RELEVANCE Is the evidence admissible?

What is the piece of evidence being OFFERED to prove? You cannot determine admissibility until you know what the evidence is being offered for. If a piece of evidence is inadmissible on one point, it might come in for another purpose [FRE 105 doctrine of limited admissibility]. Is the evidence RELEVANT for the offered purpose? Rule: Evidence is relevant if it has any tendency to make the existence of any fact that is of consequence to the termination of the action more probable or less probable than it would be without the evidence. [FRE 401]. If evidence IS relevant, it is admissible UNLESS there is some specific reason to keep it out [FRE 402]. Is the evidence probative of something? The evidence MUST make the factual proposition more or less likely than it would be without the evidence. Does the evidence affect a material fact? The factual proposition it makes more or less likely MUST be material (i.e. relating to an element of a claim or a defense). It will be PRETTY DARN CLEAR to you: If it relates to a pleading, defense, or issue of credibility, it is likely RELEVANT. What does it mean to be irrelevant? Evidence which is irrelevant involves too many inferences or links. Ask yourself: Does the evidence involve some other time, event, or person? If so, it is likely irrelevant. But, the greater the need for the evidence, the more likely the court will let it in. Is the evidence RELIABLE for the offered purpose? Reliability must be analyzed in light of the relevant purpose. Evidence which is not reliable includes: If the witness offering it does not speak from personal knowledge of the matter. If the expert bases an opinion on unreliable data. If important testimony is elicited by leading questions on direct. If the offered evidence cannot survive HEARSAY challenges. If YES to both, is it RIGHT to allow the fact finder to receive the evidence for the offered purpose? Is its probative value substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading of the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence? [FRE 403] A little DAB will do ya. Is there a danger of unfair prejudice? Unfair prejudice when the fact finder might react to aspects of evidence in a way that is not supposed to be part of the evaluative process; i.e. an appeal to bigotry, prejudice, hatred, or pure appeal to emotion. Is there an alternative? If there is no alternative, it will be more likely to come in. Balance those alternatives. Balance the danger of unfair prejudice and the probative value.

Think about a need based scale the greater the need, the more likely prejudicial evidence will come in.

CHARACTER EVIDENCE Character at Issue; Habit; Character of the Accused; Character of the Victim; Sexual Offense Cases, Character of the Witness; Other Crimes, Acts, & Wrongs
Does the evidence relate to the character, other crimes, wrongs, acts, or habits? General Rule: Evidence of a persons character or a trait of character is NOT admissible for the purpose of proving action in conformity therewith on a particular occasion, except: Character of the accused in a criminal case. Character of the alleged victim in a criminal case. Evidence of other crimes, acts, wrongs is not admissible to prove the character of a person in order to show action in conformity therewith. However, it MAY be used for one of the MIAMI KOPPS purposes.

CHARACTER AT ISSUE
Is CHARACTER SPECIFICALLY AT ISSUE in the case (i.e. an element of the charge, claim, or defense)? YES Admissible to show specific acts. Defendant can bring in specific instances of character. [FRE 405(b)]. CIVIL CASES: Does the case involve one of the following examples where character is directly at issue? Defamation: Plaintiff is claiming harm to their character (i.e. damaged reputation). The truth is a defense; therefore, the plaintiffs character is at issue. Negligent Entrustment: To show the was negligent, the plaintiff could introduce evidence about the character of the operator to show not that the person drove badly or operated a machine badly on a specific occasion, but to show that based on what the should have known about the operator, the should not have let him or her be in control of the car or machine. Child Custody: Both parents characters are at issue b/c the court is entrusting them with their children. Wrongful Death: Character of decedent is at issue b/c the amount of damages may turn on the worth of the decedent to the plaintiff. (Thus, you could use a specific instance (such as lying on an application) to show that conduct goes toward decedents character.) CRIMINAL CASES: Character is almost never at issue, but does the case involve one of the following? Entrapment: A Defense which raises the question of intent because its like saying I wasnt predisposed. I would not ordinarily commit that crime, but the government action induced it. Extortion How can character be proven? ALL METHODS Specific conduct, Reputation, Opinion

HABIT
Is it evidence of the HABIT of a person or of the routine practice of an organization? [FRE 406] YES Admissible. Rule: Evidence of the habit of a person or of the routine practice of an organization, whether corroborated or not and regardless of the presence of eyewitnesses, is relevant to prove that the conduct of the person or organization on a particular occasion was in conformity with the habit or routine practice. NO Continue to consider other possible uses of character related evidence. Do you have the TWO requirements of habit? Frequency: Must happen more than two times. Something which is regular, automatic, and non-reflexive. Detail/Particularity: It must be very specific conduct (NOT merely something like evidence of carefulness that will NOT come in because that is character evidence.)

Who does this rule apply to? Individuals: Habit evidence comes in to prove propensity/character in conformity with the habit. Organizations: Routine practice of an organization comes in to show that the org acted in conformity with its routine practice.

CHARACTER OF THE ACCUSED Criminal Cases ONLY

Is it evidence of the CHARACTER OF THE ACCUSED? MERCY RULE (aka Opening the Door): Is it evidence of a pertinent trait of the character of the accused offered by the defendant or the prosecution to rebut the same? [FRE 404(a)(1)] Rule: A criminal defendant is allowed to introduce evidence about his own GOOD character to support an inference that he did not commit a charged crime. Once a criminal defendant does this, the prosecution may introduce rebuttal evidence about the s character to suggest that he is guilty. What kinds of traits can be referenced? Pertinent = relevant; i.e. applicable to a pleading, claim, or defense: Peacefulness: This will only come in if it is a crime of violence (or self-defense). Honesty: If it is a crime of dishonesty (i.e. theft case). Law-abidingness: Pertinent to any charge. How can a defendant introduce evidence of the character trait? Reputation: The person who testifies as a character witness as to the s reputation does NOT need to have ever met the ! Witness must report on the s reputation in a relevant community live, workplace, church, neighborhood. Witness must report on the s reputation within a recent period of time. I heard people say Opinion Evidence: Requires personal knowledge. I know Defendant May NOT USE Specific Acts: This is a rule of convenience and a rule of economy. This would lead to an infinite number of specific instances coming in. One time After the Door Has Been Opened: How can the prosecution rebut the defendants evidence? Cross-Examination of Defendants Character Witnesses: Prosecution cannot initiate the use of character evidence about the defendant. Only the defendant can. Prosecution can inquire into any relevant specific instances of conduct by asking the s witnesses questions like, Did you know the once hijacked a school bus? or Have you heard the once? When prosecution asks about specific instances on cross, this is NOT CHARACTER EVIDENCE! It solely tests the basis of the witness opinion. Thus, prosecution cannot argue it proves propensity. Prosecution cannot introduce independent proof about these instances. Prosecution must accept whatever answer the witness gives. Questions are meant to give the jury a basis for evaluating the s character witness by showing how well that witness really knows the s reputation, etc. Prosecution can ask anything, so long as there is a good faith basis. Would ask an opinion witness, In arriving at that opinion, were you aware that? Would ask a reputation witness, Have you heard that? Introduction of their Own (Rival) Witnesses

Prosecution may call witnesses to ask about negative aspects of s character since he already put it at issue. Witnesses can only talk about reputation or opinion, NOT specific instances of past acts. Closing Argument: Cannot say a conclusion like We know X is a violent man based on the cross-examination. CAN say, The called this witness to say X is a peaceful guy and this witness wasnt even aware about this incident This DISCREDITS the witness.

CHARACTER OF THE VICTIM Criminal Cases ONLY

Is it evidence of the CHARACTER OF THE VICTIM? DOUBLE MERCY RULE: Is it evidence of a pertinent trait of the character of the alleged victim offered by the defendant or by the prosecution to rebut the defendants evidence concerning the victims character? [FRE 404(a)(2)] Rule: In criminal trials, the defendant may show that the victim was the aggressor by introducing evidence of the victims character for violence. The prosecution may rebut this with character evidence about the victim OR about the defendants aggressive nature. Also it may show that a murder victim had a peaceful character to rebut a claim made in any way that the ictim was an aggressor. What kind of evidence can the defendant introduce? Rule: Defendant is allowed to introduce evidence of pertinent character traits of the victim. This is limited to evidence relating to the victims: Peacefulness: will likely be introducing evidence showing that the victim had an aggressive or violent character. Honesty: If it is a crime of dishonesty. Law-abidingness: Pertinent to any charge. How can the defendant introduce this evidence? Reputation: Must show familiarity with the victims reputation in a relevant community, In a recent period of time. Personal knowledge not needed. Opinion evidence: Must show that you have personal knowledge (i.e. that you know the person). You May NOT USE Specific Acts: Unless it is offered for a MIAMI KOPPS permissible purpose below. This is a rule of convenience and a rule of economy. This would lead to an infinite number of specific instances coming in. One time I am rubber, and you are glue; whatever bounces off me, sticks to you: If the defendant introduces evidence of a pertinent character trait of the victim, what can the prosecution do to rebut? The prosecution can introduce contrary character evidence about the victim to refute the s showing. In homicide cases, the prosecution is sometimes entitled to introduce evidence about the victims character even if the chooses not to use that kind of material. The prosecution can also introduce character evidence about the defendant relevant to that same trait of character. Form must be reputation and opinion.

SEXUAL OFFENSE CASES

Does the case involve a sex offense (CRIMINAL or CIVIL)? Specific Acts of Victim: Is the evidence being offered specific instances of sexual behavior by the alleged victim? [FRE 412] What constitutes sexual behavior under this rule? Sexual conduct The victims reputation for sexual conduct Evidence of birth control, prior STDs, pregnancies, manner of dress, etc. Inadmissible Purposes In Criminal and Civil Cases: Is it being offered for one of these INADMISSIBLE purposes? To prove that the alleged victim engaged in other sexual behavior. To prove any alleged victims sexual predisposition. Is it a CRIMINAL or CIVIL case? Criminal Cases: What is the evidence being offered to prove? Admissible Purposes: Does one of the three ADMISSIBLE PURPOSES apply (MUST be CRIMINAL case)? Is the evidence offered to show past sexual relations with others on the issue of whether the accused was the source of the semen or injury? [FRE 412(b)(1)(A)] Is the evidence offered to show past sexual relations with the accused to show consent? [FRE 412(b)(1)(B)] Does the Constitution require the evidence to be admitted? [FRE 412(b)(1)(C)] This means if the has information that it would be unconstitutional not to let in, it will be let in. Civil Cases: Evidence offered to prove sexual behavior or sexual predisposition of a victim is admissible IF: Its probative value substantially outweighs the danger of harm to any victim and of unfair prejudice to any party. Evidence of an alleged victims reputation is admissible only if it has been placed in controversy by the victim. Process Which Must be Used: What is the process that must be used to get the evidence in? [FRE 412 (c)] Must file a motion 14 days before trial describing the evidence and the purpose to get the evidence in. Specific Acts of Defendant: Is the evidence being offered prior instances of sexual assault by the (CRIMINAL AND CIVIL )? [FRE 413-415] YES Prior instances of sexual assault (including child molestation) will be ADMISSIBLE for any relevant purpose, including to show that the has a propensity to commit that kind of act. This is a HUGE deviation from the no propensity evidence rule. It IS admissible here. What must you show to get these past acts admitted? You must just show that it is more likely than not that the past acts occurred. It is NOT required that the defendant have been convicted of the past offense, so long as you can just show by a preponderance of the evidence that he committed the past offense. What is the format the proponent must use? Specific acts

How can the criminal defendant rebut that evidence? Reputation Opinion

CHARACTER OF THE WITNESS

Is it evidence of the CHARACTER OF THE WITNESS (can be either CIVIL OR CRIMINAL case)? When a witness testifies, he puts his character at issue. Rule: You can call a character witness to testify about any other witness through means of opinion or reputation with respect to the witness truthfulness. [See Impeachment, FRE 608(a)]

OTHER CRIMES, WRONGS, OR ACTS Applies in Criminal AND Civil Cases, but comes up more in Criminal
Is it evidence of OTHER CRIMES, WRONGS, OR ACTS? Other acts can be acts that occurred before OR after the crime for which the is currently being tried. Is the evidence offered to prove the character of a person in order to show action in conformity therewith? [FRE 404(b)] YES Inadmissible for this purpose. Go to next question to consider permissible uses of character related evidence. MIAMI KOPPS: Is the evidence being offered for one of the following permissible uses? [FRE 404(b)] Motive: Ex: Heroin addiction could show motive to commit robbery. Intent (aka state of mind): Ex: If the defendant had been out of work, that could show intent to rob. Specific acts of victim can be brought in to show either the victim or the s state of mind in a self-defense case. Absence of Mistake: Ex: Guy is arrested at airport with duffle bag, and he claims that he grabbed the wrong bag by mistake. You can show other acts of evidence to show no its not a mistake, you know it is heroin and you are dealing or selling drugs. Identity (modus operandi): Unique, prior acts that are associated with the defendant. A way of operating or doing something. To come in, this evidence must be UNIQUE and SPECIFIED to the . (i.e. the has robbed 4 liquor stores while wearing a beret with a cross-bow and skipping to Beethovens symphony.) Knowledge: EX: If is charged with manufacturing illegal drugs and says he didnt know what he was doing, evidence that he had manufactured the drug on other occasions would be admitted to show his knowledge, intent, or absence of mistake or accident. Opportunity: Ex: He just broke out of prison. The escape proves he had the opportunity to commit a crime. Preparation / Plan / Scheme: Ex: Prior meetings to prepare for something. Can other acts come in for one of the above purposes even if that purpose is not in dispute? Yes just because its not in dispute does not mean its not relevant (Old Chief). If says he is not contesting intent and he says he did it 18 other times, other acts of evidence can still come in to show intent. How can this evidence be presented? Anyway the proponent wants not restricted to reputation and opinion. If you find a PERMISSIBLE USE, you MUST go on to analyze it under FRE 403: Is there a danger the jury might MISUSE the evidence? Court will weigh the danger (that jury will misuse the acts for propensity) against probative value. Is there other evidence available for the non-propensity purpose that the past bad acts could serve? If YES courts will exclude the past bad acts and relegate the proponent to less inflammatory proof of that issue. If NO then despite the risks of juror misuse of the information, the past bad acts material will probably be admitted.

SPECIFIC EXCLUSIONS OF RELEVANT MATERIAL situations where judges must keep evidence out despite relevance
INSURANCE COVERAGE: [FRE 411] Is the prosecution trying to offer evidence regarding a partys insurance coverage? Rule: You cannot offer in evidence that someone DOES or DOES NOT have insurance to prove negligence. BUT, the statement of fault that comes with it will ALWAYS COME IN. What is it being offered in for? Admissible purposes: Is it being offered in for any of these reasons? Proof of agency: Ownership: Control: Bias: If a defense witness works for the s insurance company, information about the witness possible financial bias would be permitted to be introduced, despite the fact that it would inform the jury about the s insurance coverage. Prejudice of a Witness: SUBSEQUENT REMEDIAL MEASURES: [FRE 407] Does the evidence relate to measures taken after an injury or harm allegedly caused by an event that, if taken previously, would have made the injury or harm less likely to occur? Were the measures taken actually subsequent remedial measures? Subsequent: The remedial measure must have been made AFTER the complaint or injury in order to be barred by FRE 407. If the remedial measure happened before the complaint of injury, it will NOT be barred by FRE 407. Remedial: Means it must be a VOLUNTARY act. Thus, a mandatory recall will NOT be barred even when being used to show negligence. Measure: A change in design to make something safer or less dangerous. It can be absolutely anything! (i.e. employee training, adding additional brakes, etc.) What is the evidence being offered to show? Admissible Purposes: Is the evidence being offered for another purpose such as the following? Ownership or Control: If is claiming they were not his stairs, why would he fix them? SRM comes in to show ownership. Feasibility of precautionary measures: Defense witness must first controvert the feasibility of improvements by saying it would NOT have been possible; there was not other way to do it. Then the evidence of SRMs can come in. Impeachment: SRM evidence not generally admissible for impeachment if it is merely offered to contradict a defense witness testimony. It would have to be someone saying, There was no other way to do it, and then saying there was.

Inadmissible Purposes: Is the evidence being offered for an inadmissible purpose? Negligence: We dont allow evidence of subsequent remedial measures to prove negligence b/c we want to encourage s to make their products safer; thus, we dont want to punish them for improving stuff. Culpable conduct: Defect in a product: Defect in a products design: Need for a warning or instruction: COMPROMISES AND OFFERS TO COMPROMISE: [FRE 408] Rule: This rule cover settlements or offered settlements as well as conduct and statements made in compromise negotiations (except where the negotiations involved a government actor and the information is offered in a criminal case.) What are the requirements to legally keep out an offer to settle? Claim: A lawsuit or a claim letter or an anticipated claim. Ex: Saying I am going to sue would be a claim. Must mention litigation in some way, otherwise conversation will just be considered a business conversation outside of the coverage of FRE 408. Offer: An offer to settle the case. Ex: Ill give you 50K not to sue. Dispute as to Validity or Amount: We only need one or the other dispute as to validity OR amount. Ex: I want a million. He only wants to give 50K. that is dispute as to amount. What is the evidence being offered for? Admissible Purposes: Proving a witness bias or prejudice Ex: If the beneficiary of a settlement became a witness in a trial and gave testimony that benefitted the provider of the settlement, a party who opposed that testimony could have the jury learn about the settlement. The settlement would be treated as relevant to the truthfulness of the witness but not as relevant to the merits of the case. Negating a contention of undue delay Proving an effort to obstruct a criminal investigation or prosecution. Inadmissible Purposes: Liability Invalidity of a claim or amount of a claim that was disputed as to validity or amount Impeach through a prior inconsistent statement What is NOT covered by this rule and will thus be admitted? The substance of the information that was brought up in settlement talks, IF that information was obtainable other than in the settlement talks. A party cannot immunize information from introduction into a trial merely by mentioning it in settlement talks. Statements still cannot be admitted to show liability but can be admitted for other purposes. PAYMENTS OF MEDICAL EXPENSES: [FRE 409]

Does the evidence relate to an offer or promise to pay medical expenses? Rule: any offer or promise to pay medical, hospital, or related expenses is inadmissible to prove negligence/liability for the injury. What is it being offered to prove? Inadmissible to prove negligence. Admissible for other uses. What about companion statements? Companion admissions of fault (i.e. related statements and conduct) are not excluded under this rule. They ARE admissible to show liability or for other uses. NOLO CONTENDRE AND WITHDRAWN GUILTY PLEAS: [FRE 410] Rule: What is said between a defense attorney and a prosecutor in negotiating a plea is inadmissible. Was a prosecutor involved in the negotiations? He must have been or else this rule does not apply. If it was just a policeman involved, this rule does not apply. Is the prosecution trying to admit evidence of the following, in a civil or criminal proceeding, against the who made the plea? Plea of guilty which was later withdrawn Plea of nolo contender no contest Any statement made in the course of any proceedings under Rule 11 of Fed. R. Civ. P. Any statement made in the course of plea discussions with an attorney for the prosecuting authority which does not result in a plea of guilty or which results in a plea of guilty later withdrawn. YES What is the evidence being offered for? Admissible When In any proceeding wherein another statement made in the course of the same plea or plea discussions has been introduced and the statement ought in fairness be considered contemporaneously with it, OR In a criminal proceeding for perjury or false statement if the statement was made by the defendant under oath, on the record, and in the presence of counsel. Inadmissible Purposes Inadmissible to show criminal liability for the charged offense. Inadmissible against the defendant who made the plea or was a participant in the plead discussions unless one of the two above exceptions apply.

DIRECT AND CROSS EXAMINATION

Direct Examination: Procedure: Open-ended questions Set the scene Bring the jurors through the action. When Can We Use Leading Questions? Generally, leading questions are permitted as necessary to: Focus testimony, Develop testimony, or Refresh a recollection We can use Leading Questions on Direct if: The witness is infirm, In regard to preliminary questions that are not in dispute With hostile witnesses Hostile = a witness identified (aligned) with the adverse party. EX: calling a in a torts case. Or calling employees of the opponent. If you are refreshing recollection This can be done with absolutely anything. Are you sure you made the arrest on Thursday? Is there anything which might refresh your recollection? Mark it as an exhibit and show it to opposing counsel. (only opposing counsel can offer it into evidence) Allow the witness to look at it. Take back the exhibit and resume questioning. To develop testimony if necessary: If a witness is too old or too young. Or timid/frightened. Cross Examination: The scope of cross is limited to: Matters brought up on direct, and Issues of credibility. Includes anything that demonstrates bias, inability to recall, etc. If a witness is not available for cross or refuses to testify on cross, their direct exam testimony will be stricken. An adverse party has the right to see anything used to refresh a witness recollection on the stand or in preparation for testimony. Experts and parties can sit in during other peoples testimony, but no one else can.

COMPETENCY OF WITNESSES
Rule: Witnesses are presumed to be competent. Anyone can testify as a witness (even a mentally insane individual), if they can meet the three requirements below. Thus, if you are trying to challenge a witness, you have the burden of showing he is not competent. [FRE 601] The courts decision as to competency of witnesses will only be reversed for abuse of discretion. Is the witness COMPETENT? For all witnesses (children and INSANE witnesses included, though see question format below), 3 requirements must be met: Does the witness have personal knowledge? Does the witness have the ability to take an oath (i.e. the ability to appreciate the solemnity of the situation; understanding right from wrong; being able to testify truthfully)? [FRE 603] You must make a sworn statement that you will tell the truth under the penalty of perjury; the witness must be willing to acknowledge the consequences of lying in order to be sworn. Does the witness have the ability to recall and communicate? Must have some way of transferring information from the witness to the fact finder speaking is not necessary; you could have a signer. There is no per se bar against introducing testimony induced by hypnosis. Hypnosis can be used to enhance recollection/memory. Is the witness a CHILD? Although the requirements are the same for a child witness, ask these 2 questions: Do you understand the difference between truth and a lie? Shows appreciation for the solemnity of an oath. Do you remember what happened? Shows recollection and personal knowledge. Ability to answer questions shows ability to communicate. What if the witness is a JUROR? When can a juror testify as a witness? He just cannot testify in a case he or she will be deciding. [FRE 606(a)] What can a juror testify about? A juror MAY testify about these things: Whether extraneous prejudicial information was improperly brought to the jurys attention. Whether an outside influence was improperly brought to bear upon any juror. Whether there was a mistake in entering the verdict onto the verdict form. Can juror testimony be admitted to impeach a verdict based on things that went on in juror deliberations?

NO! This rule was based on the necessity of ensuring the finality of jury verdicts. Exception: external influences (i.e. a juror reading a newspaper). Drinking and doing drugs in juror room was found not to constitute external influences since they were not sent in from someone not on jury.

HEARSAY The statement is HEARSAY if its an out of court statement being offered for the TOMA.
Is the statement HEARSAY? [FRE 801] Rule: Hearsay is an out of court statement offered into evidence to prove the truth of the matter asserted. The party objecting to hearsay and trying to keep the evidence out carries the burden of proving that it is hearsay so, you must show the person intended her conduct to be an assertion and that assertion is what the conduct is being offered to prove. The rule favors ADMISSIBILTIY. Policy behind the Rule: You cannot cross examine person whose statement is recounted (to test memory, perception, etc.); the statement is not sworn under oath (so you dont know if person was telling the truth); you cannot observe the declarants demeanor. Is there a statement? Who can make a statement? ONLY people! Not machines so radar readings in a speeding trial CAN come in. Two exceptions: A video reenactment IS HEARSAY if offered to prove what happened. A text message is also HEARSAY if offered to prove TOMA. Not animals What constitutes a statement? An oral assertion: A persons words A written assertion: A persons writing Non-verbal conduct of a person if it is INTENDED by the person as an assertion: A persons conduct, if intended by the person as an assertion (i.e. intended to convey an idea of information). How do you determine if words, writing, or conduct was an assertion? Ask yourself: Was the conduct intentional? Did the person intend to convey information through their words, writing, or conduct? Examples of Non-Assertive conduct: Sweating, Shaking Examples of Assertive Conduct: Reenactments (videos or otherwise) are assertive. Picking a guy out of a line up, offered to prove he did it. Conduct was asserting that he did it. Silence: Does the absence of a statement constitute a statement? Rule: No, the absence of a statement, such as the absence of a complaint (used to prove the non-occurrence of an event), is NOT hearsay because the testimony does not quote any out of court words. It CAN COME IN, but you MUST show that there were similarly situated people as the injured party with the same motive and opportunity to complain, who didnt. This pertains to the relevancy requirement. Two Common Examples: Lack of complaints by other buyers sought to be introduced as a defense by a seller accused of selling substandard goods to the plaintiff, and The defendants failure to mention an alleged business deal to colleagues, introduced to support a conclusion that the alleged deal was never made.

Mixed Conduct/Assertion Cases: In situations with conduct AND writing or speaking, how do you determine which is the stmt? Writing a letter and mailing it is CONDUCT. In mailing a letter, the mailer probably did NOT intend to assert the person lived there. Probably NOT HEARSAY. Dialing a phone and saying something is CONDUCT. First, ask yourself what did the actor intend to do? Was this conduct or an assertion? If it was simply conduct, not intended as an assertion, then it cannot be hearsay. Is it an out of court statement ? What constitutes out of court? The test: Put the statement in quotes. If the witness (who is on the stand) is quoting anyone including himself, and the statement he is quoting was said out of court, it is an out of court statement. It doesnt matter that the declarant may be on the stand quoting his own out of court statement. It is STILL HEARSAY. You cannot circumvent the hearsay rule by framing testimony so as to suggest what an out of court declarant said without actually stating it. Merely suggesting in an answer, something which was said out of court, will induce the hearsay rule. Is it offered to prove the truth of the matter asserted? What is the statement being offered to prove? Before you conclude that you know what the statement is being offered to prove or if you are UNSURE, see Non-hearsay purposes below and ask yourself if the statement is actually being offered for a NONHEARSAY PURPOSE. If none of them apply, come back to this. Non-Hearsay Purposes: Impeachment with a prior inconsistent statement Verbal Act Effect on Listener, Reader, or Viewer Verbal Objects Labels Verbal Markers Circumstantial Evidence of State of Mind Circumstantial Evidence of Knowledge Did the person who spoke, wrote, or performed the conduct intend to make that assertion when doing so? YES HEARSAY. EX: Reputation and Gossip are ALWAYS HEARSAY. NO NOT HEARSAY.

NON-HEARSAY PURPOSES The statement is NOT HEARSAY if it is being offered for a NON-HEARSAY PURPOSE.
Is the statement actually being offered for a NON-HEARSAY PURPOSE rather than to prove TOMA? Rule: If the statement meets all of the hearsay requirements, but it is being offered for one of the non-hearsay purposes below, rather than TOMA, then it is NOT HEARSAY. The statement can come in for its limited, nonhearsay purpose only and NOT for TOMA. What are the Non-hearsay purposes? Impeachment with a Prior Inconsistent Statement: Rule: An unsworn, prior inconsistent statement by a non-party is NOT HEARSAY when used to impeach because it is not offered for TOMA but rather to discredit the declarant. EX: Atty for A calls a witness that says A had the light in her favor. Atty for B asks witness on cross whether he had earlier stated to an insurance adjuster that B had the light in HIS favor. A objects to hearsay. Bs arg is that he is not offering the evidence for the TOMA (to prove B had the light in his favor) but rather to impeach the witness with a prior inconsistent statement. The stmt will just come in to discredit the witness. Atty for B cannot now argue in his closing We know B had the light in his favor. Was there an inconsistency? An inconsistency = any change in the declarant or witness position which suggests that she is lying or mistaken. Verbal Act: Saying the word is like doing something; language with a performative aspect. It is not hearsay. Examples of Verbal Acts: Words of contract offer, acceptance, consideration, and performance. Words terminating a contract letter to a landlord informing him of when your lease will be done, or an eviction notice. Legally operative language i.e. words of marriage. Words of defamation. Words showing transfer of property or words that accompany the transfer of property/money. Words by a trespasser to show adverse possession. Words that have consequences / words of coercion like threats, Give me your money while gun is raised. Words that create/destroy an agency relationship. Paying off a debt (also can be considered non-assertive conduct b/c all it likely asserts is that the person lost the bet.) Purchasing porno literature (because its a crime) and words that accompany the sending of the check. Test for Determining if Stmt is a Verbal Act: Do these words on these words on their own have a performative aspect? In saying these words, do you create/destroy/modify/alter any legal rights? Effect on Listener or Reader: Statements Which will Often Come in to Show Effect on the Listener/Reader/Viewer: Warning Labels Any type of verbal warning (bc if you acted despite my warning, my words of warning would show you were given notice). Any statements which are relevant solely because a party was exposed to them. EX: Prosecutor telling an officer he had probable cause to arrest someone as proof that the officer arrested in good faith. Verbal Objects: Rule for LABELS: Where the identifying characteristics of a thing are a monogram or inscription or someones name, the hearsay rule is implicated if a party tries to use the writing to show that its meaning is true. If a party

just uses a writing to show that the writing existed, and uses other proof to suggest that things with that writing have certain attributes (such as ownership by the person named in the monogram or inscription), there is NO HEARSAY problem. Examples of Verbal Objects Labels are not hearsay because the label maker likely did not intend to assert anything by making the label. ASK: Is the legend, logo, inscription, or mark on the object being used to identify a person, agent, or some actor? If so, its not hearsay. What is a VERBAL MARKER? It occurs when we need two peoples testimony in court in order to complete the statement about something that occurred outside of court, regarding when, where, or who to mark or identify. The out of court statement of a witness coupled with the in court statement of another witness will complete the identification and is not hearsay. Both people must testify with one of them referring to an out of court statement she made and another witness giving that statement definition by marking/identifying the person, place, time, etc. It is when something looks like hearsay, but it is incomplete. Occurs in 3 scenarios: Identify someone Identify where something happened Identify when something occurred. Verbal Markers are NOT HEARSAY. Circumstantial Evidence of State of Mind: EX: Anna Sofers Will. Bus company seeks to admit Annas will, not for TOMA, but to show the kind of relationship she and her husband have. He wants to offer it in to show Annas (the declarants) state of mind. EX: Guy wants to leave all his money to his dog. Day before he dies, he says he is Napoleon. Statement offered not for TOMA (to prove he is Napolean) but as circumstantial evidence of his state of mind (aka that he was crazy). EX: Defendant charged with stealing a plane. He wants to call a witness who will say he told 6 people about the plane. His theory is he wouldnt have been bragging about it if it were stolen or if he knew it were stolen. Comes in to show his state of mind. EX: Betts case. Mom wants to testify that girl, out of court, said He killed my brother, and hell kill my mommy too. Stmt is not offered to show the bf killed her brother but to show the little girls state of mind, which shows why it would be bad for her to live with her mom. Is the statement a LIE? Lies are not hearsay because they are not offered for TOMA. They are offered for state of mind. The danger here is that it contains some underlying belief. If its a lie to a government official, it could be obstruction of justice, in which case it is a non-hearsay VERBAL ACT. SPECIAL Pacelli Type Criminal Cases Where Relevance of Statements Depends on Underlying Beliefs of Declarants and Those Underlying Beliefs are HEARSAY: Rule: In a criminal case, if the government seeks to offer out of court statements whose relevance depends on the underlying belief of the declarants, this creates a hearsay risk. Therefore, you need to produce these declarants (so they can be confronted) or else there is a violation of the individuals Constitutional rights under the Confrontation clause. Is it a criminal case? Does the relevance depend on the underlying beliefs of the declarants? YES hearsay risk.

If yes to (2), ask did the government produce the declarants? YES Defense can cross, hearsay risk is obviated, and the Constitutional right of the accused to confront accuser is secured. NO Hearsay risk not obviated, Const rights of accused under the Confrontation clause are likely violated. Circumstantial Evidence of Knowledge: EX: Paper mach man. Both sides agree child was sexually assaulted. Prosecution offers her description of the room (including her description of the doll). Prosecution offers her description NOT to prove whats in the room but as circumstantial evidence of her knowledge of what the room looked like. This knowledge is relevant in this case because she would not have known this stuff if she hadnt been in the room.

HEARSAY EXCLUSIONS NOT HEARSAY b/c they are excluded from the definition by STATUTORY MAGIC
Is the statement a PRIOR STATEMENT by the WITNESS WHO IS PRESENTLY TESTIFYING and who is now SUBJECT TO CROSS EXAMINATION concerning the statement? YES Is the prior statement inconsistent with the declarants testimony? Inconsistency refers to ANY change in the witness position which suggests that she is lying or mistaken. All of the following are examples of inconsistencies: Direct contradiction The failure to recall things that you should remember (i.e. being able to recall and then not being able to). Omission or Addition of a critical detail that you would have included if it were true. YES Was the prior statement given under oath? NO ADMISSIBLE for IMPEACHMENT purposes ONLY. Under FRE 613(b), extrinsic evidence of a prior inconsistent statement is admissible only if the witness is afforded an opportunity to explain or deny the statement and the opposite party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require. YES PRIOR INCONSISTENT STATEMENTS MADE UNDER OATH at a prior proceeding [FRE 801(d)(1)(A)] ADMISSIBLE as proof of the TOMA (truth of what was said at the prior proceeding). RULE: A prior inconsistent statement is NOT HEARSAY because it comes in to discredit the witness, but it also comes in for the TOMA. Requires three things: Witness is now cross-examinable concerning the prior statement. Easy to meet witness will meet this requirement if he remembers making a statement, even if he cannot recall what he said in his statement or the circumstances surrounding his making of the statement. In reality hard to cross him, but court said this was enough. The statement is inconsistent with his present testimony. The statement was made under oath in a prior proceeding or deposition. Was the prior inconsistent statement made at a prior proceeding? All of the following count as prior proceedings: Trial Deposition Grand jury testimony Hearing Things Which Will Not Qualify Under This Rule: Affidavit at a police station NO Is the statement consistent with the declarants testimony and is it being offered to rebut a charge of recent fabrication? YES PRIOR CONSISTENT STATEMENTS MADE BEFORE IMPROPER MOTIVE OR UNDUE INFLUENCE [FRE 801(d)(1)(B)] ADMISSIBLE to rebut allegation and for TOMA. Rule: If you are going to rehabilitate a witness with a prior consistent statement that wont be hearsay, you MUST show that the statement was made BEFORE the motive or bribe or undue influence. In these cases, the testimony comes in for 2 things: 1) To rebut the allegation of undue influence or improper motive, AND 2) For

TOMA. Requires Three Things: The witness must be cross-examinable at trial concerning the prior statement. Easy to meet witness will meet this requirement if he remembers making a statement, even if he cannot recall what he said in his statement or the circumstances surrounding his making of the statement. In reality hard to cross him, but court said this was enough. The statement must be consistent with his present testimony. The statement must be offered to rebut a charge of recent fabrication or improper influence or motive. This can ONLY come up on redirect in response to (on cross examination) an allegation of undue influence, improper motive, reception of a bribe, or recently fabricated story. What is a prior consistent statement? Any statement by a witness made out of court before the witness testimony that reinforces or supports the testimony. The prior statement need NOT be under oath in a proceeding. What must the proponent show in order to admit this kind of statement? That the witness testimony has been attacked as recently fabricated or influenced by a motive to lie, AND That the witness made the prior statement before the time of the alleged fabrication or before the time that he or she was subject to the alleged motive to lie. What kinds of statements qualify under this rule? Statements Which DO qualify: Statement to police. Statements which do NOT qualify: Deposition Statement Examples of Prior Consistent Statements Made Before Improper Motive: NO Is the statement an identification of a person made after perceiving the person? YES PRIOR STATEMENTS OF IDENTIFICATION AFTER PERCEIVING THE PERSON IDENTIFIED [FRE 801(d)(1)(C)] ADMISSIBLE Rule: Prior statements of identification are admissible even if the declarant cannot make an in court identification or changes her mind and says it isnt that person at all. The rationale behind this rule is that identifications of people made prior to trials are likely to be more accurate than identifications made during testimony, and for that reason should not be excluded from substantive use. Requires Three Things: Previous statements of identification. Made by the witness after perceiving the subject. Provided that the witness is subject at trial to cross-examination concerning the statement. Easy to meet witness will meet this requirement if he remembers making a statement, even if he cannot recall what he said in his statement or the circumstances surrounding his making of the statement. In reality hard to cross him, but court said this was enough. This identification need NOT be sworn. All that is required is that the ID be BEFORE trial. How can the prior identification be made? Sight Sound Examples of Prior Statements of Identification:

Could be in a line-up in the police station where you point and say thats him. Police artist sketches also count as prior statements of ID. ADMISSIONS: Is the statement being OFFERED AGAINST A PARTY? Rule: An admission is anything a party has ever communicated (in speech, writing, or in any other way) sought to be introduced against that party at trial. Admissions are NOT hearsay. They can contain opinions and conclusions and do not need to be based on personal knowledge. It may state an opinion, an improper opinion, or a legal conclusion. The only way an admission can come in is if the DECLARANTS OPPONENT offers it. The proponent of the statement need ONLY SHOW: That the statement was once made by the opposing party, AND That it is relevant to the current trial. It does not matter if the statement is favorable, unfavorable, or neutral to the party that made it. PERSONAL ADMISSION: Is the statement the partys own statement, in either an individual or representative capacity? [FRE 801(d)(2)(A)] Rule: A partys own past words, relevant at the time of trial to an issue in the trial, can be admitted by the opposing party. This rule covers uttered, written, or intentional conduct on the part of a party opponent. A defendants pleading guilty in a criminal case IS admissible against the defendant in a subsequent civil case. If 2 co-defendants are on trial and A makes an admission As admission is admissible against A; however, even if As statement implicates B, it is inadmissible hearsay as to B. If the case was to be tried together, they would need to use two juries. ADOPTIVE ADMISSION: Is the statement one that the party has adopted? [FRE 801(d)(2)(B)] Rule: An adoptive admission is a partys reaction to a statement or action by another person when it is reasonable to treat the partys reaction as an admission of something stated or implied by the other person. An adoption of a statement can be manifested in any appropriate manner including failure to protest an untrue statement made in ones presence when such a protest would normally be forthcoming under the circumstances were the statement untrue. An admission by X may be a statement spoken or written by another. It is when you agree to something. Three requirements (HURT): The party Heard the statement. The party Understood the statement. The occasion and nature of the statement were such that a Reasonable person would have Taken action/replied if he did not mean to accept what was said. When is silence NOT an admission? While the person is in custody. Post-custodial arrest silence (because it is irresolvably ambiguous; we dont know why people are silent). You have a right to remain silent after being arrested. Examples of Adoptive Admissions: Not denying a statement which you hear and understand, when a reasonable person would if it were not true. When you sign a contract, you adopt the terms of the contract. When you sign a waiver, this is an adoptive admission. AUTHORIZED SPOKESMAN ADMISSION: Is the statement made by a person authorized by the party to make a statement concerning the subject? [FRE 801(d)(2)(C)] Rule: The statements of a person authorized to speak on behalf of someone who becomes a party to a lawsuit are admissible as admissions when offered against the party. Proponent must show by a preponderance of the evidence to the judge that the individual is an agent of the

defendant. You can use the statement you want to get in as evidence of this agency, but you need some other proof that the person is in fact an agent of the defendant. Examples of Authorized Spokesmen: A CEO speaking at a press conference. An attorney But, admissions contained in pleadings (when pleadings argue in the alternative) will likely NOT be an admission because courts want you to be able to plead in the alternative. How do you establish the declarants authority? In establishing the declarants authority under this rule, the contents of the statement shall be considered but are not alone sufficient to establish these preliminary facts. AGENT/EMPLOYEE ADMISSION: Is the statement one made by the partys agent or servant concerning a matter within the scope of the agency of employment, made during the existence of the relationship? [FRE 801(d)(2)(D)] Rule: A statement is an admission, usable against a party, if it is made by the partys agent or employee concerning something within the scope of agency or employment during the time of the agency or employment. The agent/employee does not need to have any personal knowledge of the facts underlying his statement. All that is required of the agent is: That he be working, AND That the statement be made during the tenure of that employment. How can you establish the agency/employment relationship? In establishing the agency or employment relationship and scope thereof under this rule, the contents of the statement shall be considered but are not alone sufficient to establish these preliminary facts. CO-CONSPIRATOR STATEMENTS: Is the statement one made by a co-conspirator of a party during the course of and in furtherance of the conspiracy? [FRE 801(d)(2)(E)] Rule: You DONT need a charge of conspiracy for this admission to come in. You only have to show the judge by a preponderance of the evidence that a conspiracy existed. You can also use these statements in both civil and criminal cases. Co-conspirator statements are admissible if: Declarant and defendant conspired (coventurer requirement). The statement was made during the course of the venture (pendency requirement). And in furtherance thereof (furtherance requirement). Once you join the conspiracy train (illegal agreement), you adopt all the baggage. To remove yourself from the train, you must show abandonment = renunciation, no acts in furtherance. Is it a conspiracy? A conspiracy is defined as an agreement to commit some crime. To have a co-conspirator admission, you must prove the existence of a conspiracy. To do that, you must have a statement plus something else. Do you have a statement? The statement must be: Made by a member of the conspiracy (a co-conspirator) An agent who the defendants think is a co-conspirator may be considered a co-conspirator under this requirement. Made during the course of the conspiracy While it is going on.

If the declarant (co-conspirator) is in jail, the statement will not come in. The conspiracy ends when the declarant is arrested. Made in furtherance of the conspiracy (promoting the ends of the conspiracy) This requirement will be construed very BROADLY. Do you have the plus something else? [FRE 801(d)(2)] Some kind of evidence to corroborate the existence of a conspiracy. i.e. the guy showing up at the right location with the money in his car.

HEARSAY EXCEPTIONS DECLARANT AVAILABILITY IMMATERIAL. This IS HEARSAY, but it meets an EXCEPTION.
Present Sense Impression [FRE 803(1)] Rule: A present sense impression is a statement describing or explaining an event or condition made while the declarant was perceiving the event or condition, or immediately thereafter. These statements are admissible to prove the substance of what they assert. Rationale: Problems in memory are slight since the rule requires the statement be made during or immediately after the event or condition it describes. THE TEST: Does the statement describe an event or condition? YES Was the statement made while the declarant was perceiving the event or condition, or immediately thereafter? Did the declarant perceive the even or condition? Perceiving = sees and hears. Was the statement made during or immediately after the perceiving of the event? Timing Requirement: Need not be described at the exact moment he hears it or sees it, but immediately after. The timing is virtually identical. Examples: EX: I gotta go, the grocery store guy is here. Then she dies. Comes in because she was describing it as it happened. Excited Utterance [FRE 803(2)] Rule: An excited utterance is a statement relating to a startling event or condition, made while the declarant was under the stress or the excitement caused by the event or the condition. They are usually statements that begin with OMG or Oh no! Statement comes in for TOMA. Rationale: Any motive the declarant might have had to lie will be overcome by the shock of the startling event, and that memory is not a problem because the statement must be made close in time to the event. THE TEST: Does the statement relate to a startling event or condition made while the declarant was under the stress or excitement caused by the event or condition? Was there an event startling enough to cause nervous excitement? There MUST be! NOTE: The startling event MAY be a revitalization of a prior startling event. EX: Woman sees her assailants picture in a photo lineup 3 months after attack. She shouts, Thats him, he attacked me! The argument is that the startling event was seeing the picture (or that it caused a revitalization of the startling event), and this identification could come in as an excited utterance. Was the statement made before there was time to contrive or misrepresent? It MUST have been! Was the statement made while the person was under the stress or the excitement caused by the event? It MUST have been. In evaluating whether the declarant is still under the stress of the startling event, the court will take into account: The age of the declarant. The physical and mental condition of the declarant. The characteristics of the events, AND

The subject of the statements. Examples: A person who is injured and rendered unconscious may wake up and say something about the cause of the injury. That statement can be treated as an excited utterance despite the passage of a long period of time between the stimulus and the statement since there is no likelihood that the speakers perception could have been affected by events that occurred while the speaker was unconscious. Things that Typically Do NOT Constitute an Excited Utterance: Statement about a stress-inducing event that is made in response to someones question courts may rule that it was not a product of the speakers stress. Then Existing Mental, Emotional, or Physical Condition [FRE 803(3)] Rule: A statement of then existing mental, emotional, or physical condition is a statement of the declarants then existing state of mind, emotion, sensation, or physical condition (such as intent, plan, motive, design, mental feeling, pain, and bodily health). This exception does NOT cover statements of memory or belief when used to prove the fact remembered or believed, UNLESS it relates to the execution, revocation, identification, or terms of the declarants will. These statements can come in to prove 4 things: The declarants then-existing physical condition His then existing mental or emotional condition His later (future) conduct. Facts about his will. Rationale: When people say what they think about something or say how they feel physically or emotionally, there are no perception or memory problems likely to diminish the accuracy of what they say. THE TEST: Is the statement one of the declarants then existing state of mind, emotion, sensation, or physical condition? Look for statements of: intent, plan, motive, design, mental feeling, pain, bodily health. YES Is the statement one of memory or belief offered to prove the fact remembered or believed? YES Does the statement relate to the execution, revocation, identification, or terms of declarants will? YES Admissible. NO Inadmissible unless another exceptions applies (try Statements for Purposes of Medical Diagnosis). One last consideration: If it seems to be a statement of memory or belief, and it does NOT relate to the declarants will, ask yourself: Does the statement EXPLAIN future conduct? Rule: We WILL allow statements explaining future conduct SO LONG AS there is corroborating evidence regarding these explanatory statements. EX: A called and asked for a bribe, and I am going to pay it. (This statement relates to a past event, does not relate to a will, but it DOES help explain the declarants intent to pay the bribe.) NO Does the declarants statement implicate a third partys future conduct/intent? NO Admissible under this rule to prove TOMA and declarants future conduct. YES You must have independent corroborating evidence of that third partys conduct before you can offer that statement into evidence to prove the third partys conduct. If you dont offer corroborating evidence, then

you have violated the third partys Confrontation Clause rights. Examples of Admissible Statements: I left $12M to P. Even though it is a statement of memory or belief, it is a term of the declarants will, so Ps attorneys can offer the statement in. I feel terrible. Admissible to prove the speaker was feeling terrible at the time he spoke. I think I saw Bill yesterday. Admissible to prove the speaker thought he saw Bill the prior day, not that he did in fact see him. I am going to meet Angelo in the parking lot. If you want to use the declarants statement of his intention to also prove the future conduct of Angelo, you must have additional evidence suggesting that the declarants belief of Angelos future action was accurate. Proof that survey respondents articulated particular beliefs is admissible under this exception. I am the king of mars. Admissible to prove the declarant thought he was the king of Mars. This supports an inference that he was crazy. Examples of Inadmissible Statements: I dont want to die from poisoned liquor. Statement implies she believes she was poisoned. Since this is a statement of past belief, it is inadmissible. Statements for Purposes of Treatment or Medical Diagnosis [FRE 803(4)] Rule: This rule covers statements made for purposes of medical diagnosis or treatment and describing medical history, or past or present symptoms, pain, or sensations, or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment. Rationale: People have compelling self-interest in speaking truthfully to those who provide medical services. THE TEST: Is the statement made for purposes of medical diagnosis or treatment and does it describe medical history or past or present symptoms, pain, or sensations? Is the statement made to medical personnel? It must be, but this includes: Treating physician Diagnosing physician Someone who is not a physician at all but is involved in the delivery of healthcare. Is the statement made by the injured person or someone on behalf of the injured person? Statement need NOT be made by the person who needs medical help. Statement can be made by: Patients parent (or de facto parent) Babysitter A third party Good Samaritan Other medical personnel (i.e. doctor speaking to doctor) Is the statement made for the purpose of medical diagnosis or treatment? It must be. Analyze what the purpose of the statement is. Statement will NOT come in if it is just assigning fault or blame. Why youre lame, but not whos to blame. Why youre sore, but nothing more. What if it is a statement of identity will it be admitted?? This is a bit of a stretch to get these stmts in under this rule, but courts may allow it in sexual abuse cases. Courts will use a 2-part test:

Declarants motive in making stmt must be consistent with the purposes of promoting treatment or diagnosis. The content of the statement must be reasonably relied upon by the physician in rendering the treatment or making the diagnosis. Does the statement describe one of the following admissible topics? Medical history Past or present symptoms, pain, or sensations Inception or general character of the cause or source of the injury if reasonably pertinent to diagnosis or treatment. Examples of Admissible Statements: He hit his head diving into a swimming pool. Statement is likely admissible because the details of the circumstances of the injury are significant to medical personnel. Examples of Inadmissible Statements: He hit his head diving into a swimming pool that didnt have any warning signs about which end was the shallow end. The opponent of introduction of that statement would have a strong argument that the information about warning signs was not closely enough related to the providing of medical care for it to be covered by the policies supporting this exception. Past Recollection Recorded [FRE 803(5)] Declarant must be on the stand for this. Rule: This rule is used as a last resort after the proponent has already tried to refresh the recollection of the witness by reminding the witness of the statement, quoting relevant portions or showing him the document. When this fails, the proponent must try to get the statement read. To do so, he must demonstrate 4 things: The declarant, who is on the stand, lacks present recollection of the matter (despite attempts to refresh her memory), The statement accurately reflects knowledge she once had, She made or adopted the statement, AND She did so while the matter was fresh in her mind. THEN, the offering party/declarant can read that statement/record/list into evidence. Only the opponent can offer it in as an exhibit. Rationale: We prefer live testimony. THE TEST: Can the statement come in under this exception? Is the declarant on the stand? He must be. He is someone who cannot recall something he knew on an earlier day. Does the witness lack present recollection of the matter? Witness must say he cant recall. Other side then tries to refresh his memory. Does the statement accurately reflect knowledge he once had? It must. Did he make or adopt the statement? The list doesnt need to have been MADE by the declarant. The declarant just must say that he reviewed it and it was accurate. Did he do so while the matter was fresh in his mind?

The fresh in mind standard is very lenient. This can be a substantial period of time after the event, so long as it is fresh in her mind. Business Records [FRE 803(6)] Rule: For this rule apply: The record must be one that is regularly kept in the course of regular business. The source of information must be someone with personal knowledge of the information stated therein. The record must have been made or recorded close to the time of the event. A witness with firsthand or circumstantial knowledge of the system must be able to describe the usual means or preparation so as to satisfy the other three requirements. Rationale: The policy justification for treating these records as exceptions to the hearsay rule is that they are likely to be accurate since they are made for the purpose of running an enterprise rather than for some purpose in litigation. If the records are inaccurate, the business may lose money or customers, etc. NOTE: Business records often contain hearsay within hearsay. Under FRE 805, it can come in so long as each part of the combined statements falls under an exception. THE TEST: Will the document qualify for treatment under this section? Is the testifying witness someone with knowledge of the system? The witness must be a custodian or someone with similar knowledge. But what if this person cannot testify but you have an affidavit for her? Under FRE 902(11), you can place a business record into evidence via a sworn statement (i.e. affidavit) by a custodian, and you will not need the live testimony of that person. The sworn statement must say: When the record was made Who made it (i.e. I am the record keeper.) How it was generated (i.e. must say the records are accurate). Was the document made as part of the usual activities of the organization? The witness must be able to show that the records were made and kept in the ordinary course of business. Records may satisfy this requirement even if they are not made all that often. Rarity does not negate the fact that they were made in the regular course of business (i.e. accident reports made regularly but rarely may qualify). Did a person with knowledge of what the record says make the record or report the information to the person who made it? The author of the records must be someone with knowledge. It is okay for the document to contain opinions, so long as we know who the source of the information was and so long as that source is someone with knowledge. Everyone quoted in the business record MUST work for the business (i.e. must be an employee/agent). Was the record made near the time of the occurrence of what it describes? The witness must be able to testify that it was. FINAL CHECK: ASK YOURSELF, is there anything about the surrounding circumstances that makes the record seem untrustworthy? If the surrounding circumstances make the record seem untrustworthy, the court has discretion to exclude it. For instance, if the record seems to be something the did as a cover-up to avoid potential liability, it may be excluded. If you get stuck here, ask yourself: At the time the declarant made the record, could he have anticipated being named as a party? If so, look with skepticism because we will not let it in if it is not trustworthy.

Examples of Admissible Statements: Even illegal documents can count as business records! Examples of Inadmissible Statements: Documents that seem to be prepared in anticipation of litigation where the author can see themselves as a potential defendant are inherently suspect and will likely be inadmissible under this rule. It is likely someone trying to cover themselves up. Absence of Something in a Business Record to Prove Non-Occurrence [FRE 803(7)] Rule: If a regularly kept business record would otherwise qualify, it may usually be admitted to show that a particular entry is absent, if such an entry would normally have been made had a particular event occurred. THE TEST: Will the document be admitted? IMPT: Must FIRST decide if the absence is even hearsay at all. Usually, this analysis is not even needed because it is just NOT HEARSAY. Ask yourself: Is the failure to make a notation intended as an assertive declaration that nothing has happened? The answer here will generally be NO in which case, no need to apply the exception because it is just NOT hearsay. Most times, a business records failure to record a transaction is not assertive the record keeper is not intending to express to the world the fact that no transaction took place; the occasion to record the transaction simply never occurs! If it is one of the rare instances where the failure to record, was an assertion, then continue analysis below. NO NOT HEARSAY. YES Would the record otherwise qualify under FRE 803(6)? YES Did the business check with due diligence for the entry in question? Examples of Admissible Statements: Merchant keeps regular records of every payment by a customer. If the issue is whether A paid a particular bill, Merchant may admit his records to show that no indication that A paid this particular bill was ever placed on its records. Public Records [FRE 803(8)] Rule: Can be offered to show: Activities of the Office or Agency Matters Observed by Public Officials Factual Findings from Official Investigations Rationale: These records are exactly like business records when their topic is the internal workings of a part of the government and are therefore likely to be reliable because the organization that makes them also uses them in its day to day work. THE TEST: Will the documents come in? Two initial things to remember: Records do not need to occur all the time so long as the agency has a duty to investigate. Can use non-agency sources for the basis of the agencys opinion. Is it records of the activities of a government entity? These can be introduced in both civil and criminal cases by either the plaintiff or the defendant.

Examples: Court transcripts to prove testimony given. A marshals return to indicate service of process. A progress sheet prepared by the Treasury Dept. describing the processing and mailing of numbered govt checks. Is it records of matters observed and reported under legal duty by police and law enforcement personnel? General Rule: Matters observed are not admissible against criminal defendants (but they can be used by defendants against the government). They can be introduced by both sides in a civil case. Examples of things that CANNOT come in under this rule: Police reports/investigative findings cannot come into evidence. Examples: Reports by building inspectors indicating code violations. IRS assessment liens indicating unpaid taxes. Is it factual findings resulting from legally authorized investigations? General Rule: Factual findings are not admissible against criminal defendants (but they can be used by defendants against the government). They can be introduced by both sides in a civil case. These can quote people who do not work for the agency. Factual findings are admissible unless theres an issue about their credibility. Examples: Findings of employment discrimination prepared by the EEO Commission. Studies on Toxic Shock Syndrome prepared by the Centers for Disease Control. LASTLY: Is it a non-adversarial public record? Non-adversarial public records are ALWAYS admissible, even in criminal cases. EX: Drivers license records, license plate records, etc. Absence of Public Record [FRE 803(10)] Rule: Absence of a public record can come in so long as you show that a diligent search was had, and it failed to siclose the record, report, statement, data compilation, or entry. Examples: Guy deposits $27K into a bank. Feds are alerted. They think maybe hes an attorney. They check the master roll of attorneys, and he is not listed. This absence can come in. Ancient Documents [FRE 803(16)] Rule: For these documents to come in, three things must be true: Must be documents in existence for 20 years or more. Must be found in a place where a document like it would be kept. Must not be any sign of tampering. Rationale: The policy justification for removing the hearsay bar is that: It is very unlikely that the declarant would have been lying in a way intended to influence the outcome of a trial that occurs 20 years or more after the declarants statement. Better evidence about events that long ago might be hard to find. Such events are unlikely to be pivotal in litigation. THE TEST: Will the documents come in? Are the documents at least 20 years old?

They must be. Were they found in a place they typically would be kept? They must be. Is there any sign of tampering? There must NOT be. Learned Treatises [FRE 803(18)] Rule: You can never offer a learned treatise into evidence as an exhibit. You can read from it, but only when examining an expert. It must be shown to be reliable authority, AND Either the expert relies on it in direct examination or it is called to his attention on cross examination. THE TEST: Is it a learned treatise (aka reliable authority)? Three ways to make something a learned treatise: An expert witness, on direct examination, agrees You call your own expert (who states that it is a learned treatise) The judge takes judicial notice (a shorthand method of saying the court will take notice of its status as a learned treatise without an expert). Is it being used with an expert witness? It must be. You cannot use a learned treatise with a lay witness. Reputation as to Character [FRE 803(21)] Rule: Reputation is pure hearsay, but it can come in to prove character (discussed in character evidence section). This rule simply protects the uses of reputation allowed by the character evidence rules from being barred by the hearsay doctrine. THE TEST: Can the reputation testimony come in? Is the person testifying familiar with the persons reputation? The witness testifying must be familiar with the reputation. The witness need NOT be familiar with the person himself. What is the witness testifying about? He can only testify to a pertinent character trait: Peaceful or violent Honesty/credibility Law abidingness Judgment of Previous Conviction [FRE 803(22)] Rule: Conviction of a serious crime (punishable by death or imprisonment of more than a year) may be used in other proceedings as proof of any fact that was essential support for the judgment. Note that in criminal cases, this exception may not be used against a person different from the person who was found guilty. Rationale: When a witness testifies, he puts his credibility directly at issue. One way to discredit a witness is to show that he had been convicted of a felony in the past. THE TEST: Will judgment of a previous conviction come in? What was the previous conviction? The witness must have been convicted of a felony punishable by more than one year in jail:

Murder Rape Arson Burglary Etc. How can you get the information in? This information comes in with a CERTIFIED COPY of the conviction. This is one way to impeach. What is the prior felony conviction being offered to prove? It must be offered to prove facts which are essential to sustain the judgment. UNLESS, its a criminal case: In criminal cases, the prosecutor cannot introduce prior convictions of third persons for purposes other than impeachment.

HEARSAY EXCEPTIONS DECLARANT UNAVAILABLE HEARSAY, but meets an EXCEPTION; (and CATCHALL at the end)
The Unavailability Requirement: Is the witness UNAVAILABLE? [FRE 804(a)] Rule: He MUST be!! For any of these exceptions to apply, you MUST show that the declarant is unavailable. All this means is that you must show that the TESTIMONY is unobtainable. Even if someone is in court, he is unavailable for purposes of this rule if he cannot remember, refuses to testify, or properly invokes a privilege. The judge makes the determination of whether a witness is unavailable. Disclaimer: Declarant will not be treated as unavailable if it is shown that the proponent of the hearsay statement is responsible for creating the condition that would otherwise meet the definition of unavailable. Ways a Declarant Can Be Unavailable PRISM Privileges: Did the witness invoke a privilege? Ex: spousal, psychotherapist, and attorney-client. The court determines whether the privilege invoked is valid. If the judge finds it is, then that witness is unavailable. The witness may be viewed as unavailable under this section without even being called to the stand for a ruling on his privilege. Refusal to Testify: Did the witness refuse to testify despite a court order to do so (and in the face of contempt)? Refusal to testify means you have gotten service on them, and they STILL refuse to come in OR they come in but say they will not testify. In the Ground: Is the witness is dead, ill, insane, or incapacitated? You have to be really sick to be considered unavailable under this rule must be serious illness of uncertain prognosis. Considerations include: The importance of the absent witness for the case, The nature of the illness. The expected time of recovery. No Service or Subpoena: Is the witness outside the service or subpoena power of the court? In state systems, usually the subpoena reaches the whole state. In federal civil trials, it extends to 100 miles outside the courthouse. In federal criminal trials, the subpoena runs nationwide. Even if the witness is outside the reach of subpoena, can she be reached by other reasonable means? If a witness is outside the subpoena power, you MUST show that you took SOME steps besides attempting to serve the witness. A witness beyond the reach of a subpoena is NOT unavailable if her deposition can be obtained, for example. In Criminal Cases: There is an inter-state compact where if one state can show that they need a witness that is in prison in another state, they will find a way to make them available. When government is claiming that a state witness is unavailable to be called against the criminal defendant, you MUST show that you tried to serve a subpoena, AND you did SOMETHING MORE. No Memory: Is the witness unable to recall making the statements? Once you determine that the witness is unavailable, do any of these exceptions apply? Former Testimony: [FRE 804(b)(1)]

Rule: This exception is for testimony given under oath and subject to cross-examination at a proceeding prior to the one at which the past testimony is sought to be introduced. THE TEST: Will the former testimony come in? Is the declarant unavailable? He must be just a reminder. Was the declarant a witness at a prior proceeding? Prior proceedings can be: Administrative hearings Depositions Preliminary hearings in criminal cases Trials Did the prior proceeding involve the same issues? It must have. Was the party now opposing the testimony (or, in a civil action, a predecessor in interest) a party in the prior proceeding? He must have been. Predecessor in interest just refers to someone who would have had the same motive and opportunity to ask the questions. The idea is that the later person wouldnt have asked any different questions. Did the party now opposing the testimony (or, in a civil action, a predecessor in interest) have an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination in the former proceeding? He must have. The rule does not require that you have exercised the opportunity. All that is required is that you had the chance. Predecessor in interest just refers to someone who would have had the same motive and opportunity to ask the questions. The idea is that the later person wouldnt have asked any different questions. The later persons attorney could try to argue that the former attorney was horrible, and thus, there was NOT the same motive and opportunity to develop the declarants testimony Dying Declarations [FRE 804(b)(2)] Rule: Where a person understands that his death is imminent and speaks of his circumstances, the hearsay doctrine recognizes an exception for his words. The pneumonic is CUBA: The statement must relate to the CAUSE of death, The declarant must be UNAVAILABLE, The declarant must BELIEVE his death is near, ALL civil/only homicide. NOTE: A Dying Declaration may be testimonial, but it will come in ANYWAY. So, no need to analyze under Confrontation Clause. THE TEST: Will the statement be admitted? Is it a civil case or a homicide case? Dying declarations are always admissible in civil proceedings. But, in criminal proceedings, they are ONLY admissible in homicide cases. So, dying declarations are NOT admissible in arson cases! If you have an arson case, try excited utterance exception or something else. Is the declarant unavailable for trial?

Remember, he need not be dead, but just unavailable under the PRISM test. Is the declarant dying or does he believe that death is imminent when he makes the statement? He must at least have an imminent fear of death. The victims statement will NOT come in under this exception is he does not BELIEVE he is dying at the time he says it. Does the statement relate to the cause or circumstances of his impending death? It must. This exception reaches: Statements identifying the assailant. Descriptions of the accident or catastrophe that befell the declarant. Probably also includes descriptions of prior threats and quarrels, physical pain or sensations, and matters inhaled, injected, or ingested. Does the declarant have personal knowledge about the thing causing his death? He must. Statements against Interest [FRE 804(b)(3)] Rule: Rationale: A person is unlikely to state facts or make statements harming his own interest unless they are true. THE TEST: Is the statement coming in? Is the declarant unavailable? He must be. Timing Requirement: When the statement was made, was it so against the declarants interest that no reasonable person would have made the statement? Rule: The statement must be so far contrary to the declarants interests that no reasonable person in the declarants position would have made the statement unless it were true. Look at the circumstances surrounding the statement and determine whether a reasonable person would consider it against their interest to make it. Note: It is not enough to show that the general confession was against the declarants interest even though the exact statement wasnt. This rule does not reach associated or collateral statements. A statement must itself be against interest in order to fit the exception. Statement against Financial Interest: Was it a statement against financial interest? Two types: Statements which create a financial obligation which would not otherwise be there, OR Statements which cause the declarant to surrender some financial interest he had a right to. Statement against Criminal Interest: Was it a statement against criminal interest? Two types: Statements which make the declarant susceptible to criminal liability (i.e. prosecution wants to use the statement to show the defendant is guilty). Exculpatory Statements where the defendant will use it to show someone else did it. Exculpatory Statements: Is the declarants statement an against interest statement made post-arrest, that implicates someone else? (EX: I did it, with X.) Rule: Post-arrest statements that are made by an unavailable declarant and are against interest, that implicate

ANYONE besides the declarant, are inherently SUSPECT because there is a motivation to strike a deal. We will only let them in if there is corroborating information. The motivation is that the declarant has already been arrested and he is now trying to get a better deal (i.e. prison sentence). The only reliable part is the I did it part. That can come in. Is there corroboration? Rule: The inherently suspect part is INADMISSIBLE UNLESS corroborating circumstances clearly indicate the trustworthiness of the statement. EX: Giving gruesome details about the crime that no one else would know about would count. Statements of Pedigree/Family History [FRE 804(b)(4)] Rule: Statements describing family pedigree and family history are admissible when the declarant is unavailable. This rule applies despite the fact that the declarant sometimes conveys what he heard from another and thus lacks personal knowledge. The statements are admissible to show kinship and similar family history. THE TEST: Will the statement come in? Is the declarant unavailable? He must be. Does the statement describe family pedigree or family history? Ex: Statements concerning the declarants own birth, adoption, marriage, divorce, or relationship by blood. EX: Statements about the declarants relatives or about people with whom the declarant had intimate associations. Statements Admissible Because of Forfeiture by Misconduct (aka Trunk Music Doctrine) [FRE 804(b) (6)] Rule: If one party or its associates or friends makes a declarant unavailable, then anything that the declarant has ever said (pure hearsay) can be introduced against that party. The trial court must find that it is more likely than not that the accused or someone working on behalf of the accused made the declarant unavailable. The purpose of this provision is to deal with witness intimidation in criminal cases. It is not enough that you kill the declarant or make her unavailable, you MUST INTEND TO prevent the declarant from testifying. CATCH ALL [FRE 807] Rule: This provision authorizes courts to admit hearsay that does not fit any other exceptions if: It is sufficiently reliable You prove notice, and The ends of justice require it. Note: Sometimes this is used in child victim cases when excited utterance, medical stmts, and forfeiture exception dont apply. THE TEST: Is the statement TRUSTWORTHY? In making this determination, courts consider: The declarants propensity to tell the truth Whether the alleged statements were made under oath Assurances of the declarants personal knowledge The time lapse between the event and the statement concerning the event The motivations of the declarant.

If there is any corroboration. Is there a strong necessity for the admission of the statement? Is the topic on which the statement is relevant an important topic? Will justice and the purposes of the rules of evidence be served by admission? Has the proponent given notice of an intention to use this rule? Proponent must make known to the adverse party in advance of trial its intention to offer the stmt, including the name and address of the declarant.

HEARSAY AND THE CONSTITUTION (CONFRONTATION CLAUSE)

Is an out of court statement by an UNAVAILABLE DECLARANT being offered for TOMA against a DEFENDANT in a CRIMINAL case? BIG RULE: If the government is offering in testimonial hearsay by an unavailable declarant and there was no prior opportunity to cross-examine that declarant, that testimonial hearsay cannot come in because it violates the 6th Amendment. The Confrontation clause does not bar: The use of testimonial statements for purposes other than proving the TOMA. The use of statements by a declarant who CAN be cross-examined at trial or who could be cross-examined previously. Is it an out of court statement? Is the declarant unavailable? Is it being offered for TOMA against a criminal defendant? Did the defendant have a prior chance to cross examine the unavailable declarant? The defendant need NOT have actually cross-examined the declarant, so long as he had the opportunity to do so. If NO Then we have a problem if it is testimonial evidence. Is the evidence being offered TESTIMONIAL evidence? Rule: When testimonial evidence is at issue, the 6th Amendment demands: Unavailability AND a prior opportunity for cross-examination. THE TEST: At the time the statement was made, could the objective declarant anticipate that her statement would be used in an investigation or court? YES Always Testimonial: Prior testimony at a preliminary hearing Prior testimony before a grand jury Prior testimony at a former trial Police interrogations specifically statements to a police officer by an eye witness, where the statements describe the criminal acts and everyone knows they will be used in investigation or prosecution. Statements made to police. MAYBE Usually Testimonial: A statement made knowingly to the authorities that describes criminal activity. A statement made by a person claiming to be a victim of a crime and describing the crime (whether made to authorities or not). Childrens statements to police or social service personnel. NO Rarely Testimonial: Statements made before the crime was committed. A statement made by one participant in a criminal enterprise to another, intended to further the enterprise (i.e. statements in furtherance of a conspiracy). A statement made in the course of going about ones ordinary business, made before the criminal act has occurred or with no recognition that it relates to criminal activity. What if it is a 911 emergency call?

Ask Yourself: Is the caller in immediate danger at the time she makes the call? YES Then this is Not Testimonial (911): When the police are dealing with the ongoing emergency. BUT: Does the emergency subside while she is on the phone? YES Then it becomes Testimonial (411): When 911 411 (when the emergency turns into just giving straight info, the info is testimonial) They are testimonial when the circumstances objectively indicate there is no ongoing emergency, and the primary purpose of the interrogation is to establish of prove past events potentially relevant to later criminal prosecution. CONCLUSION: If it IS TESTIMONIAL (and ALL above questions are also met), the statement CANNOT come in for the TOMA.

FOUNDATION & AUTHENTICATION Tangible Objects, Recordings, etc.

RELEVANCE: Is the object relevant? BEST EVIDENCE RULE: Is it a situation where we are going to require the ORIGINAL document? Do we have a person with personal knowledge of the conversation/tape recording/video who can testify to what he heard? YES Then Best Evidence Rule does not apply. That person may testify in the absence of the original recording. NO Then Apply the Best Evidence Rule: Central to the Case: Is the document a central (material) issue in the case? EX: lease, contract, other document where we need to know the particular language of the document. YES You will have to produce the original document. (Objection will be sustained.) Sole Basis of Knowledge: Is the writing/document/photo/recording the SOLE BASIS of the witness knowledge? EX: If a police officer has seen a note leading him to believe one spouse killed the other, this note is his sole basis and must be produced. EX: If a detective has seen a videotape with the s confession and he wants to come in to testify, his knowledge here is based solely on the tape, so the tape must be produced. YES You will have to produce the original document. (Objection will be sustained.) AUTHENTICATION: Was the object properly authenticated? [FRE 901] Rule: The requirement of authentication is satisfied by evidence sufficient to support a finding that the matter in question is what the proponent claims it is. A witness identifying the object and saying he is pretty sure it is the object in question is enough. Just because it will be let into evidence does not mean anything is decided. The jury can still decide to disregard it if they think that being pretty sure is not enough. If you get stuck, ask: Is it fair to let this in? TANGIBLE OBJECTS: Do you have a witness with personal knowledge of the object? You must. Can the witness identify the object? He must. Can that witness establish a chain of custody? Rule: The chain of custody does not have to be perfect. It must only present sufficient proof that the evidence is what it purports to be and has not been altered in any material aspect. The witness must be able to explain what was done with the exhibit from the time it left the crime scene up until trial. It is NOT necessary for each individual involved in the chain of custody testify. However, if it looks like the evidence has been altered or changed, it will not be allowed in because that would not be FAIR. TAPE RECORDINGS: Required Steps: Do you have a witness who can testify to the following?

Must show the machine was working properly. Must have someone identify all the speakers. If it is a telephone call, and the caller merely SELF-IDENTIFIES, that is not enough. How can we do this if we just have an anonymous voice saying, Dont say a word, Billy and we want this in? You can have an AGENT listen to the voice. At what time can the agent identify the voice? The agent must become familiar with the persons voice any time before or after listening to the recording, SO LONG AS IT IS SOME TIME BEFORE TRIAL. It is OKAY if the agent is not familiar with the guys voice at the time he hears the tape, but after the fact, he meets the guy and hears his voice or somehow becomes familiar with it. Must show the tape recording is complete enough to be fair. This will satisfy relevance and hearsay objections. If the tape recording is a statement by the , then it is admission by a party opponent (i.e. Ill buy heroin.) What happens if a recording is incomplete? Recordings need NOT NECESSARILY be complete. They just have to be FAIR. So, ask yourself if it misleads. Does the recording MISLEAD? YES The rule of completeness means that if you are only playing a portion of the tape and it is misleading, you have to play the rest of it! NO If it doesnt mislead, it is within the judges discretion to let it in. HEARSAY if the statement is hearsay or the object contains hearsay, make sure an exception applies.

RULES FOR GETTING DOCUMENTS INTO EVIDENCE OPRAH Analysis for Getting ANY WRITING into Evidence (Requirement of an Original Rule, Best Evidence Doctrine, etc.)
ORIGINAL WRITING RULE (Best Evidence Rule): Is it a situation where we are going to require the ORIGINAL document? NOTE: The requirements of the original rule under FRE 1001 are defined by the parties and the context of the case. Keep in mind that sometimes the original document will have been a photocopy. That is fine. The parties choose what the original document was. All that must be shown to meet this rule is that the document is the original IN THE CASE which might mean the original is still a copy. Central to the Case: Is the document a central (material) issue in the case/ is there a genuine issue about the contents of the document? EX: lease, contract, other document where we need to know the particular language of the document. EX: The writing in a defamation case because it is the defamatory utterance. YES You will have to produce the original document. (Objection will be sustained.) Factors which might lead you to believe it is NOT CENTRAL: If the writing is only one piece of evidence amongst many incriminating facts. (US v. Duffy case with shirt with DUF) Court has discretion to consider something a writing or a chattel. Sole Basis of Knowledge: Is the writing or document the SOLE BASIS of the witness knowledge? EX: If a police officer has seen a note leading him to believe one spouse killed the other, this note is his sole basis and must be produced. EX: If a detective has seen a videotape with the s confession and he wants to come in to testify, his knowledge here is based solely on the tape, so the tape must be produced. YES You will have to produce the original document. (Objection will be sustained.) NO, its NOT a situation where we need the original Then get someone to say its a true and accurate copy, and you are good to go. If you decide that an ORIGINAL IS REQUIRED, what do you do if you cannot produce it? The proponent must show SOME DILIGENCE in searching for the original. If they are unable to produce the original, they must have a good faith explanation for its absence: Loss or destroyed due to no fault of the producing party; Not amenable to service of process; The other side has it; The evidence is collateral (not important). If you have a good faith basis for the absence of the original, then you may prove up the original with any type of secondary evidence. Does a DUPLICATE count? A duplicate will count as the same as the original for purposes of admissibility, except when: There is a question as to authenticity of the original, OR Under circumstances where it would be unfair to use the duplicate. PRIVILEGE: Do any privileges apply that would bar the admission of the document? RELEVANCE: Is the writing relevant? It must be!

AUTHENTICITY: Is the writing authenticated? How must someone authenticate a writing into evidence? You must have someone (with personal knowledge of the exhibit) identify the exhibit, AND State that the exhibit is currently the same or substantially the same as it was at the time of the events in the case. What are some ways to authenticate a writing? If You Have A Signature on the Writing: Do you have a signature (or seal) on the writing? Personal Knowledge: If the lay witness was familiar with the individuals signature prior to litigation starting. Direct Evidence: If you have an eye witness who saw the document being signed. Expert Testimony: If you have a handwriting expert who can match examples of the individuals signature to the signature in question. Jury/ Fact Finder: You can leave the issue to the jury and have them compare the signature in question to examples. Circumstantial Evidence: Do you have any circumstantial evidence? Ex: If it is a letter, you can authenticate it by the names contained therein, where it was post-marked, and other circumstantial evidence that leads to the inference that the letter was sent to a particular person. Reply Doctrine: If someone sends you a response to something you wrote, and there are specific terms in it, that is some circumstantial evidence that can be used for authenticating. HEARSAY: Does the document contain hearsay? If so, does it meet an exception, exclusion, or non-hearsay purpose?

JUDICIAL NOTICE FRE 201

Rule: The Federal rules regulate judicial notice of adjudicative facts only. Judicial Notice is a short-hand way to prove something. Judicial notice can be taken of things there is no dispute about. What can judicial notice be taken of? Adjudicative Facts: Adjudicative facts are facts that are unique to the parties in the litigation (in contrast to legislative facts, which are related to background ideas about reality or law.) EX: The identity of people or companies involved in a dispute, what they might have done, where they did it, when they did it, why and how they have acted. Parties usually seek to establish these facts with witnesses and physical evidence, but with judicial notice, they can be excused from presenting any proof at all. Doctrine applies to 2 cases: Facts that are generally known in the trial courts jurisdiction, OR EX: Location of a large hotel, the residential character of a neighborhood, typical fees charged by attorneys, the frequent occurrences of icy driving conditions in an area, etc. A court may NOT take judicial notice of a fact merely bc the judge has knowledge of the fact in his personal capacity. Facts that can be determined easily from sources whose accuracy cannot reasonably be questioned. EX: Times of sunrise and sunset found in an almanac, the incubation period for measles found in a medical text, a persons past conviction of a crime found in court records, etc. What is the Procedure for Taking Judicial Notice? EITHER party may request the court take judicial notice of a fact. [FRE 201(e)] Argument is permitted on that motion. Opposing party can offer evidence to try to persuade the judge to leave decision to jury. A court may take judicial notice on its own motion. Party opposed is entitled to argue that the process should not be used bc once judicial notice is taken of a fact, the jury will be instructed. Opposing party can offer evidence to try to persuade judge that the decision is better made by the jury. How will the jury be instructed / what is the effect of the judge taking judicial notice? In a civil case, the jury is instructed that it must take that fact as true. Jury must regard judicially noticed facts as conclusively established. In a criminal case, the instruction will be that the jury MAY treat the judicially noticed fact as true. They are not bound by it. Thus, the failure to plead a fact in a criminal proceeding may not be cured by judicial notice. (bc jury does not have to accept fact.)

IMPEACHMENT
Bias and Motivation: Rule: Evidence which is sufficiently probative of a witness possible bias for or against a party warrants its admission into evidence. Discrediting a witness based on a relationship the witness has with the parties or the transaction. Classic form of impeachment. Can you prove it up with extrinsic evidence? Yes. Sensory Defects: The attacking party may seek to show that a witness had only a brief chance to see or hear what she has described in her testimony, or that she labors under defects in sensory capacity that may affect her observation, etc. What defects can be used? The defect must relate to perception, sight, or ability to communicate. Encompasses impairment of: Sight i.e. needing glasses Hearing i.e. needing hearing aid. Altered perception i.e. stoned, drunk, etc. Mental disorders i.e. Someone who is delusional (taking anti-depressants would not be enough though). When can you impeach under this method? May be proven on cross, OR May be proven by extrinsic evidence when the attacking party presents his case. How can you impeach under this method? The attacking party may show that the witness was under the influence at the time of the events or during trial. The attacking party may NOT ask questions about medical exams, etc. solely for someones embarrassment. You have to relate each question to the witness ability to perceive. Character for Truth and Veracity (By Disposition Untruthful): Opinion and Reputation Evidence of Character [FRE 608(a)] Rule: You may impeach any witness by calling a character witness to testify about that witness through means of opinion (based on personal knowledge) or reputation (based on familiarity with the witness reputation) with respect to the witness truthfulness. We can impeach a character witness because they are putting their character in question. Impeachment by Evidence of Prior Conviction of Crime [FRE 609] Preliminary Rules: You may be impeached with a prior felony (punishable by more than 1 year up to death murder, rape, arson, burglary, grand theft) conviction, but are a few requirements: Timing Requirement: Evidence of a conviction is NOT ADMISSIBLE if a period of 10 years or more has elapsed since the date of conviction or release from confinement (whichever is later). You can make an argument to the judge to extend this rule. It is within his discretion. Discretion: In deciding whether or not to admit evidence of prior felony convictions, the trial court has discretion to investigate the underlying facts of the conviction to determine whether or not its admission is more

probative than prejudicial. Effect of Pardon, Annulment, or Certificate of Rehabilitation [FRE 609(c)]: A conviction is NOT admissible if: It has been pardoned/annulled/etc. on the basis of REHABILITATION AND the person has NOT been convicted of a subsequent felony, OR It has been pardoned/annulled/etc. on the basis of INNOCENCE. Juvenile Adjudications [FRE 609(d)]: You can NEVER impeach a with evidence of juvenile adjudication. BUT, with other witnesses, it depends. Court has discretion to apply the grown up rule. Crimes of Dishonesty: Did establishing the elements of the prior conviction REQUIRE proof or admission of an act of dishonesty of false statement by the witness? [FRE 609(a)(2)] Rule: If any witness has been convicted of a crime (within the past 10 yrs) involving dishonesty or false statements, evidence of the conviction shall be admitted with no balancing of probative and prejudicial impact. Dont rely solely on the name of the charge. Think about whether the conduct was misleading. YES then this evidence shall be admitted under FRE 609(a)(2) no matter if the conviction was a felony or a misdemeanor, and no matter if the witness is a defendant or just any other witness. NOTE: This is the only place in FRE where 403 does NOT apply. Examples of Crimes of Dishonesty: Perjury Fraud Forgery Embezzlement Counterfeiting False statement, false pretenses, false handicap, etc. Examples of Crimes that Do NOT Involve Dishonesty: Theft unless the act of theft itself involved a falsehood (like rigging a coin meter to give a false reading) Murder Forcible rape or assault Prostitution Drunkenness Drug Trafficking Smuggling or failure to file a tax return [these two are just PROBABLY NOTs]. NO Then proceed to next question, which will hinge on whether you are trying to impeach the accused or not. Who are you trying to impeach? Non-accused: If any other witness (just not the ) is on the stand, courts will conduct a straight FRE 403 analysis by determining whether the convictions prejudicial effect substantially outweighs its probative value. First, was the conviction punishable by death or imprisonment for more than one year? It must have been. It must be a felony. Ask yourself, does the convictions prejudicial effect substantially outweigh its probative value? Rule: Evidence of the conviction shall be admitted UNLESS its probative value on the topic of the witness credibility is substantially outweighed by the risk of prejudicial effect on the . YES Keep it out.

In the case of multiple past convictions, if you choose to let one in, the argument for keeping the other out is that evidence of additional felonies would be cumulative and completely prejudicial. NO Bring it in. Accused: If the is on the stand, felony convictions that DO NOT involve dishonesty are presumed INADMISSIBLE. The court uses a reverse 403 test and analyzes whether the probative value of the conviction evidence outweighs the prejudicial effect the probative value MUST outweigh the prejudice this is geared toward keeping the evidence out. The court weighs the Gordon Factors: The nature of the conviction: If you have done time, there is a possibility that you are lying. If you have been found guilty of a felony, you have shown that you are likely to engage in dishonest conduct or dishonest conduct on the stand. How dishonest is the crime? Its recency or remoteness: The more recent, the more probative of your credibility now. If you are arguing for its admission, say it was recent. The more remote, the less probative of your credibility. You can say its neither. Whether it is similar to the charged offense: The more similar to the charged offense, the less likely we will let it in because there is such a big risk of the jury misusing it for propensity. The less like the charged offense, the more likely we will let it in because there is less chance of misuse. This rule favors letting the conviction come in. Whether s record is otherwise clean (convictions are presumably more probative of credibility if they show a continuing pattern rather than isolated instances): If the prior conviction is a one-time, isolated conviction, it will be less probative, and therefore may not be let in. If the prior conviction shows a continuing pattern, it is more probative, and thus might be let in. The importance of credibility issues: This is a factor that favors the state. Your Honor, the jury needs to assess the facts. In determining credibility issues, they need to know this. The importance of getting the s own testimony: This is useful in self-defense cases where the was the only witness there at the time. But, advise your client that if he does testify and brings it out, he has waived the appellate issue because you canto appeal evidence that you have raised yourself. Must you confront the witness and tell them that you are impeaching? No Can you bring in extrinsic proof if the witness denies your assertion? Yes Specific Instances of Conduct (Cross Examination on Non-Conviction Misconduct) [FRE 608(b)] Rule: You can impeach with specific instances of uncharged conduct if they are probative of truthfulness or untruthfulness (i.e. non-conviction misconduct). Ex: Threatening other witnesses to testify how you ask them to. These types of questions are within the discretion of the trial court the trial court decides whether or not the non-conviction misconduct actually goes to the witness character for truthfulness. Courts are split between two views: Narrow considers a crime as bearing on veracity only if it involves falsehood or deception, such as forgery or perjury. Middle behavior seeking personal advantage by taking from others in violation of their rights reflects veracity.

Must you confront the witness and tell them you are impeaching them? YES. Can you bring in extrinsic proof if the witness denies your assertion? No you cannot bring in outside proof if you are going to impeach on the basis of specific instances of conduct. You are stuck with whatever answer the defendant gives. Prior Inconsistent Statement need NOT be sworn statements: [FRE 613] Rule: Any party can impeach a witness. FRE 613(a) The prior statement need not be shown to the witness, but opposing counsel is entitled to see the statement or learn of its contents so that he can repair the damage if the statement was taken out of context. FRE 613(b) Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the statement. So, if a criminal defense witness is being impeached, you cant attempt to impeach with extrinsic evidence after they have been taken off the stand and made unavailable. Normally, the pros atty would impeach on cross examination, and the defense atty would repair on redirect. What constitutes an inconsistency? The failure to recall a fact you should have known. Any change (addition, omission, change, failure to recall) in the witness testimony that suggests she is mistaken or lying. Procedure for Impeaching Under this Rule: Confirm witness testimony. Credit the prior statement (most impt part). Time Conditions To Whom The individual took notes Confront the witness with the prior inconsistent statement. Using statements surrounding Miranda warnings: Pre-arrest silence CAN be used to impeach a version of events that the uses at trial (almost always, he will be claiming at trial that it was self-defense despite the fact that he never mentioned that when arrested) if the version of events he describes at trial are such that any reasonable person, if the facts were true, would have told the police originally. Post-arrest and PRE-Miranda silence may not be used to prove the s guilt but may be used for impeachment (to discredit the witness) if he contradicts the statement on trial. MAY be used in self-defense cases where the now asserts something which a reasonable person, under the circumstances, would have said something about. Post-Miranda silence can NEVER be used against a . Contradiction: Rule: You can impeach by contradiction, but you CANT use extrinsic evidence (by exhibits or other witnesses) if the impeachment only contradicts. If you can use the impeachment for some other purpose (fact or bias, etc.) then we will let it in. Demonstrates that the declarant should not be believed. Courts generally exclude counterproof that contradicts only on a collateral point. They require dual relevancy of evidence offered to contradict a witness: Such proof must first show that the witness lied or erred, and then Must also prove some other point that could make a difference in the case.

Ways to Impeach by Contradiction: Can be done on cross-examination Can also be done by extrinsic evidence called Counterproof. How to Do it: Does a statement contradict another statement? It must. Does the statement have some relevance independent of its contradicting effect (i.e. does it go to something else)? Rule: If the statement does more than just contradict, you can bring in outside evidence to prove it up. There are Three Situations/ Types of Counterproof: Counterproof that not only contradicts but also tends to prove a substantive point. This counterproof ordinarily get in, as it would even if it did not have a contradicting effect, for it goes to the merits. Counterproofs that not only contradicts but also tends to prove some other impeaching point. This counterproof usually comes in, as would be true once again even if it did not have the contradiciting effect, for it tends to show biad. (Recall that bias may be proved by extrinsic evidence.) Counterproof that only contradicts. Here the evidence is usually excluded because it has no relevancy apart from contradicting the witness. However, some courts will admit counterproof on such a point where it seems that a witness could not be innocently mistaken. After all, what is collateral in a suit may not be collateral in the life of the witness, so counterproof contradicting him on the point may convincingly suggest that he must be lying. NO If all it does is contradict, you are stuck with the answer. It is just collateral, so no extrinsic proof can come in. YES, it does something else What else does it go to? Analyze whether that other thing that it goes to is critical in the case. Rule: Extrinsic evidence is permitted once you have decided that it goes to something else besides contradiction, AND that something else is actually material. Appealing When a Criminal Defendant Loses a MIL The only time a defendant can appeal on this basis is when they lose an MIL, then testify, deny committing the prior offense, and then are impeached.

POST-IMPEACHMENT REHABILITATION
Rule: Your re-direct must meet the attack on the witness. You cannot rehabilitate until the attack has occurred. What constitutes an attack on credibility that paves the way for repair? The following 3 attacks on credibility ALWAYS invite repair: Cross-examining the target witness on non-conviction misconduct [FRE 608(b)] Adducing testimony by a character witness that the target witness has bad character for truth and veracity (which is provable by opinion or reputation testimony. [FRE 608(a)] Proving that the target witness has prior convictions. [FRE 609] These 2 attacks SOMETIMES invite repair, but NOT USUALLY: Proving bias. Proving prior inconsistent statements. This NEVER invites rehabilitation or repair: Evidence that merely contradicts or refutes testimony given by a witness. After a credibility attack, how can the calling party seek to repair the damage? The calling party can offer testimony that the witness is truthful [FRE 608(a)]. The calling party can rehabilitate with a prior consistent statement (included in hearsay EXCLUSIONS list). Evidence that a witness previously said the same thing that she says at trial suggests that her testimony should NOT be rejected as a fabrication or discounted on account of supposed improper motive.

OPINION AND EXPERT TESTIMONY

Lay Witnesses [FRE 701] Rule: Lay witnesses may testify as to events: Which they have personal knowledge of, AND But, make sure proper foundation is laid as to this personal knowledge. Which assist the trier of fact, AND Which are not based on scientific, technical, or other specialized knowledge within the scope of FRE 702. Examples of things Lay Witnesses Can Testify to: Size Height Speed is he saw it, then he has personal knowledge on it. Rule is that lay witnesses can estimate the speed of vehicles. Handwriting If witness was familiar with handwriting before litigation started. Emotions Drunkenness anyone who has seen someone who is intoxicated can render an opinion about it. Whether someone is acting insane ONLY if the lay witness has extensive personal knowledge. Examples of things Lay Witnesses CANNOT Testify to: So he was breaking the law, no doubt. He is telling the jury the law. He can say the car was going above the speed limit, but he cannot make this conclusion. This is improper. Id say the damage was about$5K worth. This is expert opinion. He was lying. Neither lay witnesses nor expert witnesses are allowed to testify as to whether someone was lying on a particular occasion because it replaces the fact-finding function of the jury with the belief of a witness. But, we will generally let a lay opinion in as to someones character for truthfulness. Expert Witnesses [FRE 702 & 703] Rule: Requirements for expert testimony: Witness must have specialized knowledge (this is usually in the form of formal education or training). Testimony must be based on sufficient facts/data. Testimony must be the product of reliable principles and methods, and The witness must apply the principles and methods reliably to the facts of the case. When Can Experts Testify? Under FRE 702, an expert can testify only if what he says will assist the trier of fact to understand the evidence or determine a fact in issue. Although it is not required that the subject matter be beyond the ken of the average juror, when that is the case, expert testimony will be helpful that is a good argument to make for admissibility. What Can Experts Base Their Testimony On? Matters known BEFORE trial (i.e. facts or data the expert learns by firsthand observation before the trial). Matters learned AT trial (i.e. while sitting in courtroom listening to other testimony or while on the stand, when asked hypothetical questions which sum up evidence previously admitted.) Matters (HEARSAY) that are reasonably relied upon by other experts in the field. The judge will let this hearsay in if the probative value SUBSTANTIALLY outweighs the prejudice. But, the expert still cannot testify to the content of those hearsay sources. The expert can say it was a basis for her opinion. But, if the expert opinion is based SOLELY on inadmissible evidence, the opinion will not come in.

THE TEST: When Will Scientific Expert Testimony Be Admitted? PNEUMONIC: Frosted Flakes, Theyre GRREAT! You are the GATEKEEPER who must decide Is it RELIABLE RELEVANT EVIDENCE, which will ASSIST the TRIER of fact. Does the witness have some sort of specialized knowledge which will assist the trier of fact? Can get this knowledge from school, training, experience. Is the knowledge/method relevant? Ask yourself whether the expert opinion does anything (in this case) to make a consequential fact more or less likely. Is the experts method reliable? Courts look to the following factors: Peer Review has the method been subjected to peer review? Publication in a peer-reviewed journal is relevant but not dispositive. Acceptance Has it been accepted (i.e. has it reached general acceptance Frye) in the relevant community? Standards Are you following standards (rules) or did you make this up? Tested Has this methodology been tried out? Error If it has been tried out, were there known errors? The judge decides if the scientific method is reliable, and the standard of review is abuse of discretion. When can a expert come in and testify about an ULTIMATE CONCLUSION? [FRE 704] Rule: An expert can testify to an ultimate conclusion if: It will assist the trier of fact, and The testimony does not involve the mental state of the accused. Examples of things Experts CANNOT testify to: Mental state or condition of a defendant in a criminal case. He cannot say anything like, In my opinion, the did not intend to commit this crime. Insanity because that is mental state. He CAN say that to his opinion, to a reasonable degree of certainty, the didnt understand his surroundings. He just CANNOT say the words lacked the capacity to control conduct. Liability conclusions He cannot say In my opinion, the was negligent. This does not assist the trier of fact.

PRIVILEGES A limit on otherwise relevant evidence, so construe privileges NARROWLY.

Attorney Client Privilege: [FRE 501] Rule: This privilege covers: Confidential communications Between the attorney (or any of his representatives) and the client, For the purposes of securing legal advice. Rationale: We want to encourage free communication. THE TEST: Does the Attorney-Client Privilege Bar Disclosure of the Information? Is there communication? What is privileged? The actual communication is privileged i.e. Isnt it true your lawyer said X? is privileged. All observations resulting from privileged communication from a client leading defense counsel to physical evidence (UNLESS the defense counsel chooses to remove the evidence to examine or test it see below). So, if the attorney merely sees the evidence but does not touch it, he does not have to disclose the location of the evidence or disqualify himself from representing the client. What is NOT privileged? Facts i.e. Isnt it true X occurred? is NOT privileged. Observations i.e. smell, manner, walking, or physical appearance of a client (or potential client). EX: So, if guy comes into your office obviously intoxicated and says I think I hit a school bus, that statement is privileged, but his appearance is not, so you may have to describe his physical condition. The original location and condition of physical evidence that the attorney found based on communications with a client, WHEN the attorney chooses to remove the evidence from its original location. What happens when you move the evidence? You must disclose to the opposing counsel in a reasonable amount of time, the position of the evidence. But, you cannot take a position adverse to your client. So, now you probably cannot represent your client because you may be called to testify as a witness in the case. Information about FUTURE crimes or ongoing fraudulent schemes. EX: So, if guy comes to your office and says I have the diet pill of the century. It does nothing, but you can advertise and make $30K. The privilege does not apply because its a future crime/fraud scheme. Information about Imminent death or bodily harm to someone else. Fee disputes. Is an attorney involved in the communication? Covers the attorney and any of his agents. Even if the advice is legal in nature, privilege does not apply to someone who is not the attorney or agent. What if the communication is to a NON-LAWYER, but he is EMPLOYED by the law firm? Being employed by the law firm is generally NOT enough. However, it WILL be enough if: The communication is made to the non-lawyer in order for him to relate it to the lawyer, OR In order for the non-lawyer to aid in the lawyers understanding of the clients situation. Was the communication made in a confidential manner? The communication must have been made in a confidential manner, without the presence of anyone outside the privilege. You waive the privilege if you discuss the matter in public.

Did the client consult with the attorney for the purpose of securing legal advice? Rule: Legal advice must be the predominant purpose (i.e. not just business assistance). This includes communication about representation even if the attorney does NOT agree to represent. If the client is a corporation, the privilege likely extends to all employees who communicate information to the attorney within the scope of their employment. Compensation is NOT a requirement. Things that Do NOT count as legal advice: Telling your client when trial is going to be. FINAL CONSIDERATIONS: Watch out for conflicts of interest and last links: Conflicts of Interest: If someone comes to you with a gun and money and says represent me, you cant represent them because now you have evidence. This is a conflict of interest. The minute you touch it, you are tampering with evidence. You can no longer represent the client because you are now a potential witness. Last Link Doctrine: An attorney NEVER needs to disclose the last link in the proof the government needs to press charges against a client. If you disclose the last link, it would, in effect, be the same as violating the attorney-client privilege.

Psychotherapist-Patient Privilege: [FRE 501] Rule: Confidential communications between a psychotherapist and her patients in the course of diagnosis and treatment are protected from compelled disclosure, UNLESS you put your mental health directly at issue by pleading insanity (then your visits can be disclosed.) Rationale: Society has a strong interest in encouraging people to get counseling and encouraging candor (disclosure) in those counseling sessions. We dont want the individual to fear that what he says will come back to bite him in court. THE TEST: Does the Psychotherapist-Patient Privilege Bar Disclosure? Has the put his mental state at issue by pleading insanity or anything of the like? YES Then he has waived this privilege. Visits can be disclosed. Additionally, communications between experts who interview you to determine your level of sanity may be disclosed (this may happen as a result of a court ordered evaluation after claims insanity defense). NO Privilege has not been waived. Continue analysis to make sure requirements are met. Is there a communication? There must be. Types of communications NOT covered: Communications that reveal there is an imminent risk of bodily harm to the patient or another individual (i.e. threats), and the only way to prevent it is via disclosure. If seeing a counselor is a condition of someones probation, the subject of these communications may not be privileged. Future crimes Any time your mental state is at issue in a claim or defense. Is it confidential? It must be. Is the communication between a psychotherapist or social worker and a patient? It must be privilege applies to: psychologists, psychiatrists, and licensed social workers. Thats it. Is the communication for the purposes of diagnosis or treatment? Notice that the scope of this privilege is potentially huge.

Adverse Spousal Privilege: [FRE 501] [THIS PRIVILEGE APPLIES ONLY IN CRIMINAL CASES] Rule: This privilege goes beyond just protecting communications and blocks ALL testimony by one spouse against another, including accounts of PRE-MARITAL events or acts. However, it applies only if the spouses are married when the testimony is sought. Rationale: The purpose is to preserve ongoing marriages. NOTE: A criminal defendant CANNOT prevent his spouse from testifying against him because the privilege belongs to the testifying spouse. She can testify against him if she wants to to anything she wants (except confidential communications from during their marriage, pursuant to the other spousal privilege). She just cannot be FORCED to testify against him (though she may be forced to testify on behalf of the defense, with exculpatory/helpful testimony. THE TEST: Can one spouse invoke this privilege to prevent having to testify against his/her spouse? Is it a CRIMINAL case? It must be this privilege only applies in criminal cases. Is the couple married at the time one party is trying to force one of the spouses to testify against the other? The couples must be married at the time when the testimony is sought for it to apply. Privilege Applies ONLY DURING A VALID marriage whatever that means in the particular state. YES The spouse may refuse to testify. Thus, if the spouse invokes the privilege, the govt may not call her as a witness. The privilege belongs to the testifying (or refusing to testify) spouse. What kind of testimony is covered? All adverse testimony by one spouse against another which is unfavorable toward the spouse. This includes things known by the spouse BEFORE and DURING the marriage. NOTE: What if the defense wants to compel one spouse to testify to exculpatory or helpful testimony? The testifying spouse MAY be compelled to give information which HELPS the spouse because this privilege does NOT cover HELPFUL testimony. The spouse would be compelled to testify if she has information which would help her spouse. FINAL CONSIDERATION: Situations Where the PRIVILEGE DOES NOT APPLY: If the husband and wife are engaged in an ongoing criminal enterprise (co-conspirators). If the child of either spouse is the purported victim in the case.

Confidential [Spousal] Communication: [FRE 501] [APPLIES IN BOTH CIVIL AND CRIMINAL CASES] Rule: This privilege applies even after the marriage dissolves, but it only covers private communications which occurred during the marriage. Rationale: Society places importance on marriages. We want to keep marriages together. THE TEST: If one spouse is testifying, can the other invoke the privilege to prevent the testifying spouse from saying certain things? Was the communication at issue made during a valid marriage? It must have been. This privilege does not cover things that were communicated BEFORE or AFTER the marriage. This applies EVEN IF the marriage is no longer in place at the time of trial. What kinds of communication does this privilege cover? Typically only stuff that is spoken. Was the communication confidential? It must have been. If parents speak in what they believe is confidence but it is really in front of a child who can hear and communicate what they have said, then it was not CONFIDENTIAL. Thus, they have WAIVED the privilege. Who Holds the Privilege? Either spouse, but it would typically be used by the person NOT testifying. So, if one spouse WANTS to testify against the other as to confidential communications during their marriage, the spouse can invoke the privilege to prevent the spouse from testifying to any confidential communications they had. FINAL CONSIDERATION: Situations Where the PRIVILEGE DOES NOT APPLY: If the husband and wife are engaged in an ongoing criminal enterprise (co-conspirators). If the child of either spouse is the purported victim in the case (i.e. likely domestic battery case) If the husband beats the wife. Communications made before marriage or after divorce are NOT covered.

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