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15 multiple questions 2-3 essays o no need for a separate rule statement if your knowledge of the rule is clearly communicated

d in your analysis (but feel free to provide a statement) o Do discuss all colorable (i.e. reasonable) objections. I.E. Do I need to address FRE 401 relevance in each question; or the definition of hearsay. Instead of saying rule 403 says the following Can say that here the prosecution will argue the admissibility of the evidence under rule 403 because its probative value substantially outweighs its prejudicial value for reasons x,y,z as in class hypos and examples make all reasonable arguments for and against a particular position. o Example admissibility for multiple purposes and therefore if something is admissible for one reason but then not for another the need and purpose of a limiting instruction. Analysis analysis analysis. 1: Form How is the evidence being introduced? - Direct, Cross? o Purpose: The evidence has a tendancy to make fact that X happened more or less probable. 2: Objections to questions and answers. - Rule: Character evidence can only be etc. - P will argue evidence admissible as an exception under x,y,z rule

RULE-401: Standard: Any Tendency [this is a low standard to meet] 2 Parts Materiality: Bears consequence -Substantive law determine if something is or is not a fact of consequence. Probativeness: Makes more or less probable

RULE 104(b): When the relevance of evidence depends on whether a fact exists, proof must be introduced sufficient to support a finding that the fact does exist. The court MAY admit the proposed evidence on the condition that the proof be introduced later. STANDARD: is decided on basis of common sense and Judge makes determination upon preponderance of evidence. Judge must determine ONLYU that a reasonable jury COULD make the requisite factual determination based on the evidence before it. NOT required to weigh the credibility of the evidence. TEST: is there sufficient evidence that a reasonable jury could make the requisite factual determinations. DIF THEN R 401 Does it make a fact of consequence more possible? HERE 104(b) Reasonable jury could be satisfied (2)PG 32 COX v. STATE FACTS: Victim shot in bed. Victim had an allegation against s friend for child molestation. The s friend was currently awaiting a bond hearing of which the prosecutor wanted to enter into evidence as a motive. ISSUE: Whether evidence about bond hearing can be entered into evidence; R104(b): If he heard about the meeting then the conditional fact would satisfy and connect the two. HERE: the info is admissible is only allowed upon or subject to the introduction of evidence sufficient to support a finding of the conditional fact (i.e. connecting the two) Evidence/facts introduced to support and satisfy 104(b) are 1) good friends with them 2) there all the time *Court concludes that 104(b) satisfied thus the evidence is admissible.

-This does not equate to his guilt because the jury still is required to weight that evidence in determining guilt. (3) State V. Bocharski Facts: moved in with his friend who gave him a knife. Killed neighbor lady. At trial six gruesome photos were tried to be entered into evidence. ISSUE: Should trial court of allowed the pictures into evidence under rule 403? ANALYSIS: If NOT contest the pictures were of consequence then the relevant probative value = min. -HERE not challenge the victims injuries. -If time of death were a question THEN YES pics probative. - Further the pictures do NOT demonstrate the type of weapon. Rule 105: Limiting Instructions The trial judge originally allowed x,y,z pictures to be admitted to show angles however, prosecutor never elicited testimony concerning the angles or their importance. Although the pictures met the bare standard of relevance (any tendency to make a fact of consequence more likely) They had little tendency to establish any disputed issue in the case thus we are left to conclude that they were introduce to INFLAME JURY (4) p54 MYERS - alleged to have robbed bank with gun. s friend looks same; pled guilty to it. FBI tried catching him once in Florida and then once in California. - Fact that ran NOT sufficient for guilt BUT if proved can be considered by jury in determining - *The jury should consider the motive prompting the flight. (5) OLD CHIEF P77 FACTS: on trial for violating statute that says any person convicted of x crime is x,y,c ISS: whether lower court abused discretion if rejects concession allowing all crimes into evidence HOLD: It does RULE 404(b) Evidence of other crimes, wrongs or acts is NOT admissible to prove the CHARACTER of a person in order to show action/conduct in conformity therewith. RULE 403: Evidence of convictions prior to for unrelated crimes may lead a juror to think that if already is a criminal then an erroneous conviction would not be as serious as it would be otherwise.

901(a): evidence sufficient to support that the item is what they say it is. Standard: 104(b) must produce evidence sufficient that the jury could reasonably find.. by a preponderance of the evidence that it is what it is. 1001,1002,1003,1004 Proving Content *When does litigant prove the content of a writing recording or photo? (1) Rule 1002 When writing/recording is itself at issue (2) Rule 1004 If original is lost, etc Can be a copy but NOT human handwritten BEST EVIDENCE RULE usually will require the original/duplicate NOT human testimony. * IT then has independent probative value and NOW RULE APPLIES - IF the testimony is NOT being used to prove substantive content of Document then rule DOES NOT apply SPECIALIZED RELEVANCE . RULE 407: SUBSEQUENT REMEDIES *NOT TO PROVE ownership, control, feasibility if controverted or to impeach RULE 408: Compromise claims must be disputed NOT TO PROVE witness bias, lack of undue delay or obstruction of criminal investigation RULE 409: MEDICAL EXPENSES RULE 410: PLEAS ADMISSIBLE UNDER THIS RULE evidence from plea to complete partial account of talks and in perjury prosecution if (1) under oath is (2) in lawyers presence. RULE 411: Liability Insurance or lack there of; or to prove neg/wrongful etc *NOT TO PROVE agency, ownership, control, witness bias..

(1) Character In Issue: When character itself may be an element of a crime, claim or defense. (2) Circumstantial Character: evidence to suggest/show acted once consistent with behavior charged. *NOTE: negligence suit character for negligence NOT admissible; character is NOT an essential element. EXCEPTIONS 3 RULE 404(a)(2)(A) may offer own pertinent GOOD traits PROSECUTION may introduce and Rebut. RULE 404(a)(2)(B) offer victims pertinent trait Prosetcution may (i) offer evidence to rebut and (ii) Offer evidence of s SAME trait. IF HOMICIDE CASE state offer evidence victimss trait peacefulness TO REBUT ACCUSATION self defense. NEVER allowed in CIVIL CASES 404(b): Past Crimes, Wrongs or Other Acts. (1) Prohibted Uses: To show character of person in order to show acted in conformity with that (2) Permitted Uses; Notice if Criminal: To prove motive, opportunity, intent, preparation, knowledge TEST: Whether a prior arrest be made a subject of inquiry is tested by whether via comparison with the crime on trial and by comparison to the reputation asserted that a court may judge whether the prior arrest should be made the subject of inquiry. RULE 406: HABIT Invariable regularity. A regular response to repeated stimuli. Evidence of intermediate habits generally are BARED when offers as proof of drunkenness for example in an assault case STATE V. ZACKOWTIZ P137 FACTS: murder multiple weapons at his house 404(b)(1) propensity evidence of having multiple guns is sub outweighed by risks imposes of unfair prejudice, jury confusions time, etc. NOT ADMIT: to prove action in conformity there with on a specific occasion *TRENKLER QUINCY BOMB* Facts: charged made bomb. State offer evidence of past bomb. not dispute made prior bomb. 404(b)(2) IDENTITY: prerequisite to admission show high similarity btwn 2 events MODUS OPERANDI Past crime/characteristics need to be sufficiently idiosyncratic to permit an inference of pattern for the purpose of proof. Does not have to be an exact match. Prosaic commonalities are not sufficient. TEST & STANDARD 104(b) (1) Acts show s handiwork. (2) There are sufficient idiosyncratic qualities (3) It must be so distinctive to be that of the ; otherwise it is mere propensity 403 ANALYSIS: Prior bombing not kill parties Judge determined evidence of knowledge therefore allows it. MICHELSON P233 FACTS: convicted of bribery. Witness knew 20 years; Witness asked about crimes 20+ years old. GENERAL RULES: Rule 404(a)(2)(A) character witness only testify Rule 405(a) Community Rep Can not give testimony based on time together and personal opinion Can not testify about s specific acts. o Rule 405(a) CROSS EXAM Allows for questions into specific conduct Cannot EXTRINSIC evidence to prove/disprove basis of knowledge for character witness. Ex: light was green. Witness cannot introduce pictures that light was green. Prior Assault Crime and Present Drug Crime? No assault to different of crime. - Is not propensity evidence and thus always allowed to ask about past acts.


-NON-CHARACTER IMPEACHMENT: (1) BIAS: Ex a few good men. Dr. gave person a good review thus could be bias because it would look bad if it wasnt poison. (2)PRIOR INCONSISTENT STATEMENT: did the witness say something inconsistent with prior statement thus present testimony is less believable. (3) CONTRADICTION OF EVIDENCE: -CHARACTER BASED IMPEACHMENT - 608(a): Witnesss credibility attacked by in form of opinion. NOT for peacefulness or demeanor.

o Evidence of truthful character only admissible after wit character for truth attacked. - 608(b): cross exam can inquire into specific instances. IF CIVIL NO EXTRINSIC CRIMINAL YES. - * The rule places no restriction on extrinsic evidence offered to show that the witness lied about noncharacter matters in the present case for character we look to 405(a)&608(b) [U.S. v. ABEL: called witness and asked if he and belonged to club who steal, kill, and lie for one another: ADMISSIBLE: (1) because the specific instance tends to show the character 608(b) (2) showed bias toward (not admissible but admissible as to above) -Witness Denied. .ISSUE: Whether JANE DOE could be called to corroborate. Yes BECAUSE: evidence tending to show witnesss bias, prejudice or motive to lie is so significant that it is NOT considered a mere collateral matter but is deemed exculpatory evidence that MAY be established by extrinsic proof as well as by impeachment via exam. 611(a)(3): Provides that a under 608(b)(1) cross examination questions must be weight by the judge and judge must exercise reasonable control to protect witness from harassment and undue embarrassment. 609(a)(1)(NOTICE): Permits a litigant to impeach with evidence that witness has been convicted of previous crime punishable by > 1 year. - 609(a)(1)(A): available only for WITNESSES Evidence has presumption of admissibility and to bar the evidence need show that the prejudice substantially outweighs probative value. - 609(a)(1)(B): available only for -witness. Different burden/ burden is switched. Need NOT show unfair prejudice substantially outweighs probative value STANDARD: Plaintiff has burden of proof to show that probative value > prejudice. - 609(a)(2): no balancing test. Dishonest crimes (i.e perjury) are automatically let in. No discretion. Where the deceitful nature of the crime is not apparent from the statute and the face of the judgment-as, for example, where the conviction simply records a finding of guilt for a statuary offense that does not reference deceit expressly-a proponent may offer information such as (a) an indictment (b) statement of admitted facts (c) jury instructions to show that the fact finder had to, or the defendant had to admit, an act of dishonesty (d) false statement in order for the witness to be convicted. * U.S. V. BREWER * FACTS: charge kidnapping; stolen car. motion to suppress past convictions all punishable > 1 year. ANALYSIS: a conviction greater than 10 years old is NOT admissible unless: (1) court finds probative value is (2) supported by facts and circumstances that substantially outweigh prejudice. Five factors 609(a) BALANCING: (1) Nature of crime: i. violence generally NOT demonstrate veracity for Truthfulness. ii. If crime is type of crime (ie perjury) and its probative value tells us about whether the defendant is the type of person who would commit the crime then if this makes it all the more likely then it should be admitted. iii. [KIDNAPPING HYPO: previous conviction for kidnapping does NOT go to the veracity for truthfulness because the ACN comments tell us that violent crimes like this do NOT speak to it.] (2) Time of conviction and subsequent history: i. history of violating law favors impeachment and to permit evidence. ii. [HYPO: the time between the past crime and the current crime speak to his nature in that the violation of parole tells us he continues to be the type of person who would be more likely to commit a crime and therefore supports its admission.] (3) Similarity between past crime and present:

i. Same crime (ie kidnapping) argument that it be kept from jury preventative detention, propensity = prejudice. ii. The threat of unfair prejudice raises the likelihood it will NOT be admitted. iii. [HYPO: The fact that it is the same crime for which he is now charged raises concern of unfair prejudice. Here given the fact that he has a long list adding a crime which is the same as the current charge wouldnt add anything probative and thus sways in favor of NOT admitting] (4) importance of s testimony (5) the centrality of the credibility issue HOLD: Only the kidnapping charge here inadmissible as the it would be overkill and lead to preventative detentions BUT the other s permissible. RULE 609: Prior Convictions - A 403 under 609(a)(1)(A) WITNESS NOT DEFENDANT has a presumption of admissibility and to bar the evidence it must be shown that the unfair prejudice substantially outweighs the probative value - DIF under 609(a)(1)(B) for a witness-who is a DEFENDANT there is a different burden Plaintiff needs to show that merely that the probative value > prejudice. o 609(a)(1)(B): the plaintiff has a harder time introducing prior convictions of because the prejudice regarding preventative detention is already high. - 609(a)(2): No balancing test for convictions of dishonesty or where an element of the crime was for dishonesty. These are automatically allowed in. No discretion. STATE V. JAMES FACTS: wife gave daughter gun; self defense Key: reasonable fear. claims victim bragged about crimes. ARG: Court documents are demonstrate the key element under 405(b) and are non propensity based argument going to her reasonable fear because if he bragged about it in the past this would have a tendency to lead a reasonable jury to find it more likely then that she reasonable feared for her life. REHABILITING WITS CREDIBILITY 608(a)(2): One party may rehabilitate its Own wits character for TRUTHFULNESS ONLY AFTER the other party has attacked the wits character for UNTRUTHFULNESS. -(1) IF one party for ex: has offered opinion/reputation evidence regarding s bad character under 608(a). -(2) IF on cross-examination evidence specific acts of witness that are probative of untruthfulness 608(b) -(3) IF offered evidence of past conviction of witness under 609. ***Evidence of BIAS or INTEREST do NOT qualify as an attack on character under 608(a)(2)*** ***Evidence in form of a contradiction is an attack upon character of witness MUST depend on circumstances: - IF mistake of perception, memory, narration then the contradiction would NOT be an attack on character. - IF contradicting evidence suggests witness lied intentionally/ pervasively it MIGHT be attack on character. -THE truthfulness of a witnesss testimony in present proceeding may be corroborated by non-character evidence without regard to the constraints imposed by Rule 608. that is, if a witness has testified the light was red, a litigant may offer ANY kind of evidence otherwise permitted by the rules to show the light was indeed red (i.e a photo) * BUT not green in order to show/attack a witnesss character for truthfulnessONLY to rehab.

ANALYSIS: Four testimonial capacity concerns.(1) Perception: (2) Memory: (3) Narration: (4) Sincerity: Non-Hearsay uses of out-of-court statements 1) Impact on listener: to prove impact of the statement on someone who heard it BC testifies that day before run in with the victim; AB called and told him to watch out for the victim because he was looking for him) The key when BC is claiming self-defense is that this is admissible in order to establish the element of reasonable fear. If offered to show that the vic was looking for him then NOT admit. 2) LEGAL RIGHT: triggered by, or, an offense caused by, the statement. (ex: Words that meet legal conditions like I accept the offer or I will kill you 3) IMPEACHMENT To impeach declarants later, in court testimony (prior statement doesnt show truth of statement but at different times witness said different things.)

NOTE: IF witness is asked even at court about an out of court statement made by himself the statement is still hearsay. REASON Witnesses own out of court statements are barred because if allowed in would give rise to issues regarding witnesses narrative, memory, etc capacities which is faulty and could be so because was made years ago.


801(d)(1): Prior statements by witness * The declarant testifies and is subject to cross-examination about a prior statement and the statement; (d)(1)(A) Prior inconsistent statements at penalty perjury at trial, hearing, or other proceeding or in a deposition. (d)(1)(B) Prior consistent statements with testimony to rebut charge of recent fabrication/motive to testify. (d)(1)(C) Statements of identifications: anyone with personal knowledge of I.D. can testify provided declarant is available and testifies at trial. 801(d)(2) Admissions by Party-Opponents (d)(2)(A) Parties own statement (d)(2)(B) adopted manifestation: (1) Heard (2) Could have responded (3) situation calls for answer (4) not respond. (d)(2)(C) made by person authorized (d)(2)(D) Made within scope of work employee while employed. (d)(2)(E) Co-conspirator (1) Out of court (2) Made by Coconspirator (3) during crimes (4) in furtherance of them. MAHLANDT v. WILD CANINE SURVIVAL & RESEARCH CENTER FACTS: 3 year old killed by dog. left note and had conversation with wild life president re: dog bitting. ISSUE: Does agent/boss need personal knowledge of facts of statement to be in scope of employment. HOLD: NO 801(d)(2)(D) BALANCED by rule 403. o HERE: two statements made by were admissible against the Canine Center. THE MINUTES NO no relationship because Poo (dog owner was NOT at meetings. BOURJAILY FACTS: FBI used undercover agent and arranged to sell coke via Lonondo Phone conversation.. ISSUE: Whether statements made by a coconspirator are admissible against the petitioner? GEN RULE: Statements by a coconspirator are admissible. - Judge makes preliminary evidentiary findings, not bound by rules evidence, and 104(b) in fact 801(d)(2)(E)s requirements satisfied the conversation/statements are allowed into evidence assuming passes a 403 analysis. 613(b): Extrinsic evidence of a witnesses prior inconsistent statement is admissible ONLY IF the witness is afforded the opportunity to explain or deny the statement AND an adverse party is given an opportunity to examine the witness (cross exam) This subdivision does not apply to an opposing partys statement made under 801(d)(2) EX: witness denies statement extrinsic, including other testimony can be admit because evidence not character impeachment but for non character based impeachment via prior inconsistent statements. 613 and the prior inconsistent statements are NOT used for their substantive value as in 801(d) 613(b): requires the witness be afforded at some time the opportunity to explain or deny the inconsistent statement and for further interrogation. o Inconsistent: need be a tension between the two statements; a shift in testimony HYPO 7.20: assaulted wife gave testimony that her husband accidentally hit her with the bathroom door. o NOW she is testifying that she does not remember ?Are these statements inconsistent? (Majority) treats lack of memory in court to be inconsistent with out of court statement Judge assesses whether witness is telling the truth based on 104(a). IF judge deems she is telling the truth the judge may not let it

in as substantive law. HOWEVER, if she is found to be lying the judge may allow it in as substantive. o TAKEAWAY if meets elements of rule the evidence comes in as substantive evidence; not for purposes of impeachment.

FACTS: Charge conspiracy; At trial the two witnesses invoked privilege against self-incrimination ISSUE: Whether State had similar motive to develop btwn GRAND JURY & trial witness unavailable. RULE: 804(b)(1)(A) : (NEED BE UNAVIALBALE) Similarity of motive is shown where the party resisting the offered testimony at a pending proceeding (criminal trial) had, at a prior proceeding (grand jury) an interest of substantially similar intensity to prove/disprove the same side of a substantially similar issue RULE 804(b)(1)(B) Predecessor in Interest: when in civil case, and former testimony is offered against party, the predecessor in interest if had the opportunity to testify and each have similar motive/interest the evidence can be offered against new owner even though comes from the p.i.i. Ex: lawsuit against owner of a building. During the suit, the owner sells the building, the seller is a predecessor in interest in the lawsuit. TEST: Must turn not only on whether the questioner is on the same side of the same issue at both proceedings, but also on whether the questioner had a substantially similar interest in asserting that side of the issue and substantially similar intensity regarding substantially similar issues. ANALYSIS: If a fact is critical to a cause at a second proceeding (criminal trial) but the same fact was peripheralally related to a different cause of action at the first, there is NO similar motive. HERE: The state had NO interest at the GRAND JURY in proving the falsity of the witnesses assertions that the club did not exist. 1) The s had already been indicted grand jury already found probable cause to believe that the Club existed & that the s had participated in it to commit crimes. 2) There already existed doubt as to the truthfulness of s testimony on part of the grand jury. HOLD: Since grand jury (as fact finder) had already resolved issue as to Clubs existence in STATEs favor and already demonstrated disbelief as to testimony the DISTRICT court excluding the witnesses grand jury testimony was correct. WILLIAMSON [imp case exam] FACTS: HARRIS found with cocaine. Told cops got from; refused testify. o COURT RULED 804(b)(3) DEA can relate what Harris told them. ISSUE: Whether Harris confession in whole or part is admissible pursuant to 804(b)(3). - Court reads rule narrowly and only allows in the parts of the statements that are self-inculpatory can only come in. RULE: 804(b)(3) not admit non-self-inculpatory words, even if made w/in big narrative self-inculpatory. Court states 473: Statements that are self-inculpatory sometimes implicate the defendant and can be admissible IF there is independent evidence to corroborate the statement. TEST (a) statement against declarants: (i) penal/proprietary interest (ii) expose him/her to civil/criminal liability And (b) Is supported by corroborating evidence/circumstances clearly indicating trustworthiness. objective test would reasonable person in the declarants position have made the statement? Factors: (1) Timing and circumstances under which the statement was made. (2) declarants motive making statement and whether there was a reason for the declarant to lie. (3) whether declarant repeated statement and did consistently, under different circumstances. (4) the party or parties to whom the statement was made, (5) the relationship between he declarant and the opponent of the evidence (6) and the nature and strength of independent evidence relevant to the conduct in question.

804(b)(2): Dying Declaration: TEST: If court finds that Victim believed they were about to die when the statement made. 804(b)(2) SHEPARD FACTS: murder poison wife. Wife told nurse husband poisoned me. Wife now dead. RULE: 804(2) Witness personal knowledge spoken in shadow of death. Witness open to cross attack. EXCEPTION 2 personal knowledge 801(d)(2) opposing party statements GRAY 804(b)(6) FACTS: Mail fraud. Friend threatened to kill witness if testified. RULE: If witness absent because accused wrong hearsay is permissible 804(b)(6)TEST/ELEMENTS Determination governed by 104 preponderance. 1) the engaged or acquiesced in wrongdoing 2) wrongdoing was intended to render the declarant unavailable as witness and 3) that did, in fact, render the declarant unavailable as a witness. - Applicable whenever the s wrongdoing was intended to, and di, render the declarant unavailable as a witness against the , without regard to the nature of the charges at the trial in which the declarants statements are offered. Hearsay exceptions 803 availability of declarant immaterial. 803(1) Present sense impressions 803(2): Excited Utterance i) external stimulus ii) under extreme stress iii) relates directly to the stimulus. 803(3) Then existing Mental/Emotional/Physical Condition HILLMON case - NOT memory/belief to prove fact remembered/believed unless relates to last will & testament. - YES evidence of intention as tending to prove the doing of the act intended. - Intent of declarant admissible to prove their future, not the future conduct of another person. - EXAM no majority argue both sides. o Graffiti Hypo: shows witness bias at the time if he believed them to be true. I.E. person was fool. The ACN says that the Hillman doctrine allowing evidence of intention as tending to prove the doing of the act intended is, of course, left undisturbed, meaning that evidence of future intent is admissible under the rule. In addition, under the compromise position that has emerged since Hillman, the statement can be admitted to prove a third person (Earl) acted in a particular manner when there is sufficient corroborating evidence that Earl was the accomplice. Here, there is sufficient corroboration: FRE 803(3) rejects the Hillmon doctrine in that a statement of future intent that disguises past behavior is not admissible to prove the conduct of a third person. The House Committee Report says that the exception should be read to limit the doctrine of Hillmon, so as to render statements of intent by a declarant admissible only to prove his future conduct, not the future conduct of another person. The compromise position that has emerged since Hillmon should be rejected as inconsistent with FRE 803(3) and the House Report. The Hillmon doctrine affords such use of the exception. The text of the rule is silent as to a statement of intent as evidence of the future actions of another. The CAN implies admissibility stating that the doctrine of Hillmon is left undisturbed. On the other hand the Report of the House Committee on the Judiciary states an intention that Rule 803(3) be construed to limit the doctrim of Hillmon, so as to render statements of intent by a declarant admissible only to prove their future conduct, not the future conduct of another. 803(4) Statement made for medical diagnosis/treatment : IRON SHELL case - Causation limited to inception/general of injury. NOT patient stating car driven through red light - Child sex abuse and victim states to dr. that perpetrator, was family only is admissible. 803(5) recorded recollection: i) made when knew ii) accurate iii) now forgets 104(a) then Read in evidence.

VS: 612: refreshing recollection: Anything can be used to refresh recollection 803(6): Business Records. 1) record 2) made timely 3) someone w/knowledge 4) ordinary course 5) normal to record 6) demonstrated by person qualified as witness or person who keeps the record - Palmer v. Hoffman: where documents made after accident smell of lawyers preparing for litigation. - Documents made after accident are generally held NOT to be within the exception. 803(8) Public Records (A)(i) Office acts (ii) info under legal duty [not cop causation] (iii) CIVIL facts from authorized investigation Results from an investigation made pursuant to authority granted by law Can only be offered by defendant in criminal case. \ 805: Hearsay within hearsay is not excluded by the rules against hearsay if each part of the combined statements conforms to an exception. RESIDUAL EXPECTION 807 - EXAM do not rely on 807 alone. If there is another arguable exception argue the other one primarily. (1) statement has equivalent circumstantial guarantees of trustworthiness (2) it is offered as evidence of a material fact (3) more probative on the point for which offered than any other evidence that proponent can reasonable get and (4) admitting it will best serve the purposes of these rules and the interests of justice.

CONFRONTATION CLAUSE **DOES NOT APPLY IN CIVIL CASES RULE: If an out-of-court statement is testimonial in nature, it may not be introduced against the accused at trial unless the witness who made the statement is unavailable and the accused has had the prior opportunity to confront that witness. Those statements relate to past events and human actions cannot be revealed in ray, machine produced data and therefore are subject to cross-examination. o If unavailable confrontation clause doesnt matter if the previous out of court statement was made under oath and was subject to cross-examination. o If available, and declarant is present, and testifies at trial, and responds to questions about out of court statement there is no Confrontation Clause violation issue. State v. Owens. o No Confrontation Clause issue when the out of court statement is not offered for the truth of the matter asserted i.e. it is not hearsay. the evidence being offered is being offered against (i) if the declarant is present, testifies at trial, and responds to questions about previous hearsay statement, the out of court statement regains most of its lost protections of in court testimony. Therefore the confront clause does not bar admission of out of court statement even if made under oath and subject to cross. (ii) If state has made every effort to produce declarant but declarant is unavailable and if out of court statement made under oath and subject to cross the c onfrontation clause does not bar admission. CRAWFORD v. WASHINGTON: the court threw a boulder into the placid waters of confrontation clause jurisprudence. FACTS: stab man raped wife. Claims Self Defense. Evidence of wife re: saw no knife (no opp for cross). From her perspective she didnt see anything. HERE: WA state rule spouse holds privilege & husband able to bar wifes testimony. Normally other way. RULE: If testimonial evidence (1) Witness need be unavailable and (2) had a prior opp to cross exam. applies to prior testimony prelim hearing, grand jury, or at a former trial, and to police interrogations. Definition of TESTIMONIAL (1828 dictionary definition) Testimony is a solemn declaration or affirmation made for the purpose of establishing or proving some fact.

An accuser who makes a formal statement to a government officer bears testimony in a sense that a person who makes a casual remark to an acquaintance does not. RULE statements taken by police officers in the course of interrogations(to be defined later) are testimonial. Three different ways o 1) testimony or functional equivalent Custodial interrogations, that declarant would reasonably expect to be used prosecutorial o 2) Extrajudicial statements in formalized testimonial materials Affidavits, depositions, prior testimony, confessions o 3) Statements in circumstances, to lead objective reasonably believe would be preserved for trial.

DAVIS v. Washington/HAMMON v. Indiana:

PRIMARY PURPOSE TEST Ongoing emergency and statements in ongoing investigation. TEST: objectively evaluate circumstances in which encounter occurs and statements and actions of the party o 1) circumstances which encounter occurs (at scene of the crime vs. police station o 2)Statements and actions of the parties: reasonable person standard. o 3) Ongoing emergency: focus on the ending of a threatening situation o 4) Formality increases likelihood that the purpose is for trial no emergency. GILES v. CALI: killed wife Rule 804(b)(6) forfeits his confrontation right Melendez-Diaz Cocaine test to prove fact is testimonial & need testimony from the chemist the substance to be tested was provided by police that had been seized as evidence and is an affirmation made for the purpose of establishing or proving some fact WILLIAMS v. ILLINOIS: Sent test out to third party Hold testimony by an expert witness that relies heavily on the lab report of an absent technician does not violate Confrontation Clause at least when the author of the underlying report did not know if the reported results would aid in prosecution.


FACTS: victim on ground. Told cop who/where shot. At s find blood; matching bullet hole. Cops went to s home. not home but blood and bullet hole matching victims description. RULE: statements are non-testimonial when made to police during ongoing emergency. TEST: Context objectively shows no emergency, and primary purpose is to establish events relevant for trial. HERE: statements were: (1) made about events as they were actually happening, rather than describing past events, (2) that there was an ongoing emergency, (3) statements were necessary to resolve the emergency (4) statements were not formal. I) Language to used/Testimonial o Solemn declarations or affirmation made for the purpose of establishing or proving some fact. o Statements made in response to police interrogation even if not sworn. (Note need not be sworn statement) o Statements produced with the involvement of government officers with an eye toward trial. o Prior testimony at a preliminary hearing, grand jury, former trial. II) NOT TESTIMONIAL an off hand, overheard remark Casual remark to an acquaintance Statements in furtherance of a conspiracy (i.e. the coconspirator statement dont appear to be testimonial because the statements are not made thinking that they will be used in court in fact they are made thinking the opposite. III) UNANSWERED SITUATIONS blurted out statements cases that dont involve police interrogation statements elicited by non government officials

statements elected where the primary purpose is not an eye toward trial (i.e. emergencies, 911 calls, statements made for the purpose of medical diagnosis, especially for in child abuse cases) When emergency ends. left home and driving away. Bruton Doctrine: Bars testimony from one co defendant in joint trial against other. - Because of the substantial risk that the jury despite instructions to the contrary, looked to the incriminating extrajudicial statements in determining the defendants guilt, the defendants right of cross examination secured by the confrontation clause. Would be cured, in theory, if person took stand. Gray v. Maryland: Prior case: [Richardson] No Burton violation when co-defendants confession has redacted names. RULE: Not allow if inferential indication a jury could reasonably infer that redacted person is co-defendant. Richardson: applies only when statements are not incriminating on face and in no way implicate the co-defendant. redactions that simply replace a name with an obviously bank space or word such as deleted or a symbol or other similarly obvious indications of alteration, however, leave statements that considered as a class so closely resemble brutons un-redacted statements that in our view, the law must require the same result. EXPERT & LAW TESTIMONY RULE 701: Lay Witness basic appearances persons/things; manner of conduct; degrees of light darkness; sound; size; weight; distance Limburger Cheese to specific Terms used in the charge itself make it less likely to be permissible testimony. 701(a) rationally based on perception first hand knowledge. 701(b) helpful to jurys fact finding 703(c) not invade experts realm Ex: User can testify that X is drugs but non person without such experience. RULE 702: Expert Testimony It is imporper for an expert to be compensated for testimony on a contingent fee.

Test For Misconduct because state failed to follow proper procedures provide motion in limine: 1) the reasons for the governments delay in producing the materials, including whether it acted intentionally or in bad faith; 2) the degree of prejudice, if any, to the defendant; and 3) whether the prejudice to the defendant can be cured with a less severe course of action, such as granting a continuance or a recess. - U.S. v. MAPLES: district courts should use least severe sanction necessary and hold that suppression of relevant evidence as a remedial device should be limited to circumstances in which it is necessary to serve remedial objective. Rule 702 Five Requirements: also special notice requirements. - After asking about training, etc, the must offer witness as expert. 1) Proper qualification: must be qualified as an expert by knowledge, skill, experience, training, or education. 2) Proper Topic: Experts testimony must concern a topic that is beyond the ken of jurors, Expert may not simply tell the jurors what result to reach in the case and may not intrude on the judges role as legal expert. -The experts opinion must assist the jurors by supplying information or insights they otherwise would lack. However, can testify to items within common knowledge if assist trier of fact. 3) Sufficient Basis: 703 The expert must have an adequate factual basis for her opinions Can rely on: o 1) First hand observation and knowledge from that. o 2) Based on observations of the presentation and testimony observed at trial. o 3) Presentation of data and information obtained outside court other than by their own perception. o Judge 104(a) assesses as gatekeeper scientific evidence

4) Basis: the expert opinion must be based on a body of knowledge, a principle, or a method that is reliable. The experts testimony must be the product of reliable principles and methods reliably applied to the facts of the case. 5) Rule 403 Challenge: Proponent must demonstrate that the exert has applied the body of knowledge, principle, or method in a reliable manner to the particular facts of the case. Evidence must survive 403 balancing test. HYPO: expert medical examiner regarding murder victims body o Hearsay? if experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject, they need not be admissible for the opinion to be admitted. Thus, if the predicate fact, that experts in the field reasonably rely on this type of information in forming their opinion the testimony will be admissible regardless of whether the predicate facts relied upon in forming this expert opinion is based on hearsay. Test Judge makes initial determination as to whether or not experts in the field reasonably rely upon those predicate facts to permit the expert opinion yet exclude the predicate hearsay facts. Does jury get to hear what the basis, the predicate hearsay facts, expert opinion and testimony is based on? o If the facts or data would otherwise be inadmissible, the proponent of the opinion may disclose them to the jury only if their probative value in helping the jury evaluate the opinion substantially outweighs their prejudicial effect. Expert using Dr.s statements regarding patient hypo. It is a reverse 403. RULE 704 704(a) except for 704(b) experts testimony can embrace the ultimate issue/fact Testimony can implicate ultimate issue provided it does not implicate defendants acts, mental state. o HYPO: In my expertise this amount of X kept like so is done for distribution. 704(b) In a criminal case, an expert witness must not state an opinion about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged or of a defense. Those matters are for the trier of fact alone. 9.10(1/2): expert based on the evidence it is my opinion that the defendant is guilty? TWO ERRORS o 1) opinion on defendants credibility. It attacks the credibility of the defendant because here it goes against defendants defense that he didnt know about the other parties purhcases. Thus the testimony would essentially make the defendant out to be a liar. The rule bars testimony about a witnesss or parties credibility. o 2) It tells the jury what result to reach. ACN: The abolition of the ultimate issue rule does not lower the bars so as to admit all opinions. Under Rules 701 and 702, opinions must be helpful to the trier of fact, and Rule 403 provides for exclusion of evidence which wastes time. These provisions afford ample assurances against the admission of opinions which would merely tell the jury what result to reach, somewhat in the manner of the oath-helpers of an earlier day. They also stand ready to exclude opinions phrased in terms of inadequately explored legal criteria. Thus the question, Did T have capacity to make a will? would be excluded, while the question, Did T have sufficient mental capacity to know the nature and extent of his property and the natural objects of his bounty and to formulate a rational scheme of distribution? would be allowed. Impermissible Expert Testimony 1) Testimony that states a legal opinion 2) Testimony that passes on credibility of witness 3) Testimony there merely tells jury what result to reach 4) Testimony about defendants mental state for the crime in criminal case

PRIVELEGES: GENERAL PRINCIPLES RULE 501 Rule 501 provides that in federal criminal cases and in civil cases where federal law provides the rule of decision however, when state law supplies the rule of decision as in diversity actions, states privileges controls. The common law as interpreted by united states courts in the light of reason and experience governs a claim of privilege unless any of the following provides otherwise o US constitution o A federal statute o Or Rules prescribed by the Supreme Court Analysis is done by the courts in terms of common law Need expectation of privacy HYPO 11.1 Threats made to therapists are routinely relayed to his targets. o In Jaffey (p850) There are situations in which the privilege must give way, for example for a serious threat of harm to the patient or to others can be averted only by means of disclosure by the therapists. No protection between husband and wife, doctor patient, reporter source. o A communication made in confidence has been recognizes as privileged only if fostering of the relationship is considered important to society a the injury to such relationship that would result from disclosure exceeds the benefits gained from a fully informed determination of litigation. Thus federal courts recognize a lawyer-client, spousal testimonial, spousal confidential communication, psychotherapist patient, political vote, clergymen, qualified privileges for trade secret. Have NOT recognized a physician patient privilege or accountant client. Attorney client KEY: difference between (I) Privilege: is a recognized privilege in evidence law o Thus, this evidence is protected from forced disclosure in terms of the trial (II) Confidentiality: is an ethical duty not legal o This duty exists irrespective of court proceedings. o Protects against forced disclosure of: 1) A communication 2) Made between privileged persons Ex: if communication is made in presence of third party who is not privileged destroys the confidentiality. 3) Made in confidence. 4) Made for the purpose of seeking legal assistance. o Even if information is not learned directly via the client there still is a Spousal testimonial privilege: ONLY CRIMINAL o REQUIRMENT: marriage must be valid when the privilege is invoked. o SCOPE: Applies even to events before the marriage, but not to situations where husband and wife are co-conspirators. It only applies when the testimony is sought while the spouses are married. Two purposes: (1) To preserve ongoing marriages

(2) Unseemliness of pitting wife against husband. Rarely used in civil litigation. o PROHIBITS TESTIMONY ABOUT: all testimony by one spouse against another, including accounts of premarital acts or events. o HOLDER: The privilege belongs to the witness spouse. o In some states the defendant spouse holds the privilege. o EXCEPTIONS: 1) Not apply top child abuse cases involving spouses children. 2) If spouse asserting privilege is alleged victim no privilege. 3) Some federal courts hold Co-Conspirators bar privilege. o In state of Washington Marital Confidence Privilege: Civil AND criminal PROHIBITS TESTIMONY ABOUT: Excludes only testimony concerning private communications between spouses while they were married. DURATION: Unlike testimonial privilege; confidential communication privilege survives end of the marriage by annulment divorce or death. FOREVER REQIREMENT: Slightly different. Only applies to statements made during marriage. Need valid marriage etc. Communication Cannot be an act, an observation, etc. Confidential If third party not confidential then not privileged. Need intent to be confidential. HOLDER: Different: Both here. Not just spouse witness. WAIVER: Except for what a criminal defendant needs to introduce, both spouses must agree to let such statements in. EXCEPTION (1) SAME EXCEPTIONS EXCEPTION (2): A criminal defendant may introduce a statement without spouses consent. (To exculpate self) o Applies to communications, not acts, observations. Doesnt apply to confidences planning crimes/fraud o Most federal courts because of DOMA have stated they will not apply the privilege for same sex couples. However, because Obama has explicitly stated their unwillingness to recognize DOMA this may be crumbling. State courts obviously depends on State Psychotherapist patient o In Jaffey (p850) There are situations in which the privilege must give way, for example for a serious threat of harm to the patient or to others can be averted only by means of disclosure by the therapists. JAFFEE v. REDMOND FACTS: Redmond first officer to scene. o Two people ran towards car waiving arms shouting a stabbing occurred. o Redmond states Allen (victim) had butcher knife and disregarded her repeated commands to drop weapon. o Thus, shot him.

Charged excessive force. Trial testimony that Redmond drew gun before exiting squad car Second that Allen was unarmed when he emerged from apartment ISSUE: whether there exists a psychotherapists privilege & whether this privilege extends to social workers. ANALYSIS: effective psychotherapy depends upon an atmosphere of confidence and trust in which the patient is willing to make a frank and complete disclosure of facts, emotions, memories and fears The psychotherapist privilege serves the public interest by facilitating the provision of appropriate treatment for individuals suffering the effects of a mental or emotional problem. The mental health of citizens, no less than their physical health, is a public good of transcendent importance RATIONALE: Long history exists within State Courts recognizing this privilege. DISSENT: Scalia appears to deny the majority view that psychotherapy has long been an actual means of therapy and health. FAMILIAL PRIVILEGES TRAMMEL v. US Testimonial privilege. Deals with testimonial privilege because there was never an appeal made regarding the marital communication as the lower courts had properly always excluded such statements. FACTS: husband wife picked up for heroin charges. Wife was arrested separately from husband. Wife offered deal if testify against husband RULES: In a criminal case, a spouse may testify against the other spouse (except as to confidential communications) with or without the consent of the other spouse. The privilege belongs to the witnessspouse, not the party-spouse. Criticism: Government is pitting spouse v. spouse & ruining marriages ISSUE: Whether an accused may invoke the privilege against adverse spousal testimony so as to exclude the voluntary testimony of their spouse? ANALYSIS: Since privileges contravene the fundamental principle that the public has a right to every mans evidence, privileges must be strictly construed and accepted only to the very limited extent that permitting a refusal to testify or excluding relevant evidence has a public good transcending the normally predominate principle of utilizing all rational means for ascertaining truth. HERE: The witness-spouse alone has a privilege to refuse to testify adversely The witness may be neither compelled to testify nor bared from testifying. When a spouse is willing to testify, and thereby forego the privilege and sanctity of their marriage, whatever the motiviation, evidences that their relationship is certainly in disrepair. TAKEAWAY: spouse cannot be compelled to testify but may testify upon own volition. CLASS: Civil r Criminal: