the witness can demonstrate that it is what the proponent claims it is, if they are familiar with the computer system, if it was the regular practice to make such a record. 10. Palmer v. Hoffman: RR case. Collision b/t P and s RR train. Wrongful death suit for negligence of the engineer. Engineer makes a statement to RR officer as to what happened. (RR co regularly wrote reports upon an accident) Engineer dies before trial. Evid: The report done by the engineer a. Inadmissible. Question the trustworthiness of the engineers statementhe had a motivation to lie since didnt want to be blamed for the accident (1) Could possibly get this in as an admission of a party opponent (if the engineer is an agent of the Er) and Declaration against interest (i.e. the engineers civil interest & he is dead) b. Also, fact that something is regularly recorded is NOT enough to get it into business. Accident reports are not w/in the routine of the business. (1) Advisory Committee Notes: Does not adopt this reasoning. Only looks @ trustworthiness. 11. Lewis v. Baker: RR accident. Brake man tested brake before, and it was ok. Then rode the train down the slope, brakes failed, and P had to jump off (was injured). No witnesses. RR claimed
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that brake was not faulty, and P forgot to set the brake properly. Evid: PI report re: Ps injuries & Inspection report, made after each accident, which shows that brakes tested afterwards were ok. a. Held: Admissible. Trustworthy b/c no motivation to fabricate the accident report (authors not personally involved, and no threat of litigation against them personally). b. Reports are also necessary and for the purpose of carrying on the business 12. Yates v. Bair Transport Inc: Workers comp claim and claim for injuries. P wanted to submit drs reports as evid of the injuries. 2 doctors were hired by s ins. co; 2 were hired by P, 1 hired on behalf of ins co. Evid: Doctors reports a. Held: Admissible. Reports in the regular course of business b. re: reports by s doctors: Trustworthyeven though reports prepared in anticipation of litigationb/c no motive to lie on behalf of P c. re: reports by Ps doctors: untrustworthy (1) But the fact that the record is prepared in anticipation of litigation is not ALONE a reason to find it untrustworthy J. Public Records and Reports (Availability Immaterial) 1. FRE 803(8), Public Records and Reports: Records, reports, statements, or data compilation, in any form, or tne nonoccurrence or nonexistence of a matter of which a record, report, statement, or data compilation, in any form, was regularly made and preserved by a public office or agency, evid in the form of a certification in accordance w/ Rule 902, or testimony, that diligent search failed to disclose the record, report, statement, or data compilation, or entry. a. 3 parts: (1) A: Activities of the office or agency (criminal or civil case) (a) Records of receipts, payroll docs, personnel records (2) B: Matters observed pursuant to the duty imposed by law when there is also a duty to report. Matter observed MUST be related to the duty of the govt. (a)CANNOT USE THESE REPORTS OR CASES IN CRIMINAL CASES i) Concern: is being tried based on records/docs instead of requiring the police to personally testify (b) Ct reporters transcript, Bldg inspector reports (3) C: Findings of an investigation pursuant to legal authority (a)CANNOT BE USED AGAINST CRIMINAL . (b)CAN BE USED IN PROCEEDINGS AGAINST THE GOVT
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2.
3.
4.
5.
(c) e.g. Findings of a discrimination case from the EEOC b. Rationale: (1) Govt officials considered trustworthy (2) Legal duty to be accurate; incentive to be careful (3) Necessary b/c public officials handle many records and may forget facts (4) Added bonus of saving $$ from forcing govt officials from having to authenticate. BEYOND THE BIZ RECORDS EXCEPTION a. Doesnt require that matters are recorded regularly b. No need for a sponsoring witness familiar w/ activities of the office IF the record is certified. (1) Judges will often take judicial notice of the fact that a document was a record properly prepared in government offices in the course of official duty and is reliable and trustworthy. c. Use of public records allows the person offering the evidence to put in evidence based on reports of someone NOT in public office Beech Aircraft Corp v. Rainey: Plane crash. P claims crash due to product defect. claims crash due to pilot error. Evid: Factual investigation of a JAG investigator6 weeks after the crashincludes facts, opinions. a. Held: Admissible. Factually based conclusions or opinions are ok. b. Advisory committee notes: Admission of an evaluative report is ok as long as (1) based on factual finding; (2) something to indicate trustworthiness. US v. Oates: convicted of possession and intent to distribute heroin. Prosecutions witness, Weinberg, chemist who did the investigation and determined that the powder was heroin. Evid: Weinbergs worksheet and chemical analysis. But, suspicious facts related to the reports, e.g. copy given to s counsel did not have Ws signature, but actual copy at trial did. Also a notation re: chain of custody had been whited out in one of the copies. a. Held: In this case, excluded on the basis of trustworthiness alone b. BUTthe clear intent of Congress to make evaluative law enforcement reports absolutely inadmissible in criminal cases. US v. Grady: s convicted of conspiracy and unlawful exportation of these rifles. Evid: Irish police records sent that showed these guns were recovered in Ireland after s had purchased them. Records included serial numbers and info on the receipt of the guns. s argue this is inadmissible b/c it is a criminal case a. Held: Admissible. Police records were merely routine report of the serial numbers of what was recovered. Policy of this
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rule is to prevent police officers from depending on reports of the commission of a crime to convict but here, merely a report of serial numbers. b. Some courts held that the limitation of using law enforcement records against criminal s does not apply to law enforcement reports that are routine or mechanical or non-adversarial 6. HYPO: A sues X for fire damage to As house. A had employed X, a general contractor, to remodel As kitchen. A claims the fire resulted form Xs negligence in leaving an open can of cabinet stain too close to the fire heater. X defense is that a fire was the result of arson. [after laying foundation], X offers in evid a report by a captain in the city fire department. The captains report stated that his investigation of the fire included an inspection of the premises and conversations w/ As neighbors, and that based upon his investigation, the fire was of incendiary origin. A objects as hearsay. a. Admissible under public records exception. Public officer can make a conclusion b. Inadmissible under biz records b/c the report is based on info gained from persons other than fire dept Ees. Sources of info, then, are not trustworthy b/c the neighbors had no duty to observe correctly or to report to the fire department. 7. FRE 803(10), Absence of public record of entry: Can be used to prove the nonoccurrence or nonexistence of a fact a. HYPO: Sam D charged w/ perjury b/c he allegedly gave false testimony in the trial of a civil action. The prosecutions contention of the false testimony is that, in the civil action, Sam D idd himself by the name of John D, while his real name was Sam D, and that in qualifying to testify as an expert, he said he was a standing consultant in engineering at the US Bureau of Mines. Prosecution offers that C, the signer, was the official custodian of records for the US Bureau of Mines and that C had made a diligent search of the records of the US Bureau of Mines and failed to find any record that any person by the name of Sam D or John D had been an engineering consultant. The writing bears a signature, C, as custodian of the records and has stamped a seal purporting to be the seal of the US Bureau of Mines. D makes a hearsay objection. (1) Overruled. Admissibleallows the use of the absence of an entry in a public record to prove the non-existence of something. The seal is sufficient to establish that the writing is what it purports to be. K. Judgment of Previous Conviction (Availability Immaterial) 1. FRE 803(22), Judgment of previous conviction: Evid of a final judgment, entered after a trial or upon a plea of guilty (but not upon a plea of nolo contendere), adjudging a person guilty of a
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crime punishable by death or imprisonment in excess of one year, to prove any fact essential to sustain the judgment, but not including, when offered by the Govt in a criminal prosecution for purposes other than impeachment, judgments against persons other than the accused. The pendency of an appeal may be shown but does not affect admissibility. 2. Requirements a. A person must have been convicted of a crime b. Conviction must be final, entered after a trial, or a guilty plea (not including no contest pleas) c. Conviction must have been for a crime punishable as a felony d. Fact that the judgment is now being offered to prove must have been one that the trier of fact in the previous case had to resolve in order for that judgment to be rendered e. OR if used by the Govt in a criminal prosecution for any purpose other than impeachment, it must not be a judgment against a 3d party [only against the accused] 3. Rationale: Reliable. It is an out of court statement by the judge or jury. is guilty of defined conduct beyond a reasonable doubt. 4. Judgments of convictions are admissible as legally operative language ONLY when they are offered to show the existence of the legal relationship that they created. a. Majority: Treat the conviction merely as evidence, NOT conclusive as to the facts 5. Stroud v. Cook: P accuses of being negligent in traffic accident. P wants to introduce judgment of prior traffic conviction as evid of s negligence. objects. a. Held: Admissible under NV law that requires this conviction be admitted. But ct denies MSJ b/c judgment is only prima facie evid of negligence. b. Also, under FRE, misdemeanor is not admissible. c. Also not admissible under a public record9th Cirs position. L. Learned Treatises 1. Requirements a. Statements must come from a published treatise, periodical, or pamphlet on a subject of history, medicine, or other science or art. b. The published work must have been established as a reliable authority, either by expert testimony or by judicial notice c. Published work must have been relied on by an expert or called to the attention of an expert witness d. If admitted, the statements from the published work may only be read into evid 2. Wellman: Dr, a perpetual expert witness. On cross-exam, asked about a particular medical condition and doctor said he
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consulted work by Ericson (popular treatise). Atty got the witness to admit that he hadnt actually read the treatise. a. If using the treatise as the truth OR treatise is called to the attention of an expert witness (for impeachment purposes) hearsay b. Hearsay b/c witness and treatise disagree. Even if the doctor didnt believe that the treatise was reliable, can have another expert testify that the treatise is not reliable. M. Statements in Ancient Documents 1. FRE 803(16): Statements in ancient documents. Statements in a document in existence twenty years or more the authenticity of which is established. V. Residual Exception A. FRE 807, Residual Exception, A statement not specifically covered by Rule 803 or 804 but having equivalent circumstantial guarantees of trustworthiness, is not excluded by the hearsay rule, if the court determines that (A) the statement is offered as evid of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through rsbl efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evid. However, a statement may not be admitted under this exception unless the proponent of it makes known to the adverse party sufficiently in advance of trial or hearing to provide the adverse party with fair opportunity to prepare to meet it, the proponents intention to offer the statement and the particulars of it, including the name and address of the declarant. B. Requirements for the Residual Exception 1. It must not be covered by Rule 803 or 804 2. It must be trustworthy 3. It must be offered as evid of a material fact 4. It must be more probative on point for which it is offered than any other evid which the proponent can procure through rsbl efforts 5. Admission of evid must serve the interests of justice 6. Opposing party must be provided with notice of the proponents intended use of the statement before trial. C. Turbyfill v. Intl Harvester Co: P in car lot. s mechanic was trying to help them start the car. P pouring gas, and engine backfiresP injured and sues car co. Evid: Statement by mechanic, 3 hours after the incident, where his supervisor told mechanic to go into a room by himself to write the statement. Mechanic then died. Statement is handwritten and unsworn, but places the blame on the P. 1. Held: Admissible under the residual hearsay exception. Statement could be read to the jury and into evid. a. Goes to material facts
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b. Trustworthy (1) Written while event fresh in mechanics mind (2) Mechanic alone; no one prompted him to do or say anything 2. Inadmissible under other hearsay exceptions a. Admission of a party opponent (here, declarant is not a party opponent) b. Present sense impression (too much time elapsed + not made while perceiving the event) c. Excited utterance (no proof that he is under the stress of the excitement) d. Biz Records (no indication that this was a regular practice + perhaps prepared in anticipation of litigation and mechanic possibly had a motive to lie) e. Past recollection recorded (needed mechanic to testify) (1) BUTthis ruling goes w/ the policy of this exception D. US v. Dent: Police stops a car w/ 2 s. Sees gun on the drivers seat. s arrested as felons in possession of a gun. Car dealer ids as the one who purchased a car from them. Evid: Grand jury testimony of the dealers 1. Held: Evid not sufficiently trustworthy b/c lack of corroboration but this is harmless error to admit this evid. a. Judge Easterbrook, concurrence: Near-miss theory. (1) Many courts have rejected this test b. But, does this take away the predictability over what is admissible and what is not? 2. Why not apply former testimony exception? Does not apply to grand jury testimony. Here, testimony being offered against the not the prosecutionand doesnt have representation at the grand jury testimony. VI. Hearsay Within Hearsay A. FRE 805, Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules. 6th AmendmentConfrontation Clause A. EVEN IF statement fits w/in the hearsay exception, criminal can still object on the grounds that the testimony would violate the confrontation clause B. 6th A: In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial juryand to be informed of the nature and cause of the accusation; to be confronted with the witness against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence. 1. Requirements a. Only applies to criminal ; only can invoke the 6th A b. Applies to state and federal courts
VII.
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c. Underlying purpose overlaps w/ underlying purpose of the hearsay rule (i.e. providing an opportunity to cross-examine witness) C. Ohio v. Roberts: accused of stealing checks and credit cards. claims that Anita gave him permission to use the checks. Anita testified, at a preliminary hearing for probable cause, that she had not given the checks to credit cards to . Anita then disappeared and was unavailable despite subpoena. Evid: Testimony from the preliminary hearing. Fits under the former testimony exception, but objection over whether s confrontation clause rights violated. 1. S.Ct. Held: Admissible. Evid was admissible to not violate the confrontation clause b/c opportunity to cross-examine present. Thus, testimony was reliable enough. a. If you interpret the confrontation clause literally, would exclude ANY out of court statements for an unavailable witness 2. ROBERTS TEST a. We prefer live testimony with an opportunity to crossexamine, but we will accept less if: (1) the declarant is produced at trial or is shown to be unavailable (2) the evid has a high indicia of reliability, either though proof that the evid fits w/in an established hearsay exception or through a showing of particularized guarantees of trustworthiness D. US v. Inadi: convicted of producing meth. Police took a tray w/o conspirators knowing, then bugged conversations b/t conspirators. Included statements of a co-conspirator, Lazaro, who did not testify at trial. 1. S.Ct held: Admissible. Unavailability is not a condition of the confrontation clause. Otherwise, no statements would be admitted w/o a showing of unavailability. 2. Distinguished from Roberts, which only applies to cases involving prior testimony. There, require unavailability b/c the evid is weaker when you could have live testimony a. This rationale does not fit under co-conspirator statements b/c they were made during the conspiracy. (Evidentiary value of the statements during the conspiracy higher than when the person is put on the stand) E. Bourjaily v. US: Indicia of reliability does not apply in co-conspirator casesnot mandated by the Constitution. The confrontation clause is designed to protect similar values & does not need an independent inquiry into reliability 1. BASIC RULE from Inadi and Bourjaily: a. We prefer live testimony with an opportunity to crossexamine, but we will accept less if: (1) the declarant is unavailable AND the evid has a high indicia of reliability, OR
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(2) the declarant falls w/in a firmly rooted hearsay exception, whether or not the declarant is unavailable. F. Idaho v. Wright: Child molestation case. Younger daughter made statements while under the care of a doctor, but he does it a lot more w/ my sister than w/ me. ID S.Ct held admission of the statement violated the confrontation clause since no reliabilitydr. failed to record interview, asked leading questions, etc. 1. S.Ct. held: Voids the unavailability issue. Here, residual hearsay exception firmly rooted hearsay exception. No indicia of reliability a. e.g. of not firmly rooted hearsay exceptions: residual exceptions; accomplice confessions that inculpate criminal . 2. Key: RELIABILITY OF THE EVID a. Based on the totality of the circumstancesthose that surround the making of the statement and that render the declarant particularly trustworthy. (1)Corroborative evid may NOT be considered in the trustworthiness inquiry. (2) Here, statement by the child was not trustworthy b/c circumstances did not suggest trustworthiness (3)Must be so trustworthy that cross-examination would be of little value G. White v. Illinois: Childs moms friend charged w/ sexual abuse. Babysitter heard child scream. Child told babysitter + mother + emergency nurse that choked her and touched her inappropriately. Child unavailable at trial. Evid: Statements by child to mom, babysitter, nurse, police. 1. Trial ct: admissible under spontaneous declaration exception or medical diagnosis exception. Affirmed by Ct. App.no confrontation clause claim b/c it is unnecessary to show the declarant is unavailable. 2. S.Ct. held: No violation of confrontation clause. a. Confrontation clause does not only address circumstances surrounding a statements utterance. b. Here, statements sufficiently reliable b/c in a firmly rooted hearsay exception (1) Cross-examination would add little more to the value of the statements c. here, value of the statements is from the context in which they are made & there is no equivalent value in live testimony G. Crawford v. WA: on trial for stabbing V for raping his wife. and wife went to Vs house where there was a fight and stabbing of V by . Police question both and wife. Wife doesnt testify @ trial b/c of marital privilege. Evid: Wifes statements to police officer whether rapist had something in his hands. argues this violates his confrontation clause.
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1. S.Ct held; Inadmissible b/c it violates the confrontation clause.
Also rejected Roberts rule of requiring unavailability + guarantees of trustworthiness. a. Key: Not whether issue is reliable, but HOW testimony is tested. 2. Rule from Crawford a. We prefer live testimony with an opportunity to crossexamine, but we will accept less if: (1) where the statements are testimonial, the declarant is unavailable and the has an opportunity to crossexamine or confront the witness; OR (2) where statements are not testimonial (possibly), if the statement falls w/in any hearsay exception, OR (3) where statements are not testimonial (possibly), if the statement falls w/in a firmly rooted hearsay exception or bears particularized guarantees of trustworthiness whether or not the declarant is unavailable. b. Testimony = ONLY under circumstances such that the person making the statement should think the statement can later be used at trial (1) e.g. police interrogations, hearings, depos, grand jury) c. having the opportunity to cross-examine or confront the witness (applies to waivers, forfeitures, if atty is present @ place the testimony is taken).
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I.
IMPEACHMENT Direct Examination A. 1st Examination of any witness B. Establish the facts as you need to establish C. Competence 1. Witness must be legally competent (FRE 602) a. Personal knoledge b. Ability to convey perceptions to jury or judge 2. Witness is presumed competentunless evidence suggests otherwise (FRE 601) D. Impermissible questions: 1. Narrative a. e.g. Can you tell us everything you did that day? (narrative) (1) versus What did you do next? (nonnarrative) b. Exception: Experts generally allowed to testify in a narrative form 2. Leadingi.e. questions that suggest an answer a. e.g. Of course, you crossed the street, didnt you? (1) versus Did you cross the street? (permissible on direct) (2) versus Didnt you cross the street? (permissible/impermissible depending on tone) b. Exceptionsi.e. leading questions are ok when: (1) they concern preliminary matters on issues not in dispute (i.e. for efficiency, speed up trial) (2) they are used to refresh a witness recollection (3) they are directed at a handicapped witnessi.e. very young, extremely old, or infirm (4) they are directed at a hostile or adverse witness (5) they are allowed by the trial judge w/in his/her discretion as a means of better ascertaining the truth, avoiding a waste of time, or protecting a witness from harassment c. FRE 611(c), Leading Questions: Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness testimony. Ordinarily leading questions should be permitted on crossexamination. When a party calls a hostile witness, an adverse party, or a witness identified w/ an adverse party, interrogation may be by leading questions. Cross-examinationi.e. second examination of witness A. FRE 611(b), Scope of cross-examination: Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination. 1. General rule: Cross is limited to the scope of direct
II.
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a. Exceptions: Can question the witness about anything related to credibility of the witness (a) re: Matters affecting the credibility of the witnesscan include bias, motive, interest, untruthfulness, material prior inconsistency of a witness b. Judge has discretion to go outside the scope of the direct B. Can use leading questions III. Impeachment A. Impeachment = discredit a witness 1. FRE 607: The credibility of a witness may be attacked by any party, including the party calling the witness. 2. BUTparty may not put a witness on the stand for the sole purpose of impeaching him a. US v. Hogan: Pilot arrested when they find $$/weed. Gives info implicating himself and brother. Once released from jail and in front of a grand jury, denies earlier story, saying confession was b/c of torture. Prosecution wants to bring pilot to the stand, knowing that he will deny earlier testimony then bring other witnesses to the stand to impeach him. (1) Held: Judge had a hearing w/o jury to determine what the pilot would say. (2) Sometimes the courts will not entertain extrinsic evidence aimed at impeachment b/c of the higher risk of distracting the jury on a collateral matter (3) Other possible theories (a) Statement against interestNo, b/c co-conspirator is not available (b) Allowing statements by law enforcementunder Crawford, would violate the confrontation clause (c) Former testimony exceptionNo, b/c in grand jury, no opportunity to cross-examine B. METHODS of Impeachment 1. Use of prior inconsistent statement, action, or omission a. FRE 801(d)(1), A statement is not hearsay if(1) Prior statement by witness. The declarant testifies at trial or hearing and is subject to cross-examination concerning the statement, and the statement is (A) inconsistent w/ the declarants testimony, and was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition b. Test for Use of Prior Inconsistent Statements (1) Is the prior statement inconsistent w/ what the witness is now saying? (2) Did the declarant make the prior statement under oath? c. HYPO: Witness testifies on direct that the victim of a cow attack was 40 feet away from the cow when the cow charged. On cross, counsel asks, Isnt it true that you told
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my investigator that the P approached to w/in 10 feet of the cow? Hearsay objection. (1) Overruled; Falls into prior statement/impeachment exception to the hearsay rule 2. Prove that the witness lacked capacity to perceive correctly a. Drunk b. Drugs/medication c. Poor eyesight eyesight/hearing/colorblind/concussion d. Preoccupied/distraction e. Psychiatric Condition (1) US v. Lindstrom: charged w/ mail & ins. fraud. Govts key witness, a past Ee, testified that altered records. Evid: Witness past psychiatric treatment and mental problems (attempted suicide, involuntary hospitalization, history of insanity, diagnosed schizophrenia). argued this was relevant evid b/c witness was seeking revenge + has a past problem of seeking revenge on ppl. Dist ct limited the evid, and convicted (a) Held: Error to exclude evid. Violated s Constitutional right to confront the witness + went to her capacity to perceive the events. (2) HYPO: P v. Acme Corp in a product liability action. P claims that Acme knowingly marketed an unsafe product. Ps key witness is a disgruntled former Ee of Acme. To impeach the former Ee, Acme plans to offer the following evid(can witness be asked about these matters on cross-examination? Will extrinsic evid be admissible if the witness denies the misconduct?) (a) Witness lied on the resume that the witness submitted to Acme as part of his employment application i) Ok on crossgoes to character or truthfulness ii) No extrinsic evid. But, atty could try showing the witness the employment application and documentation that it was a lie under the guise of refreshing the witness memory (b) Witness is a drug addict i) No b/c does not go to truthfulness. ii) But, yes, if can show that it impacted the witness ability to perceive (c) Just before quitting his job at Acme, witness sabotaged his computer by erasing its hard disk i) Yes on cross b/c it shows hatred of Acme bias or motive, not character. Thus, evid is not subject to limits of 608(b) ii) Extrinsic evid may be offered (d) Witness has secret plans to assassinate the Pope and Dalai Lama. i) Yes, on cross
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Yes, extrinsic evid (Lindstrom) to show s insanity or lack of ability to distinguish reality from fantasy, not character. (3) HYPO: X is prosecuted for battery upon A, his girl friend. A testifies that she was trying to break off her relationship w/ X and that he got mad and beat her. On cross, X asks A if it isnt true that she has been under the care of a psychiatrist for the last 3 years. Prosecutor objects. X argues that he is trying to prove that it was he who was trying to break off the relationship b/c he found out that A had been under the care of a psychiatrist, that he never struck A at all, and that it was a figment of her imagination. (a) Overruled. Relevant b/c the fact that claims his learning of the psychiatrist gave him a motive to break up gives the evid some relevance other than impeaching the witness. (b) Also admissible b/c evid of mental disease may be sufficiently probative of the witness ability to accurately perceive, recollect, or communicate info (c) Still subject to 403 analysis 3. Show that the witness is biased a. US v. Abel: Bank robbery w/ and two friends. One agrees to testify against . s counsel, will counter this testimony by testimony of Millswho would say that Ehle was planning to lie to receive favorable treatment from the govt. Prosecutor would bring Ehle back on the stand to say that they were all part of the Aryan Brotherhood & thus perjury is part of their org. (1) Held: Admissible to show bias. (2) BUTwill not allow Aryan Brotherhood to be said, only that they are part of an organization. Do not need to prove that Mills adopted these tenants to be probative as to the issue of bias. BUTthe type of organization mattered since it is important to the tenants of the group to lie and to protect each other. b. Thus, although there is no explicit provision that covers bias, extrinsic evid can be introduced to control bias (401/402)unless barred as unfairly prejudicial c. HYPO: A sues X, a police officer, for damages for false imprisonment growing out of Xs arrest of A in a barroom brawl. B, a witness for A, testifies that A was a mere bystander and not a party to the brawl. On crossexamination, X asks B if he had not, on two occasions, slashed tires on marked police cars and had been convicted of malicious mischief for so doing. A objects as improper cross-examination and improper attempted impeachment of B. Result?
ii)
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(1) Overruled. X trying to elicit from B specific instances of Bs conduct to attack his credibility. Here, Bs conduct is relevant to prove Bs bias against police in general and thus against X. (2) HYPO, modified. B is testifying. X seeks to question B to elicit that he had had 3 felony arrests by Y city police resulting in no convictions, and 6 arrests resulting in misdemeanor convictions. A objects as irrelevant and improper impeachment by specific instances of conduct. X asserts he is offering the evid to prove bias by B against Y police and X as a police officer. (a) Arguably sustained. Question is whether the fact that B was arrested 9x (by itself) establishes a bias or hostility on Bs part against all police officers and against X. (b) But here, greater prejudice to the P from showing bad character of witness is more damaging than probative value of the evid to prove bias or prejudice on the part of the witness. 4. Character evidenceopinion, reputation, character a. FRE 404(a)(3), Character evidence generally: Evid of a persons character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion, except.(3) Character of witnessEvid of the character of a witness, as provided in Rules 607, 608, and 609. b. FRE 608, Evidence of Character and Conduct of a Witness: (a) Opinion and Reputation Evidence of Character. The credibility of a witness may be attacked or supported by evid in the form of opinion or reputation, but subject to these limitations: (1) the evid may refer only to character for truthfulness or untruthfullness, and (2) evid of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evid or otherwise (b) Specific instances of conduct. Specific instances of conduct of a witness, for the purpose of attacking or supporting the witness character for truthfulness other than conviction of crime as provided in rule 609, may not be proved by extrinsic evid. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness character for truthfulness or untruthfulness, or (2) concerning the character for truthfulness or untruthfulness of another witness as to which the character the witness being cross-examined has testified
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The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the accuseds or the witness privilege against self-incrimination when examined w/r/t matters that relate only to character of truthfulness. character for truthfulness. (2) Summary of 408: (a) The impeaching party can present reputation testimony concerning the target witnesss truthfulness or opinion testimony from the impeaching witness regarding the target witness bad character for truthfulness (b) On cross-examination, the impeaching party may inquire into particular misconduct that did not result in conviction and that reflects on truthfulness of the witness (c) The impeaching party may offer evidence of a prior criminal conviction of the witness (subject to the requirements of 609) to show that the witness is untruthful. (3) Once that witness character for truthfulness has been attacked, the party for whom the witness is testifying can offer evidence of truthfulness via opinion or reputation (4) HYPO: X is prosecuted for the sale of heroin to A, an informer for the police. A testifies that he made a purchase of heroin from X in a dimly lit bar as part of a sting operation. X calls B to testify that he has been a next-door neighbor to A for 10 years and has attended many social affairs which A has also attended, and that A has a reputation in the community for having a bad memory. Prosecutor objects. (a) Likely sustained. This is reputation or opinion evidence. Bad memory doesnt really go to truthfulness. c. Impeachment by Conviction of CrimeFRE 609 (1) Requirements (a) Prior conviction was punishable by death or imprisonment in excess of one year under the law, or it involved dishonesty or false statement (b) No longer than 10 years has elapsed since the date of the conviction or the release of the witness from the confinement imposed for that conviction. i) Or the excepted cases where the judge determines that this 10-year rule should not apply, the proponent has given the opposing side advance notice of its intent to use such evid
(1) In short, a witness may be impeached by showing bad
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pardon, annulment, or other equivalent procedure based on a finding of innocence and has not been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding of rehabilitation where that person has not been convicted of a subsequent crime which was punishable by death or imprisonment in excess of one year (d) The probative value of the evid substantially outweighs its prejudicial effect (2) Owens v. US: s wife killed by rifle gunshot wound as she was driving away from the house. claims: shooting was accidental. Evid: s omissions of two convictions (possession of firearm + marijuana) on his application to become a warrant officer. (a) Held: Can impeach the by showing prior acts. Lying on application establishes a prior falsehood. (b) Really in the cts discretion to ask about particular acts going to truthfulness (c) HYPO: If denied conviction of marijuana, could prosecution introduce extrinsic evid that contradicted this? i) No, not the kind of crime covered by 609 ii) Governed by 608(b)prohibiting collateral matter evid (3) 609(a)(1): Felony convictions that do not involve dishonesty or false statements (a) Elements: i) Prior conviction was for a felony punishable by death or more than one year imprisonment ii) No longer than 10 years elapsed since a) date of conviction b) release of the witness from confinement imposed for that conviction c) OR if the judge determines that the 10-year rule does not apply, the proponent has given the opposing side advance notice of its intent to use such evidence. iii) Conviction has not been nullified or subject to a procedure that nullifies the conviction based on a finding of rehabilitation where that person has not been convicted of a subsequent felony iv) Prejudicial effect of using the evid outweighs its probative value a) Factors to weigh the probative value: i) Whether the prior crime weighs on truthfulness ii) Remoteness of the crime iii) How central credibility is to the case.
(c) The conviction has not been the subject of a
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b) THE BALANCING TEST ONLY APPLIES TO

CRIMINAL S even if it is prejudicial (b) US v. Sanders: convicted for assault and possession of contraband. in prison and assaulted fellow inmate w/ shank. Evid: Prior convictions of assault and possession of contraband against another inmate. i) Held: Evidence excluded b/c prior convictions are similar to the current offense, and thus, are highly prejudicial and limited probative value. a) If similarity of crimes less chance for the conviction to be included b) BUTSimilarity of crimes has less force when the witness [whose credibility is being attacked] is NOT the . ii) Prosecution also argues that evid should be admissible under 404(b) to prove intent. a) Ct rejects argument, saying that evid only shows criminal disposition. Knowledge is not at issue. (c) Luce v. US: charged w/ possession of cocaine w/ intent to distribute. Before trial, made a motion to exclude his conviction of possession of meth. Didnt testify @ trial. On appeal, asks for review of the decision to include the evidence of past conviction. i) Held: needed to testify to preserve a claim for improper impeachment ii) Impossible to decide whether impeachment is too prejudicial w/o knowing the exact nature of the testimony. (d) Ohler v. US: charged w/ importation of weed and possession w/ intent to sell. Govt made a motion in limine asking the trial judge to allow them to put into evidence the s prior felony conviction for possession of meth. Judge grants motion. s counsel decides to take away the sting and tell about the prior conviction on direct. i) Held: Revealing the conviction on direct waive the right to appeal the trial judges decision that the conviction was impossible to impeach. ii) Thus, may not appeal adverse 609 ruling if they take the stand to reveal prior conviction (considered a waiver of the right to challenge) (4) 609(a)(2)Convictions involving dishonesty or false statements (felonies or misdemeanors) (a) Elements:
c) Civil case 609(a)(1) evidence is admissible
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Prior conviction involved dishonesty or false statement ii) No more than 10 years since the date of the conviction or the release of the witness from the confinement for that conviction. OR judge can determine that the 10 year rule does NOT apply; then proponent has to give the opposing side advance notice of its intent to use such evidence. iii) The conviction has not been subject to a procedure that nullifies the conviction based on a finding of innocence and has not been the subject of a procedure that nullifies the conviction based on a finding of rehabilitation where that person has not been convicted of a subsequent felony. iv) THIS ALSO APPLIES IN CIVIL CASES (b) US v. Wong: convicted of mail fraud. Evid: Past mail fraud convictions + medicare fraud. argues evid should be excluded under 403. i) Held: Crimes under 609(a)(2) are per se admissible ii) JUDGE DOES NOT HAVE DISCRETION to exclude crimes including dishonesty iii) Rationale: 609(a)(2)s plain language overrides the general rule of 403. No balancing (c) US v. Brackeen: on trial for a bank robbery. Plead guilty to two armed robberies in this series. Evid: Guilty pleas under 609(a)(2). Issue: Are bank robberies a per se dishonest crime under 609(a)(2)? i) Held: Bank robberies are not per se dishonest crime or one involving a false statement. Thus 609(a)(2) does not apply ii) Test: Look @ whether dishonesty or false statement is an element, or whether the witness used dishonesty or false statement in committing the crime (d) HYPO: Betsy is accused of murdering her father. In her defense, she calls her minister as a character witness who testifies to her peaceable and nonviolent reputation. Prosecution has evid that, w/in the past 5 years, Betsy was convicted of the following offenses: i) Petty larceny. Conviction arose from a shoplifting episode in which Betsy was caught leaving the store w/ items on her person. When questioned by the store personnel, she said that she had bought the items elsewhere. a) Admissible under Brackeen, since a false statement was used in committing the crime.
i)
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Disturbing the peace, a misdemeanor. Betsy was convicted after disrupting a restaurant by throwing her meal at the server. a) Inadmissible b/c it was a misdemeanor, not involving dishonesty (e) Prosecutions principal witness is Buzzy. He testifies that he was delivering newspapers on the morning of the murder when he saw Betsy leaving the scene of the crime. To impeach Buzzy, the defense offers evid that 6 weeks before his testimony in the present case, B was arrested for possession of marijuana w/ intent to sell. The case against Buzzy is still pending, and has not resulting in his conviction. i) Inadmissible b/c specific instances of conduct not resulting in a conviction cannot be proven by extrinsic evidence (f) X is prosecuted for the offense of having sexual intercourse w/ A, his 13-year-old stepdaughter. X testifies in denial of the charge. To impeach X, the prosecution proposes to establish, though crossexamination of X, that he has suffered prior felony convictions of rape, sale of heroin, and grand theft, all occurring w/in the 10-year period prior to the offense charged, and all felonies punishable by more than one year. Admissible? i) Rape: High risk of prejudice, but evid of the rape conviction could be admitted under 413. Furthermore, if the assaults were highly similar, one could argue the evid is admissible under 404(b) ii) Grand-theft: Probative b/c involving the character trait of dishonesty. But little probative value iii) Heroin: Little probative value to impeachment (g) HYPO: testifies in a shoplifting case. He has a 9year-old conviction for shoplifting. Admissible? i) Inadmissible unless evid that had used false statement of committing the crime of shoplifting. ii) Not all stealing is a crime of dishonesty iii) Not admissible under 609(a)(1) b/c not a felony d. HYPO: The defense in a civil case has discovered that X, a witness for P, lied on an employment application by claiming to have a masters degree. In fact, X was expelled from graduate school for plagiarism before getting the degree. The evid of Xs lie on the application and his plagiarism has no relevance to the lawsuit other than its bearing on Xs character for truthfulness.
ii)
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(1) Would it be permissible to ask X on cross-examination whether, in an application for employment, he falsely claimed to have a masters degree? (a) Yes b/c conduct goes to untruthfulness (2) If X denies that he claimed to have a Masters degree on the employment application, would it be permissible to refresh his memory by showing him the application? (a) Yes, can show X the application to refresh her memory. This is not introducing the document into evid. It is merely using a stimulus to awaken the memory of the witness. (Thus, the document is not extrinsic evid b/c it is not evid at all). (3) If X denies committing plagiarism, should the crossexaminer be allowed to introduce into evid a report by a school disciplinary committee finding that the witness committed plagiarism? Suppose that the witness, while denying plagiarism, admits that the report is an authentic report of the disciplinary committee? (a) No. Cannot call another witness to impeach w/ specific actswould violate the ban on extrinsic evid. (b) BUTif witness herself could authenticate the report, then maybe authentication would be enough to satisfy hearsay exception. Would need to satisfy biz or public records exception (4) Suppose that X denies committing plagiarism, and the cross-examiner produces a prior written statement by X confessing to plagiarism. Is the statement itself admissible if X admits making the statement but still denies committing plagiarism? If she denies making the statement? (a) Maybe. Can argue that impeachment has been accomplished wholly by cross-exam, that nothing extrinsic has been used. Still, the out of court statement itself could be characterized as extrinsic, and as possibly opening the door to counterproof by the witness seeking to show it to be inaccurate or to explain the circumstances under which it was made (b) Stronger argument can be made the evid is prohibited by the extrinsic evid ban of 608(b)witness denies making the inconsistent statement, another witness would have to be called (5) Would it be permissible to ask X on cross-examination, Isnt it true that you were expelled from graduate school for plagiarism? (a) W/in trial judges discretion since plagiarism is dishonest. e. US v. Drake: convicted of fraud. During direct, he said he was a psych major w/ no biz mgmt. On cross-, realized that he didnt actually have a degree-only a major. Then counsel
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asked him about his school records. argues that references to the records constituted extrinsic evid. (1) Held: Tactic of trying to elicit admissions from witness = ok. BUThere, counsel questions on assumed facts not in the record (i.e. testifying as to what is in the document, essentially getting around a hearsay rule as a statement to a 3d party by saying, Isnt it true that this says) Thus, improper (2) Cross-exam questions alone CANNOT constitute extrinsic evid. s argument rejected f. US v. Saada: owned warehouse that flooded; made inflated claims to the insurance co. Ins Co testifies that the companys VP (and former judge) indicated that the son actually broke the sprinkler. The prosecution wants to attack the credibility of the declarant by taking judicial notice of his unethical conduct while on the bench. Declarant has since died (1) Issue: Whether 806 [limiting impeachment to any evid that wouldve been admissible for impeachment purposes if the declarant had testified as a witness] and 608(b) [only allowing questions about this type of misconduct on cross-exam], when read together, allow the introduction of extrinsic evid of misconduct? (2) Held: 806 modifies 608(b). Where hearsay declarant is unavailable, cant introduce prior bad acts evid (a) Can impeach via other methods: i) Opinion and reputation character evidence 608(a) ii) Evid of criminal convictions609 iii) Evid of prior inconsistent statements--613 5. Contradiction a. Impeach by introducing contradictory testimony by someone other than the witnessabout an underlying fact (1) e.g. Witness 1: Light was red; Witness 2 @: Light was green (thus, witness 2s testimony impeaches witness 1s) b. Limits: (1) Hogan: Cannot call a witness to the stand primarily for the purpose to get before the jury what would otherwise be inadmissible evidence (2) Not allowed when the issue is immaterial or is a collateral matter. (a) Rationale: Avoid confusion, waste of time. Prevent unfair advantage over a witness not prepared to testify on that issue. Avoid prejudicial effects (b) State v. Oswalt: charged w/ robbery and burglary. Crimes committed in Seattle. Introduces testimony of restaurant owner in Oregon saying that was there on the day the robbery took place. On cross-exam, prosecutor asked whether was there for two months before the robbery took place. In rebuttal, police
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talked to one month before the crime happened in Seattle. Admissible to challenge the credibility of the restaurant owner? i) held: Inadmissible b/c prejudiced by this evidence (c) Test for collateralness or whether evid is material to the case: i) Could the fact to which error is predicated have been shown in evid for any purpose independently of the contradiction? (d) HYPO: Witness testifies, At 11 pm on June 13, I was driving home from the movie. Just as I got to Hyde Street, the car behind me passed me and hit a man who was getting off of a cable car. Can the opponent prove w/ extrinsic evid that the witness was on the way home from a poker game rather than a movie? i) No. Only relevance is to contradict the witness. Such evid would be improper impeachment on a collateral matter. ii) HYPO, revised: What if the witness had been drinking at a bar rather than watching a movie? a) Yes. Relevant to the witnesss ability to perceive correctlynot for contradiction. Witness may have been drunk when he or she saw the accident. iii) HYPO, revised: What if the witness had been out w/ Ps brother on the evening of June 13? a) Yes. Relevant to contradict the witness, but also to show bias. (3) General rule: A witness may not be impeached by extrinsic evidence on a collateral issue (a) Rationale: Avoid waste of time or confusion + To keep witnesses from being surprised by questions of matters unrelated to the issues (b) US v. Copelin: charged w/ distributing cocaine in an undercover action. s defense: Mistaken id for another person b/c he doesnt know what drugs loo like. Prosecutor asks, Did you see any drugs? : No. Prosecutor: Would you know if you saw them? : No, I only saw them on tv. Evid: s past drug test failures. i) Held: This is not extrinsic evid b/c the testified to it himself. ii) Rule disallowing the use of extrinsic evid to impeach a witness on a collateral matter is irrelevant here b/c was impeached by his own statements on cross iii) could have argued 403prejudicial evidence OR alternatively, asked for a cautionary instruction that the evid is ONLY to be used to attack the witness credibility
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If denied testing positive, then prosecution could not have introduced evid to show contradiction (c) HYPO: Witness testifies, Im certain that the performance review meeting occurred on Feb. 3. Ill never forget that day b/c my house burned down. Could the opponent prove w/ extrinsic evid that the witnesss house burned down on February 4, not the 3d? i) Yes. Is powerful impeachment evid, even if it is on a collateral matter. Concern w/ collateral matters is really w/ waste of timenot prejudice (4) Once the person denies the question on crossexamination, CANNOT introduce extrinsic evidence to test credibility on that point (a) But, if the info (i.e. to collaterally impeach) is gotten out of the mouth of the witness, it is not considered extrinsic evid 6. FRE 610: Evid of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness credibility is impaired or enhanced C. Prior Statements to Impeach or Rehabilitate 1. FRE 613 a. Examining witness concerning prior statement. In examining a witness concerning a prior statement made by the witness, whether written or not, the statement need not be shown nor its contents disclosed to the witness at that time, but on request the same shall be shown or disclosed to opposing counsel. b. Extrinsic evid of prior inconsistent statement of witness. Extrinsic evid of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in Rule 801(d)(2). 2. Procedure: The party seeking to introduce a prior inconsistent statement must first ask the witness [to admit?] a. If they answer yes cant introduce extrinsic evid b. If they answer no may produce writings, call statements. But need an opportunity to explain the statement. 3. In short, party can offer extrinsic evid of a prior inconsistent statement in two situations: a. Witness has had a chance to explain or deny prior inconsistent statement, and the opposing party is
iv)
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given an opportunity to question the witness about the statement OR b. Proponent has convinced the trial judge that the interests of justice would be served by allowing the proponent to use the extrinsic evid, even though the witness has not had an opportunity to explain the statement and the opposing party has not had a chance to question the witness about the statement 4. Coles v. Harsch: accused of alienating the affections of Ps wife. P alleges that did this by wrestling with her. s witness: s behavior was proper and harmless- and had done this with other women. To rebut, P testified that witness told him that the conduct b/t and women was disgraceful. objects: hearsay (offered to prove the truth of the matter asserted) + no foundation for proper impeachment (i.e. time/place/circumstances not asked about). a. Held: Inadmissible under the c/lNo proper foundation b. Under FRE, witness needs opportunity sometime during testimony to have opportunity to explain their discrepancy 5. 801(d)(1)(B)Rehabilitation of a witness w/ prior consistent statements. a. Requirements: (1) Consistent with the declarants testimony (2) There must be an express or implied charge of recent fabrication or improper influence or motive (3) The prior consistent statement must have been made before the alleged fabrication or before the alleged improper motive or influence occurred. b. Tome v. US: charged w/ sexually assaulting his 4-year-old daughter while in his custody. s defense: allegations fabricated by AT (daughter)s desire to live w/ her mother. Prosecutor has trouble w/ ATs testimonycalls other witnesses (drs, babysitter) to corroborate ATs testimony. (1) Held: Inadmissible under 801(d)(1)(B). (a) Declarants consistent out of court statements to rebut a charge or recent fabrication or improper influence or motive ONLY WHEN those statements were made BEFORE the charged recent fabircation/improper influence/motive (2) Prior consistent statements are admissible to rehabilitate the witness only if they were made prior to the time that the bias or interest arose. (a) e.g. Witness in a criminal case testifies, I bought cocaine from . Witness herself has a criminal charge for distribution of cocaine pending against her. Defense thinks she is trying to receive leniency. If prosecution offers evid that the witness signed a statement after being arrested saying that was the source of
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her cocaine, that statement would be inadmissible b/c the witness has the same motive to curry favor after her arrest that she has at trial (b) Compare: Prosecution offers testimony that, prior to being arrested, the witness told an associate that she was obtaining her cocaine from the , the consistent statement would be admissible b/c it occurred before the charged motive to fabricate arose. c. HYPO: X prosecuted for robber of a gas station. Y, a codefendant, is tried first and convicted. @ Xs trial, the prosecutor calls Y who testifies that he and a friend had gone to the gas station together and that he, Y, committed the robbery. When asked whether X was the friend with him, Y answers, I dont remember. Prosecutor calls B, a police officer, who will testify that Y told him that X was his accomplice. X objects to Bs testimony on the ground that Ys prior statements are not inconsistent w/ any of Ys testimony. Result? (1) Overruled. Ys prior statements are not inconsistent w/ any express testimony given, but they are inconsistent w/ the implied testimony of Y. Prosecutors questions certainly contained the implication that X was Ys accomplice in the gas station robbery. (a) If a witness doesnt recall making a particular statement or doesnt know interpreted by many courts to constitute an inconsistent statement d. HYPO: X is prosecuted for assault w/ a deadly weapon upon A. X calls B, who testifies that A was approaching X with a gun in his hand when struck by X with a billiard cue. On cross-examination, the prosecutor asks B, Didnt you state after Xs encounter with A that A had no weapon in his hand when he was struck by X with the billiard cue? X makes a lack-of-foundation objection, in that no time, place, or persons present are given. (1) Overruled. Cross-examiner has the right to put a blunt question to a witness about prior inconsistent statements, w/o revealing to the witness any info regarding the circumstances of the making of the statement. (2) Under FRE, no need to lay a foundation (i.e. asking about details of time, place, circumstances) D. HYPO: is on trial for bank robbery. After the prosecution rests, calls LJ as an alibi witness; she testifies on direct that @ time of the bank robbery, she and were eating lunch at the Circle Deli. 1. On cross, prosecutor asks, Arent you in business w/ s father? LJ answers, yes. Can now call a witness to testify to LJs reputation for truthfulness and veracity is good?
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truthfulness is first attacked on cross. Here, bias is shown. 608(b) does not include bias. b. MODIFIED: what if LJ answered No. Could the prosecutor then call a witness to testify that LJ is in business w/ the s father? (1) Yes. Can admit extrinsic evid to refute other claims for bias [if the judge allows] 2. On cross, prosecutor asks, Didnt you state in an application for a bank loan that you had no outstanding debt, when in fact you still owed $82k in student loans? LJ answers, Yes. May now call a witness to testify that LJs reputation for truthfulness and veracity is good? a. Yes, since specific misconduct is shown to attack LJs character for truthfulness. b. MODIFIED: What if LJ answered No. Could the prosecutor then call the banks loan officer to testify that LJ indeed claimed she had no outstanding debt as well as a recordkeeper from the student loan agency to testify about the status of her loans? (1) No, contradiction is a collateral matter. 608(d)specific instances of misconduct may not be proven by extrinsic evid. 3. After LJ completes her testimony, the prosecutor offers evid that, 6 yrs earlier, she was convicted of perjury and sentenced to serve on year in prison. then calls LJs neighbor, who testifies that he has known LJ for 8 yrs, and that, in his opinion, she is a truthful person. On cross of the neighbor, may the prosecutor ask, Do you know that Ms. J stated in an application for a bank loan that she had no outstanding debt, when in fact she still owed $82k in student loans? a. Yes. Can question witness knowledge w/ specific instance to test knowledge of character. Under 608(a)(2), once reputation/opinion evid is offered, can test that persons knowledge of their reputation by asking them about specific instances.
a. No, evid to rehabilitate for truthfulness is only allowed IF
METHOD Defect in witness capacity to observe/remember Bias Contradiction Character for truthfulness Reputation/opinion
IMPEACHMENT SUMMARY CROSS EXTRINSIC EVID yes yes yes yes yes yes yes yes, unless collateral yes no
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Specific Misconduct Prior Crim. Conviction Dishonesty Felony Prior Inconsistent Statements
yes yes
yes yes
yes
yes, if witness has had opportunity to explain
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I.
PRIVILEGES General Principles A. Holder of Privilege: Privileges are personal in nature, and can only be claimed by the holderi.e. the person whose interest or relationship is sought to be protected (e.g. client or patient) B. Waver: Privilege can be waived 1. By failure to object 2. By consent C. Rationale: Encourage the exchange of info b/t people in certain relationships. Do not want the confidence to be betrayed. D. FRE does not define specific privileges; only provide a choice of law 1. FRE 501, General Rule: Except as otherwise required by the Constitution of the United States or provided by Act of Congress or in rules prescribed by the Supreme Court pursuant to statutory authority, the privilege of a witness, person, government, State, or political subdivision thereof shall be governed by the principles of the common law as they may be interpreted by the courts of the United States in the light of reason and experience. However, in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the privilege of a witness, person, government, State, or political subdivision thereof shall be determined in accordance with State law. a. In short, when federal courts apply the substantive law of a state, it must apply the states privilege rules as well b. When federal courts apply federal substantive law, it has to apply federal c/l as interpreted by US courts in the light of reason and experience Specific Privileges A. Attorney-Client Privilege 1. Rationale: Encourage clients to confide in attorneys so that attorneys can provide full advice 2. 4 elements to the atty-client privilege a. Attorneyi.e. someone who is licensed to practice law in some jx, or someone who the client reasonably believes is licensed to practice law in some jx b. Clienti.e. someone or institution seeking advice c. Communicationi.e. information passed in either direction. This communication must be about the legal services (1) Communication can be written or oral d. Confidential communicationi.e. both the attorney and the client reasonably believe that their communication is not being overheard by outsiders (i.e. 3d parties who are not there to further the attorney-client relationship). 3. US v. Woodruff: failed to show up for trial. Govt wanted to ask Public Defender if he informed client of trial date and time.
II.
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made for the purpose of seeking legal advice or legal services. Attorney is only providing a notice function b. Communication is not based on something the client told the atty, but what someone else told the attorney to communicate to the client. 4. Upjohn v. US: Upjohn upper-mgmt found out that overseas affiliates may be bribing foreign dignitaries. Mgmt consulted attys who told them to seek info (via surveys) from their overseas mgrs. Co discloses to IRS the investigation, and IRS wants to see the surveys. a. Ct. App: Privilege only applies to senior management who have control over the legal issues in the company b. S.Ct: Rejects the control test. Privilege applies b/c communications (i.e. b/t Ees and counsel to obtain legal advice) concern matters w/in the scope of the Ees corporate duties. Ees knew they why they were being questioned, and also told the surveys were highly confidential. (1) Thus, atty-client privilege extends to lower level Ees (i.e. outside the control group of the corporation) and atty IF (a) purpose of the communication is to assist or obtain legal advice pertaining to the client AND Ees are aware of the purpose OR (b) Ees talking to atty at the direction of Ees supervisors or superiors OR (c) communications is w/in the scope of the Ees duty to act on behalf of the corporation (2) BUTthe privilege belongs to the corporationNOT the individual Ees. 5. City of SF: PI case. P injured and sued the city of SF. Ps counsel hired Dr. C to examine and diagnose P and report back to atty, so that atty could prepare for the lawsuit. wants info of Dr. Cs diagnosis. a. Held: Attorney-client privilege applies. Dr. C was an intermediary agent & considered the same as if the P was communicating these details to the atty. P gives details to Dr gives info to atty to prepare for the case. Dr. only transmitting necessary info to prepare for the case b. Thus, atty-client privilege may extend to communications by a 3d party agent by which info is transmitted to the atty for the purpose of giving the client legal advice or service. 6. Clark v. State: arrested for murdering wife. calls his divorce atty who advises to get rid of the murder weapon. Evid: Telephone operator listens to conversation. a. Held: Evid allowed. Conversation was not made to help solve the s legal problems (i.e. divorce)only to help him escape conviction. Not assisting the client in defense
a. Held: No atty-client privilege b/c info exchanged was not
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b. Also ruled that the interests of justice outweighs the need to protect this information (1) Atty-client privilege does not protect communication that facilitates criminal behavior 7. US v. Zolin: IRS wanted tape recordings b/t the Church of Scientology and their attorney. Argue that the tapes are w/in the crime-fraud exception. Seek an in-camera review. a. Held: Review by the district court allowedbut the party asserts a crime-fraud exception and is seeking an incamera review must make a threshold showing that there is a factual basis of a reasonable belief for the review. 8. HYPO: D charged w/ furnishing drug to V, a minor. V testifies and identifies D as the person who gave her pills. After the first day of trial, D disappears. A, Ds attorney, testifies that D had expressed apprehension about whether V would show up to testify against him, and that upon seeing V enter the courtroom, D departed. D is convicted by the jury. On appeal, D contends that it was error for the trial court to permit A to testify about Ds communication to him as it violated the Ds atty-client privilege rights. a. Atty-client privilege applies. Purpose of the relationship was to obtain legal advice/advice of their claim. Assume that D was asking the attorney to assess the weakness in the case. b. In absence of client, a lawyer who is present in court, is under a duty to claim the privilege for his client. 9. HYPO: D charged w/ exploding a destruction device, causes great bodily injury to V. V testifies about a bomb in a package, and draws a diagram of the bomb on the blackboard. Prosecutor calls, B, the court bailiff, who testifies, w/o objection, that while V was drawing the diagram, B heard D tell his lawyer, It was not quite like that. D is convicted and moves for a new trial on the grounds that Bs testimony violated his atty-client privilege a. Privilege waived--Did not make a timely objection b. Also is questionable whether D knew that the communication was confidential B. Physician-Patient Privilege/Therapist-Patient Privilege 1. Recognized by state statute 2. Rationale: Patients privacy interest outweighs medical evidence. Do not want to deter patients from seeking medical advice. 3. General requirements: a. Professional relationshipi.e. patient consulting a doctor for medical treatment, not a court-appointed psychiatrist where treatment is not sought b. Privilege is NOT RESTRICTED to communicationalso covers other info acquired by the doctor necessary to treat (e.g. doctors observations)
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c. Statements to doctor not pertaining to treatment = not

covered by the privilege
d. Privilege is easily waivedi.e. when the party puts their

mental/physical condition into controversy. (1) Prink v. Rockefeller Center: Wrongful death action. Prink either jumped or accidentally fell from the window and died. He had been seeing a psychiatrist for some time. Wife had also met with psychiatrist w/r/t husbands condition both before and after his death. Evid: Disclosure of wifes communication w/ the psychiatrist. (a) Held: No privilege. Husband would not have been able to claim this privilege if he had brought the suit b/c the suit puts into question the husbands mental state e. EXCEPTIONS (1) Some jx do not allow this privilege in criminal cases (2) Some jx require disclosure of some info by doctors (e.g. minors suspected of being sexually abused) 4. Jaffee v. Redmond: Police officer responded to fight in progress. Shot someone. Officer traumatized & sought therapy from a licensed social worker. Decedents family sued for wrongful death (state c/a) and 1983 action. Evid: handwritten notes from the social worker. a. S.Ct: Yes, will recognize psychotherapist privilege under 501. Privilege extends to licensed social workers. Rejects the balancing approach (i.e. privilege v. interest of justice) embraced by the 7th Cir. (1) Rationale: (a) Depends on confidence and trust (b) Serves the public interest by ensuring those who need therapy will get it (c) 50 states adopted the privilege (d) Extends the holding to licensed social workers otherwise would deny the poor ability to keep like conversations in confidence b. HYPO: A social worker is responsible for making a custody assessment and talks to the teenage children of a couple that it getting a divorce. In so doing, she assures the children of confidentiality. Are the childrens statements privileged? (1) No b/c not treating the childrenonly getting info to make a custody assessment 5. Menendez v. Superior: Lyle and Erik Menendez accused of killing their parents. Had been receiving psychological treatment from a psychologistconfessed to this psychologist. s trying to claim psychotherapist privileged. Govt seeks waiver based on dangerous-patient exception (since s made threats against the psychotherapist). a. Held: No privilege in the tapes where the doctor was threatened + doctor had reasonable cause to believe that others close to him were in danger
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(1) The dangerous patient exception applies whether the doctor chooses to disclose the threatening information to others or not C. Marital Privilege 1. Spouse-Witness Privilege: Prevents one spouse from giving adverse testimony against the other. a. Requirements: (1) Couple must be validly married @ time of the proceedings. Privilege ends when the marriage ends (2) Holder of the privilege is the witness-spouse, the person being asked to testify. The non-testifying spouse cannot assert the privilege (3) Privilege protects testimony regarding any subject. The communications do not have to be confidential (4) In federal courts, the privilege applies only to criminal cases b. Rationale: Preserve marital harmony 2. Marital Communications Privilege: Applies to confidential communications shared by marital partners. Also applies to acts performed in confidence to the spouse. a. Requirements: (1) Privilege DOES NOT TERMINATE WITH THE MARRIAGE (2) Both parties hold the privilege (2) Communication must have been confidential (3) Communication must have been made during a valid marriage. Confidential communications made before or after the marriage are not protected. (4) Privilege applies to both civil and criminal proceedings b. Rationale: Want to encourage confidential communications b/t husband and wife c. CA: Law does not apply if the confidential communication was made to commit or enable a crime d. EXCEPTION: Assault or battery against each other 3. Trammel v. US: importing heroine into the country. Wife was a co-conspirator, caught with drugs. Govt offers her leniency in exchange for her testimony against husband. She agrees. Husband asserts marital privilege. a. S.Ct: No privilege for the husband. The person being asked to testify is the holder of the privilegenot the person the testimony is going against. b. BUTstates trend is to restrict the privilege. (1) if the spouse-witness is willing to testify + purpose of the rule is to promote marital harmony, then here, no harmony to promote D. Clergy-Penitent Privilege 1. Majority states: Will not compel the priest to disclose knowledge he/she gained via confessional a. Minority: Not allowed to testify
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b. CA: Privilege can be invoked by either party in the relationship 2. General framework: a. Both the penitent and the clergy member hold the privilege b. The communication must be made in confidence c. Clergy member must be authorized or accustomed to hear such communications d. Clergy member must have a duty to keep those communications secret under the tenets of his or her religion or organization E. Other Privileges 1. Parent-child Privilege a. In re Grand Jury: 2 consolidated cases. First, father called to testify against son. Second, father charged w/ kidnapping and daughter asked to testify. (1) Held: No privilege recognized. (only 4 states recognize this privilege) (2) Policy: (a) Not clear that children are any more likely/unlikely to discuss private matters w/ their parents if privilege exists (b) Parents have a duty to children and a right to report/turn in their child if it is in the childs best interests (c) High social costs 2. News Reporters Privilege a. Matter of Farber: NY Times reporter doing investigative reporting on a murder case. Refused to turn over documents pertaining to the case, claiming that newsgathering would be impaired + right to protect this 1st A free speech/press clause (1) Held: No privilege + no 1st A rights violated. s 6th A rights supercede reporters rights under the state shield law (a) 6th A guarantee has a right to have compulsory processi.e. requiring that a newsperson or anyone else produce properly subpoenad documents in which has a legitimate reason to believe they would aid in his defense (2) Procedural protections to produce info when there is no legit requesti.e. before a reporter is forced to turn over docs for an in-camera review (a) Must determine that the person moving to qualify for the subpoena qualifies for the statutory privilege (b) Defense must show by fair preponderance of the evidence, there was a rsbl likelihood that the info sought by the subpoena was relevant and material to the defense, that it cannot be secured from any
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less intrusive sources, and that has a legitimate need to see/use it. 3. Informers Privilege a. Roviaro v. US: charged w/ possession and transporting of heroin. Informant was a party to this transaction. 2 police officers who witnessed all or part of the transaction, and @ trial, testify to the transaction. demands name of the informant so that he can know who he was accused of transporting drugs to. Govt claims privileged info. (1) S.Ct. held: ID of informant is required to be disclosed b/c informants testimony may be helpful/relevant to s case. Informant was a material part of the transaction & was present when the alleged crime took place & was the only witness who could testify whether the knowingly transported drugs. (a) Must reveal informers ID when his testimony may be relevant or helpful to the accused. i) Balance: s rt in preparing defense v. public interest in protecting law enforcement capabilities b. McCray v. Illinois: arrested w/o a warrant. Had heroine on him. Arresting officer testified that the informant was highly reliable and lead police to here & that informant had worked w/ them before to capture other people. wants informants name. (1) S.Ct held: Name of informant does NOT need to be disclosed. (2) Here, informants communication only bore on existence of probable cause for the arrest, not on innocence or guilt. No need to disclose informants ID if only going to the probable cause for the arrestnot whether is guilty. (3) Informants ID would not assist in s preparation of his case. c. HYPO: X prosecuted for possession of heroin. At a pretrial hearing on Xs motion to suppress, A, a police officer, testifies that he received a telephone call from a reliable informer who told him that X was selling heroin from her apts and that she kept it in a telephone jack on the wall of the bedroom; and that A proceeded to Xs apt, w/o a warrant, found the heroine in the telephone jack and arrested X in the apartment. On cross-examination, A testifies that he did not know whether the informer had ever been in Xs apt or in what way he obtained his info about the heroin location. X demands disclosure of the informers id, in case that the informer could testify that another person put the heroin in the telephone jack. Prosecutor claims privilege. (1) Privilege should be sustained. Issue: whether the circumstances indicate a rsbl possibility that the informer could give testimony that might exonerate X. No
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evidence to suggest that here. Does not matter whether informer was in Xs apt b/c this info could have been secured from others d. HYPO: X is prosecuted for the sale of heroin. At the preliminary hearing, A, a police officer, testifies that he gave an informer a ten-dollar bill dusted with fluorescent powder, that he watched the informer go into an apt and later come out with a bindle of heroin, that A then knocked on the apt door, that X opened the door and was placed under arrest, and that X had traces of fluorescent powder on his hands. X wants the name of the informer. Prosecutor claims privilege. (1) No privilege here. Informer is a participant in the crime against X. Thus, the informer is clearly a material witness on the issue of s guiltor whether there is sufficient evidence to go to trial.
F. Fifth Amendment Privilege: No personshall be compelled in

any criminal case to be a witness against himself 1. Privilege Violation when: a. Compulsion b. Testimonial Evidence c. Self-incrimination 2. Rationale: Unfair to force a person to choose b/t perjury (i.e. lie) and self-incrimination (i.e. if they tell the truth) and contempt of court (i.e. if they refuse to say anything) 3. 2 branches of the privilege a. Accused (1) The privilege arises when the accused is taken into custody or deprived of freedom (2) The accused has a right not to respond to questions (3) This right does not encompass non-testimonial evidence, such as blood samples or routine information (4) The right can be waived by the accused (a) e.g. Once they talk, it can be used against them in a later stage of the case (b) BUTif the person waives the privilege at one stage, it does not mean that they waive it entirely i) Except if a person testifies on direct, then they waive the privilege of any testimony during the scope of their direct examination b. Every Witness (1) The privilege applies to every person who is asked to give testimony (2) The privilege applies in every context in which the Govt has the power to subpoena a person to attend a proceeding as a witness and to hold him or her in contempt of court if he or she refuses (3) The privilege allows a person the right not to answer a question only if the true answer would tend to incriminate
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him or her for a crime for which he or she can still be punished. (a) Thus, if the SOL has run or a person is given immunity, then they cannot invoke the privilege
I.
WRITINGS Best Evidence Rule A. Applies when someone is trying to use inferior evidence instead of original writing/recording/photograph to prove the content of their statement 1. Rationale: Prevent fraud + Avoid unintentional mistakes in copying + Avoid good faith errors in oral testimony 2. Test a. Applies: When you are saying, If you were looking at this (writing or photo), this is what you would see b. Does NOT apply: When you are trying to prove that an EVENT happened. 3. Analysis: To prove the CONTENT of a writing, you must: a. Satisfy the best evidence rule b. Satisfy the hearsay rule (ask, is the writing asserting something?) B. FRE 1002, Requirement of Original: To prove the content of a writing, recording, or photograph, the original writing, recording, or photograph is REQUIRED, except as otherwise provided in these rules of by Act of Congress. 1. Key: Is the party trying to prove what is IN the writing? 2. Herzig v. Swift and Co: Wrongful death action. Deceased was a partner at a law firm. @ trial, P offers testimony of another partner of earnings that he and the deceased shared. Testimony objected as not the best evidence. a. Held: BE rule does not apply. Not trying to show what was in the books, but what the partner earned (1) Only require the production of the original IF trying to prove the contents of a writing b. Key: Is it necessary to go through the writing to reach your conclusion? 3. Meyers v. US: Prosecution for subornation of perjury. Prosecution produced oral testimony of what Lamarr had said at the hearing. Evid: Transcript available and produced. argues that transcript should not have been offered. a. Held: Best evidence rule does not apply b/c the issue is not what is in the transcript, but what Lamarr had said. (1) BE rule would have applied if Lamarr would have read what he said. (2) This is also not hearsay b/c not trying to prove the truth of the matter asserted, but the oppositethe falsity of the testimony
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C. Scope of the best evidence rule 1. FRE 1001, Definitions: For purposes of this article, the following
definitions are applicable: (1) Writings and recordings: Writings and recordings consist of letters, words, or numbers, or their equivalent, set down by handwriting, typewriting, printing, photostating, photographing, magnetic impulse, mechanical or electronic recording, or other form of data compilation. (2) Photographs: Photographs include still photographs, Xray films, videotapes, and motion pictures. (3) Original: An original of a writing or recording is the writing or recording itself or any counterpart intended to have the same effect by a person executing or issuing it. An original of a photograph includes the negative or any print therefrom. If data are stored in a computer or similar device, any printout or other output readable by sight, shown to reflect the data accurately, is an original. [e.g. a carboncopy of a credit card receipt] (4) Duplicate: A duplicate is a counterpart produced by the same impression as the original, or from the same matrix, or by means of photography, including enlargements and miniatures, or by mechanical or electronic re-recording, or by chemical reproduction, or by other equivalent techniques which accurately reproduces the original. 2. People v. Enskat: charged w/ distributing an obscene film. Offered still pictures of portions of the film. Best evidence objection. a. Held: Overruled. Can allow pictures and oral testimony of the police in lieu of the film itself. D. FRE 1003, Admissibility of Duplicates: A duplicate is admissible to the same extent as an original unless (1) a genuine question is raised as to the authenticity of the original or (2) in the circumstances it would be unfair to admit the duplicate in lieu of the original. 1. e.g. of unfair: admitting a black and white photograph when the original is color 2. Duplicates are considered originals, and thus, take precedence over secondary evidence. E. 2 ways to prove the content of a record: 1. Produce it 2. Present excuse for not producing it a. Circumstances when you are not required to use the original/duplicate and secondary evidence may be ok FRE 1004, Admissibility of Other Evidence of Contents: The original is NOT REQUIRED, and other evidence of the contents of a writing, recording, or photograph is admissible if
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have been destroyed, unless the proponent lost or destroyed them in bad faith; or (2) Original Not Obtainable. No original can be obtained by any available judicial process or procedure; or (3) Original in Possession of Opponent. At a time when an original was under the control of the party against whom offered, that party was put on notice, by the pleadings or otherwise, that the contents would be a subject of proof at the hearing, and that party does not produce the original at the hearing; or (4) Collateral Matters. The writing, recording, or photograph is not closely related to a controlling issue. b. No distinctions should be made b/t secondary evidence F. Making a best evidence objection (when one is trying to prove the contents of the writing) 1. Can object, even if the evidence is not hearsay or any other exception 2. e.g. Q: Did you hear from Mr. Bushmat after that?/ A: Yes, I got a letter from him the next day./ Q: What did the letter say? G. Sirico v. Cotto: PI case. Evid: Doctor testifying to what he saw on the x-raybased on his written report, not the actual x-rays. 1. Held: Testimony inadmissible. a. No reason for not producing the x-rays. X-rays are considered to be photographs (1) Could possibly be admissible to offer an exhibit of the photograph of the x-ray negative transparency in front of the light b/c it would be considered a duplicate. H. Harvard Law Review case note: Tape recording of damaging admissions (i.e. incriminating statements) obtained by a microphone in a jail cell. Policy policy transfers these recordings onto a disc. Recording admitted in trial court. Appellate court holding: Recording is not the best evidence, and should have been excluded. 1. Would be a duplicate under FRE 1004. 2. Excuse for non-production of the original is sufficient b/c nothing to suggest that the police destroyed it in bad faith. a. Even if a witness testifies that the police destroyed the tape in bad faith, there is someone out there who heard the original conversation and who can testify (1) This would be hearsay, but excepted as an admission of a party opponent I. HYPO: An eyewitness testifies that she saw coming out of neighbors house w/ a stereo. If permitted, she would testify that she did not know at the time that a burglary was in progress, but she read in the newspaper the next day that there had been a burglary, so she called the police. The newspaper has not been produced. Best evidence objection.
(1) Originals are Lost or Destroyed. All originals are lost or
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issue. b. No hearsay problem here b/c not using the newspaper to prove the truth of the matter asserted, but to prove the effect on the eyewitness K. HYPO: Party offers a typewritten copy of important hospital records. The originals exist, but they are not subject to subpoena. The originals are required by law to be kept in the hospital. The relevant parts of the record are handwritten by the physician. The proponent produces a typed copyno reason is provided for not providing a xeroxed copy. Best evidence objection. a. Handwritten= original. Best evidence rule applies. The handwritten physicians notes should be xeroxed. II. Authentication A. FRE 901, Requirement of Authentication or Identification: (a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims. 1. In short, authentication is making a showing that an item/thing/document is what it purports to be 2. Really is just an application of relevancy 3. Even once get past laying the foundation, still have to get to admissibility B. Governed by FRE 104(b) & its procedure 1. Judge determines whether there is sufficient evidence for a reasonable jury to find the evidence authentic a. Judge should admit the document if a 901 showing is made even if the judge believes it is not authentic b. EVIDENCE THAT THE JUDGE USES TO DETERMINE WHETHER THE THING IS AUTHENTIC, MUST BE ADMISSIBLE 2. Jury decides whether evidence is authentic C. FRE 902, SOME DOCUMENTS ARE SELF-AUTHENTICADD HERE D. FRE 901(b)(1)-(10), Requirement of Authentication or Identification By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule. (1) Testimony of witness with knowledge. Testimony that a matter is what it is claimed to be. (2) Non-expert opinion on handwriting. Non-expert opinion as to the genuineness of handwriting, based upon familiarity not acquired for purposes of this litigation. (3) Comparison by trier or expert witness. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated. (4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances
a. BE does not applywhat is in the newspaper is a collateral
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Voice identification. Identification of a voice, whether heard firsthand or through mechanical or electronic transmission or recording, by opinion based upon hearing the voice at any time under circumstances connecting it with the alleged speaker (6) Telephone conversation. Telephone conversations, by evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business, if (A) in the case of a person, circumstances, including self-identification, show the person answering to be the one called, or (B) in the case of a business, the call was made to a place of business and the conversation related to business reasonably transacted over the telephone. (7) Public records or reports. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office, or a purported public record, report, statement, or data compilation, in any form, is from the public office where items of this nature are kept (8) Ancient documents or data compilation. Evidence that a document or data compilation, in any form, (A) is in such condition as to create no suspicion concerning its authenticity, (B) was in a place where it, if authentic, would likely be, and (C) has been in existence 20 years of more at the time it is offered. (9) Process or system. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result (10) Methods provided by statute or rule. Any method of authentication or identification provided by Act of congress or by other rules prescribed by the Supreme Court pursuant to statutory authority E. US v. Dockins: Dockins convicted for firearm w/ prior felony. Trying to prove that a judgment from a Carl Smith and a fingerprint/signature card to show the arrest from a Carl Smith was also Dockinsto establish Dockins status as a felon. Neither exhibit was under seal or certified. 1. Held: Documents not self-authenticating since not certified under seal. Since custodian of police records did not testify, there is nothing to show that these were actual records from the Denver Police Department F. Keegan v. Green Giant Co: P complained of injury produced by a piece of metal which had allegedly been included in a can of peas. Evid: Cans label. Held: Not enough 1. But under FRE, this label would be considered selfauthenticating. G. HYPO: Letter from the law school offering to show you were admitted to the law school. P purports the letter is: from someone w/ the authority to give admission to the law school. How to make a foundation 1. Testimony of a witness w/ knowledge of the signature of the person who sent the letter out
(5)
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2. Expert opinion on the handwriting 3. Distinctive characteristics (stretch)i.e. this is a response to your application 4. Authentication is not limited to what is explicit in 901. Also authenticated by your very presence at the law schooli.e. that they allowed you to stay here and take classes. H. First State Bank of Dentron v. Maryland Casualty Co: fire @ Ps house. They want to collect on their ins. policy. Ins co wants to show that Mills (P) set the fire. Evid: Emergency dispatcher called Mills new residence and he wasnt home @ time of the fire. Telephone conversation b/t dispatcher and speaker, who stated that it was Mills residence and that Mills wasnt home. P argues no authenticationthat the person who picked up the phone did not identify themselves as Mr. Mills 1. Held: Enough evid to support a finding by a reasonable jury that a phone call was what it purported to be 2. Calling the correct number + having someone answer that it was the Mills residence = sufficient to support a finding that someone was at the Mills house, but also that Mills was not home 3. Statement, Mills is not at home = hearsay. a. Admissible under the present sense impression b. Probably admissible under the residual exception I. HYPO, p. 699ADD HERE
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OPINION EVIDENCE AND EXPERT WITNESSES I. In general, for a witness to give testimonial evidence, he must be competent A. FRE 601, General Rule of Competency: Every person is competent to be a witness except as otherwise provided in these rules. B. 3 conditions to a competent witness: 1. He/She must understand the duty to tell the truth 2. He/She must have a minimal ability to communicate her info to the trier of fact 3. He/She must have personal knowledge of the info about which he or she will testify a. FRE 602: A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. Evidence to prove personal knowledge, may, but need not, consist of the witness own testimony. This rule is subject to the provisions of Rule 703, relating to opinion testimony by expert witnesses. Opinion Testimony by Non-expert Witness A. In general lay witness is not permitted to testify to opinions or conclusionsonly to facts. 1. Rationale: Leave the trier of fact to come to his own conclusions 2. e.g. Fact: Car was red. v. Opinion: Driver of the car was driving carelessly. B. Exception: Sometimes lay witnesses are allowed to testify in the form of opinions or inferences. 1. FRE 701: If the witness is not testifying as an expert, the witness testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702. 2. Rationale: Some perceptions cannot be boiled down to the facts alone w/o any opinion (e.g. describing the speed of a car, mental state or sanity, matters of taste/smell/appearance, handwriting, someones age/weight) C. Holden: convicted of 1st degree murder. Presented police w/ alibi that he had been w/ Jones during the murder. Jones questioned in the presence of . winked to Jones. Prosecutor asked Jones what the wink was supposed to mean. Jones replied that he thought it meant that he was supposed to provide an alibi. 1. Dissent: Testimony of the wink should not have been admitted b/c there was no way to know whether it was meant to communicate anything. 2. This is lay-witness opinion testimony. Testimony was not based on his rational perception.
II.
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D. HYPO: charged w/ bank robbery. Teller is testifying at trial,
saying that she gave the $$ to man w/ bandana over his face. Asked if she can id the bandit, she says, Im not sure, but I think so. Asked if she sees anyone resembling the bandit in the courtroom, she points to and replies, That man, sitting at the table there. I think that he is the robber. moves to strike. Motion granted? 1. No, not in this situation b/c this opinion testimony could help the trier of fact in a fact at issue. E. Govt of the Virgin Islands v. Knight: struck Vs head w/ a pistol, gun discharged and killed V. Dispute is whether the shooting was accidental or not. Evid: Eyewitness who thinks that the shooting was accidental & police (who did not witness the crime). 1. Held: Exclude the police opinion, but District Ct erred in excluding the eyewitness opinion testimony. 2. Rationale: Eyewitness testimony is difficult to explain in only detailed factual terms III. Opinion Testimony by Expert Witness A. FRE 702: If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise, if (1) the testimony is based upon sufficient facts or data, (2) the testimony is the produce of reliable principles and methods, and (3) the witness has applied the principles and methods reliably to the facts of the case B. General rules; 1. Subject of the testimony relates to material that is beyond the common experience of the trier of fact. In other words, the subject is based on scientific, technical, or other specialized knowledge that will assist the juror. 2. The witness must be qualified as an expert on the subject based on his or her training, experience, or education. Formal education is not required. 3. The witness has applied reliable methods based on their training, experience, or education to the facts of the case and will present opinion testimony based on such application. C. FRE 703: The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence in order for the opinion or inference to be admitted. Facts or data that are otherwise inadmissible shall not be disclosed to the jury by the proponent of the opinion or inference unless the court determines that their probative value in
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assisting the jury to evaluate the experts opinion substantially outweighs their prejudicial effect. 1. Expert can rely on 3 types of info: a. Personal knowledge b. Info made known to the expert in preparation for litigation (e.g. facts learned @ trial itself, testimony based on an assumption that what a particular witness said was true, statements from family members, reports) c. Secondary evidence (i.e. reports from 3d parties)these underlying facts used by the expert to form his/her opinion need NOT be admissiblej D. Expert can offer testimony that embraces an ultimate issue to be decided by the trier of fact 1. FRE 704: (a) Except as provided in subdivision (b), testimony in the form of an opinion of inference otherwise admissible is not objectionable b/c it embraces an ultimate issue to be decided by the trier of fact 2. Limits: a. Expert cannot testify in legal conclusions or legal terms of art/language of the statute being tried for (1) HYPO: If statute makes assault causing serious bodily injury. Medical expert wants to be allowed to testify that the victim suffered serious bodily injury. (a) Yes, probably admissible b/c even though the language is statutory, it is the kind of language that people generally use in everyday conversationsnot solely a legal term of art b. Expert cannot testify based on personal assessment of witness credibility. c. Expert can respond to hypos that assume that certain facts are true d. Expert cannot testify to ultimate mental state of a criminal including responding to hypothetical questions that mirror the fact pattern in a case (FRE 704(b)) (1) But, can testify to whether a fact similar to those in evidence are consistent w/ the conduct of the hypothetical person suffering from the mental condition) (2) HYPO: Sue is resisting the states efforts to commit her to a mental hospital. She wants Abigail to testify that Sue is eccentric, but perfectly capable of functioning and that she has no mental disease or disease. Abigail and Sue have known each other for 12 years. Abigail is also the author of a newspaper advice column which is syndicated to over 300 newspapers, and that she has an uncanny knack for understanding personal problems. Is As testimony admissible? (a) Not admissible as expert testimony b/c mental health requires expertise (MD, PhD, or social worker).
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(b) Can offer evidence as a laywitness as character evidence based on opinion or reputation. Can also offer specific instances of conduct. (3) HYPO: Stan is accused of murder, but pleads not guilty by reason of insanity. Stan introduces 3 psychiatrists who have examined him, and who testify that Stan is psychotic who has been suffering from psychotic episodes for 7 years. Also testify that @ time of killing, Stan was deluded, that he could not have resisted the impulse to kill. Admissible? (a) Can testify to whether suffers from the psychotic condition (b) Cannot testify to propensity to kill i) BUTcan ask, Is this persons behavior consistent w/ a person w/ a psychotic condition? E. State v. Odom: charged w/ possession of cocaine w/ intent to distribute. claims crack was for his own use. Evid: Police detective who offered his expert opinion that possession of the coke was w/ the intent to distribute & not for personal use 1. Held: Admissible a. Expert specially trained in crack distribution (i.e. value, quantity of drugs, packaging)this was experience beyond the ordinary experience of the trier of fact/average juror. b. Expert did not express an ultimate opinion on s guilt or innocenceonly presenting opinion to s conduct 2. BUT, inadmissible under FRE a. FRE 704(b): No expert witness testifying w/r/t the mental state or condition of a in a criminal case may state an opinion or inference as to whether the did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. Such ultimate issues are matters for the trier of fact alone. 3. BUT, expert can answer hypothetical questions in terms of opinion and inference, giving reasons for his/her answer. a. The hypo can ask generally, e.g. what amount of crack cocaine amounts to personal use? b. Butthe hypo cannot mirror the facts in the present case. F. US v. Scop: indicted for mail fraud, securities fraud, conspiracy in connection w/ trading of stock. Evid: Govts expert, chief investigator for SEC, whose testimony was based on info gotten from Sarcinelli (a co-conspirator). 1. Experts opinion should have been excluded b/c (1) expert offered legal conclusions (i.e. used legal terms of art from the statutory language) & (2) expert opinion was based on his personal assessment of another witness credibility (i.e. Sarcinellisfor the jury to decide whether the co-conspiratory should be trustworthy) N. Ingram v. McCuiston: PI action by pregnant woman in accident who is trying to recover for physical & emotional injury. Doctor
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testifying as to what may have caused her injury. Evid: two hypothetical questions, 6 pages long. 1. Held: Error to allow these questions to be asked to the doctor b/c it included facts not in evidence and not in issue. 2. Hypothetical question [posed to expert] can be based on facts not in evidence, but cannot be based on facts against the facts in evidence or imaginary facts O. US v. Brown: travelling from Jamaica to Bermuda. US Customs finds cocaine in her luggage. claims no knowledge. Prosecution trying to refute this by showing that the drug value was so high that an innocent person would not have been entrusted with that amount of drugs. Evid: DEA expert testimony who relied on a Bermuda informant to give him the going rate for coke in Bermuda. 1. Held: Admissible. Experts source of information was one that was regularly relied upon in this situation. a. FRE 703: Expert can rely on information that was not itself admissible. b. Thus, hearsay evidence from authorities in Bermuda is acceptable. (1) Also no violation of the confrontation clause as long as the hearsay evidence is w/in a firmly rooted exception & have guarantees of trustworthiness. P. People v. Garbly: Assault and robbery of one male by a group of friends. s arrested w/ attempted murder, assault w/ deadly weapon, robbery, and STEP (offense directed @ street gangs). To provide this last charge, prosecution needed to prove a pattern of criminal gang activity. Evid: Detective expert on street gangs who was trying to show whether the attack was gang-related. Expert asked, in his opinion, was the beating was typical gang-activity that had its purpose to secure its neighborhood. 1. Held: Admissible w/ a limiting instruction. a. Hypo was rooted w/ facts in the evidence b. Expert relied on sources that people in his field regularly rely upon Q. Criteria for Specialized Knowledge Expert Testimony 1. (Old test) Frye test: Evidence of science theory of technique is inadmissible unless they pass the general acceptance in the particular field to which it belongs. 2. Daubert v. Merrell Dow: Benedictin, alleged to be antinausea. Ingested by the mother and children have birth defects sue mfr. s expert testifies no connection b/t drug and defects. Evid: Ps 8 experts testify that the drugs caused fetal defects. Studies included laboratory experiments, studies of chemical structure of the drug, animal studies, re-analysis of prior studies. a. New standard: Trial judge needs to make sure that scientific testimony or other specialized knowledge relevant and reliable.
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method is applied to the case. b. Factors to help the trial judge (not required, only a tool for guidance: (1) Can the experts theory or technique be tested, and if so, has it been tested? (2) Has the experts theory or technique been published in journals subject to peer review? (3) w/r/t a particular technique, what is its known or potential rate of error, are there standards for controlling the techniques operation? If so, were these used in developing the experts testimony? (4) Has the experts theory or technique achieved general acceptance with a relevant community? (5) Whether the experts are testifying about matters stemming directly from research w/o regard to litigation OR whether theories developed solely for litigation (6) Whether expert is making a big leap in making a conclusion based on the data in front of them (7) Whether the expert has adequately accounted for alternative explanations c. GE v. Joiner: P argued that PCBs caused lung cancer. Dist Ct granted SJ against P, excluded expert testimony. 11th Circuit used a higher std than Daubert to review the expert testimony. (1) Held: Appropriate std of review is abuse of discretion for ALL evid rulings 3. Kumho Tire Company v. Carmichael: P in accident where tire blew out. P arguing that tire is defective (i.e. tread was separated). Evid: Ps expert testimony on someone who did a visual inspection and ruled out Ps negligence (i.e. underinflating the tire) as the cause of the accident. Testimony excluded by the district court a. Held: No abuse of discretion in excluding the testimony as unreliable: (1) No papers/articles to validate experts approach (2) Expert could not make distinctions b/t his own four factor test (3) Expert couldnt determine how far that truck had actually gone b. S.Ct expands Daubert to apply to ALL expert testimony whether scientific, technical, or specialized (1) Rationale: Difficult for judges to distinguish b/t scientific or technical evidence. 4. US v. Saelee: indicted w/ importing opium. Shipped opium to US; writing on the pkgs on the labels. Evid: Govt handwriting expert to testify that wrote the labels on the packages (i.e. that s handwriting and labels handwriting are similar).
(1) Judge must look @ scientific method and how the
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under Daubert. (1) Questionable as to probative valuei.e. whether expert could tell handwriting any better than layperson (2) Lack of peer review + no empirical studies (3) Questionable range of error (4) No controlling stds (5) No clear theory or technique b. re: whether this testimony could be let in as lay opinion (1) No b/c this witness had a long history as an expert (i.e. he was trained as a forensic document analyst) (2) Also, filings made it clear that this witness would be testifying as an expert. 5. Polygraph Tests a. State v. Porter: Issue is whether Connecticut should stick with its per se rule of excluding the polygraph test as evidence? (1) Held: Yes. Not sufficiently reliable. Still evid of countermeasures: ppl who are able to train themselves to avoid a bad result on the polygraph tests b. US v. Piccionna: charged w/ perjury to a Grand Jury in an antitrust case. wants to introduce evid that he passed his polygraph test. (1) 11 Cir. held: No per se rule against the admission of polygraph evidence. Polygraphs can be admitted in certain circumstances: (a) Stipulation by the other side before the test is given i.e. agreement on the nature of questions, the examiner, and the purpose of asking the questions (b) Can be used to impeach or corroborate the testimony of a witness. Need: i) Notice ii) Allowing the other side to give its own test iii) Use of the testimony comports w/ the FRE c. US v. Scheffer: Airman at air force base. Disappears for 14 days. fails urine test. wants to introduce polygraph evidence showing that he told the truth and did not take drugs. Military rule of evidence: per se rule against polygraph evidence. (1) Issue: Does this violate s constitutional rt to present a defense? (2) S.Ct: No; any jx that wants to keep polygraph evidence out does not violate the constitutional right of the . (a) Rationale: State and federal govts have a legitimate interest that reliable evidence be presented to the trier of fact i) May invade the function of the jury by determining the credibility of witnesses
a. Held: Inadmissible. Could not pass muster as expert opinion
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(b) Also distinguishes this case from others where polygraph was essential to bolster s credibility d. HYPO: [In a jx that excludes polygraphs on grounds of unreliability]. is accused of selling national security secrets. She confessed to the crime, but is now trying to convince the jury not to believe the confession. She claims that she confessed only b/c the investigator threatened her family. The investigator denies making any such threats. Prosecution wants to put into evidence testimony that just before she confessed, she failed a polygraph test. Admissible? (1) Yes. Not trying to show that the test results are true. Only showing the effect on the i.e. that she had a reason for confessing. 6. Sobriety tests a. US v. Horn: charged w/ driving while intoxicated. Given 3 Field Sobriety Tests (Horizontal Gaze, Walk and Turn, One Leg Stand). Issue: Could the results of these tests be used as direct evidence that was intoxicated? (1) Held: Tests can be allowed in as CIRCUMSTANTIAL EVID, but cannot use technical terms in the testimony (a) Cannot use the tests to prove actual blood alcohol level (b) Officer can only offer lay opinion as to the sobriety of the person (2) Tests fails the first two Daubert factors. No real scientific basis 7. Witness Identification a. State v. Chapple: Drug deal gone wrong. possibly involved in murdering several drug dealers b/c he did not intend to pay for the drugs. Two eyewitnesses, bro and sis, shown a line-up and chooses another guy. Later, is shown another photo-line up, but takes out the previously identified from the choices, so chooses . Evid: s expert testimony on the reliability on id and memory (1) Held: Expert testimony should have been included. Expert is not testifying to the truthfulness, only to the accuracy that jury could use in applying to the weight of witnesses testimony. (2) Especially important here b/c this was the only evid linking to the crime.
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Evidence OutlineSpring 2004

4LawSchool.com Outlines Bank

Evidence OutlineSpring 2004

Evidence OutlineSpring 2004

Evidence OutlineSpring 2004

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D. Old Chief v. US: charged w/ possession of a firearm by anyone

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A. FRE 404(a): Evidence of a persons character or a trait of character

3. General rule: Prosecution cannot offer character evidence

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5. Holloran v. Virginia Chemicals Inc: P, auto mechanic, suing

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G. US v. Platero: V goes to bar w/ co-worker. Theyre stopped by

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a. Evid will be admitted if ct is satisfied that the evid is relevant

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a. Probably admissible, even though does not discuss same

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a. Held: Admissible, but can give explanation why he pled

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a. Would also fit under Rule 803(3)showing the state of mind

P. US v. Hernandez: convicted of possession/distribution of cocaine.

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T. US v. Zenni: US govt inspecting bookies apt. Evid: Calls to s apt

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W. US v. Suarez: accused of selling cocaine + conspiracy. Evid:

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b. **Onwauchis test to distinguish 104(a) and 104(b)**

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b. The statement must one of identification of a person made

4. US v. Owens: Correctional officer was attacked and beaten by

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5. Soles v. State: S convicted of murdering L. Fathers testimony

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(1) Probably inadmissible b/c nothing to suggest that the

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b. Onwauchis test to distinguish 104(a) and 104(b)