This action might not be possible to undo. Are you sure you want to continue?
Types of Courtroom Evidence
A. Types of evidence • Evidence: testimony, writings, material objects or other things presented to the senses that are offered to prove the existence or nonexistence of a fact. 1. Oral testimony-witnesses testifying to the truth Parties ii. Victims iii. Eyewitnesses iv. Expert witnesses v. Character witnesses 2. Documents-documentary evidence encompasses any type of writing 3. Real evidence-any physical evidence that a party claims played a direct role in the controversy. 4. Demonstrative Evidence- physical, but is not an object that played a role in the disputed events (illustrates concepts) 5. Photos, Videos and Audiotapes 6. Circumstantial Evidence-(phrase not used by FRE)-any evidence that requires the jury to make an inference connecting the evidence with a disputed fact. 7. Direct evidence-requires no inferential bridge; it directly establishes a contested fact (no distinction between circumstantial and direct evidence. Circumstantial evidence can support a verdict as effectively as direct)
II.Four W’s of Federal Rules of Evidence
A. Why 1. FRE allow parties to introduce weak evidence for whatever it may be worth 2. The rules assume that opposing counsel will expose the flaws in evidence or that jurors will discredit it. 3. Evidentiary rules exclude evidence to: Protect the jury from misleading information Eliminate unnecessary delay and promote efficiency Protect a social interest such as confidential relationship B. Who 1. Courts initially developed more evidentiary rules as a part of common law 2. Supreme court appointed Advisory Committee (lawyers, judges, professors) to draft an evidence code for the federal courts 3. FRE comes from notes written by the Advisory Committee and Committee reports and other legislative history from Congress Where The rules apply to proceedings held in federal courts Where the rest of the rules apply Rule 101: Scope: These rules govern proceedings: i. In the courts of the United States ii. Before United States bankruptcy judges iii. United States magistrate judges
iv. To the extent with the exceptions stated in rule 1101 Rule 1101: Applicability of Rules (a) Courts and Judges i. United states district courts ii. District court of Guam iii. District court of the Virgin Islands iv. District court for the Northern Mariana Islands v. United States courts of appeals vi. United States Claims Courts (adjudicates private claims against the US government) vii. United States bankruptcy judges viii. United States magistrate judges ix. In the actions, cases and proceedings and to the extent hereinafter set forth 3. Which Courts are left out a.Supreme Courts of the United States (FRE may be used as guides but not mandatory) b. Adminstrative Proceedings (federal agencies) Cases in State Courts a.The federal rules do not apply to any state court proceedings b. Most states have adopted the Federal rules as the basis to their own evidentiary rules D. When Rule 1101 Applicability of Rules (b) Proceedings Generally a.These rules apply generally to civil actions and proceedings including admiralty and maritime cases; b. Criminal cases and proceedings except those in which the court may act summarily; c.Proceedings and cases under title 11(Bankruptcy), United States Code 2. Rule 1101(d) Rules Inapplicable: The rules (other than with respect to privileges) do not apply in : a.Preliminary questions of fact (the determination of questions of fact preliminary to admissibility of evidence when the issue is to be determined by the court under rule 104) b. Grand Jury (proceedings before grand jury) c.Miscellaneous proceedings i. Proceedings for extradition or rendition ii. Preliminary examinations in criminal cases iii. Sentencing or granting or revoking probation iv. Issuance of warrants for arrest, criminal summons, and search warrants v. Proceedings with respect to release on bail or otherwise Rule 1101(c): Rule of Privilege: a.The rule with respect to privileges applies at all stages of all actions, cases and proceedings • Even when the FRE doesn’t apply in their entirety, the rules governing privilege do apply • Rules of privilege apply during grand jury proceedings, bail hearings and any other proceedings otherwise exempted from the FRE.
Structure of Trial
A. 1. a. b. c.
The Rule Rule 611: Mode and Order of Interrogation and Presentation (a) COntrl by Court The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to: Make interrogation and presentation effective for the ascertainment of the truth Avoid needless consumption of time Protect witnesses from harassment or undue embarrassment In the courtroom Pretrial motions-during the months before trial, the parties file motions Jury selection Opening statements Plaintiffs/Prosecutors Case in Chief Defendant’s case in Chief/Case in defense Plaintiff/Prosecutors Case in Rebuttal Defendants case in rebuttal/rejoinder Further rebuttal and rejoinder Closing statements Instructing the jury Deliberation Verdict
Putting a Witness on the Stand
Competence The basic Rule: Everyone is competent: Rule 601: Every person is compotent to be a witness except as otherwise provided in these rules State law • 601: In civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law • This rule acknowledges that competency rules are sometimes interwoven with liability principles • FRE applies to all civil trials infederal court whether the claims are based on state law (diversirty cases) of federal law (federal question) Can the Judge Testify • Rule 605 forbids a judge from testifying in any trial at which he presides • Rule 605: Competency of Judge as Witnesses: • The Judge presiding at the trial may not testify in that trial as a witness • No objection need be made in order to preserve the point • Prohibits the judge from offering commentary from the bench that amounts to testimony • Prohibits judges from reporting evidence related to experiments they have conducted/visits they have made to a site related to the case • Prohibition applies to the judge’s law clerk and other employees
every witness shall be required to declare that the witness will testify truthfully by oath or affirmation administered in a form calculated to awaken the witness’ conscience and impress the witness’ mind with the duty to do so . Establishing Personal Knowledge • Rule 602: Evidence to prove personal knowledge may but need not consist of the witnes’ own testimony • A judge will exclude testimony if the witness could not possible have seen what he or she claims Relationship to Other Rules • Rule 602: this rule is subject to the provisions of rule 703 relating to opinion testimony by expert witnesses Oaths and Affirmations Rule 603: Oath or Affirmation: • Before testifying.Jurors • Rule 606: Competency of Juror as Witness (a) At the Trial: • A member of the jury may not testify as a witness before that jury in the trial of the case in which the juror is sitting • If the juror is called so to testify. they are likely to allow the witness to testify. the opposing party shall be afforded an opportunity to object out of the presence of the jury • A juror can testify as a witness in another case Counsel • FRE leave open the possibility that a lawyer might testify on behalf of the party she represents. remembering it and describing it to others • If a witness lacks the ability to fulfill these functions the witness may not have sufficient personal knowledge • Even when a person’s knowledge appears somewhat impaired. heard or otherwised sensed themselves • They cant speculate about matters beyond their knowledge • Personal knowledge implies that a witness is capable of apprehending an event. or that opposing counsel might call them lawyer to the stand • Ethical rules discourage lawyers from testifying in cases in which they represent a party Personal Knowledge The basic Rule: Rule 602: Lack of Personal Knowledge: • A witness may not testify to a matter unless evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter • Witnesses can only testify about matters they have seen.
Interpreters Rule 604: Interpreters: • An interpreter I subject to the provisions of these rules relating to qualification as an expert and the administration of an oath or affirmation to make a true translation V. 2) of consequence. statute. In the Courtroom 1. Unrelated Misdeeds • Rule 403 and 404 impose constraints on evidence unrelated to the issues disputed. Mismatched Evidence • Courts sometimes conclude that evidence is too far removed from the parties dispute in time. 3. or other respects to satisfy rule 401. D. Controversy and Consequence • Evidence is relevant even if it addresses a matter that the opponent concedes • Parties are allowed to introduce direct evidence of damaging facts. the judge may find that the witness is incapable of taking the oath If a witness refuse to take the oath that satisfies Rule 603. despite an opponents attempts to minimize the impact of facts by conceding them.• • • If the witness lacks the ability to understand the truth or to appreciate the seriousness of testifying in court. • If evidence fails the relevance test. Negative evidence B. or constitutional provision bars its admissibility. Background and Policy • Only relevant evidence is admissible • The rule limits the amount of time that the parties. the court cannot admit it. and jurors devote to a case. judges. • Rule 401 defines relevance • Three key phrases: 1) any tendency. 4. 3) more probable or less probable-indicates that an individual piece of evidence can be relevant even it does not conclusively establish any fact on its own • Rule 401 embraces the evidence that could shift a fact finder’s view of the facts even the smallest degree • Evidence that has any tendency to move the indicator slightly in one direction or another is relevant. the judge will exclude their testimony. place. The Rules • Rule 402 articulates the fundamental principal that only relevant evidence is admissible • If evidence is relevant then it is admissible unless a specific rule. . 2. • The relevance requirement focuses the jurors on facts that the law deems important. Relevance A. lawyers. • The fact itself must be related to the cause of action C.
The strength of the connection between the evidence and the elements of the case. • If the probative value and prejudice are evenly balanced. In The Courtroom Four factors that influence a judge’s decision when applying 403: i. wasted time Although relevant. • Some evidence provokes unwanted biases or irrational assumptions in the jury’s mind. on a jury’s decision. waste of time. Opening the door • Irrelevant evidence that becomes relevant to rebut claims made by another party. 1. The Rule Rule 403: exclusion of relevant evidence on grounds of prejudice. Prejudice. 2. or misleading the jury or by considerations of undue delay. • Liability in these cases depends on the defendant’s subjective belief (his perception of the threat) rather than on actual objective threat. • Courts try to eliminate the effect of hindsight which incorporates knowledge of the actual threat. The extent to which the evidence will arouse emotions or irrational prejudices among the jurors ii. • Rule 403 empowers judges to avoid these problems by allowing them to exclude relevant evidence that is problematic. Substantially Outweighed • For the judge to exclude relevant evidence. confusion of the issues. 6. the evidence must be admitted. May • May signals that judges possess considerable discretion under rule 403 • Appellate courts rarely reverse rule 403 rulings • The discretionary nature of rule 403 offers opportunities for persuasive advocacy. • Rule 403 allows the trial judge to close the doors against some types of evidence. Unfair • Rule 403 authorizes judges to exclude evidence for several reasons. 3. or needless presentation of cumulative evidence. B. misleading the jury or undue delay. confusion. C. confusion or delay must substantially outweigh its probative value.• 5. or if prejudice somewhat outweighs probative value. • Unfairly prejudicial evidence lures the jury/judge into declaring guilt on a ground different from proof specific to the offense charged. evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. including confusion. its prejudice. Confusion. • • Introduction and Policy Rule 403 recoginizes that some evidence might have unfair effects if introduced at trial. Hindsight • Judges usually reject negative evidence-the lack of doing something to proof a point VI. . or Waste of Time A.
Flight • Courts analyze the circumstances surrounding flight in judging admissibility of this evidence under 403. • Prosecutors have been able to invoke Old Chief’s language and reasoning to introduce detailed evidence of other criminal behavior despite a defendant’s offer to stipulate.iii. Objections and Offers of Proof Introduction and Background • If a party does not object to evidence when an opponent offers it at trial. B. giving no indication of how the crime occurred or who was responsible. The Rule . Old Chief: -Rule 403’s balancing test requires the court to evaluate unfair prejudice and probative value in the context of the full evidentiary record -The prosecution can choose to present detailed evidence rather than accepting a defendant’s offer to stipulate (the probative value of a stipulation usually cant match the descriptive richness and coherent narrative of conventional testimony) • Trial courts have accepted a defendant’s stipulation of felony status in gun possession cases. excluding other evidence of prior conviction under 403 but have not forced the prosecution to accept defendant’s stipulations on elements of other crimes. the possibility of unfair prejudice is more substantial. Bench Trials • Parties do not invoke an objection under 403 in a bench trial. Undue Delay. A. Stipulations • Facts related to an element of a crime are of consequence even if the parties do not actually dispute that element. 2. Damaging Evidence • Courts usually reject claims that evidence is unfair simply because it will damage their case. its just persuasive. Waste of Time. • Courts will typically try to exclude photos that greatly increase emotional reactions. Videos and Photos • If a photo or video shows only the effects of the crime. 6. Socially Undesirable Behavior • Evolving issue: admittance of evidence of lavish lifestyles 4. the judge will admit the evidence and the party waives any future complaints. Whether the advocate can prove the same facts through less prejudicial or confusing means iv. 3. VII. 5. • Evidence that strongly supports the position of one party and damages the other is not unfair. but can object that the evidence is a waste of time or unduly cumulative. Whether it would be possible to reduce prejudice or other harm once the evidence is introduced 1. & Needless Duplication 7.
Rule 103 Rulings on Evidence-The Process of objecting to /defending evidence: -the party wishing to exclude evidence must voice that desire through an objection or motion to strike -objections and motions to strike must be timely -objections and motions to strike must also state a specific ground unless that ground is apparent from context. -The party offering a contested piece of evidence must make an offer of proof explaining the substance of the disputed evidence to the court unless that substance is apparent from context -parties need not renew their objections or offers of proof once the court makes a definitive ruling -the process of disputing evidence should be conducted in a way that prevents inadmissible evidence from reaching the jury. Three Goals: -The FRE place the burden on parties, not judges to identify defects in evidence and defend the admissibility of that evidence -the process requires the parties to object to and defend evidence in a way that lets trial judges resolve disputes as quickly and correctly as possible. -the process for resolving evidentiary disputes should shield the jury from potentially defective evidence. In the Courtroom Objections and Motions to Strike • Objections and motions to strike are both claims that evidence is inadmissible. • An objection comes before the potentially offending evidence emerges fully. • Motions to strike occur after disputed evidence has already entered the record. Timeliness • Lawyers must object to evidence as soon as the ground for objection is known or reasonably should be known. • Prompt objections are essential to maintaining fair and orderly trials. • Some judges adopt a flexible review of timiliness, allowing an objection as long as it occurs quickly enough to give the judge an opportunity to correct any error. Specificity • Attorneys must identify specific grounds for their objections • The opposing counsel may be able to cure the defect if the objection is specific. • A specific objection focuses the judge’s attention on the problem that the objector sees in the evidence, allowing a quick response • General objections are ineffective at trial and fail to preserve issues for appellate review. • If an attorney sees multiple grounds for objecting to evidence, the attorney should raise each of the specifics. • Raising one specific objection will not prompt the trial judge to consider other grounds and will not preserve those grounds for appeal. • Specificity is unnecessary if the context makes clear the grounds upon which counsel objects or the particular element of evidence is objectionable. Offers of Proof
• Serves the same purpose as a timely and specific objection • Gives the trial judge information needed to make a prompt and correct decision Repeated Objections and Exceptions • Under 103, As long as counsel has made a clear objection and the judge has overruled that objection, counsel need not repeat the objection. • Once a judge issues a definitive ruling, parties need not renew any objections or offers of proof. Presence of the Jury • rule 103 attempts to insulate the jury from exposure to evidence that will be ruled inadmissible as well as from legal arguments that would reveal the nature of that evidence
Trial Court Rulings on Evidence
Introduction and Policy • If a judge agrees with an evidentiary objection he will sustain it and exclude the evidence. • If the judge disagrees with the objection she will overrule it and admit the evidence • The judge may admit some of the challenged evidence, while excluding other portions. • Curative instruction: tells the jury to disregard evidence sometimes explaining why the evidence is misleading or inappropriate to consider. • The judge usually gives the jury a limiting instruction to explain that the evidence may be used for some purposes but not for others. The Rule • 105 recognizes that judges sometimes admit evidence for one purpose or against one party, while finding the evidence is inadmissible for other purposes or with respect to other parties. • Rule 105: limited admissibility: when evidence which is admissible as to one party or for one purpose but not admissible as to another party or for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly. In the Courtroom Limiting instructions and rule 403 • Limiting instructions and 403 grants the judge discretion to exclude evidence that is unfairly prejudicial or confusing. • Limiting instruction reduces potential prejudice enough that a judge feels comfortable admitting the evidence. Do limiting instructions work • It may be impossible for jurors to segregate their thoughts in the way that limiting instruction directs. Medical Expenses Introduction and Policy • Rule 409 encourages individuals and organizations to pay medical expenses for people who have been injured.
• • •
The rule excludes evidence of medical payments, offers to pay, or promises to pay medical expenses when offered to prove liability. The rule furthers important humanitarian objectives by removing a factor that might discourage some individuals and organizations from paying the medical expenses of injured individuals. Payments: o promote good customer relations o encourage rapid settlement of any legal claims that develop o sometimes reduce the extent of damages by treating injuries before they develop expensive complications o immediate payments may promote quick settlement while reducing the odds of expensive medical complications o introducing evidence of offers to pay medical expenses may cause unfair prejudice that substantially outweighs the probative value of the evidence
The Rule Rule 409: Payment of Medical and Similar Expenses Evidence of furnishings or offering or promising to pay medical, hospital or similar expenses occasioned by an injury is not admissible to prove liability for the injury. In the Courtroom Furnishing, Offering, Promising • 409 bars admission of offers and promises to pay medical expenses as well as actual payments of those expenses. • The rule does not protect any other types of statements even if they occur in connection with offers to pay medical expenses Medical, Hospital, or Similar Expenses • 409 only protects promises to pay medical, hospital or similar expenses occasioned by an injury • The rule does not encompass offers to pay lost wages, to repair a car, or to compensate an injured party for other types of economic or property damage. To Prove Liability • The rule excludes evidence only if the evidence is offered for a particular purpose to prove liability for the injury. • If a party can establish some other purpose for the evidence, rule 409 does not bar admission. Relationship with Rule 403 • If rule 409 excludes a piece of evidence then rule 403 has no role left to play, Rule 403 cannot rescue evidence that another rule has rejected • •
Introduction and Policy • Rule 411 encourages individuals and organizations to obtain liability insurance • Injured plaintiffs cant introduce evidence of the defendant’s liability insurance • Defendants cant attempt to escape liability by arguing that they are uninsured and would go bankrupt if forced to compensate the plaintiff The Rule • 411: Liability Insurance:
ownership or control or bias/prejudice of witnesses. culpable conduct. a defect in a product’s design or a need for a warning or instruction • This rule does not require the exclusion of evidence subsequent measures when offered for another purpose such as proving ownership. if taken previously would have made the injury or harm less likely to occur. What is liability Insurance • 411 only excludes evidence of liability insurance • Some judges overlook the narrow aspect of 411 and apply the rule to all types of insurance • Indemnity agreement: one party agrees to reimburse another party for damages if a specified form of liability rises-usually one time agreements • Courts have split over whether indemnity agreements qualify as liability insurance under 411. 407 exclude evidence of those remedial measures from the courtroom. measures are taken that. control or feasibility of precautionary measures if controverted or impeachment. For what Purpose is the Evidence Offered • 411 bars evidence of insurance only when it is offered upon the issue whether the person acted negligently or otherwise wrongfully • Permitted purposes of 411 is proof of agency. a defect in a product. Subsequent Remedial Measures Introduction and Policy • To avoid punishing defendants for desirable conduct. In the Courtroom What is a Measure .Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully • This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose such as proof of agency. Are Corporations and Organizations Protected • Rule 411 is ambiquous about who it protects • The text read literally does not include corporations or organizations (Supreme Court has not addressed this issue) 2. evidence of the subsequent measures is not admissible to prove negligence. In the Courtroom 1. Rule 403 Again • Rule 403 serves as a final net catching evidence that might unfairly prejudice the jury. • Remedial measures don’t always show that a defendant’s prior actions were negligent The Rule 407: subsequent remedial measures • When after an injury or harm alledgedly caused by an event. • A party can still argue for exclusion of the indemnity agreement under 403 3. • XI. ownership. or control and bias/prejudice of witnesses.
• Rule 407 does not exclude evidence of any measures taken by non-parties Other Purposes: Impeachment • 407 allows a party to introduce evidence of subsequent remedial measures for the purpose of mpeachment • A judge is most likely to admit evidence when a witness makes a specific represenatation that conflicts with the subsequent remedial measure. Strict Liability and other Mental States • A remedial measure is unlikely to protect third parties from injury. • Although the court of appeals have uniformly held that 407 does not apply to remedial actions by third parties a few lower court judges have followed the rule’s literal language to reach a different conclusion Other Purposes: Ownership or Control • If a defendant claims that it did not own or control the instrument that injured the plaintiff. • • XII. but it may mitigate harm suffered by the plaintiff Remedial Measures by Non-Parties • The rule encourages prompt remedial measures • Non-parties have no fear of implicitly admitting liability so they don’t need the incentive offered by 407. physical or other constraints. the plaintiff may introduce evidence of subsequent remedial measures to show that the defendant did not own/control that instrument. Criminal Plea Bargaining Introduction and Policy • 410 does not exclude evidence of final guilty pleas entered pursuant to plea bargains . • 407 allows proof of subsequent remedial measures to show ownership or control only if the opposing party first controverts that issue Other Purposes: Feasibility • 407 specifically permits a party to introduce evidence of subsequent remedial measures against a party who controverts feasibility • A party disputes feasibility when it claims that it could not have remedied a dangerous situation because of economic.A remedial action is one that would have made the injury or harm less likely to occur 407 bars evidence of measures that if taken previously would have made the injury/harm less likely to occur When is a Remedial Measure Subsequent • 407 applies only to measures that are taken after an injury or harm alledgedly caused by an event • Parties injured after the first injured plaintiff may be able to rely upon evidence that is unavailable to the intial plaintiff Negligence. the defendant can request a limiting instruction. the witness makes an absolute declaration like the product was as safe as it possibly could be Rules 105 and 403: Limiting Instructions and Unfair Prejudice • If the judge admits evidence of subsequent remedial measures for a purpose other than proving liability.
The Rule Opening Language • 410 excludes evidence from civil and criminal trials • 410 bars the admission of evidence only when introduced against the person who as a criminal defendant. • A plea discussion occurs if the defendant displayed an actual subjective expectation to negotiate a plea and that expectation was reasonable given the totality of the objective circumstances Sentencing • FRE do not apply to sentencing proceedings . 3. • In a plea of nolo contendere. another party may introduce additional statements from the same session when fairness requires consideration of those additional statements • The government may introduce some statements otherwise protected by the rule when necessary to prosecute a defendant for perjry or false statement In the Courtroom What are Plea Discussions • Plea discussion: occurs with an attorney for the prosecuting authority • A suspect who volunteers an immediate confession is not engage in plea discussions-that statement is admissible under 410.• 1. 2. 1. the defendant allows the court to assume guilt for purposes of sentencing but does not admit guilt for any other purpose. Finalized guilty pleas are admissible to the same extent as other criminal convictions 2. participated in the plea bargaining process • 410 aims to protect the criminal defendant from overreaching during plea bargaining and prosecution • The rule prohibits any party from introducing evidence against the defendat who participated in the plea bargaining but allows the defendant to introduce evidence from that process against others Prohibitions • The rule protects guilty pleas that a defendant withdraws • A defendant can withdraw a guilty plea after acceptance but before sentencing if a fair and just reason exists for withdrawl. • A plea of nolo contendere cannot be used to establish liability by issue preclusion in a civil lawsuit • 410 protects statements made during a plea bargaining process if the process led to a withdrawn guilty plea or plea of nol contendere • Any statements that the ddefendant made as part of the plea negotiation process or during the aborted court appearance against that defendant • 410 shields statements made during plea bargains when no guilty plea results including situations in which the defendant initially agrees to plead guilty but later withdraws the plea • The rule does not shield any statements made during negotiations that produced the guilty plea Exceptions • If a party introduces one statement from a plea bargaining session.
Waiver Remember Rule 403 • 410 only bars plea bargaining evidence that is offered against a defendant. • 408 requires that the parties dispute some aspect of the claim-the claim must be disputed as to validity/amount • To invoke 408 the statements or conduct must occur during compromise negotiations or while compromising or attempting to compromise the claim.3. 2. the disagreement between the poarties must have matured into a claim. • When the civil settlement discussions occurred in a civil proceeding that involved a government agency exercising its regulatory. The Limits on Rule 408: What is Still Admissible • For 408 to apply. . it prohibits evidence offered on behalf of any party • A party cant introduce evidence of settlement offers or negotiating statements. The Rule Broadest Reach • 408 applies to all parties. 3. the prosecutor and defendant may introduce evidence 1. • 408 defines compromise offers and acceptances very broadly • 408 protects all conduct or statements made in compromise negotiations. • Rule 408 rests almost exclusively on the policy rationale of encouraging settlements. • Under most circumstances neither the prosecutor nor the accused accused may rly during a criminal trial on evidence from civil settlement negotiations that 408 protects. not just operative offers and acceptance. investigative or enforcement authority. • 408 excludes statements and conduct made during comprmise negotiations only when a party offers that evidence for one of three purposes: o To prove liability or non-liability o To establish the amount of damages o To impeach a witness’s testimony through a prior inconsistent statement Still More Limiting Language • Parties may introduce evidence from compromise negotiations for any purpose other than the three explicitly prohibited ones. not even evidence of their own offers/statements. Settlements and Offers to Compromise Introduction and Policy • The rule protects settlement offers as well as statements made during settlement discussions from admission at trial. parties would be relunctant to discuss their claims candidly before trial and fewer settlements would occur. • It allows use during criminal trials of evidence from a limited category of settlement discussions. courts often invoke 403 to exclude similar evidence offered against the prosecution XIII. not on concerns about probative value or unfair prejudice. • If those offers were admissible.
7. In the Courtroom What Is a Claim • A claim arises once a complaint has been filed. or impeach witness with inconsistent statements • Courts have allowed parties to offer statements from settlement negotiations to support a claim that an opposing party engaged in frivolous or vexatious litigation Bias • 408 can be invoked to show that a witness is biased. Rule 403 • 408 allows introduction of evidence.where both parties met for the express purpose of discussing settlement • Factors judges consider when deciding a statement occurred during compromise negotiations: o Whether the statement was unilateral or occurred during bilateral discussions o Whether either party made a concrete offer o Whether attorneys were involved in the discussions o Whether the parties used phrases that are commonly used during settlement discussions Other Purposes • 408 prohibits the use of settlement discussions to prove liability. • 408 can not be invoked to prove inconsitency of testimonies. Preexisting Evidence • Parties cant immunize evidence by discussing it during a settlement conference • Parties cant shelter preexisting evidence by discussing it during settlement negotiations Criminal Cases • 408 applies to criminal and civil cases • Settlement discussions conducted as part of a civil regulatory. investigative or enforcement action conducted by a gov’t agency can be used as evidence in a criminal case. When do Compromise Negotiations Occur • Formal negotiations. (Rationale: where an individual makes a statement in the presence of gov’t agents. establish damages. its subsequent admission in a criminal case should not be unexpected) 1.from those negotiations in a subsequent criminal case. Impeachment: Inconsistency vs. Examining Witnesses A. Bias • A way to impeach a witness is to show that the witness made an earlier statement that was inconsistent with the witness’ testimony on the stand. 2. XIV. 5. Introduction and Policy . but a judge may still determine under 403 that admitting the evidence would cause unfair prejudice substantially outweighing any probative value. 3. 4. 6.
but most judges allow this additional turn in witness examination E. Cross Examination • Leading questions are allowed on cross examination • Cross examination generally is limited to subjects raised on direct examination • The rules give the judge discretion to expand the scope of cross examination • Parties are allowed on cross examination to ask questions related to the witness’s credibility D. • Popular forms of objection: • Argumentative: questions that improperly contain comments on the evidence. etc. the witness’s demeanor. however judges may allow leading questions to establish foundational matters or if a winess has difficulty testifying because of age. Additional Rounds of Redirect and Recross B. Redirect Examination • The federal rules of evidence do not refer to redirect examination. Redirect Examination. Recross Examination • Most judges will allow recorss-examination if new issues arose on redirect and if the recross is brief. illness. Recross Examination. Direct Examination • 611 articulates the principal that witnesses rather than lawyers should testify on direct examination • Direct examination is when the attorney questions its own witness • 611 disfavors leading questions on direct examination. but they frequently ask questions of witness called by the parties. Additional Rounds of Redirect and Recross • Judges are unlikely to allow parties to continue beyond recross-examination G. nervouseness.• Parties take turns examining a witness at trial following this sequence: Direct Examination. • 611 explicitly recognizes that leading questions are appropriate on direct examination when a party calls a witness who is likely to resist that party’s position. Miscellaneous Issues • 614 authorizes the judge to call witnesses and to interrogate witnesses called by parties • Judges rarely call their own witnesses. • The lawyer may use leading questions but must stay within the scope of the previous examination F. Cross Examination. or other points • Asked and Answered: questions that repeat a point unnecessarily • Compound: questions that combine 2 or more questions • Confusing: questions that are difficult for the witness to understand • 611 gives the judge authority to assure that direct examination provides the type of information the jury needs without wasting time or harassing witnesses C. • All parties are entitled to cross-examine any witness called by the judge • They may object if the judge questions witnesses in a way that reflects bias toward one party or disbelief of the witness .
A. . the refreshing party would have to identify an independent ground of admissibility • If a document offered by an adverse party under 612 is inadmissible under other rules. C. Testifying from Memory • When a witness uses a writing to refresh recollection. the judge may allow the lawyers to lead the witness even on direct examination • 611 gives the judge discretion to control the method of questioning witnesses The rule • Using a writing to refresh a witness’ recollection is an efficient way to improve live testimony • Adverse parties should have the right to inspect these writings to be sure that the examining attorney is genuinely refreshing recollection and to aid in crossexamination • 612 grants rights to adverse parties when a witness examines a writing to refresh recollection while testifying and when the witness does so before testifying • Only the adverse party has the right to introduce the document into into evidence under 612 • To admit the document. the witness must then testify from refreshed memory rather than from the writing itself • A witness with no independent recollection lacks the personal knowledge required by 602 to testify B.• • • • • • 614 allows counsel to raise objections to improper questioning by the judge when the jury is not present Parties must object in a timely manner to any witnesses called by the judge or to questions that the judge poses to other witnesses 615 governs the exclusion of witnesses from the courtroom while other witnesses are testifying The exclusion of witnesses prevents the testimony of one witness from tainting the testimony provided by others Exclusion of witnesses prevents them from tailoring their testimony specifically to negate claims made by opponents Excluding the witness may make their independent corroboration more persuasive XV. Refreshing a Witness’ Memory Introduction and Policy • If a witness recalls the general outlines of an incident but is having trouble reciting details. the judge will admit the document but instruct the jury to use it for the purpose of assessing the witness’ credibility • 612 outlines procedures for determinig which portions of a writing to admit when only part of the document relates to a witness’ testimony • 612 discusses remedies if a party refuses to produce a writing used to refresh recollection • 612 makes clear in its opening phrase that it is subject to the Jencks Act which governs discovery in federal criminal trials In the Courtroom 1.
Effect of Introducing the Writing • 612 does not specify the effect of introducing a writing that has been used for refreshment. Refreshing Memory before Testifying • 612 grants parties access to documents that a witness reviews for refreshment before taking the stand if the interest of justice require that access • Courts tend to limit an adverse party’s right to see documents that a witness reviews before testifying 3. then other parties may invoke 612 for cross examination • If a lawyer refreshes a witness’ recollection during cross examination then the party that called the witness may invoke 612 to examine the materials used by the cross examiner 4. 7. the judge will give the jury a limiting instruction explaining how to use the document 5. confusion or delay . Beyond Writings • 612 give opposing counsel the right to see. Adverse Parties • 612 allows any party who did not initiate the refreshment of a witness recollection to claim the rule’s protection • If a party refreshes a witness recollection on direct examination.• Parties can use documents to prompt a witness’ memory but they cant simply feed the witness information that the witness no longer genuinely remembers 2. 2. 8. A Toolbox of 10 Tactics 10 techniques lawyers may use: • Offensive techniques to combat witness’s damaging testimony rebut the evidence clarify and complete the story introduce expert testimony about evidence • Defensive techniques that attack the witness show impairment of perception or recollection demonstrate inconsistencies cast doubt on the witness’s character show bias call the witness a liar • A party appeals to the judge to exclude the witness’s testimony exclude the evidence claim unfair prejudice. 10. use and introduce audiotapes. B. 9. and other media to refresh recollection of witnesses. 6. 5. A. photos. Impeaching Witnesses Introduction • 607 allows parties to impeach any witness including one of their own. but courts have held that unless the document is admissible on other grounds the jury may use the document only to assess the witness credibility • The jury cant use the document to establish substantive matters referred to in the document • When a party introduces a document under 612 and the document is not independently admissible under other rules. 1. 4. 3. XVI.
2. Which Witnesses • 607 allows any party to impeach any witness • Parties sometimes impeach even a favorable witness as a way of preempting or drawing the sting of negative information that an opponent most likely will raise on cross examination XVII. D. 1. . A. Counter Moves • A party may not introduce evidence of a witness’s truthful character until the character has been challenged. Using Prior Statements to Impeach Witnesses Introduction • Judges liberally allow parties to use a witness’ prior statements to impeach the witness • No rule prohibits the use of these statements and a witness’s inconsistency is almost always relevant to the witness’s credibility B. The Rule 613 does not explicitly authorize parties to impeach witnesses with evidence of their prior inconsistent statements • 613 specifies the procedures that a party must follow when impeaching a witness in this manner • The lawyer may reveal the inconsistency to the jury without first showing the statement to the witness or giving the witness a chance to reconcile the statements • Demonstrating an inconsistency without first giving the witness an opportunity to review the prior statement has an advantage because it deprives the witness of an opportunity to weave a story that attempts to reconcile the 2 statements • 613 does not require the cross examiner to show the statement to opposing counsel if the opponent asks to see it • Extrinsic evidence is any evidence other than the witness’s own admission that proves the content of the statement • A litigant does not have to introduce extrinsic evidence of a prior inconsistent statement • If a party does introduce extrinsic evidence.C. the witness must have an opportunity to explain or deny the witness about the statement and the opposing party must have a chance to examine the witness about the statement In the Courtroom Inconsistent statements • 613 refers only to witness’s prior statement not to inconsistent statements • Courts have interpreted the rule to allow cross examination only with respect to inconsistent statements Consistent statements for Rehabilitation • Under limited circumstances a judge may allow a party to use a prior consistent statement to rehabilitate a witness • Judges are most likely to admit these statements when the prior statement occurred before an event that allegedly changed a witness’ testimony Showing the statement to the witness • C. 3.
Revealing Untruthful Character on Cross Examination Introduction and Policy • Another effective way to discredit a witness is to demonstrate that the witness has an untruthful character • Character evidence suggests that because an individual has a particular character trait. such as to establish the truth of what the previous statement suggests • When evidence is admitted for impeachment. the person was likely to have acted in aparticular way during a specific incident • An exception to prohibiting the use of character evidence is using it for telling the truth The rule • 404 prevents a party from arguing that because a witness is a generally untruthful person. 5. 6.the witness must have an opportunity to explain or deny the statement and the opposing party must have a chance to interrogate the witness about the statement • 613 allows an attorney to set up a witness by asking questions on cross examination that elicit answers contrary to comments made in a prior statement • 613 requires only that the witness be recalled to the stand Interests of justice • 613 provides that in unusual circumstances when the interests of justice require a party to introduce extrinsic evidence of a witness’ prior statement even hen the witness didn’t get a chance to explain or deny and opposing counsel had no chance of interrogation • This exception is for unavauilable witnesses • Judges are more likely to rule that the party attempting to impeach should have confronted the witness with the prior statement while she was on the stand Limiting instruction • 613 does not empower litigants to use the previous statement for other purposes. A. . the witness probably lied on the stand • A party may ask a witness about specific instances of conduct on cross examination to suggest that the witness has an untruthful character • Attorney’s must limit these questions to actions that are probative of truthfulness or untruthfulness • 608 allows this type of cross examination only in the discretion of the court B. the parties cant use that evidence for substantive proof • XVIII. Judges sometimes exercise their general authority under 611 to require a cross examining attorney to show the statement to the witness when the cross examination may create an unfair or inaccurate impression Extrinsic proof of prior statement • 613 does not require a party to introduce extrinsic proof of a witness’s prior statement • 613 promotes fairness.4.
parties may introduce evidence of a witness’ prior criminal convictions B. the trial judge has substantial discretion to preclude inqury into that behavior 4. 2. The Rules Opening Provision • 609 applies only when a party uses a criminal conviction for a particular purpose-to suggest that awitness has an untruthful character • If a party attempts to introduce criminal convictions for a different reason. Using Criminal Convictions to Impeach Witnesses A. Probative of Truthfulness or Untruthfulness • 608 allows parties to establish a witness’s character for untruthfulness by asking on cross examination about specific examples of conduct suggesting that character 2. Extrinsic Evidence The bar against extrinsic evidence is necessary to prevent trials from detouring too far into unrelated controversies The extrinsic evidence limit in 608 helps prevent the jury from making unwarranted uses of character evidence • XIX. 609 does not apply • When a party does rely on 609 to introduce evidence of prior conviction. a. the jury may consider that conviction only to assess the witness’ character for truthfulness. Judicial Discretion Even when a cross examiner demonstrates a good faith belief in conduct bearing on a witness untruthful character. Introduction and Policy • Under certain circumstances. Good Faith Belief • Before asking a witness about a specific incident suggesting untruthfulness. an attorney must have good faith belief that the incident occurred • A good faith belief is one that is founded on some evidence 3. the attorney has to move on and not pursue the point by offereing documents or testimony In the Courtroom 1.C. . whether a felony or misdemeanor used to impeach any witness Felony Convictions/Any Witness Except an Accused 1. the jury should not use the conviction as evidence of guilt or liability Three Rules for Three Categories • The first rule governs prior felony convictions used to impeach any witness other than the accused in a criminal case • The second applies to prior felony convictions used to impeach an accused • The third address prior convictions for any crime of dishonesty or false statement. 608 bars proof of these specific instances by extrinsic evidence-attorneys cant introduce evidence of disciplinary reports or the testimony of another witness • If the witness denies commiting a particular act.
Crime of Dishonesty or False Statement/Any Witness • 609 allows litigants to use any conviction for a crime of dishonesty or false statement no matter what the sentence. c. 4. Juvenile Adjudications • . 3. Felony is defined as crimes that punishable by death or imprisonment in excess of one year • The judge retains disceretion to exclude conviction if a party persuades the judge that the convictions unfair prejudice will substantially outweigh its probative value Felony Convictions/Criminal Accused • Prior felony convictions are admissible against a criminal defendant who takes the stand but only if the judge makes a distinctive finding that probaktive value outweighs prejudicial effect • The standard weighs only the prejudicial effect of the evidence on the accused not on any other types of prejudicial effect. Annulments. to impeach any witness’ character for truthfulness • Courts have consistently held that judges have no discretion to exclude prior convictions for dishonesty or false statement when they are offered to impeach a witness Time Limits • An older conviction is less probative of a witness’s current truthfulness than a recent conviction • 3 barriers to using convictions that are more than 10 yrs old: o the party seeking to use the conviction must give the adverse party advance written notice o the judge must find specific facts and circumstances supporting the convictions probative value o the judge must determine in the interests of justice that the probative value of conviction substantially outweighs its prejudicial effect • 609 adopts a tough standard for admitting evidence of convictions that are more than 10 years old Pardons. and Certificates of Rehabilitation • A conviction that has been subject to a pardon. 609 tilts it toward exclusion • 609(a)(1) places the burden on the prosecutor to demonstrate that probative value outweighs prejudicial effect so that evidence of a prior conviction should be admitted.b. annulment. • 609 excludes evidence whenever prejudicial effect equals or exceeds probative value. not only when prejudicial effect substantially outweights probative value • 403 tilts the balance toward admissibility. certificates of rehabilitation cant be used for impeachment under 609. • The only exception is when the witness has since committed another felony and the original conviction was not pardoned based on a finding of innocence. 5.
similarity between the prior crime and the charged one: when the prior crime is similar to the charged one the likelihood of prejudice is high d. Crimes of Dishonesty and False Statement • 609(a)(2) admits prior convictions for crimes of dishonesty or false statement without any consideration of undue prejudice even if they were misdemeanors. 3.impeachment value of the former crime: a crime that relates to truth telling has more probative value than one that does not b. 609 gives the prosecutor an avenue for introducing evidence of the defendants convictions • 609 also applies to civil cases Defining Felonies • Felony: punishable by death or imprisonment in excess of one year Special Balancing Tests for Accused • 5 factors that may guide a judge’s discretion in striking 609(a)(1) balance: a. importance of the defendant’s testimony: the risk that a defendant will forego testifyin should always count as an element of prejudice e. • If the defendant does testify. whichever is later • Judges have discretion to admit evidence of older convictions Limiting Instructions • . 1. the prosecutors interest in impeaching the defendant is higher and the jury may have greater need of that testimony. 5.6. • Dishonesty or false statement must be an element of the crime-qualifies as automatic admission Time Limits • The ten year limit is tied to the date of conviction or the release of the witness from the confinement imposed by that conviction. • Evidence of a juvenile conviction may be admissible to impeach such a witness if this would be necessary to determine fairly the defendant’s guilt Pendency of an Appeal • Pendency of an appeal from a prior conviction does not bar the use of that conviction to impeach the character of a witness • Evidence of the pendency of the appeal is admissible if a party wishes to note that fact to the jury C. the prosecutor may not be able to introduce evidence of the defendant’s prior convictions. 4. 2. timing of the prior conviction and subsequent criminality: convictions that occurred long ago have less probative value unless they are part of a pattern of criminality c. Juvenile adjudications are never admissible against the accused in a criminal case • 609(d) recognizdes one limited exception for witnesses in a criminal case.centrality or credibility: if guilt turns on a swearing match between the defendant and prosecutor’s witness. In the Courtroom • If a criminal defendant does not take the stand.
. • Several courts have held that aggressively cross-examining a witness or pointing out inconsistencies in the witness’s testimony is not an attack on the witness’s credibility 1. Introduction and Policy • Prior inconsistent statements. In the Courtroom Opinion or Reputation Evidence • 608 does not allow parties to ask character witnesses questions on direct examination that focus on specific examples of a fact witness’s untruthfulness • Parties are allowed to cross-examine fact witnesses about incidents that might reveal untruthfulness and they may present character witnesses who offer opinion or reputation evidence about the fact witness’s truthfulness. The Rule • 608(b) and 609 carve exceptions to the prohibition on character evidence contained in 404(a). Opinion or Reputation evidence of Untruthful Character A. and evidence of criminal convictions are all effective ways to discredit a witness • 608(a) rule only allows general opinion or reputation evidence of character. not testimony giving specific instances of conduct related to a witness’s truthfulness or deceit • Witnesses may only offer opinion or reputation evidence about another witness’s character for truthfulness or untruthfulness • A party may introduce evidence of a witness’s truthful character only after that character has been attacked B. 2. questions about specific instances of conduct that show untruthfulness.• Courts admit evidence of prior convictions under 609 for a limited purpose-to suggest that a witness has an untruthful character XX. 4. but they may not eleicit specific details from the character witnesses Character for Truthfulness and Untruthfulness • character witnesses may offer their opinion about a fact witness’s untruthfulness under 608(a) but not other qualities • parties must limit their inquiry to the witness’s character for truthfulness or untruthfulness Limited Purpose • Evidence of untruthful character admitted under rule 608(a) is admissible only to assess the credibility of the witness’ courtroom testimony. C. the evidence is not admissible for other purposes such as establishing guilt or innocence When has Character Been Attacked • 608(a)(2) allows parties to bolster a fact witness’s credibility with evidence of a truthful character. but only after the witness’s credibility has been attacked by opinion or reputation evidence or otherwise. 3.
In the Courtroom 1. At least one court upheld the introduction of testimony supporting a witness’s truthful character after the opponent impeached the witness by introducing evidence of prior inconsistent statements Applicable Only to Witnesses • 608(a) only admits evidence related to a witness’s character. parties cant rely upon 608(a) to attack the person’s credibility. • If an individual does not testify in court. Cross-examination of the Character Witness • Cross examiners may only ask questions for which they have a good faith supporting belief • Judges have discretion to exclude questions when they will create unfair prejudice substantially outweighing their prejudicial value • Judges are much more likely to allow cross-examination of character witnesses than of fact witnesses 2. Cross –Examining the Character witness Introduction and Policy • A party who wants to challenge a fact witness’s character for truthfulness may do so in any of three ways: o cross examine the witness about specific incidents suggesting a character for untruthfulness under 608(b)(1) o offer evidence of the witness’s criminal convictions under 609 o present a character witness who offers reputation or opinion testimony about the fact witness’s character for untruthfulness under 608(a) • The character witness may not give specific examples of the fact witness’s untruthful behavior • The party may not offer extrinsic evidence that shows specific instances of a fact witness’s untruthfulness • Once a fact witness’s character has been attacked a party may introduce evidence to show the witness’s truthful character • Evidence May take 3 forms: o specific incidents suggesting a character for truthfulness.5. Extrinsic Evidence . elicted from the fact witness on redirect examination o any extenuating circumstances related to the convictions also elicted from the fact witness on redirect examination o Opinion or reputation evidence suggesting a character for truthfulness offered by a character witness • 608(b)(2) allows parties to ask character witnesses on cross examination about specific incidents of a fact witness’s behavior The Rule • Parties may not ask 608 character witnesses about specifics of a fact witness’s conduct on direct examination. • XXI. but opposing parties may ask the character witness about specifics on cross examination.
Proof of character or reputation as elements • A party may offer evidence of character or reputation for reasons that do not depend on an inference of propensity 4. claim or defense. . . Reputation and Actions Character traits are internal: they reside within a person Reputation is external: it reflects what other people think about an individual We use action to construct an individual’s reputation. Character Evidence and the rules • • • • Character. Evidence to Prove Character as an Element Introduction and Policy *Character becomes an element in a defamation lawsuit. Religious Beliefs and Impeachment A. or child custody case When character is an element of a crime. damages or motives XXIII. In the Courtroom • 610 does not preclude evidence of religious beliefs when they are relevant to other matters such as bias. Reputation and specific acts often appear as circumstantial evidence of character Four Categories of Character evidence 1. then all evidence related to that character is central to the case The rule 405: methods of proving charcter: in all cases in which evidence of character or a trait of character of a person is admissible. C.• Parties may cross-examine character witnesses about a fact witness’s specific conduct. but they may not offer extrinsic evidence of that conduct XXII. Proof of other acts for non-propensity purposes XXIV. Introduction and Policy • 610 protects an important social interest in religious freedom • 610 prohibits parties from using a witness’s religious beliefs to attack the witness’s credibility • 610 bars parties from using religious beliefs to enhance credibility B. The Rule • 610 Religious Beliefs or Opinions: evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness’ credibility is impaired or enhanced. Proof of a witness’s propensity to lie or tell the truth • The propensity to act in a particular way lies at the heart of all evidence relating to a witness’s character to lie or tell the truth • Propensity reasoning from character evidence consists of 2 steps: o an assumption that someone with a particular character tends to act in a particular way o a conclusion that the person acted consistently with that tendency on a particular occasion 2. proof may be made by testimony in the form of . Proof of conduct by propensity 3.
Good faith belief for cross examination on specifics If a party uses opinion or reputation testimony to show a character trait. or defense Evidence of specific conduct under 405(b) must satisfy the other rules of evidence. When is character an element 4 categories of cases account for most lawsuits in which charater is an issue: -defamtion -child custody -entrapment -negligent entrustment XXV. not for past acts 404(a) prohibits the use of character evidence when offered to show propensity A. 405(a) allows the opponent to cross examine the witness about specific incidents related to that character trait The cross-examiner must have a good faith belief that the incidents actually occurred 3. civil claim or defense. the rules of evidence do not limit parties to opinion or reputation testimony The parties may introduce specific evidence demonstrating the disputed character 405(b) explicitly confirms that specific confirms that specific instances of conduct are admissible to prove character as an element of a crime. an opinion. On cross examination. 405 makes clear that parties may prove character through specific actions as well as through more general reputation or opinion testimony when character is a disputed element of the case In the Courtroom 1. What is character Character includes almost any personality trait 6.. inquiry is allowable into relevant specific instances of conduct 405 allows proof of character through opinion or reputation evidence On cross examination. the opposing party may ask one of these character witnesses about specific acts When character is an element of crime. delay. or unfair prejudice substantially outweighs any probative value 5. Using Character Evidence to Prove Propensity Introduction and Policy The tendency of jurors to rely heavily on propensity evidence raises policy concern: risk of compromising the fundamental principal of justice-the promise to hold defendants responsible only for their actions on a particular occasion. Proof of specific incidents When character is at issue in the case: -the parties are not limited to general statements of opinion or reputation -parties are not limited to probing specific acts on cross examination-they can introduce evidence of direct examination 4. claim. a judge may exclude some type of evidence because the danger of confusion. Foundation for opinion or reputation testimony 2. . Relationship to 403 and other rules Even when character is a centrally disputed element of the case.
404(a) declares that parties may not use character evidence to prove that because a a person had a propensity to act in a certain way. it is being offered as a propensity evidence and will almost always be barred In the Courtroom Good Character and Bad 404(a) bars evidence of bad and good character if that evidence is offered to prove that a person acted consistently with their character on a particular occasion Any Person 404(a) bars the use of character evidence to prove the propensity of any person to act in a particular way 404(a) applies even to people who never appear in the court room 404(a) aims to focus trials on particular disputed actions not on the character of the parties C. The rule If evidence is being offered to prove action in conformity with the character trait on a particular occasion. XXVI. . and the evidence must comply with the rape shield law If the defendant offers character evidence about herself the prosecutor may rebut that evidence with proof that the defendant lacks that trait or holds an opposite one If the defendant introduces character evidence about the victim the prosexutor may rebut the evidence by showing that the victim lacked that trait or held the opposite one:The prosecutor may also introduce evidence that the defendant held the trait that the defendant attributes to the victim . . the person more than likely acted in that way on a particular occasion B. Exceptions to Propensity Introduction and Policy Mercy rule: criminal defendants should have as much latitude as possible to present a defense Courts allow prosecutors to use character evidence to make propensity argumnents usually in situations where they are responding to the defendants use of propensity evidence The Rule Exceptions of 404(a)1-2 for propensity uses of character evidence apply only in criminal cases The exceptions allow only proof of pertinent character traits 404(a) allow proof about both the defendant’s character and the alleged victim’s character 404(a) subsections distinguisg between when the defendant may introduce these types of evidence and when the prosecutor may do so The accused has considerable freedom to introduce character evidence about herself or the alleged victim The only limits on the defendants ability to introduce character evidence are the evidence must relate to a pertinent character trait.
the government may respond to any evidence that the deceased attacked first In the Courtroom Pertinence Character evidence admiotted under 404(a)(1)/(2) nust be pertinent to the crime or defense Judges reject evidence as not pertinent even when the evidence probably satisfies 401’s generous definition of relevance Matching Traits The prosecutor must offer evidence on traits that match those raise by the defendant Homicide cases If a homicide defendant claims that the victim was the first aggressor. The prosecutor does not have to wait for the accused to introduce character evidence. Proof of a witness’s propensity to lie or tell the truth -Rule 608(b) cross examine witnesses -Rule 608(a) reputation or opinion testimony 2. Method of Proving Propensity in Criminal cases Introduction and Policy 1. the prosecutor may introduce evidence of the victim’s peaceable character regardless of whether the defendant used character evidence to raise the issue XXVII. the opposing party may decimate that witness by asking questions related to specific bad acts Relevant acts Examiners may ask only about acts that are relevant to the character trait described by the witness Good faith belief A cross examiner cannot ask a character witness about speculative or imaginary acts. the attorney must have a good faith belief that the incidents occurred The standard for good faith is not very high The attorney who is attempting to prove good faith will present the evidence to the judge at the sidebar or in open court after the jury has been excused from the courtroom Extrinsic evidence . Proof of character or reputation as elements 405 allows parties to present both opinion/reputation and extrinsic evidence of specific instances of conduct related to character The rules of evidence allow propensity evidence only under narrow conditions and by calling character witnesses to give opinion or reputation evidence The rule 405(a) applies to proof of a defendant’s or victim’s propensity in criminal cases In the courtroom Laying a foundation An attorney examining a character witness must lay a foundation showing that the witness has sufficient knowledge to offer an opinion about character or reputation Cross-examination on specific acts On cross-examination.In homicide cases.
they have a chance of admitting the evidence In the courtroom Motive Evidence can be admitted to prove motive for a crime Plan Evidence to show a common plan or scheme may be admitted Identity The court may admit evidence of prior bad acts to identify that defendant is linked to a crime Identity prong works if 2 conditions are met: . The opposing party offer evidence disputing whether the conduct occurred When a mistaken inference of bad behavior would be highly prejudicial. Wrongs or Acts Introduction and policy A party may introduce character evidence for any purpose other than to prove that a person acted consistently with their character on a particular occasion 404(b) recognizes that actions that reveal a person’s character may also prove a variety of facts material to the lawsuit The rule: 404 Character evidence is not admissible to prove that a person acted in conformity with their character A party may not evade this prohibition by introducing evidence of specific acts that prove character which is used to show propensity If a party can cite any purpose for character related evidence other than raising the forbidden propensity inference. the cross-examiner cant introduce evidence that the conduct really occurred. 404 supports admission of the evidence 404 applies to civil and criminal cases 404(b) requires the prosecution to provide reasonable notice in criminal trials of its intent to introduce evidence of prior crimes or other acts in the manner sanctioned by this rule Evidence of conduct related to character may be admissible to prove motive.A party who cross-examines a character witness about specific conduct under 405(a) must except the witness’s response If the witness denies knowledge of the conduct. intent. XXVIII. Other Crimes. but she cant prove these specific acts with extrinsic evidence. opportunity. the judge might allow the affected party to introduce extrinsic evidence disproving the incident Limiting instructions Rebuttal witnesses The parties in a criminal case may present rebuttal character witnesses The party calling the witness can only ask the rebuttal witness about his opinion or the defendants reputation and cant inquire into specific acts The attorney cross examing the rebuttal witness may inquire about specific acts to test the knowledge of the witness. preparation If a party can find any use of character evidence other than one that relies upon propensity reasoning.
Habit Introduction and policy Lay preople use the word habit in 2 ways -to denote a type of unconscious behavior -to describe a general tendency or addictive behavior Habit refers to specific. he gives a limiting instruction to the jury XXIX.-identity must be at issue -there must be strong similarities between the charged and other crimes Opportunity Evidence may be admitted to prove that defendant had an opportunity to commit a crime Knowledge As long as the other act evidence proves a relevant fact without using the propensity inference. or acts may also be admissible to prove that defendant possessed the intent necessary to commit a crime. the evidence is admissible regardless of what it is called Intent Evidence of other crimes. Any other non-propensity purpose Re-gestae: evidence necessary to complete the story Subsequent crimes. but the jurors do not have to accept it . wrongs and acts Most of the other acts offered as evidence under occur before the charged crime Civil cases 404 applies to civil and criminal actions Good acts 404 applies to bad and good acts Acts are admissible to prove any relevant fact other than one that requires propensity reasoning Rule 403 Several circuits require district judges to apply 403 before admitting any evidence under 404(b) Limiting instructions When a judge admits evidence under 404(b). so there is less chance of unfair prejudice resulting from its admission Habit is admissible because this evidence has a higher probative value than propensity evidence The rule 406 Advisory committee: habit is one’s regular response to a repeated specific situation 406 allows admission of habit evidence whether corroborated or not and regardless of the presence of eyewitnesses 406 allows a party to present uncorroborated evidence to the jury. repeated responses to a particular situation or stimulus 406 allows litigants to present past examples of this specific behavior to prove that an individual behaved the same during the incident that is the subject of litigation Habit is admissible because it tend to be morally neutral. wrongs.
The Rule 1. The general prohibition • 412 encompasses civil and criminal proceedings • 412 applies only to trials involving alleged sexual misconduct-witnesses can’t use 412 in other types of cases to exclude relevant inquiries about sexual history • In criminal cases. The exceptions Criminal cases a. courts allow attorneys to prove habit through opinion testimony and specific instances of conduct Habit evidence is admissible only if the proponent can show that the habitual behavior is specific and frequently repeated In the courtroom Not just admissible.Because 406 do not restrict manner of proof. but possibly sufficient Sometimes habit evidence can be sufficient to prove an act Habit may be all that is needed to prove beyond a reasonable doubt that a person acted a certain way on a certain occasion Routine practice of an organization Routine practice is the organizational equivalent of personal habit Courts generally are more willing to accept routine practice evidence from a corporation that habit evidence from an individual because the need for regularity in business and the organizational sanctions that may exist XXX. Rape Shield Law A. . 412 may apply even if the prosecutor does not charge a sex crime directly • 412 bars both types of evidence that rape defendants previously offered to show propensity. Introduction and Policy The rape shield law restricts the kind of evidence that can be introduced in sexual assault cases 404 provides 2 opportunities for defense attorneys to admit evidence of a rape victim’s sexual reputation or past sexual history: -4042a expressly allows the defendant in a criminal case to offer evidence of a pertinent trait of character of the alleged victim -404b allows admission of other acts when offered to prove some other relevant fact The rape shield laws reflrect a consensus that: -a victim’s sexual reputation and prior sexcual history usually are not relevant to prove whether the victim consented to a particular sexual act -this kind of evidence often is unduly prejudicial to the prosecutor or other party who calls the alleged victim as a witness -robust protection of sexual assault victims is necessary to encourage them to come forward and testify 412 allo defendants to offer exonerating evidence when used for a proper purpose B. it prohibits evidence of specific acts and of reputation or general character (sexual predisposition) • 412 broadly bars evidence of sexual behavior or predisposition regardless of the purpose for which a litigant offers that evidence 2.
Civil cases Litigants cant offer evidence of an alleged victim’s sexual acts of reputation to prove propensity • Evidence of sexual acts or sexual predisposition is admissible only if its probative value substantially outweighs the unfair prejudice to any party • 412 ensures that the court weighs the danger to the alleged victim whether or not she is a party to the litigation • Reputation evidence is admissible in civil cases involving alleged sexual misconduct only if the alleged victim has opened the door by presenting evidence of her own reputation-this does not apply to evidence of sexual conduct. IN the Courtroom Physical evidence Sexual behavior under 412(b)(1)(B) Sexual behavior includes any kind of intimate contact between the alleged victim and the defendant Sexual behavior includes statements in which the alleged victim expresses an intent to engage in sexual intercourse with the accused. The catchall exception • • 1. opposing counsel. intent. 2. and any other relevant fact recognized by 404b The 3rd exception allows evidence of sexual acts or reputation in criminal cases if excluding them would violate the constitutional rights of the defendant b. . identity.All evidence offered under 412’s exceptions are subject to 403’s balancing test • The first exception allows proof of an alleged victim’s prior sexual conduct when that evidence suggests that someone other rhan the accused was responsible for semen or other physical evidence • The 2nd exception admits evidence of prior sexual encounters between the alleged victim and the defendant • The defendant may offer offer this kind of evidence for just one purpose to prove consent. but the prosecutor may offer this evidence for any purpose • Standard of relevance: evidence that has a tendency to makje a fact of consequence to the action more or less probable is relevant The prosecutor can offer evidence of other non-consenual encounters between the defendant and the victim in order to show a defendant’s motive. and the alleged victim 14 days before trial. 3. sealed proceeding involving both parties and the alleged victim in order to determine whether the evidence is admissible C. 3. or voiced sexual fantasies involving the specific accused. • The court must hold a secret. Procedures • A party intending to offer evidence of an alleged victim’s sexual activity or reputation must give notice to the court.
b. 6. the prosecutor may introduce evidence of other molestations and argue that the defendant has a propensity to molest children 415 allows the same evidence and propensity reasoning in civil cases involving sexual assault or child molestation 415 allows any civil party to introduce evidence of sexual assaults or child molestation to prove propensity but plaintiffs are most likely to invoke ethe rule 2 arguments for the rules: -individuals who commit sexual assaults or child molestation posses a distinctive disposition. c. The Rules 413-414 413/414 apply only to criminal cases that the defendant is charged with either sexual assault or child molestation . a. 412 does not apply to prior false allegations of sexual assault because they do not constitute sexual behavior.4. Propensity in Sexual Assault and Child Molestation Cases Introduction and Policy 413-415: the use of character evidence to prove a defendant’s tendency to commit sdexual assaults or child molestation 413 allows prosecutors to introduce evidence of other sexual assaults commited by the defendant and to use that evidence for any purpose to suggest that the defendant has a propensity to commit sexual assaults in criminal prosecutions for sexual assaults 414 in prosecution for child molestation. but give courts broad discretion to admit or preclude any evidence of the victim’s prior sexual conmduct or sexual reputation XXXI. 7. Civil cases Gender and sexual orientation State rules Broad prohibition with specific exceptios Barring evidence offered for a specific purpose The 2 most common prohibited purposes are to prove the alleged victim’s consent and to attack the alleged victim’s credibility Judicial discretion 9 states have no codified rape shield law. the desire to commit violent sexual acts or sexual acts with children. 5. so prior acts of this kind are unsually probative -cases of sexual assault and child molestation are particularly hard to prove because they frequently turn on the credibility of the victim and the defendant 3 objections: 404(b) already allowed parties to admit evidence of a defendant’s sexual misconduct if it proved anything other than propensity -413-415 increased the danger that a criminal defendant would be convicted based on his past conduct rather than the charged crime -413-415 allowed the prosecutor or plaintiff to offer evidence of sexual misconduct even if the defendant had not been convicted any crime for those acts. the rules would produce a number of distracting and time consuming mini trials.
the jury will resolve the factual dispute Section (a) . States not following suit Not all states have adopted rules 413-415 4. knowledge. motive. Rule 403 413-415 explicitly require judges to recognize the probative value of prior sexual assaults and child molestations to show the defendant’s propensity to commit this tupe of acts Courts consider: -the length of time that has passed since the other acts -reliabiltiy of the witness testifying about the other acts -similarity of the other acts to those charged -whether the government could make similar points with less prejudicial evidence 3. federal courts occasionally admitted evidewnce of other sexual assaults or molestations under 404(b) to show the defendant’s intent. 414-child molestation 9this evidence is relevant for any purpose) 413/414 overrides 404(a)’s bar on propensity evidence for sexual assault and child molestation Given the unusual nature of evidence and its potency. although a judge may exclude conduct that occurred many years ago under 403 2. 104(b) tells the judge simply to screen the sufficiency of the evidence If the evidence survives this threshold scrutiny. XXXII.413/414 allows admission of a single type of evidence: 413-sexual assault. the government must give the defendant notice of the evidence it plans to present 413/4 don’t override other rules such as hearsay and privilege Sexual assault focuses on physical rather than verbal conduct Child molestation defines a child as a person below the age of 14 415 allows the plaintiff in a civil case involving sexual assault or child molestation to introduce other similar conduct of the defendant to prove propensity or any other relevant fact In the Courtroom 1. Preliminary Determinations Introduction and Policy Admissibility sometimes depends on a question of law The jurors play no role in deciding questions of law that govern admissibility The Rule 104 Section (b) When relevance turns on resolution of a factual dispute. Prior crime need not be proven Any conduct that constitutes an offense of sexual assault of child molestation is admissible under 413-415 regardless of whether formal charges were ever brought for the prior conduct 413-415 have no time limit. Admitting prior acts of sexual assault and child molestation w/o rules 413-415 Prior to the adoption of 413-415. or plan.
the judge decides all preliminary questions related to the admissibility of evidence Rules of evidence do not apply to preliminary determinations The judge may consider any evidence. the parties may dispute the value of that evidence The parties have a right to introduce evidence related to the weight or credibility of other evidence that has been admitted In the Courtroom 104(b) Relevance Depending upon the Fulfillment of a Condition of fact Personal Knowledge Sometimes the absence of personal knowledge is so clear that a judge will exclude the testimony even after applying 104(b) Evidence of other acts Trial judges admit other act evidence as long as a reasonable jury could find the factual condition that makes the evidence relevant Factual determinations under 412 Other sexual assaults 104(a) Questions of Admissibility Unrelated to relevance a. Other 104 determinations Standard of Proof Preponderance of evidence standard applies to all preliminary factual issues resolved under 104 The preponderance standard governs civil and criminal cases-applies to issues resolved under 104(a)/(b) . parties would lose the confidentiality that privileges protect Section (c) The need to hold hearings outside the jury’s presence Section (d) 104 allows the accused in a criminal case to testify on preliminary matters without subjecting himself to cross examination on other issues in the case Section (e) Even if the judge admits evidence. it is one that the judge will resolve under 104(a) because admissibility depends on apolicy line we draw between habit and propensity c. Timing of remedial measures Deciding a dispute over the timing of a remedial measure does not affect relevance.This section governs resolution of preliminary factual issues that do not relate to relevance Default rule: except for issues of conditional relevance. even evidence that violates evidentiary rules when deciding whether evidence is admissible The rules of privilege do apply to [preliminary determinations If judges could override those privileges when decideing whether to admit evidence. Whether repeated conduct is propensity or habit Even if the queston is one of fact. so the court decides that issue w/o deference to the jury b.
Use of the preponderance standard means that a trial judge can admit evidence under 104(b) even when a previous jury has rejected the evidence under a reasonable doubt standard Burden of Proof Judges usually place the burden of proof on the party offering evidence Rule 403 If a preliminary factual dispute falls within 104(a) the judge usually resolves the factual issue at the same time that he applies 403 A judge who finds the factual case for admissibility weak will be more inclined to exclude evidence under 403 Even if sufficient evidence exists to support a finding of a prior act. Introduction and Policy Judges developed the hearsay rule and all of its exceptions to force litigants to present the best possible testimony in the courtroom All of hearsay doctrine stems from the idea that firsthand reports are more reliable than second hand Problems of Second Hand reports: -perception -memory -clarity -sincereity There is no way to check the accuracy and sincerity of secondhand reports Secondhand testimony doubles the risk of faulty perception. clarity and truthfulness Secondhand reports eliminate the fact finder’s opportunity to cross-examine the original speaker Statements made under oath are more likely to be true than are casual statements made in everyday life Secondhand testimony doubles the possibility that one of the reporters is mistaken or lying Firsthand testimony can be tested by cross-examination The finder of fact can better evaluate the confidence and sincereity of the information if they can watch the individual report firsthand At trial. it? What is Hearsay and Why Don’t we Like A. Courtroom 1. firsthand testimony is made under oath in a formal. The Rules: 801 & 802 Hearsay requires a statement The statement must be made by a declarant in a context other than testimony at trial A party must offer the statement to prove the truth of the matter asserted C. solemn setting B. Declarants and Witnesses A declarant is a person who makes a statement A witness is aperson who testifies on the stand in the courtroom Sometimes the witness and the declarant are identical while other times they are different . memory. the weakness of that evidence may argue in favor of exclusion under 403 XXXIII.
The same statement can hearsay if used for one purpose but not hearsay if used for another. it is not hearsay B. most of the time this is not hearsay XXXV. these assertive behaviors are statements subject to the hearsay rules Non assertive behaviors are not statements so the hearsay rules do not apply to them Hearsay rules only prohibit statements offered for the truth of the matter asserted . the judge will admit the evidence and give the jury a limiting instruction 2. Courtroom 1. The Truth of the Matter Asserted A.Identifying the declarant depends on what information matters to us A statement made at any other time or place falls in the universe of statements that may constitute hearsay The first srep in applying the hearsay rules is to suspect all statements made anywhere but on the witness stand in the current proceeding 2. Evidence relevant for multiple purposes Many out of court statements are relevant to prove more than one fact and used for more than one purpose. Rule 801 Common purposes for out of court statements that do not depend on the truth of the matter asserted: -Knowledge of the speaker -Notice to a listener -Publication in a defamation case -Effect on the listener -Legally binding Statements As long as the other purpose is relevant to a dispute. What is a Statement A. Introduction and Policy If a litigant offers the statement to prove the truth of the matter asserted it is inadmissible hearsay If a party offers the statement for any other purpose. it is not hearsay If a party offers an out of court statement to determine the truth of the statements content. Introduction and Policy A declrant can make a statement either orally or in writing Declarants can make statements through actions. Prior Statements by a witness A witness’s prior statements are hearsay even if the witness testifies in court XXXIV. it is hearsay If a party introduces evidence of an out of court statement to demonstrate that the statement was made. an out of court statement is admissible to prove any fact that does not depend on the truth of the matter asserted C. Hearsay puzzles Many witnesses testify that another person’s statement promted them to act in a particular way. As long as evidence is admissible for any purpose and the unfair prejudice does not substantially outweigh probative value.
b. reliability 2. Introduction and Policy • All of the hearsay exceptions rest on 2 axioms: 1. Assertive vs. Implicit Assertions 3. 801(d): Exemptions 2 types of out of court statements defined as not hearsay prior statements by witnesses statements by party-opponents are not hearsay 2. Courtroom 1. Non-Assertive Conduct The court must look at the context to see if the declarant intended to assert a fact through her actions 2.If we need to assess the actor’s sincerity in oreder to rely upon the conduct. • Due to variations in reliability and probative value. A. the conduct contains an assertion and the hearsay rule applies -if not. Machine Readouts Polygraph machines. then those assertions are statements subject to the hearsay rule 5. 804: Declarant unavailable Applies if the declarant is unavailable to testify in court Former testimony Statement under belief of impending death Statement against interest . Rule 801(a) Statement: assertion that can be made with or without words An assertion is any action undertaken by the declarant that is intended to communicate a fact C. then the machine’s output is not an assertion by a person XXXVI. courts are willing to admit some types of hearsay B. Four Categories of Exceptions 1. Photographs and Videotapes If a photo or videotape does convey verbal assertions or assertive behavior offered for the truth of the matter asserted. Admissible Hearsay a. usefulness/utility • All hearsay statements are not created equal. breathalyzers. the assertion is a statement even though it is transmitted through a machine If the machine generated information according to its own internal processes. Audio Tapes Recorded statements are hearsay only if a litigant offers them for the truth of the matter asserted 4. the actor was not trying to assert any fact and the jury is free to draw any reasonable inference from the reported conduct B. radar guns and many other devices use automated processes to report information to law enforcement personnel and other people outside the courtroom If a machine conveys an assertion made by a person.
commercial publications Learned treatises Reputation concerning personal or family history Reputation concerning boundaries or general history Reputation as to character Judgment of previous conviction Judgment as to personal. 803: Availability of Declarant Immaterial Apply whether or not the declarant is available to testify A party may rely upon one of these exceptions if a declarant is technically available but would be inconvenient to call as a witness Apply when an available declarant fails to offer the courtroom testimony that a party wants Parties may rely upon these exceptions when a declarant genuinely is unavailable to testify The rationale depends on reliability rather than need for the evidence Present sense impression Excited utterance Then existing mental. 807: Residual Exception Other statements having equivalent circumstantial guarantees of trustworthiness C.Statement of personal or family history Forfeiture by wrongdoing 3. family or general. or boundaries 4. baotismal and similar certificates Family records Records of documents affecting an interest in property Statements in documents affecting an interest in property Statements in ancient documents Market reports. Who decides • Admissibility of hearsay exceptions does not depend on their relevance • Whether or not a statement fits into a hearsay exception depends upon the the existence of specific facts • The judge decides whether these factual conditions exist under rule 104(a) • Every exception has its own conditions that must be fulfilled before the exception will apply • The proponent of a hearsay statements bears the burden of proving by preponderance of the evidence that the statement fits into a given exception . emotional or physical condition Statement for purposes of medical diagnosis or treatment Recorded recollection Records of regularly conducted activity Absence of entry in records kept in accordance with the provisions of the previous exception Public records and reports Records of vital statistics Absence of public record or entry Records of religious organizations Marriage.
statements that are inconsistent with the witness’s courtroom testimony 2. hearing or other proceeding (ensures reliability) These requirements ensure that the prior statement was recorded in some form 801(d)(1)(B) applies to prior consistent statements It doesn’t require that the witness’s prior statement occurred under oath or at a proceeding It limits the admissibility of prior consistent statements to situations in which a party attempts to rebut the opponents claim that the witness has fabricated the testimony in response to improper influence or some other motive It maintains the hearsay ban when aprior statement would merely repeat the witness’s testimony 801(d)(1)(C) Allows introduction of any identification of a person as long as the person who made the identification testifies at trial and is subject to cross examination on the identification Out of court identifications are more reliable than in court identifications because they occur close in time to the event Relies on reliability and need B. declarant must testify at the trial 2. declarant must be subject to cross examination on the statement Prior witness statements that are admissible: 1. Subject to cross examination Cross examination requirement: Witness is placed on the stand Under oath Responds willingly to questions 2. In the Courtroom 1. Sixth Amendment • 6th amendment guarantes a criminal defendant the right to be confronted by witnesses against him • Out of court statements takes away this right and defendant lacks an opportunity to cross examine the witness XXXVII.• The preponderance standard applies to civil and criminal cases D. it is inconsistent with the witness’s current testimony 2. It was made under oath (ensures reliability) 3. Pre-trial identifications of a person 801(d)(1)(A) exempts a witness’s prior statement if the statement satisfies 3 conditions: 1. Rule 2 conditions must be met to admit any statement: 1. inconsistent or an identification . statements that are consistent with testimnony 3. It occurred at a deposition or during trial. when is a statement inconsistent a party seeking to introduce a witness’s prior statement must determine whether the statement is consistent. Prior Statements by Witnesses A.
hearing. under oath. only to rebut claims that the witness is lying. Out of Court Identifications 801(d)(1)(c) admits any identification as long as the declarant is a witness and subject to cross examination The witness’s prior identification is admissible even if the declarant cant repeat the identification ion court C. other proceeding. only if the prior consistent statement occurred before the motive to lie or improper influence arose If the statement was made before the witness had a motive to lie. real or feigned as inconsistent with a witness’s prior detailed statements 3. at trial. it is admissible to prove that the witness had the same story If the statement was made after the witness developed a motive to lie. Oath and Proceeding Courts have held that interrogation sessions with police or other investigators are not proceedings Statements made at interrogation sessions are not admissible under 801(d)(1)(A) even if they were made under oath 4. Rule 801(d)(1) & 613: Prior Inconsistent Statements 613 Any prior inconsistent statement is admissible Statement is admissible only to impeach the witness’s credibility Judge will instruct the jury to use the prior statement only to assess credibility 801(d)(1)(A) Prior inconsistent statement must have been made under penalty of perjury. or deposition Party may rely upon the statement to prove the truth of the matters asserted No limiting instruction Parties may offer inconsistent statements to rebut a charge of fabrication or improper influence and the consistent statement must have occurred before the motive to lie or improper influence arose A prior consistent statement is admissible to rehabilitate the witness’s credibility and for its substantive content Admitting Prior Statements under Rule 801(d)(1): . or has been exposed to improper influences that would affect his testimony 2. the prior detailed statement is inconsistent with the current claim of memory loss most courts treat memory loss. it does nothing to rebut the charge of fabrication and is inadmissible under 801(d)(1)(B) 5. Timing of Prior Consistent Statements Prior consistent statements are admissible regardless of when and how the witness made them A witness’s casual out of court statement to a friend may be admissible under 801(d)(1)(B) if it is consistent with the witness’s testimony in the courtroom (they don’t have to be made under oath or in a proceeding) A party may introduce a witness’s prior constituent statement: 1. has a motive to lie.when a witness aooears to be faking memory loss.
Utterances Present Sense Impressions and Excited A. statements to police and investigators do not 801(d)(1)(B): Prior Consistent Statement • Must be offered to rebut express or implied charge of recent fabrication or improper influence or motive • Prior statement must have been made before the motive to fabricate or improper influence began 801(d)(1)(C) Identification Must be an identification of a person Statements are admitted for the truth of the matter asserted. Introduction and Policy • 803(1) exempts present sense impressions from hearsay ban • 803(2) governs excited utterances • Present sense impressions are statements that describe an event as it unfolds • Excited utterances come from excited people responding to a startling event • FRE permit parties to introduce present sense impressions and excited utterances because these statements are reliable • A person who describes an event as it unfolds before him lacks time to formulate a lie • A person responding to a startling event has a little opportunity to concoct a lie B. Rule 803 • applies regardless of the declarants availability • relieves parties of the burden of producing the declarantr or proving that he is unavailable 803(1) • applies only to descriptions or explanations of an event. the declarant must make it while perceiving the event or immediately thereafter • The time lapse must be short enough that the speaker has no time to create a lie .• Prior statements must have been made by a witness at the current proceeding Witness must be subject to cross-examination: -witness with real or feigned memory loss are subject to cross -witness who assert a blanket privilege are not subject to cross -witness who claim privilege selectively may be subject to cross 801(d)(1)(A): Prior Inconsistent Statement • Memory failure constitutes inconstitency • Statements must have been given under oath subject to penalty of perjury at hearing or other proceeding • Grand jury and deposition testimony count as proceedings. not merely to impeach a witness XXXVIII. not to more complex • analyses or interpretations • For a statement to qualify as present sense impresson.
physical condition. affirming that she made the statement as she perceived the event -Testimony from other witness’s who can confirm that the declarant made the statement while the event unfolded • Proponents of excited utterance: o Declarant’s in court testimony affirming that he was excited when making the statement o Testimony from witness about who perceived the declarant when he made the statement. state of mind . sensation. prior experiences and other characteristics that might affect how excited the declarant would become in certain situations -evidence about the how traumatic or exciting the event was which provoked the declarants statement XXXIX. Courtroom Description or Analysis • Analysis invokes more complex mental processes that may provide an opportunutiy for deception • The absence of anaylsis suggests that the speaker is not engaging the mental processes that might support decpetion Immediately Thereafter • 803(1) grants a small amount of flexibility in timing-descriptions made immediately after an event may be admissible Startling events and excited declarants Relating to the event • Excited utterance relies on the declarants excitement rather than on her descriptive focus to enhance reliabilty How long does excitement last • The existenxe of excitement depends on the facts of a case foundation • to show a present sense impression: -the declarants in court testimony.1. 6. Rule 803(3) 803(3) covers only statements about the declarant’s then-existing state of mind Internal states that a declarant might describe: emotion. 2. 803(2): • the declarant must speak while excited by a startling event (subjective standard) • An excited utterance must relate to the startling event C. 4. State of Mind A. 5. these witness’s can testify to: -declarancts mannerisms and tone of voice when he made the statement -the time that elapsed between the provoking incident and the statement -the declarant’s relationship to the provocation -evidence about the declarant’s age. 3.
Circumstantial Evidence of Mental State Statements about external facts or events don’t qualify as expressions of a state of mind admissible (may be admissible to prove state of mind) 3. Looking Forward A declarant’s expressed state of mind at one moment also offers circumstantial evidence about what the declarant did or thought at a later time 6. or I remember often are statements that introduce external events or facts which are inadmissible 4. Statement for Medical Diagnosis A. What is a state of Mind Courts redact out of court statements like this to admit the phrases in which a declarant expresses a state of mind and exclude others falling outside any hearsay exception 2. or sensations . Courtroom 1. descriptions of past or present symptoms. Introduction and Policy Statements to obtain medical diagnosis or treatment are more reliable than most out of court statements 803(4) serves a need for efficiency Any statement made by a patient that appears in a medical record is admissible B. pain. I think I believe I remember I think I believe. accounts of medical history 2. Rule 803(4) applies whether the declarant is available or unavailable The declarant must make the statement for the purposes of getting a medical diagnosis or treatment (subjective requirement) The statements must be reasonably pertinent to diagnosis or treatment (objective requirement) The statements must fit within one of the 3 categories: 1.Statements of memory or belief are not admissible under this exception when they are offered to prove the fact remembered or believed An out of court statement of memory or belief is admissible to prove the fact remembered or believed if that fact relates to the validity of the declarant’s will B. Looking Back The length of time has elapsed between the declarant’s expression and the relevant time period is an important factor in the balance 5. Looking Forward with someone else A declarant’s expression of intent offers circumstantial evidence that the declarant acted on the intention Hillmon’s narrow rule: a declarant’s expressed intention is admissible to prove the declarant’s subsequent acts Hillmon’s broad rule: a declarant’s expressed in tent is admissible to prove another person’s actions the federal courts have adopted varied approaches to the continuing vitality of Hillmon when a declarant’s intent is used to prove another person’s conduct XL.
Courtroom 1. the declarant is available to testify in court. Who is the declarant The rationale behind the rule assumes that the declarant usually is the patient needing medical diagnosis or treatment (rationale applies to family members too) 2. excludes most references to blame or fault 5.3. Diagnosis or treatment 803(4) allows parties to admit statements made to doctors who they consulted purely to prepare for litigation A patient may even obtain this type of diagnosis after the condition has been treated and cured by other doctors Under 803(4) the doctor can report to the jury any statement the victim made as long as the statements were pertinent to diagnosis and fit the other other conditions of the exception 4. Psychologists and psychiatrists Most professionals/courts agree that no defensible line exists between ohysical and psychological conditions 6. and subject to cross-examination Recorded recollection applies only when the witness can no longer recall the information that was recorded . . they were made when the declarant’s memory was fresh 2. Recorded Recollection Introduction and Policy 803(5) allows admission recorded recollection Recorded recollections are reliable because: 1. Medical treatment for domestic or sexual abuse Some courts have held that treatment of a patient suffering regular ongoing abuse may include separation of the patient from the abuser (the identity of the abuser is pertinent to formulate appropriate treatment) Effective psychological treatment of an abuse victim may require the doctor to know who caused the abuse XLI. Who is the audience 803(4) doesn’t require that the person seeking medical treatment communicate with a physician or other medical professional 803(4) applies to statements made to anyone as long as the declarant made the statement for purposes of medical diagnosis 3. reports about the inception or general character of the cause or external source of the condition 803(3) has no time limit The declarant may refer to external facts if those facts are pertinent to obtaining medical care C. Cause and source vs fault and blame 803(4) includes statements that a patient makes describing inception or general character of the cause or external source of the condition when those statements are pertinent to medical care 803(4)’s pertinence requirement combined with the limited referernce to the general character of the cause or external source of the condition. under oath.
. . then testifies orally without referring to document What type of document: any document that will halp witness remember. . . then 803(5) does not allow its introduction into evidence Freshness 803(5)’s requirement that a witness record informnation when the matter was fresh in the witness’s memory does not require contemporaneous notetaking Beyond writings Judges have construed the rule’s reference to record broadly to include audiotapes and other media 5. the witnss need not have created or adopted the document Who may introduce document into evidence: only adverse party Related to hearsay: document is not admitted into evidence unless adverse party offers it. . . Recorded Recollection and Refreshment 612: Need arises when: witness cannot recall details of an event or other matter of which they once had personal knowledge What witness does: looks at document to jog memory. witness testifies directly from memory after refreshment so there is no hearsay issue 803(5) . . . Rule 803(5) applies only when the declarant testfies as a witness Admissibility of Recorded Recollection 6 requirements: -out of court statement appear in a memorandum or record -the witness testifying in court must either be the declarant who made the record or person who saw the record and agreed that it was true -the declarant/witness must testify that she once had knowledge about the information contained in the record and that she made or adopted the record at the time when she had that knowledge -the witness must have made or adopted the record at time when her knowledge was fresh -the witness must testify that at the time she made or adopted the record she knew that it accurately reflected the knowledge that she had -the witness must now have no recollection about the information contained in the record Introducing Evidence 803(5) does not all the party offering a recorded recollection to introduce the document directly into evidence as an exhibit An adverse party may choose to introduce the document as an exhibit Courtroom Insufficient recollection 803(5) allows admission of recorded recollection only when a witness lacks current memory of an event Courts enforce this requirement to prevent parties from circumventing the hearsay rule and bolstering their testimony with previous statements Made or adopted 803(5) recognizes that witness need not memorialize a recollection himself If a witness refuses to adopt a statement.
rountine practices -the organizations procedures are likely to reduce mistakes in documentation and to detect those that do occur -organizations rely upon documents to make important decisions 803(6) admits nearly every document that an organization generates in the ordinary course of business Business: include any type of organization or association. Multiple layers and truth of the matter asserted B. events. record. Introduction and Policy Hearsay within hearsay (multiple hearsay): out of court report containing out of court statements 805 allows hearsay within hearsay to be admitted as long as each out of court statements is admissible If each layer of hearsay fits into its own exception. report.Need arises when: witness cant recall details of an event of other matter of which they once had personal knowledge What witness does: reads into record information from a document or other recording What type of document: one that the witness made or adopted when the matter was fresh in the witness’s memory. . Laying a foundation With multiple hearsay the courtroom witness usually lacks information about early declarants in the communication chain Without that information it can be challenging to establish the foundation needed to admit those initial statements 2. or diagnosis B. conditions. jury may consider content of document as read into record by witness for the truth of the matters asserted XLII. the entire statement is admissible If either of the layers fails to fulfill the requirements of an exception the statement is inadmissible to prove the truth of the matter asserted by the original declarant Rule 805 Hearsay within Hearsay Hearsay included within hearsay is not excluded under the hearsay rule if each part of the combined statements conforms with an exception to the hearsay rule provided in these rules Courtroom 1. opinions. XLIII. recording must correctly reflect witness’s personal knowledge at time it was recorded Who may introduce evidence: only adverse party Relationship to hearsay: statements contained in the record are admitted as an exception to the hearsay rule. C. of acts. whether or not conducted for profit Rule 803(6) applies whether or not the declarant is available to testify 803(6) applies to any memorandum. Hearsay within Hearsay A. Introduction and policy Business records are more reliable because: -organizations generate most of these documents according to well established. or data compilation in any form.Business Records A.
. instution. . analysis. The information could be a conclusion. association. profession. . occupation and calling of every kind Courtroom What is a business Personal records kept for business reasons can qualify for the exception as long as they meet all conditions of the rule Who is a custodian or other qualified witness This witness must be able to testify that: -the record was kept in the course of a regularly conducted business activity -the record was kept in the regular practice of business -the record was made by a person with personal knowledge of the recorded information or from information transmitted by a person with personal knowledge 803(6) allows a custodian or other qualified witness to provide a written statement certifying the foundational requirements for a business record Regularly conducted business activities and regular practices The record was kept in the course of a regularly conducted business activity ensures that the organization relies on the document as part of its regular business Regular practice of business activity to keep record means the organization must make this type of record on a regular basis Documents prepared on an irregular basis are more likely to contain self-serving statements created for litigation or other unreliable comments Lack of trustworthiness 803(6) excludes the record if the source information or the method or circumstances of preparation indicate lack of trustworthiness . .C. or opinion as long as the document complies with the other conditions of 803(6) It must have been recorded by: -a person with personal knowledge of the data -a person who received that information from someone else in the organization with personal knowledge The personal knowledge provision requires information to be recorded at or near the time that the data arose Organizational records needs to be recorded within a reasonable time as guided by the needs of the organization itself The organization must have made the record in the course of a regulary conducted business activity and the organization must have a regular practice of keeping records: -they ensure that the recordkeeping is a routine process which will tend to make the recordkeepers more accurate -they ensure that those who keep the records know that the company will rely on the records to be accurate A qualified witness must introduce the record into evidence Custodian: the person who maintains the record for the organization Any person with the necessary knowledge to lay a proper foundation for admission of a document is qualified to introduce the document 803(6) provides a caveat that a business record is not admissible if the source of the information or the method or circumstances of preparation indicate lack of trustiworthiness 803(6) includes documents prepared not only by traditional for profit companies but by any business.
C. Insiders.Public Records A. they do not fall within 803(6) The court must redact these statements by organizational outsiders or identify a separate hearsay exception to support their admission If the information originated from a member of the organization and if it traveled a route composed exclusively of organization insiders then the information falls within 803(6) Information originating from outsiders does not fall within 803(6) XLIV. . statements. Law enforcement and criminal defendants A police report recording observations about the scene of a crime woiuld be admissible in a civil lawsuit B. reports. the 6th amendment guarantees criminal defendants the right to confront witnesses against them 803(8)(C) admits factual findings resulting from an investigation -results of a government investigation are not admissible against a defendant in a criminal case -includes the opinions and conclusions of the investigator as well as the underlying facts -the investigation must have been conducted pursuant to authority granted by law -the results of a government investigation are not admissible if a trial judge finds a lack of trustworthiness Courtroom 1. documentation of all the things that an agency actually does 803(8)(B) admits records of matters observed by the public agency-includes a wide range of concrete facts that a public agency might observe -applies only to matters that the agency has a duty to observe and report -excludes all records of observations made by police and law enforcement personnel when offered in a criminal case -policy reasons: 1. outsiders and double hearsay 803(6) admits records made by one person from information transmitted by another person with knowledge of the business facts (doesn’t include customers or other 3rd parties who provide information) Any information perceived directly by the organization’s employees will fall within the business records exception Statements made by 3rd parties constutitue a separate level of hearsay. Introduction and Policy 803(8) allows parties to admit public records into evidence for the truth of the matter asserted -these records are more reliable than most other hearsay statements -public records are more useful than other kinds of hearsay Rule 803(8) encompasses any records.. law enforcement personnel have a strong interest in ensuring that criminal defendants are convicted so their observations may not be neutral 2. or data compilation in any form 803(8) applies to all public offices or agencies (any government agency) 803(8)(A) admits activities of the office or agency.
Factual findings Courts interpret factual findings broadly to encompass all facts. Rules Absence of a record rarely would constitute an assertion falling within the hearsay rules To admit absence of a business record: -the proponent must show that the records containing the omission are kept in accordance with 803(6) -the party must show that the absence relates to a matter about which the business regularly made and preserved records -the proponent must be prepared to rebut any argument that the absence of a record is unreliable under the circumstances of the particular case 1. Hearsay within hearsay Investigators may rely upon third party statements to generate their own opinions and conclusions XLV. Lack of trustworthiness Determining whether a public record of an investigation is trustworthy: -the timeliness of the investigation -the special skill or experience of the official conducting the investigation -whether a hearing was held by the public agency prior to the report being made -whether the motivations of the public agency is suspect If a record falling within (A) or (B) appeared untrustworthy a court could invoke 403 to exclude the document 3. opinions and conclusions found in the report of an investigation 4. Market reports. Other Exceptions A.A prosecutor may introduce records based on observations by other types of public official Courts prevent prosecutors from introducing records of law enforcement observations only when they were made in an adversarial setting 2. Absence of Business Records or Public Records 803(10) the proponent must show that the absent record relates to a matter for which the public agency regularly made and preserved records 2 ways that the party can prove the record’s non-existence: -the party may call a witness to testify that a diligent search was made and no record was found -the party may present a certified document from the agency attesting that a diligent search failed to yield the particular document 2. Statements in ancient documents Documents written many years before a dispute arises are more reliable than other writings because the author’s motive is less open to suspicion These documents are more useful than other hearsay because the declarant who produced the document is unlikely to be available The document must be at least 20 years The party offering the document must establish its authenticity 803 (16) admits the writing but I does encompass hearsay reported within the document 3. commercial publication .
Foundation and Testimony The party cant introduce the treatise itself into evidence 2. there is little likelihood of recovery within a reasonable time . Refusal to Testify Judge may hold the witness in contempt and impose a penalty for her refusal to testify 3. directories or other published compilations A party offering evidence must show that it is generally used and relied upon by the public or by persons in a particular occupations 4. Physical Illness. Courtroom 1. the statements read aloud by witnesses are admitted as substantive evidence 3. tabulations. Emerging Issue XLVI. the declarant cant come to court to testify 2.Reasons to admit: -reliability -need for information It applies to directories and lists that the general public uses and to more specialized tabulations that members of a particular occupation generally use and rely upon The document must be one of market quotations. Mental Illness The physical or mental illness must be sufficiently disabling that: 1. another expert witness may establish that fact 3. Death. the expert witness who relies upon or acknowledge the treatise may confirm that the treatise is a reliable authority in the field 2. Learned treatises 803(18) allows parties to introduce learned treatises only in connection with an experts testimony The treatise must be called to the attention of an expert witness during crossexamination or relied upon by the expert witness during direct examination Statements from a learned treatise may be read into evidence but may not be received as exhibits 803(18) requires the proponent of a learned treatise to establish that the treatise is a reliable authority 3 routes to lay foundation: 1.Unavailability A. lists. Privilege If a witness invokes a privilege and the court agrees that the privilege shields the witness’s testimony. Rule 1. Lack of Memory The witness must testify that he has absolutely no recollection of the subject matter Lack of memory of the details is not sufficient to show unavailability 4. Purpose of Admission Although learned treatises are not admitted into evidence in their entirety. the judge may take judicial notice of the treatise’s authoriativeness 803(18) encompasses learned treatises in almost any field of study as long as an expert certifies a text as reliable authority in a relevant field B. then the witness is unavailable 2.
Former Testimony Rule 804(b)(1) • The party offering the former testimony must show that the declarant is unavailable • The prior testimony must have been given at a hearing or deposition (ensures that declarant made statement under oath and in formal setting) • If a party can satisfy the other requirements of 804(b)(1). testimony from other lawsuits is admissible. Death or incapacity A party usually introduces a death certificate or other evidence of the declarants demise The proponent of the evidience must introduce documentary evidence or live testimony to show the declatrants condition If the declarant’s illness is temporary. • The opposing party need not actually have conducted an examination in the prior proceeding • The opposing party’s motive in questioning the declarant in the prior hearing must have been similar to the motive the opposing party would have in cross-examing the declarant in the current hearing or trial (ensures that prior questioning substitutes adequately for the absent cross-examination in the current cause) . Absence To demonstrate that a declarant cant be found or brought to court. the declarant refuses to come to court and is currently outside the court’s jurisdiction The party must use any reasonable means in addition to serving a subpoena to persuade the declarant to attend trial The proponent must use reasonable means to take the declarant’s deposition if the declarant will not attend the trial A party offering that witness’s out of court statement cant cause that unavailability through wrongful means B.5. Courtroom The proponent of hearsay statement offered under 804 has the burden of proving that the declarant is unavailable 1. Refusal to testify and lack of memory A party must call the declarant to the stand Parties often make this showing outside the jury’s presence 3. the party cant find the declarant after making a diligent search 2. a party must show a good faith. • The opposing party must have had an opportunity to question the declarant in the prior hearing or deposition. genuine effort to procure the declarant’s attendance XLVII. Privilege To show unavailability on the basis of privilege a party usually must call the declarant to the stand to question 2. Absence Commonly arises when: 1. he is likely to recover within a reasonable time and the trial can be continued until that time w/o undue prejudice to the parties 4.
Courtroom Similar Motives 804(b)(1) enhances the reliability of prior testimony by admitting these statements only when the opposing party had a similar motive to develop the declarant’s testimony at the prior proceeding In criminal cases most courts are reluctant to find that a party’s motive during a pretrial hearing are sufficiently similar to those at trial Courts usually hold that pre-trial depositions in civil cases are admissible under 804(b)(1) when a witness becomes unavailable 4 factors when determing whether an opposing party had a similar motive: (1) the type of proceeding in which the testimony was given (2) trial strategy (3) potential penalties or financial stakes (4) number of issues and parties Whether or not the opposing party had a similar motive to develop testimony in the prior proceedings is based on the facts of the case and the legal issues involved in each proceeding. 3.• • • In a criminal case. 5. In civil cases. the courts have been willing to admit prior testimony as long as a party in the prior proceeding had a motive to develop the declarant’s testimony that is similar to the motives of the current opposing party 1. Against the Same Party in Criminal Cases In criminal cases 804(b)(1) supports admission of prior testimony only if the opposing party had the opportunity to cross-examine the witness at the prior proceeding The rule recognizes no predecessors in interest or other substitute cross-examiners in criminal cases The opposing party must have appeared in the prior proceeding and had an opportunity to develop the witness’s testimony Predecessors in Interest In civil cases a litigant may introduce former testimony as long as the opposing party or that party’s predecessor in interesy had an opportunity to develop the witness’s testimony at the prior proceeding Courts look to the similarity of issues between the prior case and the current one and the purpose for which the prior testimony was given Opportunity to Develop Testimony 804(b)(1) admits prior testimony as long as the party or predecessor in interest: (a) had an opportunity to develop the declkarants testimony at a prior proceeding (b) during the prior proceeding. the party with the opportunity to question the declarant in the prior hearing must have been the same party as the opposing party in the current case In civil cases 804(1)(b) allows a party to introduce evidence as long as the opposing party or his predecessor in interest has an opportunity and similar motive to cross examine the witness. 2. has a motive for developing testimony similar to the current opposing party’s motive for cross examination 804(b)(1) and 801(d)(1)(A) . 4.
that renders the testimony admissible a declarant’s sincere belief that death will occur swiftly and inevitably is more important than any specific time limit in determining whether a statement qualifies as a dying declaration 2. Dying Declarations A. statements to obtain medical treatment. deposition or grandjury presentation.804(b)(1) Declarant Must be unavailable Content of statement: any content Context of prior statement: Must have been under oath Made at a prior proceeding at which the opposing party (in a civil case. Proving state of mind The judge decides whether the conditions supporting admission of a dying declaration exist The party offering the dying must prove this belief by a preponderance of the evidence To prove this belief courts most often consider: o Statements by declarant . must be subject to crossexamination concerning the statement Content of statement: inconsistent with current statement Context of prior statement: must have been made under oath Made at any prior proceeding. Courtroom 1. and had a similar motive as in the current proceeding 801(d)(1)(A) Declarant: must testify at current hearing or trial. and forfeiture 3. state of mind. Rule 804(b)(2): Dying Declarations Applies only if the declarant is unavailable Applies only in homicide prosecutiontions and civil proceedings The declarant must believe that death is imminent when he males the statement (subjective requirement) The content of the statement must concern the cause or circumstances of the declarants death B. XLVIII. When is death imminent Imminency: • the declarant must have a settled hopeless expectation that death is near at hand • the statements must be spoken in the hush of its impending presence • the declarant must have spoken with the consciuousness of a swift and certain doom it is the impression of almost immediate dissolution and not the rapid succession of death. a predecessor in interest) had the opportunity to cross-examine or develop testimony on direct. Dying declarations and other exceptions Many dying declarations are admissible under other hearsay exceptions such as excited utterance.
the statement falls outside the exception even if later circumstances render the statement incriminating The statement can be against a declarant’s interest if it: -is contrary to her pecuniary or proprietary interest -expose her to civil or criminal liability -render invalid a claim the declarant has against another person Any statement that exposes the declarant to criminal liability is admissible to exculpate a criminal defendant only when corroborating circumstances clearly indicate the statements trustworthiness Courtroom What is against interest The statement must be so far contrary to a declarant’s interest that no reasonable person in the declarants position would have made the statement unless believing it to be true Other interests 804(b)(3) admits only: -statements against pecuniary or proprietary interests -those that subject the speaker to civil or criminal liabililty -those that extinguish a legal claim held by the speaker Minimizing guilt A declarant sometimes makes a statement that admits wrongdoing but minimizes her role while blaming others Under these circumstances. whether they are neutral or shift blame onto someone else Trustworthiness A statement against interest exculpating a criminal defendant is admissible only if corroborating circumstances clearly indicate the trustworthiness of the statement Most courts require corrboration both of the declarant’s trustiworthiness and of the statement’s trustworthiness . the court must decide whether the statement was really against the declarant’s interest Mixed statements The supreme court has held that courts must admit only portions of the narrative that were against the declarant’s interst Trial judges must redact the collateral statements. Statement against Interest Rule 804(b)(3): Statement against Interest The declarant must be unavailable for the exception to apply The statement must be against the declarant’s interest at the time it was made -If the declarant believes a statement is against his interest at the time he makes it the statement qualifies for the exception even if it ends up doing the declarant no harm -If the declarant makes a statement that seems innocuous when made.o o o o Statements made by medical personnel and others to the declarant The nature and extent of the wounds or illness The length of time between the statement and the declarant’s death The opinion of medical personnel who treated the declarant about the declarant’s health XLIX.
Courtroom 1. under influence. or pressure to silence testimony and impede the truth-finding function of trials Persuading a witness to claim a privilege or forego testifying does not fall within 804(b)(6) 2.The courts consider 6 factors in determining whether this type of statement is sufficiently trustworthy to admit: 1) whether the declarant had pled guilty before making the statement or was still exposed to prosecution (how far against the declarant’s interest the statement was at the time) 2) the declarant’s motive in making the statement and whether there was a reason for the declarant to lie 3) whether the declarant repeated the statement and did so consistently 4) the party or parties to whom the statement was made 5) the relationship of the declarant with the accused 6) the nature and stregngth of independent evidence relevant to the conduct in question A criminal defendant who offers an exculpatory statement under 804(b)(3) bears the burden of proving trustworthiness to the judge. Rule 804(b)(6) Forfeiture by Wrongdoing The opposing party must have engaged or acquiesced in wrongdoing -it does not apply to parties who use legitimate means to dissuade a witness from testifying The opposing party must have intended to make the declarant unavailable -if the declarant’s absence was an unintended consequence of the party’s wrongdoing the exception does not apply The wrongdoing must have caused the declarant to become unavailable B. the defendant must prove that fact by a preponderance of the evidence L. What is wrongdoing Courts have interpreted the wrongdoing language to mean coercion. the opposing party need not even know about the wrongdoing as long as the court determines that the wrongdoing was part of the conspiracy 3. Intent The forfeiture exception applies only if the opposing party committed a wrongful act with the intent of making the witness unavailable The proponent need not prove that the opposing party’s only motive was to prevent the witness from testifying As long as the opposing party was motivated in part by a desire to silence the witness. the forfeitutre exception applies . Forfeiture A. Acquiescing in the wrongdoing The proponent only needs to show that the opposing party acquiesced in the improper behavior Evidence that the opposing party tacitly agreed to the wrongdoing is sufficient Sometimes bare knowledge of a plot and failure to give warning to appropriate authorities is sufficient to constutitite forfeiture If the opposing party is a member of a conspiracy.
If a party acts wrongfully with the intent to silence a witness in one case that intent carries over to other cases The declarant’s statements are admissible against the party in all future cases in which the wrongdoing makes the declarant unavailable The forfeiture exception may apply when a party intimidates a potential witness LI. the government may introduce evidence of the defendant’s out of court statements 5. Admission by Adoption-Signing a Document Provide that a party’s admission need not consist of the party’s own words It is sufficient if the party has manifested an adoption of a statement or a belief in its truth One common way to adopt a statement is to sign a document prepared by others 6. Rule 801(d)(2): Admission by Party-Opponent A party’s statement must be offered against that party. in effect. Courtroom 1. a party cannot introduce his out of court statement 801(d)(2)(B) admits any statement by another person that the party has adopted as her own 801(d)(2)(C) admits any statement by a person that the arty authorized to speak on that subject 801(d)(2)(D) admits most statements made by the party’s agents or employees B. Opponents Parties can’t introduce evidence of their own statements. Statements by Part-Opponents A. Party’s Availability Immaterial Applies only if the declarant has testified as a witness It does not require availability Even when a criminal defendant invokes the priviliege against self incrimination and declines to take the stand. or being subjected to first hand scrutiny by the jury 2. Admission by Adoption-Silence An individual’s silence can constitute an adoptive admission-m the circumstances must be such that a reasonable person would speak up rather than remain silent . testifying without swearing an oath. Admissions Statements admissible under this rule do not have to be admissions Admission is intended to refer to any statement that an opponent seeks to introduce 3. they can only offer evidence of an opponents statements This prevents parties from offering evidence of self serving statements Allowing parties to introduce their own out of court statements would effutate an end run around the adversarial process by. Personal Knowledge It allows introduction of an opposing party’s statements even if the opposing party had no personal knowledge of what he was saying A party seeking to preclude her own statements can object under 403 4. facing cross examination.
Confrontation Clause . the prosecutor may be able to introduce evidence of the prior convictions to impeach the defendant as a witness LII. Offensive use: Statements Offered Against a Party on the Same Side Authorizes any litigant to introduce a party’s statement against a party As long as one defendant offers a codefendant’s out of court statement against that codefendant. Criminal Defendant’s Admits party statements in both criminal and civil cases if the defendant takes the stand to rebut or explain the out of court statements. and (3) other evidence in the case In a criminal cases. or (3) excluding the statement under 403 depending on: (1) the probative value of the out of court statement. (2) redacting the out of court statement. Authorized Speakers Includes any statements by a person that the party uthorized to make a statement concerning the subject 9. introduction of an out of court statement against the party who made the statement.Weston-Smith standard to determine whether silence constitutes n adoptive admission: Whether the circumstances as a whole show that the lack of denial is so unnatural as to support an inference that the undenied statement was true 7. (2) the unfair prejudice to other parties. but not against other parties is admissible The judge will protect the other parties by: (1) offering a limiting instruction. it is admissible 2. made during the existence of the relationship is admissible A agent is someone authorized to act for a party on a particular matter A servant is an employee with more a regular relationship to a party It includes statements that an agent/servant makes to outsiders as well as those made within the agency or employment context 8. it is admissible Permitting parties to introduce their own statements would let them circumvent the oath and cross-examination requirements at trial As long as codefendants/co-plaintiffs interests are sufficiently adverse that the other defendant/plaintiff is offering an out of court statement against that person. Statements by Party-Opponents and Multiple Parties A. 801(d)(2) applies in exactly the same way as civil -courts must consider the criminal defendant’s rights under the confrontation clause of the constitution B. Rule 801(d)(2): Admission by Party Opponent 1. but it does not authorize admission of the statement against anyone else In civil cases. Defensive Measures: A statement’s Application to Other Parties in Civil Cases Allows a litigant to introduce a party’s own statement against that party. Agents Statenments made by the party’s agent or employee concerning a matter within the scope of the agency or employment.
introduction of the statement does not violate Bruton Guidelines governing the redaction of out of court statements implicating a codefendant: 1) a statement that explicitly names a codefendant and implicates that codefendant on its face violates Bruton -the statement cant be admitted in this form 2) a statement that simply replaces the codefendant’s name with blanks or other obvious marks of deletion violate Bruton -a statement in this form will tempt the jury to fill in the blank with codefendant’s name 3) a statement that does not refer explicility to a codefendant and that contains no obvious omissions tempting the jury to fill in the gaps satifies Bruton -the prosecutor can admit statements satisfying this condition or that can be redacted to reach this form LIII. or compel the defendant to testify by granting immunity 3) the prosecutor can sever trial and try each of the defednat. try to persuade that defendant to testify by offering an attractive plea bargain. Redacted Statements If the statement only implicitly implicates the codefendant after being linked with other evidence. Agents. Courtroom 1.s separately introducing the out of court admission against the defendant who made the statement at that defendant’s trial 4) the prosecutor can forego use of the statement.the courts have determined that if one defendant makes a statement that impliucates himself and a codefendant. Statements of Co-conspirators A. Adoptions. relying on other evidence instead C. & Authorized Speakers A defendant sometimes can introduce one plaintiff’s out of court statement against all plaintiffs if there is an adoption. Rule 801(d)(2)(E): Admissions by Co-conspirators The statement must be made by a coconspirator The statement must occur in furtherance of the conspiracy . authorization or agency relationship linking the multiple parties 2. a limiting instruction may be insufficient to cure the unfair prejudice to the codefendant the sixth amendment gives criminal defendant’s aright to confront the witness’s against them admitting one defendant’s out of court statement that implicates a codefednat violates the codefendant’s 6th amendment rights an out of court statement implicating the codefendant is so powerful that a limiting instruction is not sufficient to cure the 6th amendment violation the 6th amendment offers these options to a prosecutor who obtains an out of cour admission from one of several defendants: 1) the prosecutor can redact the defendant’s admission so that it does not iplicate any other defendant’s 2) The prosecutor can hope the defendant who made the statement will testify.
the conspiracy is still active and statements made by one conspirator during the cover-up are admissible against all members of the conspiracy When the members of a conspiracy disband and go their separate ways. Civil Cases . Concealment If the participants are working together to conceal the crime. gain their acquienscense. Courtroom 1. the conspiracy does not continue Unilateral steps by one conspirator to cover up a crime do not signal ongoing conspiracy Some types of concealment do occur as part of the intial conspiracy-these statements are admissible against coconspirators 4. concealing the wrongdoing only in the sense that they keep quiet about. The Meaning Conspiracy A party invoking the coconspirator exception only has to prive that the declarant and the party against whom the statement is offered were members of a common venture The declarant and defendant must have agreed to use their joint efforts in some way to reach a common goal The government may introduce the statement of a coconspirator even when it lacks sufficient evidence to convict the individuals of criminal conspiracy 2. Course of Conspiracy A conspiracy to satisfy 801(d)(2)(E) begins as soon as 2 or more people agree to pursue a common criminal goal The courts have held that an arrest almost ends a conspiracy Post arrest statements usually are not admissible against coconspirators Police puts an end to the common project once they arrest members of the conspiracy because they are no longer working together to pursue common goal The exception rests on the assumption that one member of a conspiracy speaks for the other because they are pursuing a common goal Under some circumstances. courts have found that conspiracy survives arrest 3. Furtherance of the Conspiracy A cocospirators out of court statements against other members of the conspiracy are admissible only if the statements were made in furtherance of the conspiracy A statement may be admissible even if it does not successfully secure some objective or otherwise advance the criminal enterprise The 2 most common types of statements that fall outside the furtherance requirement are confessions and boasts to people outside the conspiracy Statements that reassure family members. Or otherwise contribute to the defendant’s ability to complete criminal tasks may be in furtherance of a conspiracy 5.The statement must occur during the course of the conspiracy -statements made before the conspiracy begins or after it ends are inadmissible It allows a party to introduce one conspirators out of court statement against all other conspirators The conspirator who made the statement need not be present at the trial B.
Preliminary Determinations The judge decides whether a conspiracy exists. Introduction and Policy The 6th Amendment neglects to protect the prosecutor in criminal cases The state has no constutional right to confront witnesses The accused may introduce hearsay against the prosecutor w/o running afoul of the 6th Amendment Scope of the Confrontation Clause Criminal” – the clause applies only to criminal prosecutions. The Sixth Amendment and Hearsay A. the only indicium of reliability sufficient to satisfy constiutitional demands is the one the constuution actually prescribes: confrontation C. but Fourteenth Amendment applies limit to the states B. The Davis Decision Crawford Out-of-court testimonial statements are admissible only if: The declarant is not available • • • • – and – The Defendant had an opportunity to cross-examine the declarant on the statement Davis • The Sixth Amendment does not apply to out-of-court statements that are non testimonial Sixth Amendment and Hearsay What is a “testimonial” statement? • NOT an off-hand. The Crawford Case Where testimonial statements are at issue. not the prosecutor Sixth Amendment binds only the federal government. overheard remark (666) . not civil lawsuits “Accused” – the clause protects the accused. Relationship to Other Rules Reliance upon 801(d)(2)(E) is not necessary to introduce a statement against the party who made the statement 801(d)(2)(A) supports the admission of a statement against the speaker w/o any need to prove that the statement was made during the course of and in furtherance of a conspiracy Admission of a conspirator’s statement does not raise any Bruton 6th Amendment issues with respect to coconspirators LIV. whether the out of court statement was made during the course of that conspiracy and whether the statement was in furtherance of the conspiracy The proponent of the statement must prove these facts by a preponderance of the evidence C.The coconspirator exception is available in civil cases 6.
as well as in response to police interrogations (671) What is testimonial? • Formal proceeding/solemnity • • • • • • • • – – • • – Government involvement Statement made to prove a fact Statement that declarant reasonably would expect to be used prosecutorially Homicide cases: statements of victim Domestic violence: victim reluctance.• • • • A solemn declaration or affirmation made for the purpose of establishing or proving some fact (667) • A formal statement to government officers (667) NOT a casual remark to an acquaintance (667) What is a “testimonial” statement? Ex parte in-court testimony (667) Functional equivalent of that testimony (affidavits. custodial examinations.4) What is a “testimonial” statement? • Statements at plea allocutions or during grand jury proceedings (670) • At a minimum. with similar motive Requirements of the rule satisfy the Sixth Amendment 801(d)(1): Prior Statements by Witness Evidentiary rule requires Declarant testifies and is subject to cross-examination . before a grand jury. privilege Child abuse: victim reluctance. prior testimony that wasn’t cross-examined) (667) • Similar pre-trial statements that a declarant would reasonably expect to be used prosecutorially (677) What is a “testimonial” statement? • Ex parte testimony at a preliminary hearing clearly qualifies (667) • (667) Statements taken by police officers during the course of interrogations clearly qualify • Involvement of government officers in the production of testimony with an eye toward trial (667 n. or at a former trial. prior testimony at a preliminary hearing. lack of competence Organized crime: witness intimidation 804(b)(1): Former Testimony Evidentiary rule requires Declarant unavailable D had opportunity to cross-examine on statement.
introduction of prior statement poses no 804(b)(6): Forfeiture Crawford and Davis specifically address (670.5) 803(5): Recorded Recollection • Evidentiary rule requires – • problem Declarant must testify If declarant is subject to cross-examination. 680) Rest on equitable grounds. rather than reliability Defendant forfeits Sixth Amendment objection • • • . introduction of prior statements poses no problem (669 n.• As long as declarant is subject to cross-examination.