Evidence Outline

EVIDENCE MUST SURVIVE ALL RULES TO BE ADMISSIBLE

21/11/2012 07:39:00

I. Federal Rules of Evidence - Background A. What are the Federal Rules of Evidence? o A set of restrictions that federal courts place on attorneys who wish to submit evidence to a trier of fact. Generous view towards admissibility Balanced against concerns re: confusing jurors, wasting time, or intruding on protected social interests. B. Reasons the FRE exclude evidence: o (1) protect jury from misleading information o (2) eliminate unnecessary delay/promote efficiency o (3) protect a social interest (i.e., confidential relationships) o (4) ensure evidence is reliable C. Who wrote the Rules? o Most were proposed by an Advisory Committee of experts A few originated in Congress All enacted by Congress (sometimes with changes) D. Types of Evidence o Most of the Rules apply to all types: (1) Oral Testimony witnesses speaking from the witness stand: (a) Fact witnesses Perceived facts related to the lawsuit and testify about those facts o i.e., coworker heard admit she caused an accident o Includes eye-witnesses (b) Expert witnesses Use specialized knowledge to interpret evidence or explain it to the jury Need no first hand knowledge (c) Character witnesses Testify about the good or bad character of a party or witness Neednt have perceived any fact related to the controversy (2) Real Evidence any physical evidence a party claims played a direct role in the controversy i.e., the stick used to batter someone

NB: Must be authenticated by proof o Via authentication procedures (Rules 901-3) (2)(a) Documentary Evidence writing or recording of information Subcategory of real evidence o Must be authenticated (3) Demonstrative Evidence pretend evidence; played no actual role in the disputed events i.e., charts, tables, pictures, maps, graphs, reenactments, etc. NB: Open to abuse; judges are cautious (5) Stipulations allows both parties to stipulate that a fact is true for purposes of litigation Both parties agree to exact language Usually minor facts (6) Judicial Notice trial judge may take judicial notice of a fact thats indisputably true Must be generally known or accurately and readily determined by consulting an unimpeachable source. i.e., Boston is in Massachusetts o Photographs and Videos as Evidence May be either real or demonstrative evidence: Real evidence where a photo or video depicts the events of a controversy directly i.e., tape of a robbery Demonstrative evidence where a photo or video illustrates an aspect of the dispute i.e., photo of the block and surroundings where a murder occurred o Circumstantial versus Direct Evidence Circumstantial Evidence: requires the jury to make an inference connecting the evidence with a disputed fact Evidence Inference Fact i.e., witness testifies he saw washing blood off his hands shortly after victim was killed (to prove killed the victim) Direct Evidence: directly establishes a contested fact; requires no inferential bridge Evidence Fact i.e., witness testifies he saw plunge a dagger into victims chest (to prove that killed victim) NB: The distinction is gradual and fuzzy, and has no legal effect. Opposite ends of a spectrum, not separate categories Legally weighed equally; distinction is rhetorical.

A verdict may rest entirely on circumstantial evidence But, the fewer inferences required, the more persuasive evidence tends to be. o You should always search for evidence that requires the fewest possible inferences. Huss. NB: Framing is important; we often build assumptions into our accounts of things I saw him take the ring I saw him steal the ring

II. Scope of the Federal Rules of Evidence A. Where do the Rules apply? o The rules apply broadly o Scope governed by Rules 101 & 1101: Rule 101. Scope; Definitions (a) These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions are set out in Rule 1101. Rule 1101. Applicability of the Rules (a) To Courts and Judges. These rules apply to proceedings before: United States District Courts; United States Bankruptcy and Magistrate judges; United States Courts of Appeals; The United States Court of Federal Claims; and The District Courts of Guam, the Virgin Islands, and the Northern Mariana Islands o Take Away: Mandatory in Federal Courts only But 40+ states have adopted state codes very similar to the federal rules In common law states, FRE still persuasive Not mandatory in the USSC USSC may use them for guidance Not mandatory for administrative agencies (who are free to adopt them if they choose) But FRE still very persuasive B. When do the Rules apply? o The rules only apply to the main event TRIAL Both civil and criminal trials Ask: proceedings resemble a trial?

Governed by Rule 1101: Rule 1101(b). Applicability of the Rules To Cases and Proceedings. These rules apply in: civil cases and proceedings, including bankruptcy, admiralty, and maritime cases; criminal cases and proceedings; and contempt proceedings, except those in which the court may act summarily Check 1101(c) & (d) for exceptions o Exceptions: (1) The rules related to privilege apply in all federal court proceedings, not only at trial: Rule 1101(c). Rules on Privilege The rules on privilege apply to all stages of a case or proceeding. Reasoning: waiving privilege in grand jury proceedings (for example) would ruin that privilege for the entire criminal proceeding. (2) Rules do not apply during preliminary determinations, grand jury proceedings, and other miscellaneous proceedings: Rule 1101(d). Exceptions. These rules except for those on privilegedo not apply to the following: o (1) the courts determination, under Rule 104(a), on a preliminary question of fact governing admissibility; o (2) grand-jury proceedings; and o (3) miscellaneous proceedings, such as: extradition or rendition; issuing an arrest warrant, criminal summons, or search warrant; a preliminary examination in a criminal case; sentencing; granting or revoking probation or supervised release; and considering whether to release on bail or otherwise. NB: Not an exhaustive list; judges may disregard rules during other hearings resembling those listed in Rule 1101(d) (3). o Take Away: FRE only applicable at trial Both criminal and civil proceedings Not applicable in grand-jury proceedings, pre- and post-trial hearings, preliminary determinations of fact, etc. o

Not applicable in summary contempt proceedings (see Rule 1101(b)). Except privilege rules, which are always in effect

Scope Overview: see flowchart on page 30 of the textbook. III. Objections and Limiting Instructions A. Raising Evidentiary Objections o FRE rely on the adversary system to identify inadmissible evidence. Therefore, judges rely on parties to identify defects and raise objections about an opponents evidence. o Several ways to object to opponents evidence: (1) Pretrial Motions: Allow a party to attack or defend key pieces of evidence before trial Three types: (a) Motions in limine at the threshold o Filed either to exclude an opponents piece of evidence, or to secure permission to introduce a potentially contested piece of ones own evidence before trial. o Three advantages: (i) allows more planning of trial strategy (ii) allows for more lengthy/sophisticated args (iii) insulates defeat from jury (b) Motions to suppress o Claims that the opponents evidence was illegally obtained o Legal issues generally governed by criminal procedure (c) Pretrial motions for summary judgment o Civil cases only o Must argue there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (2) Objections Made During Trial: Procedure for objecting to evidence is governed by Rule 103: Rule 103. Rulings on Evidence. (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only o (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; . . .

o NB: Failure to follow procedural steps outlined in Rule

Take 103 forfeits the issue on appeal. Away: A. Two mechanisms for disputing evidence at trial: (i) Objection Objections are made before the opponent introduces potentially inadmissible evidence (i.e., objecting to a witness as incompetent before they testify.) (ii) Motion to strike Made after disputed evidence has already entered the record. i.e., where a witness answers an irrelevant question so quickly that opposing counsel has no time to object Opposing party may move to strike the evidence at any point after its irrelevance emerges. B. Objection/Motion must be timely Timely if lawyer objects as soon as grounds for objection is known or reasonably should be known. HYPO: s objectionafter govt introduced its evidence, jury had left courtroom, and parties had discussed another issuecame far too late; not timely. Purposes of timeliness requirement: Lets judges rule before jurors learn about potentially inadmissible evidence Lets opponents try to cure evidentiary defects Register your objections ASAP! C. Attorney must state specific grounds for any objection Generic objections fail to preserve any grounds for appeal Multiple grounds for an objection? Raise all. Raising one ground wont preserve others. When you object, you are also objecting to the appellate court Huss.

If just one part of the evidence is inadmissible, attorney must specify which portion. Purpose of the specificity requirement: Gives both judge and opposing attorney notice of the basis for objection. Allows the opponent to try and cure the defect Allows the judge to rule on admissibility more easily NB: Though the rule allows you to forego specificity if the basis for objection is apparent from the context, always add at least one word or phrase to an objection to preserve for appeal.

(3) Defending Evidence: Governed by Rule 103(a)(2): Rule 103. Rulings on Evidence. (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only . . . (2) if the ruling excludes evidence, a party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. Take Away: When one party objects to introduction of evidence, the opponent must make an offer of proof showing the judge what the evidence entails. o Offer of proof = demonstration of the substance of the challenged evidence o Failure to make this offer waives any objection on appeal! Judges have discretion to determine the form of an offer of proof. o i.e., describing the evidence; demonstrating actual questions to be asked and answered, etc. Purpose of the Offer of Proof: o Enlightens the judge by giving her the info needed to rule correctly and promptly on admissibility. Exception Unless the substance was apparent from the context NB: Even in these situations, buttress your argument for admissibility with a brief offer of proof to clarify the record for appeal. (4) Maintaining Objections Rule 103(b) abolishes the need that existed under common law either to announce an exception, or forfeit the issue on appeal:

Rule 103. Rulings on Evidence. (b) Not Needing to Renew an Objection or Offer of Proof. Once the court rules definitively on the record either before or at triala party need not renew an objection of offer of proof to preserve a claim of error for appeal. Take Away: Once trial counsel has made a specific and timely objection, and the judge has definitively overruled the objection, then the issue is automatically preserved for appeal. o NB: Judge must rule definitively. If a judge rules definitively on a motion in limine, the losing party need not repeat any objection/offer of proof at trial. If a judge defers ruling on a motion in limine, the judge hasnt ruled definitively, so parties must renew objections & offers of proof at trial. (5) Shielding the Jury Rule 103(d) requires the court to decide evidentiary issues in a manner that shields the jury from hearing about inadmissible evidence as much as possible: Rule 103. Rulings on Evidence. (d) Preventing the Jury from Hearing Inadmissible Evidence. To the extent practicable, the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. Take Away: Generally, attorneys will note their initial objection in the jurys presence. o If its simple, judge may rule without further discussion or offers of proof. o Depending on complexity, attorneys may approach the bench for a sidebar, dismiss the jury, or argue in chambers Purpose of 103(d): Avoid confusing or misleading the jury NB: Remember to always keep in mind how youre coming across to the jury! Object only when necessary and keep it succinct and respectful. o Attorneys let minor objections go so as not to appear argumentative, or like theyre hiding something o Must balance likability concerns with your duty to advocate for your client.

B. Resolving Evidentiary Objections o What are a judges options for responding to evidentiary challenges?: (1) Sustain the Objection If judge agrees with an evidentiary objection, she will sustain the objection & exclude the evidence. (2) Overrule the Objection If judge disagrees with the objection, she will overrule it & admit the evidence. (3) Admit Some but not All If part of a piece of evidence is admissible, the court may redact portions of written evidence, or direct attorneys to avoid certain topics or questions, while letting the rest in. (4) Issue a Curative Instruction Tells a jury to disregard evidence wrongfully admitted i.e., disregard the witnesss answer (5) Issue a Limiting Instruction Governed by Rule 105: Rule 105. Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes. o If the court admits evidence that is admissible against a party or for a purposebut not against another party or for another purposethe court, on timely request, must restrict the evidence to its proper scope and instruct the jury accordingly. Take Away: o Rule 105 allows admission of evidence only for limited purposes. o Rule uses mandatory language If evidence is admissible only for limited purposes or against particular parties, and a party requests an instruction making those limits clear, the judge must give that instruction. This is the rare case where the judge has no discretion. Policy: Judge is supposed to be neutral; if he appears to be biased, then the system loses legitimacy. Examples of Limiting Instructions: o Evidence is only admissible against one defendant but not against others o Instruction explaining the limited role of demonstrative evidence NB: Many lawyers believe limiting instructions do more harm than good.

C. Judicial Review of Evidentiary Rulings o Appellate courts review evidentiary issues only if the complaining party complied with all the procedural steps outlined above. o On review, courts rarely reverse trial decisions based on evidentiary issues alone for two reasons: (1) Appellate Courts apply an abuse of discretion standard to most claims of evidentiary error. Highly deferential standard Trial judge considered more familiar with evidence, evolving trial, and juror reactions (2) Rule 103 only allows reversal if the error affected a substantial right of one of the parties: Rule 103. Rulings on Evidence. (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party . . . Substantial right affected only if theres a reasonable probability that, if the judge had made the correct ruling, the outcome of the case would have been different. If the verdict would have been unaffected harmless error. Substantial right standard applies even when an appellate court reviews an evidentiary decision de novo. If a party failed to preserve an evidentiary objection at trial, Rule 103(e) still allows reversal, but only for plain error: Rule 103. Rulings on Evidence. (e) Taking Notice of Plain Error. A court may take notice of a plain error affecting a substantial right, even if the claim of error was not properly preserved. What constitutes plain error?: Error must be clear and obvious under current law; . . . affect [a partys] substantial rights; and . . . seriously affect the fairness, integrity or public reputation of judicial proceedings if left uncorrected. Plain error is a more limited standard of review; will rarely find plain error. o Three consequences of limited review of evidentiary errors: (1) Appellate opinions on evidentiary issues have low precedential weight. i.e., just because judge was wrong in this case doesnt mean he abused his discretion. (2) Evidentiary battles, in practice, are won and lost at the trial level. (3) Effective litigators must know the language, number, and policies of each rule.

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IV. Preliminary Determinations Rule 104 governs procedures for deciding the admissibility of evidence. o Key Points to Remember: (1) The judge makes preliminary determinations relating to admissibility. Rule 104(a). The court must decide any preliminary question about whether a witness is qualified, a privilege exists, or evidence is admissible. Default rule judge decides Includes both matters of fact and of law. o Fact: Contested facts may be decided by the judge. o Law: Pure issues of law are decided by the judge alone reading the rules language, applying judicial precedent, and considering the rules legislative history and policy rationale. E.g., Conviction a dishonest act or false statement? (609); Indemnity agreement within Rule 411s prohibition against evidence of liability insurance? Rule 104(a) sends all factual and legal preliminary questions that directly affect admissibility to the judge. But 104(b) limits the judges authority when resolving factual issues that affect whether otherwise admissible evidence is relevant. If an evidentiary hearing is necessary, fairness dictates it be held outside the jurys earshot in three cases: Rule 104. Preliminary Questions. (c) Conducting a Hearing So That the Jury Cannot Hear It. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession; (2) a defendant in a criminal case is a witness and so requests; or (3) justice so requires. In a criminal case, may testify on preliminary matters (i.e., determining the voluntariness of his confession) without subjecting himself to cross on other issues: Rule 104. Preliminary Questions. (d) Cross-Examining a Defendant in a Criminal Case. By testifying on a preliminary question, a defendant in a criminal case does not become subject to cross-examination on other issues in the case.

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Stems from privilege against selfincrimination. Even if the judge admits the evidence, the parties may dispute the weight of that evidence at trial: Rule 104. Preliminary Questions. o (e) Evidence Relevant to Weight and Credibility. This rule does not limit a partys right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. (2) FRE dont apply to preliminary questions; the rules cant screen information away from the judge. Rule 104(a). In so deciding, the court is not bound by evidence rules. . . . The judge may look at evidence that violates the rules when making preliminary determinations. o Any other method would prevent the judge from looking at evidence to decide whether or not its admissible. (3) Except for the rules on privilege, which do apply during preliminary determinations (and always). Rule 104(a). . . . except those on privilege. Otherwise would totally negate purpose of privilege. (4) Judge alone decides questions of law. Issues decided solely by reading the rules language, applying judicial precedent, and considering the rules legislative history and policy rationale JUDGE Authority granted by 104(a). (5) All preliminary factual issues are decided using the preponderance standard. Standard governs both civil and criminal cases. If 104(a), ask has [the fact governing admissibility] been established by a preponderance of the evidence? o e.g., re: admissibility under 407: did the remedial measure more likely than not occur before the plaintiffs injury? If 104(b), ask could a reasonable jury find by a preponderance of the evidence that [a fact governing admissibility] exists? o e.g., re: admissibility under 602: could a reasonable jury find by a preponderance of the evidence that the witness saw the event he claims to have seen? NB: Trial judge can admit evidence under 104(b) even when a previous jury has rejected the evidence under a higher standard.

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e.g., reasonable doubt standard. (Dowling v. U.S.) Rule 104 is silent about standard of proof, but the preponderance standard has been well established by the USSC. (6) The party offering the evidence usually has the burden of proof. The rules are silent on the burden of proof. Little case law on the subject. But proponent usually possesses the info necessary to demonstrate admissibility. Also, 104(b) says proof must be introduced (7) There are two types of preliminary determinations. (i) Rule 104(b) governs questions of conditional relevance. Where a piece of evidence is relevant only if a factual predicate is true and not false, the truth of that factual predicate should be decided by a jury: o Rule 104(b). When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court may admit the proposed evidence on the condition the proof be introduced later. Applies beyond determinations related to Rules 401 & 402; to any relevance issue lurking in a rules application. If issue falls under 104(b), judge performs only a screening function before admitting contested evidence to the jury. o proof sufficient to support a finding = low, prima facie standard of proof. Enough evidence here that some reasonable jury could resolve the factual dispute in a way that makes the evidence relevant? Even if 9 out of 10 juries would decide as the judge would, she must let the jury weigh the disputed facts. o HYPO: Personal knowledge under Rule 602 Eyewitness Magoo has terrible vision; the existence of his personal knowledge is a disputed fact, the outcome of which determines the relevance of his testimony. If judge says evidence sufficient to support a finding, i.e., a reasonable jury could find either way JURY o HYPO: Evidence of other acts under 404(b)

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Govt wants to prove Zs knowledge of cracking safes by introducing evidence she broke into safes before, but Z disputes her role in those previous safe break-ins. Zs role in the previous break-in is a disputed fact, the outcome of which determines the evidences relevance. If judge says evidence is sufficient to support a [reasonable] finding JURY (ii) Rule 104(a) governs all other preliminary questions Factual disagreements that affect policy concerns that could potentially bar admission of otherwise relevant evidence are decided by the judge without the jury. o i.e., whether a remedial measure occurred before or after s injury. Relevant fact either way + affects policy concerns, so 104(a), not (b). o i.e., whether conduct was sufficiently regular and specific to constitute a habit admissible under 406. The conduct is relevant either way + admissibility depends on policy concerns o Other issues judges resolve under 104(a): All the 407-411 rules, generally. Is there a good faith belief under 608 or 405? If evidentiary dispute falls under 104(a), the jurys only role will be assessing the value of evidence at trial (if admitted). o Policy: jurors have little knowledge of the policy issues motivating the rules. NB: The defendant, who wants to keep evidence out, will argue that the higher 104(a) standard should apply, while the /govt will argue that the more permissive 104(b) standard will apply. (8) Remember Rule 403 Preliminary factual determinations affect 403 decisions. Judge commonly blends 104 & 403 analysis. o Weakly supported facts are less probative, offering more potential for unfair prejudice o Hotly disputed facts are more likely to confuse or delay the trial. 104(b)s low threshold for admissibility makes 403 even more important in those cases. Concern: jury wont be able to fully disregard evidence they reject under the preponderance standard.

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V. Relevance Threshold issue: The fundamental rule of evidence is relevance. o Only relevant evidence is admissible o Relevance depends on the legal theory presented o Battles over relevance help shape new legal claims and defenses Relevance is governed by Rules 401 & 402: o Rule 402 establishes that only relevant evidence is admissible: Rule 402. General Admissibility of Relevant Evidence. Relevant evidence is admissible unless any of the following provides otherwise: the United States Constitution a federal statute these rules; or other rules prescribed by the Supreme Court Irrelevant evidence is not admissible Take Away: If evidence is relevant, then its admissible, unless a specific rule, statute or constitutional provision bars its admissibility. Broad approach to admissibility Purpose of the relevance requirement: (1) saves time (2) focuses jurors attention o Rule 401 defines relevance: Rule 401. Test for Relevant Evidence. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action. Three Elements to Relevance: (1) Any tendency Very low threshold o Satisfied if the evidence can shift the fact-finders view even the smallest degree. Evidence can be relevant even if it doesnt conclusively establish any fact on its own. o Ask: Is this a brick that contributes any fraction to the walls strength? o Ask: Does this have some tendency to make the fact Im trying to prove or discredit more or less probable? (2) Making a fact more or less probable Very low threshold; more or less can be slight (3) Of consequence The fact it goes to prove must be related to the cause of action.

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o Relevance depends on the legal theory underlying the

case. i.e., evidence of an employees independent wealth is irrelevant to a charge of age discrimination o Ask: Relevant to what? o NB: Effective advocates often introduce evidence to prove one fact, even if the opponent successfully objected to using the evidence for another purpose. Things to keep in mind when determining relevance: o (1) The fact evidence is directed at neednt be in dispute to be relevant. Even if a fact is stipulated, it may still be relevant Policy: Evidence is more persuasive than stipulation; we dont want stipulations blocking out relevant evidence. o (2) Proof of unrelated misdeeds is often deemed irrelevant. Parties often attempt to influence juries by introducing evidence that an opposing party has engaged in illegal or immoral behavior. FRE usually exclude evidence used to show a propensity to act in a particular way. Ask: Evidence of consequence to the legal theory underlying the case? Ask: Misdeed too far removed from the parties dispute in time, place, or other respects? HYPO: Proof was sued for sexual harassment 10 yrs ago deemed irrelevant to proving empnt discrim 10 yrs later. o NB: For employment discrimination hypos, argue: research suggests people who hold one type of bias are more likely to harbor other biases. See page 64. o (3) Judges prefer affirmative showings; frequently reject negative evidence as irrelevant. HYPO: Too many conceivable explanations for an absence of large funds to deem that evidence relevant to proving charges of an intent to distribute. o (4) Judges tend to rule more generously in favor of evidence offered by criminal defendants. Policy: the jury can reject evidence it finds self-serving or unpersuasive o (5) Courts try to eliminate the effect of hindsight in cases that require a showing of subjective belief. HYPO: bringing in evidence that wasnt actually armed is irrelevant to establishing whether victim subjectively believed was armed at the time of a robbery. o (6) Opening the Door

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Irrelevant evidence sometimes becomes relevant in order to rebut claims made by the other party. HYPO: Proof of insurance is usually irrelevant to establishing liability, but opened the door when she said she was suffering financial hardship due to medical bills. established a new fact of consequence: how much did she suffer? Evidence of the insurance became of consequence to the action. o (7) Relevance analysis is culturally contingent & applied within the bounds of social norms. HYPO: Wont deem a psychics testimony evidence w/tendency to make facts more/less probable. Policy: not reasonable, erratic, etc. o (8) Case-by-Case Determination USSC stressed that questions of relevance are determined in the context of the facts and arguments in a particular case; courts generally shouldnt create broad per se rules governing relevance of whole categories of evidence.

VI. Unfair Prejudice, Confusion, or Waste of Time Rule 403 gives judges great discretion to exclude relevant evidence when its probative value is substantially outweighed by risk of unfair prejudice, confusion or undue delay. Rule 403. Excluding Relevant Evidence for Prejudice, Confusion, Waste of Time, or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following Unfair prejudice Confusing the issues, misleading the jury, Undue delay, wasting time, or needlessly presenting cumulative evidence 403 Analysis is a Balancing Test Weigh the evidences probative value against its risk of prejudice, confusion or delay: o (A) Probative Value The evidences tendency to make something more or less probable o (B) Risk - Three Types: (1) Unfair Prejudice All relevant evidence is prejudicial; unfairly prejudicial evidence lures the fact finder into declaring guilt/liability on a ground different from proof specific to the offense charged. Ask: Will evidence tempt the jury to decide the case on grounds different from those the law demands? Policy: Evidence should be based on reasonable, rather than emotional, grounds. Factors for evaluating unfair prejudice":

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Extent to which evidence will arouse emotions/irrational prejudice in the jurors. Extent to which jury might overvalue the evidence. Strength of the connection between the evidence and the elements of the case. Whether the advocate can prove the same facts through less prejudicial/confusing means. Whether it would be possible to reduce prejudice or other harm once the evidence is introduced. Common scenarios: (1) Damaging evidence: not unfairly prejudicial just because its damaging to a partys case. (2) Videos/photos: An evocative image isnt unfairly prejudicial if it goes to the fact needing to be proved. o Videos/photos showing actual crime being committed usually not unfairly prejudicial (even if very violent) o Videos/photos showing effects of crime w/o indication of how the crime was committed or who was responsible more likely deemed unfairly prejudicial. HYPO: Photo of a brutal murder scene prejudicial but ok; photo from scene of childrens handprints in blood unfairly prejudicial b/c doesnt go to any fact requiring proof. o NB: Sexually explicit images are more likely to be deemed unfairly prejudicial than violent images. (3) Demonstrative evidence: has less probative value and is more rhetorical, thus more likely to be unfairly prejudicial. o Generally, the more different a demonstrative image is from what actually happened, the less likely it is to be admitted. o NB: Demonstrative evidence only admissible if attorney laid a foundation for that evidence. (4) Socially undesirable behavior: will depend on how probative the evidence is and what it goes to prove o Opulent lifestyle: could be used to inflame the jury or could provide motive to a crime o Racist attitudes: could be inflammatory or could be motive for s actions. (5) Flight: Travel has innocent and guilty purposes, but juries often overestimate flights suggestion of guilt; courts carefully analyze circumstances surrounding flight. Stipulations & 403 Analysis: Though they dont affect relevance, offers to stipulate may affect unfair prejudice vs. probative analysis:

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o But in most cases, offers to stipulate have little effect

under 403. Jurors expect concrete evidence rather than abstract stipulations Old Chief: The evidentiary account of what a has thought and done can accomplish what no set of abstract statements ever could. o Exception: Felony gun possession cases: A defendants stipulation to felony status in a gun possession case excludes other evidence of that prior conviction under 403 (USSC, Old Chief). (2) Probability of Confusion Can you establish the same fact using less confusing means? Never argue this in a bench trial; risks insulting the judge. (3) Waste of Time Evidence that is unnecessary or duplicative HYPO: Introducing 100s of classified documents disclosed unnecessary detail and wasted the courts time. Increasingly invoked with growing pressure on federal dockets. Argue this in a bench trial Unlikely to argue to a judge that shell be unfairly prejudiced or confused. (C) Risk must substantially outweigh probative value. So 50/50, or slightly outweighed, wont be enough. Problem with the evidence has to blow its probative value out of the water. (D) May: Permissive Language Even if the evidences probative value is substantially outweighed by some other problem, it is still within the judges discretion to admit it anyway. The USSC has stressed that judges should apply the rule on a caseby-case basis Bad news: little precedential value Good news: lots of room for argument Appellate courts rarely reverse Rule 403 rulings Away: Rule 403 provides a counterweight to the generous policy of admissibility authorized by Rules 401 & 402. But still designed with a slant towards admissibility

Take o

VII. Specialized Article IV Rules RULES 407-411 ARE SPECIAL APPLICATIONS OF 403-BALANCING:

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o Each excludes relevant evidence to further some social policy or promote a o o

Rule socially valuable activity. Evidence targeted by these rules tends to cause a high degree of unfair prejudice and have little probative value. Limited purpose: evidence is excluded only if offered to prove liability or fault. 407: Subsequent Remedial Measures The admissibility of a subsequent remedial measure depends on the purpose for which that evidence is being offered: (1) Rule 407 prohibits admissibility of evidence of subsequent remedial measures when offered to prove liability: Rule 407. Subsequent Remedial Measures. When measures are taken that would have made an earlier injury or harm less likely to occur, evidence of the subsequent measures is not admissible to prove: Negligence; Culpable conduct; A defect in a product or its design; or A need for a warning or instruction What is a subsequent remedial measure? Remedial: Actions that would have made an earlier injury or harm less likely to occur. Measures: May be direct or indirect. o Direct measure: salting an icy sidewalk, switching a gas tanks location. o Indirect measure: taking a product off the market, changing a sexual harassment policy, firing or disciplining an employee, etc. Subsequent: Measures taken after an earlier injury or harm. o NB: Rule 407 only shields measures taken after the injury itself, not after purchase of a defective product/after the suit was filed/etc. (2) Evidence of subsequent remedial measures may be admissible if offered to prove any fact in consequence other than the four listed above: Rule 407. Subsequent Remedial Measures. But the court may admit this evidence for another purpose, such as: Impeachment, or If disputed proving ownership, control, or the feasibility of precautionary measures. Four exceptions to 407s bar on admissibility: (i) Subsequent Remedial Measures are Admissible to Prove Ownership or Control

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o If claims he didnt own/control the instrument that

injured , may introduce evidence of subsequent remedial measuresnot to prove the original condition was unreasonably dangerous, but rather as evidence that did own/control that instrument. o Ownership/control must be in dispute (ii) Subsequent Remedial Measures are Admissible to Prove Feasibility o Rule specifically permits evidence of subsequent remedial measures against a party disputing feasibility. o Two Requirements: (i) Feasibility must be disputed NB: USSC says the statement that a warning would do more harm than good is categorically disputing feasibility shouldnt say something wasnt possible, but that it was difficult; risks opening the door. (ii) Evidence must be offered to prove feasibility, not liability (iii) Impeachment under Rule 407 o Process of undermining the credibility of the opponents witness. Policy: If you catch the other side in a lie, judge wants you to expose that lie. o Narrower than FRE on impeachment, generally. Requires a closer fit between the remedial measure and the testimony it is supposed to impeach. o Judges are most likely to admit evidence of subsequent remedial measures for the purpose of impeaching a witness when: (1) witness makes a specific representation that conflicts with the subsequent remedial measure Not possible (2) witness makes an absolute declaration i.e., the product was perfectly safe. (3) witness making the statement was personally involved in implementing the remedial measure o NB: Judges may redact evidence to only admit evidence showing witness was lying i.e., redact info going to liability

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o o

Rule

May also issue a limiting instruction under Rule 105 (iv) Any relevant purpose other than establishing liability o Commonly, remedial measures taken by third parties: Majority view: Rule 407 only bars remedial measures undertaken by parties to the litigation remedial measures taken by non-parties not barred. HYPO: Evidence farm owner fixed cow fence is admissible in a suit against farm leaser. Minority view: Rules language bars any person or org, so a contrary interpretation is potentially arguable. o Rule 407 is not an exhaustive list; subsequent remedial measures may be admissible for any other purpose unrelated to liability. Rule 407 applies to all controversies: negligence, strict liability, contract, intentional harm, etc. Policies Furthered by Rule 407: Prevents a potential disincentive to fix dangerous problems. Pre-injury measures are admissible bc there was already enough incentive before the injury to remedy potential dangers. Juries give more weight to subsequent remedial measures than theyre actually worth. (Unfairly prejudicial) Take Away: Cant introduce evidence of subsequent remedial measures to prove liability But may be admissible for other purposes: (1) To show ownership, control, or feasibility of precautionary measures if disputed Feasibility: if claimed he could not have remedied a dangerous situation because of economic, physical, or other constraints, but he ACTUALLY remedied it admissible. o Bc feasibility doesnt necessarily establish negligence. (2) Impeachment (3) Any other purpose Evidence must also not be unfairly prejudicial under Rule 403. 408: Civil Settlement Negotiations Shields settlement offers & statements made during civil settlement discussions from admission at trial. Policy: Promote open and free settlement negotiations. Rule 408. Compromise Offers and Negotiations

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(a) Prohibited Uses. Evidence of the following is not admissibleon behalf of any partyeither to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing, promising, or offeringor accepting, promising to accept, or offering to accepta valuable consideration in compromising or attempting to compromise the claim; and (2) conduct or a statement made during compromise negotiations about the claimexcept when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory, investigative, or enforcement authority. Once triggered, the rule serves as a complete veil over the entire settlement negotiation. Protects all conduct or statements made during compromise negotiations, not just offers and acceptances. NB: Offer/acceptance construed broadly: promises, acceptances, offers to accept, promises to accept, any consideration extended as part of the settlement. Even prevents parties from admitting their own statements made during settlement on behalf of any party Bars evidence even for purposes of impeachment. Also shields settlements with third parties: Rule 408 applies to all settlement discussions, even those conducted by parties no longer involved in the case. i.e. if two s sue a who settled with one of them, the remaining cant introduce that settlement as evidence of s liability o Policy: Otherwise, s in multi-party lawsuits would never be willing to settle; promotes settlement o Three Elements Trigger Rule 408s Shield: (1) Claim For the rule to apply, the disagreement between parties must have matured into a claim. [Claim filed] OR [attorney hired + threatened to sue] claim (2) Dispute Parties must dispute some aspect of the claim. If both parties agree that liability exists and on the extent of damages, 408 doesnt shield their discussions. (3) Compromise Negotiations Statement must have occurred during compromise negotiations or while compromising or attempting to compromise a claim.

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Formal settlement conferences always qualify Factors suggesting compromise negotiation: o (1) Bilateral offers and discussions Unilateral offers negotiation. o (2) Either party made a concrete offer o (3) Attorneys were involved in the discussions o (4) Parties used phrases commonly used during settlement negotiations. E.g., without prejudice Remember: ok if conducted by parties no longer involved in the claim. o Once Triggered, Still Admissible for Other Purposes 408 only excludes statements offered for one of three purposes: (i) to prove or disprove the validity of a claim; (ii) to prove or disprove amount of a claim; and (iii) to impeach a witnesss testimony through a prior inconsistent statement or contradiction. Statements may be admissible for any purpose other than the three listed above: Rule 408. Compromise Offers and Negotiations (b) Exceptions. The court may admit this evidence for another purpose, such as: proving a witnesss bias or prejudice negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. o NB: List NOT exclusive (i) Impeachment for Bias A witness who has settled a claim with one of the parties may develop a bias in favor of that party. Other litigants may introduce evidence of the settlement to demonstrate that bias. NB: Impeachment for inconsistency is prohibited under 408(a). (ii) Negating a Contention of Undue Delay May be used to counter a claim that plaintiff delayed pursuing her claim. (iii) Other Purposes Courts have allowed parties to offer statements from settlement negotiations to support a claim that an opposing party engaged in frivolous or vexatious litigation. Or any other purpose; not exclusive (iv) Pre-Existing Evidence All courts agree parties cannot shelter preexisting evidence by discussing it during settlement negotiations.

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o
Rule

This rule does not require the exclusion of any evidence otherwise discoverable merely bc it is presented in the course of compromise negotiations. Criminal Case Exception: Rule 408(a)(2) Though it only protects statements made while negotiating civil claims, Rule 408 does apply in criminal prosecutions. Narrow Exception: When a civil settlement occurred in a civil proceeding that involved a public office exercising its regulatory, investigative, or enforcement authority, then both sides may introduce evidence of other statements made during those negotiations in a subsequent criminal case. Policy: Where an individual makes a statement in the presence of government agents, its subsequent admission in a criminal case should not be unexpected. o Public office = any govt agency o Plea bargaining governed by Rule 410; separate and unrelated Both sides may invoke this exception, though more likely to benefit the prosecution. But both sides are still prohibited from introducing evidence of civil settlement offers, promises, and acceptances. Even if they occurred while negotiating w/a govt agency exercising regulatory, investigative or enforcement authority. Other statements only. Limiting instructions/unfair prejudice: Judge may issue limiting instruction to consider the evidence ONLY for the purpose it was offered for. Must not be unfairly prejudicial under Rule 403. See Rule 408 flowchart on page 115. 409: Medical Expenses Bars admission of offers and promises to pay medical expenses, as well as evidence of actual payments of those expenses. Policy: Promote settlement, good customer relations and Good Samaritan behavior. Rule 409. Offers to Pay Medical Expenses and Similar Expenses. Evidence of furnishing, promising to pay, or offering to pay medical, hospital, or similar expenses resulting from an injury is not admissible to prove liability for the injury. Scope of Rule 409 Applies to any situation where an individual or organization pays or agrees to pay medical expenses. No dispute or claim requirement. Doesnt matter if followed-up on the promise or not.

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Only excludes payment or offer to pay medical, hospital or similar expenses. Doesnt exclude other statements made contemporaneously. Golly, that accident was entirely my fault. Just give me a call. I have good insurance that will cover all of your bills, becomes: Golly, that accident was entirely my fault. Just give me a call. I have good insurance that will cover all of your bills. Rule doesnt exclude offers to pay for lost wages/property damage/other economic losses, or admissions of liability. Similar expenses includes fees for all kinds of medical treatment and physical rehabilitation Only bars evidence for purpose of establishing liability. Commonly bars admissions that get in under 408 (b/c either unilateral offer or not made during settlement negotiations.) May come in if you can argue that it proves something other than liability. What if a just offers money without any explanation? Judge looks at all the circumstances to determine whether that money was intended for medical expenses. For example: was it $10 after a horrible car accident? Probably not excluded under 409. Limiting instructions/unfair prejudice: Judge may issue limiting instruction to consider the evidence ONLY for the purpose it was offered for. Must not be unfairly prejudicial under Rule 403 Rule 410: Plea Bargaining o Precludes some evidence of offers to plead guilty & statements made during plea bargaining against defendants. Policy: Encourages plea bargaining and plea agreements; recognizes that the plea bargaining system risks unfairness for defendants government always has more bargaining power. Rule 410. Pleas, Plea Discussions, and Related Statements. (a) Prohibited Uses. In a civil or criminal case, evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn (2) a nolo contendre plea; (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure; or

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(4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. Four categories of evidence not admissible against a defendant in any trial, civil or criminal, for any purpose: (1) A plea of guilty that was later withdrawn Criminal defendants have complete discretion to withdraw guilty pleas any time before theyre accepted by the court. o May even withdraw plea after acceptance if: i) before sentencing and ii) theres a fair and just reason for its withdrawal. But evidence of a finalized plea bargain, and statements made during bargaining of a finalized plea bargain, are admissible. o Rules dont protect finalized pleas bc in effect convictions public record But no final plea or conviction? Cant enter it. (2) A plea of nolo contendere Defendant lets court assume guilt for purposes of sentencing, but doesnt admit guilt for any other purpose. o No contest o Relatively rare; DAs never offer it. (3) A statement made in the course of any proceeding regarding either of the foregoing pleas Protects statements made during plea bargaining process if process produced a withdrawn guilty plea or a plea of nolo contendere. o Protects both the out-of-court bargaining process and in-court discussions/acceptance All statements made are inadmissible. (4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority. Shields statements made during plea bargaining where no guilty plea results, including when initially agrees but later withdraws. o Overlaps with #3, above. When does Plea Bargaining Occur? Issue: confessing or bargaining? Offering cooperation in the hopes of bettering your situation isnt bargaining. Interrogation isnt plea bargaining o Miranda waiver signed? Probably an interrogation, not a plea bargaining session.

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Proffer Sessions = Plea Bargaining? o Prosecutors get a sample to see s info/candor/willingness to provide info o Courts are split; look to all the factors and argue it. Two Part Test: (1) Did actually believe/expect he was negotiating a plea? o Subjective prong (2) Was that expectation reasonable, given the totality of the circumstances? o Objective prong Judged from the courts POV, not a reasonably prudent . o Totality factors suggesting plea bargaining session: (i) Prosecutorial involvement Absent this, court will almost definitely say, no plea bargaining session (ii) Defense attorneys presence (iii) Charges filed (iv) Specific terms discussed (v) Govt expressed interest in s offer (vi) Absence of caveat statements i.e., Im a cop, I dont have the power to make a deal. Test generally construed against defendant o Courts tend to find no plea bargaining session When Does Plea Bargaining End? 410 may extend to follow-up conversations between those included in original plea bargaining sessions Doesnt extend to statements made by outside parties (friends, family, etc.) Two Narrow Exceptions to Rule 410: Court may admit certain statements made during bargaining for two specific and narrow purposes: (b) Exceptions. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced, if in fairness the statements ought to be considered together; or Little Rule of Completeness: prevents litigants from creating misleading impressions by introducing selected parts of a negotiation. Up to judges discretion; prosecutor has no right to introduce statements protected by 410:

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Evidence available elsewhere in the case? Degree of harm/prejudice to defendant? First statement misleading w/o the second? Necessary to avoid misleading connotations? See page 142 (2) in a criminal proceeding for perjury or false statement, if the defendant made the statement under oath, on the record, and with counsel present. Proceedings for perjury/false statement, not impeachment. Defendant must have made a statement: --Under oath --On the record --With counsel present Usually applies when appears in court to enter a plea and responds, under oath, to questions from the judge. Can then use statements from the incourt examination to prosecute defendant for perjury. But evidence falling under 410(a)(1)-(4) offered for any other purpose must be excluded. Scope of Rule 410: One-sided rule Protects defendant only; doesnt prevent defendant from introducing prosecutors statements made during plea negotiations into trial (criminal or civil). Evidence relating to plea bargaining is inadmissible regardless of the purpose for which it is offered. Remember: FRE dont apply to sentencing proceedings! See chart, attached. Only protects evidence relating to defendant and the trial defendant was involved in. Doesnt apply to someone elses trial Doesnt protect other parties In reality, Rule 410 has very little impact bc of waivers: Widespread practice for prosecutors to require to sign a waiver of 410-protections before beginning plea bargaining process. o In practice: No waiver, so probably not a plea bargain Remember: construed against Eats the rule up

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Rule o

Waiver may be express or implied Unfair Prejudice/Rule 403 Courts often use Rule 403 to exclude evidence offered against the prosecution (i.e., presenting willingness to plea bargain as evidence of a weak case) Low probative value. Also available to exclude evidence of guilty plea that was finalized, etc. 411: Liability Insurance Bars evidence of insurance (or lack of insurance) to prove liability. (If relevant for another purpose, its admissible.) Policy: Encourage individuals and organizations to obtain liability insurance. Rule 411. Liability Insurance Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as Proving a witnesss bias or prejudice or Proving agency, ownership or control Rule only excludes LIABILITY insurance Liability insurance compensates the policy holder for specified damages owed to other people. Car insurance, medical malpractice insurance = liability insurance NOT health insurance, disability insurance, life insurance, etc. o Bc compensates the individual for his own costs o But argue it under 403 o Indemnity agreements? Courts are split; argue it. See p. 153. Only excluded if offered to prove liability Still may be admissible to prove: Absence of liability o Argue it: Not going to establish proof of liability. Bias or prejudice Agency, ownership or control Knowledge Any other purpose relevant to the dispute Unfair Prejudice/Limiting Instruction Evidence of insurance can be very prejudicial, and its probative value is often slight NB: Revelations about insurance are unlikely to cause prejudice in commercial litigation between two companies.

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VIII. Witnesses: Article VI Rules A. Who is competent to testify? o The rules allow jurors to hear the testimony of almost any witness who has knowledge relevant to the case. Policy: Jurors, not inflexible rules, should decide whether to believe a witness: Rule 601. Competency to Testify in General. Every person is competent to be a witness unless these rules provide otherwise. Default is to assume competence Unless another rule specifically excludes a witness from the stand, every person is competent to be a witness. As long as a witness appreciates his duty to tell the truth, and is minimally capable of observing, recalling, and communicating events, his testimony should come through, regardless of worth. Even young children & mentally incompetent adults Up to opposing counsel to expose weaknesses. Up to jury to decide worth NB: Whenever state law supplies the elements of a civil claim or defense, the court must determine competency under that states laws, even in federal courts. (Rule 601). Usually in civil diversity actions. An exception to the general rule that the FRE apply to all civil trials held in federal court. B. Who is not competent to testify? o (1) Judge who presides over a case is not competent to testify as a witness. Policy: Roles of testifying and presiding are incompatible. Rule 605. Judges Competency as a Witness The presiding judge may not testify as a witness at the trial. A party need not object to preserve the issue. o Prohibits judges from offering commentary that amounts to testimony. See p.162 o Rule recognizes fear of retaliation, thus automatically preserves the issue for appeal. o (2) Jurors are not competent to testify in a trial where they play a decision making role. Policy: Other jurors might not fairly weigh the credibility of one of their colleagues. Rule 606. Jurors Competency as a Witness. (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. If a juror is called to testify, the court must give a party an opportunity to object outside the jurys presence.

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o Issue not automatically preserved for appeal.

Jurors may appear at subsequent trials to testify as witnesses about things they observed in the previous trial. But cant offer testimony undermining the validity of the verdict they rendered. o (3) Lawyers who represent the parties are not barred from testifying by the FRE. But barred by Rules of Professional Responsibility, instead. o (4) Witnesses lacking personal knowledge may not testify. Witnesses can only testify only about relevant matters they know about personally, i.e. matters they themselves have seen, heard or otherwise sensed. Exception: Expert witnesses may offer testimony even if they lack personal knowledge. Rule 602. Need for Personal Knowledge. o A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. This rule does not apply to a witnesss expert testimony under Rule 703. Witnesses cannot speculate about matters beyond their actual knowledge on the stand. i.e., motives, thoughts, etc. But knowledge isnt limited to eyewitness accounts; knowledge of circumstantial evidence may be relevant. Personal knowledge implies a witness is capable of apprehending an event, remembering it, and describing it to others. Witness who lacks ability to fulfill these functions has insufficient personal knowledge to testify. o Remember: preference is for admissibility. Establishing Personal Knowledge: Lawyer must lay the foundation of personal knowledge to support the witnesss testimony. Easy standard to meet May be established by witnesss own testimony or other source: Rule 602. Need for Personal Knowledge. Evidence to prove personal knowledge may consist of the witnesss own testimony. Basically, unless its physically impossible for the witness to have been where she claims she was, testimony stating I was there at the time is sufficient to establish personal knowledge. C. Witness must take an Oath or Affirmation before Testifying.

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o If the witness lacks ability to understand the truth or to appreciate the

seriousness of testifying in court, then the judge may find the witness incompetent to testify. Bc oath/affirmation is the basis for a perjury prosecution if witness lies on the stand. Rule 603. Oath or Affirmation to Testify Truthfully. Before testifying, a witness must give an oath or affirmation to testify truthfully. It must be in a form designed to impress that duty on the witnesss conscience. Rule allows witnesses to choose between an oath or affirmation; no legal distinction. Oath: includes the word swear and a reference to God Affirmation: promise to tell the truth that omits religious references & uses the word affirm instead of swear. Witness not required to utter incantation or particular magic words; just needs core promise to tell the truth. Rule: Judges should try and accommodate different religious beliefs. Ask: Would this avowal support a perjury prosecution? I do hereby declare that the facts I am about to give are, to the best of my knowledge and belief, accurate, correct and complete = okay. (Ferguson v. Commissioner) Im a truthful man & I would not tell a lie to stay out of jail = NOT okay. (US v. Fowler) If a witness refuses to make an oath/affirmation that satisfies Rule 603, the judge will exclude the witnesss testimony. Rare; policy favors admissibility. D. Interpreters & Competence o Standard for judging an interpreters competence: Rule 604. Interpreter An interpreter must be qualified and must give an oath or affirmation to make a true translation. Two factors: o (1) Qualified o (2) Take an oath/affirmation to make a true translation. NB: not to tell the truth. E. Competence: Take Away o FOUR REQUIRED WITNESS CAPACITIES: (1) Perception Comes from 602s personal knowledge requirement (2) Memory Comes from 602s personal knowledge requirement (3) Veracity Comes from 603s oath/affirmation requirement

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Must understand the importance of telling the truth (4) Narrative Comes both a combo of 602s personal knowledge requirement, and 611s question and answer procedure. If witness is only minimally able to communicate (blink for yes/no), hey may not be allowed to testify. o B/c difficult to cross or impeach. o Impeaching Capacity Techniques: (1) Show impaired perception or memory (2) Demonstrate inconsistencies in the witnesss story Narrative, perception, memory, sincerity (3) Establish bias (4) Attack witnesss character for truthfulness F. Examining Witnesses o Parties take turns examining witnesses at trial, following this sequence: (1) Direct Examination attorney who calls the witness (2) Cross-Examination opposing attorney (3) Redirect-Examination if necessary (4) Recross-Examination if necessary (5) Additional Rounds of Redirect and Recross rare o Overview: Guidelines for examining witnesses at each stage governed by Rule 611: Rule 611(a) gives judges the general power to control how witnesses are examined during any stage of testimony: Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence. (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: o (1) make those procedures effective for determining the truth; o (2) avoid wasting time; and o (3) protect witnesses from harassment or undue embarrassment. Rule 611(b) & (c) work together to endure that witnesses use their own words to tell the story about what happened: Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence. (b) Scope of Cross-Examination. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witnesss credibility. The court may allow inquiry into additional matters as if on direct examination.

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(c) Leading Questions. Leading questions should not be used on direct examination except as necessary to develop the witnesss testimony. Ordinarily, the court should allow leading questions: o (1) on cross-examination; and o (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party. (1) Calling a Witness (a) Rule 614 authorizes the judge to call her own witnesses and to interrogate witnesses called by parties: Rule 614. Courts Calling or Examining a Witness. (a) Calling. The court may call a witness on its own or at a partys request. Each party is entitled to cross-examine the witness. (b) Examining. The court may examine a witness regardless of who calls the witness. Both parties are entitled to cross-examine any witness called by the judge. Rare that judge calls own witnesses o But common that judge questions parties witnesses Parties may object to judges questions or to the competency of the judges witness, just as they would opposing counsels. But in these cases, Rule 614(c) suspends general requirement that objections be registered immediately: o Rule 614(c). Objections. A party may object to the courts calling or examining a witness either at that time or at the next opportunity when the jury is not present. Concern: Jury may find attorneys insubordinate. (b) Witnesses are usually excluded from the courtroom while other witnesses are testifying. Rule 615. Excluding Witnesses. At partys request, the court must order witnesses excluded so that they cannot hear other witnesss testimony. Or the court may do so on its own. But this rule does not authorize excluding: (a) a party who is a natural person (b) an officer or employee of a party that is not a natural person, after being designated as the partys representative by its attorney; (c) a person whose presence a party shows to be essential to presenting the partys claim or defense; o Usually experts (d) a person authorized by statute to be present.

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Rule 615 can be invoked by judge or a party. If invoked by a party, rule gives judge no discretion to let the witness stay. Unless party cant be barred under 615(a) (d): o Parties to the case may watch the entire trial, regardless of whether or not they testify. True in civil and criminal cases Though criminal s actually have a constitutional right to confront their accusers. o If the party is an organization, then an officer/employee represents them in court throughout the trial. o Experts can watch the whole trial; often necessary to develop data. (2) Direct Examination: Attorney constructs a story that presents the clients case: (i) Introduce witness to jurors Witness takes oath/affirmation (R.603) If opposing counsel objects to witnesss competence, then the judge addresses that issue under R.602 (ii) Lay the foundation Establish jurors personal knowledge (602) o If expert, lay foundation for experts opinion. (iii) Allow witness to tell her story Performed through a series of questions and answers. o Attorney must focus on relevant and otherwise admissible facts. (611)(c) restricts the use of leading questions on direct examination: o Leading question = one that suggests a specific answer to the witness; e.g., a statement, followed by a request for confirmation that the statement is true. NB: Questions lie on a continuum from open leading; not black and white: What happened next? What did do at that point? Did you see do anything to the victim? The defendant shot the victim in the head, didnt he? o Policy: The witness, rather than the lawyer, should tell the story. But lawyer can lead witness up the ladder, starting broadgetting narrower.

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Exception to prohibition of leading questions on direct: o Rule 611(c) gives judges discretion to allow leading questions on direct when they are necessary to develop the witnesss testimony. Four common scenarios where leading is permissible on direct: (1) To establish pedigree information i.e., uncontested points (educational background, occupation, etc) (2) To direct a witnesss attention to a relevant place and time e.g., Now directing your attention to Monday, December 3rd, did you attend the board meeting at the Chicago office on that day? (3) To help a witness who is hesitant, confused, or has trouble recalling Commonly for youth, victims of sexual abuse, nervousness, illness, memory problems, etc. e.g.: see page 180 (4) Hostile witnesses, under 611(c)(2) Leading questions are appropriate on direct when party calls a witness who is likely to resist that partys position: 611(c)(2): A hostile witness, an adverse party or a person identified with that party Hostile = any witness who is evasive or uncooperative to such an extent that it interferes with eliciting testimony. (Hostile rude or angry) Adverse Party = any witness associated with the opposing party Party will ask the judge to declare the witness hostile, at which point the witness may be interrogated with leading questions on direct. Apart from restrictions on leading questions, the FRE do not define the form of direct examination. o Main limitation = Rule 602(a), which grants trial judges broad discretion to control form of testimony and overall order of the trial:

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Rule 611. Mode and Order of Examining Witnesses and Presenting Evidence. (a) Control by the Court; Purposes. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth; (2) avoid wasting time; and (3) protect witnesses from harassment or undue embarrassment. o Any objection to the form of a question is an objection based on Rule 611(a): (Generally, no one cites the rule; just the reason why the form is objectionable): (1) Argumentative attorney is drawing inferences or making conclusions that should be reserved for closing args. (May also be harassing the witness.): Isnt it difficult to believe that you could see the defendant clearly when there were no street lights on the entire block? Could you really see the defendant clearly given the fact that there were no streetlights on the entire block? (2) Asked and answered Attorney has already asked the question and the witness has already answered. (3) Assumes a fact not in evidence Questions asserting a factual assertion not yet testified to: When did you stop beating your wife? (4) Beyond the Scope Cross-examination topic is beyond the scope of direct, OR redirect is beyond the scope of cross. (5) Calls for narrative Question is too broad; the witness will tell a story instead of answering a specific question: What happened to you on January 24? Tell me about the car accident. NB: Keep in mind judges discretion; broad questions may be useful at the beginning of direct testimony:

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Describe the collision for me. What happened next? (6) Calls for Speculation Question asks the witness what other people may have been thinking or feeling; beyond realm of witnesses perception. NB: Also based on Rule 602. And when Ms. Jones was signing the contract, what was she thinking? Did Ms. Jones tell you what she was thinking when she signed the contract? (7) Compound Question Question that tries to elicit more than one fact at a time. When you saw the police, did you run away and drop the drugs? (8) Harassing/Badgering the Witness Lawyer asks same question repeatedly in different ways, insulting the witness for no purpose or arguing with the witness about the answer. It looks like you cant be trusted to ever tell the truth, can you Mr. Jones? You expect us to believe that you never read contracts before you sign them? (9) Improper Characterization of Testimony/Misstates the Testimony Attorneys pretending to repeat testimony back to the witness as the basis for the next question, but is altering the testimony. Cant use a more powerful word Cant change facts themselves Misstatement may occur immediately or later in the trial: W: I sometimes go for walks late at night when Im bored. Q: And when you go out casing the neighborhood late at night, where do you usually go? (10) Leading Question Attorney asks a question that suggests a specific answer: Did he hit you in the face next? Where did he hit you next, the face or the body?

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(11) Non-Responsive Answer Usually on cross; attorney who asked the question can object to the witnesss answer as non-responsive, ask the judge to strike the answer, and force the witness to answer the question: Q: You had four beers at the bar before you got behind the wheel that night, isnt that right? W: The guy driving the other car looked a lot more drunk than I was. He could barely stand up. (12) Vague Question doesnt give enough detail to allow witness to respond properly OR term in question has unclear meaning. No specific timeframe, so impossible to give a meaningful response: How many cards did you sell within your lot? No clear definition of far away: You were far away from the bank when the robbers ran out into the street, correct? See chart spanning pages 190 - 194

o (3) Cross-Examination Four main goals of cross-examination:

(1) Obtain useful details (2) Discredit the witness (3) Tell a different story (4) Do no harm Cross differs from direct examination in two main ways: (1) Leading questions are allowed Primary purpose of cross is to limit or discredit the story told by the witness; easiest way to test bounds of witnesss knowledge/ credibility is by controlling their answers. o Cross-X usually = yes or no questions o Witnesses cant answer questions they havent been asked! Leading questions authorized by Rule 611(c)(1): Rule 611(c). Ordinarily, the court should allow leading questions: o (1) on cross-examination. NB: Ordinarily cant ask leading questions of a friendly witness.

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So if calls as a witness, judge will not allow s lawyer to use leading questions freely on cross.

(2) Scope is restricted Cross-examiner is restricted to those issues covered during direct examination. o Scopes an oft-contested issue. o The judge decides whats within the scope. Lots of discretion. Scope is restricted by Rule 611(b): o Rule 611(b). Scope of Cross-Examination. Crossexamination should not go beyond the subject matter of the direct examination and matters affecting the witnesss credibility. The court may allow inquiry into additional matters as if on direct examination. Three things to remember about 611(b): o (i) Usually cant ask about topics/incidents that werent addressed during direct. To introduce new topics, must call them directly in your own case, as your witness. o (ii) Rule gives judges discretion to expand the scope. i.e., where a witness is about to leave town/would be difficult to recall. In these cases, treated as if on cross, so restricted to direct questions only. o (iii) On cross, allowed to ask questions affecting witnesss credibility. a.k.a., impeaching the witness. Questions designed to test the credibility of a witness are always within the scope, regardless of the subject matter covered on direct. o (4) Additional Rounds of Witness Examination (a) Redirect Examination FRE silent on redirect examination, but most judges allow it. Must focus on matters raised during cross-examination: Commonly used to rehabilitate a witness impeached on cross May also clarify questions asked on cross Must avoid leading questions as much as possible; let the witness tell their story. Judges get impatient on redirect. More persuasive, anyway. (b) Recross Examination FRE is silent on recross examination, but most judges will allow it where new issues arose on redirect.

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Same rules apply as on cross-examination o Leading questions ok, but must stay within scope of previous examination o Keep it brief! (c) Additional Rounds of Redirect and Recross Rare, but judges may allow it where recross reveals a new fact thats sufficiently important that the opposing party should have an opportunity to reexamine o (5) Refreshing a Witnesss Memory If a witness recalls general outlines of an incident but has trouble reciting details, the judge may allow the lawyer to refresh the witnesss recollection with a document or other item. Refreshing memory is authorized by Rule 612: Rule 612. Writing Used to Refresh a Witnesss Memory. o (a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options. When may an attorney refresh recollection? Whenever the judge allows it. NB: Rule doesnt require refreshment; only authorizes a judge to allow it in his or her discretion. o But judges rarely say no; its in courts interest for testimony to be fresh. Application varies widely from judge to judge. Though judge has discretion to allow lawyer to refresh a witnesss memory before trial in the interest of justice, they rarely do so. o Idea: While surprise is acceptable, unfair surprise is not. Clarify this; we never really nailed down a standard. What may an attorney use to refresh a witnesss recollection? Any writing that will honestly refresh the witnesss memory. Ok to refresh with illegally obtained writings o Bc substance not really coming in as evidence; even 403s unlikely to keep it out. Grey area; argue it. Ok to refresh with writings that are otherwise inadmissible o Bc not really coming into evidence; just witnesss refreshed testimony.

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Writing neednt have been written or created by the testifying witness o But seems more credible to jury if it was The rule says a writing legal fiction; construed by courts broadly. Can be pictures, a lamp, anything. But, must be something youre willing to show opposing counsel, who may, in turn, show it to a jury: Rule 612. Writing used to Refresh a Witnesss Memory. (b) Adverse Partys Options; Deleting Unrelated Matteran adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witnesss testimony. Rule 612(b) requires refreshing party to allow any party who did not initiate the refreshment an opportunity to: (1) inspect the writing used, (2) cross-examine the witness on the writing, and (3) introduce the relevant portions of the writing into evidence, even if not otherwise admissible. o Adverse partys rights limit abuse of this rule; prevents parties from circumventing hearsay rules via refreshers. Limited purpose the jury may only use writings introduced under 612 to assess the witnesss credibility; use for any other purpose is improper. i.e., to determine how well the witness actually recalled the thing she testified to (rather than just parroting writing back). o Reciting the exact same language? o Writing says, tell them the car was blue? This would still be admissible bc goes to witnesss credibility. Judge will use a limiting instruction if not independently admissible. Procedure for determining which portions of a writing to admit (when only part of a document relates to witnesss testimony) is governed by rule 612(b):

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Rule 612(b). Adverse Partys Options; Deleting Unrelated MatterIf the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record. o NB: Only opposing party can use 612 to bring the writing into evidence; refreshing party cant introduce the writing into evidence unless its already admissible i.e., unless they can identify an exception to the rule against hearsay. Remedy if a party refuses to produce a writing used to refresh recollection governed by rule 612(c) depends on the judge, and on whether the trial is civil or criminal: o Rule 612(c). Failure to produce or Deliver Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witnesss testimony or if justice so requiresdeclare a mistrial. Rule 612 is subject to the Jencks Act, which governs discovery in federal criminal trials: o Rule 612(b). Adverse Partys Options; Deleting Unrelated Matter. Unless 18 U.S.C. 3500 provides otherwise in a criminal case How does an attorney refresh recollection? SEVEN STEPS: (1) Witness states she cant recall. o Prepping witness here is really important: if she says I dont know instead of I dont remember, then theres nothing to recollect, thus the rule doesnt apply. Rule rests on a legal fiction that the witness is still testifying solely from memory, not from the writing. If she guesses even though her memory is fuzzy, she might get impeached on cross. (2) Describe the memory jogger and ask witness if that writing would refresh her recollection. o E.g., I have here a copy of the police report you filed the day after the burglary. Would seeing this help refresh your recollection as to what else was stolen?

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o They must know to say yes, or you cant show it to

them. (3) Show memory jogger to opposing counsel o Opposing counsel can ask to voir dire (examine) the witness on her recollection to show that the witness doesnt independently recall the events recorded in the writing. If judge is persuaded, the judge wont let the witness testify further as to that matter, for lack of personal knowledge (602). At that point estd not testifying from original memory, so the document is hearsay; can only come in with an exception. Uncommonly challenged; no memory is difficult to prove. (4) Show memory jogger to witness (5) Take memory jogger away o Emphasizes that the witness is testifying from original memory, not the writing itself. (6) Ask witness: Did that refresh your memory? o Must say yes. (7) Ask witness to testify from memory. o Again, testifying from original memory, not the writing that refreshed recollection.

IX. Character Evidence Generally, the law has an overall distaste for character evidence. o Character, reputation, and acts are distinct concepts: Character traits reside within a person; internal. Traits that incline people to act in a particular way. Reputation what other people think about an individual; external. Not always a reliable guide to character. Actions we deduce character from actions. We reason forward to assemble reputation from external acts. ISSUE: When is character evidence admissible? o Four categories of character evidence help determine its admissibility: (1) Proof of a witnesss propensity to lie or tell the truth May come in one of three different ways: Rule 608(b): lets parties cross-examine a fact-witness about specific conduct that suggests a truthful or untruthful character. o Limited purpose

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Cant waste courts time with extrinsic evidence; must accept the witnesss answer. Rule 608(a): lets parties offer general reputation or opinion testimony about a witnesss truthful or untruthful character. o Limited Purpose o Cant probe or cite specific instances on direct. May cite specific instances on cross, but limited to witnesss testimony. o Neither side can waste courts time with extrinsic evidence Rule 609: lets parties introduce extrinsic evidence of some prior criminal convictions to suggest a witnesss character for untruthfulness. o Limited Purpose o Only available for witnesses; must take the stand. See Part X on impeachment for more detail (2) Proof of conduct by propensity Character evidence is generally barred to prove propensity. Cant prove an element of a case by arguing that, bc a person has a particular character trait, she probably acted in a particular way: o Rule 404. Character Evidence; Crimes or Other Acts. (a) Character Evidence. (1) Prohibited Uses. Evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. Check the purpose the character evidence is being offered for. o If brought in to prove acted in accordance with the character trait, then its offered to show propensity almost always barred. Ban applies equally to good and bad character Ban applies to all people, not just all witnesses (unlike 608 & 609) o Policy: we hold s responsible for their actions on a particular occasion, not for evil character or a history of bad acts. i.e., unfairly prejudicial Three Mercy Rule Exceptions to 404(a)s Propensity Ban: Rule 404(a)(2) admits some character evidence to prove propensity in criminal cases: o

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Rule 404. Character Evidence; Crimes or Other Acts. (a) Character Evidence. (2) Exceptions for a Defendant or Victim in a Criminal Case. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendants pertinent trait, and if the evidence is admitted, the prosecutor may offer evidence to rebut it; (B) subject to the limitations in Rule 412, a defendant may offer evidence of an alleged victims pertinent trait, and if the evidence is admitted, the prosecutor may: (i) offer evidence to rebut it; and (ii) offer evidence of the defendants same trait; and (C) in a homicide case, the prosecutor may offer evidence of the alleged victims trait of peacefulness to rebut evidence that the victim was the first aggressor. These three exceptions derive from the mercy rule: o If a criminal believes proof of his good character, or the victims bad one, would help defend his innocence, then the mercy rule weighs in favor of letting present his evidence. Key Points regarding the Mercy Rule Exceptions: 1) They apply only in criminal cases 2) They only allow proof of pertinent character traits under 404(a)(2)(A) or (B). o Pertinence narrower version of relevance Examples of pertinence: Victims violent character is pertinent to a claim of self defense. s peaceful character is pertinent in a prosecution charging a violent crime. s honest character is pertinent in a prosecution for fraud. s aversion to risk is pertinent in a gambling prosecution. Keep in mind laws general distaste for character evidence. 3) They allow proof of both defendant and victims character o Good and bad traits, both. o

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4) They distinguish between when the defendant versus the prosecutor may introduce character evidence: o Defendant: free to introduce character evidence about himself or the victim broadly, just so long as it is, 1) a pertinent character trait & 2) complies with Rule 412. Rule 412 = rape shield law o Prosecutor: may only introduce character evidence in response to an action taken by : (A) If presents character evidence about himself, the prosecutor can rebut it, with proof that either, 1) lacks that trait, or 2) holds an opposite one. (B) If presents character evidence about the victim, the prosecutor can rebut it by showing, 1) victim lacked that trait, 2) victim held an opposite one, or 3) holds the trait he attributes to the victim. (C) In a homicide case, if offers any evidence that the deceased was the first aggressor, the prosecutor can offer evidence the deceased had a peaceful character. Even if defendant introduced no character evidence at all. e.g., can respond to eye-witness testimony report that I saw victim hit first with character testimony. o Prosecutor: may only rebut traits has raised. So if offers evidence on 1 of 2 pertinent character traits, govt can only offer evidence responding to pertinent trait #1. Methods for proving propensity in a criminal trial via 404(a)(2)s mercy rule are severely limited by Rule 405(a): Rule 405. Methods of Proving Character. (a) By Reputation or Opinion. When evidence of a persons character or character trait is admissible, it may be proved by testimony about the persons reputation or by testimony in the form of an opinion. On cross-examination of the character witness, the court may allow an inquiry into relevant specific instances of the persons conduct.

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Criminal s may present character witnesses to offer only general opinion or reputation testimony proving propensity towards any pertinent character trait. o Must lay the foundation Same as under 608. o Cant probe into specific acts Includes the absence of specific acts. o Beware: opens the door for cross. Cross-examiner may ask that witness about relevant specific acts. o Must be relevant to the character trait described by the witness. o Must have a good faith belief the specific incidents occurred. o Significantly reduces the appeal of invoking 404(a)(2); cross can be devastating. o Neither side may prove or disprove these specific acts with additional evidence; limited to witnesss answers only. o Limited purpose: jury may only consider prior acts to assess witnesss knowledge of . Judge may issue a limiting instruction. Both sides may call rebuttal character witnesses. o Treated like any other character witness May testify generally on direct May speak to specifics on cross. Cant prove specifics with extrinsic evidence. o Can call a rebuttal witness and cross opponents witness, both. Not mutually exclusive. 405s limits apply whether proving defendant or victims propensity in a criminal case. (3) Proof of character or reputation as elements Ok to offer evidence of character or reputation to establish an element of a crime, claim or defense. None of the limits on character evidence apply bc doesnt depend on an inference of propensity. Authority is implicit from the structure of the rules; no express authorization: 402: All relevant evidence is admissible unless otherwise provided. 401: Evidence used to prove an element of a case is relevant

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404(a): Only prohibits character evidence used to suggest propensity What is meant by character? Almost any personality trait: honesty, mendacity, cautiousness, recklessness, aggressiveness, passivity or peacefulness, etc. o Rarely a litigated issue. Cases where character is commonly an element: o Defamation o Negligent entrustment o Entrapment defense o Child custody cases o Damage determinations As usual, proof of character as an element of a crime, claim or defense may be proved through general reputation or opinion testimony: Rule 405. Methods of Proving Character. (a) By Reputation or Opinion. When evidence of a persons character or character trait is admissible, it may be proved by testimony about the persons reputation or by testimony in the form of an opinion. . . . (1) Call character witness (2) Lay foundation & establish personal knowledge (as in 608(a)) (3) Ask for opinion/reputation But proof may also be offered in any way; not limited to opinion or reputation testimony: Rule 405. Methods of Proving Character. (b) By Specific Instances of Conduct. When a persons character or character trait is an essential element of a charge, claim or defense, the character or trait may also be proved by relevant specific instances of the persons conduct. Questions about specific instances are explicitly admissible when proving character as an element. o Can introduce via direct examination of witnesses or via other types of evidence (e.g., a certificate of conviction) NB: Still must satisfy other FRE. o Idea: wont distract jury bc central to the case. On cross-examination, the opposing party may ask character witnesses about specific acts: Rule 405. Methods of Proving Character.

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(a) By Reputation or Opinion. . . . On crossexamination of the character witness, the court may allow an inquiry into relevant specific instances of the persons conduct. i.e., Do you know of the time when his gf slapped Mike in the face and he calmly walked away instead of hitting her back? But must have good faith belief that the incidents actually occurred. o And cant bring in extrinsic evidence on cross. Stuck with the witnesss answer. Remember 403: Judge has discretion to exclude evidence used to prove character as an element ifs confusing, repetitive, or unfairly prejudicial (403). (4) Proof of other acts for non-propensity purposes Evidence of specific acts that might reveal an individuals character, but that are also relevant to prove some other fact of consequence in the case (short of an element) are admissible under 404(b), but for that other purpose only: Rule 404. Character Evidence; Crimes or Other Acts. (b) Crimes, Wrongs, or Other Acts. (1) Prohibited Uses. Evidence of a crime, wrong, or other act is not admissible to prove a persons character in order to show that on a particular occasion the person acted in accordance with the character. (2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and (B) do so before trialor during trial if the court, for good cause, excuses lack of pretrial notice. Ask: Is the evidence being used to prove propensity? o Yes? Need an exception to 404(a)s ban. o No? Admissible under 404(b) unless 403. o

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404(b) is one of the most frequently used rules in the Federal Rules of Evidence: Dually effective: o Accomplishes its stated purpose + helps jury develop a negative view of the witness. Allows for evidence of both prior and subsequent other acts. o NB: Prior acts much more common. Applies to both good and bad other acts. o Admitting other good acts for purposes other than propensity = reverse 404(b) use. Six key points regarding character evidence introduced for other purposes: (1) Reiterates that character evidence isnt admissible to prove propensity. o Requires a good faith basis Cant evade 404(a)(1)s prohibition by using specific acts that prove character to hint at propensity. Judge may exclude evidence skirting too close under 403 if she thinks its actually coming in for a forbidden purpose probative value low + high risk of unfair prejudice. Judge may give a limiting instruction to the jury. (2) Reaffirms that specific acts may be admissible for other purposes. o 404(b) is not an exception to 404(a); just reaffirms the scope of 404(a). o May = in judges 403 discretion. Always argue 403 in these cases. o Where evidence is excluded under 404(a), yet comes in under 404(b), the judge must articulate her 403 reasoning or risk being overturned on appeal. (3) The nine other purposes listed arent exhaustive. o The rule is construed broadly. Any purpose other than proving that an individual acted consistently with his character on a particular occasion is removed from 404(a) (1)s general ban on character evidence. Argue, doesnt go to law breaking character, goes to _______. Other purpose just must be relevant to the case.

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o The rule suggests some permissible uses: 1. Motive:

Previous crime or other bad act is admissible bc it motivated the charged crime. Neednt be of the same nature, so long as it provides a motive (i.e., financial motives behind tax fraud help establish a motive for arson). Plan: Are the prior crime or act and the act currently being charged arguably part of one common plan or scheme? May bring in prior act as evidence of planning charged act, bc not inferring propensity. Identity: Signature elements of a crime may allow the prosecutor to prove identity by introducing evidence of the defendants other crimes or bad acts if 1) s identity is at issue, and 2) there are strong similarities between the charged crime and other crime(s). The more unusual the signature elements, the more likely to convince judge that evidence goes to identity more probative & less unfairly prejudicial. But if s identity is stipulated, though still relevant, will probably be excluded under 404(b). Opportunity Prosecutor may offer evidence that enjoyed access to a protected place or special tools on another occasion. Other occasion may include access during a previous crime or bad act, so long as its introduction avoids propensity inferences. Knowledge Prior crime or bad act might establish that possessed the necessary knowledge to commit the same crime or bad act later. Intent

2.

3.

4.

5.

6.

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Evidence of other crimes or acts may be admissible to prove that possessed the intent necessary to commit this crime. The closer together in time, the easier it is to argue shows intent. Prior sale evidence has been well established as probative of proving intent (as opposed to propensity) in drug cases did it once so likely to be doing it again has a propensity to sell cocaine. Pattern evidence is probative of intent wives dead in the bathtub hypo + employment discrimination cases. Examining a pattern of actions is somewhat different from using one act to infer responsibility for another. Beware: intent sometimes seems almost indistinguishable from propensity. 7. Any other non-propensity purpose a) Preparation: overlaps with plan, knowledge, and opportunity. b) Absence of mistake and lack of accident: overlap with intent, motive and knowledge. c) Res gestae evidence: inextricably intertwined evidence thats necessary to complete the story to avoid jury confusion. d) Any other relevant purpose that avoids an inference of propensity. (4) Applies to criminal AND civil cases. o Unlike 404(a) (which explicitly limits sub-2 exceptions to criminal cases) (5) Rule requires that the prosecution give reasonable notice in criminal trials of their intent to introduce any evidence thats sanctioned by this rule. (6) Remember that the rule is technically unnecessary; evidence offered for another purpose isnt barred elsewhere. o Rule just underscores its admissibility

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Rule 406: Habit or Routine Practice Other acts that prove an individuals habit or an organizations routine practice arent subject to the rules governing character evidence. 406 is a specific application of 404(b): o Rule 406. Habit; Routine Practice. Evidence of a persons habit or an organizations routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness. Technically unnecessary; requires no propensity reasoning, so doesnt violate 404(a)(1). Under 406, litigants may present past examples of habitual behavior to prove they behaved in the same way during the incident thats the subject of litigation. o Reasoning: 1) Tend to be morally neutral. Propensity depends upon internal character, but habit is just regular action regardless of inner character. 2) High probative value o Admissible For A Limited Purpose Only: E.g., evidence habitually wore a seatbelt is admissible to prove he was wearing a seatbelt on the day in question, but not admissible to show he has a general disposition to act safely. o Not Just Admissible, But Possibly Sufficient: Where a person has done a task so many times that he cant possibly remember whether he did it a certain way on the day in question, judges and juries often conclude that habit evidence is sufficient to establish that the witness performed the disputed action in accordance with long-standing habit. Not just true of laboratory testing/machine maintenance, etc. Often deemed sufficient even in criminal cases. The rule doesnt define habit or routine practice. o Advisory Committees definition of habit = Ones regular response to a repeated specific situation. Broader than unconscious behavior

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 Narrower than a general tendency. Very specific conduct that arises regularly in an identifiable context is most likely to constitute habit. Distinguish habit from propensity using four factors: 1) Specificity of the conduct 2) Distinctiveness of the situation 3) The regularity of the conduct 4) Lack of moral overtones Sliding scale, not black & white. Remember that habit focuses on actions, not inner character. o Routine practice = habit, as applied to an organization. So consider the same factors as above. If you can show the organization always or frequently acts a certain way under designated circumstances, then a court will accept that practice as evidence that the organization acted that way on a particular occasion. Courts are more willing to accept habit evidence from corporations than from individuals. o Habit evidence is allowed regardless of whether it is corroborated or whether there was an eyewitness. So okay to testify to a habit even if no one else has ever seen you act that way. Idea: The jurys free to reject self-serving or uncorroborated habit testimony. o Rule 406 is silent about how to prove habit. Courts allow both opinion testimony and specific instances of conduct. But instances of specific conduct much more common to prove habit. o Take Away: When evidence relates to character, ask what is the proponent trying to prove? and What inferences are being relied upon to prove it? Answers to these questions will determine the evidences admissibility. o X. Impeachment Discrediting witnesses is an essential part of many trials; litigants often must discredit at least some of the opponents witnesses to win. o General Impeachment Techniques: I. Offensive Techniques (1) Rebut the evidence

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(2) Complete the story (3) Clarify ambiguous testimony (4) Introduce Expert testimony II. Defensive Techniques (1) Show impaired perception or memory e.g., establish an eye witness wasnt wearing his glasses (2) Demonstrate inconsistencies Show the witness is either lying or really confused (3) Show bias (4) Attack witnesss character for truthfulness. Three ways to challenge a fact-witnesss character for truthfulness: o (1) Cross-examine the witness about specific incidents suggesting a character for untruthfulness using prior inconsistent statements under Rule 608(b)(1). o (2) Offer evidence of the witnesss criminal convictions under Rule 609. o (3) Present a character witness who offers general reputation or opinion testimony about the fact witnesss character for untruthfulness under Rule 608(a). The process for impeaching witnesses with evidence of an untruthful character balances: o the parties interest in offering that evidence, with o the judicial systems concern for focused and efficient trials. III. Referee Techniques (1) Exclude the evidence under a specific rule (2) Exclude the evidence by demonstrating unfair prejudice, confusion or delay using Rule 403. Impeachment only knocks evidence out; never brings evidence in. o So usually a better tool for defendants than for plaintiffs or prosecutors (who have the burden of proof at trial.) /prosecutor must attempt to replace knocked out evidence with something else. The FRE regulate impeachment methods available to attorneys: o Rule 607: Any Party May Impeach Any party may attack the credibility of any witness, including their own: Rule 607. Who May Impeach a Witness. Any party, including the party that called the witness, may attack the witnesss credibility. NB: Under common law, attorneys had to vouch for any witness they called to the stand, so couldnt impeach their own witnesses.

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Why would you attack your own witness? Hostile witnesses Sometimes its necessary to call a witness associated with the other side. When a witness changes her story Common in domestic violence cases To draw the sting. i.e., expose any negatives about your witness before your opponent does. Rule 613: Prior Inconsistent Statements One of the most powerful impeachment tools available is showing that a witness made inconsistent statements at different times. FRE distinguish between extrinsic and non-extrinsic evidence of inconsistent statements, bc extrinsic evidence takes more time to present and causes more distractions. Extrinsic evidence: any evidence other than testimony from the witness currently on the stand. You can always ask a witness directly about any prior inconsistent statements. Inconsistencies are relevant witness credibility Questioning takes little time. Can ask about a prior inconsistent statement without any actual collateral evidence. Though judges can demand proof of a good faith basis. If the inconsistency involves a fact of consequence, the judge will allow time for the introduction of extrinsic evidence. The facts of the case and the substantive law-at-issue determine whats collateral from whats consequential. Collateral matter: relevant to the case solely because it impeaches a witness. Non-collateral matter: proves a fact in consequence other than impeachment. o NB: A witnesss bias or perception is never a collateral issue But may still be excluded under Rule 403 as cumulative, if uncontested. Where extrinsic evidence is allowed in, it doesnt come in for its substance; just goes to witnesses credibility. Unless a separate hearsay exception applies. Limiting instruction But if an inconsistency relates solely to a collateral issue, then the judge will probably limit exploration to questions only.

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Bc the extrinsic evidences potential for prejudice, delay, or confusion substantially outweighs the probative value of admitting it. Attorney is stuck with witnesss answer and must move on. o Idea: that issue isnt consequential enough to waste more of the courts time. Two procedures parties must follow when impeaching a witness with a prior inconsistent statement: (1) Rule 613(a) requires lawyers to disclose prior inconsistent statements to opposing counsel immediately before bringing them up on cross-examination. Abolished common law convention that lawyers must disclose prior inconsistent statements to witnesses before impeaching them. o Policy: We hold people accountable for the things that they say. Rule 613. Witnesss Prior Statement. (a) Showing or Disclosing the Statement During Examination. When examining a witness about the witnesss prior statement, o a party need not show it or disclose its contents to the witness. Lets lawyers surprise witnesses. NB: handing the doc to the witness draws jurys attention & is perceived as more fair; often used for dramatic effect. Remember Judicial Discretion Judges sometimes require cross-examining attorneys to show the statement to the witness when the cross might otherwise create an unfair or inaccurate impression. (Rule 611) o But the party must, on request, show it or disclose its contents to an adverse partys attorney. Gives opposing counsel the opportunity to object & prepare to rehabilitate the witness. But opposing counsel has no right to see it before cross-examination begins. o Scope: Rule 613(a) applies to extrinsic and nonextrinsic evidence of prior inconsistent statements. So even if a party merely cross-examines a witness about a prior inconsistent statement, the party must disclose the statement to opposing counsel if requested to do so.

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(2) Rule 613(b) establishes procedural rules for the admission of extrinsic evidence of prior inconsistent statements. If extrinsic evidence of a prior inconsistent statement clears the material/collateral hurdle, then: o 1) the witness must have an opportunity to explain or deny the earlier statement, and o 2) the opposing party must have a chance to examine the witness about the statement. Rule 613. Witnesss Prior Statement. (b) Extrinsic Evidence of a Prior Inconsistent Statement. Extrinsic evidence of a witnesss prior inconsistent statement is admissible only o if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it, or Easily satisfied: usually happens on cross when the witness is there, able to be questioned, and available for redirect. Only problematic when evidence of the prior statement is introduced after the witness has left the stand. Then, generally okay if opposing counsel can recall the witness. o if justice so requires. Designed to give judges discretion in cases where witness becomes unavailable. Uncommonly applied. Youre not required to lay any foundation before introducing extrinsic proof of a witnesss prior statement. Substantive constraints on the use of extrinsic evidence to impeach witnesses with prior inconsistent statements: Rules 611 and 403 Judges precluding extrinsic evidence of collateral inconsistencies refer loosely to excluding the evidence under Rule 613; in reality, decision rests on Rule 403s balancing test or the judges Rule 611 authority to create an orderly trial. Cant introduce prior consistent statements (401-403) Very occasionally allowed when used to rehabilitate a witness whos been discredited on cross. (402-403) o Most commonly allowed when the prior statement occurred before an event that allegedly changed a witnesss testimony.

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e.g., where a co-conspirator turns and testifies for the govt, and s attack his credibility with prior inconsistent statements, judge may allow prior consistent statements that occurred before witnesss contact with the government. But usually rejected as duplicative or confusing. Impeachment by contradiction Almost always requires extrinsic evidence NB: Where evidence for impeachment by contradiction is admissible, its probably already admissible for multiple purposes. o Silence as contradiction Impeachment by previous silence Did the witness implicitly suggest they were relaying all the facts and are now including some other fact? If so, then can probably introduce previous silence as evidence of an inconsistent statement. NB: Criminal defendants have a Fifth Amendment right to remain silent, so silence cant constitutionally be held against them (especially after Mirandized). Rules 607, 608, and 609: Character Evidence And Impeachment o Remember, there is a general policy against admitting character evidence: Rule 404. Character Evidence; Crimes or Other Acts. (a) Character Evidence. (1) Prohibited Uses. Evidence of a persons character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. o Idea: Parties should focus on the events they dispute, not on one anothers past acts or general character. o Several Exceptions for Impeaching Witnesses: Certain types of evidence related to a witnesss character may be admissible under Rules 607, 608 & 609: Rule 404. Character Evidence; Crimes or Other Acts. (a) Character Evidence. o (3) Exceptions for a Witness. Evidence of a witnesss character may be admitted under Rules 607, 608, and 609. Rule 608(b): Specific Instances of Conduct To Show a Witnesss Character for Truthfulness or Untruthfulness Inference sanctioned under Rule 404(a)(3) to show: [Witness was dishonest before] [Witness has dishonest character] [Witness is lying on the stand]

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Methods for establishing untruthful character using proof of prior specific instances of conduct are established by Rule 608(b)(1): Rule 608. A Witnesss Character for Truthfulness or Untruthfulness. o (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesss character for truthfulness. But the court may, on crossexamination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness . . . . Four important points: o (1) Can only ask a witness about specific instances of conduct on cross-examination to suggest that the witness has an untruthful character. e.g., Is it true that you lied on two employment applications filed in 1974 and 1975? Doesnt matter if the previous behavior is collateral. Neednt have anything to do with the current case. But the attorney must have a good faith belief that the incident actually occurred. Good faith belief: rests on some evidence, even if the evidence would not be admissible in court. Analogous to the probable cause standard for obtaining a search warrant. o (2) Must limit these questions to actions that are probative of the witnesss character for truthfulness or untruthfulness. Did the specific prior act involve dishonesty? Using a false name, failing to file tax returns, etc. Act cannot probe other aspects of the witnesss character. E.g., murder, drug use, drunkenness, sexual proclivities, driving over the speed limit, messiness, meanness, etc. Bc not relevant to truthfulness Prior acts of truthfulness (versus untruthfulness) are only allowed for rehabilitation on cross.

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o (3) The judge has discretion to prevent questions

cross-examining a witness about specific acts that reveal untruthful character. Rule states the court may allow these questions. Also, Rule 611 and Rule 403 Even with established good faith belief of a prior untruthful act, judge maintains substantial discretion. No right to introduce. o (4) The rule bars proof of these specific instances by extrinsic evidence. Cross-examiner must accept whatever answers the witness gives. Idea: save time & avoid distraction Also informed by general ban on character evidence: trials should not turn on how parties generally behave, but on how they acted on a particular occasion. Remember: Character for truthfulness generally isnt the same as challenging the truthfulness of a witnesss statements on the stand. o 608(b) only blocks extrinsic evidence offered to prove a general character for untruthfulness. For hes lying on the stand, use 613. i.e., impeach using a prior inconsistent statement. May still be able to get evidence excluded under 608(b) in using some other purpose. Rule 609: Impeachment of Witnesses with Prior Convictions Allows evidence of a witnesss prior criminal convictions to impeach his character for truthfulness in a civil or criminal trial. o Bc witnesss criminal record relevant to truthfulness. i.e., a witness who has been convicted of a crime is deemed more likely to lie in court than a criminal who has never been convicted. o Evidence of an arrest (versus a conviction) is not probative of witnesss truthfulness, so no extrinsic evidence allowed. You can ask, werent you recently arrested?, but if witness says no, youre stuck.

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o Criminal defendants often choose not to testify bc of

this rule. Rule only applies to witnesses, so staying off the stand may keep evidence of prior felonies out. Also affects what informants prosecutors are willing to put on the stand o If 609 is satisfied, proof of prior conviction may be supported by extrinsic evidence. Elaborates on the exception to 608(b)s rule against extrinsic evidence for proving witnesss general character of untruthfulness. 608(b): Except for a criminal conviction under Rule 609 Under 609, the jury can consider a prior conviction only to assess the witnesss character for truthfulness, not for other purposes: o Rule 609. Impeachment by Evidence of a Criminal Conviction. (a) In General. The following rules apply to attacking a witnesss character for truthfulness by evidence of a criminal conviction Judge will give jury a limiting instruction (unless another exception applies). Three different rules for three categories of witnesses and prior convictions: (1) Felony convictions are generally admissible for impeaching witnesses other than criminal defendants. o Rule 609. Impeachment by Evidence of a Criminal Conviction. o (a) In General. The following rules apply to attacking a witnesss character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: (A) must be admitted, subject to Rule 403, in a civil case or in a criminal case in which the witness is not a defendant. o Policy: The commission of any serious felony is considered serious enough to affect a witnesss courtroom credibility, regardless of whether or not that felony it is analogous to lying under oath.

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Less concern with unfair prejudice when the witness being impeached isnt a criminal defendant. Misdemeanors dont implicate this policy; automatically excluded w/o any balancing. UNLESS involved a dishonest act or false statement o The witness need not have received a sentence of death or imprisonment for more than one year for impeachment to occur. Punishable by punished by Determined by max sentence available o Judge still retains Rule 403 discretion to exclude the felony conviction under 609(a)(1)(A). Regular 403 balancing. (2) Felony convictions are admissible against criminal defendants who take the stand only if the judge finds that its probative value outweighs its prejudicial effect. o Rule 609. Impeachment by Evidence of a Criminal Conviction. (a) In General. The following rules apply to attacking a witnesss character for truthfulness by evidence of a criminal conviction: (1) for a crime that, in the convicting jurisdiction, was punishable by death or by imprisonment for more than one year, the evidence: . . . (B) must be admitted in a criminal case in which the witness is a defendant, if the probative value of the evidence outweighs its prejudicial effect to that defendant . o Higher standard than 403 Bc of risk that juries will improperly use s prior convictions to conclude that must also be guilty of the charged crime. o Balancing looks to five suggested guidelines: (1) Impeachment value of the former crime. Relates to truth? higher probative value (2) Timing of the prior conviction and subsequent criminality Older convictions less probative

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(3) Similarity between the prior crime and the charged one. More similar more prejudicial (4) Importance of the defendants testimony If will forego testifying for fear of impeachment more prejudicial (5) Centrality of credibility. Swearing match? more probative o Differs from 403 balancing in three main ways: (1) Only weighs the prejudicial effect on that defendant, not any other person. Wont consider harms to co-s. 403 considers unfair prejudice to any person. (2) Sets a lower threshold for excluding evidence; balance tilts towards exclusion. 608(1)(B) equals or exceeds probative value. 403 substantially exceeds probative value. (3) Places burden on prosecutor to establish that probative value outweighs prejudicial effects. 403 puts burden on the party opposing admission o The witness need not have received a sentence of death or imprisonment for more than one year for impeachment to occur. Punishable by punished by Determined by max sentence available (3) The third rule addresses prior convictions for any crime involving a dishonest act or false statement, regardless of the witnesss role or the crimes felony status. o Rule 609. Impeachment by Evidence of a Criminal Conviction. (a) In General. The following rules apply to attacking a witnesss character for truthfulness by evidence of a criminal conviction: . . . .

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(2) for any crime regardless of the punishment, the evidence must be admitted if the court can readily determine that establishing the elements of the crime required provingor the witnesss admittinga dishonest act or false statement. o 609(a)(2) applies to misdemeanors and felonies equally. No balancing is required; no judicial discretion is available always admissible. Idea: conviction of a crime involving a dishonest act or false statement is highly probative of a witnesss character for truthfulness. o How do you distinguish crimes of dishonesty and false statements from other crimes? Congress envisioned a small class of crimes when drafting 609(a)(2). Perjury, fraud, embezzlement All admissible under 609(a)(2) Grey area: crimes that include some element of deceit. New language requires that the court be able to readily determine that establishing the elements of the crime requires proof of a dishonest act or statement. Must be apparent from statutory language or some other readily available information (indictment, statement of facts, etc.) E.g., making false statements to a federal agency requires, on its face, proof of s false statements. Courts have held that: Crimes of violence arent covered by 609(a)(2) (i.e., theft, robbery, drug use, etc.) The 6th Cir. deemed counterfeiting a crime of dishonestly The Eastern District of Mich. said, IP theft counterfeiting, so IP theft = crime of dishonesty.

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Courts split over whether failing to file an income tax return is a crime of dishonesty. Phrase generally construed broadly. Heightened requirements for admission of 10+yr old convictions: o Rule 609. Impeachment by Evidence of a Criminal Conviction. (b) Limit on Using the Evidence After 10 Years. This subdivision (b) applies if more than 10 years have passed since the witnesss conviction or release from confinement for it, whichever is later. Evidence of the conviction is admissible only if: (1) its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect; and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use. o 609(b) triggers three barriers to using 10+yr old convictions: (1) The party seeking to use the conviction must give the adverse party reasonable written notice (2) The judge must find specific facts and circumstances supporting the convictions probative value. (3) The judge must determine that the probative value of the conviction substantially outweighs its prejudicial effect. Reverse 403 analysis; prosecutors burden. Same five factors as 609(a)(1)(B): 1. Impeachment Value 2. Timing of Prior Conviction 3. Similarity of Crimes 4. Importance of Testimony 5. Centrality of Credibility Heavier burden under 609(b) than 609(a) (1)(B).

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Convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. o Jail time may significantly extend the 10yr period. Date tolls at witnesss conviction or release from confinement, whichever is later. Confinement includes time spent on probation. o The 609(b) ten year rule is especially important for prior crimes of dishonesty, which would otherwise come in automatically, regardless of misdemeanor or felony status, without any balancing or room for judicial discretion. Convictions that were pardoned, annulled, or subject to certificates of rehabilitation cant be used for impeachment under Rule 609(c): o Rule 609. Impeachment by Evidence of a Criminal Conviction. (c) Effect of a Pardon, Annulment, or Certificate of Rehabilitation. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon, annulment, certificate of rehabilitation, or other equivalent procedure based on a finding that the person has been rehabilitated, and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year; or (2) the conviction has been the subject of a pardon, annulment, or other equivalent procedure based on a finding of innocence. o SYNTHASIZED RULE: If the witness obtained a pardon etc and has not been convicted of a subsequent felony prior conviction is NOT admissible to impeach. Felony only, not misdemeanor If witness has obtained a pardon etc and since been convicted of a subsequent felony prior conviction IS admissible to impeach, UNLESS the pardon etc was based on a finding of INNOCENCE. See flowchart on page 257.

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Impeaching with Evidence of Juvenile Convictions: o Evidence of a juvenile conviction is only admissible in criminal cases when: (1) offered to impeach a witness other than the accused, and (2) when the evidence is necessary to fairly determine the defendants guilt. Whats an example of this? What about civil trials? o Rule 609. Impeachment by Evidence of a Criminal Conviction. (d) Juvenile Adjudications. Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case; (2) the adjudication was of a witness other than the defendant; (3) an adults conviction for that offense would be admissible to attack the adults credibility; and (4) admitting the evidence is necessary to fairly determine guilt or innocence. o Juvenile convictions are never admissible against the accused in a criminal case. Usually not admissible to impeach the character of any other witness, either. Idea: Promotes rehabilitation by limiting disclosure of juvenile convictions. Pendency of an appeal of the prior conviction doesnt bar its use for impeachment, but that appeal may be noted for the jury: o Rule 609. Impeachment by Evidence of a Criminal Conviction. (e) Pendency of an Appeal. A conviction that satisfies this rule is admissible even if an appeal is pending. Evidence of the pendency is also admissible. Rule 608(a): Opinion or Reputation Evidence of a Witnesss Character for Truthfulness 404(a) exception allowing character witnesses to introduce opinion or reputation evidence about an original witnesss character via testimony is governed by Rule 608(a): o Rule 608. A Witnesss Character for Truthfulness or Untruthfulness.

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(a) Reputation or Opinion Evidence. A witnesss credibility may be attacked or supported by testimony about the witnesss reputation for having a character for truthfulness or untruthfulness, or by testimony in the form of an opinion about that character. But evidence of truthful character is admissible only after the witnesss character for truthfulness has been attacked. Four limits on 608(a)s hole in 404(a)s net: (1) Testimony must relate to a witness: o If an individual doesnt testify in court, parties cant rely upon the rule to attack that persons credibility. Character Witness: offers evidence about the truthful or untruthful character of a fact witness. Fact witness: establishes facts related to the underlying legal dispute. (2) Only allows general reputation or opinion evidence of character, not specific instances of conduct. o Reputation evidence: character witness offers information about a fact witnesss reputation for truthfulness or untruthfulness. Must lay the foundation to show that the character witness has a basis for knowing fact witnesss reputation: (1) Do you go to school w/Mr. X? (2) Did you ever discuss Mr. Xs character for truthfulness or untruthfulness with other people at school? (3) What was Mr. Xs reputation for truthfulness or untruthfulness among students? Cant ask for specific examples of truthfulness or untruthfulness. Witness cant give specifics voluntarily, either. Keeps trial focused o Opinion evidence: character witness offers an opinion about a fact witnesss character for truthfulness. Must lay the foundation and show that the character witness knows the fact witness well enough to have formed an opinion.

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(1) How long have you known Mr. X/in what context/etc? (2) In that time, have you formed an opinion of Mr. Xs character for truthfulness or untruthfulness? (3) And what is your opinion of Mr. Xs character for truthfulness or untruthfulness? Cant ask for specific examples of truthfulness or untruthfulness. Witness cant give specifics voluntarily, either. Keeps trial focused. (3) Character witnesses may only offer reputation or opinion evidence about another witnesss character for truthfulness or untruthfulness. o Cant discredit witness by offering opinion shes a glutton, violent, or a slut. o Limited purpose Admissible only to assess the credibility of the witnesss courtroom testimony via her character for truthfulness. Judge may use 105 to issue a limiting instruction. Judge may exclude under 403 if unfair prejudice outweighs probative value. (4) May only introduce evidence of a witnesss truthful character after that character has been attacked. o Policy: avoids wasting time. o When has a fact witnesss character been attacked? Attacked when opponent presents a character witness who testifies about the factwitnesss lack of truthfulness. Attacked if opponent cross-examines factwitness: (a) with questions about specific acts of dishonesty under 608(b), or (b) introduces evidence of a prior conviction under 609. Not attacked when aggressively crossexamined about testimony or points out inconsistencies in that testimony. Bc suggests she lied in this particular case, not that she lies generally.

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Not attacked when accused of bias by opposing counsel. Bc not general attacks on character for honesty. Cross-Examining Character Witnesses Once a fact-witnesss character has been attacked, opposing counsel can rehabilitate that witness by introducing evidence showing that fact-witnesss truthful character. o Two main forms: (1) Explain extenuating circumstances related to prior convictions (2) Introduce reputation or opinion evidence suggesting character for truthfulness Ok to ask character witnesses about specific incidents of a fact-witnesss behavior on cross examination: o Rule 608. A Witnesss Character for Truthfulness or Untruthfulness. (b) Specific Instances of Conduct. Except for a criminal conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a witnesss conduct in order to attack or support the witnesss character for truthfulness. But the court may, on crossexamination, allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness; or (2) another witness whose character the witness being cross examined has testified about. o Policy: the cross-examiner is entitled to test the basis of the character witnesss opinion or recital of reputation. But must have a good faith basis for believing the specific acts occurred. Cant offer extrinsic evidence of any specific truthful acts. o Character for truthfulness is a per se collateral matter. So stuck with character witnesss answer on cross. o But a win-win situation for cross examiner if character witness says he doesnt know about the factwitnesss specific truthful act, he looks uninformed.

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Rule

Undermines testimony + lets jury hear about truthful acts. But hard to do; in practice, often falls flat. o Character witnesses whove offered testimony of a fact-witnesss truthful nature open themselves up to cross. So parties less likely to present character witnesses to testify about truthfulness than untruthfulness. Few people lead blameless lives. 610: Witness Credibility and Religious Beliefs Religious beliefs are not admissible to attack or support a witnesss credibility. o Rule 610. Religious Beliefs or Opinions. Evidence of a witnesss religious beliefs or opinions is not admissible to attack or support the witnesss credibility. But admissible for reasons other than credibility, such as bias, damages or motive. o E.g., establishing that was a follower of Reverend Moon was essential to prove motive for shooting Reagan (who had failed to pardon Moon) not offered to prove credibility, so not barred by 610. o Religious beliefs commonly relevant for reasons other than credibility when prosecuting hate crimes. Drawing the line between credibility and other reasons: o Are you a member of s temple? prob ok Very probative bias, etc. Not necessarily more or less truthful just bc you merely belong o Did you attend church regularly last year? depends on why its being introduced. Cant go to impeach or bolster character for truthfulness, but can go to some fact of consequence. o Can witness wear religious insignia on the stand? Clothings technically not evidence But could argue: part of the context of the testimony using 403 & 411 (judicial discretion; modes of testimony). NB: Sometimes 610 intersects with 603s oath or affirmation requirement: o 2d Circuit rejected question on cross: why were you unwilling to swear oaths on the Koran

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Held question hinged on whether witness was a devout Muslim; barred under 610.

XI. Completeness To prevent litigants from misleading the jury through piecemeal use of documents, Rule 106 establishes a rule of completeness: o Rule 106. Remainder of or Related Writings or Recorded Statements. If a party introduces all or part of a writing or recorded statement, an adverse party may require the introduction, at that time, of any other part or any other writing or recorded statement that in fairness ought to be considered at the same time. E.g., understanding a letter from A to Z may require knowledge of both As letter and a prior one written by Z. o Four Aspects to Completeness: (1) Allows a party to introduce qualifying portions as soon as the opponent offers the first portion. Dont need to wait for your own case or rebuttal. (2) Applies to writings and recorded statements only. Not oral conversations, photos or physical objects. NB: Some courts use 403 to admit missing portions of an oral statement when necessary to avoid unfair prejudice or confusion. Other courts use 611(a) to admit oral statements via judges power to control presentation of evidence. o 11th Cir. overturned a trial court that failed to allow completing of oral statements: should have used its power under Rule 611(a) to admit the exculpatory statements. NB: Some courts extend 106 to oral testimony in light of this holding; argue it. (3) Can use the rule to introduce whole writings or recordings when necessary to understand another document offered by the opponent. Doesnt have to be a documents remaining portion. (4) Fairness must require contemporaneous consideration Flexible standard; allows trial court great discretion. Advisory Committee: Rule 106 exists to correct a misleading impression created by taking matters out of context. o Circuit Split: Two interpretations of Rule 106 Rule of Timing: Most circuits view Rule 106 as only affecting the timing of when parties may introduce otherwise admissible evidence. Rule of Admissibility:

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Minority circuits interpret Rule 106 more broadly, as giving parties an avenue for admitting portions of a document that wouldnt be otherwise admissible Argue it; USSCs silent on the issue. o Rule 403: Judges may restrict this avenue when it would cause unfair prejudice, confusion or delay. o U.S. v. Castro-Cabrera? Do and the govt have to be adverse parties?

XII. Hearsay Hearsay is generally prohibited by the Federal Rules of Evidence: Rule 802. The Rule Against Hearsay. Hearsay is not admissible unless any of the following provides otherwise: a federal statute these rules; or other rules prescribed by the Supreme Court o Policy: Firsthand reports are more reliable than secondhand ones: (1) Secondhand testimony doubles the possibility that one of the reporters is mistaken or lying (2) Firsthand testimony can be tested by cross-examination (3) The fact-finder can better evaluate the confidence and sincerity of the information if they can watch the individual report it firsthand. (4) At trial, firsthand testimony is made under oath in a formal, solemn setting. What is hearsay? o Hearsay is an out-of-court statement offered for the truth of the matter it asserts. Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay. (c) Hearsay. Hearsay means a statement that (1) the declarant does not make while testifying at the current trial or hearing; and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Even if a witness quotes her own out-of-court statement in court, its hearsay if offered to prove the truth of the matter it asserts. Preliminary determinations about hearsay are decided by the judge under 104(a). Preponderance standard Party offering evidence bears the burden Qs of fact and law (bc hearsay bar doesnt affect relevance). Identifying Hearsay (1) What counts as a statement? Definitions That Apply to This Article; Exclusions from Hearsay.

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(a). Statement. Statement means a persons oral assertion, written assertion, or nonverbal conduct if the person intended it as an assertion A statement requires 1) a declarant and 2) an assertion o (a) Who is a declarant? Rule 801(b). Declarant. Declarant means the person who made the statement. All witnesses are declarants. But declarants are witnesses only when they testify under oath at a trial or hearing. Statements made by declarants while testifying at the current trial or hearing are not hearsay, but all other statements potentially are. Policy: secondhand nature of a witnesss report multiplies the possibility of error. Declarants must have made the statement based on personal knowledge (incorporates 602) Can be personal knowledge of something you, yourself, saw: I saw the partner near the auditorium Can be personal knowledge that another declarant said something: G told me he saw the partner near the auditorium. Declarants must be human Bc animals dont lie, so not governed by policies requiring hearsay protection. (b) What is an assertion? o Any action undertaken by the declarant that is intended to communicate a fact; i.e., any intentional communication. Assertive versus non-assertive conduct: Just bc something includes words doesnt make it a statement, & just bc assertions non-verbal or stayed silent doesnt make it not a statement. o Statements can be non-verbal HYPO: Emphatically shaking a wet umbrella when asked, is it raining?

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HYPO: Marking an X on patrons hands to mark not 21 in a bar. o When is silence an assertion? When a reasonable person under the circumstances would have intended the silence to be an assertion. HYPO: Reasonable people intend leaving list any lung problems blank on a medical form to be an assertion that they have no medical problems. NB: But if every line is left blank, less likely to be deemed a statement HYPO: Purchasers failure to complain about a defective product not a statement intended to assert or communicate anything, bc lots of reasonable, unhappy purchasers would stay silent. o When are words not an assertion? When generated by a computer or other electronic device. Fully automatic or internal process? not a statement Information or signal originates from a human? statement The following media almost always contain statements: o Emails o Audiotapes/other soundtracks o Websites containing words o Faxes The following media rarely deemed statements, because they usually require a witness to take the stand and explain their meaning or importance: o Photos o Videos o Websites without words (2) When is the statement offered for the truth of the matter it asserts? If an out-of-court statement is offered to prove the truth of the matter asserted, it is inadmissible hearsay. But if its offered for any other purpose, it is not hearsay. o Ask: What is the proponent trying to prove with the statement?

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Trick focus on declarants firsthand, personal knowledge. If declarant is offering a statement reflective solely of her personal knowledge, then the statement is not hearsay. E.g., Greg told me the partner was in the auditorium may be introduced to prove that Greg told the witness the partner was in the auditorium bc shes reporting that info from her own experience, but not to prove that the partner was actually in the auditorium bc she personally never saw him there. Many out-of-court statements are relevant to prove more than one fact. o The judge will admit statements admissible for one purpose but not another so long as any unfair prejudice doesnt substantially outweigh its probative value under 403. Balance the hearsay purpose vs. non-hearsay purpose. Opponent will argue: probative value substantially outweighed bc jury will be unable to ignore hearsay purpose! Common purposes that out-of-court statements are offered for other than the truth of the matter asserted: o (1) Knowledge of the speaker e.g., in a personal injury case, a neighbors statement mentioning that a dangerous condition existed on his property may be offered to show he had knowledge of that condition, but not that the condition actually existed. o (2) Notice to a listener e.g., a nurse can testify she heard the surgeon explain the risks of surgery to prove the patient had been told of the dangers. o (3) Publication in a defamation case. Cant prove the defamatory statement was true or false, but that it was made and read. o (4) Effect on the listener e.g., If case requires proving defendant made the statement that gave victim reasonable fear, etc.

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(5) Legally binding statements. e.g., I accept in a contract case (bc doesnt matter whether speaker was lying or telling the truth, only that they said it). Admissible Hearsay Exceptions: o Thirty-one hearsay exceptions rest on two axioms: (1) Reliability: some hearsay statements are more reliable than others (2) Need: some hearsay statements are more needed than others. o Whether a statement fits into a hearsay exception falls under 104(a) JUDGE Neither the hearsay bar nor its exceptions affect relevance. Preponderance standard Party arguing exception bears the burden o FOUR MAIN CATEGORIES OF HEARSAY EXCEPTIONS:

o (1) 801(d) deems two types of out-of-court statements not hearsay:

First, Rule 801(d)(1) exempts evidence of some prior statements made by witnesses from the hearsay ban. Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay. (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: o (1) A Declarant-Witnesss Prior Statement. the declarant testifies and is subject to cross-examination about a prior statement . . . . When a witness is available, she can just repeat her prior statement directly on the stand in answer to direct questions, avoiding issues of hearsay. Thus, these rules are generally used only for witnesses who dont want to repeat their earlier statements on the stand. 801(d) is usually used by opposing counsel. o Need: witnesses feel embarrassed, intimidated, want to protect friends and family members, etc. o Reliability: witness is in the courtroom, subject to cross + something about each statement increases its reliability. 1) Testifies + 2) subject to cross = Rule 801(d)s gateway requirements that increase these statements reliability. When is a declarant subject to cross? o Three requirements from US v. Owens: 1) Appears on the stand 2) Takes an oath 3) Exhibits willingness to answer questions

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Witnesses who take the stand and claim lack of memory (real or feigned) are still subject to crossexamination, while those who completely refuse to testify by invoking privilege etc are not. Memory loss: A declarant with either real or feigned memory loss is still subject to cross, so long as shes placed on the stand, under oath, and responds willingly to questions. (Owens, USSC) Idea: cross is meant to discredit the witnesss memory or perception. Even more subject to cross where memory loss is clearly feigned, bc easier to discredit. Unwilling to respond: Declarants who are unwilling to respond cant satisfy the Owens requirements not subject to cross. Privilege: Assertion of privilege makes declarant-witness not subject to cross. Doesnt matter of the privilege claim is valid or not

Three types of prior statements satisfying 801(d)s gateway requirements are admissible under that rule:

801(d)(1)(A): Prior Inconsistent Statements Rule 801(d). A statement that meets the following conditions is not hearsay: o (1) A Declarant-Witnesss Prior Statement. The declarant testifies and Is subject to cross-examination about a prior statement, and the statement: (A) is inconsistent with the declarants testimony and was given under penalty of perjury at a trial, hearing, or other proceeding or in a deposition. o Five requirements to exempt hearsay under 801(d)(1) (A): (1) Declarant testifies at trial (2) Declarant-witness is subject to cross (3) Prior statement is inconsistent with courtroom testimony Assures testimony will be useful.

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Inconsistent if flatly contradictory. Most courts also deem a detailed prior statement inconsistent with real or feigned memory loss on the stand. NB: One court has held a detailed prior statement was NOT inconsistent with real memory loss on the stand. (4) Prior statement was given under penalty of perjury Goes to reliability (5) Prior statement was given during a deposition, trial, hearing, or other proceeding. Audience + transcript proceeding Grand Jury = other proceeding But interrogation proceeding Proceeding requirement enhances the out-of-court statements reliability o Purpose: While prior inconsistent statements under 613 may only be introduced for the purpose of impeaching a witnesss credibility, prior statements brought in under 801(d)(1)(A) may be used to prove the truth of the matter they assert.

801(d)(1)(B): Prior Consistent Statements Rule 801(d). Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: o (1) A Declarant-Witnesss Prior Statement. The declarant testifies and Is subject to cross-examination about a prior statement, And the statement. . . . (B) is consistent with the declarants testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying . . . . o Five requirements to exempt hearsay under 801(d)(1) (B): (1) Declarant testifies at trial (2) Declarant/witness is subject to cross (3) Prior statement is consistent with courtroom testimony

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Neednt have been given under oath or at a proceeding bc guarantees of reliability less important re: consistent statements. (4) Offered to rebut charged/implied fabrication Cant just be repeating witnesss testimony (5) Prior statement was made before any motive to lie arose Ask: was the prior statement made before witness was asked/paid to testify, or knew hed be in court? Courts consider legal files, testimony, content of statements themselves, and other circumstantial evidence to determine when a motive to lie arose. Common law requirement (Tome v. US, USSC) rule just says, recently fabricated Out-of-court statements made after motive to lie arose are out. Assures the statement is highly probative o NB: 801(d)(1)(B) converges with 613s requirements. Where both are satisfied, prior consistent statement may be used both to rehab the witnesss credibility and for its substantive content.

801(d)(1)(C): Prior Identifications Rule 801(d). Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: o (1) A Declarant-Witnesss Prior Statement. The declarant testifies and Is subject to cross-examination about a prior statement, And the statement: . . . (C) identifies a person as someone the declarant perceived earlier. o Three requirements to exempt hearsay under 801(d) (1)(C): 1. Declarant testifies at trial 2. Declarant/witness is subject to cross 3. Prior statement was identification of a person.

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Prior out-of-court identifications are considered more reliable than in-court statements. Neednt have been made under oath Irrelevant whether declarant is able to repeat the identification in court. Doesnt have to be admitted by the person who made the identification; another person who witnessed the identification can also testify about that identification (if they appear as a witness + are subject to cross) o NB: This exemption applies in both civil and criminal cases (although much more common in criminal court) o See 801(d)(1) summary on page 489

Second, Rule 801(d)(2) allows a party to introduce any out-of-court statement made by an opposing party. Rule 801. Definitions That Apply to This Article; Exclusions from Hearsay. (d) Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: o (2) An Opposing Partys Statement. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity; (B) is one the party manifested that it adopted or believed to be true; (C) was made by a person whom the party authorized to make a statement on the subject; (D) was made by the partys agent or employee on a matter within the scope of that relationship and while it existed; . . . . Policy: We hold people accountable for the things that they say. Founded in principles of estoppel, not reliability or need. Only one limitation: to qualify, a partys statement must be offered against that party. Cant introduce your own out of court statements under this exemption. o Prevents self-serving statements; end run around testifying under oath, subject to cross & jurys scrutiny.

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Very broad rule: applies to any statement made by a party to the suit, anytime, anyplace, said to anyone, for any purpose: Applies in both civil and criminal cases. o Often used to bring in confessions, phone calls or letters written to family from jail, emails sent to a CEO, interviews to news anchors after an accident, etc.. Statement neednt be incriminatory o Can even be exculpatory if introduced by partyopponent. Statement neednt consist of party-opponents own words. o Sufficient if the party manifested that it adopted a statement or believed [the statement] to be true. (Sub-B) Signing a document adoption Silence adoption, if a reasonable person would speak up rather than remain silent under the circumstances. Unless silence to law enforcement, especially post-Miranda. o Includes any statement by the partys agent or employee on a matter within the scope of that relationship and while it existed. (Sub-D) Agent = someone authorized to act for a party on a particular matter. Attorney or employees Independent contractors? Yes, but narrower scope. Includes statements agents make to others within the agency/workplace AND statements they make to outsiders. So long as within the scope of agency/employment. o Includes any statement by a person whom the party authorized to make a statement on the subject. (SubC). Broader than agency; any individual authorized to speak on a particular subject or occasion. e.g., letters of recommendation No personal knowledge is required. o Were held responsible for every statement we make, even if theres evidence we were lying, uninformed, or mistaken.

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Sophie bit a child allowed in, even though said before declarant had collected all the facts or established it was true. o In these cases, argue statement extremely unreliable under 403. Especially if includes double or triple hearsay. o The declarant-partys availability is immaterial. ADVISE YOUR CLIENT NOT TO DISCUSS THE CASE WITH ANYONE UNLESS THE CONVERSATION IS PRIVILEGED. But 801(d)(2)s scope commonly reigned in by other rules. Statements let in under 801(d)(2) often kept out under 407, 408, 409, etc. And if none of those apply, argue 403. (Duh.) Opposing Party Statements and Multiple Parties: May one party offer a statement against another party on the same side of litigation? Parties may introduce a statement against any other party, including one on the same side, so long as it was made by that party. o NB: Courts are split on the issue; the rule itself isnt clear. Narrow reading : Party-opponent Broad reading: Statement by opposing party Beware of spillover: statements may only be offered against the party who actually made them. o e.g., I know I ran a red light before the collision, but the other guy was speeding admissible against declarant only, not other guy. Unless statement adopted or endorsed via agency or authorization under 801(d)(2)(B), (C) or (D) independently admissible Lets one s statement enter against all s Spillover in Civil Suits: o Find adoption or authorization Makes the statement independently admissible. o Limiting instruction o Redact parts of the statement, if possible o Exclude completely under 403 Spillover in Criminal Trials: o A limiting instruction is constitutionally insufficient under the 6th Amendment when an out-of-court statement explicitly implicates a co-. (Bruton). Unless the declarant-accuser takes the stand.

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NB: cant compel a co- to testify. With self-incriminating statements, defendant is deemed his own accuser, so no right to confront exists. Richardson: statement must expressly implicate co-defendant on its face; no Bruton issue if co- implicated only circumstantially. HYPO: I dressed as a vampire + vampire costume found in co-s car express implication; no 6th A issue. But judge may issue a limiting instruction, anyway. o Prosecutors options when the declarant foregoes testifying: Redact to not implicate other defendants Gray: redacted confession that simply blanks out co-s name too obvious; violates Bruton. Judge may issue a limiting instruction on top of a proper redaction. Severance try each separately Forego use of the statement Find adoption or authorization Makes it independently admissible Statements of Coconspirators 801(d)(2)(E) holds coconspirators accountable for statements made by any member of the conspiracy: Rule 801(d). Statements That Are Not Hearsay. A statement that meets the following conditions is not hearsay: (2) An Opposing Partys Statement. The statement is offered against an opposing party and: . . . (E) was made by the partys coconspirator o Applies to both criminal and civil trials. Antitrust cases, etc. o No Bruton problem bc one speaks for all. So no redaction is necessary. Judge decides whether the following three elements are met by a preponderance of the evidence under 104(a): o (1) Statement made by a co-conspirator Members of a common venture

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Broader than substantive law on conspiracy Dont have to be charged with conspiracy Applies to most crimes involving more than one individual. o (2) Statement occurred in furtherance of the conspiracy Neednt have actually advanced the conspiracy; just must bear some positive relationship to the conspiracys goals. Statements not in furtherance of: Confessions Boasts to people outside the conspiracy o (3) Statement occurred during the conspiracy. Starts as soon as 2+ people agree to pursue a common goal An arrest almost always ends a conspiracy bc arrest ends their common goal. Keeps out post arrest confessions against co-conspirators. But cases exist where conspiracy survives arrest. Ask: still pursuing a common goal? More reliable w/no incentive to lie? Working together to conceal the crime? Or disbanded & concealing crime independently/unilaterally? Bc conspiracy is a preliminary determination, judge can look at the statement itself or other hearsay/evidence in deciding whether coconspirators statement is admissible. o BUT: Content of the statement alone isnt sufficient to support admissibility: Rule 801(d)(2). An Opposing Partys Statement. . . . The statement must be considered but does not by itself establish The declarants authority under (C); the existence or scope of the relationship under (D); or the existence of the conspiracy or participation in it under (E). Some other evidence must also help establish the relationship.

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See flowchart on p.678

(2) Rule 804 creates five exceptions that apply only when declarant is unavailable: These exceptions rest mostly on need rationale due to declarants unavailability. NB: Unavailability decided by a judge during preliminary determinations, so FRE dont apply. When is a declarant sufficiently unavailable so that the 804 exceptions can appy?: Rule 804. Exceptions to the Rule Against HearsayWhen the Declarant is Unavailable as a Witness. (a) Criteria for Being Unavailable. A declarant is considered to be unavailable as a witness if the declarant: o (1) is exempted from testifying about the subject matter of the declarants statement because the court rules that a privilege applies; o (2) refuses to testify about the subject matter despite a court order to do so; o (3) testifies to not remembering the subject matter; o (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity, physical illness, or mental illness; or o (5) is absent from the trial or hearing and the statements proponent has not been able, by process or other reasonable means, to procure: (A) the declarants attendance, in the case of a hearsay exception under Rule 804(b)(1) or (6); or (B) the declarants attendance or testimony in the case of a hearsay exception under Rule 804(b)(2), (3), or (4). But this subdivision (a) does not apply if the statements proponent procured or wrongfully caused the declarants unavailability as a witness in order to prevent the declarant from attending or testifying. Five cases where a declarant is deemed legally unavailable: (1) Privilege o If a witness invokes a privilege, and the judge agrees the privilege shields the witnesss testimony, the witness is unavailable. o Must call that witness to the stand. Unless privilege against self-incrimination. (2) Refusal to testify despite a court order

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o Includes claims of privilege not recognized in that

jurisdiction. (3) Lack of Memory o Memory loss must relate to the subject matter of the out-of-court statement. o Must be complete; lacking details is insufficient to satisfy unavailability. o Memory loss can be real or feigned. The crucial factor isnt the unavailability of the witness, but the unavailability of his testimony. o Usually requires calling declarant to the stand. (4) Death, Physical Illness, Mental Illness o The physical or mental illness must be sufficiently disabling that a) the witness cant come to court to testify, and b) theres little chance of recovery within a reasonable time o Physical or mental infirmity shown by putting witness on the stand, when possible. Death is established via a death certificate. (5) Absence o Witness unavailable if the party can show she tried to find the declarant and bring him to the hearing, but was unable to do so. o Usually requires either: Couldnt find after a diligent search, or Outside jurisdiction, where Reasonable means were taken to get declarant to court (such as offering to pay travel expenses) Declarant was subpoenaed; and Used reasonable means to get declarants deposition. o Court will give more leeway in a criminal case. Wrongdoing Caveat: Cant use wrongdoing to procure a declarants unavailability.

804(b)(1): Former Testimony Usually applies where a case is reversed and remanded, but a witness has died or disappeared in the meantime. Rule 804(b). The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former Testimony. Testimony that:

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o (A) was given as a witness at a trial, hearing, or lawful

deposition, whether given during the current proceeding or a different one; and o (B) is now offered against a party who hador, in a civil case, whose predecessor in interest hadan opportunity and similar motive to develop it by direct, cross, or redirect examination. Requirements: (1) Party must be unavailable, as per 804(a). (2) Prior testimony must have been given at a trial, hearing or deposition. o Assures prior testimony was given under oath and in a formal setting. Transcript assures accuracy o Neednt have been part of the same lawsuit. (3) Opposing party must have had the opportunity to question declarant in the prior trial or proceeding. o Only needs an opportunity; neednt have actually conducted an examination Could be on direct, cross, or redirect. Notice to opponent of a deposition = opportunity to cross. Courts way more likely to accept it if actually cross-examined. The more vigorous the prior cross, the more likely it will come in. o Criminal Cases Only: Prior testimony admitted only if opposing partys own counsel had an opportunity to cross at the prior proceeding.. Civil trials can be predecessor in interest. Issues between the cases were similar Purpose for the prior testimony was similar HYPO: Dairy farmers sued criminally and civilly; both cases required proving that no conspiracy existed. Clear this up! See page 607 o NB: Plea Allocutions opportunity to cross. Judge, not parties, ask the questions. (4) Opponent must have had a similar motive to develop testimony during that prior proceeding. o Idea: if the stakes werent the same, the opposing party might not have crossed in the same manner.

Four

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i.e., pretrial motion hearings have different motives than examinations at trial. o Assess Four Factors: 1) The type of the proceeding 2) Trial strategy 3) Potential penalties or financial stakes 4) The number of issues and the parties.

804(b)(2): Dying Declarations Rule 804(b). The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: ... (2) Statement Under the Belief of Imminent Death. In a prosecution for homicide or in a civil case, a statement that the declarant, while believing the declarants death to be imminent, made about its cause or circumstances. Four Requirements: (1) Declarant must be unavailable o NB: Neednt have actually died. (2) Rule applies only in homicide prosecutions or civil proceedings. o Dont fuck this up! Not assault, not robbery, etc. (3) Declarant must have believed that death was imminent. o Subjective: Must actually believe that death: (a) will happen very soon, and (b) is inevitable o Judge decides declarants state of mind under 104(a) by a preponderance of the evidence: Statements by the declarant? Statements made by medical personnel & others to declarant? Nature and extent of wounds or illness? Length of time between the statement and declarants death? Opinion of medical personnel who treated the declarant about the declarants health? o Declarants sincere belief that death is imminent is more important than any actual time limits. (4) Statement must concern the cause or circumstances of the declarants death. o Of someones death: Hamlet example Both H & L died of the same poisoned sword, so Ls speech re: Hs death will apply to the cause of Ls death.

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Are suicide notes dying declarations? Courts are split. o Where yes, still must arise under a homicide prosecution or civil trial. NB: Dying declarations often also fall under excited utterances, state of mind, medical treatment, and forfeiture; dont automatically jump to dying declaration. Especially in a multiple choice question.

804(b)(3): Statements Against Interest Self-inclupatory statements are considered inherently more reliable: Rule 804(b). The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: ... (3) Statement Against Interest. A statement that: o (A) a reasonable person in the declarants position would have made only if the person believed it to be true because, when made, it was so contrary to the declarants proprietary or pecuniary interest or had so great a tendency to invalidate the declarants claim against someone else or to expose the declarant to civil or criminal liability; and o (B) is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. Five Requirements: (1) Declarant must be unavailable (2) The out-of-court statement must have been against declarants interest when made. o Whether it actually caused the declarant any harm is irrelevant. o Statement against interest in a suicide note? Could argue it either way, but probably not. (3) Three recognized ways a statement can be against a declarants interest: o This list is exhaustive (a) contrary to proprietary or pecuniary interest (b) renders invalid a claim she has against another person; or (c) exposes declarant to civil or criminal liability.

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Doesnt include standing in the community, physical retaliation, etc. But can be used in addition to an explicitly listed interest to weigh in favor of no reasonable person would say this unless it was true. o Statements that admit wrongdoing but minimize guilt are suspect really against interest? Mixed statement implicating others? Redact. Bonnie and I robbed the bank together. Mixed statement that includes neutral phrases? Redact. (4) Objective standard governs courts determination of whether a statement was sufficiently against the declarants interest. o Would a reasonable person in declarants position have falsely made the incriminating statement? Grant of immunity? not against interest (5) In criminal cases, only admissible when corroborating circumstances clearly indicate statements trustworthiness. o Requires corroboration of both: (1) the declarants trustworthiness, and (2) the statements trustworthiness o Court looks to six factors: (1) Had declarant pled guilty before making the statement, or was he still subject to prosecution? i.e., how far against declarants interest was the statement at the time? (2) Declarants motive in making the statement; reason to lie? (3) Did declarant repeat the statement consistently? (4) Who are the parties to whom the statement was made? (5) Whats the relationship of the declarant with the accused? The closer the relationship, the more likely the third party is to lie. (6) Whats the nature/strength of independent evidence relevant to the conduct in question? o Party offering exculpatory statements burden to prove trustworthiness by a preponderance of the evidence, under Rule 104(a). Courts very suspicious in these cases. o

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NB: Where the third party takes the stand and announces I did it, its not hearsay, so no exceptions needed.

804(b)(6): Forfeiture Admits out-of-court statements offered against a party caused a witnesss unavailability. Rule 804(b). The Exceptions. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: ... (6) Statement Offered Against a Party That Wrongfully Caused the Declarants Unavailability. A statement offered against a party that wrongfully causedor acquiesced in wrongfully causingthe declarants unavailability as a witness, and did so intending that result. Four Requirements: (1) Declarant unavailable (2) Opposing party must have wrongfully caused or acquiesced in the witnesss unavailability. o Exception doesnt apply to legitimate means e.g., offering privilege, persuasion, transferring a knowledgeable employee overseas, threatening to use harmful testimony, etc. o Wrongful = coercion, undue influence, undue pressure to silence testimony and impede the truth-finding function of trials. o Acquiesced = 1) tacitly agreed; 2) had bare knowledge yet failed to warn; or 3) conspiracy liability. Neednt have personally committed the wrongful act Courts construe acquiescence broadly. (3) Opposing party must have intended to make the declarant unavailable. o Unintentional result of wrongdoing? Not enough. o But intent to silence can be one of many intents. Comes up in cases of DV, child abuse, etc. (4) Wrongdoing must have caused declarant to become unavailable. Rule applies equally to potential witnesses, so long as wrongdoer has the requisite intent. Where all three requirements are met, the declarants statements are admissible against the party in all future cases in which the wrongdoing makes the declarant unavailable.

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(3) Rule 803 creates 23 exceptions that apply whether or not the declarant is available to testify: These rules apply regardless of declarants availability: Rule 803. Exceptions to the Rule Against Hearsay Regardless of Whether the Declarant Is Available as a Witness. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: o Each relies primarily on assumptions of increased reliability. NB: Increased reliability doesnt deem them reliable, just admissible. Rule 803 can be broken into three rough categories:

(1) THREE IMMEDIACY EXCEPTIONS: The event speaks through the out-of-court statement.

803(1): Present sense impressions Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: o (1) Present Sense Impression. A statement describing or explaining an event or condition, made while or immediately after the declarant perceived it. Two conditions define present sense impressions: o (1) Description or explanation of an external event Not internal, analysis, or interpretation e.g., I won the lottery Description must stick closely to the unfolding facts; otherwise analysis. o (2) Made contemporaneously; while perceiving the event, or immediately thereafter. Immediately after usually only a few seconds; rarely, minutes. (8 minutes = very outer limit; searching for a payphone) If intervening time spent looking for a means of communicating info to others, more likely immediately. NB: Key to winning admission is laying the foundation. o FRE dont apply to preliminary determinations, so lots of room for advocacy. o Proponents commonly introduce: Declarants in-court testimony, affirming she made the statement as she perceived the event

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Testimony from other witnesses who confirm that declarant made the statement while the event unfolded.

803(2): Excited utterances Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: o (2) Excited Utterance. A statement relating to a startling event or condition, made while the declarant was under the stress of excitement that it caused. Two conditions define an excited utterance: o (1) Declarant spoke while genuinely excited by an event Subjective standard Excitement must be great enough that the particular declarant would have had difficulty formulating a lie while speaking (reliabilitys based on spontaneity). No time limit on excitement, though ongoing fear generally isnt sufficient. Must be a reaction. o (2) Statement was related to that startling event Comments unrelated to the provoking event are inadmissible May move beyond mere description; analysis & interpretation are admissible. NB: Hillman Written statements may be excited utterances; same analysis. NB: The key to winning admission is laying the proper foundation. o FRE dont apply to preliminary determinations, so lots of room for advocacy. o Proponents commonly introduce: Declarants in-court testimony, affirming he was excited when making the statement. Testimony from witnesses who perceived declarant as he made the statement & can testify to his mannerisms, tone of voice, time elapsed, relationship to the provocation, age, prior experiences, and how traumatic or exciting the event was.

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803(3): State of Mind Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . o (3) Then-Existing Mental, Emotional, or Physical Condition. A statement of the declarants then-existing state of mind (such as motive, intent, or plan), or emotional, sensory, or physical condition such as mental feeling, pain, or bodily health, o but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarants will. Contemporaneous expression of an internal state is deemed analogous to the immediate reporting of external events. o i.e., more reliable Six key points for state of mind: o (1) Only covers statements about declarants then existing state of mind. Current, not past: i.e., My toe hurt yesterday not admissible (unless offered as circumstantial evidence that it was probably still hurting today bc then not offered for the truth of the matter.) Can use then-existing mental states as circumstantial evidence of subsequent thoughts or acts I plan to rob the bank on Friday reflects then-existing state of mind + provides circumstantial evidence declarant acted consistently with those plans. o (2) Lists four types of internal states a declarant might describe (broad): Emotional state Sensory state Physical condition State of mind, motive, intent, plan, mental feeling, pain, and bodily health. o (3) Doesnt admit statements about external events or conditions; courts will redact. I just won the lottery and I have a million dollars. I won connotes internal excitement vs. I have a mill describes something real causing that excitement.

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I plan to rob the bank on Friday because Joe needs the money. e.g., Im hungry because I had only salad for lunch But check if another exception lets the redacted portion in. o (4) Statements of memory or belief are not admissible when offered to prove the fact remembered or believed. Beware: I think, I believe, and I remember usually introducing statements of external facts or events. I remember how hot I felt yesterday: admissible to show that, at the moment she spoke, she remembered feeling hot the previous day; not admissible to prove she actually felt hot the previous day. I believe D pulled the trigger admissible to prove that at the time she spoke, declarant believed D was the trigger person, but not that D actually pulled the trigger. Exception: An out-of-court statement of memory or belief is admissible to prove the fact remembered or believed if that fact relates to the validity of the declarants will. (v. rare) o (5) Parties may use a declarants state of mind as circumstantial evidence of the declarants prior or subsequent acts. e.g., I just got a promotion at work may provide circumstantial evidence that decedent was in a good state of mind. Use 403 to exclude statements that offer circumstantial evidence when the jurys likely to use improperly. e.g., I know that the trades were short sales. o (6) Hillman Doctrine (USSC) Controversial: lets proponent use one persons state-of-mind to prove the actions of another person: I plan to travel to Topeka with Hillman today ok to prove Hillman traveled to Topeka. Today, Rule 803(3) may overrule

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State

o o o o o o o o o o o o o

But many courts allow parties to introduce state-of-mind statements referring to future actions of another, especially if victims parting words. Some admit the statement if independent evidence corroborates the third partys conduct. of Mind: Examples: Im flying to San Diego, tomorrow. I hope grandpa leaves me the family estate. My head hurts so badly I can barely stand it. Yesterday, my head hurt so badly. I hate my sister. I wish she had never been born. I love you. I loved you from the first moment I saw you. Im going to pick up some pizza on my way home from work. Im going to rob the bank on Thursday ? Jerry and I are going to rob the bank on Thursday. I saw Jarred hit Alma in the face. Im going to rent the car from Hertz. I am so excited about starting law school today!

(2) THREE SELF INTEREST EXCEPTIONS: 803(4): Statements for Medical Treatment or Diagnosis Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . (4) Statement Made for Medical Diagnosis or Treatment. A statement that: o (A) is made forand is reasonably pertinent to medical diagnosis or treatment; and o (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. Three Main Points: o 1. Statement must be made for a medical diagnosis or treatment. Subjective standard Both physical and psychological diagnosis or treatment

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Declarant not necessarily seeking treatment for herself (but must be sufficiently close to speak on injured partys behalf) Any audience; not necessarily talking to a doctor Doesnt admit statements made from doctor to patient. Admits statements made to doctors consulted in preparation of litigation (bc expert opinion is still diagnosis) Admits statements made to doctors by crime victims. o 2. Statements must be reasonably pertinent to diagnosis or treatment. Objective standard If doctor solicits the info, assume responses are pertinent. Cause of injury or illness is pertinent, but blame is not. Tricky w/psych: DV or sexual abuse may require identifying abuser as part of treatment (separation/removal) May refer to past events o 3. Statement must fall into one of three categories: Accounts of medical history Descriptions of past or present symptoms or sensations; or Reports about the inception of the condition or its general cause.

803(6): Business Records Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . o (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by or from information transmitted bysomeone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit.

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(C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification; and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. Six Key Elements: o (1) A business record Business defined broadly includes prison, college, hospital, and self employed business records. Basically, just draws the line at personal records (unless kept for business purposes). Record defined broadly any memorandum, report, or data compilation. The record can contain info about an act, event, condition, opinion, or diagnosis pretty much any information that an organization documents. o (2) Record was made by someone with personal knowledge Made by someone with personal knowledge OR have received that info from someone else in the organization with personal knowledge. Transmitted by doesnt include outsider thirdparties. (Becomes double hearsay; redact or find another exception). Info must have been recorded within a reasonable time after the data arose. o (3) Record was made in the course of a regularly conducted business activity. Ensures business relies on the document as part of its regular business. o (4) The business must have a regular practice of keeping such records. Neednt be kept daily or weekly, just as part of a regular routine. o (5) Records custodian or other qualified witness must introduce it into evidence.

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Broadly construed; any person with necessary knowledge to lay the foundation. i.e., must be able to testify that the record was kept in the course of a regularly conducted business activity, as part of a regular practice and was made by someone with personal knowledge. Not necessarily someone within the organization. Can be certified via a written statement by the qualified witness (not just via testimony). o (6) Must not contain indicia of untrustworthiness Cant have been prepared in preparation of litigation Business Records Attack Plan: o 1. Identify an business with some records. o 2. Present a qualified witness (or certification) to lay the foundation. Custodian or anyone who has the info needed to lay the foundation. o 3. Lay the foundation Made by a person with personal knowledge At or near the time data arose Record kept in course of a regularly conducted business activity Record kept as part of a regular practice o 4. Rebut arguments the record is untrustworthy Prepared in preparation or contemplation of litigation?

803(8) Public Records Public records are must satisfy narrower rules to be admissible: Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . (8) Public Records. A record or statement of a public office if: o (A) it sets out: (i) the offices activities; (ii) a matter observed while under a legal duty to report, but not including, in a criminal case, a matter observed by law-enforcement personnel; or

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(iii) in a civil case or against the government in a criminal case, factual findings from a legally authorized investigation; and o (B) neither the source of information nor other circumstances indicate a lack of trustworthiness. Make sure its a public record. o Private or quasi-governmental organizations (SPCA, lobbyists, election campaigns) dont satisfy the rules rationale. If a public record, must satisfy 803(8), not just 803(6). Extra protection when dealing with the full power of the govt. BREAKS INTO THREE SECTIONS: 803(8)(A)(i): Records of an agencys activities are generally admissible. o Includes documentation of all activities engaged in by the agency finances, hiring, meetings, votes, etc. 803(8)(A)(ii): Observations made pursuant to an agencys duties are generally admissible. o e.g., inches of rainfall; travelers passing a checkpoint, etc. Applies only to matters the agency has a duty to report; records exceeding agency authority not covered. o Exception: matters observed by law enforcement personnel not admissible against criminal defendants. Less likely to be neutral Raises 6th A concerns Exception limited to law enforcement only state can enter observations of other govt officials in a criminal trial. Defendant can enter law enforcement observations against the state. o NB: Exception doesnt apply if law enforcements observation was ministerial. Ministerial = objective, w/heightened likelihood of neutrality e.g., documenting license plate numbers that cross the boarder. 803(8)(A)(iii). Factual findings from authorized government investigations are admissible. o Factual findings includes the investigators opinions and conclusions.

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Investigation just must have been legally authorized. o Exception: the results of an investigation conducted by any public agency are not admissible against a criminal defendant. Less likely to be neutral Raises 6th A concerns Any agency = broader than (A)(ii). E.g., govt cant introduce social workers investigatory notes to prosecute an abusive father. Finally, public documents are not admissible if they lack trustworthiness, under 803(8)(B). o Was the person being prosecuted or sued in charge of keeping those records? o Four factors for determining trustworthiness of an investigation: 1. Timeliness of the investigation 2. Special skill or experience of the official conducting an investigation 3. Whether a hearing was held prior to a report being made 4. Agencys motivation in conducting the investigation. (In anticipation of litigation?) Beware: Statements by third parties require a separate hearsay exception. o Watch out for hearsay within hearsay

(3) OTHER 803 EXCEPTIONS:

803(5): Recorded Recollections Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . o (5) Recorded Recollection. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witnesss memory; and (C) accurately reflects the witnesss knowledge.

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o If admitted, the record may be read into evidence but

may be received as an exhibit only if offered by an adverse party. Six Requirements for Admissibility: o (1) The out-of-court statement must appear in a record Memorandum, report, or data compilation Construed broadly - includes audiotapes and other media Just must have been memorialized in some way. o (2) Witness made or adopted that record Adopted = approved or agreed it was true (like a police report statement) Ensures effective cross-examination o (3) Witness once had personal knowledge o (4) Witness made or adopted the record when that knowledge was fresh Doesnt require contemporaneous note-taking, only that witness genuinely remembered at time the time it was recorded. o (5) Witness testifies that info was accurate o Accurately reflected the knowledge she had at the time made or adopted. o (6) Witness now has forgotten Cant remember well enough to testify fully and accurately; complete memory loss not necessary. Includes feigned memory loss Prevents parties from circumventing the hearsay rule. Once deemed admissible, must be read into the record by the witness. o Only opposing party may admit it into evidence. e.g., enter recorded license plate number to show writing was smudged and illegible, t/f possibly inaccurate. Dont confuse with refreshing memory under 612. o See chart on p. 545

803(7): Absence of Records The rules make it explicit that proof of the absence of a record is not hearsay. o Apply to both business and public records. Double check not to distinguish from 803(10).

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Even without these rules, though, absence in this context isnt a statement. Proponent must show that: o (1) The records containing the omission are diligently kept. o (2) The absence relates to a matter about which the business regularly kept records. o (3) The absence doesnt lack trustworthiness. o

803(16): Ancient Documents Two elements: o (1) Document has existed for 20 years or more o (2) Authenticity established Must lay the foundation. NB: Watch for hearsay within hearsay 803(17): Market Reports and Similar Commercial Publications Two elements: o (1) Data compilation 803(17). Market quotations, lists, directories, or other compilations Cant be analytical, even if generally relied upon. o (2) Generally relied upon by the public or persons in particular occupations. Lay the foundation. NB: If very widely relied upon (like the phone book), judge may just take judicial notice. 803(18): Learned Treatises Four key points: o (1) May come from any field o (2) Admitted as substantive evidence o (3) Must be accepted as reliable authority Expert confirms the treatise is a reliable authority in the field; or Another expert witness establishes its reliability; or The judge takes judicial notice of its authoritativeness. o (4) Must accompany an expert witness, who reads excerpts into the record.

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Called to the attention of an expert witness during cross, or relied on by the expert during direct. The treatise itself doesnt come in as evidence, only as testimony.

o (4) Rule 807 creates a residual exception, allowing courts to admit

some statements that fall outside the other thirty exceptions but have similar guarantees of trustworthiness: Rule 807. Residual Exception. (a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: (1) the statement has equivalent circumstantial guarantees of trustworthiness; (2) it is offered as evidence of a material fact; (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and (4) admitting it will best serve the purposes of these rules and the interests of justice. (b) Notice. The statement is admissible only if, before trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarants name and address, so that the party has a fair opportunity to meet it. Rarely employed exception. Six Requirements: (1) Cant be specifically covered by another hearsay exception Majority: rule intended for near misses, like a 19 year old letter under 803(16). Minority: must be a totally uncovered topic; near misses undermine the specific limits imposed by the rules. (2) Must have circumstantial guarantees of trustworthiness equivalent to those found in the enumerated exceptions. Statement given under oath? Did declarant have firsthand knowledge of the facts? Did declarant ever recant the statement? Other corroborating evidence? o Corroborating evidence subject to cross? Other evidence undermining/contradicting the statement? Did declarant have an incentive to lie? (3) Must offer evidence of a material fact

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Some courts have said, higher than 402s relevance standard. (4) Must be more probative of the info it conveys than any other evidence that can be obtained through reasonable efforts. (5) Judge must find admitting the statement will best serve the purposes of these rules and the interests of justice. (6) Proponent must give reasonable notice to the other party of her intent to use the statement.

Multiple hearsay o Rule 805 allows hearsay within hearsay to be admitted as long as each out-ofcourt statement is admissible under an exception. But if either layer fails to satisfy an exception, the entire statement is inadmissible to prove the truth of the matter asserted by the original declarant. Rule 805. Hearsay Within Hearsay. Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. Hard to lay the foundation for an original exception, bc the courtroom witness usually lacks information about early declarants in the communication chain. Make sure both statements really offered for the truth of the matter! Attacking a declarants credibility o Rule 806 allows parties to impeach hearsay declarants in the same manner they impeach witnesses, as if they were witnesses: Rule 806. Attacking and Supporting the Declarants Credibility. When a hearsay statementor a statement described in Rule 801(d)(2)(C), (D), or (E)has been admitted into evidence, the declarants credibility may be attacked, and then supported, by any evidence that would be admissible for the purposes if the declarant had testified as a witness. The court may admit evidence of the declarants inconsistent statement or conduct, regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. If the party against whom the statement was admitted calls the declarant as a witness, the party may examine the declarant on the statement as if on cross-examination. Six Key Points: (1) Applies to all hearsay statements admitted under an exception or exemption.

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Not statements that fail to qualify as hearsay: o Offered for a purpose other than the truth of the matter asserted Not covered o Prior statements by witnesses falling under 801(d)(1) N/A Bc not on the stand statement for the hearsay to be inconsistent with. o Statements made or adopted by the opponent. Bc the party would be attacking his own credibility. But can attack credibility of an opponents agent or co-conspirator. (2) Lets parties attack declarants credibility by introducing any extrinsic evidence that would be admissible if declarant had testified. Available tools: o Evidence of bias, prejudice, or interest in the case o Inconsistent statements (613) o Evidence declarant lacked personal knowledge (602) o Evidence declarant lacked capacity to testify truthfully (603) o General reputation or opinion character evidence suggesting declarant is untruthful (608a) o Prior criminal convictions (609). Not available: o Questions about specific dishonest acts under 608(b) (because no ability to cross). Majority: just ask the witness who heard/is reporting the out-of-court statement if they have heard about the specific act. One court held: let party impeach out-of-court declarants with extrinsic evidence instead. (3) Once declarants credibility has been attacked, the other party can rehabilitate that declarant in any way allowed for witnesses. Rebut allegations of bias, prejudice, incapacity, or interest Introduce consistent statements Call positive character witnesses (4) Parties may present a declarants prior inconsistent statement without giving declarant an opportunity to explain or deny. Regular rule requiring subject to cross would be too hard to satisfy. (5) Any party may impeach a hearsay declarant. Analogous to 607

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(6) If declarants out-of-court statement is admissible, then a party can introduce that statement w/o subjecting the declarant to crossexamination. Recognizes parties use hearsay exceptions to avoid cross of their witness. Overrides 611 CLEAR THIS UP, YOURE CONFUSED.

The Sixth Amendment and Hearsay In a criminal trial, out-of-court statements must satisfy both the hearsay rule and the Confrontation Clause of the Sixth Amendment to be admissible: o The Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. NB: Right to be confronted with witnesses against him right to crossexamine people who make testimonial statements against him. Criminal applies only to criminal cases Accused protects the accused, not the prosecutor Confronted equated with ability to cross-examine (Crawford) Witnesses limited to people giving testimonial evidence (Crawford) o Five Principles: (1) Evidence must satisfy the FRE If no hearsay exception applies, the statement is out; youre done. (2) Applies only to evidence offered against a criminal defendant Offered by the defense? no 6th A implicated; youre done. Civil trial? the 6th A doesnt apply; youre done. (3) If a statement is non-testimonial, it satisfies the Sixth Amendment Only testimonial statements invoke a criminal defendants right to confrontation. What statements are testimonial? A testimonial statement is a solemn declaration or affirmation made for the purpose of establishing or proving some fact. . . made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Crawford v. Washington. o i.e., Sworn police statements Bc designed to ID and convict the perp. Resemble in-court testimony o NOT database of maintained credit receipts. Bc maintained to collect payment, not prove a perp purchased tools for a crime. Two types of hearsay are per se testimonial: o (1) Formal statements during litigation

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Sworn statements: grand juries, pretrial hearings, trial testimony, post-trial proceedings, etc. Also affidavits, depositions, confessions, etc. Bc declarants would reasonably expect them to be used prosecutorially. o (2) Statements responding to conventional police interrogation. Classic stationhouse interrogations: providing details of a crime, alibis or confessions in response to questioning by law enforcement. Bc reasonably presumed prosecutorial purpose. Four types of hearsay are per se not testimonial: o (1) Business records Bc created for administration, not proving facts at trial. Unless specifically kept for use at trial. NB: Absence of records not a statement, but a statement made to law enforcement declaring an absence of records might be testimonial. o (2) Statements in furtherance of a conspiracy Not made under circumstances which would lead an objective witness reasonably to believe theyd be available for use at later trial. Check in furtherance of e.g., stationhouse confessions ARE testimonial. o (3) Defendants own statements You have no right to confront yourself. o (4) Statements admitted to prove a point other than the truth of the matter asserted. Bc if not offered for truth of the matter, its not testifying to anything. Harder cases: o (1) Statements made to law enforcement outside of a traditional interrogation. Primary purpose of the interaction?: Establish or prove past events potentially relevant to a later criminal prosecution? testimonial. Enable police assistance to meet an ongoing emergency? nontestimonial.

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Objective standard: totality of the circumstances, looking at declarants perspective + any other participant in the exchange. 1) Past, not current events? 2) Deliberate recounting of those events, or providing info necessary to resolve an emergency?3 3) Absence of any other purpose? Three USSC Cases: Hammon signed battery affidavit taken at the crime scene, shortly after the crime occurred = testimonial Davis 911 call describing potentially dangerous felon/abusive bf to the operator = not testimonial Bryant dying declaration not testimonial bc more like Davis than Crawford/Hammon. o (2) Laboratory Reports Melendez-Diaz held: lab certificates are testimonial statements requiring crossexamination. Must be the analyst who performed that analysis to satisfy right to confrontation. But some lower courts/dissenters have stressed their ministerial nature. o (3) Statements among private parties Several cases expressly leave this question open; argue it. Affidavits between private parties? Reports of child abuse? (4) If a statement is testimonial, the right to confrontation is satisfied so long as the accused has a chance to cross-examine the declarant. When is a declarant available for cross-examination? Witness subject to cross in the courtroom? no 6th A prob. o Even if witness remembers neither his prior statement nor the facts underlying the statement (real or feigned). Testifies under oath + subject to cross = OK Must respond willingly to questions. Privilege = unavailable. Can a prior cross-examination be sufficient? o See below.

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(5) If the accused cannot cross-examine at trial, then the prosecutor must establish, (a) unavailability, and Same five categories listed in 804(a) o Must make a good faith effort. (b) a prior opportunity to examine. What constitutes a prior opportunity to cross-examine? o Defendant must have had a similar motive to cross at the prior proceeding Similar to 804(b)(1) exception for prior testimony. o Not grand jury o Not talking to police Exceptions to the prior opportunity requirement: o (1) Forfeiture: extinguishes confrontation clause claims on equitable grounds. Even testimonial statements are admissible against a defendant under this exception. Confrontation clause rights waived. o (2) Dying Declarations: USSC dicta and lower court decisions suggest that dying declarations are free of Sixth Amendment constraints. Founding-era exception; grandfathered in. See flowchart on page 725, plus list of rules affect on pp.726-28

XIII. Judicial Notice Rule 201 allows the judge to take judicial notice of facts not subject to reasonable dispute: Rule 201. Judicial Notice of Adjudicative Facts. (a) Scope. This rule governs judicial notice of an adjudicative fact only, not a legislative fact. NB: Judges may always take judicial notice of legislative facts without following any proscribed procedures. Adjudicative fact: A fact that helps prove the elements of a specific case. o i.e., was the traffic light red when the car went through the intersection? Legislative fact: A fact that informs a courts ruling on a legal issue or principle. o i.e., the financial cost of political campaigns informs the courts opinion on whether a challenged campaign finance law violates First Amendment principles. To take notice of an adjudicative fact, the court must follow the following procedure:

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Rule 201. Judicial Notice of Adjudicative Facts. (b) Kinds of Facts That May Be Judicially Noticed. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial courts territorial jurisdiction; or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned. Two-Part Test: (1) Fact must not be subject to reasonable dispute Facts previously judicially noticed include: o Credit cards play a vital role in American society o Bingo is a senior citizen pastime. o The KKK has a history of violence against African Americans. Dependant on the era and the circumstances. (2) Fact MUST be either: (a) generally known to the public within courts jdx, o Not just within a specific interest group or profession e.g., Canada is a nation OR (b) accurately and readily determined from sources whose accuracy cannot reasonably be questioned. o Lets parties prove a fact well known within a particular subgroup or profession. e.g., the beliefs of the Mennonite church. o But must be accurately and readily verifiable e.g., judgments rendered by other courts BUT NOT Judges review, approve and sign all Orders before they are entered. (internal routine) o Sources verifying the fact neednt be independently admissible. Judge decides, subject to appellate review. NB: Judicial notice can offer a quicker route than the business or public records exceptions to hearsay. Remember stipulations not constricted by the not subject to reasonable dispute language; only requires the parties agree. When parties disagree on stipulation, often request judicial notice. Court may take notice either on its own motion or at a partys request: Rule 201. Judicial Notice of Adjudicative Facts. (c) Taking Notice. The court: (1) may take judicial notice on its own; or o

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(2) must take judicial notice if a party requests it and the court is supplied with the necessary information. Judge may refuse to take notice if she finds the fact fails 201(b). Court may take notice at any stage of a proceeding: Rule 201. Judicial Notice of Adjudicative Facts. (d) Timing. The court may take judicial notice at any stage of the proceeding. Includes appellate courts on post-verdict motions. Parties are guaranteed the right to be heard on the issue of notice, at any stage: Rule 201. Judicial Notice of Adjudicative Facts. (e) Opportunity to Be Heard. On timely request, a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. If the court takes judicial notice before notifying a party, the party, on request, is still entitled to be heard. Limited guarantee: doesnt require a full hearing; just some opportunity to be heard. Judge can take judicial notice w/o prior notice to the parties. o So long as parties have a chance to contest that notice ok. Judicially noticed facts bind the jury in civil cases, but not in criminal ones. Rule 201. Judicial Notice of Adjudicative Facts. (f) Instructing the Jury. In a civil case, the court must instruct the jury to accept the noticed fact as conclusive. In a criminal case, the court must instruct the jury that it may or may not accept the noticed fact as conclusive. Civil: Facts deemed beyond reasonable dispute. Criminal: The jury is the final arbiter of all facts in criminal cases.

XIV. Opinion Testimony Rules 701 through 706 describe when opinion testimony is admissible.

Lay Opinions Lay witnesses have limited authority to offer opinions: o Rule 701. Opinion Testimony by Lay Witnesses. If a witness is not testifying as an expert, testimony in the form of an opinion is limited to one that is: (a) rationally based on the witnesss perception; (b) helpful to clearly understanding the witnesss testimony or to determining a fact in issue; and (c) not based on scientific, technical or other specialized knowledge within the scope of Rule 702. NB: Any person may give a lay opinion; expert witnesses included.

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Three Requirements: (1) The opinion must be rationally based on the witnesss perception. (a) Resembles 602s personal knowledge requirement Lay the foundation establishing witness has the information required to form an opinion. o Prevents speculation o Distinguishes lay opinion from expert testimony (b) Opinion must be one that a reasonable person could reach. Lay witnesses may make reasonable inferences based on a wide range of life experiences. o HYPO: Drug user allowed to testify to the quality of dealers cocaine. (2) The lay opinion must help the fact finder. Courts consider three factors: (1) Conveys additional information? o He looked tired, rather than he moved more slowly than usual and his eyelids drooped, gives the jury more information than a simple sum of the parts. (2) Jurors unable to view the underlying facts and form their own opinions? o How mature did the 16yr. old victim look a year ago? (3) Opinion relates to a central, not tangential, aspect of the case? o Not decisive, but persuasive. If doesnt meet all these criteria, may be excluded as unhelpful. (3) Lay opinions must be non-technical. Lay witnesses may give opinions based on their unique, unusual or distinctive experiences, so long as those events dont reflect any specialized training. i.e., can testify about the value of their land, profits their business lost from breach, that defendant was drunk, etc. Prevents presenting unqualified expert opinions. Can avoid qualifying experts so long as they dont stray into expert territory, o Can avoid giving the other side notice.

Experts Experts give testimony based on their scientific, technical, or other specialized knowledge. Expert = a witness who offers scientific, technical, or other specialized knowledge.

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o Subjects Appropriate For Expert Testimony. Before allowing an expert to

testify, the judge must determine that both the field of expertise and the experts application of that knowledge are reliable: Old test: Frye asked whether the principle underlying an experts opinion sufficiently reliable to have gained acceptance in the field. New test: Daubert overturned Frye, stressing that judges, not a closed circle of experts, should determine reliability of expert testimony. Daubert Factors consider: Whether the theory or technique has been tested Whether it has been subject to peer review and publication The techniques error rate The existence of standards controlling the techniques application Whether the theory or technique has been generally accepted in the relevant scientific community. (Frye) Congress codified Daubert by amending Rule 702 in 2000: Rule 702. Testimony by Expert Witnesses. A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: o (a) the experts scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; o (b) the testimony is based on sufficient facts or data; o (c) the testimony is the product of reliable principles and methods; and o (d) the expert has reliably applied the principles and methods to the facts of the case. Four Key Principles: (1) Court must qualify the witness before they may offer expert testimony o Educations not essential. Includes experience & informal training o Qualification evaluated by the judge as a preliminary determination. (so no jury present & FRE dont apply): 1) Lay a foundation for the following (leading Qs ok on direct): Knowledge Skill Experience Training Education 2) Ask the judge to certify your witness.

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Opposing counsel may voir dire the witness 3) Judge will usually certify the witness. Proponent lays the foundation again in front of the jury to advocate the strength of the witnesses opinion. Opposing side voir dires again in front of the jury to expose any weaknesses in the jurys credentials o Parties may choose to stipulate expert status. o NB: Just because an expert is qualified doesnt mean his testimony will come in (2) Expert testimony must be helpful to the trier of fact. o Does the testimony fit the dispute? An expert cannot present detailed testimony about lunar phases to argue he acted irrationally when the moon was full. Ex: testimony about general confirmation bias doesnt fit an individualized legal standard. Experts qualifications must match her testimony. HYPO: Wharton business school Fit is especially important where experts knowledge is based on experience or informal training, rather than formal education. o Ask: does it add a perspective that the jurors couldnt provide on their own? Super obvious? Hitting a deer is foreseeable in Maine. Super conclusory (supplanting the jurys role as fact finder)? o Does the testimony make sense? If jargons too confusing, judge might exclude it. (3) Testimony must be reliable both generally + specifically: o (a) Product of reliable principles and methods Suggested Daubert factors: Can the theory be tested? Has it been subjected to peer review and publication? Is there a known error rate? Are there standards controlling the techniques operation? Has the theory been generally accepted?

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The farther you get from scientific testimony, the less these factors will apply & the more youll have to rest on the tests flexibility. Daubert applies to ALL types of expert testimony. Inquiry = reliability, not accuracy. o (b) Technique reliably applied to the facts. Testimony must rely on sufficient facts or data. Followed rules of method/test? Applied in a proper context? Ruled out other explanations, where appropriate? (4) Double Check Rule 403 o Judge serves as a gatekeeper, shielding the jury from potentially misleading or prejudicial expert evidence. Particularly important with expert testimony bc experts are often determinative; given tons of weight by juries. Sufficiently reliable, probative and nonprejudicial? Daubert was intended to be broader than Frye, but in actuality, judges have taken their special gatekeeping role so seriously that less expert testimony comes in. See chart on p. 772

Bases of Expert Opinion. Rule 703 supplements 702s requirement that expert testimony rest on sufficient facts or data by describing the data experts may use: Rule 703. Bases of an Experts Opinion Testimony. An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. o So once qualified, experts may testify to the jury from: (1) Personal knowledge (2) Trial testimony, and acts or data that have been admitted into evidence (3) Inadmissible facts or data if they are the type reasonably relied upon by experts in the field.

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Experts in the field must in fact rely upon that type of evidence + that reliance must be reasonable. But only admissible to evaluate the experts opinion (unless independently admissible), not for the truth of the matter asserted. o Expert witnesses may remain in the courtroom even if the judge excludes other witnesses under 615. Most efficient way for the expert to obtain information critical to the trial and her testimony. If opinion based on testimony, must cite which portion supports that opinion. But bc this gets expensive, experts often testify in response to hypotheticals based on the facts of the trial (as crafted by the atty). Beware framing of facts! Experts are allowed to state conclusions based on their special training or expertise, without first recounting all of the underlying data: Rule 705. Disclosing the Facts of Data Underlying an Experts Opinion. Unless the court orders otherwise, an expert may state an opinionand give the reasons for itwithout first testifying to the underlying facts or data. o Lets experts state bare conclusions. So where lay witness would have to say defendant was drunk, expert witness can say, Based on defendants blood alcohol content, he was incapable of safely operating workplace machinery. But in most cases, an expert may not disclose inadmissible information to the jury. Rule 703. Bases of an Experts Opinion Testimony. . . . But if the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. o Narrower reverse 403 standard only looks to the probative value in helping the jury evaluate the experts opinion, not its probative value generally speaking. Unless the opposing party wants to reveal the otherwise inadmissible evidence supporting an experts testimony:

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Rule 705. Disclosing the Facts or Data Underlying an Experts Opinion. . . . But the expert may be required to disclose those facts or data on cross examination.

Experts and the Confrontation Clause. Does it violate the Sixth Amendment for prosecutors to ask expert witnesses to offer opinions based on inadmissible, testimonial hearsay? i.e., a drug analysis report where the original analyst is unavailable, like in Melendez-Diaz. Answer: We dont know. Most courts assume the confrontation clause is satisfied, but the USSC has yet to rule on the issue. o Prosecutor will argue expert is the only witness. Remember: Issue in criminal trials only. Limits on Opinion and Expert Testimony Common Law: No witness could offer testimony about an ultimate issue. Reasoning: province of the jury BUT triggered battles over when testimony embraced an ultimate issue The FRE swept away with that rigid bar against ultimate issue testimony: Rule 704. Opinion on an Ultimate Issue. (a) In General Not Automatically Objectionable. An opinion is not objectionable just because it embraces an ultimate issue. But doesnt permit every opinion on an ultimate issue Judges still reject testimony that threatens to supplant judges power to declare the law, the jurys authority to apply law to facts, or the jurys task of resolving credibility. Judges retain authority under 403 and 701702. o Ex: Not helpful if witness tries too emphatically to steer the jurys finding on an ultimate issue (under 701(b)) Conclusory language deemed not helpful, bc adds nothing new. Generally preferred that witnesses avoid legal terms o Negligent wasnt careful o Exercised reasonable care drove safely Experts technically not able to offer opinions about a defendants mental state: Rule 704. Opinion on an Ultimate Issue.

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o (b) Exception. In a criminal case, an expert witness

must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. Broadly drafted, but construed by courts very narrowlyin practice, only restricts types of words experts use, not the content of their opinions. Cant testify about legal conclusions as to a required mental state But can say defendant acted consistently with that mental state. Probability evidence may be ruled out as unhelpful or prejudicial if: Four Factors (1) Calculation not based on properly supported facts (2) Technically flawed (3) Claim distracts jury from assessing conflicts in the eyewitnesses testimony (4) Confuses rarity of an event with probability of defendants guilt Controversial types of evidence: DNA: While DNA samples are very accurate when well preserved and processed fully, crime-scene scientists dont always profile entire DNA (bc would take years). Polygraphs: Most jdxs wont admit polygraphs unless all parties stipulate to its admission. Eyewitness Testimony: courts growing more tolerant of experts to discuss unreliability of eyewitness testimony. o Two Limits: 1) Cant offer opinions on whether a particular eyewitness is reliable only general feelings about eye witness testimony. 2) Usually allowed only when circumstances suggest eyewitness is less reliable than usual.

Judge Appointed Experts Judges have inherent power to appoint their own experts. Rule 706 establishes a procedure for court-appointed experts: Rule 706. Court-Appointed Expert Witnesses

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(a) Appointment Process. On a partys motion or on its own, the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations The court may appoint any expert that the parties agree on and any of its own choosing. But the court may only appoint someone who consents to act. (b) Experts Role. The court must inform the expert of the experts duties. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. The expert: (1) must advise the parties of any findings the expert makes; (2) may be deposed by any party; (3) may be called to testify by the court or any party; and (4) may be cross-examined by any party, including the party that called the expert. Take Away: One of the parties may petition the judge to appoint an expert, or the judge may decide to appoint one herself. o Having decided to appoint an expert, judge may ask the parties for nominations, urge the parties to agree on an expert, or find her own. Once appointed, the expert must report his findings to all parties. Each party may depose the expert Each party may call the expert to testify If no party calls the expert at trial, the judge may call the expert herself. Regardless of who calls the expert, each party may cross-examine the witness during trial. The trial judge decides what compensation is reasonable for the expert. Criminal trials + eminent domain proceedings: paid with public funds Civil cases: parties pay in whatever proportion the judge deems fair. Rule 706. Court-Appointed Expert Witnesses. (c) Compensation. The expert is entitled to a reasonable compensation, as set by the court. The compensation is payable as follows:

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(1) In a criminal case or in a civil case involving just compensation under the Fifth Amendment, from any funds that are provided by law; and (2) in any other civil case, by the parties in the proportion and at the time that the court directs and the compensation is then charged like other costs. The trial judge has discretion to decide whether to tell the jury that the expert was court appointed NB: judges usually reveal court-appointed status. Rule 706. Court Appointed Expert Witnesses. o (d) Disclosing the Appointment to the Jury. To court may authorize disclosure to the jury that the court appointed the expert. Court appointed experts are generally rare Most common on issues of foreign law. New uses may be emerging i.e., avoid issues of confidentiality

XV. Privilege Privileges protect social interests o All share three criteria: 1) Relationship must be one that society wants to foster 2) Confidential communications essential to maintaining the relationship 3) Injury to the relationship from disclosure is greater than the benefit to the truth-seeking process from that disclosure o Courts apply common law to most privilege claims; most are uncodified by the Rules. Rule 501. Privileges in General. The common lawas interpreted by United States courts in the light of reason and experiencegoverns a claim of privilege unless any of the following provides otherwise: The United States Constitution A federal statute; or Rules prescribed by the Supreme Court But in a civil case, state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. State law governs in diversity actions. Privileges apply to all parts of a proceeding o Includes preliminary determinations [Rule 1103(c)] Privileges Recognized by Federal Law: o (1) Attorney-Client Privilege Six elements: (1) Communication

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(2) Between a client (3) And a lawyer (4) That is confidential (5) And concerns legal advice (6) Crime-fraud exception o (2) Attorney Work Product Elements: In anticipation of litigation Any documents prepared Qualified for facts about the dispute o Waiver of Attorney Client and Work Product Privileges: Rule 502. Disclosure intentional Disclosure inadvertent o (3) Spousal Privilege Testimonial Confidences o (4) Psychotherapist-Patient Privilege o (5) Privilege Against Self-Incrimination o (6) Other Federal Privileges Executive Privilege Clergy-Communicant Privilege Privileges Not Fully Recognized by Federal Law o (1) Journalists First Amendment Privilege o (2) Physician-patient relationship o (3) Intra-family privilege

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Evidence Attack Outline 07:39:00

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Attack Plans

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1. Do the FRE apply? Federal Court? At Trial? Exceptions? Remember: Privilege rules will always apply 2. Is the evidence relevant? Rules 401 & 402 3. Specialized Rules Article IV Witnesses Impeachment o Rule 613: Prior Inconsistent Statements 1. Is it a statement? 2. Is it inconsistent with the witnesss testimony? 3. Does the inconsistency involve a fact of consequence? If so, the judge will take time for extrinsic evidence 4. Does the inconsistency involve a collateral issue? If so, the judge probably will limit exploration to questions. o Rule 609: Impeachment Using a Witnesss Prior Convictions 1. Has the witness received a pardon, annulment, or certificate of rehabilitation? If so, apply Rule 609(c) 2. Is the prior crime a juvenile adjudication? If so, apply Rule 609(d) 3. Is the crime over 10 years old? If so, apply Rule 609(b) 4. Is the crime one of falsity? If so, apply Rule 609(a)(2) and admit 5. Is the crime a misdemeanor? If so, apply 609(a)(1) and preclude 6. Is the witness the defendant?

If so, apply 609(a)(a)(B)s test Admit the evidence if its probative value outweighs its prejudicial effect to the accused. 7. Otherwise, apply 609(a)(1)(A) Use the ordinary Rule 403 test to determine admissibility. Completeness Character Evidence Preliminary Determinations Hearsay o 1. Does the evidence contain a statement? Human declarant? Intentional assertion? o 2. Did the statement occur outside the courtroom? o 3. Is the party offering the statement to prove the truth of the matter asserted? o 4. Does an exception apply? o 5. Does the Sixth Amendment limit use of the statement? Experts 4. Unfair Prejudice? Rule 403 o Strong slant towards admissibility o Great judicial discretion 5. Was the evidence objected to properly? If not, then cant have been preserved on appeal Apply the correct standard of review o Deferential o Evidentiary issues rarely reversed on appeal

Charts
Rule 410 Plea Bargaining (See p.141):

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Plea Type

Plea Admissible?

Statements Made During Bargaining Admissible?

Statements Made During Plea-Related Court Proceedings Admissible?

Accepted Plea of Nolo Contendere Withdrawn Guilty Plea

No. 410(a)(2) No. 410(a)(1) Yes.

No. 410(a)(3) No. 410(a)(3) & (4) Yes.

No. 410(a)(3) No. 410(a)(3)

Accepted Guilty Plea

Yes.

No Plea

N/A. No plea made.

No. 410(a)(4)

N/A No proceeding.

Non-Extrinsic Evidence Non-Collateral Matter Cross-examiner asks Wilma, Didnt you tell your friend Sharon that Fred hit Betty?

Extrinsic Evidence Sharon testifies that Wilma told her that Fred hit Betty. Allowed, subject to procedures in Rule 613.

Allowed.

Collateral Matter

Cross-examiner asks Wilma, Didnt you tell the police that you drove to the golf course that day? Allowed, subject to some outer limits under Rules 403 & 611.

Police officer testifies that Wilma told him she drove to the golf course.

Prohibited under Rules 403 and 611.

Public Records Exception 803(8)(A)

Ministerial Observation Other Observation

Police and Law Enforcement Admissible against all Not admissible against a criminal defendant

Other Agencies Admissible against all Admissible against all

Investigation

Not admissible against a criminal defendant

Not admissible against a criminal defendant.

10

Rule 613: Prior Inconsistent Statements May inquire on cross-examination with good faith belief

Rule 608(b): Conduct that Shows Untruthful Character May inquire on cross-examination with good faith belief

11

No extrinsic evidence if inconsistency is collateral

No extrinsic evidence to attack character (thats collateral)

12

13

When Prejudicial Effect

Rule 403

Rule 609(a)(1) (B)

Rule 609(a)(1) (B) [for conviction less than 10yo] Admits the evidence Admits the evidence Excludes the evidence

Is less than probative value Equals probative value Somewhat outweighs probative value

Admits the evidence Admits the evidence Admits the evidence

Admits the evidence Excludes the evidence Excludes the evidence

Rule 609(b) [any conviction more than 10yo.] Admits the evidence Excludes the evidence Excludes the evidence

14

Substantially outweighs probative value

Excludes the evidence

Excludes the evidence

Excludes the evidence

Excludes the evidence.

15

RULE 609 CHART:

16

Type of Conviction Misdemeanor that did not involve dishonest act or false statement Crime pardoned or annulled based on finding of innocence Crime for which witness obtained pardon, annulment, or certificate of rehabilitation, without finding of innocence, but has not subsequent felony convictions Crime committed as a juvenile Crime committed as a juvenile.

Type of Witness Any Any Any

Outcome Automatically exclude. No balancing required. Automatically exclude. No balancing required. Automatically exclude. No balancing required.

Defendant in criminal case Anyone other than the defendant in a criminal case

Crime for which witness was released from confinement (or convicted, if no confinement) more than ten years ago. Felony that did not involve dishonest act or false statement Felony that did not involve dishonest act or false statement

Any.

Automatically exclude. No balancing required. Admit in a criminal case IF conviction would be admissible against an adult AND the evidence is necessary to fairly determine guilt or innocence. Exclude unless probative value substantially outweighs prejudicial effect. Admit if probative value outweighs prejudicial effect to that defendant. Admit unless Rule 403 (unfair prejudice substantially outweighs probative value) dictates exclusion.

Defendant in criminal case Anyone other than the defendant in a criminal case.

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Felony or misdemeanor involving a dishonest act or false statement that (a) was committed as adult and (b) for which confinement ended (or conviction occurred), ten years ago or less.

Any.

Automatically ADMIT. No balancing testnot even 403 applies.

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Type of Character Evidence Pertinent Trait of the Defendant Trait of Peacefulness of Alleged Victim

When May the Defendant Offer this Evidence? Anytime

When May the Prosecution offer this Evidence? To rebut character evidence of the same trait offered by the defendant, OR to match character evidence that the defendant offered about the alleged victim. In a homicide case: To rebut any evidence that the alleged victim was the first aggressor. In other cases: To rebut character evidence that the victim was not peaceful.

N/A. Defendant wouldnt introduce this evidence

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Other Pertinent Character Trait of Alleged Victim

Anytime, unless barred by the rape shield law (Rule 412).

Only to rebut evidence of the same trait offered by the defendant; evidence must comply with the rape shield law (Rule 412).

If the Defendant . . . Introduces evidence of his own good character Introduces evidence of the victims bad character Introduces evidence that the victim in a homicide case was the first aggressor Rule 612: Refreshing Memory Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge What Witness Does: Looks at evidence (usually a writing) to jog memory, then testifies orally without referring further to evidence. What Type of Evidence: Any writing or other evidence that will help witness remember; the witness need not have created or adopted the material Who May Introduce Evidence Used To Refresh: Only adverse party (i.e., the party who didnt call the witness) Relationship to Hearsay: Witness testifies directly from memory after refreshment, so there is no hearsay issue. If adverse party introduces writing into evidence, it is admissible only on the issue of credibility. For the jury to consider the writing for the truth of the matter asserted, it must fall within a hearsay exception.

Then the Prosecutor Can: Introduce evidence of the defendants bad character for the same character trait. Introduce evidence of the victims good character for the same character trait AND evidence of the defendants bad character for the same character trait. Introduce evidence of the victims peaceful character. Rule 803(5): Recorded Recollection Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge What Witness Does: Reads into the record information from a document or other record What Type of Document or Other Record: One that the witness made or adopted when the matter was fresh in the witnesss memory. Record must correctly reflect witnesss personal knowledge at time it was recorded. Who may Introduce Record Recollection: Only adverse party (i.e., the party who didnt call the witness) Relationship to Hearsay: Statements contained in the record are admitted as an exception to the hearsay rule. The jury may consider the content of the document or other record, as read into the trial record by the witness, for the truth of the matter asserted.

Prior Statements
801(d)(1)(A) 804(b)(1) Declarant on stand, subject to cross Declarant unavailable Prior inconsistent statement, made under penalty of perjury, in a proceeding Prior testimony, made in a proceeding (oath) with opportunity and similar motive to develop.

HEARSAY POLICIES Out-of-court statement is more reliable than most Out-of-court statement is more necessary than most

RESIDUAL EXCEPTION Out-of-court statement has guarantees of trustworthiness Out-of-court statement satisfies important need.

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Structure of a Trial

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Overview: Structure of a Jury Trial - (NB: Can be waived) (1) Pretrial Motions: o (a) Motion in limine at the threshold Filed either to exclude an opponents piece of evidence, or to secure permission to introduce a potentially contested piece of ones own evidence before trial. Three advantages: (i) allows more planning of trial strategy (ii) allows for more lengthy/sophisticated arguments to make it before a judge (iii) insulates any defeat from the jury o (b) Motion to suppress A claim that the opponents evidence was illegally obtained Legal issues generally governed by criminal procedure o (c) Pretrial motion for summary judgment Civil cases only Argue that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law. (2) Jury Selection: o Parties select a jury via voir dire o No evidence is presented (3) Opening Statements o Each side provides the jury with an overview of the evidence they intend to present o The party who bears the burden of proof at trial (prosecutor/plaintiff) goes first o An opening statement should: (a) tell a compelling story (b) reflect the evidence that will unfold at trial Opening statements are not themselves evidence But often include demonstrative evidence (4) Plaintiff/Prosecutors Case-in-Chief o Plaintiff/Prosecutor presents its case to the jury All evidence: witness testimony, real evidence, documents and demonstrations o At the end of civil plaintiffs case, moves for judgment as a matter of law

o At the end of a prosecutors case, moves for acquittal

Granted (in both cases) only if no reasonable jury could find for that side (5) Defendants Case-in-Chief or Case-in-Defense o may chose not to present a defense (6) Plaintiff/Prosecutors Case in Rebuttal o Plaintiff/prosecutor rebuts evidence introduced by the defense o May call new witnesses/evidence, but they must focus on issues raised by the defense (7) Defendants Case-in-Rebuttal or Case-in-Rejoinder o Defense may respond to plaintiff/prosecutors rebuttal o Must respond only to new evidence (8) Further Rebuttal and Rejoinder o Trial judge has discretion to allow further rounds of rebuttal and rejoinder (9) Closing Statements o Both sides sum up their arguments o Often include demonstrative evidence (10) Instructing the Jury (11) Deliberation (12) Verdict o

Review Session

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612: Refreshing Recollection: A writing = any writing Melendez Diaz: supervisor may be ok to testify (Sotomyors dissent) When can extrinsic evidence be offered for a non-collateral matter always So if a rule like 613 has limits, you can bring it in if its collateral so long as something else doesnt keep it out. Half multiple choice (30 MPC Qs), half essay. The Practice Exam: Meth Indictment Statement: Bonnie used meth sometimes