Lecture 1, Week 1 Monday, August 23, 2010 8:21 AM I. Trial i. Plaintiff 1. Expert testimony as to the standard of care 2.

Breach of the standard of care 3. Damages proximately caused ii. Defendant 1. Affirmative defenses iii. Failure to get certain evidence into the record can be the death of a case Federal Rules of Evidence i. 11 Articles ii. 67 Rules iii. utilized in criminal and civil cases iv. Many states have modeled their evidence codes to the FRE v. Congress authorizes the federal judiciary to prescribe the rules 1. Congress can make changes to the proposed rules or do nothing and let it go into effect Dec 1st of that year. Litigation Stages i. Pretrial 1. Utilization of discovery tools (evidence need not be admissible to be discoverable) 2. Summary Judgment - testing sufficiency of the facts ("there is no material facts in dispute here. Judge may make a decision based on law alone.") a. FRCP 56 3. 1982 Proposition 8 - proposed amendment to the CA constitution a. Relevant evidence should not be excluded for any reason 4. Begins the moment the client walks into the office ii. Trial iii. Post Trial RULE 101: Scope i. Govern proceedings in the courts of the US RULE 1101: Applicability of Rules i. (a) Proceedings generally 1. These rules apply generally to civil actions and proceedings, including admiralty and maritime cases, to criminal cases and proceedings, to contempt proceedings except those in which the court may act summarily, and to proceedings and cases under title 11, USC ii. (d) Rules inapplicable 1. The rules (other than with respect to privileges) do not apply in the following situations a. Preliminary questions of fact b. Grand jury c. Miscellaneous proceedings State or Federal Court i. Federal courts will look to state laws for presumptions, competency of witnesses, and privileges ii. A judge must follow the FRE even if she is the factfinder 1. These rules aren't followed to the letter Rationale for Rules i. Regulate the evidence submitted to a jury (mistrust of juries) 1. Concern that the jury can be misled 2. Even though the evidence may be relevant, it may be excluded at time of trial ii. Provide a mechanism to favor/disfavor certain claims or parties 1. Provide a certain standard - e.g. "proof beyond a reasonable doubt" iii. Provide a mechanism for accurate fact-finding iv. Provide a mechanism to encourage important policies unrelated to the present litigation 1. Important public policies changed due to trial and evidence v. Provide a mechanism for the protection of private relationships 1. Spousal privileges vi. Provide a mechanism to limit the scope and duration of trials 1. All non-relevant evidence is not admissible

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2. Relevant evidence is admissible with certain exceptions vii. Allow for due process at the trial Closing argument is a way to talk directly to the jury i. 3 opportunities to talk to the jury 1. Voir dire 2. Opening statements 3. Through your witnesses 4. Closing statements Objections to Closing Arguments (example) i. Addressing the jury by name ii. Inflammatory arguments iii. Misstating law or facts iv. Unduly emotional argument v. Urging matters outside of the trial record vi. Mentioning the wealth or poverty of the parties (exception: punitive damages case) Litigation Process i. Complaint and Answer ii. Pre-trial Discovery iii. Pre-trial Motions iv. Motions in Limine 1. Exclude mention or reference to certain pieces of evidence so the jury doesn't hear it (e.g. attorney's fee) v. P's Opening Statement 1. They go first because they have the burden of persuasion 2. Traditionally, the party who has the burden sits closest to the jury vi. D's Opening statement vii. Case-in-chief of P 1. Must prove what you tell the jury in the opening statement to the jury viii. Motions at the close of P's case 1. D asking for directed verdict ix. Case in chief of D x. Rebuttal Evidence xi. P's closing argument xii. D's closing argument xiii. P's rebuttal argument xiv. Arguments regarding jury instructions 1. Should help the jury walk through the jury instructions and get to the answer you want 2. Should NOT ignore these instructions in your closing argument xv. Jury instructions xvi. Jury deliberation xvii. Verdict and entry of judgment xviii. Post-trial motions xix. Appellate review Objections i. Addressing juror by name 1. It is improper to identify a particular juror and address that juror by name ii. Vague and ambiguous 1. Trier of fact would have to guess part of the facts asked and answered iii. Assumes facts not in evidence iv. Argumentative 1. Sometimes its better not to say too much - asking "why would you come to court if you were obviously intoxicated at the time?" opens up the door for the witness to give a good answer v. Asked and answered 1. You can't continually ask the question again if it has already been appropriately answered you can't just keep asking because you don’t like the answer vi. Compound question 1. Multiple questions asked at once vii. Calls for a narrative 1. Witness interviews should be question and answer alone - don't ask the jury "what happened?"

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Unresponsive 1. Answering a question that was never asked when a different question should be answered Speculative 1. Asking the witness for opinions, not facts Opening Statement Objections 1. Addressing jurors by name 2. Argument of the facts of law 3. Arguing the credivility of anticipated witnesses 4. Referring to evidence which has been excluded by motion in limine Closing Argument Objections Objections: rules to live by 1. Act promptly 2. Know your judge 3. Always be courteous 4. Reserve objections for important matters 5. Be specific 6. If you have more than one objection, state them all a. If you don't, it may not be available on appeal 7. Request the court make appropriate instructions on evidence 8. Decide whether you want to be heard at side bar 9. When appropriate, use the opportunity during your opponent's direct examination to voir dire the witness for the purpose of an objection a. You have a right to assist yourself in formulating your objections 10. Must know the rules of evidence and be comfortable utilizing them Without a timely objection/offer of proof, the appeal issue is not preserved - you waive your right to appeal on this issue We are NOT entitled to an err free trial - we are entitled to a right of appeal 1. Not all mistakes made in the original trial is accessible 2. Err must be more than just harmless error "Rulings on evidence cannot be assigned as error unless (1) a substantial right is effected, and (2) the nature of the error was called to the attention of the judge… Successful appeal is a timely or proper objection or offer of proof must have been made 1. Appellant must establish that the trial court's evidentiary ruling was in error 2. The AC must be persuaded that the error effected a substantial right of the appellant (harmful error) - reversible error or prejudicial error Offer of proof 1. On the record, shows what witness would have said if witness was allowed to testify 2. Either on the stand or outside the presence of the jury 3. if you don’t put this in the record, the AC cannot see the error Objection, general objection is not available on appeal - must be specific RULE 103: Rulings on Evidence 1. Effect of erroneous ruling. Error must not be merely harmless a. Objection - timely objection b. Offer of proof - substance of the evidence was made know to the court 2. Once the court makes a definitive ruling on the record admitting or excluding evidence, either at or before trial, a party need not renew an objection or offer of proof to preserve a claim of error for appeal a. Imposes the obligation on counsel to clarify whether an in limine or other evidentiary ruling is definitive when there is doubt on that point 3. Trial court has the power to add or exclude things 4. Rule 103(d) Plain error - attempt by drafter of FRE to say there are situations so egregious and blatant that the appellate court should fix it even without an objection a. If no timely objection is more likely to be allowed compared to no timely offer of proof b. CA evidence rules does not have a plain error rule - CAE 353 i. Can't set aside if evidence erroneously admitted or excluded - eve if there was error ii. Must result in a miscarriage of justice, not just harmful error c. CAE 354 - exclusion of evidence i. Error, miscarriage of justice AND 1. Made known to the court OR

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Court rendered making an offer of proof futile OR Evidence was sought by questions asked during cross or re-cross examination

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Question 1B  CD joins with AB as the second plaintiff in the suit against EF. The defense offers testimony by police officer H, based on measurements of skid marks at the scene, that B's Fiat was traveling at a speed of about 50mph just before entering the intersection. (The posted limit was 35 mph.) Counsel for B objects that "officer H is not qualified as an expert in accident reconstruction," and that "estimates of speed based on skid marks involve sheer speculation and are not helpful to the jury."  The court overrules the objections; the jury returns a verdict for F; the court enters judgment that B and D take nothing, and that their claims be dismissed with prejudice. D appeals, and F argues that his appeal should be dismissed because of his failure to object below. Should he prevail on this argument? Why or why not?  P should know the requirement of the jurisdiction. Ask the judge if the court wants us to make individual objection on the record - should be made on the record before trial RULE 104 i. (a) questions of admissibility generally - prelim questions concerning the qualifications for being a witness shall be determined by the court/judge (not bound by the rules of evidence aside from privileges) 1. Facts affecting competency of evidence 2. Requirements for a privilege 3. Requirements for hearsay exceptions 4. Lack of mental capacity 5. Qualifications of a witness as an expert ii. Exemption (b) RULE 105 - Limited admissibility i. Evidence which is admissible as to one party but not for another ii. Party seeking admission of evidence can be required to specify the purpose iii. Restricted to proper scope and instructs jury accordingly iv. Close relationship between this rule and rule 403 1. The present rule recognizes the practice of admitting evidence for a limited purpose and instructing the jury accordingly v. Alternatives to limiting instructions 1. Exclusion 2. Redaction 3. Separate trials vi. CA law is almost the same as rule 105 in this regard RULE 106 - rule of completeness i. Adverse party to require the introduction of full evidence - must be read in context ii. 2 considerations 1. Misleading impression 2. Inadequacy of repair work iii. Adverse party may require the introduction at that time of any other part to be considered contemporaneously with it 1. Only applies to writings and recordings 2. 611(a) obligates the court to accept the rule of completeness to oral testimony as well iv. This does not open the door to read everything v. CAE 356 - broader, takes into consideration conversations Real Evidence i. Refers to the tangible thigns directly involved in the transactions or events in litigation Direct vs. Circumstantial i. Direct: evidence which, if accepted to be true, establishes the point for which it is offered ii. Circumstantial: facts which if proved, may provide a basis for an inference that other facts are true 1. Permissible factual inferences (given A, you infer B) Original vs. Prepared i. Original: evidence which existed as part of the event or transaction in question at the trial ii. Prepared/Demonstrative: evidence which is prepared for use in the present case. 1. Have to have a foundation, testimony as to authenticity Order of Witness Examination i. Direct (by party calling the witness)

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ii. Cross (by opposing party) iii. Redirect iv. Re-cross v. Further redirect and re-cross XX. RULE 611 Mode and Order of Interrogation and Presentation i. Court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence ii. Limited scope of cross-examination 1. Limited to the subject matter of the direct examination and matters affecting the credibility of the witness 2. Limited cross-examination a. A part vouches for his own witness to the extent of matters elicited on direct b. Party cannot ask their own witness leading questions c. Promotes orderly presentation of the case XXI. Question 1A  At the intersection of Folsom and Valmont two cars collide - a yellow Fiat driven by AB, in which CD rode as passenger, and a blue Buick driven by EF. In a Rules jurisdiction, B sues F for personal injuries and property damage. During her case-in-chief, B calls CD, who testified on direct examination that "the Buick ran a red light."  On cross-examination, F's counsel asks the following questions: 1) Now Mr. D, you and Ms. B are seeing each other socially, isn't that right?  Goes to the credibility of the witness - allowable 2) Isn't it true, Mr. D, that at the time of the accident Ms. B here had turned clear around in her seat and was looking out the back window of the car?  May be allowable - difference between a narrow interpretation or broad interpretation (what he saw rather than just the light) 3) Tell me, Mr. D, you and Ms. B here had just finished lunch at Sebastian's where she drank three glasses of wine just before the accident, isn't that right?  Not allowable because while it goes toward credibility, it's not going to the credibility of the witness on the witness stand  To each question B's counsel objects, "Improper as beyond the scope of direct, your honor." How should the judge rule in each instance, and why? What arguments do you expect from B and F? Lecture 2, Week 1 Monday, August 30, 2010 8:48 AM Leading Questions I. Definition: any question that suggests the desired answer 1. Example: "isn't it true that before you left, you closed and locked the gate to the pool?" 2. Non-example: "what, if anything, did you do when you left your home on that day?" 3. You would not want to use leading questions on direct because it would make the jury think you are manipulating the witness 4. You should be able to disappear and let the witness tell the story for you a. Must be prepared - prepare the witness to communicate to the jury RULE 611c: Mode and Order of Interrogation and Presentation 1. Leading questions are not to be used on direct 2. Leading question on cross is a matter of right a. Qualification 'ordinarily" denying leading questions on cross in form only 3. Court states that trial judge can allow in their discretion for leading questions Exceptions (may use leading questions on the following) 1. Preliminary matters 2. Hostile witness 3. Adverse party 4. Witness identified with an adverse party 5. Forgetful or frightened witness 6. Child witness Scope restriction 1. Scope of direct 2. Credibility of witness on stand 3. Judge's discretion

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Before testifying. Effective cross-examination a. either a. you can ask the judge to make them leave so they cannot hear other witnesses testimony 2. Listen carefully to the witnesses answer e. person whose presence is shown by a party to be essential to the presentation of the party's cause d. Be succinct k. Be simple l. Can be utilized to give you an advantage on cross-examination b. Ask for recess 2. Always use leading questions m. Cross-examination 1. natural person b. Be prepared (be able to give your closing argument even before the trial starts) c. VII. Exceptions a. VI. officer or employee of a non-natural person c. and it may make the order of its own motion b. Do not give the witness the opportunity to once again tell his or her story g. Respect the intelligence of the jury j. Use deposition b. Refresh present recollection a.she CANNOT just read straight from the diary though . Utilize cross only to support your arguments d. Avoid the one too many questions i. Never permit the witness to explain h.can only be used to refresh i. Does not authorize exclusion of a. Party b. to crossexamine the witness thereon. If you have to put a witness on with information that you don't want to come out on cross. You have NO idea what they are going to say Testifying witnesses 1. Seek to have memory refreshing evidence put into the record 5. person authorized by statute to be present e. While testifying or b. Do not quarrel f. to inspect it. Ask leading question 3. The victim is entitled to be present at all public court proceedings unless their presence would be materially affected by the testimony c. Never ask questions to which you don't already know the answer a. If they are in the courtroom. RULE 615: Exclusion of Witness a. Investigative agent at counsel table throughout the trial although the agent is or may be a witness Refreshing Recollection 1. bring it up on direct so that you can frame it in a way most favorable to yourself 3. You would have to give the diary to the other side to review the evidence as well other side may put this into evidence 4. if the court in its discretion determines it is necessary in the interests of justice b. Take full advantage of pre-trial discovery a. Victim 3.V. RULE 612: Writing used to Refresh Memory a. You can use ANYTHING you want (EVEN inadmissible documents) a. Example: hand the witness her diary to read and refresh her memory . and to introduce in evidence those portions which relate to the testimony of the witness Page 6 of 58 . (Except in 18 USC 3500) If a witness uses a writing to refresh memory for the purpose of testifying. At the request of a party the court shall order witness exclusion so that they cannot hear the testimony of other witnesses. May not assist or school a witness in twisting or distorting the witness' memory 6. An adverse party is entitled to have the writing produced at the hearing. Never give up your own credibility by putting up testimony that is not credible 2.

Exception: expert witnesses 2. Inmate (McDuffy) was not allowed to testify because they were determined to be criminally insane a. Lightly 1. Exceptions 1. Personal Knowledge i. Eligibility of witness to take the stand ii. any document signed b.have personal knowledge (exception: expert witnesses) 3. Any statements/testimony before the grand jury d. in criminal cases when the prosecution elects not to comply. Conviction of crime c. Up to the jury to weight the credibility of the witness vii. McDuffy cannot be prosecuted because he is insane 3. To be competent. Entitles D to production of a. Every person is competent to be a witness except otherwise provided in these rules 2. Lecture 3. c. Connection with litigation of party 4. attorney-client relations or work product) Jencks Act (18 USC 3500) a.e. order shall be to strike the testimony or declaring a mistrial f. had attacked P 2. Any recording/transcription they are entitled to c. August 25. d. the court shall make any order justice requires e. Prevent abuse of prosecution witness b. Take an oath 2. the competency of a witness shall be determined in accordance to state law 3. Religious belief b.7. Child is competent to testify even though she does not know what perjury is v. Judge Page 7 of 58 . Able to communicate to the trier of fact . Ricketts v. Court states that being criminally insane does not make him incompetent to testify iv. US v. Some minimal recollection (does not have to be perfect) 4. Bars discovery by defense of prosecution witness before they testify c. Discretion is regularly exercised in favor of allowing the testimony 5. but not until after the witness has testified. Witness wholly without capacity is difficult to imagine 6. Delaware 1. Liberal adoption to competency 4. and not D. Witness must have perceived something . Question is one particularly suited to the jury as one of weight and credibility iii. Grounds abolished a.may use a translator vi. With respect to an element of a claim or defense as to which State law supplies the rule of decision. If writing contains matters not related to the subject matter. Cannot get this information before witness testimony e. Provides that the government/prosecutor be required to produce a verbatim statement or report made by a government witness or prospective government witness (other than the defendant). Week 2 Wednesday. RULE 601 1. 2010 8:26 AM Witness Competency I. This does not wipe out the other sections of the law (i. excise If a writing is not produced or delivered pursuant to order under this rule. He would have testified that he alone. the court may examine. Witnesses must have personal knowledge of certain events that transpire 1. you must 1. Jury members 2.

it violates professional responsibility ii.II. RULE 605 1. Record . A member of the jury may not testify in the trial of the case in which the juror is sitting 2. Juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything on his or any other juror's mind that influenced his decision for verdict b. III. it would cause a slippery slope effect where anything that could have influenced the juror's state of mind would be considered admissible evidence (eg lack of sleep. SC states that juror affidavit is NOT admissible because the drugs and alcohol do not count as "outside influence" 3. Actually want to be a juror iv. Rules allow for correction of clerical errors Page 8 of 58 . Spousal exclusion viii. Challenged for lack of personal knowledge unless qualified as expert witness ii. Flexible . US 1. a.and post-deliberative conduct iv. Juror misconduct involving objectively verifiable conduct occurring prior to deliberations should be admissible b. Huror lying on voir dire can be brought up 1. RULE 606 1. IV. 2 juror comes forward stating that some of the jury were getting drunk and doing drugs during deliberation 2. Judge can "wake" juror up iii. Witness has to declare that he will testify truthfully 2. Fowler a. US v. Tanner v. V. Even a criminal accused can be excluded from testifying at trial if he refuses to take an appropriate oath (doesn’t pass constitutional muster) ix. too much caffeine. Problem arises when judge questions witness . Judge will ask each juror if the verdict is their "final answer" v. Always bring someone else with you . a mistake in entering the verdict c.asking leading questions or trying to inspect their own thoughts . If court were to accept the affidavit. etc. Don't want to admit to being racist in front of people 2. you can call that person to the stand if you have to 2. RULE 603: Oath or Affirmation 1. While there is no federal rule. Dead Man's statutes 4. That way. Witness testifying inconsistent with what they told you 1.signed affidavit Juror as witness i.have to object (improper) Lawyers as witnesses i. Dissent (Justice Marshall) a. A juror's affidavit or evidence of any statement by the juror may not be received on a matter about which the juror would be precluded from testifying ii. extraneous prejudicial information ii.simply a solemn undertaking to tell the truth 3. outside influence iii.) 5. Witnesses should be testifying based on present knowledge and recollection of having perceived something Judges as witnesses i. Would accept juror intoxification as "outside influence" exception 4. 3. Polling the jury 1. Unless evidence is introduced sufficient to support personal knowledge Peacock's Tale i. Juror MAY testify to i. Never do it if you win but it would be a good idea if you lose 2. Court states that it is inside the deliberations and should not be brought in a. (b) Inquiry into validity of verdict or indictment a. A judge may be a competent witness but CANNOT preside over the trial if they are a witness 2.investigator/paralegal/etc. RULE 602: Lack of Personal Knowledge 1. Pre.

Facts in which the law are applied b. Manner in which interrogation should be conducted and proper extent are not susceptible of formulation in a Rule 1. RULE 601: General Rule of Competency 1. Per say rule: cannot have hypnotically refreshed evidence introduced in court b. Court determines certain facts of law without formal need for proof Types i. what. Witness can take the stand however the witness' credibility is put at issue when she takes the oath a.the Arkansas rule inappropriate though (straight up denial) Review on Competency i.remember and be able to communicate iv. Wife is accused of shooting her husband b. whether called by itself or by a party iii. Gun expert states that the particular gun that she had is prone to firing on its own 2. Objections: objections to calling or interrogation may be made at the time or earliest time when jury is not present iv. person interested in case is incompetent to testify against a decedent ii.VI. how of the given case a. 2. IX. Authority of the judge to question witnesses is also well established 2. the decedent would not be able to defend themselves/rebut Hypnotized Witness i. Interrogation by court: court may interrogate witnesses. when. Calling by court: court may. Definition i. Judicial notice results in this fact being true without formal presentation of evidence. Adjudicative facts 1. She cannot remember what happens but is hypnotized into recalling c. and all parties are entitled to cross-examine witnesses thus called ii.the gun just went off d. Every person is competent to be a witness with respect to an element of a claim or defense as to which state law supplies. call witnesses. Authority is abused when judge abandons his proper roll and assumes that of advocate 3. Facts in which the jury determines . Rock v. Who. Does not pass constitutional muster ii. Facts a. Hypnosis causes her to remember that she did not shoot him but it was an accident . SC reverse the trial court's denial of hypnotized testimony i. Rationale a. VIII. Competency is not saying that the witness is credible 1. September 01. Rock v. Bridge temporal gap . Doesn't say a state can't limit or exclude testimony .facts of the case which the trier of fact determines based upon the application of the given law c. 2010 12:54 AM Judicial Notice I. Arkansas Tanner v. You don’t have to delay attack on credibility RULE 614: calling and interrogation of Witnesses by Court i. VII. Week 2 Wednesday. on its own motion or at the suggestion of a party. Competency is determined by State Law v. Dead Man's Statutes i. Witnesses doesn't have to believe in God but must take an oath to tell the truth ii. II. Advisory committee note 1. US Lecture 4. Arkansas 1. It is a substitute for formal proof at the time of trial Page 9 of 58 . Witness must have personal knowledge (with few exceptions) iii.

NOT allowed ii. etc. Brown v. courts must look beyond the case and towards society ii. not fact i. Roe v. States that is a question of law. Board of Education: SC use of social science studies showing that segregation creates a feeling of inferiority 5. Page 10 of 58 . 201c: May be discretionary c. 201d: Mandatory: court shall take judicial notice if requested by a party and supplied the necessary information d. Reputable scientific studies are allowed to be judicially noticed Government of the Virgin Islands v. At the time.in order to make judgments on the law. A judge may only make opinions on matters of common knowledge or those that are "capable of immediate and accurate determination by resort to easily accessible sources of indisputable accuracy" 2. Formulation of a ruling principle or ruling by a judge in enactment of a legislative body 3. If judicial notice is taken on appeal. "a court may ascertain as it sees fit any fact that is merely a ground for laying down a rule of law" . a widespread and long continued belief concerning it is worthy of consideration" i. Washington Supreme Court states "to ascertain whether a rational relationship existed between the 21 year old drinking age and a legitimate state purpose. Trial judge states that while both jurors are credible. and the extent to which a special constitutional limitation goes is affected by the truth in respect to that fact. Examples a. day of the week. Wade: SC use of data related to mortality rates for early abortions b. To get around this rule. Issue: Is there a rational relationship between the drinking age of 21 and the purposes sought to be served? b. the trial court took judicial notice of the studies submitted to it by the state" c.III. Muller v. A juror (Cappin) had come up testifying that another (Foye) had spoken to her about the case 4. Scientific basis for accepted scientific tests (blood tests. Judicial notice was allowed 6. or after trial-appeal) e. Oregon a. Court holds a rational basis for an Oregon statute limiting the hours women can work in laundries and factories to 10 hrs a day b. you may try to argue that the facts are legislative instead of adjudicative fact b. Rule 201 DOES NOT APPLY 4. 201f: Opportunity to be heard f. Appeal stating that the verdict was not freely assented to by all the jurors 3. State a. goes around 201(g) . 3. assault and robbery 2. Without judicial notice of an adjudicative fact. Fact that has legal significance beyond the current case 2. Almanac type facts (when a full moon occurred. Facts relevant to legal reasoning a. A judge's personal knowledge (adjudicative fact) is not applicable for judicial notice 2. subjective knowledge 3. Rationale 1. Court states that it was improper for the judge to base his ruling on personal. 201g: Instructing jury i. Gereau i. Foye denies the claim . In a criminal case. FRE 201 . that fact MUST be proven in another way Facts capable of accurate and ready determination are acceptable a. 201e: Time of taking notice: can be taken at any stage of the proceeding (before. during. States "when a question of fact is debated and debatable.each juror's word against the other 5. In a civil case. Houser v.ONLY applies to adjudicative facts a.) b. jury must accept the fact as conclusive ii. D was found guilty of murder. there was a widespread social belief on the frailty of women c. etc) 4. Legislative facts 1. Facts 1. jury may but is not required to accept the fact as true 1. he was going to listen to Foye because of his personal knowledge ii.

facts or pronouncements that do not change from case to case but apply universally 1. 2010 9:00 AM Presumptions I. Is there a genuine issue of material fact for the jury to decide upon? v. In criminal case.one point of disagreement 1. Judge . not must."Rule 201(f).orchestrates the trial 1. Rationale 1. what. they still don't have a case 3. At least 2 parties iv. be accepted subjectively) v. Example: a gun is considered a dangerous weapon Minimum elements for trial i. Big difference between civil action and criminal cases a. At least 1 issue . vi. Ds were convicted of importation of cocaine 1. Burden of going forward (burden of production) 2. Jones i. Assuming that every material fact is true. D was convicted of illegally eavesdropping on his estranged wife 2. Court did not err on telling the jury they must find the facts to be true. authorizing judicial notice at the appellate level. Debate was over whether the court could tell the jury that they must accept the fact to be true 1. Whether the fact was adjudicative or legislative 2. it leaves no room for the jury to "pass upon facts which are judicially noticed" iii. Rule 201(f) states that judicial notice can be taken at any time in the trial court or on appeal 2. Week 3 Wednesday.a Schedule II drug accepted by the court on judicial notice of being a biproduct of the coca leaf ii.IV. Adjudicative facts are those developed in a particular case iv. A party cannot always be certain under 201 that judicial notice will be taken United States v. Gould i. Failure to state a claim 2. If it is more of a statement of law = legislative fact a. The product they brought in was "cocaine hydrochloride" . Appeal is not won because it was not prejudicial . Trial: evidence regarding disputed issues --> trail Lecture 5. Judicial notice on civil cases is conclusive b. If the question is something that the jury would have to decide (who. V. jury is not bound to accept the judicially noticed fact and may disregard it if they want to [201(e)] 3. Motion to dismiss 1. Courts state that legislative facts are established truths. Once the court states that the fact is legislative. Burden of Proof i. Partial summary judgment vi." United States v. must yield in the face of the express congressional intent manifested in 201(g) for criminal jury trials. If judicial notice is to be taken at the appellate level. September 08. rule 201 doesn't apply iii. May decide the facts if there is no jury ii. iii. Using the definitions. urging that judicial notice be taken by the appellate court ii. Prosecution goes first because it has the burden of production and persuasion Page 11 of 58 . Facts 1. P appealed. when.jury function iii. Trier of fact . 2 components 1. Burden of persuasion ii. VI. Holding: Affirmed . court find that the facts were legislative and 201g does not apply (adjudicative facts for criminal cases may.harmless error iv. where) = adjudicative fact (201 covers) 1. Called for an acquittal because the government failed to prove 1 element of the federal eavesdropping statute 3.

When the prosecution is done with the case. A properly mailed letter is presumed to have been received 1. FRE do not provide a list of presumptions Presumption Examples i.burden of going forward 1. Level of persuasion is instructed to the jury by the judge a. FRE 301 1. Does not shift the burden of persuasion 3. Case law iii. True production cannot be used to tamper with the burdens in a criminal case . Basic Fact: letter was properly mailed 2. the burden of establishing the non-existence of the presumed fact Sources of Presumptions i. we infer Fact B ii. IV. Prima facie "box" . if the party carries the burden of going forward on any given issue. Basic Fact | --> Presumed fact | Page 12 of 58 . Given Fact A. PF: dead Ways to attack a presumption i. Statutory ii. States that the prosecution failed to fulfill their burden of production 2. Satisfied if sufficient evidence is submitted to create a fact question so that the jury may determine this fact question v. State evidence code iv. BF: haven't heard from them in 7 years 2. judge needs to decide whether to grant or deny the motion for summary judgment iv. Factual inference . then that party must produce sufficient evidence to support a jury finding in its favor on this issue 3. V. Beyond a reasonable doubt Improper uses of Presumptions i. Jury decides whether or not they are persuaded 2. TRUE production actually shifts one of the burden from one party (who usually has the burden) to the other party v.have to plead with particularity because we don’t like these claims . Persuasion "box" . Basic fact --may be inferred--> inferred fact 2. BF -. Law: anyone under age of 7 cannot be prosecuted for a crime iv. A person not heard from in 7 years is presumed to be deceased 1. II.must be found in absence of sufficient rebutting evidence --> presumed fact ii. Failing to satisfy this burden will result in a motion to dismiss or a motion for directed verdict being granted 4. Preponderance of the evidence b. Presumed Fact: received iv. Under age 7 --> cannot be prosecuted 3.applies only to civil cases 4.this is NOT a presumption 1. At this point. there is a motion for direct verdict from the defense 1. It was raining on the day of the accident --: road condition slippery iii.make it more difficult to prove them and plead them c. Letter mailed --> presumed received iii. Imposes on the party against whom the presumption is directed the burden of going forward with evidence to rebut or meet the presumption 2. Rule of Law (conclusive Presumption) 1.iii. III. Basic fact --must be found--> presumed fact 2. Clear and convincing evidence i. Example: fraud claim . Judge determines whether there is enough evidence for a reasonable jury to decide one way or another 2. Presumptions effect opposing party.burden of persuasion 1.

XII. FRE 301 adopts this view. P injured in a car accident sues owner of the car 1. X. Presumption applies only if trier of fact finds the basic fact is established ii. Evidence Disputing Basic Fact i. Cogent and compelling evidence -reasonable jury could not find otherwise (presumption completely overcome) 2. Must place no burden of any kind on the D ii. the presumption disappears when sufficient evidence to raise a jury question is submitted a. Becomes a jury question if sufficient disputed evidence No Evidence Contesting the Presumed Fact i. courts will generally utilize the presumption that has the more significant public policy considerations Allowable Criminal Inference i. BF: ownership --> PF: agency 2. Allows (but doesn’t require)…. Since presumption shifts only the burden of going forward. Presumptions on matters not directly related to the issues of guilt are allowable. the presumed fact is established (assuming basic fact established) iv. Shifting the burden of this to the D would likely be improper v. The thing speak for themselves ii. If 2+ presumptions apply. P is required to prove each element of the charge. 1. The court in this case is required to instruct the jury that the presumed fact must be taken as established v. Under this view the possibility of establishing the presumed fact stays alive. Sufficiently fills out the prima facie fact box and gets you to trial Lecture 6. even in the presence of evidence that a reasonable jury could find that the presumed fact does not exist Conflicting presumptions i. CA: no such thing as a plain error rule 1. Bursting Bubble . you must make a timely objection or offer of proof a. XI.presumption is gone 1. In order to be successful on appeal. There is evidence disputing presumed fact . Evidence disputing presumed fact 1. 2010 8:27 AM I. permissive inference could be ignored by the jury Res ipsa loquiter i. In this situation. Merely a part of the prosecution's case. XIII. VIII. Gives more teeth to the presumption itself ii.it has shifted under FRE ii. Week 4 Monday. except where state law provides the rule of decision Example i. A presumption shifts the burden of persuasion to disprove the existence of the presumed fact 1. Evidence sufficient to raise jury question (different views) ii. Presumptions that shift the BoP to the D are not allowed in criminal cases iv. V Evidence disputing PF VII. Must be more than harmless error Page 13 of 58 . Presumptions that shift BoPr are not allowed. September 13."Morgan" View i. IX. iii.the presumption goes away Counterproof Sufficient to Raise Jury Question . The other side needs to "put up or shut up" iii. Eg presumption that D is competent to stand trail vi.V Evidence disputing BF VI. Other side has the burden of going forward . Review i. This distinguishes a presumption from a permissible inference If there is a dispute i.

the presumed fact is assumed to be true a. they have the risk of being dismissed a. Must present enough prima facie evidence to convince the judge b. Relevancy is not an inherent characteristic. The party wanting to take advantage of the presumption has the burden c. If I entrust to you my goods in good condition and get it back damaged (basic fact). Slight probative valude 3. but instead asserts a fact from which the trier of fact can infer an increased probability that the fact to be proven actually exists. Must repeat an objection unless there is a definitive ruling Presumptions i. FRE 401: relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would without the evidence 1. MATTERS whether we're in Morgan or Federal Jurisdiction a. III. Does the item of evidence tend to prove the matter sought to be proved? viii. If there was no presumption. Does not have to establish that a fact is more probable than not 4. Basic Fact: sudden violent death 2. vi. Presumed Fact: accident 3. Direct Evidence: Evidence which if the jury accepts as true or genuine. Broad standard 2. Evidence: marital problems. FRE 402: relevant evidence is generally admissible and irrelevant evidence is not ii. vii. They are trying to figure out whether it was an accident or a suicide b. Bursting bubble (federal view): presumption disappears when the party on whom the presumption is directed supplies enough evidence . General standard 1. If a true presumption is shifting something here. Burden of Proof . There is nothing wrong with circumstantial evidence to assist in providing prima facie evidence 2. MORGAN shifts the burden of persuasion to the other side and it does not shift back 5. Does not have to provide a sufficient basis for a jury determination of the case ix. True presumption actually shift something Relevance i. establishes the offered fact a. If presumed fact attacked then it matters which jurisdiction you are in iii. Circumstantial: evidence which does not assert or represent the actual fact to be proven. Problem 10B 1.inarticulate term that includes the burden of going forward and burden of persuasion 1. 4. then you must find for D i.it does not shift) e. the instruction would be that the P must prove by a preponderance of evidence (P still has burden . relevant evidence shall not be excluded in any criminal proceeding Page 14 of 58 . If a party carries the burden of going forward. there is risk of dismissal d. nasal hairs. Except as provided by statute hereafter enacted by a 2/3 vote. If you are under FRE. Circumstantial Evidence 1.burden of going forward is shifted ii. 2. a presumption does not exist because the basic fact is agreed upon ample circumstantial evidence to take case to the jury b. D has the risk of dismissal i. Evidence offered --> fact to be proven 2. If you can prove the basic fact. What is being disputed: disputing the presumed fact a. financial problems. Direct vs. it's your fault (presumed fact) b. Evidence that directly proves a fact and conclusively proves the fact b. Problem 10A 1. Not subject to detailed rules iv.II. Can't understand unless it is in context iii. etc. Morgan view: shifts burden of persuasion (and stays shifted) 3. Morgan: instruction would state that if D can prove by a preponderance of the evidence. If they provide no evidence. Anything that can help the jury decide that is not prejudicial v. Everyone is agreeing on the basic fact. CA: elevated the subject of evidence in a criminal case to a constitutional level as a result of enacting a truth-in-evidence clause as part of the CA State Constitution 1.

Every time we exclude evidence. notice Weighing evidence. Fact to be Proven: whether the speed remained cosntant or not a. There is going to be a weighing of probative value FRE 403: whether or not to exclude otherwise relevant evidence 1. September 14. Problems of relevancy call for an answer to a question whether an item of evidence. xiii. court evaluates how great the prejudice Step 2: court determines how important is the fact to be proved as it relates to the overall case Step 3: analyze whether there are alternate ways that are less prejudicial Step 4: wehther the issue to be proven is genuinely in dispute Step 5: whether a limiting jury instruction would be effective Consideration should be given to the probable effectiveness of a limiting instruction 1. doesn't matter if he fell in the same place 2. Unfair prejudice .the car could have slowed down by the time the car got 30 miles 2. Want the jury to assume that it was the boys' fault b. possesses sufficient probative value to justify receiving it in evidence 2. a witness saw a red car going at least 80mph a. Problem 2C: Flight and Guilt 1. confusion. ask yourself why Lecture 7. when tested by the process of legal reasoning. Do not have to prove for a fact that the boys DID do it . Probative value is "substantially outweighed" by: a. Needless cumulative evidence 2. Undue delay. Depends on many things such as terrain. All non-relevant evidence is not admissible 2. confusion. Probative value of evidence weighed against unfair prejudice. Admissible because it is evidence of condition. needless presentation of cumulative evidence c. waste of time e. Federal rules Problem 2B: Boys on the Bridge 1. xi. D wants to put in evidence that there were a group of boys running away from the bridge where a rock had fallen and caused damage a. For consciousness of guilt. Congressional statutes c. undue delay. xii.just has to tip it one way or another Problem 2A: Was He Going Too Fast? 1. Falling concrete is likely to be the result of pranksters 2. Confusion of the issues c. xv. Fact to be proven: does that mean he is guilty? a. xxii. Evidence offered: 30 miles previously. When should the judge use his discretion? a. xiv. etc. Err on the side of allowing more evidence in b. Although relevant. xviii. Week 4 Tuesday.NOTHING wrong with putting prejudicial evidence in but there is a difference between prejudicing and UNFAIRLY prejudicing the other side's evidence b. Driving speed is not a constant .x. Evidence Offered: the man ran 2. xvi. waste of time. Exclusions: a. etc i. 2010 10:52 PM Page 15 of 58 . xvii. evdience may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. US Constitution: evidence obtained by an illegal search and seizure b. All relevant evidence is admissible unless specified 1. Misleading the jury d. xix. determining sufficiency 1. No. misleading the jury. xx. can you infer that its guilt FOR the crime he is currently being accused of or is it cause he has a checkered past? Problem 2D: Too much wax on the floor? 1. xxi. Misleading relevant evidence can be admissible as long as there is a high probative value Step 1: Court evaluates the extent of the probative value.

but it is up to the discretion of the court to weigh its value over possible prejudice. evidence does not need to be in dispute under FRE (in CA. 1103 (witness' character before they bring it up). should it be excluded? 1. US . confusion. Relevancy is miniscule at best. II. then the pictures would be allowed. or by considerations of undue delay. the alternative should be used Page 16 of 58 . relevant evidence may be inadmissible if it is unfairly prejudicial (if its prejudicial effects out way its usefulness) ii. best evidence rule. Lots of discretion is afforded to trial judges in regard to this rule ii. D appeals stating that the pictures were irrelevant to the case. General rule is that if an alternative is found to have substantially the same or greater probative value and a lower danger of unfair prejudice. Rationale continues that P's offer to stipulate to the conviction in exchange for not telling the jury why he was previously convicted is less prejudicial with comparable relevancy weight. Issue: should these photos be allowed in evidence? iv. In order to be relevant. section 352 (equivalent to FRE 403). He contends that his past crimes should not be disclosed to the court because simply stating that he is a felon would establish that he violated the statute. CA constitution can only be changed by a 2/3 vote iii. 1. Privileges and hearsay still stands. You must make the best argument you can of why this limiting instruction isn't enough to overcome the unfair prejudice vii. Relevant evidence shall not be excluded in any criminal proceeding iv. Instead. needless presentation of cumulative evidence iii. Courts love giving these 2. 2 witnesses involved in the drug transaction pointed D out as the murder. Rationale: pictures are usually found to be relevant to a case.whether D is the actual murderer. iii. dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior. he offers to stipulate to being a felon. Whether the D was the killer ii. Old Chief v. Chapple i.it must be unfairly prejudicial v.regardless of relevancy. Does not look at 1101 (character is not utilized unless you meet certain exceptions) Example: Murder Case i. According to Rule 403. It is relevant to the case 2.I. Gruesome pictures of the victim and fatal wound were presented to the jury. Prosecution offers enlarged photographs of the deceased bodies depicting multiple stab wounds iii. Evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice. rights of the press and US constitution. Unfair prejudice: playing on the emotions of the jury . III. 3. waste of time. Old Chief v. 782 (FRE 412). Court holds however that the prosecutor's need for evidentiary depth has virtually no application when the point at issue is a defendant's legal status.they're going to want to punish someone for this happening but the only person they have to point fingers at is D. Had the question been about how the victim was killed.example of the 2-prong test i. Old Chief v. especially a criminal case. V. 2. Holding: picture was unduly prejudicial and not relevant to the question at hand . misleading the jury. Rule 403 i. IV. (2) weigh its relevance against the danger of prejudice v. This is merely used to incite the jury without having a bearing to prove a contested issue. 4. Amended the CA Constitution providing a provision in the Constitution regarding a "right to truth and evidence" ii. it must be) vi. Evidence needs to be more than prejudicial . He claims that he was out of the state at the time. Two-prong test: (1) determine if the evidence is relevant. US (II) . Rationale states that the prosecution should be able to prove their case the way they see fit. US (I) . Facts: D is accused of 1st-degree murder. Must determine for yourself first if the probative value is high or low 1. Tries to give power to the trial judge Proposition 8 (California) i. Arguments 1. Facts: P was convicted of being a felon in possession of an illegal firearm. Judges usually determine this themselves but you should be comfortable calling it out and explaining why it should be excluded iv.determine relevancy 1. 2. ii. There may be less prejudicial methods to get the same evidence in State v. iv. Limiting instructions 1.

Court decides preliminary issues 2. wife sought refuge at the battered women's shelter be allowed? ii.there is no proof that she went to the shelter because she was fearful and battered . Court alone decides whether evidence has endency to make issue more or less probable . the court shall admit it 1. Both judge and jury have a role in this 3.he has a violent temper . Simple relevance b. Is this relevant/allowed? 2. Week 5 Monday. 104(d) 1. iii. iii. Similar to rule 103(c) iv. Should evidence that. Mathematician is called to the stand to be an expert witness for a mugging case . that doesn't prove that he beat her on this occasion iv. 2 years earlier. c. jury" ii. the item is admitted. 2010 8:26 AM I. the jury makes this determination under 104(b) 5. The judge makes a preliminary determination whether the foundation evidence is sufficient to support a finding of fulfillment of the condition.even if she did. Character traits: 404(a). Court here does not make a determination as to the reliability or credibility of eyewitness. Example: a. Example: he beats his wife . 405 Page 17 of 58 . become subject to cross-examination as to other issues in the case People v."you're dumb if you don't find this to be true. as provided… 6. Lots of inferential leaps . September 20. Alger Hiss: called witnesses to the stand to testify to his moral character that he did not lie to Congress 1. not very probative Rule 104 i. Collins (skim .probability is not evidence Lecture 8. jury weighs ii. If preliminary questions of conditional relevancy were determined solely by the judge. Court is gatekeeper 4.are the actual muggers iii. Problem 2-E: Battered Wife i. Relevancy: judge and jury both have a role 3. The accused does not. it is unfairly prejudicial. VIII.therefore. Sought to establish that there is an "overwhelming probability" that these 2 people .blonde woman with a ponytail driven away by a black man .to all it into evidence to begin with a. Conditioned on a fact 2.not all that important) i. After evidence is allowed. Hearings on the admissibility of confession shall be conducted out of earshot of the jury 2. Court threw out this evidence . Conditional relevance: Relevance of defendant owning these articles hinges upon the testimony from the eyewitness. 104(c): hearing of jury 1. Wife "fell" on a knife and died. Juries may misuse evidence and put too much weight on evidence that may not be entirely relevant 1. 104(b): when the relevancy of evidence depends upon the fulfillment of a condition of fact. Preliminary fact ("I saw a man running from the bank wearing a blue shirt and white jeans") --> Defendant owned a blue shirt/white jeans b. Even if it is relevant. Judge merely screens this evidence to see if a reasonable jury would be able to come to a conclusion with this fact 4. May show motive and intent. Fact to be proven: he is being honest today ii.VI. past history iii. If so. by testifying upon a prelim matter. he killed X. VII. 104(a) 1. Instead. Evidence offered: he is an honest person 3. Character Evidence i.

If you determine that the trait is not an essential element. or defense a. When is the character trait evidnce first raised when it deals with an essential element: depends on whether the element is part of the P's case or D's case 12. Method used to prove the character trait a. Applicable in both criminal and civil cases b. Example: criminal charge of felon in possession (not true . Determine whether civil or criminal case 1. Steps i. Character of accused 404(a)(1) and character of victim 404(a)(2) 3. May be raised when it is appropriate to prove the essential element c.what could his life had been 8.She's a Known Thief a. Employment litigation 11. 608. Child Custody Dispute: character and or fitness of each parent 7. then it will fall in the category of circumstantial evidence 2. specific acts NOT allowed Page 18 of 58 . ix. Opinion 608a iii. vii. vi. Reputation testimony. In other words. Examples: chastity of a woman. Wrongful death: character of the deceased . Any time you take the witness stand. Character of accused/victim b. 609 i. viii.iv. not that she has a reputation Circumstantial evidence (404a) 1. All three types of character proof allowed (reputation. PROBLEM 5E . 2 forms a. Reputation testimony: "are you aware of John Doe's reputation for violence?" c. Subsequent remedial measures: 407 Character means a person's disposition or propensity to engage or not engage in various forms of conduct Determine: 1. NOT allowed because she didn't bring it up first . Negligent Entrustment claim: character of that 3rd party is a direct element of the P's case 9. Determine the actual elements of the claim or dense 3. civil) Essential element evidence (405b) 1. Character or trait of character evidence is allowed to prove an essential element of a charge. Impeachment of witness i. They're suppose to prove that she DID steal. v. Criminal: admissible only under 1. Analyze to see if character is actually one… 4. circumstantial) 3. the evidence is offered to prove that the person… 3. Proof of felon status. Purpose why the character evidence is offered (essential element v. Conviction of crime evidence 609 f. Other Acts 404(b) Habit: 406 Exclusions for Policy Reasons 1. opinion. Each must have a foundation 2. you put your credibility at issue c. Proof allowed: 1. Allowed in civil and criminal cases e. Defamation 10. Specific act 608b iv. opinion testimony. Opinion Testimony: "in your opinion. Type of case (criminal vs. no character) 6. Proof only as allowed under 608.character is not really an element of the criminal charge. Rules 607. Suggesting an inference that the person acted consistently with his character 4. In a civil case: not admissible 2. x. Security guard wanted to testify that she has a reputation as a thief among the security crew i. 5. Reputation evidence 608a ii. specific acts) 2. 609 d. is John Doe a violent individual?" i. specific element of entrapment dense. plan. Specific acts: "did John Doe hit his wife at the local bar last year?" b.this is a criminal case and it would be improper to use ii.

You can ask specific acts 2. or evidence of a character trait of peacefulness of the alleged victim offered by the prosecution in a homicide case to rebut evidence that the alleged victim was the first aggressor Summing up i. b. if the D puts in evidence that the victim was the first aggressor. may the prosecution rebut such evidence iii. In a homicide case.who threw the first punch? ii. Example: murder case ." Accordingly. Rule 404a talks about "pertinent trait of character. Linkage does NOT go the other way 2. or by the prosecution to rebut the same. the prosecution can call a witness in under 404a1 1. The rules are drafted in a way that indicated that if the criminal accused attacks the character of the victim and gets in in under 404a2. D can bring this in but it is not without risk . Murder case: character trait evidence of peacefulness because this is pertinent iii. In cases in which character or a trait of character of a person is an essential element of a charge. Pertinent trait 1.II. evidence of a PERTINENT TRAIT of character offered by an accused. Only after defendant presents character trait evidence in a criminal case. 404a2: criminal accused calls a witness on victim's character 4. If it is a non-homicide case and the D testified that the victim first attacked him. Character of accused: in a CRIMINAL CASE. In a CRIMNAL CASE. As soon as D raises character. 1. D has a choice whether to initiate this type of evidence. V. then the prosecution can rebut such evidence by utilizing the character trait of peacefulness of the victim 2. or if evidence of a trait…etc. it is required that the type of character evidence offered must relate to the type of crime to which defendant is being accused ii. Homicide exception 1. that does not sufficiently raise the character trait of the victim and therefore does not allow character evidence under 404a2 Problem 5B: Red Dog Saloon (Part 2) 5. Page 19 of 58 . and subject to the limitations imposed by Rule 412.prosecution can rebut same AND prosecution can attack the credibility of the witness on the witness stand 1. D John can call a witness to testify that D has a reputation for a peaceable disposition Rule 405(b): Specific instances of conduct i.prosecution can only rebut iv. If you bring character witnesses. Example: John hit Steve in the face. claim. is the prosecutor allowed to introduce contrary character trait evidence Problem 5A: Fight in the Red Dog Saloon i.assault iii. 404a1 and 2 limit the use of character evidence to a pertinent trait 2. only after the D has first presented character trait evidence as it relates to the victim of the crime. Example: a.when might the prosecution can call a character witness to the stand? i. IV. Who initiates circumstantial character trait evidence in a criminal case? 1. Defendant makes this decision 2. VII. P cannot use in their case in chief xi. it better be damn advantageous because you're opening the door Character of accused/victim i. RULE 404a2 a. or by the prosecution to rebut the same. VI. except in certain homicide situations ii. Generally. Criminal case . 404a1: criminal accused calls a witness on his character 3. proof may also be made of specific instances of that person's conduct Character of Victim 404a2 i. evidence of a pertinent trait of character of the alleged victim of the crim offered by an accused. RULE 404(a)(1) a. III. 404a prevents this from coming in by the prosecution . P can rebut the same ii.character trait evidence of honesty because this is pertinent b. Embezzlement case . Prosecutor charges John with battery. or defense. Bar fight .

Airforce base . Evidence offered: victim was a virgin 2. He said they had sex before: this is relevant [404(a)(2)] and admissible. Exclusions 403-404 iii.avoid embarrassment.met at bar. encourage victim to report. Rule 413: 1. 2010 8:02 PM I. admissible 1. Victim works occasionally as an exotic dancer 2. Another witness testifies that she is an "easy mark" and sexually active: this is character evidence against the victim brought upon by the prosecution i. This is relevant but does the rule prevent it from coming in? a. If the rules allow the P to make the argument that "he did it in the past so he did it in the present" . Another witness testifies that he had had sex with her earlier that night: admissible because it could be the other man's DNA but it must be a fact in dispute . injury. Rests on policy reason .Lecture 9. Dresses provocatively 3. If its relevant. Week 5 Tuesday. Serve the motion 3. Sexual behavior or sexual predisposition of any alleged victim is admissible 2. NOT letting it in like 403 iii. Fact to be proven: she was raped 3. They went to a secluded place where they began to fool around. Sexual predisposition . Problem 5J 1. D can bring this up c. Procedure 1. Rule 412 a. Sexual predisposition c. This errs on the side of pushing the evidence out. In a criminal case where D is accused of sexual assault. Rape shield statute: should not bring the sexual history of the victim into evidence 2. Only admissible if the probative value substantially outweighs the danger of harm to any victim and of unfair prejudice 3. Page 20 of 58 . 404(a)(2) . or other physical evidence 2.letter of the law says it's not admissible but it doesn’t cover the general policy that the law was created to protect vii. September 21. Character Evidence i. Engaged in other sexual behavior ii. Evidence generally inadmissible i. Broad relevancy standard 401-402 ii. it's going to come in based on 403 Problem 5K i. Civil case 1. She told him to stop when he went below the waist. Exceptions i. b. 412 does not prevent this because it is sexual activity between the victim and accused. evidence of D's commission of another offense may be considered 2. judges can't be trusted to make the right decision b.prejudicial but not unfairly so 3. Tells detailed stories of her sexual experiences II. Hypothetical 1. 1.victim AND other side 2. Should we protect victim in sexual assault case? 1.14 days before trial . Man said she had consented a. Sorority girl alleges that she was raped. Court must conduct a hearing in camera and give victim and parties a right to attend and be heard v.cannot backdoor in sexual predisposition vi. Criminal case. She tried to run but he grabbed her and raped her. Rule specifically states: "in a criminal case and subject to the limitations imposed by Rule 412" iv. Sexual behavior by he alleged victim with respect to the person accused ii. File a written motion .D can bring up character first 1. Evidence of specific sexual behavior to prove that a person other than the accused was the source of semen.

Makes sexually explicit remarks to men ii. Lets you use reputation and criminal character. Flowchart i. wrongs. VII. X. proof may be made by testimony as to reputation or by testimony in the form of an opinion. and general propensity ii. or acts not admissible to prove the character. wrongs. and so on. An appropriate logical connection between the evidence offered iii. Relevant yes but not admissible. VI. Used to show intent. 404(b) does not mandate a similar conduct/similar circumstances requirement 1. Reitered admonition RULE 404(A) i. What else if not general propensity? iv.not an offense of previous sexual assault. D wants to put in evidence that decedent was a "good and careful driver" in order to prove that he could not have been the cause of the accident. XI. Admissible for other purposes i. Criminal case. No. Not limited to listed categories ii. September 27. the prior acts must involve similar conduct commited under similar types of circumstances 2. Court screens. the evidence may be offered for another purpose.his general trait is carefulness. 2010 12:10 AM I. Pretrail notice requirement Rule 404: other crimes. Instructed the jury ii. VIII. which does not fall within the prohibition iii. Standard is by a preponderance of evidence to show the propensity Problem handout i. 2. This could technically be habit also because it may account to a person's regular practice of responding to a particular situation with a specific type of conduct . On cross. used for general propensity? iii. IX. not evidence of habit.can only use on rebuttal. NOT prior acts RULE 405: reputation or opinion i. P claims that this is character evidence. The determination must be made whether the danger of undue prejudice outweighs the probative value of the evidence under rule 403 iv. No.III. Allowed Problem 5G: "He Came Running in All Hunched Over" Lecture 10. The evidence that he is a good driver is a general description of a person's disposition . 4. inquiry is allowable into relevant specific instances of conduct Problem 5F: Drug Sale or Scam? i. In all cases in which evidence of character or a trait of character of a person is admissible.he is careful when he drives. Page 21 of 58 . V. Problem 5M: Death on the Highway 1. Essential evidnece? ii. such as proof of motive. Burden of persuasion is on the proponent of the evidence 1. opportunity. jury determines Virgin Islands Bank Robbery i. Limited purpose iii. but consensual ii. Does it show intent? RULES: 404(b) . Evidence of other crimes. IV. Homework Problems i. knowledge and identity. Week 6 Monday. or acts is not admissible to prove character as a basis for suggesting the inference that conduct on a particular occasion was in conformity with it ii. this information would not be admissible under 404(a) .prior acts i. Prosecution wants Smith to testify that D made prior drug deals to show intent. However. Prosecution cannot bring forward character evidence . Preponderance of evidence 2. NOT for motive 3.

you're bad on the day in question 2. The chemical company is sued for products liability and they counter stating that worker was negligent.it would rise to the level of habit ii. 2. Distinguish between character evidence a. Character: generalized characteristic of a person's personality b. If the testimony stated that he "always" or "routinely" did this. The can exploded injuring him. 2. The herbicide was created by Cheron Chemical Company.Relevacy and its Limits I. offer suggestions. 404(b) does not mandate that it must be a criminal or "bad act" vi. Exception: in sexual assault and child molestation. 403 still applies to 404(b) . S tells F "Don't worry.he has always used this method when he was having trouble with the chemical. He can be careful in all aspects of his life including handling an automobile but that doesn’t mean that he's always careful. Therefore. Habit: regular response to a repeated situation .II. he could have a plan to not pay his taxes again. ~~~ Class Notes . McDonald i. All he does is accept the complaints and passes them to the company. It should be left up to the judge to decide if this is relevant and taken to the jury iii. 4. S tells F that the company will back up its product. it would be sufficient. The last statement S made regarding billing Cheron may be considered an acceptance of guilt and an offer to settle but it would depend on the amounts offered and accepted. Court states that subsequent remedial measures is not sufficient evidence to prove culpability 1. In my opinion. X did not pay his taxes. ii. he purposefully did not pay his taxes. and process complaints. Medical malpractice suit where decedent died because of a heart attack due to being taken off of anticoagulants prior to a surgery that was delayed ii. Hospital changed their practice of removing surgery patients off anticoagulants a day before surgery to right before surgery iii. You must show that this is a particular intersection that he goes over all the time and takes the same safety precautions every day. 404(a)(2)] 3. S tells F "You just tell us the damages you're claiming. Problem 5N: The Exploding Can 1. Tuer v. After plants begin to show damage. Overview i. Salesman sold herbicide to farmer. If not used as an essential element or general propensity. opportunity. Witness states that he has often seen worker use this method. 5 years ago. If you are a bad person before. All relevant evidence is admissible unless otherwise excluded (Rule 402) iii. it should not be admitted because it speaks more to a person's character that he is a careful driver. This evidence should be admissible because it is a habit . Problem 5P: Two Potato. Rule 403 (VERY IMPORTANT) v.e.cannot be unduly prejudicial c. This does not speak to his character but to a routine that he always uses in order to solve this particular problem. Worker was injured when he heated up a can in order to inject a chemical into a car. There must be a link to show overall plan/scheme i. Habit Evidence 1. Public policy would want to encourage business to fix what they knew was wrong without worrying about lawsuits 3. D makes the decision b. Often time used by Prosecutor in a criminal case b. however. Relevant Evidence: anything that makes facts more or less probable (Rule 401) ii. Rule 404: character evidence is relevant 1. One Potato 1. We'll take care of you. The statements should be allowed into court because they are not settlement offers or offers made during negotiations. Conduct is not an admission of wrongdoing 2. can be used for intent. motive . 3. The company employed S to deal with customers. i. Often may not be enough. 3. and we'll bill Cheron." Cheron refuses to pay claiming that S's statements were settlement offers and cannot be brought to court. General rule: exclude all character evidence from trial a." At the next complaint.semi-automatic Page 22 of 58 . No where in the conversations does S accept blame for the deficient plant growth. it is no longer the D's choice [404(a)(1). Underlying Policy iv. knowledge.Prior Acts [Rule 404(b)] a.

a defect in a product's design. Bring it up first and spin it in your own favor iii. Rule 411: Liability Insurance 1.if they were mandated by some authority to fix it. Evidence of the following is not admissible a. 4. or a need for a warning 2. (b) Scope of cross-examination a. it is admissible (since it would not discourage people to fix mistakes because they have to anyway) 6. a. Not admissible: to prove negligence. 403 is still available here . control. Evidence of (1) furnishing or offering or promising to furnish or (2) accepting or offering or promising to accept.II.if this information was admissible. 5. Rule 409: payment of medical and similar expenses 1. Opens up the door to allow all kinds of things to come into evidence 5. Rule 408 . Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. It is not admissible to prove negligence. Traditional rule against impeaching one's own witness is abandoned as based on false premises 3. A person who has already lied under oath a. Still competent b. a defect in a product. Admissible: to prove ownership. Filing a lawsuit is not required but there must be some expressed/implied intention to dispute the claim 3. 7. Habit under Rule 406 is freely admitted Is there something that takes an act from mere character and rises it to habit? Rule 406: habit of a person or of the routine practice of an organization is relevant to prove the conduct is in conformity with the habit or routine practice vii. Rule 611: Mode and Order of Interrogation and Presentation 1. Plea of guilty which was later withdrawn b. Evidence promising to pay medical not admissible xi. Does not apply if no dispute 2. Can impeach on direct and cross-examination 4. Any statement made in the course of plea discussions with an attorney for the prosecuting authority 3. Prior to the 'event' do not fall within the exclusionary scope 8. Admissible in any proceeding where another statement made in the course of the same plea has been introduced and the statement ought in fairness be considered contemporaneously with it or in a criminal proceeding for perjury 4. or if used for impeachment 3. Evidence that a person was or was not insured against liability is not admissible 2. a valuable consideration in compromising or attempting to compromise a claim which was disputed as to either validity or amount is not admissible ix. Habit evidence is highly persuasive as proof of conduct on a particular occasion. Does not require the exclusion of evidence of insurance against liability when offered for another purpose xii. Applies if there is a claim that is disputed as to either validity or amount a. Abolish "voucher rule" 2. or feasibility (if controverted). Danger of prejudice or confusion substantially outweigh the probative value of the evidence viii. 3.similar to 408 for criminal cases 1. 407 applies only to measures taken voluntarily . When you take the witness stand. Rule 410 . RULE: after an injury or harm. culpable conduct. ii. Exclusion rests on a social policy to encouraging added safety 4. Purpose is to allow for significant confidentiality of statements in course of negotiating a plea 2. Rule 607: Who May Impeach 1.cannot be unduly prejudicial 5.Compromise and Offers to Compromise 1. people would never fix anything they knew was wrong in fear that they would be sued. Page 23 of 58 . Subsequent remedial measures may be admissible 9. measures are taken would have made the injury or harm less likely to occur. Does not require the exclusion offered for another purpose. Tries to promote the public policy to improve/fix what's broken . you put your credibility on the line a. Plea of nolo contendere c. Subsequent Remedial Measures (Rule 407) 1. All relevant evidence is admissible unless otherwise excluded Impeachment i. Statement made in the course of any proceeding under Rule 11 of the FRC x. Categories of impeachment 2.

Mills planned to testify that E admitted he intended to implicate A falsely 3. 2010 11:32 PM Homework Notes I. Impeachment i.iv. interest and corruption 5. 607: abolishes "voucher rule" 2. prejudice. Bias. D objects stating that the $1600 should be sufficient to answer any questions. 609: use of prior criminal conviction 5. Prior criminal conviction 6. Problem 8A: The Hired Gun i. but open Page 24 of 58 . Non-Collateral: evidence that has important independent significance. 608b: use of prior non-conviction acts bearing on truthfulness/untruthfulness 4. Criminal case (character of defendant). Non-collateral: if denied. Highly probative to show his bias ~~~ I. corruption ii. "no". Prior non-conviction acts bearing on truthfulness/untruthfulness 7. 1. 608a: use of opinion and/or reputation character evidence 3. addresses use of prior inconsistent statements Impeachment tries to show that the witness should not believed because of their failings (categories of impeachment) Distinguishing between Collateral Evidence and Non-Collateral Evidence 1.bridge of the temporal gap between time past and time present 3. "oh really?? Here's proof" b. interest. 1. vii. Perception/personal knowledge 2. Mental capacity 4. vi. Opinion and/or reputation evidence of character 9. criminal case (character of victim). Collateral: you cannot prove it up even though you're sitting there with all the evidence you can to prove the person lied on their resume 2. prejudice. v. Memory . "did you X". P is attempting to ask the EW how much he expects to be paid total. a. Door is not WIDE open. 404(a) provides the exceptions for when character is utilized 1. Prosecutor wanted to discredit Mills by getting E to admit that he and Mills were members of a gang 4. they subject themselves to being impeached i. 610: prohibits credibility impeachment by use of religious beliefs or opinion 6. 613: in part. Indication of a high salary and continuous employment may be enough to bias the witness in GM's favor. Once the criminal accused takes the witness stand. GM hires an expert witness at $1600 per day. Bias. 404(a)(3): as soon as you take the witness stand. Prior inconsistent statement 8. Contradiction Rules 1. Using character traits to show that the witness should not be believed b. You can "prove up" non-collateral evidence US v. if he'd been hired by GM previously. Collateral v. Week 6 Tuesday. and evidence of character of a witness 2. Impeachment by showing bias or corruption is admissible Lecture 11. The judge should rule for P. Collateral: evidence that has no important independent significance. if he expects to be hired from GM again. You cannot "prove up" collateral evidence if denied 2. you can prove it up. Abel 1. Non-collateral 1. ii. September 28. The jury already knows that he is being paid a lot of money for his expertise however a show of continued service towards the GM may be prejudicial but not unduly so. you put your character at risk a. Abel and Elhe are indicted for robbing an S&L 2.

Page 25 of 58 . Applies to ANY witness.evidence NOT involving dishonesty or false statements a. and d d. No: threat has no bearing on being truthful or untruthful c. including a criminal defendant d. Rule 608(b) . Impeachment by evidence of conviction of crime (rule 609) 1. Must be a felony iii. Collateral if they deny it Prior Criminal Conviction i. Yes: object of a threat is truthfulness/untruthfulness d. Sale of drugs iv. All other evidence of conviction of crime . and d c.no other witnesses are given this standard b.may not be proved by extrinsic evidence vi. A good faith basis to ask the question exists v. iii. Crime MUST be a felony iii.err on the side of not allowing ii. you are not competent to testify ii. US v.e.II. Manske 1. and d still apply v.err on the side of allowing ii. If Susan takes the stand. if it can be readily determined that establishing the element of the crime required proof or admission of an act of dishonesty or false statement by the witness i. Yes: threatening other people shows that the witness would do anything to get the truth out b. Intentional misconduct that encompassed deception (i. Arson e. Manske wants to cross-examine the witnesses regarding threats they made against 5 other people 2. RULE 608 (example: lying on a resume) 1. highly probative c. c. Determines probative value of admitting this evidence outweighs its prejudicial effect to the accused . 609(a)(1): evidence that a witness other than an accused i. etc). Look at elements of the crime . Shall . Murder ii. COLLATERAL EVIDENCE .can she call someone to take the stand to testify that she is a peaceful person? What if she takes the stand herself saying "I did not do this". Used on cross-examination iii. Assault iii. Still subject to limitations of b. c. Limitations found in 609b. Relevant to show your veracity on the witness stand iii. Relevant b. it falls under 609a2 iii. They may be inquired into on cross-examination of the witness (1) character for truthfulness or untruthfulness (2) character the witness being cross-examined iv. Only for the criminal accused . Example: Susan is on trial for assault . 609(a)(1): Evidence that an accused has been convicted i. Should this be allowed? a.takes away discretion from Rule 403 .prior non-conviction acts bearing on truthfulness i. False testimony/statements ii. Lying on applications/forms iii. she has opened up her character for telling the truth.c. Trial court must exercise its discretion and allow such evidence ii. Still subject to b. If they lied in the past and convicted. Allowed for a traditional Rule 403 determination . 609(a)(2): evidence that any witness has been convicted of a crime shall be admitted regardless of the punishment (can be misdemeanor or felony. Can assist is showing that the witness is lying today 2. No: standard is too broad e. Evidence that a witness was convicted for a crime of violence is NOT admissible i. fraudulent misrepresentations) 2. Murder does not count ii. Concerns character of truthfulness or untruthfulness iv.if one is dishonesty. Should this be allowed? a. Common law: if you were convicted of a felony. Sexual crimes v. Removes limitations that the conviction may only be elicited during cross-examination ii.REQUIRED admissibility iv. Evidence of conviction of crime involving dishonesty or false statement a. Admissible i.

testify and impeached 4. Page 26 of 58 . Crime similar to charged offense . Start with 609a2 . D loses motion in limine to prevent evidence of prior conviction from being allowed and D decides not to testify 2. Next.Hit the Deck i. Ask the witness . i. To preserve for appeal. more likely to come in) a.who is the person on the stand? If it is the criminal accused. annulment or certification of rehabilitation a. Balancing: nature of crime (more probative to show lack of veracity. All felonies are probative of credibility to some degree NOT trying to give extra protection to civil defendants . Prior criminal convictions are relevant to showing lack of credibility ii. Recentness.ONLY criminal Lecture 12.evidence of pendency of an appeal is admissible US v. Finding of innocence 3. whichever is the later date UNLESS probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect c. 609(d): juvenile adjudications a.if they deny it. 609(b): time limit a. Burden is on prosecution 5. Person has NOT been convicted of subsequent crime c. is it a felony? 1. October 04.iv. you're allowed to prove it up if it is collateral evidence (NOT non-collateral) d.conviction took place 15 years ago (10 years in prison) limitation does NOT apply b. Aside from some exceptions. not timely. 609(c): effect of pardon. Should there be an objection? 609a1 . Not admissible other than the person accused 4. etc. annulment.is this an impeachment of a witness of a prior conviction that deals with the element of truthfulness? 1. Rule governs admissibility iii. Rule 609: Impeachment by Evidence of Conviction of Crime i. Not admissible if conviction subject to pardon. 2010 8:27 AM I. D is put at risk not only at evidence of their own conviction but also for calling a witness to the stand who has a conviction a. Probation: similar to confinement? i. Limitations 1. "birds of a feather flock together" 6. What if probation has been revoked and you go back to jail? 2. Lipscomb 1. 609a1 .used only for impeachment because it can cause unfair prejudice c.each witnesses have prior criminal convictions that may be used to impeach their credibility ii. Person is convicted of felony perjury . Can be used in direct. v. Bank robbery . this information will come in regardless of misdemeanor or felony 2. Condemns where the crime is committed Problem 8B . Week 7 Monday. or equivalent based on finding of rehab b.doesn’t involve truthfulness. certification of rehab. have to testify but didn’t want to be impeached 3. vi. Elmo: witness for prosecution 1. Does not matter if it is the person accused iv. Cases that can show the sentence (prof thinks this was wrongly decided) i. Not admissible if a period of more than ten years has elapsed since the date of conviction or the release of the witness from confinement. not the person accused II. remoteness b. 609(e): pendency of appeal: does not render evidence of a conviction inadmissible . Alibi witness .

609a2 iii.character evidence is not admissible for the purpose of proving that the person acted in conformity ii.those who play together.have to look at what is mandated to be proven . must be felony iv. Just because you can object doesn’t mean you should Problem 8C . Court allowed WAY too much detail outside of proper balance 5. Dave is on trial for Sarah's murder 1.should be included even though it is a misdemeanor where a 3rd party witness is being impeached vii. V. the defense will start to call witnesses and possibly the person accused himself. Fred's misdemeanor conviction for false statement 1. Dave's first criminal conviction for embezzlement (13 years) . 403 standard used . VI. 2nd criminal conviction for embezzlement . Misdemeanor conviction 6 years ago for petit theft 1. If you do a great job. Judge is wrong .it doesn’t matter if it’s the criminal accused being impeached 3. This cannot be brought in because 404(a) . Exceptions (rule 608) develops the exceptions 1. No. Spillover argument vi. 1. rob together . SC says if he wants to preserve issue for appeal. Puts the criminal accused in a difficult position a.trial judge excluded the evidence 1. Luce was on trial for drug charges .character evidence of violence . If you cannot bring in the conviction of your witness. Misdemeanor conviction 9 years ago for displaying a false handicapped symbol 1. Prior conviction for aggravated battery 1. you will lose against impeaching other witnesses i. 609a2 ii. has to take the witness stand and be impeached. Balancing test . Farr: witness for defense 1. Someone else . you will not be able to bring the conviction of other witnesses iii. but then you don't preserve on appeal Example Problem i. 404a .not properly used (wrong standard) v. Want trial judge to decide these things in limine ahead of time 2. Felony conviction 8 years ago of "misleading conduct towards another" with intent to "cause or induce" her to "be absent from an official proceeding" 1. 609a2 . Probably a1 vi.correct standard used 4. Criminal accused 2. Felony 3. Criminal case 2. Page 27 of 58 .not facts of crime Luce v.III. 609a2 crime . Can bring it out ahead of time on direct. Only opinion/reputations evidence is allowed 2. Evidence must refer only to character for truthfulness or untruthfulness 3.cannot do this Additional Areas of Impeachment i. Felony 3. US i.if you win one on. Sam gives testimony that Dave is a "very violent person" 1. 609a2 crime 2. Each witness puts their credibility at issue ii. IV. Criminal case 2. A1 .A history of Lying i.should use the 403 standard .trial judge excluded 1. Cannot use evidence of truthful character until your witness' veracity has first been attacked by opinion or reputation evidence a.files motion ahead of time to figure out if prosecution is going to try to impeach him with previous criminal convictions.does not come in because it was over 10 years ago iii. you'll win of them all ii. Should be let in because it is within the time limit (less than 10 years since being confined) iv. Yes a2 v.they are friends 2. 609a1 crime 2. Fred's prior conviction for aggravated battery 1.11 years ago (served 5 years) . Spill over of unfair prejudice .

608b2 . Instead of bringing the shirt in. NO iii. Pre arrest. Police gets statements that are contrary to Miranda rights .VII. Can H now call Connie as a witness to testify to Holly's reputation for truthfulness? 1. o What counts as "writing"? o The court held that the Best Evidence Rule did not apply to the shirt/laundry tag because it is an inscribed chattel. it is collateral and cannot be proved up 6. Yes . Yes .not a pertinent trait iv. Extrinsic evidence . o This violates the best evidence rule . Can prosecutor call a witness to testify to H's reputation? 1. but on request the same shall be shown or disclosed to opposing counsel 2. it should be reversed. XI. No . United States v. IX.608b2 vi. Credibility of witness may be attached in the form of opinion or reputation a. He is attempting to claim that there was an error in the admission of evidence. After Holly testifies on direct. Does not apply to admissions of a party-opponent 3. Can the presecution (in its case in chief) call a character witness to testify as to Holly's character for violence 1.after it has been attacked. a witness testified to it. If the writing is central to the case. Statement need not be shown nor its contents disclosed to the witness at that time. Duffy o D is convicted of transporting a stolen vehicle across state borders. The letter is not produced but a witness is brought in to testify as to the contents. Holy is on trial for the murder of John ii. Because the words on the tag were not Page 28 of 58 .can only do that if H took the stand herself Prior Inconsistent Statement Impeachment i. October 10. 608a2 . Only after character of witness for truthfulness ahs been attacked 5.404a1 (pertinent trait) vii. They would have to attack her credibility first v. Can Holly in her defense case call her friend Connie to testify that Holly has a wonderful reputation for truth and honesty? 1.the common law of the rule states that if you are trying to prove the contents of a writing.barred from using statements but what if D gets on the stand and testifies inconsistently with miranda barred statements? Can they impeach? YES Mincey Case i. X. Assume H never testifies but calls Frank as a witness to testify that in his opinion. Abuse by lawyers . Homework Notes (Best Evidence Rule) Sunday. the original must be brought in. Post arrest silence cannot be used 4. The trial judge has the discretion to treat the evidence as either chattel or writing. Refer only to character for truthfulness or untruthfulness ii. Rule 613: Examining witness concerning prior statements 1. Exceptions: i. prosecutor cross examines H using prior non-conviction acts bearing on H's untruthfulness. Nothing better than to control and impeach witnesses on what they said before ii. H is a non-violent person 1.if they deny it. can call witness as to the truthfulness of witness Hypothetical Set 2 i. New York i. No . VIII.call adverse witness to the stand Harris v. pre Miranda silence can be used to impeach. One of the forms of proof was a laundry tag with the letters "DUF" on it. SC said that the use of involuntary statements by a seriously wounded D in the debilitated and helpless condition on the edge of consciousness violates due process Jenkins Case i. 2010 3:57 PM Problem 14A o Defamation case where P brings up a letter that was not produced in court against D. Does the correct answer change if Holly testifies and denies she committed the crime? 1.must show witness first a. Prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or the interests of justice otherwise required b.

o If P wants to provide secondary evidence. The original was destroyed through no fault of his own so he is exempt from the best evidence rule. it should be left up to the jury to decide.it still counts as the original for this case. he has to show that he made a reasonable and diligent search for the originals . she goes to the doctor to find out who her biological parent is. She offers a photocopy of the original chart as evidence. Meyers v. The issue is not on what was written. Once the child finds D. o N should be allowed to testify to what he overheard when he set up the bug because he is not testifying towards the contents of the tape but rather what he overheard himself. o Original writing must be produced unless it is shown to be unavailable at no fault of P. Problem 14F o During a bank robbery. Problem 14B o D puts her child up for adoption telling the doctor to never disclose to either the adoptive parents or the child who she is. he was an eye-witness.50.267. again. D sues the doctor and brings up the photocopy as proof. o As evidence of the hours. o N should be allowed to testify to P's testimony because. per truck. it is the original copy for this case. nurse testifies that the patient had eaten just 1 hour before the surgery and doctor had forced her to change the 1 to a 9. and because the shirt was not a central element in the case. the total came out to be $25.it does not go towards the contents of the notes but rather what was said. At the end of the job. the changing of the document could be seen as "destroying" the original so the photocopy is the only piece of evidence that is still available. The notes are one form of evidence of what Meyers said but the testimony is just as good. o He is exempt from producing the photocopy even though it would be the better option. Meyers claims that this violates the best evidence rule because the writings should have been used. Flanagan o Breach of contract case . o Should not be allowed because the officer's testimony is towards the content of the picture . He gives her a photocopy of the birth certificate. After arresting both. o Court holds that this is not sufficient . he interrogates both separately. o Court holds that this was not error . o This evidence should be admitted because technically. the robber's image is captured on surveillance. getting a stenographer for P and recording Q's. Sylvania Electric Products v. an officer who watched them testifies. not testimony. Page 29 of 58 .he did not prove so in this case. When the child grows up. he should bring in the report itself. If the judge thinks that the photocopy is a forgery. This was the paper that the child used and this is the paper in dispute. o This evidence should be admitted even though it is a photocopy because technically. o This evidence would not be admissible because the testimony is trying to prove the contents of the tapes. The tally sheets were never produced by P testified that they "checked out" and offered as proof a total of the sheets. Guard downloaded the images and offered to testify that the suspect is the same person who appeared in the picture. Problem 14L o Breach of contract. o Dissent: stenographer's notes are the best evidence and should have been relied on Problem 14G o DEA agent N plants a bug and overhears/records P and Q's conversation about drug transactions. P said he had tally sheets for the hours worked. the judge did not err in admitting the testimony in loo of the shirt itself. o The evidence should not be let in because he is trying to testify towards the contents of the report . Instead of bringing the videos themselves. P had said that he had some but none were ever brought to court. D refused to pay. witness testimony was given towards what Meyers said prior to trial. The witness was not asked on what the notes contained but what Meyers had said. It doesn't matter if it is a photocopy of a birth certificate . Also offered into evidence was stenography notes.the tally sheets are at the heart of this case and they needed to be produced. o N should be allowed to testify to Q's statements because the contents of the tape are not at issue. The tape is just a form of evidence to prove what Q said.P had an oral agreement with D to be paid $13 per hour. He has a photocopy but decides to testify instead. Problem 14E o Porn is being brought across state borders. He tries to testify on a veterinarian report saying as much. Problem 14D o On a wrongful death case.complicated. The stenographer's notes are not at issue.that the robber is the person in the image.if he wants it in. P establishes the original contract was destroyed. United States o On a perjury case. Problem 14H o Farmer attempts to prove that he should have gotten a price adjustment to chickens that he bought because they were sick.

ii. The lease is not available however she has a letter from the tenant acknowledging the clause and seeking permission anyway. D turned himself in 2 weeks later. he leaves himself open to any inconsistent statements or acts for impeachment . Facts of the case state that Redding had robbed D's house the day before. if believed. iv. Webster i. Trial judge told the jury that the statements could only be used to judge D's credibility. Witness 1 (Police Detective Kinney) claims that he saw O in Seattle a week prior to the robbery and he had been there for a few days. o The letter may be used because it is a written admission . iii. The contradiction is not relevant to the case. prosecution asked about statements made prior to P being given his Miranda Rights.exemption to the best evidence rule (1007) Lecture 13. Court holds that 14th amendment is not violated because each state is allowed to create their own rules regarding this. Court holds that information inadmissible because of Miranda for a case-in-chief is not barred for all purposes. He claims that the stabbing was in self-defense. D followed him and called the police. The good faith standard is "always open" to the D to argue that the probative value outweighs the undue prejudicial impact (Rule 403) iv. In this state. iii. ii. D claims that P should not be allowed to introduce inadmissible evidence by calling a hostile witness and using his out-of-court statements (which would otherwise be inadmissible hearsay) to impeach him. W gives testimony that. D stated that he did not remember the statements he made and prosecution read him the "partially contradicted" testimony. D was charged with selling heroin.waives his right to silence. Morlang ("impeachment by prior inconsistent statement may not be permitted where employed as a mere subterfuge to get before the jury evidence not otherwise admissible") II. Question: does the use of prearrest silence to impeach a defendant's credibility violate either the 14th or 5th amendment? iii. Miranda is not a shield for the accused to commit perjury. ii. New York i. not as evidence against him. October 04. 1. would have gotten D off. On cross. (1006) Problem 14N o No pets clause in a lease . Court holds that 5th amendment is not violated because once a criminal takes the stand. Quotes United States v. Week 7 Monday. Inadmissible writings are not made admissible just because it is in summary form however.Problem 14M o IRS agent testifies to bank records in tax evasion case . Just because he was in Seattle that day does not mean that he was not in the restaurant at the time of the robbery. Court holds that D is correct . not to bring anything else to the table. Page 30 of 58 . P introduces evidence of inconsistent statements that would inculpate D. Jenkins v. Harris v. D is accused of aiding and abetting in a bank robbery. Anderson i. o Summary charts may be used if the contents are too voluminous but the originals must be made available for perusal. IV. D then claims that Redding attacked him with a knife. Common law allows Ws to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. ii. Witness King is introduced to speak against D. United States v. D is accused of stabbing and killing Redding. 2010 6:12 PM Homework Notes I. There was a confrontation where Redding accused D of calling the police. Ardies testifies that he is an alibi and that he saw O at his restaurant on the day of the robbery and every day for weeks leading up to the robbery. Dissent: statements inadmissible for direct should also be inadmissible for cross III. prior silence cannot be used for impeachment where silence is not probative of a defendant's credibility and where prejudice to the D might result.it is an abuse of FRE 607 to allow in hearsay in the guise of impeachment evidence however they said that there is no show of bad faith in calling the witness. It does not matter if K had seen O a week before the robbery in a different city. Prosecution referred to his delay in turning himself in as a burn on his credibility.he gives a summary of the deposits and a chart summarizing significant entries. Oswald is charged with robbery. The main W was an undercover cop who conducted business with D.landlord is trying to kick out tenant for violation of the clause. The court should not allow this evidence in because it is simply used to contradict A. Problem 8F i.

When you take the stand. Defendant should be able to deny without leaving himself vulnerable to rebuttal evidence illegally secured. During direct. you can prove it up a. ii. and only after D opens it up first iii. Courts would probably not let that happen b. If they deny it and turns out to be true.now they have lied. There is little to no connection with him selling narcotics previously to him selling them now. 2. Objection before answer 1.you don’t want a jury to be thinking of the defendant's other crimes or force the defendant to defend their whole lives. T-shirt was admitted with instructions to the jury solely impeach the witness's credibility.V. Issue: can evidence excluded based on illegal search and seizure be used to impeach a witness where the evidence doesn't squarely contradict the D's testimony on direct? ii. Class . and intentionally possessing cocaine. it would be similar to K's testimony and would not be relevant.how central does the testimony have to be for the case in hand? Witness 2 (waiter Samuel) claims he's never seen O before at the restaurant 1. Memory c. you can impeach them 2. when D testifies. The court should allow this information in because this testimony may contradict the alibi itself.subjects the W to be impeached ii. He testifies that he did not commit the offense and he was elsewhere at the time. Class . Contradiction ~~~ I. If S had never seen O before and had worked the day of the robbery. McLeroth was found to be wearing a t-shirt with sewn up pockets filled with cocaine. Prosecution stated this with improper question iii. Class . Techniques to Impeachment 1. It has to do with fairness . Perception b. Prosecutor asks on cross if he's ever sold narcotics before. Inconsistent statement h. he must do so truthfully. 2. any evidence that can be used to prove this should be used regardless of whether it was illegally obtained. Problem 8G: "Have you Ever Sold Narcotics Before?" i. Objection after answer 1. If he did not. Class . not just A's statement.show past acts a. pleadings. Supreme Court: reversed. Impeachment Review i. Havens i. The questions would not be allowed in because it speaks of prior acts (404b) that would be unduly prejudicial in this case based on FRE 403. If he is found to have perjured. VI. Bias e. conspiring to import. Non-conviction acts bearing on truthfulness (collateral) g. Minimal amount needed for impeachment . can prosecution come back and impeach? a. iii. Opinion/reputation evidence of character i. The evidence would not be allowed in for impeachment towards credibility because his previous acts have nothing to do with the case here. This evidence was suppressed prior to trial for illegal search and seizure. The questioning was close enough in connection to direct examination that the t-shirt may be used as evidence to contradict the witness. Dissent: illegally seized evidence should not be allowed in because it just gives prosecution a roundabout way to get the evidence in on cross. Respondent's possessions were searched without a warrant where they found a cut up t-shirt that matched another suspect's pocket swatches. Court of Appeals: reversed. Respondent was convicted of importing. 2.more right to the point and would probably be allowed United States v. you put your credibility at issue . v. answers a. It would be relevant on a substantive point if he worked that day. Contradiction iii. it brings light that A may be lying about O being in the restaurant/the alibi. 2. Mental capacity d. "illegally seized evidence may be used for impeachment only if the evidence contradicts a particular statement made by a D in the course of his direct examination" iv. R claimed that the shirt was not in his suitcase at the time. Petition. Needs to be in form of reputation or opinion.past acts . Young is charged with selling narcotics. Prior conviction (collateral) f. Page 31 of 58 .used to show W is not accurately describing the events Non-collateral: if denied.

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 ii. VI.II. At trial. Want to prove the W is wrong . US v.cannot deny it up unless it is material to the case (character) Problem 8F (see above) Problem 8G (see above) Rule 610: Religious Beliefs or Opinions i. 609 (prior convictions). original is required except as otherwise provided v. Medical Therapy Sciences 1. RULE 1002: To prove the content.very broad definition (still photos.wouldn’t have been able to otherwise Best Evidence Doctrine i. III. Production of original may be excused under certain circumstances vi. Collateral matters Problem 14A: The Defamatory Letter i. Mandated by rules to put forth the most probative evidence available . Duffy a. "The Original Document Rule" .not a writing c.if wrong on 1 aspect. In possession of opponent 4. On cross. Original does not have to be produced iii. Duplicate is admissible 2. Character evidence of truthfulness (possibly) 1. Assume BE implicated iii. 608b (prior non-conviction acts bearing on truthfulness). Impeachment for prior inconsistent statement does not open the door for all inconsistent statements a. Take out the "sting" on direct examination Repairing Credibility i.bring the original if you are trying to prove the content of that document 1. Whether t-shirt with letters is considered writing b. a. Only if you are trying to prove the contents iv. 608a (opinion/reputation to dishonesty) iii. appellate court might consider this harmless error Definitions (rule 1001) i. Cannot bolster credibility until after W's truthfulness is attacked 2. credibility has not been attacked by other side 4. Not admissible if unfair or genuine dispute as to the original's authenticity exists 3.there is no Rubio's across the street but a McD. Writings and recordings . Original 1. Page 32 of 58 . If BER applies 1. Photographs . VIII. prosecution can try to repair her credibility . Exceptions 1. Must affect substantial right of party iv. Now. could be wrong on another even if it is on an unimportant event 2. Court holds that it is an inscribed chattel . video tapes. Recent fabrication or result of undue influence iii. Reversible error when writing is central to the case v. Wants to take the sting out 3. Example: Bank Robbery . Paula brings a defamation action against Daniel based on statements made by D in a letter to P's employer. the letter is neither produced nor shown to be unavilable. Prosecution brings out past convictions 2. Get the W to say that it was false or show extrinsic evidence 3. Not obtainable 3. IV. Character witness may then testify (opinion or reputation) as to truthful disposition of attacked W iv. 608b: collateral . motion pictures) 1. If not challenged.FALSE ii. Also extends to recordings and photographs 2. Originals lost or destroyed 2. VII. they attack her on these aspects 5.W said "I just left Rubio's and saw the bank robbery across the street" . Does that allow prosecution to call W by opinion/reputation that she is honest? a. ii.very broad definition ii. Not talking about heirarchy or probative value iii. x-ray. V. No. Explanation by impeached witness ii. US v. Prior consistent statements (possibly) 1.

BED comes into play where 1. Trying to prove the contents of the photo a. Genuine question is raised as to authenticity of the original b. proven by vets report. Substantive law mandates you prove the context of the writing. Best evidence is not the best document rule .well taken ii. the issue was what Lamarre had said. Rule 1006 . Alterations = destroy original vi. Original in possession of opponent 1. but does not offer the vets report itself. Photocopy must be legible vii. A copy can be an original Duplicate 1. Inadmissible writings are not made admissible by 1006 just because it is in summary form iii. Not related to controlling issue 14L i.you don’t HAVE to put in the next best evidence 14M i. unless the proponent lost or destroyed them in bad faith a. Original was destroyed in a fire ii.charts and oral summaries are allowed as long as the original can be produced ii. Rule 1004: i. The tape is a method of proving the conversation. Should be let in because it is an original copy 2.if the copies are illegible. XIII.must put in the original iv. Guy gets a bunch of sick chickens. Bank robbery took images of the robber . in our view. 14H i. Collateral matter 1. XI. Told that transcript of the hearing should be provided iii. X. you can request to inspect the original documents iii. START HEARSAY on weds Homework Notes (Foundational Evidence) Sunday. He is trying to prove contents of report. Different from Meyers v. The issue is what was said in the conversation. Unfair to admit duplicate v. D is being tried for perjury to the committee of the Senate ii. US i. 1. Testimony is trying to prove the contents 14F i.testified that he downloaded the images that were taken at the time of the robbery. As applied generally in federal courts. recording. not the contents of the tape. not what the transcript contained" 14 G i. FOUNDATION. Rule 1004: Admissibility of Other evidence of Content 1. October 10. based upon a misconception of the best evidence rule. If original is destroyed. original not obtainable 1. XIV. Same as original unless a. You decided that you want to prove the context of the writing. photograph 2. XII. This violates the best evidence rule. Recognizes modern technology and allows the use of duplicates 2. photograph Problem 14E i. just talks about it. Original lost or destroyed: all originals are lost or have been destroed. Sustained . original would be required. You can request the original from the other side .does not bring in the original itself 3. Wants to testify that it is the D in the image 1. 2010 Page 33 of 58 .IX. recording. wants a price adjustment. the rule is limited to cases where the contents of a writing are to be proved. Testimony is used to prove the content . you can testify OR produce a copy . "that theory is. Here there was no attempt to prove the contents of a writing. Must try to get it ii. XV. 1006 requires provision of original copy to opposing party with enough time to inspect the document iv. Wanted to introduces testimony instead of a perfect copy iii.

Only E would be required to authenticate even though he did not hear the conversation himself.cop (T) gives to U at state crime lab. o It is up to the discretion of the trial judge to determine if there is enough proof. Also.control every aspect of the chain of custody in this manner United States v.recording technician did not compare the copy to the original.court should be more wary. o Either officer can testify towards the recording. K as a participant or E like in Turnage. Papse took the stand and was asked to authenticate an ax found on D's premise as the one used against him.after analysis. Bagaric o D attempts to challenge the authenticity of a letter found addressed to another suspect o Court holds that circumstantial evidence (including appearance. Johnson o D was convicted of assault resulting in serious injury . it is sufficient. o Not all witnesses who's hands the evidence passed through need to testify so long as there is enough proof to show that the evidence is what it claims to be and hasn’t been altered. o E would have to testify that this was the drive on which the recording was copied onto.ax was properly put into evidence Problem 13A o 3 bags were found on a suspect . Page 34 of 58 . D attempts to say that the tape was not properly authenticated o Court holds that there are 7 foundational elements for a tape recording to be admitted  Showing that recording device was capable of taking testimony  Showing that operator of device was competent  Establishment of authenticity and correctness  Showing that changes/additions/deletions were not made  Showing of manner of preservation  Identification of speakers  Showing that testimony elicited was voluntary/not induced o Court says that duplicate recording is admissible to the same extent of the original unless there is a genuine question regarding authenticity of the original or it is unfair to admit duplicate in lieu of the original Problem 13E o Photograph taken a month after a traffic accident is attempting to be authenticated. the evidence was not properly authenticated. contents. substance and other distinctive characteristics of the writing) may be used to authenticate evidence . Howard-Arias o Coastal guard boarded a ship and found large quantities of marijuana. A microphone was hidden in the room where K was to meet Jenkins and buy heroin. Problem 13D o Officers Kirsch and Enyart set up a sting operation. o Photographer does not have to testify in order to establish authenticity . o Court holds that the evidence was properly authenticated because P said he was "pretty sure" and had used the ax in the past. have someone familiar with the street testify to that. P did so with some hesitancy.there was ample evidence in this case to authenticate.attacked Papse with an ax. that there could be other axes on site. The recording was put onto a flash drive and was in E's hands until trial. its ok to have a missing link. o Foundation: Cop could authenticate that the bag was on the suspect but it would be better to get all witnesses in to testify 1) that it was on the suspect. and that it was all speculation that this was the ax used.7:25 PM United States v. o Court holds that so long as there is sufficient proof that the evidence is what it purports to be and hasn’t been altered. In another room. D is trying to say that the authenticity was insufficient because P did not state specifically what distinguished the ax from any other. label it. United States v. The requirements for Rule 901a were met . 2) that it contains cocaine. He would have to testify about their sting operation and that this was the drive used at the time. They would have to identify it. The marijuana was turned over to the proper authorities and D was charged with possession with intent to distribute. E had set up recording devices . Turnage v. State o Recorded phone call from prison . and lock it up. U gives to V (chemist). It is important to call all witnesses otherwise there will be a hole in the story. it is determined to be cocaine.he did not listen to the conversation. the ax was in a changed condition . o Chain of custody . o D is trying to say that because not all witnesses in the "chain of custody" testified. Any hesitation or changed features of the ax should go to the weight accorded the evidence but as for authenticity. The boat sank but 240 bales of it were salvaged. What foundation is necessary to introduce the baggies? Analysis process .just have someone familiar with the street testify that it is an accurate representation o If there are new features in the picture that were not there at the time of the accident.

Burden of production and persuasion are on the proponent of the evidence 3. Judge decides most things but jury has a part in some issues Foundation i. Problem 14N 1.here. Problem 13H o Paul Michaud is interviewed for a position in a firm . Employee is asked to recount the phone conversation but the opposing lawyer objects on authentication grounds. Court/judge determines if evidence is authenticated v. the person states "This is O'Roarke" (unlike in Pool where the person identified themselves with a nickname). 2010 8:30 AM I. Discovery . o It is ultimately up to the judge's discretion but there seems to be enough circumstantial evidence to authenticate the phone conversation testimony.interrogatories. Prospective employee is told by O'Roarke's secretary to call him after 5pm. unchanged copy of the invoice United States v. General requirement 1. etc vi. He is given a phone number and is told to call after 5pm. he is told be a secretary who identifies herself as O'Roarke's secretary. The chance of someone else using the nickname is too great and the call is essential to the conviction. The only proof they have is from a telephone conversation where "Chip" (nickname suspect uses) told the undercover DEA agent to meet him on another boat to make the exchange. Lecture 14. agent never met up/talked to suspect in person. certified as correct. you may not know what the proper objections are or are not iv. On answering the phone. When he calls. Rule 1007 .never spoke to head partner but is told that he is in charge of hiring. Proved by the testimony or deposition (or written admission) without accounting for the nonproduction of the original 3. Does not extend to oral admissions iii. Conversation was not recorded.000 lbs of marijuana. Only way to identify is through the caller's self-identification o Court holds that this is not enough proof. He sues O'Roarke for breach of contract. o What he could do is bring in the voicemail recording and have it authenticated to actually being O'Roarke's secretary's voice.authenticating the letter without producing the letter 2. October 11. sufficient authentication of the call as in fact coming from X. Original document doctrine ii. he is asked when he can start. Best Evidence Doctrine (continued) i. Page 35 of 58 . in itself. o Authentication: show that the operator was properly trained to use the x-ray machine Problem 13G o Proof of amount on sales . Months later. Copies must be certified or compared copies 2. he gets a letter stating that the firm is not hiring any new employees. If requirements are met.computer print out was offered as evidence.may be proved by copy. He rejects the other interviews he has lined up. Week 8 Monday. Rule 1005: Public records . Satisfied by the proponent proving evidence that the matter in question is what it claims it to be 2. Screens out evidence that is not reliable/relevant iii. depositions. circumstantial or not. o PM may have a case here because there is more to go on than in the Pool case . o Authentication: person who printed must testify that this is an actual.o Photo is still admissible Problem 13F o X-ray is put in as evidence of a fractured leg. Authentication issues are decided under Rule 104(b) a. Rule 16: pre-trial conferences II. or testified to be correct by a witness who has compared it with the original 1. must be received in lieu of original iv. o A telephone call out of the blue from one who identifies himself as X may not be. Pool o D is convicted for participating in a scheme to import approximately 225. to show that the caller was actually the suspect. If there's no foundation present. Rule 1008: Functions of Court and Jury 1. Want a mechanism to make sure the proof is what it purports to be ii.

xiv. 2. based upon identifying charactersitics of the tangible item or 2. xvii. xviii. Permit opposing counsel the opportunity to review the offered exhibit and object to its admissibility 8. Chain of custody evidence RULE 901(b) 1. Be sure you understand the ruling and the ways you can satisfy the judge's concerns. 2. No one is brought in to testify as to the knife . Know your strategy regarding each exhibit 2.attacked Papse with an ax. Also.reasonable factfinder could be able to determine one way or another judge's discretion is not the only factor (he only overturned if abuse of discretion) a. etc. D is trying to say that the authenticity was insufficient because P did not state specifically what distinguished the ax from any other. Be sure to keep a proof and exhibit checklist 7.vii. it is sufficient. Make record if court rules against you 10. U gives to V (chemist). regarding admission of the exhibit 9. Laying the foundation Example procedure for Authenticating Trial Exhibits 1. Burden is on the proponent trying to get the knife in . Satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims a. P did so with some hesitancy. xix.cop (T) gives to U at state crime lab. Organize a copy of all your marked exhibits 4. Testimony of witness with knowledge United States v. xvi. 3 bags were found on a suspect . The requirements for Rule 901a were met . Johnson 1. xv. Offer exhibit into evidence. xi. voice identification. If admitted. if any. publish the exhibit to the jury in the most effective way allowed Example 1. Obtain court ruling. Rule 26: production of documents Rule 36: request for admissions Rule 37: sanctions Rule 901: 1. Rule 104(b) . Mark all exhibits for identification. Knife brought in found at the murder scene 3. Be sure you are prepared to authenticate each of your marked exhibits 5. Know exactly what exhibits the other side is going to use at trial and preserve your objections.after analysis. Papse took the stand and was asked to authenticate an ax found on D's premise as the one used against him. More limited discovery Tangible evidence generally proved by 1. the ax was in a changed condition .objection should be sustained a. 2) that it contains cocaine. xiii.ax was properly put into evidence 3. Court holds that the evidence was properly authenticated because P said he was "pretty sure" and had used the ax in the past. Holly for the murder of John 2. What foundation is necessary to introduce the baggies? Analysis process . Illustrations a. 403 . xii. and that it was all speculation that this was the ax used.there must be ample evidence to decide one way or another . ix. x. Any hesitation or changed features of the ax should go to the weight accorded the evidence but as for authenticity. Authenticate a given exhibit 6. viii. that there could be other axes on site.errs on the side of allowing evidence Police seize a tangible object 1. D was convicted of assault resulting in serious injury . Authentification is more significant in criminal cases 1. 104(b) determination . Foundation: Cop could authenticate that the bag was on the suspect but it would be better to get all witnesses in to testify 1) that it was on the suspect. Take not of unique characteristics Problem 13A 1. It is important Page 36 of 58 .court should be more wary. it is determined to be cocaine. Find out how the court wants it done and comply 3. Witness testimony.here they had nothing 901(b) reaches beyond tangible objects .pathologist testifies that John died by multiple stab wounds 4.handwriting.

report…… vii. whether heard firsthand or through mechanical or electronic transmission or recording.there was ample evidence in this case to authenticate. Turnage v. Courts vary in the tolerance .III. internal patterns. Identification of a voice. 901(b)(5): Voice identification 1. 901(b)(2): nonexpert opinion on handwriting 1. Officers Kirsch and Enyart set up a sting operation. 2. 3. or other distinctive characteristics. Comparison by the trier of fact or by expert witnesses with specimens which have been authenticated iv. Has been in existence 20 years or more at the time it is offered viii. Howard-Arias 1. b. label it.depends on which link is missing a. 4. and lock it up. would likely be c. 6. Unlikely that evidence would have been received if the coast guard who original seized the object to testify b. or a purported public record. Is in such condition as to create no suspicion concerning its authenticity b. if authentic. Problem 13D a. "are you familiar with this handwriting? Who's is it?" iii.he did not listen to the conversation. E would have to testify that this was the drive on which the recording was copied onto. by opinion based upon hearing voice at any time under circumstances connecting it with the alleged speaker 2. The recording was put onto a flash drive and was in E's hands until trial.control every aspect of the chain of custody in this manner xx. D attempts to say that the tape was not properly authenticated Page 37 of 58 . Evidence that a document or data compilation. c. It is up to the discretion of the trial judge to determine if there is enough proof. In another room. 3. its ok to have a missing link. E had set up recording devices . The marijuana was turned over to the proper authorities and D was charged with possession with intent to distribute. Recorded phone call from prison . Not all witnesses who's hands the evidence passed through need to testify so long as there is enough proof to show that the evidence is what it claims to be and hasn’t been altered. 901(b)(7): public records or reports 1. 901(b)(3): comparison by trier or expert witness 1. United States v. the evidence was not properly authenticated. you must prove that a particular person authorized or signed the document ii. contents. Bagaric 1. They would have to identify it. in any form a. To admit. Evidence that a writing authorized by law to be recorded or filed and in fact recorded or filed in a public office. vi. K as a participant or E like in Turnage. substance. The boat sank but 240 bales of it were salvaged. Either officer can testify towards the recording. D is trying to say that because not all witnesses in the "chain of custody" testified.allows writing to be authenticated when it is a reply to an already authenticated letter v. taken in conjunction with circumstances 2. Chain of custody .recording technician did not compare the copy to the original. to call all witnesses otherwise there will be a hole in the story. Common law reply doctrine . Coastal guard boarded a ship and found large quantities of marijuana. United States v. State a. A microphone was hidden in the room where K was to meet Jenkins and buy heroin. Appearance. substance and other distinctive characteristics of the writing) may be used to authenticate evidence . D attempts to challenge the authenticity of a letter found addressed to another suspect 2. 5. 3. Court holds that circumstantial evidence (including appearance. He would have to testify about their sting operation and that this was the drive used at the time. Only E would be required to authenticate even though he did not hear the conversation himself. 901(b)(8): ancient documents or data compilation 1. contents. Was in a place where it. Court holds that so long as there is sufficient proof that the evidence is what it purports to be and hasn’t been altered. 901(b)(4): distinctive characteristics and the like 1. Courts almost always require that the original chain testify Authentication of a Writing i.

Months later. this is X" 2.ix. b. Showing that operator of device was competent iii. to show that the caller was actually the suspect. By evidence that a call was made to the number assigned at the time by the telephone company to a particular person or business if i. d. he is asked when he can start. Page 38 of 58 . Court says that duplicate recording is admissible to the same extent of the original unless there is a genuine question regarding authenticity of the original or it is unfair to admit duplicate in lieu of the original Problem 13E 1. Authentication: show that the operator was properly trained to use the x-ray machine 3. X-ray is put in as evidence of a fractured leg. Problem 13G a. If there are new features in the picture that were not there at the time of the accident. Proof of amount on sales .here. Photographer does not have to testify in order to establish authenticity . Showing that recording device was capable of taking testimony ii. Prospective employee is told by O'Roarke's secretary to call him after 5pm. Problem 13F a. The only proof they have is from a telephone conversation where "Chip" (nickname suspect uses) told the undercover DEA agent to meet him on another boat to make the exchange. 2. Must have some recognition other than a person just saying "hi. sufficient authentication of the call as in fact coming from X. unchanged copy of the invoice Telephone Converstaions 1. Evidence describing a process or system used to produce a result and showing that the process or system produces an accurate result 2. b. Photo is still admissible 901(b)(9): process or system 1. including self-identification. show the person answering to be the one called ii. Showing of manner of preservation vi. Authentication: person who printed must testify that this is an actual. agent never met up/talked to suspect in person. he is told be a secretary who identifies herself as O'Roarke's secretary. 4. Problem 13H a. On answering the phone. Could possibly use caller id 3. United States v. In the case of a business. Photograph taken a month after a traffic accident is attempting to be authenticated.never spoke to head partner but is told that he is in charge of hiring. the person states "This is O'Roarke" (unlike in Pool where the person identified themselves with a nickname). Showing that changes/additions/deletions were not made v. the call was made to a place of business and the conversation related to business reasonably transacted over the phone 4. Court holds that there are 7 foundational elements for a tape recording to be admitted i. in itself. Employee is asked to recount the phone conversation but the opposing lawyer objects on authentication grounds.000 lbs of marijuana. D is convicted for participating in a scheme to import approximately 225. he gets a letter stating that the firm is not hiring any new employees. The chance of someone else using the nickname is too great and the call is essential to the conviction. PM may have a case here because there is more to go on than in the Pool case . Only way to identify is through the caller's self-identification b. Showing that testimony elicited was voluntary/not induced c. Conversation was not recorded. have someone familiar with the street testify to that. b. He is given a phone number and is told to call after 5pm. Pool a. Court holds that this is not enough proof. Rule 901(b)(6): telephone conversations a. xi. circumstantial or not. He sues O'Roarke for breach of contract. Paul Michaud is interviewed for a position in a firm .just have someone familiar with the street testify that it is an accurate representation 3. In the case of a person. When he calls.computer print out was offered as evidence. b. x. Identification of speakers vii. He rejects the other interviews he has lined up. circumstances. A telephone call out of the blue from one who identifies himself as X may not be. Establishment of authenticity and correctness iv. c.

Problem 3B: Kenworth and Maserati i. Certified copies of public records Rules 902(1)-902(4) i. Still need to lay down foundation c. Lecture 15. VIII. The fact that the truck pulled forward is hearsay because it is a statement of an action made out of court. Official publications . Newspapers and periodicals . It is ultimately up to the judge's discretion but there seems to be enough circumstantial evidence to authenticate the phone conversation testimony. Requires a two-step inference similar to Wright case ~~~ I. 5. VI. Impeachment by Evidence Attacking Page 39 of 58 . Pulling forward is an act done on the faith of the statement being true which would raise in the ordinary conduct of affairs a strong belief in the truth of the statement. i. Philip wants to put into evidence that the light was green for him because the truck was also moving forward. d. In no instance is the opposite party foreclosed from disputing authenticity 4. What he could do is bring in the voicemail recording and have it authenticated to actually being O'Roarke's secretary's voice. Commercial paper and related documents Rule 902(10) i. he is hit by Hillary. (2): Domestic public document not under seal 1. Original 2. FRE 902(7) a. 902(6) a. P is not able to see any lights but goes forward into traffic because the Kenworth begins to pull forward. Rule 901(b)(4): Distinctive characteristics xii. Rule 902 sets forth 10 situations where this applies 3.books. Original public document iii. At the trial. iii. V. 902(4) a. district. ii.IV. pamphlets. Self-identification 1. Talking about the ORIGINAL document ii. etc…and a signature purporting to be an attestation 2. Does not mean it is automatically admissible . a will Demonstrative evidence i. Accompanied by a final certification as to the genuineness Rule 902(9) i. Testimony of a subscribing witness is not necessary to authenticate a writing unless required by the laws of the jurisdiction whose laws govern the validity of the writing ii. October 12. or other publications purporting to be issued by public authority 7.e.printed materials purporting to be newspapers 8. or of any State. Extrinsic evidence not required for foundation 2. A document bearing a seal purporting to be that of the US. 2010 10:54 PM Homework Notes I. Presumptions under Acts of Congress Rule 903 i. (3): Foreign public documents 1. Trade inscriptions and the like 6. Maserati (Phillip) pulls up next to a large Kenworth truck. VII. Describe evidence for illustrative purpose ii. (1): Domestic public documents under seal 1. Week 8 Tuesday.just don’t have to prove extrinsic evidence to authenticate 5. As he shoot out in front. FRE 902(5) a.

and even if it is not hearsay. Offered to prove the truth of the matter asserted 4.testifying in court under oath. i. Frank. Hearsay is not admissible except as provided by these rules or by other rules prescribed by the Supreme Court pursuant to statutory authority or by Act of Congress ii. I looked out the window and say the car run the red light" Page 40 of 58 . Hearsay: he is not testify based on his present knowledge but rather a statement made by himself 2. If it's offered to show that Frank is crazy. my puppets really do talk to me!" 1. In Court: I heard her scream "look out there is a tree in the middle of the groomed slope" Out of court: "look out there is a tree in the middle of the groomed slope" 1. In court: "I heard Alicia say that the 'car just ran the red light" Out of court: "John and I were working out and I said "Look. Was this statement made "out of court" . 801(c) 1. Protect the engine of being able to cross-examine ii. evidence may still be excludable iii. told me many times that his puppets talk to him Out of court: "Wow. A person who makes a statement Sample Problems . to determine if X made a reasonable action. it would not be hearsay 4. Made out of court 3. Only can we define hearsay can we determine if the hearsay rule operates to exclude the evidence (subject to limitations) Rule 802: Hearsay Rule i. Hearsay is a statement other than one made by the declarant while testifying at the trial or hearing. written or asserted conduct) 2. Hearsay evidence may still be admissible. In court: I know father Tom and can authenticate his signature on this affidavit .801(a) 1. Not hearsay ." if would not be hearsay iv. Hearsay may still be present even if the statement was made by the person on the witness stand as long as it was made out of court 4. still considered hearsay because it is an out-of-court statement 3. Must determine: 1. IV. Why is the evidence being offered into the record iv. Statement (oral. Declarant: Alicia iii.was the statement made on the witness stand at the current trial or somewhere else 3. An oral or written assertion. Hearsay (defined) 1. Mental capacity Hearsay i. Hearsay does not automatically equal exclusion iv. A person's nonverbal conduct." hearsay is NOT present vi.II.affidavit moved into evidence Out of court: Father Tom signs a notarized affidavit stating that "while blessing a sick child. Hearsay: statement made by a 3rd party out of court 2. subject to cross-examination II. if it is intended by this as an assertion 3. it's hearsay 2. Memory: bridge of the temporal gap between time past and time present iii. or 2. that car just ran a red light" 1. If it is offered for what is being asserted. If you do not have a "statement. If offered to show that the puppets actually talk to him. offered in evidence to prove the truth of the matter asserted (not excluded under 801(d)) v. In court: "I said 'the car ran the red light'" Out of Court: "the car ran the red light" 1.is this hearsay? i. it is hearsay 3. not hearsay vi. In Court: "the light was red at the time of the accident" Out of Court: "I observed the color of the light at the time of the accident" I. Whether the evidence is a "statement" 2. If she just said "The car ran the red light. Declarant (defined) . III.801 (b) 1. If it's offered. for example. Statement can be hearsay if offered for the truth of the matter asserted v. Perception/personal knowledge ii. Less risk but under the definition. What is it being offered for? 2. Not otherwise excluded under rule 801(d) iii. In Court: My brother. Statement (defined) . Evidence that is hearsay is not admissible unless otherwise provided 1.

Hearsay: statement is written and made out of court. Verbal assertions readily fall into the category of "statement" . Anne relays what Same told her about the D? ii. of the opinions of the writers iv. not on oath. Each of the writers have passed away and are unable to testify in court. Assertive conduct may be verbal or non-verbal vi. he bring witnesses that say that the testator was not of sound mind . did the declarant intend to assert something?) iv. Depends on whether it is being offered for the truth being asserted iii. 6. Examples i.if you do not intend to communicate by raising your umbrella. 7. D is contesting a will. Offered: carrying money bags c. Barking is NOT hearsay iii. it would still not be admissible by hearsay. 9. Witness Lissner testifies on 3 conversations he had with witnesses of a bank robbery. In his defense. Declarant: bloodhound.801(a) vii. P alleges that the heater was defective. Merely hearsay evidence. 3 letters are brought in. Page 41 of 58 . Tatham i. Federal Rules: MUST have an intention to assert 3.5.verbal utterances whether written or oral 1. and evidence of trailing and barking at the defendant 2. Judge will decide if something is hearsay .direct statement to the point to be proved 2. at trial. it must be assertive conduct v. This is NOT hearsay . Evidence of an act. In Court: Testifies as to training and pedigree of bloodhound. D says that it was an unavoidable accident that was not their fault. Some states say it is hearsay Cain v. If offered to show that Higgins is the person who did it . Actor's or Singer's performances 2. saying it was made under undue influence. Plaintalk: "Higgins is the one who did it" a. In court: "I looked outside my window and everyone had their umbrellas open" Out of Court: raining 1. Sam tells Anne: "I saw the defendant standing over Fred with a bloody knife in his left hand". offered only to suggest third persons' statements or opinions on a material issue. Doe d. Wright v. Must be either verbal assertive conduct or nonverbal assertive conduce ii. Is it hearsay if. Exceptions a. 1. Shortly after a murder of Fred.e. "the key to the definition is that nothing is an assertion unless it is intended to be one . Offered to show that Higgins came out carrying money bags and therefore committed the crime b. 801(b): dog is NOT a person therefore is not a declarant. Places the burden on the party claiming the statement is hearsay viii. Common law view: Wright Case a. Wrongful death case wehre a son died of carbon monoxide poisoning while a guest at D's hotel. 8.he did the robbery and should go to jail ii. Proved: he's the robber 3. George i. When one part of the chain of inferences results in the statement being offered for the truth of the matter asserted. Exactly what he asserted . For it to be a hearsay statement.104(a) 1. Determine the declarant's intent (i. each saying that testator was a fine businessman. All three of these statements are hearsay because they are out of court statements Example i. is inadmissible if the statements/opinions themselves would be inadmissible iii. Sirchev: "That fellow Higgins went out of here carrying money bags" a. Out of court: dog barks at person i. and throw away the key" a. it is not hearsay 1. statement: barking ii. 1. Reflexive/unthinking verbal conduct b. Oblique: "they ought to put Higgins in jail for this.infantile in mind. For testator. offered for the matter asserted Problem 3A: Three See a Robbery i. CAN to Rule 801(a) recognizes that nonassertive verbal conduct" does exist iii. Words expressed as common social pleasantries c. it is still hearsay "Statement" under Federal Rules i. ii. Had the statements been made to a 3rd person instead of in writing.

Best evidence to show that harm was not caused by heater iii. Negligence (taking the man to the back) . was solicited for sex. Merely for offering independent legal significance . c. Problem 3D a. is called to the witness stand to testify that the D. Smells gas and thinks there's a problem. Statement made in court (at that time) offered for the truth of the matter of the case at hand ii. Agent of the gas company . Not hearsay if solely for the purpose of impeachment 2.can be on a physical object 2. Week 9 Monday. if used as purpose A can be hearsay.not used as proof substantively (color of the light) b. Barb. "You can have it any way you like it. Want a witness to testify with personal knowledge Categories i. Try to sneak hearsay in United States v. Lecture 16. there's a fire!" . words on a briefcase saying "HANDS OFF! DEVITT'S BRIEFCASE") II.merely because it was spoken 3. Is there intent to communicate? iv. and if used for purpose B can be nonhearsay 2. Doesn't call anyone but someone shows up saying he's an agent of the gas company. Depends on whether it is used for the matter asserted b.not hearsay ii. b.is this hearsay? a. a lay witness. Gas company man lights a cigarette and there is an explosion. "this witness should not be believed" ii.e. Does not matter if it is truthful or not 4. Undercover agent goes to a massage parlor and while there. Offered as having independent legal significance d. but will say that in her opinion the D could not have completely come to a stop given the circumstances. Impeachment 1. We all should know that a statement. Verbal acts which have an independent legal significance 1. Who is the arguable declarant? 2. October 18. Reasonable for X to take the gas man to the back? i. Verbal objects 1. Effect on the listener or reader 1." b. Check i. 2010 8:27 AM I. Evidence of hotel manager testifying that other guests were fine and made no complaints was not seen as hearsay because it related to the knowledge of the manager whether anyone else had ever been harmed by the heater.the truth of her statement were not important iv. Silence is not hearsay Example Problem: i. Start by identifying what the arguable statement is 1. Page 42 of 58 . while operating his car. "look out. 11. Has the words themselves risen to the level of solicitation? It doesn't have to be true. it's not hearsay iii. Solicitation for prostitution was the very fact in issue . What is defense counsel's best objection? ii. Words sometimes have an identifying characteristic . True offer: creates the power of acceptance 6.hearsay iii. Statement in a contract action: "I offer to sell to you my computer for $100" and "OK it's a deal" 5. Problem 3F a. Statement in a defamation action: "Sam said that I was dishonest and a drug addict" 2. Problem 3C a. Hearsay under 801(c) i.10. Objection should be overruled . If a statement is not offered for the truth of the matter. The words MAY be intended as an assertion (i. Blatant attempt at hearsay without actually saying "X said" ii. did not come to a complete stop at the stop sign/ Barb was not present at the intersection on the date in question.

Bridges Case (Problem 3I) a. Statement by out of court declarant describes the same event and its similar 3. Undercover cop testifies to barmaid's pointing out i. Matchbook with legend on it was found at the crime scene with the words "Eagle's Rest Bar and Grill" i. Is he making a statement or arguable statement? iii.III. Court struggles to try to get evidence in c. Independent evidence of unique and unusual facts Verbal expressions may blend with physical conduct i. 3Ds were charged with conspiring to deal cocaine b. October 25. Hearsay and would not be able to get in if she was testifying as to what was in the house ii. Soldier sexually assaults Sharon . Non-assertive .not hearsay 6. Week 10 Monday. 3. Look who the arguable declarant is ii. Not hearsay . Example: Statement of man saying "I am the Queen of England!" is not hearsay to prove that he is crazy and not that he's actually the queen. A statement made to prove state of mind is not considered hearsay so long as it is not used to prove that the statement is in fact true. "People are Yankee's fans are more likely to have Yankee's paraphernalia" DiGiovanni's laptop not hearsay 4. Mug with "Chief Illiniwek" and "The Fighting Illini" and "Witter" on it i. Both are testifying to present knowledge and recollection v. V. If used to authenticate an object . Sharon begins to describe the room where she was molested d. she said situation b. IV. How is it being offered? 3. Circumstantial evidence of memory. Commercial labels . Non-assertive action ii. Circumstances would show that witness would not have known the facts if they were not present at the time 4.usually not hearsay a. Court says that Sharon's statement of the room would not have been known had she not been in the house i.people named Mike would have a briefcase with "Mike" on it nonhearsay 5. End-product of photography ii. Problem 3H: the will was used to show Anna's state of mind . vi. 150) i. Lecture 18.not hearsay Photographs i. It was not used to show that the statements in the will were accurate. Problem 3G a. Not used directly for the matter asserted d. 2010 8:31 AM Page 43 of 58 . Singer Case 1. Not used for the matter asserted but used as identifying characteristics c. Barmaid pointing out couple to undercover cop.that she was unhappy with her husband. 2. knowledge or belief 1.he said. Not statements DO HEARSAY QUIZ (P. Circumstantial evidence of state of mind 1.witnesses are testifying based upon the present knowledge and recollection free of hearsay ii. Problem 3J: "My Husband is in Denver" 1. Conduct: addressing the envelope and mailing it a. Briefcase with "Mike" on it . Admitted tending to show that she had knowledge of the articles of the house iii. Must be independent evidence of unique or unusual facts 2.

Recognize whether something is hearsay or not . Declarant must testify and subject to perjury. Cross-examination concerning the statement. Rehabilitate W's credibility 2. II. In court: I said "the car ran the red light" Out of court: "the car ran the red light" II. he says he cannot remember what he said previously a. Note 1. that is sufficient vi. Majority view is that forgetting something you previously knew counts as being inconsistent ii. This would be allowed only if the statement was made before the alleged fabrication b. Do you want to use this substantively for truth of the matter asserted. Can also use substantively (for truth of the matter asserted) if you satisfy the requirements of rule 801 (d)(1)(A) 4. Castro-Ayon: immigration proceeding 4.I. Does it fit under 801(d)(1)(a)-(c) 1. Under the rule they are substantive evidence. Consistent with declarant's testimony and is offered to rebut an express or implied charge against the declarant of crecent fabrication or improper influence or motive 3. One of the identification of a person made after perceiving the person 2. Witness testifies at grand jury but when asked. Prior consistent statements traditionally have been admissible to rebut charges of recent fabrication or improper influence or motive but not as substantive evidence. State v. (d) Statements which are not hearsay a. Prior consistent statement may be used to support denial of making such prior inconsistent statement a. W denies making the statement. Is this inconsistent? Can be argued either way i. She gives statement 2. Under the rule they are substantive evidence Page 44 of 58 . The declarant testifies at the trial or hearing and is subject to cross concerning the statement and the statement is 1. If not hearsay. NOT the subject matter iii. W's credibility is attacked by prior inconsistent statement. Examples of Prior Consistent Statements Allowed Under the Common Law 1. (1) Prior statement by witness. page 161 3. Woman was assaulted and named Smith as her attacker. Hearsay Flowchart i. a. does the Constitution apply? (6th Amend) Statements Which Are Not Hearsay i. Shouldn’t impact the hearsay rule if it is not being used for the truth of the matter asserted 3. Prior inconsistent and consistent statement by witness as set forth in Rule 801(d)(1) 2. NEVER says that rules mandate that the proceedings have a right to cross-examination a. Example 1. See if admissible under FRCP ii. inconsistent with testimony at trial b. Admission by party opponent and falls under 801(d)(2) iii. Admission by party--opponent as set forth in Rule 801(d)(2) ii. Whether it fits under an exception iv. hearsay rule does not apply 2. look at 801(d) iii. RULE 801: the following definitions apply under this article: 1. As long as you are cross-examinable concerning the statement. W may be rehabilitated by use of a prior consistent statement showing W's memory is the same at trial a.no right to cross but rule still applies v. Can generally utilize to impeach because not offered to prove the truth of the matter asserted 3. A statement is not hearsay if i. Smith 1. Problem 4A: "I got Amnesia" 1. Can be used for Grand Jury . Prior inconsistent statements traditionally have been admissible to impeach but not as substantive evidence. Does not have to concern the subject matter of the statement iv.801(c) 1. Rule 801(d) provides special rules defining certain statements as not hearsay 1. W's memory is attacked. Hearsay under 801(c) III. If there are no exceptions. Inconsistent with declarant's testimony and was given under oath subject ot penalty of perjury 2.

Add onto hearsay analysis a. What is left of the common law uses of prior consistent statements… 901(d)(1)(c) 1. Accused of assaulting his 4-year old daughter 3. Statement offered AGAINST the party 1. Defense is trying to create a motive to fabricate abuse . iv. Civil case . United States 1. Admissions by a party opponent are excluded on the theory that their admissibility is a result of the adversary system a.plaintiff and defendant 2. Problem 7. Is the declarant the party opponent? 3. If so. Man comes in and robs coffee shop b. etc. Don't want people to be able to hide behind previous statements 2. iii. If witness is dead and cannot be subject to cross. and read it into the rule 7.WEDNESDAY 1. was made AFTER the motive of fabrication statement b. hearsay quiz (p. Motta a. October 27. Rule 801(d)(2) i. Each party is responsible for what they say iv. Occurred on Indian Reservation 2. Is this hearsay trying to be utilized against the party opponent as the opponent's admission? If it is. Court finds that the statements to babysitter.identification of the initial witness because it was her description that created the sketch i. One of identification made after perceiving the person 2."why do you want to live with your mother?" 5. made out of court for the subject of the matter asserted. Defines admissions by party opponent as nonhearsay ii. Supreme court has gone to the common law. Consistent with declarant's testimony and is offered to rebut an express or implied charge against the declarant of recent fabrication or improper influence or motive c. Why do we exclude? 1. is the witness present and available for cross? 801(d)(2) . If you have an intent to communicate. asked leading questions 4. Example: officer comes forward to testify that X is the person that Y pointed out as her attacker (Y does not remember clearly if it was X) a.801(d)(1)(C) . Want to try to get in other testimony . State v. Inconsistent with the declarant's testimony and was given under oath b. Week 10 Wednesday. it can be an admission by party opponent iii. This is not considered hearsay 3. Child is put on the stand under oath. looked at motive requirement. Court holds that it is admissible . Party opponents a. Criminal case . Lecture 19. 2010 8:22 AM I. Who is the declarant? 2. Tome is convicted and appeals saying that reversible error was made a. and the statement is a. rule does NOT apply 5.state and criminal accused b. It’s the party's own statement which is adopted by the other side Page 45 of 58 .babysitter and mother 6. 151) 4. Additional step to analysis 1.vii. it wont be subject to the hearsay rule. Allows substantive evidence if declarant testifies at the trial or hearing and is subject to crossexamination concerning the statement. Tome v. Is a sketch admissible to identify robber? c.

Colo Rev. Bruton v. it CANT be used against Y (6th Amdt right to confront problem).: barring hospitals and doctors from negotiating settlements with patients within 30 days after receiving treatment. 2.just loosen the lips ii. Ohio: Post-Miranda silence/arrest cannot be used as admission Rule 801(d)(2)(C) i. unfairly prejudicial such that it substantially outweighs the benefits of allowing it. You don't have to make the statement yourself. b. if the perosn who made that statement cannot be confronted by the criminal accused and the prosecution is the person who is trying to confront. United States a. Right of Confrontation: exclude otherwise admissible hearsay or nonhearsay 3. E says. D's statement was fairly self-serving because he wants to get money from insurance 3.lawyer is authorized to make statements for their client 3. D has no personal knowledge of the statement he made . Example: a. Statement is by Carter out of court offered for the truth of the matter asserted 1. VI. Try separately. NEED to discuss 6th Am. redact statement d. US v. Stat.he was not present at the time of the incident 2. Admission is cumulative. Doyle v. V. If X doesn’t testify at trial. "Bruton and I committed the robbery" b. X signs written confession that X and Y commited robbery. Martin is suing Carter . Woman claimed sexual assault. Severe injury with miraculous recovery . VII. as long as you adopt and believe in those words ii. ii. III.his accomplice made the statement c. Judge forces actors to make certain admissions. iii.cannot confront him over the statement ii. excluding statements obtained by doctors or hospitals from patients within fifteen days of such occurrence Problem 4C i. Probable human behavior would be to deny GF's statement if it wasn’t true. Gives an opinion 4. Convicted of armed robbery 2.II. 184) 1. Might be a 403 prejudice problem from SPILLOVER effect though. Finnerty v. E&B .statement by Carter ii. P wants to use D's statement as an admission 1.admission allowed 2. Is this an adopted admission? i. 2. then Y has the right to confront him on cross and it CAN be used. Statement by co-conspirator Problem 4B: Fire in the Warehouse i. IV. Does not anticipate that the statement will be used against him iv. since X’s admission would prejudice jury to hold Y guilty as well. Hearsay under 801(c) iii. Darby (note 5. Hoosier 1. Authorized statement . 6th amendment: if you're going to use a statement made out of court offered for the truth of the matter asserted. Prosecution wants to use the statement for the truth of the matter asserted under 801(c) b. 2 people met on vacation and went back to a hotel room. Others believe that drunk speech are truthful . Admissions will come in freely . B can't confront E . Constitutional restrictions 1. Statement by person authorized by the party to make a statement Problem 4F: Couldn't He See the Boy? Page 46 of 58 . States/feds vs. Some may say "these are not true admissions" 2. Admitting a statement violates the 6th Am. GF is bragging "you ain't seen nothin'" a. c. ONLY applies in Criminal Cases 4.admission can be used against E but E is not testifying. If X DOES testify. i.you don't need personal knowledge Admissions i. Confession shouldn’t have been admitted based on 6th amendment . Adoption of Words i. Limits on the use of admissions i. Courts have not excluded drunk/intoxicated admissions 1. VIII. Right of confrontation iii.

availability of declarant immaterial b. Declarant's statement furthered the conspiracy 3. Amendment resolves an issue on which the court had served decision. Conspiracy does not have to be charged Lecture 20. Mahlandt v. Child is bitten by a wolf . Hearsay exceptions. No longer is it true that trial courts must find the predicate facts by independent evidence alone 3. Co-Conspirator Statements i. Burden of persuasion a. the statement can be used against ANY member of the conspiracy. 104(a) determination 2. Rule 803. Rational has been extended to (C) and (D) of Rule 801(d)(2) iii. Must further the conspiracy v. Despite the distrust. Does this fit 801(d)(2)(E)? 2. Hearsay exception categories a. hearsay exceptions. Only applicable when declarant is available for cross-examination vi. Rule 807. November 01. Distrust of hearsay statements 1. 801(d)(2) cont. or the existence of the conspiracy and the participation therein of the declarant and the party against whom the statement is offered under subdivision (E). Leaves open the door whether or not the alleged conspiring statements can be used solely to prove necessary elements 4. Wrongful death accident . ii. Statement made by agent/servant within the scope of employment.admission for the principle Conspiracy i.person who made the statement did not have personal knowledge of the attack ii. Declarant and defendant conspired 2. Not: applies in both criminal and civil cases ii. Preponderance of evidence 5. If you make a statement during dependency of a conspiracy in furtherance of a conspiracy. declarant unavailable c. Conspiracy to buy cocaine 3. rules recognize exceptions 3. residual exception Page 47 of 58 . Bourjaily v. Problem 4H: Drugs Across the Border 1. it is considered the words of their employers (D) 1. Coconspirator statements are admissible under 801(d)(2)(E) if: 1. iii. 801(d)(1) 1. Contents of the statement shall be considered but are not alone sufficient to establish the declarant's authority under (C). 2010 8:28 AM I. Admission must be for purposes of the pending action iv. Week 11 Monday.bus driver ran over child Strict liability action against bus company FRCP 36: request for admission 1. Statement can be made between principle and agent . Want to cross-examine the witness 2. Wild Canid Survival & Research Center i. IX. iv.does it have to be made to a 3rd party? v. the agency or employment relationship and scope thereof under subdivision (D).i. It provides that the contents of the declarant's statement do not alone suffice 6. ii. Just because a coconspirator makes a statement during the course of a conspiracy doesn't mean it fit 801(d)(2)(E). Rule 804. 1. Declarant's statement was made during the course of the conspiratorial venture 4. This person does not have to have personal knowledge a. Statement is made in the course and scope of employment . US 1.

III.. Exception: wills Hillmon Case i. and one may be startled by an event in which he is not an actor vii. How long can the excitement prevail? 1. US v. not the future conduct of another person Example 4. Then existing mental. Lecture 21. IV. "I am going to Chicago this Saturday" 1. Talks about hearsay within hearsay 2. Participation by the declarant is not required: a non-participant may be moved to describe what he perceives. but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the excecution. 2010 8:39 AM Example: Daniel's Will Question 1: Forward looking statement Page 48 of 58 . or physical condition. in order to repel any implication that other possible grounds for exclusion are eliminated from consideration vii. Problem 4I: I Felt This Sudden Pain 1.II. Theory of exception (2) is simply that circumstances may provide a condition of excitement which temporarily stills the capacity of reflection and produces utterances free of conscious fabrication iv. of course left undisturbed by 803(3) ii.no one else's iii. Rule 805 1. A statement of the declarant's then existing state or mind. identification or terms of declarant's will ii. Startling even or condition b. Transaction or event will largely determine the significance of the time factor v. Any event or condition b. Independent evidence of an exciting event vi. rather than in positive terms of admissibility. v. it has to fit within an exception viii. availability of declarant immaterial 1. Present sense impression a. or physical condition. Excited utterance a. sensation. not past 1. Hillmon so as to render statements of intent by a declarant admissible only to prove his future conduct. revocation. To show current or future. Each part of the combined statements conforms with an exception 3. V. Rule 803: hearsay exceptions. Exceptions are phrased in terms of nonapplication of the hearsay rule. Present sense impression: a statement describing or explaining an even or condition made while declarant was perceiving the event or condition. The underlying theory of exception (1) is that substantial contemporaneity of event and statement negate the likelihood of deliberate or conscious misrepresentation Rule 803(2) i. US supreme court in Hillmon held that such a future statement of intent. November 03. The following are not excluded by the hearsay rule. if offered that the declarant actually did go to Chicago. If any bit is hearsay in this chain. Statement related to a startling event made while the declarant was under the stress of the situation iii. Arnold 1. Made while declarant under stress of excitement caused by event Rule 803(3) i. Declarant's state of mind . Excited utterance exception ii. Statement need only relate to a startling event c. even though the declarant is available as a witness a. falls within the tehn exisiting state of mind exception 2. Statement must describe or explain event c. Requirements 1. CAN make clear that the Hillmon rule allowing evidence of intention as tending to prove the doing of the act intended is. emotional. Made while perceiving or immediately thereafter 2. emotion. b. The committee intends that 803(3) be construed to limit the doctrine of Mutual Life Insurance Co.. Week 11 Wednesday.

or the inception or general character of the cause or external source thereof insofar as reasonably pertinent to diagnosis or treatment Statements as to fault would not ordinarily qualify under Rule 803(4)…thus a patient's statement that he was struck by an automobile would qualify but not his statement that the car was driven through a red light Under the exception the statement need not have been made to a physician. personal knowledge Reaches only records kept in the course of a regularly conducted business activity Regular practice of that business to make the record Record made at or near the time of the events recorded therein Made by a person with personal knowledge or made from information transmitted by a person with personal knowledge Original source of info must have PK.want to get statements when he went back to the doctor saying that the original surgery had a split nerve Petrocelli not acting in course of business when speaking to Swartz (doctor). personal knowledge Example: Archie's Loading Dock Archie counted the widgets Must understand that the source of the information and each other person participating in making the business record MUST be acting in the routine of the business If the source of info was coming from someone outside of the business. If admitted. Gallison (original doctor) -> Petrocelli -> Swartz (2nd doctor) Business chain is broken. but other persons in the chain of transmission of information does not have to have personal knowledge Contemplates and allows multiple hearsay 803(6): records of regularly conducted activity Regular. at. the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party Business Record Exception The element of unusual reliability of business records is said variously to be supplied by systematic checking. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately. shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly. by regularity and continuity which produce habits of precision. by actual experience of business in relying upon them. or by a duty to make an accurate record as part of a continuing job or occupation Regular. you cannot get the entire doc in solely through this rule Petrocelli Case Hernia operation Returned 5 months later because he was having pain Negligence suit . at.Question 2: backwards looking statement Hearsay Exception Rule 803(4): statements for purposes of medical diagnosis or treatment Statements made for purposes of medical diagnosis or treatment and describing medical history. pain or sensations. regular. Cannot admit solely under 803(6) Page 49 of 58 . or even members of the family might be included State v. regular. ambulance drivers. Blake: child molestation case Victim does not testify Prosecution wants doctor's testimony in though Doctor is prepped to answer questions for prosecution in order to get the testimony in Says it is important for her to know facts of attack/attacker because her treatment will be different based on the information (not really believable because the rape kit will not be administered differently) SC did not have a problem with this Requirements for Recorded Recollection Hearsay Exception Under 803(5) Existence of a memo or record Must concern a matter about which the witness once had knowledge Must correctly reflect such knowledge of the witness The witness must have made or adopted the memo or record Must have made or adopted while the matter was fresh in the witness' memory Insufficient recollection to enable witness to testify fully and accurately Rule 803(5) Recorded recollection. Statements to hospital attendants. or past or present symptoms.

yes because you can remember making a statement but not remember what the statement was about Is unable to be present or to testify at the hearing because of death or then existing physical or mental illness or infirmity. or data compilations. factual findings resulting from an investigation made pursuant to authority granted by law. declarant must not be available AND additional requirement Unavailability defined Exempted by ruling of the court on the ground of privilege from testifying concerning the subject matter of the declarant's statement. Availability of Declarant Immaterial The following are not excluded by the hearsay rule. or In absent from the hearing and the proponent of a statement has been unable to procure the declarant's attendance (or in the case of a hearsay exception under (b)(2). however. reports.Example 2: Marcy works at a non-profit homeless shelter. Jeff sues the driver. in criminal cases matters observed by police officers and other law enforcement personnel In civil actions and proceedings and against the gov't in criminal cases. or boundaries: Judgements as proof of matters of personal. unless the sources of information or other circumstances indicate lack of trustworthiness Baker Does not pave the way to allow that to come in Lecture 22. if the same would be provable by evidence of reputation Transferred to rule 807 Rule 804(b) Makes the hearsay rule inapplicable . the declarant's attendance or testimony) by process or other reasonable means (b)(1) is missing here . November 08. or Persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so. in any form. family or general history. statements. even though the declarant is available as a witness: Judgement as to personal. it's good enough Page 50 of 58 . or (4). 803(6) and 802(d) may be used in combination to bring the entire record in. I am so drunk I just stumbled in front of a car and got hit. or boundaries. Week 12 Monday. Use the record to recall memory Rule 803(7) Failure of a record to mention a matter which would ordinarily be mentioned is satisfactory for admission Absence of entry in records kept in accordance with the provisions of paragraph (6) Rule 803(8) Public records and reports Records. 2010 12:58 AM Rule 803. or Can the same witness be available for 803(1)(A)(i) and not available for 804? . (3).if it is former testimony and fits.4 exceptions Only present if the declarant is unavailable Prefer live testimony Don't have to show availability for 803 For 804. or Testifies to a lack of memory to the declarant's statement. I'm drunk and proud of it. of public offices or agencies. essential to the judgment. family or general history. setting forth The activities of the office or agency Matters observed pursuant to duty imposed by law as to which matters there was a duty to report." She writes this in her report for the day. She hears "I am Jeff. excluding. Can the record be used? Yes. Hearsay Exceptions.former testimony .

As long as they made an attempt to get her to stay. claim of lack of memory.just believe in imminent danger of death but MUST be unavailable Must include the identity of assailant and description of what happened Lecture 23. but someone else had a right to cross-examine and they are your predecessor. it's enough Giving her passport and plane ticket back . just have the opportunity to cross Lloyd Case Lloyd sues American Export AE brings in Alvarez Alvarez countersues AE Whole thing triggers a coast guard hearing against Lloyd Both Lloyd and Alvarez testify at the hearing There is no way for Alvarez to cross-examine Lloyd disappears AE's claim against A disappears A's claim against AE is still valid AE wants to use L's testimony at the coast guard hearing to assist them against A's claim A's argument . They had similar interests and could have cross-examined for you" Did ANYONE have the ability to cross? Was the person a predecessor in interest? 804(b)(2) Statement under belief of impending death. cross. November 15. the prosecution should be able to use her disposition. Problem 4L: "The Government Let Her Go" This problem falls under 804(a)(5) in that Shell's absence was unavoidable. preliminary hearing. if the party against whom the testimony is now offered or.A declarant is not unavailable as a witness if exemption. concerning the cause or circumstances of what the declarant believed to be impending death Applies to civil cases and criminal homicide cases Declarant does NOT have to die . or absence in due to the procurement or wrongdoing of the proponent of a statement for the purpose of preventing the witness from attending or testifying."Yes. Week 13 Monday. In a prosecution for homicide or in a civil action or proceeding. 2010 8:30 AM Exceptions Rule 803 Rule 804 Rule 807 (residual exceptions) Constitution Rule 804: Hearsay Exceptions. a statement made by a declarant when believing that the declarant's death was imminent. or in a deposition taken in compliance with law in the course of the same or another proceeding. administrative hearing. Declarant Unavailable (b) Hearsay exceptions Page 51 of 58 . A solution may be to offer her travel expenses. etc Party against whom former testimony is offered ( or in civil case . inability. The DA is correct in that they could not hold her in custody for 2 months. had an opportunity and similar motive to develop the testimony by direct. refusal. in a civil action or proceeding. or redirect examination Three requirements Declarant must be UNAVAILABLE at trial Former testimony must be from a trial.does that mean that there was enough done? There are ways to detain people but for how long? Rule 804(b)(1) Former testimony: testimony given as a witness at another hearing of the same or a different proceeding."I had no right to cross-examine" AE's argument . If she continues to refuse. deposition.predecessor in interest) had the opportunity and similar motive to cross-examine the declarant Does not HAVE to cross. a predecessor in interest.

Roberts: To use hearsay statement. doesn’t reach entire narrative (related statements/contextual statement/collateral statements) Analyze statement to see what truly is against interest (4) Statement of personal or family history (6) Forfeiture by wrongdoing: A statement offered against a party that has engaged or acquiesced in wrongdoing that was intended to. P must show strict constitutional notice of unavailability and constitutionalize notion of sufficient reliability SC does not the reliability notion Crawford: D assaulted the victim because V had allegedly raped D's wife Page 52 of 58 . when made. offered by the party opponent . if it is offered in a criminal case as one that tends to expose the declarant to criminal liability Persons do not make statements against themselves unless they are satisfied that they are true Made by the party. a statement made by a declarant while believing that the declarant's death was imminient.(2) Statement under belief of impending death: in a proecution for homicide or in a civil action or proceeding. procure the unavailability of the declarant as a witness Right to object on hearsay grounds Need NOT consist of a criminal act Rule 807: Residual Exception 5 requirements to use Equivalent circumstances guarantees of trustworthiness Offered as evidence of a material fact More probative on the point than any other evidence Interests of justice will best be served by admission Proponent of it makes known to the adverse party sufficiently Only to be utilized rarely Constitutional Issues of Hearsay 6th amendment: applies to a criminal case Accused can confront the witnesses against them Right to be present at trial You can lose that right by misbehaving 2004: right of confrontation changed in Crawford decision Leading up to Crawford Constitutional guarantees . concerning the cause or circumstances of what the declarant believed to be impending death Statement declaring who gave them the mortal wound ."X shot me!" Belief that a person who thinks they are going to die will tell the truth Guess or speculation is not something that can fit within the exception Must have personal knowledge CA law .higher standard of unavailalbility Always required to show unavailability Ohio v. US . and did.801(d) party admissions Admission by Party Opponent Statement only by a party opponent No unavailability requirement No against interest requirement Party need not have personal knowledge Statement Against Interest Statement by a witness Witness must be unavailable Must be against declarant's interest Must be within the declarant's personal knowledge Williamson v.collateral statements Not all collateral statements fit within exception Reaches only statements that are themselves against interest.1242: if the statement was made with personal knowledge and under the sense of immediately impending death Not limited by homicide or civil action/proceeding (3) Statement against interest: A statemenet that: (a) a reasonable person in the declarant's position would have made only if the person believed it to be true because. it was so contrary to the declarant's proprietary or pecuniary interest or had so great a tendency to invalidate the declarant's claim against someone else or to expose the declarant to civil or criminal liability. and (b) is supported by corroborating circumstances that clearly indicate its trustworthiness.

P needs the recording to prosecute Statements are nontestimonial when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.testimonial If there was an ability to cross-examine. Week 14 Monday. subject to cross or you lose the statement Davis Court is further defining what "testimonial" is and what it isn't Finds that the recorded statement was not testimonial . unreliable testimony Example: female flight attendant brought action against her employer. if allowed.looks more neutral Exercise of court's discretion .D's wife testified to the police She was unavailable because of spousal privilege Roberts proponents: If not testimonial. they must be there to testify.not guilty (insanity) W testifying directly to his mental state Caused the amendment saying no expert can do this anymore Have expert testimony in place that is consistent with jury instruction Provide the jury with a roadmap Does not mean you have to tell the jury what to do Abolition of the ultimate issue rule does not lower the bar so as to admit all opinion Expert witnesses are usually hired by the court themselves Hopefully to give neutral opinions US courts have been reluctant to appoint a court-appointed EW Looks bad to foreigners When should you start to keep experts out? Some courts have started to look to Rule 706 Court has the power to appoint their own expert if they want to Would probably be considered the most believable to the jury . Such ultimate issues are matters for the trier of fact alone Hinkley Case . must satisfy Robert's two-prong test Hypothetical: non-testimonial hearsay. 2010 8:34 AM Rule 705: Disclosure of Facts Expert Witnesses Rule 704: Opinion on Ultimate Issue (a) Except as provided in (b).trial judges can do away with non-relevant. you could be screwed Distrust for expert . American Airlines P's expert will testify. fits under excited utterance Can it be used without showing that declarant is unavailable? Statement made knowingly to third party will not be testimonial 801(c) .can tell the jury that the court itself hired the witness Doesn't prevent other parties from hiring their own witness Will your expert be able to testify? Rigorous reliability challenge If it is not admissible. November 22. testimony in the form of an opinion or inference otherwise admissible is not objectionable beceause it embraces an ultimate issue to be decided by the trier of fact (b) No expert witness testifying with respect to the mental state or condition of a D in a criminal case may state an opinion or inference as to whether the D did or did not have the mental state or condition constituting an element of the crime charged or of a defense thereto. and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution Government trying to use hearsay against the criminal accused . Crawford is satisfied If its testimony.problem Lecture 25. that the P's preeclampsia and resulting miscarriage were caused by work related stress Page 53 of 58 .statements that are not hearsay Does not change after Crawford 803 exceptions . They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency.

Week 15 Monday.e.broad Difference between attorney-client privilege L-C privilege is a component of the duty of confidentiality Lecture 16.no longer giving this to general scientific/expert community Must be relevant and reliable (based on trial judge's opinion) Fry standard is dead .can still have privilege Case where lawyer not acting as an attorney Applies only to confidential communications between client and lawyer or lawyer rep Page 54 of 58 .Should this be allowed in? Must have damages and causation Example: cheese producer's employee sues dairy cooperative.5 OTHER factors) Look objectively without bright line rules In Kumho. 703) 4 factors that should be looked at General acceptance is one factor the court should consider Not the only factors (look at Rule 702 . 2010 8:38 AM Attorney-Client Privilege Attorney: lawyer or person who client reasonable believes to be an attorney Person who is an imposter lawyer . expert may testify Fry v. which contained a chemical known as aflatoxin Expert testimony was stricken because they couldn’t prove causation Rule 702: Testimony by Expert Assist the trier of fact to understand the evidence or to determine a fact in issue.had not yet gained general acceptance from where it belongs (scientific community) General acceptance test created Doubert Process changed . It pointed out that the such testimony is admissible only if it is relevant and reliable 104(a) determination Tells trial judges to take hard look at scientific evidence and determine if it is relevant and reliable Should NOT let in unreliable testimony even if it reached general acceptance Joiner Case Appropriate standard an appellate court should apply in reviewing a trial court's decision to admit or exclude expert testimony is the abuse of discretion standard Privileges Preventing for coming admissible for some important reason Rule 501 Governed by the principles of the common law Civil actions determined in accordance with State law (Erie) 503: lawyer client 504: psychotherapist patient 505: husband wife 506: communication to clergy Lawyer-client relationship Formed as soon as the client reasonably believes Duty of confidentiality . alleging that he developed cancer of the larynx as a result of exposure to cooperative's aerosolized milk. Rule 403. the Supreme court summed up its decision in Daubert as follows: In Daubert…this court focused upon the admissibility of scientific expert testimony. November 29.does not mean there aren't limits to admissibility of Expert Testimony Must be based on a reliable foundation Must be relevant at the task at hand Subject to exclusion (i. US Admissibility of EW derived by polygraph CoA rejected this testimony .

not necessarily privilege Still have to produce them People v. get back Jaffee v.sometimes lawyer needs help Can waive privilege so long as it doesn’t disclose the other's confidential information Pooled defense arrangement L1 represents A L2 represents B Can A and B get in same room with lawyers and have privileged communications? YES Best to have pooled defense agreement Must have some common interest Problem 12D Joint client doctrine. Meredith There is a burn barrel behind D's house.you better know that additional information may have to be produced with it (b) inadvertent disclosure . Client tells lawyer about it and he goes and gets it from the barrel. privilege not there to protect observations Can probably be forced into testifying in this case If you bundle up a packet of paper and give it to your lawyer.taking the wallet and not warning client of the position he would be in What if a lawyer destroys or conceals evidence? Don’t do it! EVER! Must be intended to be confidential Look at circumstances to make that determination US v. Police never found wallet.Can extend to paralegal Must be for rendering legal services Problem 12B No privilege Lawyer is not providing legal services but acting as conduit for transmission of the technical information Problem 12C Privilege if client comes in to see you and they are drunk and then get into an accident? Do you have to testify? Not legal services. family claims that she came out guns blazing while victim was unarmed Page 55 of 58 . but it was out there. just explains why it is CA law: party only need to give prima facie evidence Standard of review is such that lower court has great discretion You don’t have to have confidential communications contain confidential information Duration of privilege Continues to protect even after the death of a client Problem 12V Does not have an obligation to go to prison Waiver Inadvertent production of client privilege RULE 502: does not alter federal or state law on disclosure of privilege (a) deals with intentional disclosure . common interest would prevail and hold it to be privileged Person who is claiming the privilege who has the obligation to satisfy the burden the at the privilege exists Privilege log: document to X from Y with a description of why its privileged Does not disclose the privilege. motion to compel should be denied Privilege is lost when the joint clients have a falling out and engage in subsequent litigation against each other Privilege claim should be sustained. They check it out and bring it to the police. Police wants to know where the victim's wallet was found Court says that it would be privileged if the client did not touch the wallet Cannot get the information unless it is likely the police would find it . Kovel Extends to accountant . Redmond Female police officer is being sued for shooting someone .too speculative Unethical: tampering with evidence.as long as reasonable steps were made to withhold and rectify.wrongful death She claims that he had a weapon. Waiving privilege for client .

a simple call would be enough More likely to find plain error when there is not timely objection .She goes to a social worker (not psychotherapist) P wants that information Trial judge gives an adverse inch for instruction . it's unfairly prejudicial (403 objection) 105: if asked.no material issues for the jury to decide Limited admissibility Evidence is admissible for one party and not others Significant chance for unfair prejudice Once there's evidence that doesn't come in generally.where rules do not apply Underlying Rational of FRE Utilized to regulate mistrust of juries (FRE 404 . 1 MC 120 T/F 70 MC Major difference between FRE and CA evidence law Right of truth in evidence Rule 26 just got changed today .inherent power in judge to do this Spousal Privileges Spousal Testimony Only applies in criminal cases in most states SC has held that testifying spouse holds privilege Must have a valid marriage at the time marriage was sought Inquiry into spousal confidential KNOW 403.can't trust juries enough to deal with this) Mechanism to favor or disfavor certain claims Clear and convincing standard for burden of persuasion of fraud claim .applies both in civil and criminal cases Occasions where state law will drive the rule of decision Presumptions Competency of witnesses Privileges FRE 1101(d) . Rules of completeness Page 56 of 58 . court must give exclusion. there should be a limiting instruction Once jury uses evidence for more than what they're suppose to. 2010 8:34 AM 190 questions 3 sections: 2 T/F. etc.we disfavor fraud claims Authentication and why it's important Provide mechanism to provide important policies matters Limit scope and duration of trial Protect private relationships (privileges) Allow for due process at time of trial (cross-examination) Making objections and preserving them for appeal Timely objection. timely offer of proof Nothing special . December 01. 801(c) Final Review Wednesday.puts into record Object and state the reason(s) why Issues for the court to decide and issues for the fact finder to decide Judge should be determining the law (104a) Jury makes factual determinations Never go to trial without something material in dispute Summary judgment .this rule will be on the exam Underlying rational and Scope of FRE Scope: broad . redaction.

even with otherwise inadmissible documents This puts into evidence and must hand over to the other side as well If you can't refresh the Witness' memory.only determine if a prima facie case has been satisfied Burden of persuasion: addressed to the jury/ trier of fact Judge determines the size of the box ( beyond a reasonable doubt. dead man statutes. child. adverse.impeachment with a prior crime involving false statement or dishonesty 609(a)(1) . You have a right to put this in context . etc) Cross: you can lead the witness Never ask a question in cross that you don't know the answer to Refreshing recollection You can use anything to refresh recollection . etc. ask whether it is civil or criminal case? 404(a)(1)&(2): wont allow in unless other side puts it in first 404a3 . FBI agent. Competency of witnesses Liberal standard .former challenges went to impeachment With certain exclusions. preponderance.impeachment attacks of credibility Page 57 of 58 . ANYONE can be a competent witness so long as they take an oath. judge cannot testify Judicial notice Limited to only the adjudicative facts Restrictions of the rules do not cover legislative facts Trial court can take notice of legislative fact even if it is in dispute . this is not a 403 standard 403: great discretion but not unbridled 404: start by asking if it is an essential element General propensity is almost never essential in criminal cases Something else? Habit. etc. ability to communicate Exceptions: Juror cannot testify. excludes the witness so they cannot hear each other Exception: constitution . motive. clear and convincing) Plaintiffs should have a "burden of education" . is it a sexual assault or child molestation case? If no.not true of adjudicative fact Burden of going forward and burden of persuasion Presumptions You cannot understand a presumption unless you fully understand the burden of going forward and the burden of persuasion Burden of proof is an inarticulate term .non-hearsay Assume that everything in a document is inadmissible .accused.other side wants to bring in one part of the document.assumes 2 different burdens Burden of going forward: addressed to the trial judge Party must fill up the magical box to create a prima facie case Not the judge's role to make credibility determination . perception.not technically unfair because the rules allow it Generally. essential element.bursting bubble theory Does the burden of persuasion get shifted ever under the FRE? NO Permissible factual inferences: can use if rationally based Relevancy and its limits General propensity . they are not competent Carve out . If there is general propensity. intent.fairness rule Adverse party can put in evidence to put the evidence in context Types of evidence Real Demonstrative Circumstantial Order and manner of witness examination Effective cross-examination Direct: there are situations where you can lead the witness (hostile.106 . 403 is available to make these arguments Where 403 does not apply: 609(a)(2) .impeachment for a prior crime not involving false statements.entire document is up for grabs Exclusion of witnesses 615: at the request of the party.educate the judge and jury FRE .

must be a felony. is this hearsay? Is it subject to an exception? It is a criminal case? Is the lawyer violating the 6th amendment? Was criminal accused subject to cross? Lay witness opinions and expert testimony Prep your people Privileges Page 58 of 58 . trying to create some inconsistency. can you get around the hearsay rule or does the hearsay rule otherwise get around this? Constitution: don't look for inditia of reliability. criminal accused. different standard 403 Hearsay 10-12 questions on whether something is hearsay under 801c .Authentication and identification "Best" evidence doctrine Original document rule Only if you are trying to prove the content of the writing or recording Impeachment Voucher rule . 609a1 .doesn’t matter if it’s the criminal accused. and then try to impeach them with some inadmissible document Attack of the credibility of the witness .TAKE THE HEARSAY QUIZ Statement made out of court offered for the matter excluded not otherwise excluded under 801d If it's hearsay.abused by calling an adverse witness.this is somewhat hurt by allowing hearsay into evidence Misdemeanor for perjury 609a2 .

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