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EVIDENCE MUST SURVIVE ALL RULES TO BE ADMISSIBLE
I. Federal Rules of Evidence - Background • A. What are the Federal Rules of Evidence? o A set of restrictions that federal courts place on attorneys who wish to submit evidence to a trier of fact. Generous view towards admissibility Balanced against concerns re: confusing jurors, wasting time, or intruding on protected social interests. • B. Reasons the FRE exclude evidence: o (1) protect jury from misleading information o (2) eliminate unnecessary delay/promote efficiency o (3) protect a social interest (i.e., confidential relationships) o (4) ensure evidence is reliable • C. Who wrote the Rules? o Most were proposed by an Advisory Committee of experts A few originated in Congress All enacted by Congress (sometimes with changes) • D. Types of Evidence o Most of the Rules apply to all types: (1) Oral Testimony – witnesses speaking from the witness stand: (a) Fact witnesses • Perceived facts related to the lawsuit and testify about those facts o i.e., coworker heard ∆ admit she caused an accident o Includes eye-witnesses (b) Expert witnesses • Use specialized knowledge to interpret evidence or explain it to the jury • Need no first hand knowledge (c) Character witnesses • Testify about the good or bad character of a party or witness • Needn’t have perceived any fact related to the controversy (2) Real Evidence – any physical evidence a party claims played a direct role in the controversy i.e., the stick used to batter someone
NB: Must be authenticated by proof o Via authentication procedures (Rules 901-3) (2)(a) Documentary Evidence – writing or recording of information • Subcategory of real evidence o Must be authenticated (3) Demonstrative Evidence – “pretend evidence;” played no actual role in the disputed events i.e., charts, tables, pictures, maps, graphs, reenactments, etc. • NB: Open to abuse; judges are cautious (5) Stipulations – allows both parties to stipulate that a fact is true for purposes of litigation Both parties agree to exact language Usually minor facts (6) Judicial Notice – trial judge may take “judicial notice” of a fact that’s indisputably true Must be “generally known” or “accurately and readily determined” by consulting an unimpeachable source. • i.e., Boston is in Massachusetts o Photographs and Videos as Evidence May be either “real” or “demonstrative” evidence: Real evidence – where a photo or video depicts the events of a controversy directly • i.e., tape of a robbery Demonstrative evidence – where a photo or video illustrates an aspect of the dispute • i.e., photo of the block and surroundings where a murder occurred o Circumstantial versus Direct Evidence Circumstantial Evidence: requires the jury to make an inference connecting the evidence with a disputed fact Evidence Inference Fact • i.e., witness testifies he saw ∆ washing blood off his hands shortly after victim was killed (to prove ∆ killed the victim) Direct Evidence: directly establishes a contested fact; requires no inferential bridge Evidence Fact • i.e., witness testifies he saw ∆ plunge a dagger into victim’s chest (to prove that ∆ killed victim) NB: The distinction is gradual and fuzzy, and has no legal effect. Opposite ends of a spectrum, not separate categories Legally weighed equally; distinction is rhetorical.
A verdict may rest entirely on circumstantial evidence But, the fewer inferences required, the more persuasive evidence tends to be. o “You should always search for evidence that requires the fewest possible inferences.” –Huss. NB: Framing is important; we often build assumptions into our accounts of things “I saw him take the ring” ≠ “I saw him steal the ring”
II. Scope of the Federal Rules of Evidence • A. Where do the Rules apply? o The rules apply broadly o Scope governed by Rules 101 & 1101: Rule 101. Scope; Definitions (a) These rules apply to proceedings in United States courts. The specific courts and proceedings to which the rules apply, along with exceptions are set out in Rule 1101. Rule 1101. Applicability of the Rules (a) To Courts and Judges. These rules apply to proceedings before: United States District Courts; United States Bankruptcy and Magistrate judges; United States Courts of Appeals; The United States Court of Federal Claims; and The District Courts of Guam, the Virgin Islands, and the Northern Mariana Islands o Take Away: Mandatory in Federal Courts only But 40+ states have adopted state codes very similar to the federal rules In common law states, FRE still persuasive Not mandatory in the USSC USSC may use them for guidance Not mandatory for administrative agencies (who are free to adopt them if they choose) But FRE still very persuasive • B. When do the Rules apply? o The rules only apply to the “main event” TRIAL Both civil and criminal trials Ask: proceedings resemble a trial?
Governed by Rule 1101: Rule 1101(b). Applicability of the Rules To Cases and Proceedings. These rules apply in: civil cases and proceedings, including bankruptcy, admiralty, and maritime cases; criminal cases and proceedings; and contempt proceedings, except those in which the court may act summarily • Check 1101(c) & (d) for exceptions o Exceptions: (1) The rules related to privilege apply in all federal court proceedings, not only at trial: Rule 1101(c). Rules on Privilege The rules on privilege apply to all stages of a case or proceeding. • Reasoning: waiving privilege in grand jury proceedings (for example) would ruin that privilege for the entire criminal proceeding. (2) Rules do not apply during preliminary determinations, grand jury proceedings, and other miscellaneous proceedings: Rule 1101(d). Exceptions. • These rules –except for those on privilege—do not apply to the following: o (1) the court’s determination, under Rule 104(a), on a preliminary question of fact governing admissibility; o (2) grand-jury proceedings; and o (3) miscellaneous proceedings, such as: extradition or rendition; issuing an arrest warrant, criminal summons, or search warrant; a preliminary examination in a criminal case; sentencing; granting or revoking probation or supervised release; and considering whether to release on bail or otherwise. NB: Not an exhaustive list; judges may disregard rules during other hearings resembling those listed in Rule 1101(d) (3). o Take Away: FRE only applicable at trial Both criminal and civil proceedings Not applicable in grand-jury proceedings, pre- and post-trial hearings, preliminary determinations of fact, etc. o
Not applicable in summary contempt proceedings (see Rule 1101(b)). Except privilege rules, which are always in effect
Scope Overview: see flowchart on page 30 of the textbook. III. Objections and Limiting Instructions • A. Raising Evidentiary Objections o FRE rely on the adversary system to identify inadmissible evidence. Therefore, judges rely on parties to identify defects and raise objections about an opponent’s evidence. o Several ways to object to opponent’s evidence: (1) Pretrial Motions: Allow a party to attack or defend key pieces of evidence before trial Three types: • (a) Motions in limine – “at the threshold” o Filed either to exclude an opponent’s piece of evidence, or to secure permission to introduce a potentially contested piece of one’s own evidence before trial. o Three advantages: (i) allows more planning of trial strategy (ii) allows for more lengthy/sophisticated args (iii) insulates “defeat” from jury • (b) Motions to suppress o Claims that the opponent’s evidence was illegally obtained o Legal issues generally governed by criminal procedure • (c) Pretrial motions for summary judgment o Civil cases only o Must argue there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” (2) Objections Made During Trial: Procedure for objecting to evidence is governed by Rule 103: • Rule 103. Rulings on Evidence. (a) Preserving a Claim of Error. A party may claim error in a ruling to admit or exclude evidence only… o (1) if the ruling admits evidence, a party, on the record: (A) timely objects or moves to strike; and (B) states the specific ground, unless it was apparent from the context; . . .
o NB: Failure to follow procedural steps outlined in Rule •
Take 103 forfeits the issue on appeal. Away: A. Two mechanisms for disputing evidence at trial: (i) Objection Objections are made before the opponent introduces potentially inadmissible evidence (i.e., objecting to a witness as incompetent before they testify.) (ii) Motion to strike Made after disputed evidence has already entered the record. i.e., where a witness answers an irrelevant question so quickly that opposing counsel has no time to object Opposing party may move to strike the evidence at any point after its irrelevance emerges. B. Objection/Motion must be timely “Timely” if lawyer objects as soon as grounds for objection is known or reasonably should be known. HYPO: ∆’s objection—after govt introduced its evidence, jury had left courtroom, and parties had discussed another issue—came far too late; not “timely.” Purposes of timeliness requirement: Lets judges rule before jurors learn about potentially inadmissible evidence Lets opponents try to cure evidentiary defects Register your objections ASAP! C. Attorney must state specific grounds for any objection Generic objections fail to preserve any grounds for appeal Multiple grounds for an objection? Raise all. Raising one ground won’t preserve others. “When you object, you are also objecting to the appellate court” –Huss.
. attorney must specify which portion. etc. unless the substance was apparent from the context. . (4) Maintaining Objections Rule 103(b) abolishes the need that existed under common law either to announce an “exception. (2) if the ruling excludes evidence. demonstrating actual questions to be asked and answered.e. (a) Preserving a Claim of Error. buttress your argument for admissibility with a brief offer of proof to clarify the record for appeal. Take Away: • When one party objects to introduction of evidence. Rulings on Evidence. • Purpose of the Offer of Proof: o “Enlightens” the judge by giving her the info needed to rule correctly and promptly on admissibility. Allows the opponent to try and cure the defect Allows the judge to rule on admissibility more easily NB: Though the rule allows you to forego specificity if the basis for objection is “apparent from the context. o Offer of proof = demonstration of the substance of the challenged evidence o Failure to make this offer waives any objection on appeal! • Judges have discretion to determine the form of an offer of proof. a party informs the court of its substance by an offer of proof. Purpose of the specificity requirement: Gives both judge and opposing attorney notice of the basis for objection. describing the evidence.. A party may claim error in a ruling to admit or exclude evidence only . o i. (3) Defending Evidence: Governed by Rule 103(a)(2): • Rule 103.” or forfeit the issue on appeal: 7 . the opponent must make an offer of proof showing the judge what the evidence entails. If just one part of the evidence is inadmissible. Exception – “Unless the substance was apparent from the context” • NB: Even in these situations.” always add at least one word or phrase to an objection to preserve for appeal.
o Depending on complexity. and the judge has definitively overruled the objection. If a judge defers ruling on a motion in limine. o NB: Judge must “rule definitively. Rulings on Evidence. Take Away: • Once trial counsel has made a specific and timely objection. (b) Not Needing to Renew an Objection or Offer of Proof. (d) Preventing the Jury from Hearing Inadmissible Evidence. or argue in chambers Purpose of 103(d): • Avoid confusing or misleading the jury NB: Remember to always keep in mind how you’re coming across to the jury! • Object only when necessary and keep it succinct and respectful. the court must conduct a jury trial so that inadmissible evidence is not suggested to the jury by any means. judge may rule without further discussion or offers of proof. the losing party need not repeat any objection/offer of proof at trial. Rulings on Evidence. or like they’re hiding something o Must balance “likability” concerns with your duty to advocate for your client. the judge hasn’t ruled definitively. attorneys may approach the bench for a sidebar. • 8 . attorneys will note their initial objection in the jury’s presence. then the issue is automatically preserved for appeal. Take Away: • Generally. so parties must renew objections & offers of proof at trial. dismiss the jury. o Attorneys let minor objections “go” so as not to appear argumentative. (5) Shielding the Jury Rule 103(d) requires the court to decide evidentiary issues in a manner that shields the jury from hearing about inadmissible evidence as much as possible: • Rule 103. Once the court rules definitively on the record— either before or at trial—a party need not renew an objection of offer of proof to preserve a claim of error for appeal. Rule 103. To the extent practicable.” If a judge rules definitively on a motion in limine. o If it’s simple.
o Rule uses mandatory language If evidence is admissible only for limited purposes or against particular parties. Resolving Evidentiary Objections o What are a judge’s options for responding to evidentiary challenges?: (1) Sustain the Objection If judge agrees with an evidentiary objection. if he appears to be biased.. 9 . she will overrule it & admit the evidence. must restrict the evidence to its proper scope and instruct the jury accordingly. she will sustain the objection & exclude the evidence. the court may redact portions of written evidence. (2) Overrule the Objection If judge disagrees with the objection. • Examples of Limiting Instructions: o “Evidence is only admissible against one defendant but not against others” o Instruction explaining the limited role of demonstrative evidence • NB: Many lawyers believe limiting instructions do more harm than good. or direct attorneys to avoid certain topics or questions. the judge must give that instruction. while letting the rest in. This is the rare case where the judge has no discretion. then the system loses legitimacy. on timely request.e. • Take Away: o Rule 105 allows admission of evidence only for limited purposes.• B. (3) Admit Some but not All If part of a piece of evidence is admissible. Policy: Judge is supposed to be neutral. o If the court admits evidence that is admissible against a party or for a purpose—but not against another party or for another purpose—the court. “disregard the witness’s answer” (5) Issue a Limiting Instruction Governed by Rule 105: • Rule 105. (4) Issue a Curative Instruction Tells a jury to disregard evidence wrongfully admitted • i. and a party requests an instruction making those limits clear. Limiting Evidence That is Not Admissible Against Other Parties or for Other Purposes.
Rulings on Evidence. and policies of each rule. affect [a party’s] substantial rights.. 10 . evolving trial. . What constitutes “plain error?”: • Error must be “clear and obvious under current law. . A party may claim error in a ruling to admit or exclude evidence only if the error affects a substantial right of the party . integrity or public reputation of judicial proceedings if left uncorrected. even if the claim of error was not properly preserved.e. • If the verdict would have been unaffected “harmless error. and juror reactions (2) Rule 103 only allows reversal if the error affected a substantial right of one of the parties: Rule 103. will rarely find plain error. . . just because judge was wrong in this case doesn’t mean he abused his discretion. are won and lost at the trial level.” • “Substantial right” standard applies even when an appellate court reviews an evidentiary decision de novo. “Substantial right” affected only if there’s a reasonable probability that. . (a) Preserving a Claim of Error. . Judicial Review of Evidentiary Rulings o Appellate courts review evidentiary issues only if the complaining party complied with all the procedural steps outlined above. If a party failed to preserve an evidentiary objection at trial. in practice.• C. (3) Effective litigators must know the language. • (e) Taking Notice of Plain Error. but only for “plain error”: Rule 103. o On review. Rule 103(e) still allows reversal. Rulings on Evidence. courts rarely reverse trial decisions based on evidentiary issues alone for two reasons: (1) Appellate Courts apply an abuse of discretion standard to most claims of evidentiary error. number. . i. (2) Evidentiary battles. A court may take notice of a plain error affecting a substantial right. o Three consequences of limited review of evidentiary errors: (1) Appellate opinions on evidentiary issues have low precedential weight. the outcome of the case would have been different. Highly deferential standard • Trial judge considered more familiar with evidence. and .” • Plain error is a more limited standard of review. seriously affect the fairness. if the judge had made the correct ruling.
11 . or evidence is admissible. Preliminary Determinations • Rule 104 governs procedures for deciding the admissibility of evidence. o Law: Pure issues of law are decided by the judge alone reading the rule’s language. The court must conduct any hearing on a preliminary question so that the jury cannot hear it if: (1) the hearing involves the admissibility of a confession. Preliminary Questions. (c) Conducting a Hearing So That the Jury Cannot Hear It. E. a defendant in a criminal case does not become subject to cross-examination on other issues in the case. “Conviction a dishonest act or false statement?” (609). • Default rule judge decides • Includes both matters of fact and of law. a privilege exists. Preliminary Questions. o Fact: Contested facts may be decided by the judge. applying judicial precedent.. and considering the rule’s legislative history and policy rationale. fairness dictates it be held outside the jury’s earshot in three cases: Rule 104.e. The court must decide any preliminary question about whether a witness is qualified. or (3) justice so requires. By testifying on a preliminary question. • But 104(b) limits the judges authority when resolving factual issues that affect whether otherwise admissible evidence is relevant. o Key Points to Remember: (1) The judge makes preliminary determinations relating to admissibility. determining the voluntariness of his confession) without subjecting himself to cross on other issues: Rule 104.IV. • In a criminal case. “Indemnity agreement within Rule 411’s prohibition against evidence of liability insurance?” Rule 104(a) sends all factual and legal preliminary questions that directly affect admissibility to the judge. If an evidentiary hearing is necessary. (d) Cross-Examining a Defendant in a Criminal Case. ∆ may testify on preliminary matters (i.g. Rule 104(a).. (2) a defendant in a criminal case is a witness and so requests.
. . In so deciding. applying judicial precedent. the court is not bound by evidence rules.. the parties may dispute the weight of that evidence at trial: Rule 104. and considering the rule’s legislative history and policy rationale JUDGE • Authority granted by 104(a). . which do apply during preliminary determinations (and always). Preliminary Questions. 12 . (2) FRE don’t apply to preliminary questions. Standard governs both civil and criminal cases. ask “could a reasonable jury find by a preponderance of the evidence that [a fact governing admissibility] exists?” o e.. o (e) Evidence Relevant to Weight and Credibility. . Stems from privilege against selfincrimination. Even if the judge admits the evidence. . . re: admissibility under 602: “could a reasonable jury find by a preponderance of the evidence that the witness saw the event he claims to have seen?” NB: Trial judge can admit evidence under 104(b) even when a previous jury has rejected the evidence under a higher standard. (3) Except for the rules on privilege. (5) All preliminary factual issues are decided using the preponderance standard. This rule does not limit a party’s right to introduce before the jury evidence that is relevant to the weight or credibility of other evidence. re: admissibility under 407: “did the remedial measure more likely than not occur before the plaintiff’s injury?” • If 104(b).g. Rule 104(a). (4) Judge alone decides questions of law. Issues decided solely by reading the rule’s language. • The judge may look at evidence that violates the rules when making preliminary determinations. ask “has [the fact governing admissibility] been established by a preponderance of the evidence?” o e. except those on privilege. • Otherwise would totally negate purpose of privilege. • If 104(a). the rules can’t screen information away from the judge.g. Rule 104(a). o Any other method would prevent the judge from looking at evidence to decide whether or not it’s admissible.
• Little case law on the subject. prima facie standard of proof.e. o HYPO: Personal knowledge under Rule 602 Eyewitness Magoo has terrible vision. (i) Rule 104(b) governs questions of “conditional relevance.g. she must let the jury weigh the disputed facts. but the preponderance standard has been well established by the USSC. 104(b) says “proof must be introduced…” (7) There are two types of preliminary determinations. But proponent usually possesses the info necessary to demonstrate admissibility. o “proof sufficient… to support a finding” = low. Enough evidence here that some reasonable jury could resolve the factual dispute in a way that makes the evidence relevant? Even if 9 out of 10 juries would decide as the judge would. When the relevance of evidence depends on whether a fact exists. (6) The party offering the evidence usually has the burden of proof. a reasonable jury could find either way JURY o HYPO: Evidence of “other” acts under 404(b) 13 . “reasonable doubt” standard.S. U.) Rule 104 is silent about standard of proof. judge performs only a screening function before admitting contested evidence to the jury. the truth of that factual predicate should be decided by a jury: o Rule 104(b). The court may admit the proposed evidence on the condition the proof be introduced later. The rules are silent on the burden of proof.” • Where a piece of evidence is relevant only if a factual predicate is true and not false. (Dowling v. the existence of his “personal knowledge” is a disputed fact. • Also. proof must be introduced sufficient to support a finding that the fact does exist. e. to any relevance issue lurking in a rule’s application.. the outcome of which determines the relevance of his testimony.” i.. If judge says evidence “sufficient to support a finding. Applies beyond determinations related to Rules 401 & 402. • If issue falls under 104(b).
so 104(a). Is there a good faith belief under 608 or 405? • If evidentiary dispute falls under 104(a). o i. NB: The defendant. If judge says evidence is “sufficient to support a [reasonable] finding” JURY (ii) Rule 104(a) governs all other preliminary questions • Factual disagreements that affect policy concerns that could potentially bar admission of otherwise relevant evidence are decided by the judge without the jury. whether a remedial measure occurred before or after π’s injury. • Judge commonly blends 104 & 403 analysis. o Policy: jurors have little knowledge of the policy issues motivating the rules.e. Govt wants to prove Z’s knowledge of cracking safes by introducing evidence she broke into safes before. offering more potential for unfair prejudice o Hotly disputed facts are more likely to confuse or delay the trial. not (b). Z’s role in the previous break-in is a disputed fact.e. but Z disputes her role in those previous safe break-ins.. who wants to keep evidence out. while the π/govt will argue that the more permissive 104(b) standard will apply. Concern: jury won’t be able to fully disregard evidence they reject under the preponderance standard. generally. 14 . will argue that the higher 104(a) standard should apply. The conduct is relevant either way + admissibility depends on policy concerns o Other issues judges resolve under 104(a): All the 407-411 rules. 104(b)’s low threshold for admissibility makes 403 even more important in those cases. whether conduct was sufficiently “regular and specific” to constitute a habit admissible under 406. o Weakly supported facts are less probative. (8) Remember Rule 403 Preliminary factual determinations affect 403 decisions. o i.. Relevant fact either way + affects policy concerns. the outcome of which determines the evidence’s relevance. the jury’s only role will be assessing the value of evidence at trial (if admitted).
Relevant evidence is admissible unless any of the following provides otherwise: • the United States Constitution • a federal statute • these rules. or • other rules prescribed by the Supreme Court Irrelevant evidence is not admissible Take Away: If evidence is relevant. Relevance • Threshold issue: The fundamental rule of evidence is relevance. unless a specific rule. • Broad approach to admissibility Purpose of the relevance requirement: (1) saves time (2) focuses juror’s attention o Rule 401 defines “relevance”: Rule 401.V. o Only relevant evidence is admissible o Relevance depends on the legal theory presented o Battles over relevance help shape new legal claims and defenses • Relevance is governed by Rules 401 & 402: o Rule 402 establishes that only relevant evidence is admissible: Rule 402. Evidence is relevant if: (a) it has any tendency to make a fact more or less probable than it would be without the evidence. Test for Relevant Evidence. General Admissibility of Relevant Evidence. Three Elements to “Relevance”: (1) Any tendency • Very low threshold o Satisfied if the evidence can shift the fact-finder’s view even the smallest degree. statute or constitutional provision bars its admissibility. and (b) the fact is of consequence in determining the action. • Evidence can be relevant even if it doesn’t conclusively establish any fact on its own. o Ask: Is this a “brick” that contributes any fraction to the “wall’s” strength? o Ask: Does this have some tendency to make the fact I’m trying to prove or discredit more or less probable? (2) Making a fact more or less probable • Very low threshold. “more or less” can be slight (3) Of consequence • The fact it goes to prove must be related to the cause of action. 15 . then it’s admissible.
HYPO: Too many conceivable explanations for an absence of large funds to deem that evidence relevant to proving charges of an intent to distribute..” See page 64. Even if a fact is stipulated.o Relevance depends on the legal theory underlying the case. Parties often attempt to influence juries by introducing evidence that an opposing party has engaged in illegal or immoral behavior. o (6) Opening the Door • 16 .e. FRE usually exclude evidence used to show “a propensity to act in a particular way. o (3) Judges prefer affirmative showings. Policy: the jury can reject evidence it finds self-serving or unpersuasive o (5) Courts try to eliminate the effect of hindsight in cases that require a showing of subjective belief. place. frequently reject negative evidence as irrelevant. even if the opponent successfully objected to using the evidence for another purpose. we don’t want stipulations blocking out relevant evidence. Things to keep in mind when determining relevance: o (1) The fact evidence is directed at needn’t be in dispute to be relevant. it may still be relevant Policy: Evidence is more persuasive than stipulation. o NB: For employment discrimination hypos. o (4) Judges tend to rule more generously in favor of evidence offered by criminal defendants.” Ask: Evidence of consequence to the legal theory underlying the case? Ask: “Misdeed” too far removed from the parties’ dispute in time. evidence of an employee’s independent wealth is irrelevant to a charge of age discrimination o Ask: Relevant to what? o NB: Effective advocates often introduce evidence to prove one fact. argue: “research suggests people who hold one type of bias are more likely to harbor other biases. HYPO: bringing in evidence that ∆ wasn’t actually armed is irrelevant to establishing whether victim subjectively believed ∆ was armed at the time of a robbery. i. o (2) Proof of unrelated misdeeds is often deemed irrelevant. or other respects? • HYPO: Proof ∆ was sued for sexual harassment 10 yrs ago deemed irrelevant to proving emp’nt discrim 10 yrs later.
o (7) Relevance analysis is culturally contingent & applied within the bounds of social norms. Confusion. confusion or delay: o (A) Probative Value The evidence’s tendency to make something more or less probable o (B) Risk . erratic. unfairly prejudicial evidence “lures the fact finder into declaring guilt/liability on a ground different from proof specific to the offense charged. Excluding Relevant Evidence for Prejudice.” • Ask: Will evidence tempt the jury to decide the case on grounds different from those the law demands? • Policy: Evidence should be based on reasonable. or Waste of Time • Rule 403 gives judges great discretion to exclude relevant evidence when its probative value is substantially outweighed by risk of unfair prejudice. or Other Reasons The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following Unfair prejudice Confusing the issues.” courts generally shouldn’t create “broad per se rules” governing relevance of whole categories of evidence. confusion or undue delay. o (8) Case-by-Case Determination USSC stressed that questions of relevance “are determined in the context of the facts and arguments in a particular case. HYPO: Won’t deem a psychic’s testimony evidence w/tendency to make facts more/less probable. Unfair Prejudice. Undue delay. Confusion.Irrelevant evidence sometimes becomes relevant in order to rebut claims made by the other party. rather than emotional.Three Types: (1) Unfair Prejudice All relevant evidence is prejudicial. Factors for evaluating “unfair prejudice": 17 . HYPO: Proof of insurance is usually irrelevant to establishing liability. VI. etc. misleading the jury. wasting time. grounds. Waste of Time. but π “opened the door” when she said she was suffering financial hardship due to medical bills. Policy: not reasonable. Rule 403. or needlessly presenting cumulative evidence • 403 Analysis is a Balancing Test – Weigh the evidence’s probative value against its risk of prejudice. • Π established a new “fact of consequence”: how much did she suffer? Evidence of the insurance became “of consequence” to the action.
• (5) Flight: Travel has innocent and guilty purposes. HYPO: Photo of a brutal murder scene prejudicial but ok. offers to stipulate may affect unfair prejudice vs. • (3) Demonstrative evidence: has less probative value and is more rhetorical. the less likely it is to be admitted. but juries often overestimate flight’s suggestion of guilt. • Extent to which jury might overvalue the evidence. • (2) Videos/photos: An evocative image isn’t unfairly prejudicial if it goes to the fact needing to be proved. • Whether it would be possible to reduce prejudice or other harm once the evidence is introduced. photo from scene of children’s handprints in blood unfairly prejudicial b/c doesn’t go to any fact requiring proof. the more different a demonstrative image is from what actually happened. Extent to which evidence will arouse emotions/irrational prejudice in the jurors. o Videos/photos showing actual crime being committed → usually not unfairly prejudicial (even if very violent) o Videos/photos showing effects of crime w/o indication of how the crime was committed or who was responsible → more likely deemed unfairly prejudicial. • Strength of the connection between the evidence and the elements of the case. Common scenarios: • (1) Damaging evidence: not unfairly prejudicial just because it’s damaging to a party’s case. • Whether the advocate can prove the same facts through less prejudicial/confusing means. thus more likely to be unfairly prejudicial. o NB: Sexually explicit images are more likely to be deemed “unfairly prejudicial” than violent images. • (4) Socially undesirable behavior: will depend on how probative the evidence is and what it goes to prove o Opulent lifestyle: could be used to inflame the jury or could provide motive to a crime o Racist attitudes: could be inflammatory or could be motive for ∆’s actions. o Generally. courts carefully analyze circumstances surrounding flight. o NB: Demonstrative evidence only admissible if attorney laid a foundation for that evidence. Stipulations & 403 Analysis: • Though they don’t affect relevance. probative analysis: • 18 .
won’t be enough. The USSC has stressed that judges should apply the rule on a caseby-case basis • Bad news: little precedential value • Good news: lots of room for argument • Appellate courts rarely reverse Rule 403 rulings Away: Rule 403 provides a counterweight to the generous policy of admissibility authorized by Rules 401 & 402. Argue this in a bench trial • Unlikely to argue to a judge that she’ll be unfairly prejudiced or confused. (C) Risk must substantially outweigh probative value. (2) Probability of Confusion Can you establish the same fact using less confusing means? Never argue this in a bench trial. risks insulting the judge. Old Chief). Jurors expect concrete evidence rather than abstract stipulations Old Chief: “The evidentiary account of what a ∆ has thought and done can accomplish what no set of abstract statements ever could. Specialized Article IV Rules RULES 407-411 ARE SPECIAL APPLICATIONS OF 403-BALANCING: 19 . Problem with the evidence has to “blow it’s probative value out of the water. So 50/50.” (D) “May”: Permissive Language Even if the evidence’s probative value is substantially outweighed by some other problem. it is still within the judge’s discretion to admit it anyway. or slightly outweighed.o But in most cases.” o Exception: Felony gun possession cases: A defendant’s stipulation to felony status in a gun possession case excludes other evidence of that prior conviction under 403 (USSC. But still designed with a slant towards admissibility o o • Take o VII. Increasingly invoked with growing pressure on federal dockets. offers to stipulate have little effect under 403. (3) Waste of Time Evidence that is unnecessary or duplicative • HYPO: Introducing 100’s of classified documents disclosed unnecessary detail and wasted the court’s time.
or — • If disputed – proving ownership. Subsequent Remedial Measures. o Indirect measure: taking a product off the market. Limited purpose: evidence is excluded only if offered to prove liability or fault. • Subsequent: Measures taken after an earlier injury or harm. (2) Evidence of subsequent remedial measures may be admissible if offered to prove any fact in consequence other than the four listed above: Rule 407. not after purchase of a defective product/after the suit was filed/etc. o Direct measure: salting an icy sidewalk. Evidence targeted by these rules tends to cause a high degree of unfair prejudice and have little probative value.o Each excludes relevant evidence to further some social policy or promote a o o • Rule socially valuable activity. Four exceptions to 407’s bar on admissibility: • (i) Subsequent Remedial Measures are Admissible to Prove Ownership or Control o 20 . • A defect in a product or its design. But the court may admit this evidence for another purpose. evidence of the subsequent measures is not admissible to prove: • Negligence. Subsequent Remedial Measures. When measures are taken that would have made an earlier injury or harm less likely to occur. o NB: Rule 407 only shields measures taken after the injury itself. etc. changing a sexual harassment policy. such as: • Impeachment. or • A need for a warning or instruction What is a “subsequent remedial measure”? • Remedial: Actions that would have made an earlier injury or harm less likely to occur. 407: Subsequent Remedial Measures The admissibility of a subsequent remedial measure depends on the purpose for which that evidence is being offered: (1) Rule 407 prohibits admissibility of evidence of subsequent remedial measures when offered to prove liability: Rule 407. • Measures: May be direct or indirect. switching a gas tank’s location. control. or the feasibility of precautionary measures. firing or disciplining an employee. • Culpable conduct.
o Two Requirements: (i) Feasibility must be disputed NB: USSC says the statement that “a warning would do more harm than good” is categorically disputing feasibility ∆ shouldn’t say something wasn’t possible. judge wants you to expose that lie. o Narrower than FRE on impeachment.e. Policy: If you catch the other side in a lie. o Judges are most likely to admit evidence of subsequent remedial measures for the purpose of impeaching a witness when: (1) witness makes a specific representation that conflicts with the subsequent remedial measure “Not possible” (2) witness makes an absolute declaration i.” (3) witness making the statement was personally involved in implementing the remedial measure o NB: Judges may redact evidence to only admit evidence showing witness was lying i.. risks “opening the door. not liability (iii) Impeachment under Rule 407 o Process of undermining the credibility of the opponent’s witness. o Ownership/control must be in dispute (ii) Subsequent Remedial Measures are Admissible to Prove Feasibility o Rule specifically permits evidence of subsequent remedial measures against a party disputing feasibility.” (ii) Evidence must be offered to prove feasibility. but that it was difficult.e.o If ∆ claims he didn’t own/control the instrument that injured π. “the product was perfectly safe. but rather as evidence that ∆ did own/control that instrument.. redact info going to liability • • 21 . generally. Requires a closer fit between the remedial measure and the testimony it is supposed to impeach. π may introduce evidence of subsequent remedial measures—not to prove the original condition was unreasonably dangerous.
o o o • Rule o May also issue a limiting instruction under Rule 105 • (iv) Any relevant purpose other than establishing liability o Commonly. o Bc feasibility doesn’t necessarily establish negligence. Policy: Promote open and free settlement negotiations. Minority view: Rule’s language bars “any person or org. intentional harm. 408: Civil Settlement Negotiations Shields settlement offers & statements made during civil settlement discussions from admission at trial. Rule 407 applies to all controversies: negligence. Pre-injury measures are admissible bc there was already enough incentive before the injury to remedy potential dangers. Compromise Offers and Negotiations 22 . control. but he ACTUALLY remedied it admissible. etc. strict liability. Juries give more weight to subsequent remedial measures than they’re actually worth. or other constraints. HYPO: Evidence farm owner fixed cow fence is admissible in a suit against farm leaser. Policies Furthered by Rule 407: Prevents a potential disincentive to fix dangerous problems. (2) Impeachment (3) Any other purpose Evidence must also not be unfairly prejudicial under Rule 403. (Unfairly prejudicial) Take Away: Can’t introduce evidence of subsequent remedial measures to prove liability But may be admissible for other purposes: (1) To show ownership.” so a contrary interpretation is potentially arguable. subsequent remedial measures may be admissible for any other purpose unrelated to liability. remedial measures taken by third parties: Majority view: Rule 407 only bars remedial measures undertaken by parties to the litigation – remedial measures taken by non-parties not barred. Rule 408. or feasibility of precautionary measures if disputed • Feasibility: if ∆ claimed he could not have remedied a dangerous situation because of economic. physical. contract. o Rule 407 is not an exhaustive list.
e. or offering—or accepting.” • [Claim filed] OR [attorney hired + threatened to sue] → claim (2) Dispute Parties must dispute some aspect of the claim.” 23 . offers to accept. • i. Even prevents parties from admitting their own statements made during settlement • “on behalf of any party” Bars evidence even for purposes of impeachment. promising to accept. promotes settlement o Three Elements Trigger Rule 408’s “Shield”: (1) Claim For the rule to apply. or enforcement authority. 408 doesn’t shield their discussions. investigative. Protects all conduct or statements made during compromise negotiations. the rule serves as a complete veil over the entire settlement negotiation. Evidence of the following is not admissible—on behalf of any party—either to prove or disprove the validity or amount of a disputed claim or to impeach by a prior inconsistent statement or a contradiction: (1) furnishing. the disagreement between parties must have matured into a “claim. not just offers and acceptances. acceptances.(a) Prohibited Uses. Also shields settlements with third parties: Rule 408 applies to all settlement discussions. • NB: Offer/acceptance construed broadly: promises. • If both parties agree that liability exists and on the extent of damages. even those conducted by parties no longer involved in the case. (3) Compromise Negotiations Statement must have occurred during “compromise negotiations” or while “compromising or attempting to compromise a claim. if two π’s sue a ∆ who settled with one of them. or offering to accept—a valuable consideration in compromising or attempting to compromise the claim. ∆’s in multi-party lawsuits would never be willing to settle. any consideration extended as part of the settlement. promising. the remaining π can’t introduce that settlement as evidence of ∆’s liability o Policy: Otherwise. promises to accept. and (2) conduct or a statement made during compromise negotiations about the claim—except when offered in a criminal case and when the negotiations related to a claim by a public office in the exercise of its regulatory. Once triggered.
o NB: List NOT exclusive (i) Impeachment for Bias A witness who has settled a claim with one of the parties may develop a bias in favor of that party.g. (ii) Negating a Contention of Undue Delay May be used to counter a claim that plaintiff delayed pursuing her claim. Compromise Offers and Negotiations (b) Exceptions. Other litigants may introduce evidence of the settlement to demonstrate that bias.Formal settlement conferences always qualify Factors suggesting “compromise negotiation”: o (1) Bilateral offers and discussions Unilateral offers ≠ negotiation. or proving an effort to obstruct a criminal investigation or prosecution. not exclusive (iv) Pre-Existing Evidence All courts agree parties cannot shelter preexisting evidence by discussing it during settlement negotiations. Or any other purpose. Statements may be admissible for any purpose other than the three listed above: Rule 408. NB: Impeachment for inconsistency is prohibited under 408(a). The court may admit this evidence for another purpose. “without prejudice” • Remember: ok if conducted by parties no longer involved in the claim. o (2) Either party made a concrete offer o (3) Attorneys were involved in the discussions o (4) Parties used phrases commonly used during settlement negotiations. • • 24 . E. o Once Triggered.. Still Admissible for Other Purposes 408 only excludes statements offered for one of three purposes: (i) to prove or disprove the validity of a claim. (iii) “Other Purposes” Courts have allowed parties to offer statements from settlement negotiations to support a claim that an opposing party engaged in frivolous or vexatious litigation. (ii) to prove or disprove amount of a claim. such as: • proving a witness’s bias or prejudice • negating a contention of undue delay. and (iii) to impeach a witness’s testimony through a prior inconsistent statement or contradiction.
409: Medical Expenses Bars admission of offers and promises to pay medical expenses. Evidence of furnishing. Scope of Rule 409 Applies to any situation where an individual or organization pays or agrees to pay medical expenses. • Policy: Where an individual makes a statement in the presence of government agents. though more likely to benefit the prosecution. Rule 409. 25 . Doesn’t matter if π followed-up on the promise or not. separate and unrelated • Both sides may invoke this exception. hospital. o “Public office” = any govt agency o Plea bargaining governed by Rule 410. Offers to Pay Medical Expenses and Similar Expenses. investigative. and acceptances.” • Other statements only. No “dispute” or “claim” requirement. Must not be unfairly prejudicial under Rule 403. Even if they occurred while negotiating w/a govt agency “exercising regulatory. Limiting instructions/unfair prejudice: Judge may issue limiting instruction to consider the evidence ONLY for the purpose it was offered for. Rule 408 does apply in criminal prosecutions.o o o • Rule o o “This rule does not require the exclusion of any evidence otherwise discoverable merely bc it is presented in the course of compromise negotiations. Narrow Exception: When a civil settlement occurred in a civil proceeding that involved a public office exercising its regulatory.” Criminal Case Exception: Rule 408(a)(2) Though it only protects statements made while negotiating civil claims. then both sides may introduce evidence of “other statements” made during those negotiations in a subsequent criminal case. or enforcement authority. as well as evidence of actual payments of those expenses. or similar expenses resulting from an injury is not admissible to prove liability for the injury. See Rule 408 flowchart on page 115. good customer relations and Good Samaritan behavior. Policy: Promote settlement. promises. promising to pay. But both sides are still prohibited from introducing evidence of civil settlement offers. investigative or enforcement authority. or offering to pay medical. its subsequent admission in a criminal case should not be unexpected.
” becomes: “Golly. Commonly bars admissions that get in under 408 (b/c either unilateral offer or not made during “settlement negotiations. I have good insurance that will cover all of your bills. Doesn’t exclude other statements made contemporaneously. Pleas. evidence of the following is not admissible against the defendant who made the plea or participated in the plea discussions: (1) a guilty plea that was later withdrawn (2) a nolo contendre plea. Policy: Encourages plea bargaining and plea agreements. In a civil or criminal case.”) May come in if you can argue that it proves something other than liability. Just give me a call. I have good insurance that will cover all of your bills. Plea Discussions. or admissions of liability. Limiting instructions/unfair prejudice: Judge may issue limiting instruction to consider the evidence ONLY for the purpose it was offered for. • “Golly. • “Similar expenses” includes fees for all kinds of medical treatment and physical rehabilitation Only bars evidence for purpose of establishing liability. Just give me a call. Must not be unfairly prejudicial under Rule 403 Rule 410: Plea Bargaining o Precludes some evidence of offers to plead guilty & statements made during plea bargaining against defendants. and Related Statements. Rule 410. recognizes that the plea bargaining system risks unfairness for defendants – government always has more bargaining power. What if a ∆ just offers money without any explanation? Judge looks at all the circumstances to determine whether that money was intended for medical expenses. • For example: was it $10 after a horrible car accident? Probably not excluded under 409.• Only excludes payment or offer to pay medical. (3) a statement made during a proceeding on either of those pleas under Federal Rule of Criminal Procedure 11 or a comparable state procedure. hospital or similar expenses. (a) Prohibited Uses. that accident was entirely my fault. that accident was entirely my fault.” Rule doesn’t exclude offers to pay for lost wages/property damage/other economic losses. or 26 .
including when ∆ initially agrees but later withdraws. When does Plea Bargaining Occur? Issue: confessing or bargaining? • Offering cooperation in the hopes of bettering your situation isn’t bargaining. DA’s never offer it. o Rules don’t protect finalized pleas bc in effect convictions public record But no final plea or conviction? Can’t enter it. • But evidence of a finalized plea bargain. o Overlaps with #3. and statements made during bargaining of a finalized plea bargain. (4) a statement made during plea discussions with an attorney for the prosecuting authority if the discussions did not result in a guilty plea or they resulted in a later-withdrawn guilty plea. above. are admissible. (3) A statement made in the course of any proceeding regarding either of the foregoing pleas • Protects statements made during plea bargaining process if process produced a withdrawn guilty plea or a plea of nolo contendere. • Interrogation isn’t plea bargaining o Miranda waiver signed? Probably an interrogation. for any purpose: (1) A plea of guilty that was later withdrawn • Criminal defendant’s have complete discretion to withdraw guilty pleas any time before they’re accepted by the court. (4) Any statement made in the course of plea discussions with an attorney for the prosecuting authority. civil or criminal. o “No contest” o Relatively rare. o Protects both the out-of-court bargaining process and in-court discussions/acceptance All statements made are inadmissible. • Shields statements made during plea bargaining where no guilty plea results. but doesn’t admit guilt for any other purpose. not a plea bargaining session. o May even withdraw plea after acceptance if: i) before sentencing and ii) there’s a “fair and just reason” for its withdrawal. Four categories of evidence not admissible against a defendant in any trial. (2) A plea of nolo contendere • Defendant lets court assume guilt for purposes of sentencing. 27 .
Up to judge’s discretion. given the totality of the circumstances? o Objective prong Judged from the court’s POV. if in fairness the statements ought to be considered together. Two Part Test: • (1) Did ∆ actually believe/expect he was negotiating a plea? o Subjective prong • (2) Was that expectation reasonable. I don’t have the power to make a deal. not a reasonably prudent ∆. prosecutor has no right to introduce statements protected by 410: • 28 .” • Test generally construed against defendant o Courts tend to find “no plea bargaining session” When Does Plea Bargaining End? 410 may extend to follow-up conversations between those included in original plea bargaining sessions Doesn’t extend to statements made by outside parties (friends. or “Little Rule of Completeness”: prevents litigants from creating misleading impressions by introducing selected parts of a negotiation. “no plea bargaining session” (ii) Defense attorney’s presence (iii) Charges filed (iv) Specific terms discussed (v) Govt expressed interest in ∆’s offer (vi) Absence of caveat statements i. Proffer Sessions = Plea Bargaining? o Prosecutors get a “sample” to see ∆’s info/candor/willingness to provide info o Courts are split. o Totality factors suggesting “plea bargaining session”: (i) Prosecutorial involvement Absent this.) Two Narrow Exceptions to Rule 410: Court may admit certain statements made during bargaining for two specific and narrow purposes: (b) Exceptions. look to all the factors and argue it. family. etc.e. The court may admit a statement described in Rule 410(a)(3) or (4): (1) in any proceeding in which another statement made during the same plea or plea discussions has been introduced.. court will almost definitely say. “I’m a cop.
But evidence falling under 410(a)(1)-(4) offered for any other purpose must be excluded. under oath. Can then use statements from the incourt examination to prosecute defendant for perjury. to questions from the judge. on the record. Rule 410 has very little impact bc of waivers: • Widespread practice for prosecutors to require ∆ to sign a waiver of 410-protections before beginning plea bargaining process. doesn’t prevent defendant from introducing prosecutor’s statements made during plea negotiations into trial (criminal or civil). Scope of Rule 410: One-sided rule • Protects defendant only. Evidence relating to plea bargaining is inadmissible regardless of the purpose for which it is offered. attached. Only protects evidence relating to defendant and the trial defendant was involved in. • Remember: FRE don’t apply to sentencing proceedings! • See chart. Evidence available elsewhere in the case? Degree of harm/prejudice to defendant? First statement misleading w/o the second? Necessary to avoid misleading connotations? See page 142 (2) in a criminal proceeding for perjury or false statement. not impeachment. Defendant must have made a statement: --Under oath --On the record --With counsel present Usually applies when ∆ appears in court to enter a plea and responds. o In practice: “No waiver. Proceedings for perjury/false statement. and with counsel present. so probably not a plea bargain” Remember: construed against ∆ Eats the rule up 29 . if the defendant made the statement under oath. • Doesn’t apply to someone else’s trial • Doesn’t protect other parties In reality.
it’s admissible. presenting willingness to plea bargain as evidence of a weak case) Low probative value. • Car insurance. ownership or control • Knowledge • Any other purpose relevant to the dispute Unfair Prejudice/Limiting Instruction Evidence of insurance can be very prejudicial. and its probative value is often slight NB: Revelations about insurance are unlikely to cause prejudice in commercial litigation between two companies.o • Rule o o • Waiver may be express or implied Unfair Prejudice/Rule 403 Courts often use Rule 403 to exclude evidence offered against the prosecution (i. disability insurance. ownership or control Rule only excludes LIABILITY insurance Liability insurance compensates the policy holder for specified damages owed to other people. medical malpractice insurance = liability insurance • NOT health insurance. life insurance. 153. such as • Proving a witness’s bias or prejudice or • Proving agency. o Bc compensates the individual for his own costs o But argue it under 403 o Indemnity agreements? Courts are split. See p. Only excluded if offered to prove liability Still may be admissible to prove: • Absence of liability o Argue it: “Not going to establish proof of liability. 411: Liability Insurance Bars evidence of insurance (or lack of insurance) to prove liability.” • Bias or prejudice • Agency. 30 . Rule 411. But the court may admit this evidence for another purpose. etc. etc.) Policy: Encourage individuals and organizations to obtain liability insurance. (If relevant for another purpose.. Also available to exclude evidence of guilty plea that was finalized. Liability Insurance Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully.e. argue it.
If a juror is called to testify. Competency to Testify in General. • An exception to the general rule that the FRE apply to all civil trials held in federal court. • Up to jury to decide worth NB: Whenever state law supplies the elements of a civil claim or defense. Rule 605. See p.VIII. even in federal courts. 31 . Who is not competent to testify? o (1) Judge who presides over a case is not competent to testify as a witness. Policy: Roles of testifying and presiding are incompatible. Judge’s Competency as a Witness • The presiding judge may not testify as a witness at the trial. his testimony should come through. A party need not object to preserve the issue. As long as a witness appreciates his duty to tell the truth. regardless of worth. o Prohibits judges from offering commentary that “amounts to” testimony. Juror’s Competency as a Witness. (Rule 601). • Usually in civil diversity actions. • Even young children & mentally incompetent adults • Up to opposing counsel to expose weaknesses. Witnesses: Article VI Rules • A. Policy: Jurors. Rule 606. recalling. the court must determine competency under that state’s laws. the court must give a party an opportunity to object outside the jury’s presence. • Every person is competent to be a witness unless these rules provide otherwise. and is minimally capable of observing. should decide whether to believe a witness: Rule 601. every person is competent to be a witness. Who is competent to testify? o The rules allow jurors to hear the testimony of almost any witness who has knowledge relevant to the case. and communicating events. Default is to assume competence Unless another rule specifically excludes a witness from the stand. • (a) At the Trial. A juror may not testify as a witness before the other jurors at the trial. • B.162 o Rule recognizes fear of retaliation. Policy: Other jurors might not fairly weigh the credibility of one of their colleagues. o (2) Jurors are not competent to testify in a trial where they play a decision making role. thus automatically preserves the issue for appeal. not inflexible rules.
• Easy standard to meet • May be established by witness’s own testimony or other source: Rule 602. • 32 .. • i. etc. • Witness who lacks ability to fulfill these functions has “insufficient personal knowledge” to testify. instead. Exception: Expert witnesses may offer testimony even if they lack personal knowledge. Rule 602. Need for Personal Knowledge.e. Witness must take an Oath or Affirmation before Testifying. Need for Personal Knowledge. and describing it to others. i. knowledge of circumstantial evidence may be relevant. • But can’t offer testimony undermining the validity of the verdict they rendered. • Basically. testimony stating “I was there at the time” is sufficient to establish personal knowledge. “Personal knowledge” implies a witness is capable of apprehending an event. Jurors may appear at subsequent trials to testify as witnesses about things they observed in the previous trial. This rule does not apply to a witness’s expert testimony under Rule 703.o Issue not automatically preserved for appeal.e. remembering it. o (4) Witnesses lacking personal knowledge may not testify. o (3) Lawyers who represent the parties are not barred from testifying by the FRE. thoughts. Witnesses cannot speculate about matters beyond their actual knowledge on the stand. motives. o Remember: preference is for admissibility. matters they themselves have seen. • But knowledge isn’t limited to eyewitness accounts. heard or otherwise sensed. Establishing Personal Knowledge: Lawyer must lay the foundation of “personal knowledge” to support the witness’s testimony. C. o A witness may testify to a matter only if evidence is introduced sufficient to support a finding that the witness has personal knowledge of the matter. But barred by Rules of Professional Responsibility. Evidence to prove personal knowledge may consist of the witness’s own testimony. unless it’s physically impossible for the witness to have been where she claims she was. Witnesses can only testify only about relevant matters they know about personally.
• Before testifying. E. Competence: Take Away o FOUR REQUIRED WITNESS CAPACITIES: (1) Perception Comes from 602’s personal knowledge requirement (2) Memory Comes from 602’s personal knowledge requirement (3) Veracity Comes from 603’s oath/affirmation requirement • • 33 . NB: not to tell the truth. the judge will exclude the witness’s testimony. (US v. Rule allows witnesses to choose between an oath or affirmation. then the judge may find the witness incompetent to testify. It must be in a form designed to impress that duty on the witness’s conscience. correct and complete” = okay. • Rare. Ask: Would this avowal support a perjury prosecution? • “I do hereby declare that the facts I am about to give are. no legal distinction. a witness must give an oath or affirmation to testify truthfully. Interpreter An interpreter must be qualified and must give an oath or affirmation to make a true translation. Oath: includes the word “swear” and a reference to God Affirmation: promise to tell the truth that omits religious references & uses the word “affirm” instead of “swear.” Witness not required to utter incantation or particular magic words. • Two factors: o (1) Qualified o (2) Take an oath/affirmation to make a true translation. Commissioner) • “I’m a truthful man” & “I would not tell a lie to stay out of jail” = NOT okay. Bc oath/affirmation is the basis for a perjury prosecution if witness lies on the stand. Oath or Affirmation to Testify Truthfully. policy favors admissibility. Rule 603. just needs core promise to tell the truth. Fowler) If a witness refuses to make an oath/affirmation that satisfies Rule 603. Interpreters & Competence o Standard for judging an interpreter’s competence: Rule 604.o If the witness lacks ability to understand the truth or to appreciate the seriousness of testifying in court. Rule: Judges should try and accommodate different religious beliefs. accurate. D. to the best of my knowledge and belief. (Ferguson v.
following this sequence: (1) Direct Examination – attorney who calls the witness (2) Cross-Examination – opposing attorney (3) Redirect-Examination – if necessary (4) Recross-Examination – if necessary (5) Additional Rounds of Redirect and Recross – rare o Overview: Guidelines for examining witnesses at each stage governed by Rule 611: Rule 611(a) gives judges the general power to control how witnesses are examined during any stage of testimony: Rule 611. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: o (1) make those procedures effective for determining the truth. Rule 611(b) & (c) work together to endure that witnesses use their own words to tell the story about what happened: Rule 611. and o (3) protect witnesses from harassment or undue embarrassment. Mode and Order of Examining Witnesses and Presenting Evidence. and 611’s question and answer procedure. 34 . Purposes. o (2) avoid wasting time. memory. o Impeaching Capacity – Techniques: (1) Show impaired perception or memory (2) Demonstrate inconsistencies in the witness’s story Narrative. Cross-examination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. • (b) Scope of Cross-Examination. • If witness is only minimally able to communicate (blink for yes/no). perception. sincerity (3) Establish bias (4) Attack witness’s character for truthfulness F. Mode and Order of Examining Witnesses and Presenting Evidence. • (a) Control by the Court. The court may allow inquiry into additional matters as if on direct examination.• Must understand the importance of telling the truth (4) Narrative Comes both a combo of 602’s personal knowledge requirement. o B/c difficult to cross or impeach. hey may not be allowed to testify. Examining Witnesses o Parties take turns examining witnesses at trial.
Court’s Calling or Examining a Witness. after being designated as the party’s representative by its attorney. Each party is entitled to cross-examine the witness. an adverse party. Objections. o Usually experts… (d) a person authorized by statute to be present. Excluding Witnesses. the court should allow leading questions: o (1) on cross-examination. (b) Witnesses are usually excluded from the courtroom while other witnesses are testifying. (1) Calling a Witness (a) Rule 614 authorizes the judge to call her own witnesses and to interrogate witnesses called by parties: Rule 614. Rule 614(c) suspends general requirement that objections be registered immediately: o Rule 614(c). At party’s request. (a) Calling.o (c) Leading Questions. But this rule does not authorize excluding: (a) a party who is a natural person (b) an officer or employee of a party that is not a natural person. The court may examine a witness regardless of who calls the witness. (c) a person whose presence a party shows to be essential to presenting the party’s claim or defense. Both parties are entitled to cross-examine any witness called by the judge. or a witness identified with an adverse party. Concern: Jury may find attorneys insubordinate. • Rare that judge calls own witnesses o But common that judge question’s parties’ witnesses Parties may object to judge’s questions or to the competency of the judge’s witness. Leading questions should not be used on direct examination except as necessary to develop the witness’s testimony. (b) Examining. the court must order witnesses excluded so that they cannot hear other witness’s testimony. • 35 . The court may call a witness on its own or at a party’s request. Ordinarily. Or the court may do so on its own. Rule 615. just as they would opposing counsel’s. A party may object to the court’s calling or examining a witness either at that time or at the next opportunity when the jury is not present. and o (2) when a party calls a hostile witness. • But in these cases.
NB: Questions lie on a continuum from open leading.” starting broad—getting narrower.o Rule 615 can be invoked by judge or a party. rule gives judge no discretion to let the witness stay. But lawyer can lead witness “up the ladder. o Attorney must focus on relevant and otherwise admissible facts. o Experts can watch the whole trial. rather than the lawyer.603) • If opposing counsel objects to witness’s competence. o If the party is an organization. (iii) Allow witness to tell her story • Performed through a series of questions and answers. • (611)(c) restricts the use of leading questions on direct examination: o Leading question = one that suggests a specific answer to the witness. True in civil and criminal cases Though criminal ∆’s actually have a constitutional right to confront their accusers. regardless of whether or not they testify. often necessary to develop data.g. didn’t he?” o Policy: The witness. 36 . If invoked by a party. • Unless party can’t be barred under 615(a) – (d): o Parties to the case may watch the entire trial. followed by a request for confirmation that the statement is true. e. should tell the story. a statement. not black and white: ✓ “What happened next?” ✓ “What did ∆ do at that point?” ✓ “Did you see ∆ do anything to the victim?” ✗ ”The defendant shot the victim in the head. lay foundation for expert’s opinion. then the judge addresses that issue under R. (2) Direct Examination: Attorney constructs a story that presents the client’s case: (i) Introduce witness to jurors • Witness takes oath/affirmation (R.602 (ii) Lay the foundation • Establish juror’s personal knowledge (602) o If expert.. then an officer/employee represents them in court throughout the trial.
an adverse party or a person identified with that party” Hostile = any witness who is evasive or uncooperative to such an extent that it interferes with eliciting testimony. confused. etc.” at which point the witness may be interrogated with leading questions on direct. etc) (2) To direct a witness’s attention to a relevant place and time e.: see page 180 (4) Hostile witnesses. which grants trial judges broad discretion to control form of testimony and overall order of the trial: 37 .g..e. under 611(c)(2) Leading questions are appropriate on direct when party calls a witness who is likely to resist that party’s position: 611(c)(2): “A hostile witness. occupation. the FRE do not define the form of direct examination.” Four common scenarios where leading is permissible on direct: (1) To establish pedigree information i. or has trouble recalling Commonly for youth. uncontested points (educational background. victims of sexual abuse. “Now directing your attention to Monday. illness. memory problems. nervousness.• • Exception to prohibition of leading questions on direct: o Rule 611(c) gives judges discretion to allow leading questions on direct when they are “necessary to develop the witness’s testimony. December 3rd. e. did you attend the board meeting at the Chicago office on that day?” (3) To help a witness who is hesitant. Apart from restrictions on leading questions. (Hostile ≠ rude or angry) Adverse Party = any witness associated with the opposing party Party will ask the judge to declare the witness “hostile. o Main limitation = Rule 602(a)..g.
(3) Assumes a fact not in evidence – Questions asserting a factual assertion not yet testified to: ✗ “When did you stop beating your wife?” (4) Beyond the Scope – Cross-examination topic is beyond the scope of direct. the witness will tell a story instead of answering a specific question: ✗ “What happened to you on January 24?” ✗ “Tell me about the car accident. just the reason why the form is objectionable): (1) Argumentative – attorney is drawing inferences or making conclusions that should be reserved for closing args. The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to: (1) make those procedures effective for determining the truth. no one cites the rule. broad questions may be useful at the beginning of direct testimony: 38 . Purposes.Rule 611. (5) Calls for narrative – Question is too broad. o Any objection to the form of a question is an objection based on Rule 611(a): (Generally. (May also be harassing the witness.): ✗ “Isn’t it difficult to believe that you could see the defendant clearly when there were no street lights on the entire block?” ✓ ”Could you really see the defendant clearly given the fact that there were no streetlights on the entire block?” (2) Asked and answered – Attorney has already asked the question and the witness has already answered. OR redirect is beyond the scope of cross.” NB: Keep in mind judge’s discretion. (a) Control by the Court. Mode and Order of Examining Witnesses and Presenting Evidence. (2) avoid wasting time. and (3) protect witnesses from harassment or undue embarrassment.
insulting the witness for no purpose or arguing with the witness about the answer. Jones tell you what she was thinking when she signed the contract?” (7) Compound Question – Question that tries to elicit more than one fact at a time. ✓ “Describe the collision for me.” ✗ Q: “And when you go out casing the neighborhood late at night. ✗ “When you saw the police. the face or the body?” 39 . ✗ “It looks like you can’t be trusted to ever tell the truth. ✗ “And when Ms. Can’t use a more powerful word Can’t change facts themselves Misstatement may occur immediately or later in the trial: W: “I sometimes go for walks late at night when I’m bored. but is altering the testimony. what was she thinking?” ✓ “Did Ms. Jones?” ✗ “You expect us to believe that you never read contracts before you sign them?” (9) Improper Characterization of Testimony/Misstates the Testimony – Attorney’s pretending to repeat testimony back to the witness as the basis for the next question. did you run away and drop the drugs?” (8) Harassing/Badgering the Witness – Lawyer asks same question repeatedly in different ways. NB: Also based on Rule 602. can you Mr. beyond realm of witnesses perception. Jones was signing the contract. where do you usually go?” (10) Leading Question – Attorney asks a question that suggests a specific answer: ✗ “Did he hit you in the face next?” ✓ “Where did he hit you next.” ✓ “What happened next?” (6) Calls for Speculation – Question asks the witness what other people may have been thinking or feeling.
easiest way to test bounds of witness’s knowledge/ credibility is by controlling their answers. 40 . ask the judge to strike the answer. isn’t that right?” ✗ W: “The guy driving the other car looked a lot more drunk than I was. o Cross-X usually = “yes” or “no” questions o Witnesses can’t answer questions they haven’t been asked! • Leading questions authorized by Rule 611(c)(1): Rule 611(c).194 o (3) Cross-Examination Four main goals of cross-examination: (1) Obtain useful details (2) Discredit the witness (3) Tell a different story (4) Do no harm Cross differs from direct examination in two main ways: (1) Leading questions are allowed • Primary purpose of cross is to limit or discredit the story told by the witness. NB: “Ordinarily” – can’t ask leading questions of a friendly witness.” (12) Vague – Question doesn’t give enough detail to allow witness to respond properly OR term in question has unclear meaning. so impossible to give a meaningful response: ✗ How many cards did you sell within your lot? No clear definition of “far away”: ✗ “You were far away from the bank when the robbers ran out into the street. attorney who asked the question can object to the witness’s answer as non-responsive. the court should allow leading questions: o (1) on cross-examination. No specific timeframe. and force the witness to answer the question: Q: “You had four beers at the bar before you got behind the wheel that night. He could barely stand up. (11) Non-Responsive Answer – Usually on cross. correct?” See chart spanning pages 190 . Ordinarily.
” so restricted to direct questions only. Questions designed to test the credibility of a witness are always within the scope. The court may allow inquiry into additional matters as if on direct examination. (b) Recross Examination FRE is silent on recross examination. Lots of discretion. So if π calls ∆ as a witness.. regardless of the subject matter covered on direct. but most judges allow it. but most judges will allow it where new issues arose on redirect. o (iii) On cross. Must focus on matters raised during cross-examination: • Commonly used to rehabilitate a witness impeached on cross • May also clarify questions asked on cross Must avoid leading questions as much as possible. Scope of Cross-Examination. o (4) Additional Rounds of Witness Examination (a) Redirect Examination FRE silent on redirect examination. treated “as if on cross. must call them directly in your own case. anyway.e. In these cases.k. • Scope is restricted by Rule 611(b): o Rule 611(b). let the witness tell their story. • Judges get impatient on redirect. • More persuasive. allowed to ask questions affecting witness’s credibility. i. o Scope’s an oft-contested issue. Crossexamination should not go beyond the subject matter of the direct examination and matters affecting the witness’s credibility. a. • Three things to remember about 611(b): o (i) Usually can’t ask about topics/incidents that weren’t addressed during direct. “impeaching” the witness. o (ii) Rule gives judges discretion to expand the scope. o The judge decides what’s within the scope. (2) Scope is restricted • Cross-examiner is restricted to those issues covered during direct examination. where a witness is about to leave town/would be difficult to recall. To introduce new topics. judge will not allow ∆’s lawyer to use leading questions freely on cross.. as your witness.a. 41 .
• Ok to refresh with illegally obtained writings o Bc substance not “really” coming in as evidence. What may an attorney use to “refresh” a witness’s recollection? Any “writing” that will honestly refresh the witness’s memory. argue it. o But judges rarely say no. if the court decides that justice requires the party to have those options. “Refreshing memory” is authorized by Rule 612: • Rule 612. • Though judge has discretion to allow lawyer to refresh a witness’s memory before trial “in the interest of justice. When may an attorney “refresh recollection?” Whenever the judge allows it.Same rules apply as on cross-examination o Leading questions ok.” • Application varies widely from judge to judge. but must stay within scope of previous examination o Keep it brief! (c) Additional Rounds of Redirect and Recross Rare. just witness’s “refreshed” testimony. even 403’s unlikely to keep it out. Writing Used to Refresh a Witness’s Memory.” they rarely do so. the judge may allow the lawyer to refresh the witness’s recollection with a document or other item. o Idea: While surprise is acceptable. • NB: Rule doesn’t require refreshment. only authorizes a judge to allow it in his or her discretion. Clarify this. it’s in court’s interest for testimony to be “fresh. o (a) Scope. but judges may allow it where recross reveals a new fact that’s sufficiently important that the opposing party should have an opportunity to reexamine o (5) Refreshing a Witness’s Memory If a witness recalls general outlines of an incident but has trouble reciting details. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying. unfair surprise is not. Grey area. • 42 . or (2) before testifying. • Ok to refresh with writings that are otherwise inadmissible o Bc not “really” coming into evidence. we never really nailed down a standard.
” Limited purpose the jury may only use writings introduced under 612 to assess the witness’s credibility. to inspect it. “tell them the car was blue?” This would still be admissible bc goes to witness’s credibility. “Writing” needn’t have been written or created by the testifying witness o But seems more credible to jury if it was The rule says “a writing” legal fiction. anything. construed by courts broadly. a lamp. prevents parties from circumventing hearsay rules via “refreshers. • Judge will use a limiting instruction if not independently admissible. in turn. Writing used to Refresh a Witness’s Memory. and to introduce in evidence any portion that relates to the witness’s testimony. even if not otherwise admissible. • (2) cross-examine the witness on the writing. • i. Rule 612(b) requires refreshing party to allow any party who did not initiate the refreshment an opportunity to: • (1) inspect the writing used. to cross-examine the witness about it. • But. must be something you’re willing to show opposing counsel. o Adverse party’s rights limit abuse of this rule.. (b) Adverse Party’s Options. Procedure for determining which portions of a writing to admit (when only part of a document relates to witness’s testimony) is governed by rule 612(b): • 43 .e. o Reciting the exact same language? o Writing says. to determine how well the witness actually recalled the thing she testified to (rather than just parroting writing back). show it to a jury: Rule 612. use for any other purpose is improper. • Can be pictures. who may. Deleting Unrelated Matter…an adverse party is entitled to have the writing produced at the hearing. and • (3) introduce the relevant portions of the writing into evidence.
o E. • Remedy if a party refuses to produce a writing used to refresh recollection governed by rule 612(c) depends on the judge. and on whether the trial is civil or criminal: o Rule 612(c).” thus the rule doesn’t apply. Would seeing this help refresh your recollection as to what else was stolen?” • 44 . which governs discovery in federal criminal trials: o Rule 612(b). But if the prosecution does not comply in a criminal case. and order that the rest be delivered to the adverse party.” then there’s nothing to “recollect. Adverse Party’s Options. Rule rests on a legal fiction that the witness is still testifying solely from memory. • (2) Describe the “memory jogger” and ask witness if that writing would refresh her recollection. • Rule 612 is subject to the Jencks Act.g. not from the writing. §3500 provides otherwise in a criminal case… How does an attorney “refresh recollection?” SEVEN STEPS: • (1) Witness states she “can’t recall”. unless they can identify an exception to the rule against hearsay. the court may issue any appropriate order. If a writing is not produced or is not delivered as ordered. the court must strike the witness’s testimony or —if justice so requires—declare a mistrial.. o Prepping witness here is really important: if she says “I don’t know” instead of “I don’t remember.C. Adverse Party’s Options. o NB: Only opposing party can use 612 to bring the writing into evidence. Deleting Unrelated Matter. Failure to produce or Deliver Writing. delete any unrelated portion.. refreshing party can’t introduce the writing into evidence unless it’s already admissible i. If she guesses even though her memory is fuzzy. she might get impeached on cross. Any portion deleted over objection must be preserved for the record. Deleting Unrelated Matter…If the producing party claims that the writing includes unrelated matter. Rule 612(b). the court must examine the writing in camera. “I have here a copy of the police report you filed the day after the burglary.S.e. Unless 18 U.
Uncommonly challenged. the law has an overall distaste for character evidence. (6) Ask witness: “Did that refresh your memory?” o Must say “yes. • • • • IX. If judge is persuaded. testifying from “original memory. Actions – we deduce character from actions. We reason forward to assemble reputation from external acts. reputation. (3) Show memory jogger to opposing counsel o Opposing counsel can ask to “voir dire” (examine) the witness on her recollection to show that the witness doesn’t independently recall the events recorded in the writing. Traits that incline people to act in a particular way.” not the writing that refreshed recollection. can only come in with an exception. “no memory” is difficult to prove. and acts are distinct concepts: Character traits – reside within a person. o Limited purpose 45 . Reputation – what other people think about an individual.o They must know to say “yes. o Character. • ISSUE: When is character evidence admissible? o Four categories of character evidence help determine its admissibility: (1) Proof of a witness’s propensity to lie or tell the truth May come in one of three different ways: • Rule 608(b): lets parties cross-examine a fact-witness about specific conduct that suggests a truthful or untruthful character. o Again. external. (4) Show memory jogger to witness (5) Take memory jogger away o Emphasizes that the witness is testifying from original memory. internal. Character Evidence • Generally. Not always a reliable guide to character. for lack of personal knowledge (602).” or you can’t show it to • them.” (7) Ask witness to testify from memory. the judge won’t let the witness testify further as to that matter. At that point est’d not testifying from original memory. not the writing itself. so the document is hearsay.
o Limited Purpose o Can’t probe or cite specific instances on direct. Can’t waste court’s time with extrinsic evidence. unfairly prejudicial Three “Mercy Rule” Exceptions to 404(a)’s Propensity Ban: • Rule 404(a)(2) admits some character evidence to prove propensity in criminal cases: o 46 . she probably acted in a particular way: o Rule 404. (a) Character Evidence. not just all witnesses (unlike 608 & 609) o Policy: we hold ∆’s responsible for their actions on a particular occasion. i. May cite specific instances on cross.. • Check the purpose the character evidence is being offered for. See Part X on impeachment for more detail (2) Proof of conduct by propensity Character evidence is generally barred to prove propensity. o Limited Purpose o Only available for witnesses. must take the stand. Crimes or Other Acts.” then it’s offered to show propensity almost always barred. o Neither side can waste court’s time with extrinsic evidence • Rule 609: lets parties introduce extrinsic evidence of some prior criminal convictions to suggest a witness’s character for untruthfulness. o If brought in to prove “acted in accordance with the character trait. bc a person has a particular character trait. (1) Prohibited Uses. Character Evidence.e. not for evil character or a history of bad acts. • Can’t prove an element of a case by arguing that. must accept the witness’s answer. but limited to witness’s testimony. Ban applies equally to good and bad character Ban applies to all people. • Rule 608(a): lets parties offer general reputation or opinion testimony about a witness’s truthful or untruthful character. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait.
o Pertinence ≅ narrower version of relevance Examples of pertinence: Victim’s violent character is pertinent to a claim of self defense. the prosecutor may offer evidence of the alleged victim’s trait of peacefulness to rebut evidence that the victim was the first aggressor. ∆’s aversion to risk is pertinent in a gambling prosecution. and (ii) offer evidence of the defendant’s same trait. (B) subject to the limitations in Rule 412. and (C) in a homicide case. then the mercy rule weighs in favor of letting ∆ present his evidence. 3) They allow proof of both defendant and victim’s character o Good and bad traits. the prosecutor may: (i) offer evidence to rebut it. (a) Character Evidence. Character Evidence. ∆’s peaceful character is pertinent in a prosecution charging a violent crime. o 47 . (2) Exceptions for a Defendant or Victim in a Criminal Case. both. Key Points regarding the Mercy Rule Exceptions: 1) They apply only in criminal cases 2) They only allow proof of “pertinent” character traits under 404(a)(2)(A) or (B). would help defend his innocence. The following exceptions apply in a criminal case: (A) a defendant may offer evidence of the defendant’s pertinent trait.• Four • • • Rule 404. and if the evidence is admitted. Keep in mind law’s general distaste for character evidence. and if the evidence is admitted. ∆’s honest character is pertinent in a prosecution for fraud. a defendant may offer evidence of an alleged victim’s pertinent trait. the prosecutor may offer evidence to rebut it. These three exceptions derive from the “mercy rule”: o If a criminal ∆ believes proof of his good character. or the victim’s bad one. Crimes or Other Acts.
can respond to eye-witness testimony report that “I saw victim hit ∆ first” with character testimony. 2) victim held an opposite one. just so long as it is. 1) victim lacked that trait. o Prosecutor: may only rebut traits ∆ has raised. Methods of Proving Character.g. or 2) holds an opposite one. When evidence of a person’s character or character trait is admissible. Rule 412 = rape shield law o Prosecutor: may only introduce character evidence in response to an action taken by ∆: (A) If ∆ presents character evidence about himself. or 3) ∆ holds the trait he attributes to the victim.. 1) lacks that trait. (B) If ∆ presents character evidence about the victim. it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. the court may allow an inquiry into relevant specific instances of the person’s conduct. • 48 . (C) In a homicide case. the prosecutor can offer evidence the deceased had a peaceful character. So if ∆ offers evidence on 1 of 2 pertinent character traits. (a) By Reputation or Opinion. Methods for proving propensity in a criminal trial via 404(a)(2)’s mercy rule are severely limited by Rule 405(a): • Rule 405. govt can only offer evidence responding to pertinent trait #1. e. Even if defendant introduced no character evidence at all. On cross-examination of the character witness. if ∆ offers any evidence that the deceased was the first aggressor. the prosecutor can rebut it by showing. 4) They distinguish between when the defendant versus the prosecutor may introduce character evidence: o Defendant: free to introduce character evidence about himself or the victim broadly. the prosecutor can rebut it. with proof that ∆ either. 1) a pertinent character trait & 2) complies with Rule 412.
o Treated like any other character witness May testify generally on direct May speak to specifics on cross. (3) Proof of character or reputation as elements Ok to offer evidence of character or reputation to establish an element of a crime. o Can call a rebuttal witness and cross opponent’s witness. Criminal ∆’s may present character witnesses to offer only general opinion or reputation testimony proving propensity towards any pertinent character trait. o Significantly reduces the appeal of invoking 404(a)(2). • 401: Evidence used to prove an element of a case is relevant • 49 . limited to witness’s answers only. Can’t prove specifics with extrinsic evidence. • Cross-examiner may ask that witness about relevant specific acts. o Limited purpose: jury may only consider prior acts to assess witness’s knowledge of ∆. o Beware: opens the door for cross. claim or defense. o Must lay the foundation Same as under 608. o Must be relevant to the character trait described by the witness. o Can’t probe into specific acts Includes the absence of specific acts. both. Not mutually exclusive. • None of the limits on character evidence apply bc doesn’t depend on an inference of propensity. o Neither side may prove or disprove these specific acts with additional evidence. Authority is implicit from the structure of the rules. • 405’s limits apply whether proving defendant or victim’s propensity in a criminal case. cross can be devastating. o Must have a good faith belief the specific incidents occurred. • Both sides may call rebuttal character witnesses. no express authorization: • 402: All relevant evidence is admissible unless otherwise provided. Judge may issue a limiting instruction.
On cross-examination. passivity or peacefulness. • 50 . When a person’s character or character trait is an essential element of a charge. 404(a): Only prohibits character evidence used to suggest propensity What is meant by “character?” • Almost any personality trait: honesty. Methods of Proving Character. o Idea: won’t distract jury bc central to the case. etc. • Cases where character is commonly an element: o Defamation o Negligent entrustment o Entrapment defense o Child custody cases o Damage determinations As usual. claim or defense may be proved through general reputation or opinion testimony: • Rule 405. o Can introduce via direct examination of witnesses or via other types of evidence (e.. . (b) By Specific Instances of Conduct. aggressiveness. cautiousness. . Methods of Proving Character.g. (1) Call character witness (2) Lay foundation & establish personal knowledge (as in 608(a)) (3) Ask for opinion/reputation But proof may also be offered in any way. claim or defense. the opposing party may ask character witnesses about specific acts: • Rule 405. o Rarely a litigated issue. it may be proved by testimony about the person’s reputation or by testimony in the form of an opinion. not limited to opinion or reputation testimony: • Rule 405. proof of character as an element of a crime. (a) By Reputation or Opinion. Methods of Proving Character. the character or trait may also be proved by relevant specific instances of the person’s conduct. When evidence of a person’s character or character trait is admissible. • Questions about specific instances are explicitly admissible when proving character as an element. a certificate of conviction) NB: Still must satisfy other FRE. recklessness. . mendacity.
but for that “other” purpose only: Rule 404. or unfairly prejudicial (403). On request by a defendant in a criminal case. i. or lack of accident. excuses lack of pretrial notice. the prosecutor must: (A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial. o 51 . . Wrongs. plan. . (1) Prohibited Uses. knowledge. (b) Crimes. . Remember 403: Judge has discretion to exclude evidence used to prove character as an element if’s confusing. or other act is not admissible to prove a person’s character in order to show that on a particular occasion the person acted in accordance with the character.. (4) Proof of other acts for non-propensity purposes Evidence of specific acts that might reveal an individual’s character. and (B) do so before trial—or during trial if the court. Notice in a Criminal Case. On crossexamination of the character witness. preparation. Crimes or Other Acts. “Do you know of the time when his gf slapped Mike in the face and he calmly walked away instead of hitting her back?” • But must have good faith belief that the incidents actually occurred. (2) Permitted Uses.e. such as proving motive. o And can’t bring in extrinsic evidence on cross. repetitive. the court may allow an inquiry into relevant specific instances of the person’s conduct. This evidence may be admissible for another purpose. (a) By Reputation or Opinion. • Ask: Is the evidence being used to prove propensity? o Yes? Need an exception to 404(a)’s ban. Character Evidence. o No? Admissible under 404(b) unless 403. but that are also relevant to prove some other fact of consequence in the case (short of an element) are admissible under 404(b). intent. absence of mistake. for good cause. wrong. Stuck with the witness’s answer. or Other Acts. opportunity. Evidence of a crime. identity.
o Where evidence is excluded under 404(a). yet comes in under 404(b). Judge may give a limiting instruction to the jury. Six key points regarding character evidence introduced for “other” purposes: • (1) Reiterates that character evidence isn’t admissible to prove propensity. o The rule is construed broadly. • Allows for evidence of both prior and subsequent “other” acts. • (3) The nine “other purposes” listed aren’t exhaustive. 404(b) is one of the most frequently used rules in the Federal Rules of Evidence: • Dually effective: o Accomplishes its stated purpose + helps jury develop a negative view of the witness. o Admitting other good acts for purposes other than propensity = “reverse 404(b)” use. just reaffirms the scope of 404(a). 52 . o Requires a good faith basis Can’t evade 404(a)(1)’s prohibition by using specific acts that prove character to hint at propensity. Any purpose other than proving that an individual acted consistently with his character on a particular occasion is removed from 404(a) (1)’s general ban on character evidence. o “May” = in judge’s 403 discretion. • Applies to both good and bad “other” acts. Judge may exclude evidence skirting too close under 403 if she thinks it’s actually coming in for a forbidden purpose probative value low + high risk of unfair prejudice. o 404(b) is not an exception to 404(a). o NB: Prior acts much more common.” Other purpose just must be relevant to the case. Always argue 403 in these cases. • (2) Reaffirms that specific acts may be admissible for other purposes. goes to _______. Argue. “doesn’t go to law breaking character. the judge must articulate her 403 reasoning or risk being overturned on appeal.
” the more likely to convince judge that “evidence goes to identity” more probative & less unfairly prejudicial. 6. 53 .. 3. “Other occasion” may include access during a previous crime or bad act. The more unusual the “signature elements. Identity: Signature elements of a crime may allow the prosecutor to prove identity by introducing evidence of the defendant’s other crimes or bad acts if 1) ∆’s identity is at issue. bc not inferring propensity. will probably be excluded under 404(b).e. Intent 2. though still relevant. so long as it provides a motive (i. Plan: Are the prior crime or act and the act currently being charged arguably part of one common plan or scheme? May bring in prior act as evidence of planning charged act. so long as its introduction avoids propensity inferences.” Needn’t be of the same nature. Opportunity Prosecutor may offer evidence that ∆ enjoyed access to a protected place or special tools on another occasion. Knowledge Prior crime or bad act might establish that ∆ possessed the necessary knowledge to commit the same crime or bad act later. Motive: “Previous crime or other bad act is admissible bc it motivated the charged crime. But if ∆’s identity is stipulated. 4. 5. and 2) there are strong similarities between the charged crime and “other” crime(s). financial motives behind tax fraud help establish a motive for arson).o The rule suggests some permissible uses: 1.
d) Any other relevant purpose that avoids an inference of propensity. o Unlike 404(a) (which explicitly limits sub-2 exceptions to criminal cases) (5) Rule requires that the prosecution give reasonable notice in criminal trials of their intent to introduce any evidence that’s sanctioned by this rule.” “Prior sale” evidence has been well established as probative of proving intent (as opposed to propensity) in drug cases “∆ did it once so likely to be doing it again” ≠ “∆ has a propensity to sell cocaine. c) Res gestae evidence: inextricably intertwined evidence that’s “necessary to complete the story” to avoid jury confusion.” Beware: intent sometimes seems almost indistinguishable from propensity. o Rule just underscores its admissibility 54 . b) Absence of mistake and lack of accident: overlap with intent. (4) Applies to criminal AND civil cases.• • • Evidence of other crimes or acts may be admissible to prove that ∆ possessed the intent necessary to commit this crime. knowledge. (6) Remember that the rule is technically unnecessary. “Examining a pattern of actions is somewhat different from using one act to infer responsibility for another. 7.” “Pattern evidence” is probative of intent – wives dead in the bathtub hypo + employment discrimination cases. evidence offered for “another purpose” isn’t barred elsewhere. The closer together in time. and opportunity. the easier it is to argue “shows intent. motive and knowledge. Any other non-propensity purpose a) Preparation: overlaps with plan.
• 406 is a specific application of 404(b): o Rule 406.” o Advisory Committee’s definition of habit = “One’s regular response to a repeated specific situation.g.” Broader than unconscious behavior 55 . requires no propensity reasoning. Evidence of a person’s habit or an organization’s routine practice may be admitted to prove that on a particular occasion the person or organization acted in accordance with the habit or routine practice. Technically unnecessary. o Not Just Admissible. Often deemed sufficient even in criminal cases. etc. • The rule doesn’t define “habit” or “routine practice. so doesn’t violate 404(a)(1). 2) High probative value o Admissible For A Limited Purpose Only: E. but habit is just regular action regardless of inner character. judges and juries often conclude that habit evidence is sufficient to establish that the witness performed the disputed action in accordance with long-standing habit.. evidence ∆ habitually wore a seatbelt is admissible to prove he was wearing a seatbelt on the day in question. Routine Practice. • Under 406. litigants may present past examples of habitual behavior to prove they behaved in the same way during the incident that’s the subject of litigation. Habit. But Possibly Sufficient: Where a person has done a task so many times that he can’t possibly remember whether he did it a certain way on the day in question. but not admissible to show he has a general disposition to act safely. Propensity depends upon internal character. o Reasoning: 1) Tend to be morally neutral. Rule 406: Habit or Routine Practice Other acts that prove an individual’s habit or an organization’s routine practice aren’t subject to the rules governing character evidence. Not just true of laboratory testing/machine maintenance. The court may admit this evidence regardless of whether it is corroborated or whether there was an eyewitness.
” Distinguish “habit” from “propensity” using four factors: 1) Specificity of the conduct 2) Distinctiveness of the situation 3) The regularity of the conduct 4) Lack of moral overtones Sliding scale. not black & white. Very specific conduct that arises regularly in an identifiable context is most likely to constitute “habit.” Courts are more willing to accept habit evidence from corporations than from individuals. Narrower than a general tendency. o X. then a court will accept that practice as evidence that the organization acted that way on a particular occasion.” So okay to testify to a habit even if no one else has ever seen you act that way. o Rule 406 is silent about how to prove “habit. o “Routine practice” = “habit. Impeachment • Discrediting witnesses is an essential part of many trials. “If you can show the organization always or frequently acts a certain way under designated circumstances. Idea: The jury’s free to reject self-serving or uncorroborated habit testimony. not inner character. litigants often must discredit at least some of the opponent’s witnesses to win. o Habit evidence is allowed “regardless of whether it is corroborated or whether there was an eyewitness. Remember that habit focuses on actions.” Courts allow both opinion testimony and specific instances of conduct. But instances of specific conduct much more common to prove “habit. Offensive Techniques – (1) Rebut the evidence 56 . o General Impeachment Techniques: I.” as applied to an organization. ask “what is the proponent trying to prove?” and “What inferences are being relied upon to prove it?” Answers to these questions will determine the evidence’s admissibility. So consider the same factors as above.” o Take Away: When evidence relates to character.
so couldn’t impeach their own witnesses. may attack the witness’s credibility. establish an eye witness wasn’t wearing his glasses (2) Demonstrate inconsistencies • Show the witness is either lying or really confused (3) Show bias (4) Attack witness’s character for truthfulness.• • (2) Complete the story (3) Clarify ambiguous testimony (4) Introduce Expert testimony II. • The process for impeaching witnesses with evidence of an untruthful character balances: o the parties’ interest in offering that evidence. Defensive Techniques – (1) Show impaired perception or memory • e. Who May Impeach a Witness.g. III. The FRE regulate impeachment methods available to attorneys: o Rule 607: Any Party May Impeach Any party may attack the credibility of any witness. never brings evidence in. including their own: Rule 607.. confusion or delay using Rule 403. o So usually a better tool for defendants than for plaintiffs or prosecutors (who have the burden of proof at trial. • Three ways to challenge a fact-witness’s character for truthfulness: o (1) Cross-examine the witness about specific incidents suggesting a character for untruthfulness using prior inconsistent statements under Rule 608(b)(1). Any party. • NB: Under common law. Referee Techniques – (1) Exclude the evidence under a specific rule (2) Exclude the evidence by demonstrating unfair prejudice. o (3) Present a character witness who offers general reputation or opinion testimony about the fact witness’s character for untruthfulness under Rule 608(a). 57 . o (2) Offer evidence of the witness’s criminal convictions under Rule 609. with o the judicial system’s concern for focused and efficient trials. attorneys had to vouch for any witness they called to the stand.) π/prosecutor must attempt to replace “knocked out” evidence with something else. Impeachment only knocks evidence out. including the party that called the witness.
then the judge will probably limit exploration to questions only.” • i. it doesn’t come in for its substance. 58 . o NB: A witness’s bias or perception is never a collateral issue But may still be excluded under Rule 403 as “cumulative. Can ask about a prior inconsistent statement without any actual collateral evidence. FRE distinguish between extrinsic and non-extrinsic evidence of inconsistent statements. If the inconsistency involves a fact of consequence. just goes to witnesses credibility. • Non-collateral matter: proves a fact in consequence other than impeachment. Where extrinsic evidence is allowed in. • Though judges can demand proof of a good faith basis. • Limiting instruction But if an inconsistency relates solely to a collateral issue..” if uncontested. • Unless a separate hearsay exception applies. expose any negatives about your witness before your opponent does. Extrinsic evidence: any evidence other than testimony from the witness currently on the stand. • Collateral matter: relevant to the case solely because it impeaches a witness. the judge will allow time for the introduction of extrinsic evidence. The facts of the case and the substantive law-at-issue determine what’s collateral from what’s consequential. Rule 613: Prior Inconsistent Statements One of the most powerful impeachment tools available is showing that a witness made inconsistent statements at different times.o Why would you attack your own witness? Hostile witnesses • Sometimes it’s necessary to call a witness associated with the other side. bc extrinsic evidence takes more time to present and causes more distractions. You can always ask a witness directly about any prior inconsistent statements.e. When a witness changes her story • Common in domestic violence cases To “draw the sting. Inconsistencies are relevant witness credibility Questioning takes little time.
show it or disclose its contents to an adverse party’s attorney. NB: handing the doc to the witness draws jury’s attention & is perceived as “more fair. or confusion substantially outweighs the probative value of admitting it. on request. • Attorney is stuck with witness’s answer and must move on. the party must disclose the statement to opposing counsel if requested to do so.” often used for dramatic effect.” (Rule 611) o But the party must. Witness’s Prior Statement. Gives opposing counsel the opportunity to object & prepare to rehabilitate the witness. (a) Showing or Disclosing the Statement During Examination. o Policy: We hold people accountable for the things that they say. Bc the extrinsic evidence’s potential for prejudice. o Scope: Rule 613(a) applies to extrinsic and nonextrinsic evidence of prior inconsistent statements. So even if a party merely cross-examines a witness about a prior inconsistent statement. When examining a witness about the witness’s prior statement. But opposing counsel has no right to see it before cross-examination begins. Two procedures parties must follow when impeaching a witness with a prior inconsistent statement: (1) Rule 613(a) requires lawyers to disclose prior inconsistent statements to opposing counsel immediately before bringing them up on cross-examination. Remember Judicial Discretion Judges sometimes require cross-examining attorneys to show the statement to the witness when the cross “might otherwise create an unfair or inaccurate impression. • Rule 613. delay. o a party need not show it or disclose its contents to the witness. • Abolished common law convention that lawyers must disclose prior inconsistent statements to witnesses before impeaching them. 59 . Lets lawyers surprise witnesses. o Idea: that issue isn’t consequential enough to waste more of the court’s time.
and o 2) the opposing party must have a chance to examine the witness about the statement. decision rests on Rule 403’s balancing test or the judge’s Rule 611 authority to create an orderly trial. able to be questioned. Only problematic when evidence of the prior statement is introduced after the witness has left the stand. Substantive constraints on the use of extrinsic evidence to impeach witnesses with prior inconsistent statements: Rules 611 and 403 • Judges precluding extrinsic evidence of collateral inconsistencies refer loosely to excluding the evidence under Rule 613. • Rule 613. or Easily satisfied: usually happens on cross when the witness is there. (b) Extrinsic Evidence of a Prior Inconsistent Statement. 60 . • If extrinsic evidence of a prior inconsistent statement clears the material/collateral hurdle. Witness’s Prior Statement. Uncommonly applied. (402-403) o Most commonly allowed when the prior statement occurred before an event that allegedly changed a witness’s testimony. generally okay if opposing counsel can recall the witness. and available for redirect. Designed to give judges discretion in cases where witness becomes unavailable. then: o 1) the witness must have an opportunity to explain or deny the earlier statement. in reality. o if justice so requires. Then. (2) Rule 613(b) establishes procedural rules for the admission of extrinsic evidence of prior inconsistent statements. Extrinsic evidence of a witness’s prior inconsistent statement is admissible only o if the witness is given an opportunity to explain or deny the statement and an adverse party is given an opportunity to examine the witness about it. Can’t introduce prior consistent statements (401-403) • Very occasionally allowed when used to rehabilitate a witness who’s been discredited on cross. • You’re not required to lay any foundation before introducing extrinsic proof of a witness’s prior statement.
then can probably introduce “previous silence” as evidence of an inconsistent statement. • But usually rejected as duplicative or confusing. Character Evidence. Impeachment by contradiction Almost always requires extrinsic evidence • NB: Where evidence for impeachment by contradiction is admissible. it’s probably already admissible for multiple purposes. judge may allow prior consistent statements that occurred before witness’s contact with the government. not on one another’s past acts or general character. Rules 607. where a co-conspirator “turns” and testifies for the govt. Evidence of a person’s character or character trait is not admissible to prove that on a particular occasion the person acted in accordance with the character or trait. • (a) Character Evidence. so silence can’t constitutionally be held against them (especially after Mirandized).g. o (3) Exceptions for a Witness. o Several Exceptions for Impeaching Witnesses: Certain types of evidence related to a witness’s character may be admissible under Rules 607. Evidence of a witness’s character may be admitted under Rules 607. 608. there is a general policy against admitting character evidence: Rule 404. Rule 608(b): Specific Instances of Conduct To Show a Witness’s Character for Truthfulness or Untruthfulness Inference sanctioned under Rule 404(a)(3) to show: • [Witness was dishonest before] [Witness has dishonest character] [Witness is lying on the stand] 61 . • (1) Prohibited Uses. (a) Character Evidence. • NB: Criminal defendants have a Fifth Amendment right to remain silent. and 609: Character Evidence And Impeachment o Remember. Character Evidence. Crimes or Other Acts. 608. and ∆’s attack his credibility with prior inconsistent statements. 608 & 609: Rule 404. o Idea: Parties should focus on the events they dispute. o Silence as contradiction Impeachment by previous silence Did the witness implicitly suggest they were relaying all the facts and are now including some other fact? If so. Crimes or Other Acts.• e. and 609..
Act cannot probe other aspects of the witness’s character.g. . murder. allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness .. Good faith belief: rests on some evidence. 62 . etc. . Bc not relevant to truthfulness Prior acts of truthfulness (versus untruthfulness) are only allowed for rehabilitation on cross. Methods for establishing untruthful character using proof of prior specific instances of conduct are established by Rule 608(b)(1): • Rule 608. e. • Four important points: o (1) Can only ask a witness about “specific instances of conduct” on cross-examination to suggest that the witness has an untruthful character. o (b) Specific Instances of Conduct. driving over the speed limit. “Is it true that you lied on two employment applications filed in 1974 and 1975?” Doesn’t matter if the previous behavior is collateral. Analogous to the probable cause standard for obtaining a search warrant. But the court may. extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. messiness. sexual proclivities. But the attorney must have a good faith belief that the incident actually occurred. etc. o (2) Must limit these questions to actions that are probative of the witness’s character for truthfulness or untruthfulness. .. E. drunkenness. on crossexamination. Needn’t have anything to do with the current case. A Witness’s Character for Truthfulness or Untruthfulness. Did the specific prior act involve dishonesty? Using a false name. Except for a criminal conviction under Rule 609. meanness. even if the evidence would not be admissible in court. failing to file tax returns. drug use.g.
.e. you’re stuck. Rule 611 and Rule 403 Even with established good faith belief of a prior untruthful act. 63 . o (4) The rule bars proof of these specific instances by extrinsic evidence. No right to introduce. Also. For “he’s lying on the stand. a witness who has been convicted of a crime is deemed more likely to lie in court than a criminal who has never been convicted. i. o Evidence of an arrest (versus a conviction) is not probative of witness’s truthfulness.” but if witness says no. so no extrinsic evidence allowed.” • Remember: Character for truthfulness generally isn’t the same as challenging the truthfulness of a witness’s statements on the stand. o Bc witness’s criminal record relevant to truthfulness.o (3) The judge has discretion to prevent questions cross-examining a witness about specific acts that reveal untruthful character. Rule 609: Impeachment of Witnesses with Prior Convictions • Allows evidence of a witness’s prior criminal convictions to impeach his character for truthfulness in a civil or criminal trial. impeach using a prior inconsistent statement. You can ask.. i. o 608(b) only blocks extrinsic evidence offered to prove a general character for untruthfulness. “weren’t you recently arrested?. Idea: save time & avoid distraction Also informed by general ban on character evidence: “trials should not turn on how parties generally behave.” use 613. Rule states the court “may” allow these questions. Cross-examiner must accept whatever answers the witness gives. but on how they acted on a particular occasion.e. May still be able to get evidence excluded under 608(b) in using some other purpose. judge maintains substantial discretion.
The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (1) for a crime that. so staying off the stand may keep evidence of prior felonies out. o Rule 609. Impeachment by Evidence of a Criminal Conviction. regardless of whether or not that felony it is analogous to lying under oath.o Criminal defendants often choose not to testify bc of this rule. in a civil case or in a criminal case in which the witness is not a defendant. o Policy: The commission of any serious felony is considered serious enough to affect a witness’s courtroom credibility. Three different rules for three categories of witnesses and prior convictions: (1) Felony convictions are generally admissible for impeaching witnesses other than criminal defendants. the jury can consider a prior conviction only to assess the witness’s character for truthfulness. was punishable by death or by imprisonment for more than one year. (a) In General. Elaborates on the exception to 608(b)’s rule against extrinsic evidence for proving witness’s general character of untruthfulness. o (a) In General. the evidence: (A) must be admitted. Also affects what informants prosecutors are willing to put on the stand… o If 609 is satisfied. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction Judge will give jury a limiting instruction (unless another exception applies). in the convicting jurisdiction. Impeachment by Evidence of a Criminal Conviction. subject to Rule 403. Rule only applies to witnesses. not for other purposes: o Rule 609. • • 64 . 608(b): “Except for a criminal conviction under Rule 609…” Under 609. proof of prior conviction may be supported by extrinsic evidence.
the evidence: . Regular 403 balancing. o Rule 609. UNLESS involved a dishonest act or false statement… o The witness need not have received a sentence of “death or imprisonment for more than one year” for impeachment to occur. (2) Felony convictions are admissible against criminal defendants who take the stand only if the judge finds that its probative value outweighs its prejudicial effect. if the probative value of the evidence outweighs its prejudicial effect to that defendant . “Punishable by” ≠ “punished by” Determined by max sentence available o Judge still retains Rule 403 discretion to exclude the felony conviction under 609(a)(1)(A). (a) In General. Misdemeanors don’t implicate this policy. Impeachment by Evidence of a Criminal Conviction. automatically excluded w/o any balancing. o Higher standard than 403 Bc of risk that juries will improperly use ∆’s prior convictions to conclude that ∆ must also be guilty of the charged crime. Relates to truth? higher probative value (2) Timing of the prior conviction and subsequent criminality Older convictions less probative 65 . was punishable by death or by imprisonment for more than one year. in the convicting jurisdiction. .Less concern with unfair prejudice when the witness being impeached isn’t a criminal defendant. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: (1) for a crime that. (B) must be admitted in a criminal case in which the witness is a defendant. . o Balancing looks to five suggested guidelines: (1) Impeachment value of the former crime.
(2) Sets a lower threshold for excluding evidence. (3) Places burden on prosecutor to establish that probative value outweighs prejudicial effects. Impeachment by Evidence of a Criminal Conviction. . . Swearing match? more probative o Differs from 403 balancing in three main ways: (1) Only weighs the prejudicial effect on that defendant. “Punishable by” ≠ “punished by” Determined by max sentence available (3) The third rule addresses prior convictions for any crime involving a dishonest act or false statement. The following rules apply to attacking a witness’s character for truthfulness by evidence of a criminal conviction: . (a) In General. 403 – “substantially exceeds” probative value. o Rule 609. . balance tilts towards exclusion. 608(1)(B) – “equals or exceeds” probative value. More similar more prejudicial (4) Importance of the defendant’s testimony If ∆ will forego testifying for fear of impeachment more prejudicial (5) Centrality of credibility. Won’t consider harms to co-∆’s. 403 puts burden on the party opposing admission o The witness need not have received a sentence of death or “imprisonment for more than one year” for impeachment to occur. regardless of the witness’s role or the crime’s felony status. not any other person.(3) Similarity between the prior crime and the charged one. 66 . 403 considers unfair prejudice to any person.
. embezzlement All admissible under 609(a)(2) Grey area: crimes that include some element of deceit. fraud. deemed counterfeiting a “crime of dishonestly” The Eastern District of Mich. “IP theft ≈ counterfeiting. “making false statements to a federal agency” requires. proof of ∆’s false statements. etc. Must be apparent from statutory language or some other readily available information (indictment. etc. said. the evidence must be admitted if the court can readily determine that establishing the elements of the crime required proving—or the witness’s admitting—a dishonest act or false statement. New language requires that the court be able to “readily determine that establishing the elements of the crime” requires proof of a dishonest act or statement. theft. Perjury. on its face. 67 .) The 6th Cir.g. Idea: conviction of a crime involving a dishonest act or false statement is highly probative of a witness’s character for truthfulness.(2) for any crime regardless of the punishment..” so IP theft = crime of dishonesty. o How do you distinguish crimes of dishonesty and false statements from other crimes? Congress envisioned a small class of crimes when drafting 609(a)(2). o 609(a)(2) applies to misdemeanors and felonies equally. no judicial discretion is available always admissible. drug use. robbery.) E. No balancing is required.e. Courts have held that: Crimes of violence aren’t covered by 609(a)(2) (i. statement of facts.
prosecutor’s burden. Importance of Testimony 5. Impeachment Value 2. substantially outweighs its prejudicial effect.” Reverse 403 analysis. Evidence of the conviction is admissible only if: (1) its probative value. Impeachment by Evidence of a Criminal Conviction. Similarity of Crimes 4. This subdivision (b) applies if more than 10 years have passed since the witness’s conviction or release from confinement for it. (3) The judge must determine that the probative value of the conviction “substantially outweighs its prejudicial effect. supported by specific facts and circumstances. Heightened requirements for admission of 10+yr old convictions: o Rule 609. Same five factors as 609(a)(1)(B): 1. and (2) the proponent gives an adverse party reasonable written notice of the intent to use it so that the party has a fair opportunity to contest its use.• Courts split over whether failing to file an income tax return is a “crime of dishonesty. 68 . (b) Limit on Using the Evidence After 10 Years. whichever is later.” Phrase generally construed broadly. o 609(b) triggers three barriers to using 10+yr old convictions: (1) The party seeking to use the conviction must give the adverse party reasonable written notice (2) The judge must find specific facts and circumstances supporting the conviction’s probative value. Timing of Prior Conviction 3. Centrality of Credibility Heavier burden under 609(b) than 609(a) (1)(B).
o The 609(b) ten year rule is especially important for prior “crimes of dishonesty. o SYNTHASIZED RULE: If the witness obtained a pardon etc and has not been convicted of a subsequent felony prior conviction is NOT admissible to impeach. and the person has not been convicted of a later crime punishable by death or by imprisonment for more than one year. or subject to certificates of rehabilitation can’t be used for impeachment under Rule 609(c): o Rule 609. Felony only. whichever is later. or Certificate of Rehabilitation.• “Convictions over 10 years old will be admitted very rarely and only in exceptional circumstances. (c) Effect of a Pardon.” o Jail time may significantly extend the 10yr period. See flowchart on page 257. Impeachment by Evidence of a Criminal Conviction. regardless of misdemeanor or felony status. annulled. or other equivalent procedure based on a finding of innocence.” which would otherwise come in automatically. Date tolls at “witness’s conviction or release from confinement. Evidence of a conviction is not admissible if: (1) the conviction has been the subject of a pardon. or (2) the conviction has been the subject of a pardon.” Confinement includes time spent on probation. 69 . annulment. without any balancing or room for judicial discretion. UNLESS the pardon etc was based on a finding of INNOCENCE. Convictions that were pardoned. certificate of rehabilitation. Annulment. not misdemeanor If witness has obtained a pardon etc and since been convicted of a subsequent felony prior conviction IS admissible to impeach. or other equivalent procedure based on a finding that the person has been rehabilitated. annulment.
A Witness’s Character for Truthfulness or Untruthfulness. (2) the adjudication was of a witness other than the defendant. (e) Pendency of an Appeal. • 70 . (3) an adult’s conviction for that offense would be admissible to attack the adult’s credibility. What’s an example of this? What about civil trials? o Rule 609. Rule 608(a): Opinion or Reputation Evidence of a Witness’s Character for Truthfulness • 404(a) exception allowing “character witnesses” to introduce opinion or reputation evidence about an original witness’s character via testimony is governed by Rule 608(a): o Rule 608. Impeachment by Evidence of a Criminal Conviction. Impeachment by Evidence of a Criminal Conviction. A conviction that satisfies this rule is admissible even if an appeal is pending. (d) Juvenile Adjudications. Impeaching with Evidence of Juvenile Convictions: o Evidence of a juvenile conviction is only admissible in criminal cases when: (1) offered to impeach a witness other than the accused. Idea: Promotes rehabilitation by limiting disclosure of juvenile convictions. but that appeal may be noted for the jury: o Rule 609. and (4) admitting the evidence is necessary to fairly determine guilt or innocence. Evidence of the pendency is also admissible. • Pendency of an appeal of the prior conviction doesn’t bar its use for impeachment. Usually not admissible to impeach the character of any other witness. and (2) when the evidence is necessary to fairly determine the defendant’s guilt. Evidence of a juvenile adjudication is admissible under this rule only if: (1) it is offered in a criminal case. o Juvenile convictions are never admissible against the accused in a criminal case. either.
or by testimony in the form of an opinion about that character. (2) Only allows general reputation or opinion evidence of character.• (a) Reputation or Opinion Evidence. X?” (2) “Did you ever discuss Mr. Must lay the foundation and show that the character witness knows the fact witness well enough to have formed an opinion. X’s reputation for truthfulness or untruthfulness among students?” Can’t ask for specific examples of truthfulness or untruthfulness. A witness’s credibility may be attacked or supported by testimony about the witness’s reputation for having a character for truthfulness or untruthfulness. But evidence of truthful character is admissible only after the witness’s character for truthfulness has been attacked. Four limits on 608(a)’s “hole” in 404(a)’s “net”: (1) Testimony must relate to a witness: o If an individual doesn’t testify in court. Fact witness: establishes facts related to the underlying legal dispute. Must lay the foundation to show that the character witness has a basis for knowing fact witness’s reputation: (1) “Do you go to school w/Mr. parties can’t rely upon the rule to attack that person’s credibility. Witness can’t give specifics voluntarily. Character Witness: offers evidence about the truthful or untruthful character of a fact witness. X’s character for truthfulness or untruthfulness with other people at school?” (3) “What was Mr. not specific instances of conduct. Keeps trial focused o Opinion evidence: character witness offers an opinion about a fact witness’s character for truthfulness. 71 . o Reputation evidence: character witness offers information about a fact witness’s reputation for truthfulness or untruthfulness. either.
Keeps trial focused. 72 . X’s character for truthfulness or untruthfulness?” Can’t ask for specific examples of truthfulness or untruthfulness. o When has a fact witness’s character been attacked? Attacked when opponent presents a character witness who testifies about the factwitness’s lack of truthfulness. have you formed an opinion of Mr. or a slut. (4) May only introduce evidence of a witness’s truthful character after that character has been attacked. Attacked if opponent cross-examines factwitness: (a) with questions about specific acts of dishonesty under 608(b). or (b) introduces evidence of a prior conviction under 609. not that she lies generally. Not attacked when aggressively crossexamined about testimony or points out inconsistencies in that testimony.(1) “How long have you known Mr. Witness can’t give specifics voluntarily. o Can’t discredit witness by offering opinion she’s a glutton. Judge may use 105 to issue a limiting instruction. o Limited purpose– Admissible only to assess the credibility of the witness’s courtroom testimony via her character for truthfulness. X’s character for truthfulness or untruthfulness?” (3) “And what is your opinion of Mr. Bc suggests she lied in this particular case. (3) Character witnesses may only offer reputation or opinion evidence about another witness’s character for truthfulness or untruthfulness. violent. X/in what context/etc?” (2) “In that time. Judge may exclude under 403 if unfair prejudice outweighs probative value. either. o Policy: avoids wasting time.
Not attacked when accused of bias by opposing counsel. 73 . A Witness’s Character for Truthfulness or Untruthfulness. So stuck with character witness’s answer on cross. • Can’t offer extrinsic evidence of any specific “truthful” acts. allow them to be inquired into if they are probative of the character for truthfulness or untruthfulness of: (1) the witness. (b) Specific Instances of Conduct. o “Character for truthfulness” is a per se collateral matter. But the court may. Except for a criminal conviction under Rule 609. he looks uninformed. o Policy: the cross-examiner is entitled to test the basis of the character witness’s opinion or recital of reputation. on crossexamination. But must have a good faith basis for believing the specific acts occurred. extrinsic evidence is not admissible to prove specific instances of a witness’s conduct in order to attack or support the witness’s character for truthfulness. or (2) another witness whose character the witness being cross examined has testified about. o Two main forms: (1) Explain extenuating circumstances related to prior convictions (2) Introduce reputation or opinion evidence suggesting character for truthfulness • Ok to ask character witnesses about specific incidents of a fact-witness’s behavior on cross examination: o Rule 608. opposing counsel can “rehabilitate” that witness by introducing evidence showing that fact-witness’s truthful character. Bc not general attacks on character for honesty. o But a win-win situation for cross examiner – if character witness says he doesn’t know about the factwitness’s specific truthful act. Cross-Examining Character Witnesses • Once a fact-witness’s character has been attacked.
in practice. Not necessarily more or less truthful just bc you merely belong o “Did you attend church regularly last year?” depends on why it’s being introduced. etc. o Character witnesses who’ve offered testimony of a fact-witness’s truthful nature open themselves up to cross. such as bias. So parties less likely to present character witnesses to testify about truthfulness than untruthfulness. so not barred by 610. o Religious beliefs commonly relevant for reasons other than credibility when prosecuting hate crimes. NB: Sometimes 610 intersects with 603’s “oath or affirmation” requirement: o 2d Circuit rejected question on cross: “why were you unwilling to swear oaths on the Koran” 74 . “Few people lead blameless lives. o E. Religious Beliefs or Opinions. o Can witness wear religious insignia on the stand? Clothing’s technically not evidence But could argue: “part of the context of the testimony” using 403 & 411 (judicial discretion. o Rule 610. Can’t go to impeach or bolster character for truthfulness.g. Drawing the line between “credibility” and “other reasons”: o “Are you a member of ∆’s temple?” prob ok Very probative – bias. but can go to some fact of consequence. damages or motive. But admissible for reasons other than credibility. But hard to do.” 610: Witness Credibility and Religious Beliefs Religious beliefs are not admissible to attack or support a witness’s credibility. establishing that ∆ was a follower of Reverend Moon was essential to prove motive for shooting Reagan (who had failed to pardon Moon) not offered to prove credibility. modes of testimony). Evidence of a witness’s religious beliefs or opinions is not admissible to attack or support the witness’s credibility.. Rule • • • • Undermines testimony + lets jury hear about truthful acts. often falls flat.
an adverse party may require the introduction. at that time. Rule 106 establishes a rule of completeness: o Rule 106. argue it. Held question hinged on whether witness was a devout Muslim. (4) Fairness must require contemporaneous consideration Flexible standard. Doesn’t have to be a document’s remaining portion. If a party introduces all or part of a writing or recorded statement. Remainder of or Related Writings or Recorded Statements. overturned a trial court that failed to allow “completing” of oral statements: “should have used its power under Rule 611(a) to admit the exculpatory statements. of any other part – or any other writing or recorded statement –that in fairness ought to be considered at the same time. (3) Can use the rule to introduce whole writings or recordings when necessary to understand another document offered by the opponent. o Four Aspects to “Completeness”: (1) Allows a party to introduce qualifying portions as soon as the opponent offers the first portion. o 11th Cir. (2) Applies to writings and recorded statements only. • Other courts use 611(a) to admit oral statements via judge’s power to control presentation of evidence. Don’t need to wait for your own case or rebuttal.” o Circuit Split: Two interpretations of Rule 106 Rule of Timing: Most circuits view Rule 106 as only affecting the timing of when parties may introduce otherwise admissible evidence. barred under 610. allows trial court great discretion. understanding a letter from A to Z may require knowledge of both A’s letter and a prior one written by Z. • Advisory Committee: “Rule 106 exists to correct a misleading impression created by taking matters out of context. Completeness • To prevent litigants from misleading the jury through piecemeal use of documents.. • NB: Some courts use 403 to admit missing portions of an oral statement when necessary to avoid unfair prejudice or confusion. E. XI. Rule of Admissibility: 75 . photos or physical objects.g. Not oral conversations.” NB: Some courts extend 106 to oral testimony in light of this holding.
(c) Hearsay. Preliminary determinations about hearsay are decided by the judge under 104(a). confusion or delay. v. Exclusions from Hearsay. • What is hearsay? o Hearsay is an out-of-court statement offered for the truth of the matter it asserts. Identifying Hearsay (1) What counts as a “statement?” Definitions That Apply to This Article. Exclusions from Hearsay. Preponderance standard Party offering evidence bears the burden Q’s of fact and law (bc hearsay bar doesn’t affect relevance). (4) At trial. USSC’s silent on the issue. o U. Rule 801. firsthand testimony is made under oath in a formal. “Hearsay” means a statement that • (1) the declarant does not make while testifying at the current trial or hearing. Hearsay • Hearsay is generally prohibited by the Federal Rules of Evidence: Rule 802. as giving parties an avenue for admitting portions of a document that wouldn’t be otherwise admissible • Argue it. or other rules prescribed by the Supreme Court o Policy: Firsthand reports are more reliable than secondhand ones: (1) Secondhand testimony doubles the possibility that one of the reporters is mistaken or lying (2) Firsthand testimony can be tested by cross-examination (3) The fact-finder can better evaluate the confidence and sincerity of the information if they can watch the individual report it firsthand. Castro-Cabrera? Do ∆ and the govt have to be adverse parties? XII. o Rule 403: Judges may restrict this avenue when it would cause unfair prejudice. it’s hearsay if offered to prove the truth of the matter it asserts.S. solemn setting.Minority circuits interpret Rule 106 more broadly. The Rule Against Hearsay. Hearsay is not admissible unless any of the following provides otherwise: a federal statute these rules. Even if a witness quotes her own out-of-court statement in court. 76 . and • (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Definitions That Apply to This Article.
” Declarants must be human Bc animals don’t lie. Statements made by declarants while testifying at the current trial or hearing are not hearsay. “Statement” means a person’s oral assertion. so not governed by policies requiring hearsay protection. or nonverbal conduct if the person intended it as an assertion A statement requires 1) a declarant and 2) an assertion o (a) Who is a “declarant?” Rule 801(b). (b) What is an “assertion?” o Any action undertaken by the declarant that is intended to communicate a fact. Statement. Declarants must have made the statement based on personal knowledge (incorporates 602) Can be personal knowledge of something you. written assertion. Policy: secondhand nature of a witness’s report multiplies the possibility of error. But declarants are “witnesses” only when they testify under oath at a trial or hearing. any intentional communication. but all other statements potentially are.e. yourself. All witnesses are declarants. saw: “I saw the partner near the auditorium” Can be personal knowledge that another declarant said something: “G told me he saw the partner near the auditorium.. Declarant.• • (a). & just bc assertion’s non-verbal or stayed silent doesn’t make it “not a statement. i. Assertive versus non-assertive conduct: Just bc something includes words doesn’t make it a statement. “Declarant” means the person who made the statement. “is it raining?” 77 .” o Statements can be non-verbal HYPO: Emphatically shaking a wet umbrella when asked.
But if it’s offered for any other purpose. NB: But if every line is left blank. o When are words not an assertion? When generated by a computer or other electronic device. less likely to be deemed a “statement” HYPO: Purchaser’s failure to complain about a defective product not a statement intended to assert or communicate anything. Fully automatic or internal process? not a statement Information or signal originates from a human? statement • The following media almost always contain “statements”: o Emails o Audiotapes/other soundtracks o Websites containing words o Faxes • The following media rarely deemed “statements. it is inadmissible hearsay. unhappy purchasers would stay silent. HYPO: Marking an “X” on patron’s hands to mark “not 21” in a bar. it is not hearsay. o Ask: What is the proponent trying to prove with the statement? 78 . bc lots of reasonable.” because they usually require a witness to take the stand and explain their meaning or importance: o Photos o Videos o Websites without words (2) When is the statement offered for “the truth of the matter it asserts?” • If an out-of-court statement is offered to prove the truth of the matter asserted. o When is silence an assertion? When a reasonable person under the circumstances would have intended the silence to be an assertion. HYPO: Reasonable people intend leaving “list any lung problems” blank on a medical form to be an assertion that they have no medical problems.
• • Trick – focus on declarant’s firsthand. o The judge will admit statements admissible for one purpose but not another so long as any unfair prejudice doesn’t substantially outweigh its probative value under 403. but not to prove that the partner was actually in the auditorium bc she personally never saw him there.. a neighbor’s statement mentioning that a dangerous condition existed on his property may be offered to show he had knowledge of that condition.. o (4) Effect on the listener e. o (3) Publication in a defamation case. Opponent will argue: “probative value substantially outweighed bc jury will be unable to ignore hearsay purpose!” Common purposes that out-of-court statements are offered for other than the truth of the matter asserted: o (1) Knowledge of the speaker e. a nurse can testify she heard the surgeon explain the risks of surgery to prove the patient had been told of the dangers. then the statement is not hearsay. E. non-hearsay purpose. Balance the hearsay purpose vs. Can’t prove the defamatory statement was true or false. in a personal injury case. Many out-of-court statements are relevant to prove more than one fact.g. “Greg told me the partner was in the auditorium” may be introduced to prove that Greg told the witness the partner was in the auditorium bc she’s reporting that info from her own experience. but not that the condition actually existed. o (2) Notice to a listener e. If case requires proving defendant made the statement that gave victim reasonable fear. etc..g. but that it was made and read.. If declarant is offering a statement reflective solely of her personal knowledge. personal knowledge.g.g. 79 .
these rules are generally used only for witnesses who don’t want to repeat their earlier statements on the stand. Owens: 1) Appears on the stand 2) Takes an oath 3) Exhibits willingness to answer questions 80 .g. the declarant testifies and is subject to cross-examination about a prior statement . Admissible Hearsay – Exceptions: o Thirty-one hearsay exceptions rest on two axioms: (1) Reliability: some hearsay statements are more reliable than others (2) Need: some hearsay statements are more needed than others. she can just repeat her prior statement directly on the stand in answer to direct questions. • (d) Statements That Are Not Hearsay. . Rule 801(d)(1) exempts evidence of some prior statements made by witnesses from the hearsay ban. “I accept” in a contract case (bc doesn’t matter whether speaker was lying or telling the truth. o Need: witnesses feel embarrassed. 1) Testifies + 2) subject to cross = Rule 801(d)’s “gateway requirements” that increase these statements’ reliability. o Whether a statement fits into a hearsay exception falls under 104(a) JUDGE Neither the hearsay bar nor its exceptions affect relevance. Preponderance standard Party arguing “exception” bears the burden o FOUR MAIN CATEGORIES OF HEARSAY EXCEPTIONS: o (1) 801(d) deems two types of out-of-court statements “not hearsay”: First. • When is a declarant “subject to cross?” o Three requirements from US v. e. o Reliability: witness is in the courtroom. Definitions That Apply to This Article. etc. Rule 801.• (5) Legally binding statements. avoiding issues of hearsay. want to protect friends and family members. When a witness is available. only that they said it). subject to cross + something about each statement increases its reliability.. . Exclusions from Hearsay. A statement that meets the following conditions is not hearsay: o (1) A Declarant-Witness’s Prior Statement. Thus. • 801(d) is usually used by opposing counsel. intimidated. .
bc easier to discredit. and the statement: (A) is inconsistent with the declarant’s testimony and was given under penalty of perjury at a trial. under oath. Privilege: Assertion of privilege makes declarant-witness “not subject to cross.o Witnesses who take the stand and claim lack of memory (real or feigned) are still subject to crossexamination.” (Owens.” Doesn’t matter of the privilege claim is valid or not Three types of prior statements satisfying 801(d)’s gateway requirements are admissible under that rule: • 801(d)(1)(A): Prior Inconsistent Statements Rule 801(d). USSC) Idea: cross is meant to discredit the witness’s memory or perception. Unwilling to respond: Declarants who are unwilling to respond can’t satisfy the Owens requirements not subject to cross. o Five requirements to exempt hearsay under 801(d)(1) (A): (1) Declarant testifies at trial (2) Declarant-witness is subject to cross (3) Prior statement is inconsistent with courtroom testimony Assures testimony will be useful. Even more “subject to cross” where memory loss is clearly feigned. The declarant testifies and Is subject to cross-examination about a prior statement. or other proceeding or in a deposition. so long as she’s “placed on the stand. A statement that meets the following conditions is not hearsay: o (1) A Declarant-Witness’s Prior Statement. and responds willingly to questions. Memory loss: A declarant with either real or feigned memory loss is still subject to cross. hearing. while those who completely refuse to testify by invoking privilege etc are not. 81 .
And the statement. . (4) Prior statement was given under penalty of perjury Goes to reliability (5) Prior statement was given during a deposition. NB: One court has held a detailed prior statement was NOT inconsistent with real memory loss on the stand.“Inconsistent” if flatly contradictory. . . Statements That Are Not Hearsay. The declarant testifies and Is subject to cross-examination about a prior statement. A statement that meets the following conditions is not hearsay: o (1) A Declarant-Witness’s Prior Statement. . prior statements brought in under 801(d)(1)(A) may be used to prove the truth of the matter they assert. • 801(d)(1)(B): Prior Consistent Statements Rule 801(d). trial. (B) is consistent with the declarant’s testimony and is offered to rebut an express or implied charge that the declarant recently fabricated it or acted from a recent improper influence or motive in so testifying . hearing. . Most courts also deem a detailed prior statement “inconsistent with” real or feigned memory loss on the stand. . or “other proceeding.” Audience + transcript ≈ “proceeding” Grand Jury = “other proceeding” But interrogation ≠ “proceeding” Proceeding requirement enhances the out-of-court statement’s reliability o Purpose: While prior inconsistent statements under 613 may only be introduced for the purpose of impeaching a witness’s credibility. o Five requirements to exempt hearsay under 801(d)(1) (B): (1) Declarant testifies at trial (2) Declarant/witness is subject to cross (3) Prior statement is consistent with courtroom testimony 82 .
Statements That Are Not Hearsay.Needn’t have been given under oath or at a proceeding bc guarantees of reliability less important re: consistent statements. “recently fabricated” Out-of-court statements made after motive to lie arose are out. Declarant/witness is subject to cross 3. testimony. and other circumstantial evidence to determine when a motive to lie arose. o Three requirements to exempt hearsay under 801(d) (1)(C): 1. prior consistent statement may be used both to rehab the witness’s credibility and for its substantive content. . (4) Offered to rebut charged/implied fabrication Can’t just be repeating witness’s testimony (5) Prior statement was made before any motive to lie arose Ask: was the prior statement made before witness was asked/paid to testify. Common law requirement (Tome v. Declarant testifies at trial 2. And the statement: . Where both are satisfied. US. (C) identifies a person as someone the declarant perceived earlier. A statement that meets the following conditions is not hearsay: o (1) A Declarant-Witness’s Prior Statement. The declarant testifies and Is subject to cross-examination about a prior statement. Assures the statement is highly probative o NB: 801(d)(1)(B) converges with 613’s requirements. Prior statement was identification of a person. 83 . content of statements themselves. USSC) rule just says. or knew he’d be in court? Courts consider legal files. . • 801(d)(1)(C): Prior Identifications Rule 801(d).
Only one limitation: to qualify. subject to cross & jury’s scrutiny. Definitions That Apply to This Article. not reliability or need. Rule 801(d)(2) allows a party to introduce any out-of-court statement made by an opposing party. (B) is one the party manifested that it adopted or believed to be true. a party’s statement must be offered against that party. Needn’t have been made under oath Irrelevant whether declarant is able to repeat the identification in court. Exclusions from Hearsay. . Founded in principles of estoppel. Policy: We hold people accountable for the things that they say. 84 . o Prevents self-serving statements. . • (d) Statements That Are Not Hearsay. . Doesn’t have to be admitted by the person who made the identification. The statement is offered against an opposing party and: (A) was made by the party in an individual or representative capacity. Rule 801. (C) was made by a person whom the party authorized to make a statement on the subject. another person who witnessed the identification can also testify about that identification (if they appear as a witness + are subject to cross) o NB: This exemption applies in both civil and criminal cases (although much more common in criminal court) o See 801(d)(1) summary on page 489 Second. end run around testifying under oath.Prior out-of-court identifications are considered more reliable than in-court statements. . A statement that meets the following conditions is not hearsay: o (2) An Opposing Party’s Statement. • Can’t introduce your own out of court statements under this exemption. (D) was made by the party’s agent or employee on a matter within the scope of that relationship and while it existed.
phone calls or letters written to family from jail. • Statement needn’t consist of party-opponent’s own words.” (Sub-B) Signing a document adoption Silence adoption. So long as within the scope of agency/employment. • Statement needn’t be incriminatory o Can even be exculpatory if introduced by partyopponent. Unless silence to law enforcement. but narrower scope. o We’re held responsible for every statement we make. interviews to news anchors after an accident. uninformed. or mistaken. Broader than agency. letters of recommendation • No personal knowledge is required. for any purpose: • Applies in both civil and criminal cases. o Includes any statement by “the party’s agent or employee on a matter within the scope of that relationship and while it existed. especially post-Miranda. even if there’s evidence we were lying. o Includes any statement “by a person whom the party authorized to make a statement on the subject. said to anyone. e. Includes statements agents make to others within the agency/workplace AND statements they make to outsiders.. Very broad rule: applies to any statement made by a party to the suit. anytime. if a reasonable person would speak up rather than remain silent under the circumstances.” (Sub-D) Agent = someone authorized to act for a party on a particular matter. etc. anyplace. any individual authorized to speak on a particular subject or occasion. emails sent to a CEO. o Often used to bring in confessions. o Sufficient if the party “manifested that it adopted” a statement or “believed [the statement] to be true.” (SubC).g. Attorney or employees Independent contractors? Yes. 85 ..
. o In these cases. (C) or (D) independently admissible Let’s one ∆’s statement enter against all ∆’s • Spillover in Civil Suits: o Find adoption or authorization Makes the statement independently admissible. Narrow reading : “Party-opponent” Broad reading: “Statement by opposing party” • Beware of spillover: statements may only be offered against the party who actually made them. But 801(d)(2)’s scope commonly reigned in by other rules.g. but the other guy was speeding” admissible against declarant only. Unless the declarant-accuser takes the stand. 86 . 408. o Limiting instruction o Redact parts of the statement.” Unless statement adopted or endorsed via agency or authorization under 801(d)(2)(B). • And if none of those apply. ”I know I ran a red light before the collision. if possible o Exclude completely under 403 • Spillover in Criminal Trials: o A limiting instruction is constitutionally insufficient under the 6th Amendment when an out-of-court statement explicitly implicates a co-∆. argue “statement extremely unreliable” under 403. even though said before declarant had collected all the facts or established it was true. not “other guy. the rule itself isn’t clear. o e. including one on the same side. o The declarant-party’s availability is immaterial. 409. • ADVISE YOUR CLIENT NOT TO DISCUSS THE CASE WITH ANYONE UNLESS THE CONVERSATION IS PRIVILEGED. • Statements let in under 801(d)(2) often kept out under 407. (Bruton). (Duh.) Opposing Party Statements and Multiple Parties: May one party offer a statement against another party on the same side of litigation? • Parties may introduce a statement against any other party. Especially if includes double or triple hearsay. o NB: Courts are split on the issue. “Sophie bit a child” allowed in. so long as it was made by that party. argue 403. etc.
• Judge decides whether the following three elements are met by a preponderance of the evidence under 104(a): o (1) Statement made by a co-conspirator “Members of a common venture” 87 . violates Bruton. so no right to confront exists. o Prosecutor’s options when the declarant foregoes testifying: Redact to not implicate other defendants Gray: redacted confession that simply “blanks out” co-∆’s name too obvious. . defendant is deemed his own accuser. o No Bruton problem bc one speaks for all. Statements That Are Not Hearsay. Antitrust cases. Richardson: statement must expressly implicate co-defendant on its face. no Bruton issue if co-∆ implicated only circumstantially. But judge may issue a limiting instruction. (E) was made by the party’s coconspirator o Applies to both criminal and civil trials. Judge may issue a limiting instruction on top of a proper redaction. With self-incriminating statements. no 6th A issue. HYPO: “I dressed as a vampire” + vampire costume found in co-∆’s car ≠ express implication. Severance – try each ∆ separately Forego use of the statement Find adoption or authorization Makes it independently admissible Statements of Coconspirators • 801(d)(2)(E) holds coconspirators accountable for statements made by any member of the conspiracy: Rule 801(d). etc. So no redaction is necessary. The statement is offered against an opposing party and: . anyway. . NB: can’t compel a co-∆ to testify. A statement that meets the following conditions is not hearsay: (2) An Opposing Party’s Statement.
. 88 . . o (2) Statement occurred in furtherance of the conspiracy Needn’t have actually advanced the conspiracy. or the existence of the conspiracy or participation in it under (E). o BUT: Content of the statement alone isn’t sufficient to support admissibility: Rule 801(d)(2). Ask: still pursuing a common goal? More reliable w/no incentive to lie? Working together to conceal the crime? Or disbanded & concealing crime independently/unilaterally? Bc “conspiracy” is a preliminary determination. Keeps out post arrest confessions against co-conspirators. Statements not “in furtherance of”: Confessions Boasts to people outside the conspiracy o (3) Statement occurred during the conspiracy. .• Broader than substantive law on conspiracy Don’t have to be charged with “conspiracy” Applies to most crimes involving more than one individual. Some other evidence must also help establish the relationship. An Opposing Party’s Statement. Starts as soon as 2+ people agree to pursue a common goal An arrest almost always ends a conspiracy bc arrest ends their common goal. judge can look at the statement itself or other hearsay/evidence in deciding whether coconspirator’s statement is admissible. the existence or scope of the relationship under (D). just must bear some positive relationship to the conspiracy’s goals. The statement must be considered but does not by itself establish The declarant’s authority under (C). But cases exist where conspiracy survives arrest.
o Must call that witness to the stand. by process or other reasonable means. • But this subdivision (a) does not apply if the statement’s proponent procured or wrongfully caused the declarant’s unavailability as a witness in order to prevent the declarant from attending or testifying. or (B) the declarant’s attendance or testimony in the case of a hearsay exception under Rule 804(b)(2). or (4). so FRE don’t apply. Exceptions to the Rule Against Hearsay—When the Declarant is Unavailable as a Witness. • (a) Criteria for Being Unavailable. and the judge agrees the privilege shields the witness’s testimony. o (2) refuses to testify about the subject matter despite a court order to do so. Five cases where a declarant is deemed legally “unavailable”: • (1) Privilege o If a witness invokes a privilege. o (4) cannot be present or testify at the trial or hearing because of death or a then-existing infirmity. in the case of a hearsay exception under Rule 804(b)(1) or (6). • (2) Refusal to testify despite a court order 89 . NB: Unavailability decided by a judge during preliminary determinations. physical illness. When is a declarant sufficiently “unavailable” so that the 804 exceptions can appy?: Rule 804. or o (5) is absent from the trial or hearing and the statement’s proponent has not been able.678 (2) Rule 804 creates five exceptions that apply only when declarant is unavailable: These exceptions rest mostly on “need” rationale due to declarant’s unavailability. or mental illness. (3).• o See flowchart on p. o (3) testifies to not remembering the subject matter. Unless privilege against self-incrimination. the witness is unavailable. A declarant is considered to be unavailable as a witness if the declarant: o (1) is exempted from testifying about the subject matter of the declarant’s statement because the court rules that a privilege applies. to procure: (A) the declarant’s attendance.
or Outside jurisdiction. and Used reasonable means to get declarant’s deposition. Mental Illness o The physical or mental illness must be sufficiently disabling that a) the witness can’t come to court to testify. • (3) Lack of Memory o Memory loss must relate to the subject matter of the out-of-court statement. • (5) Absence o Witness unavailable if the party can show she tried to find the declarant and bring him to the hearing. Testimony that: 90 . Physical Illness. Rule 804(b). and b) there’s little chance of recovery within a reasonable time o Physical or mental infirmity shown by putting witness on the stand. o Memory loss can be real or feigned. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: (1) Former Testimony. The Exceptions. Wrongdoing Caveat: Can’t use wrongdoing to procure a declarant’s unavailability. Death is established via a death certificate. but the unavailability of his testimony. but was unable to do so. lacking details is insufficient to satisfy unavailability. o Court will give more leeway in a criminal case. but a witness has died or disappeared in the meantime. when possible. o Must be complete. o Usually requires either: Couldn’t find after a diligent search. where Reasonable means were taken to get declarant to court (such as offering to pay travel expenses) Declarant was subpoenaed.o Includes claims of privilege not recognized in that jurisdiction.” o Usually requires calling declarant to the stand. • (4) Death. 804(b)(1): Former Testimony Usually applies where a case is reversed and remanded. “The crucial factor isn’t the unavailability of the witness.
or lawful deposition. or redirect examination. both cases required proving that no conspiracy existed. The more vigorous the prior cross. (4) Opponent must have had a similar motive to develop testimony during that prior proceeding. Judge. Notice to opponent of a deposition = opportunity to cross. the more likely it will come in. the opposing party might not have crossed in the same manner. whose predecessor in interest had—an opportunity and similar motive to develop it by direct. Four • • • • 91 . hearing or deposition. o Assures prior testimony was given under oath and in a formal setting. o Idea: if the stakes weren’t the same. Requirements: (1) Party must be unavailable.” Issues between the cases were similar Purpose for the prior testimony was similar HYPO: Dairy farmers sued criminally and civilly. or redirect. and o (B) is now offered against a party who had—or. ask the questions. as per 804(a). not parties. o Only needs an opportunity. hearing.o (A) was given as a witness at a trial. Transcript assures accuracy o Needn’t have been part of the same lawsuit. cross. (2) Prior testimony must have been given at a trial. needn’t have actually conducted an examination Could be on direct. cross.. in a civil case. Court’s way more likely to accept it if actually cross-examined. whether given during the current proceeding or a different one. (3) Opposing party must have had the opportunity to question declarant in the prior trial or proceeding. Clear this up! See page 607 o NB: Plea Allocutions ≠ opportunity to cross. o Criminal Cases Only: Prior testimony admitted only if opposing party’s own counsel had an opportunity to cross at the prior proceeding. Civil trials – can be “predecessor in interest.
804(b)(2): Dying Declarations Rule 804(b). 92 . pretrial motion hearings have different motives than examinations at trial. made about its cause or circumstances. o Subjective: Must actually believe that death: (a) will happen very soon. • (2) Statement Under the Belief of Imminent Death. o Don’t fuck this up! Not assault. • (4) Statement must concern the cause or circumstances of the declarant’s death. Four Requirements: • (1) Declarant must be unavailable o NB: Needn’t have actually died.. In a prosecution for homicide or in a civil case. while believing the declarant’s death to be imminent. • (3) Declarant must have believed that death was imminent.e. a statement that the declarant. and (b) is inevitable o Judge decides declarant’s state of mind under 104(a) by a preponderance of the evidence: Statements by the declarant? Statements made by medical personnel & others to declarant? Nature and extent of wounds or illness? Length of time between the statement and declarant’s death? Opinion of medical personnel who treated the declarant about the declarant’s health? o Declarant’s sincere belief that death is imminent is more important than any actual time limits. • (2) Rule applies only in homicide prosecutions or civil proceedings.. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: . The Exceptions. etc. not robbery.. so L’s speech re: H’s death will apply to the cause of L’s death. o Of someone’s death: Hamlet example Both H & L died of the same poisoned sword. o Assess Four Factors: 1) The type of the proceeding 2) Trial strategy 3) Potential penalties or financial stakes 4) The number of issues and the parties.i.
NB: Dying declarations often also fall under excited utterances. when made. 93 .” o Whether it actually caused the declarant any harm is irrelevant. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: .” • Especially in a multiple choice question.. o Statement against interest in a suicide note? Could argue it either way. o Where “yes. medical treatment. Are suicide notes dying declarations? • Courts are split. • (3) Statement Against Interest. if it is offered in a criminal case as one that tends to expose the declarant to criminal liability. or (c) exposes declarant to civil or criminal liability. • (3) Three recognized ways a statement can be against a declarant’s interest: o This list is exhaustive – (a) contrary to proprietary or pecuniary interest (b) renders invalid a claim she has against another person. and o (B) is supported by corroborating circumstances that clearly indicate its trustworthiness. and forfeiture. 804(b)(3): Statements Against Interest Self-inclupatory statements are considered inherently more reliable: Rule 804(b). but probably not. don’t automatically jump to “dying declaration. A statement that: o (A) a reasonable person in the declarant’s position would have made only if the person believed it to be true because.” still must arise under a homicide prosecution or civil trial. state of mind.. 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. Five Requirements: • (1) Declarant must be unavailable • (2) The out-of-court statement must have been against declarant’s interest “when made. The Exceptions.
or was he still subject to prosecution? i. only admissible when corroborating circumstances clearly indicate statement’s trustworthiness. Courts very suspicious in these cases. o Would a “reasonable person in declarant’s position” have falsely made the incriminating statement? Grant of immunity? not “against interest” (5) In criminal cases. and (2) the statement’s trustworthiness o Court looks to six factors: (1) Had declarant pled guilty before making the statement. under Rule 104(a). physical retaliation. etc. reason to lie? (3) Did declarant repeat the statement consistently? (4) Who are the parties to whom the statement was made? (5) What’s the relationship of the declarant with the accused? The closer the relationship.. how far against declarant’s interest was the statement at the time? (2) Declarant’s motive in making the statement. (6) What’s the nature/strength of independent evidence relevant to the conduct in question? o Party offering exculpatory statement’s burden to prove trustworthiness by a preponderance of the evidence. the more likely the third party is to lie. “Bonnie and I robbed the bank together.• • Doesn’t include standing in the community. o Requires corroboration of both: (1) the declarant’s trustworthiness.” Mixed statement that includes neutral phrases? Redact.e.” o Statements that admit wrongdoing but minimize guilt are suspect really against interest? Mixed statement implicating others? Redact. (4) Objective standard governs court’s determination of whether a statement was sufficiently against the declarant’s interest. o 94 . But can be used in addition to an explicitly listed interest to weigh in favor of “no reasonable person would say this unless it was true.
Comes up in cases of DV. and did so intending that result..” it’s not hearsay.g. Rule 804(b).. the declarant’s statements are admissible against the party in all future cases in which the wrongdoing makes the declarant unavailable. Needn’t have personally committed the wrongful act Courts construe acquiescence broadly. undue influence. • (6) Statement Offered Against a Party That Wrongfully Caused the Declarant’s Unavailability. o Unintentional result of wrongdoing? Not enough. etc. o Acquiesced = 1) tacitly agreed. o Wrongful = coercion. • (3) Opposing party must have intended to make the declarant unavailable. Rule applies equally to potential witnesses. A statement offered against a party that wrongfully caused—or acquiesced in wrongfully causing—the declarant’s unavailability as a witness. 804(b)(6): Forfeiture Admits out-of-court statements offered against a party caused a witness’s unavailability. Where all three requirements are met. transferring a knowledgeable employee overseas.. The following are not excluded by the rule against hearsay if the declarant is unavailable as a witness: . 95 . NB: Where the third party takes the stand and announces “I did it. etc. undue pressure to silence testimony and impede the truth-finding function of trials. o But intent to silence can be one of many intents. persuasion. o Exception doesn’t apply to legitimate means e. Four Requirements: • (1) Declarant unavailable • (2) Opposing party must have “wrongfully” caused or acquiesced in the witness’s unavailability. threatening to use harmful testimony. The Exceptions. or 3) conspiracy liability. offering privilege. so no exception’s needed. 2) had bare knowledge yet failed to warn. child abuse. so long as wrongdoer has the requisite intent. • (4) Wrongdoing must have caused declarant to become unavailable.
o FRE don’t apply to preliminary determinations. Exceptions to the Rule Against Hearsay— Regardless of Whether the Declarant Is Available as a Witness. The following are not excluded by the rule against hearsay. so lots of room for advocacy. o (2) Made contemporaneously. • Two conditions define present sense impressions: o (1) Description or explanation of an external event Not internal. • The following are not excluded by the rule against hearsay.” • NB: Key to winning admission is laying the foundation. while perceiving the event. “Immediately after” usually only a few seconds..” Rule 803 can be broken into three rough categories: (1) THREE “IMMEDIACY” EXCEPTIONS: The event speaks “through” the out-of-court statement. o Proponents commonly introduce: Declarant’s in-court testimony. made while or immediately after the declarant perceived it. or immediately thereafter. A statement describing or explaining an event or condition. 803(1): Present sense impressions • Rule 803. otherwise analysis. regardless of whether the declarant is available as a witness: o (1) Present Sense Impression. rarely. NB: “Increased reliability” doesn’t deem them “reliable.o (3) Rule 803 creates 23 exceptions that apply whether or not the declarant is available to testify: These rules apply regardless of declarant’s availability: Rule 803. or interpretation e. “I won the lottery” Description must stick closely to the unfolding facts. affirming she made the statement as she perceived the event 96 . searching for a payphone) If intervening time spent looking for a means of communicating info to others.g. regardless of whether the declarant is available as a witness: o Each relies primarily on assumptions of increased reliability. (8 minutes = very outer limit.” just “admissible. minutes. analysis. more likely “immediately.
analysis & interpretation are admissible. • Two conditions define an excited utterance: o (1) Declarant spoke while genuinely excited by an event Subjective standard Excitement must be great enough that the particular declarant would have had difficulty formulating a lie while speaking (reliability’s based on spontaneity). 97 . • NB: The key to winning admission is laying the proper foundation. though ongoing fear generally isn’t sufficient. NB: Hillman • Written statements may be excited utterances. The following are not excluded by the rule against hearsay. 803(2): Excited utterances • Rule 803. A statement relating to a startling event or condition. made while the declarant was under the stress of excitement that it caused. time elapsed. o (2) Statement was related to that “startling” event Comments unrelated to the provoking event are inadmissible May move beyond mere description. o Proponents commonly introduce: Declarant’s in-court testimony. so lots of room for advocacy. Must be a reaction. Testimony from witnesses who perceived declarant as he made the statement & can testify to his mannerisms. and how traumatic or exciting the event was. relationship to the provocation. affirming he was excited when making the statement. tone of voice. prior experiences. No time limit on excitement. Testimony from other witnesses who confirm that declarant made the statement while the event unfolded. o FRE don’t apply to preliminary determinations. regardless of whether the declarant is available as a witness: o (2) Excited Utterance. age. same analysis.
A statement of the declarant’s then-existing state of mind (such as motive.e. not past: i. “My toe hurt yesterday” not admissible (unless offered as circumstantial evidence that it was probably still hurting today – bc then not offered for the truth of the matter. regardless of whether the declarant is available as a witness: . o i. o but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant’s will. more reliable • Six key points for “state of mind”: o (1) Only covers statements about declarant’s “then existing” state of mind. 98 . intent.e. pain. mental feeling. pain. Emotional. o (3) Doesn’t admit statements about external events or conditions. “I have a mill” describes something real causing that excitement. 803(3): State of Mind • Rule 803.” “I won” connotes internal excitement vs. . “I just won the lottery and I have a million dollars. The following are not excluded by the rule against hearsay. or plan). sensory. o (3) Then-Existing Mental..) Can use “then-existing” mental states as circumstantial evidence of subsequent thoughts or acts “I plan to rob the bank on Friday” reflects then-existing state of mind + provides circumstantial evidence declarant acted consistently with those plans. or emotional. and bodily health. • Contemporaneous expression of an internal state is deemed analogous to the immediate reporting of external events. Current.. courts will redact.” motive. or physical condition such as mental feeling. plan. or bodily health. or Physical Condition. intent. o (2) Lists four types of internal states a declarant might describe (broad): Emotional state Sensory state Physical condition “State of mind. .
“I plan to rob the bank on Friday because Joe needs the money.” e.g., “I’m hungry because I had only salad for lunch” But check if another exception lets the redacted portion in. o (4) Statements of memory or belief are not admissible when offered to prove the fact remembered or believed. Beware: I think, I believe, and I remember usually introducing statements of external facts or events. “I remember how hot I felt yesterday”: admissible to show that, at the moment she spoke, she remembered feeling hot the previous day; not admissible to prove she actually felt hot the previous day. “I believe D pulled the trigger” admissible to prove that at the time she spoke, declarant believed D was the trigger person, but not that D actually pulled the trigger. Exception: An out-of-court statement of memory or belief is admissible to prove the fact remembered or believed if that fact relates to the validity of the declarant’s will. (v. rare) o (5) Parties may use a declarant’s state of mind as circumstantial evidence of the declarant’s prior or subsequent acts. e.g., “I just got a promotion at work” may provide circumstantial evidence that decedent was in a good state of mind. Use 403 to exclude statements that offer circumstantial evidence when the jury’s likely to use improperly. e.g., “I know that the trades were short sales.” o (6) Hillman Doctrine (USSC) Controversial: lets proponent use one person’s state-of-mind to prove the actions of another person: “I plan to travel to Topeka with Hillman today” ok to prove Hillman traveled to Topeka. Today, Rule 803(3) may overrule
o o o o o o o o o o o o o
But many courts allow parties to introduce state-of-mind statements referring to future actions of another, especially if victim’s parting words. Some admit the statement if independent evidence corroborates the third party’s conduct. of Mind: Examples: ✓ I’m flying to San Diego, tomorrow. ✓ I hope grandpa leaves me the family estate. ✓ My head hurts so badly I can barely stand it. ✗ Yesterday, my head hurt so badly. ✓ I hate my sister. I wish she had never been born. ✓ I love you. ✗ I loved you from the first moment I saw you. ✓ I’m going to pick up some pizza on my way home from work. ✓ I’m going to rob the bank on Thursday ? Jerry and I are going to rob the bank on Thursday. ✗ I saw Jarred hit Alma in the face. ✓ I’m going to rent the car from Hertz. ✓ I am so excited about starting law school today!
(2) THREE “SELF INTEREST” EXCEPTIONS: 803(4): Statements for Medical Treatment or Diagnosis • Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . • (4) Statement Made for Medical Diagnosis or Treatment. A statement that: o (A) is made for—and is reasonably pertinent to— medical diagnosis or treatment; and o (B) describes medical history; past or present symptoms or sensations; their inception; or their general cause. • Three Main Points: o 1. Statement must be made for a medical diagnosis or treatment. Subjective standard Both physical and psychological diagnosis or treatment
Declarant not necessarily seeking treatment for herself (but must be sufficiently close to speak on injured party’s behalf) Any audience; not necessarily talking to a doctor Doesn’t admit statements made from doctor to patient. Admits statements made to doctors consulted in preparation of litigation (bc expert opinion is still “diagnosis”) Admits statements made to doctors by crime victims. o 2. Statements must be reasonably pertinent to diagnosis or treatment. Objective standard If doctor solicits the info, assume responses are pertinent. Cause of injury or illness is pertinent, but blame is not. Tricky w/psych: DV or sexual abuse may require identifying abuser as part of treatment (separation/removal) May refer to past events o 3. Statement must fall into one of three categories: Accounts of medical history Descriptions of past or present symptoms or sensations; or Reports about the inception of the condition or its general cause.
803(6): Business Records • Rule 803. The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: . . . o (6) Records of a Regularly Conducted Activity. A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by —or from information transmitted by—someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit.
• (C) making the record was a regular practice of that activity. opinion. Info must have been recorded within a reasonable time after the data arose. o (3) Record was made in the course of a regularly conducted business activity. college. or by a certification that complies with Rule 902(11) or (12) or with a statute permitting certification. and self employed business records. “Transmitted by” doesn’t include outsider thirdparties. just draws the line at personal records (unless kept for business purposes). The record can contain info about an act. Basically. event. (Becomes double hearsay. o (4) The business must have a regular practice of keeping such records. or diagnosis pretty much any information that an organization documents. Record defined broadly – any memorandum. hospital. Six Key Elements: o (1) A “business record” Business defined broadly – includes prison. just as part of a regular routine. Needn’t be kept daily or weekly. 102 . Ensures business relies on the document as part of its regular business. o (5) Record’s custodian or other qualified witness must introduce it into evidence. condition. (D) all these conditions are shown by the testimony of the custodian or another qualified witness. o (2) Record was made by someone with personal knowledge Made by someone with personal knowledge OR have received that info from someone else in the organization with personal knowledge. and (E) neither the source of information nor the method or circumstances of preparation indicate a lack of trustworthiness. report. redact or find another exception). or data compilation.
i. The following are not excluded by the rule against hearsay. any person with necessary knowledge to lay the foundation. (ii) a matter observed while under a legal duty to report. regardless of whether the declarant is available as a witness: . A record or statement of a public office if: o (A) it sets out: (i) the office’s activities. Not necessarily someone within the organization. in a criminal case. but not including. . o (6) Must not contain indicia of untrustworthiness Can’t have been prepared in preparation of litigation Business Records Attack Plan: o 1. o 3. Identify an business with some records. Lay the foundation Made by a person with personal knowledge At or near the time data arose Record kept in course of a regularly conducted business activity Record kept as part of a regular practice o 4. as part of a regular practice and was made by someone with personal knowledge. a matter observed by law-enforcement personnel. Present a qualified witness (or certification) to lay the foundation. • (8) Public Records. o 2. must be able to testify that the record was kept in the course of a regularly conducted business activity.e..• Broadly construed. or 103 . Can be certified via a written statement by the qualified witness (not just via testimony). Custodian or anyone who has the info needed to lay the foundation. Rebut arguments the record is untrustworthy Prepared in preparation or contemplation of litigation? 803(8) Public Records Public records are must satisfy narrower rules to be admissible: • Rule 803. .
• 803(8)(A)(ii): Observations made pursuant to an agency’s duties are generally admissible. etc. hiring. w/heightened likelihood of neutrality e. Extra protection when dealing with the full power of the govt. Ministerial = objective. o NB: Exception doesn’t apply if law enforcement’s observation was ministerial. etc. must satisfy 803(8). BREAKS INTO THREE SECTIONS: • 803(8)(A)(i): Records of an agency’s activities are generally admissible. Factual findings from authorized government investigations are admissible. travelers passing a checkpoint.. meetings. Defendant can enter law enforcement observations against the state. factual findings from a legally authorized investigation.(iii) in a civil case or against the government in a criminal case. 104 . records exceeding agency authority not covered. Less likely to be neutral Raises 6th A concerns Exception limited to law enforcement only – state can enter observations of other govt officials in a criminal trial.g. and o (B) neither the source of information nor other circumstances indicate a lack of trustworthiness. Applies only to matters the agency has a duty to report. o Includes documentation of all activities engaged in by the agency – finances. documenting license plate numbers that cross the boarder. o e. o Exception: matters observed by law enforcement personnel not admissible against criminal defendants. • Make sure it’s a public record.. • 803(8)(A)(iii).g. o “Factual findings” includes the investigator’s opinions and conclusions. o Private or quasi-governmental organizations (SPCA. lobbyists. inches of rainfall. not just 803(6). If a public record. election campaigns) don’t satisfy the rule’s rationale. votes.
. Timeliness of the investigation 2.• • Investigation just must have been legally authorized. . The following are not excluded by the rule against hearsay. o Was the person being prosecuted or sued in charge of keeping those records? o Four factors for determining trustworthiness of an investigation: 1. E. Whether a hearing was held prior to a report being made 4. and (C) accurately reflects the witness’s knowledge. o (5) Recorded Recollection. under 803(8)(B). Special skill or experience of the official conducting an investigation 3. A record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately. public documents are not admissible if they lack trustworthiness. govt can’t introduce social worker’s investigatory notes to prosecute an abusive father. (In anticipation of litigation?) Beware: Statements by third parties require a separate hearsay exception..g. (B) was made or adopted by the witness when the matter was fresh in the witness’s memory. 105 . o Exception: the results of an investigation conducted by any public agency are not admissible against a criminal defendant. Less likely to be neutral Raises 6th A concerns Any agency = broader than (A)(ii). Agency’s motivation in conducting the investigation. o Watch out for hearsay within hearsay (3) OTHER 803 EXCEPTIONS: 803(5): Recorded Recollections • Rule 803. regardless of whether the declarant is available as a witness: . Finally.
Six Requirements for Admissibility: o (1) The out-of-court statement must appear in a “record” Memorandum. 545 • • • 803(7): Absence of Records • The rules make it explicit that proof of the absence of a record is not hearsay. t/f possibly inaccurate. or data compilation Construed broadly .” must be read into the record by the witness. o (2) Witness made or adopted that record Adopted = approved or agreed it was true (like a police report statement) Ensures effective cross-examination o (3) Witness once had personal knowledge o (4) Witness made or adopted the record when that knowledge was fresh Doesn’t require contemporaneous note-taking. o Apply to both business and public records. 106 .” complete memory loss not necessary. e. Don’t confuse with refreshing memory under 612. Once deemed “admissible.includes audiotapes and other media Just must have been memorialized in some way. o See chart on p.g. the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. Includes feigned memory loss Prevents parties from circumventing the hearsay rule. o (5) Witness testifies that info was accurate o Accurately reflected the knowledge she had at the time made or adopted.. Double check not to distinguish from 803(10).o If admitted. o Only opposing party may admit it into evidence. o (6) Witness now has forgotten Can’t remember well enough “to testify fully and accurately. report. only that witness genuinely remembered at time the time it was recorded. enter recorded license plate number to show writing was smudged and illegible.
803(18): Learned Treatises • Four key points: o (1) May come from any field o (2) Admitted as substantive evidence o (3) Must be accepted as reliable authority Expert confirms the treatise is a reliable authority in the field. 107 . directories.• Even without these rules. lists. “Market quotations. • NB: Watch for hearsay within hearsay 803(17): Market Reports and Similar Commercial Publications • Two elements: o (1) Data compilation 803(17). o (2) The absence relates to a matter about which the business regularly kept records. or other compilations…” Can’t be analytical. judge may just take judicial notice.” o 803(16): Ancient Documents • Two elements: o (1) Document has existed for 20 years or more o (2) Authenticity established Must lay the foundation. o (2) Generally relied upon by the public or persons in particular occupations. or The judge takes judicial notice of its authoritativeness. or Another expert witness establishes its reliability. Lay the foundation.” Proponent must show that: o (1) The records containing the omission are diligently kept. though. o (4) Must accompany an expert witness. absence in this context isn’t a “statement. who reads excerpts into the record. o (3) The absence doesn’t “lack trustworthiness. • NB: If very widely relied upon (like the phone book). even if generally relied upon.
• (2) it is offered as evidence of a material fact.” like a 19 year old letter under 803(16). so that the party has a fair opportunity to meet it. or “relied on by the expert” during direct. Rarely employed exception. allowing courts to admit some statements that fall outside the other thirty exceptions but have similar guarantees of trustworthiness: Rule 807. a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804: • (1) the statement has equivalent circumstantial guarantees of trustworthiness. The statement is admissible only if. and • (4) admitting it will best serve the purposes of these rules and the interests of justice. (a) In General. including the declarant’s name and address. • (3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts. “near misses” undermine the specific limits imposed by the rules. “Called to the attention of an expert witness” during cross. (b) Notice. The treatise itself doesn’t come in as evidence. o (4) Rule 807 creates a residual exception. • Statement given under oath? • Did declarant have firsthand knowledge of the facts? • Did declarant ever recant the statement? • Other corroborating evidence? o Corroborating evidence subject to cross? • Other evidence undermining/contradicting the statement? • Did declarant have an incentive to lie? (3) Must offer evidence of a material fact 108 . (2) Must have circumstantial guarantees of trustworthiness equivalent to those found in the enumerated exceptions. only as testimony. • Minority: must be a totally uncovered topic. Six Requirements: (1) Can’t be specifically covered by another hearsay exception • Majority: rule intended for “near misses. before trial or hearing. Under the following circumstances. the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars. Residual Exception.
” (4) Must be more probative of the info it conveys than any other evidence that can be obtained through ‘reasonable efforts. • the declarant’s credibility may be attacked. But if either layer fails to satisfy an exception. Attacking and Supporting the Declarant’s Credibility. Some courts have said. “higher than 402’s relevance standard. the party may examine the declarant on the statement as if on cross-examination. Make sure both statements really offered for the truth of the matter! Attacking a declarant’s credibility o Rule 806 allows parties to impeach hearsay declarants in the same manner they impeach witnesses. • 109 . or (E)—has been admitted into evidence. the entire statement is inadmissible to prove the truth of the matter asserted by the original declarant. Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.” (5) Judge must find admitting the statement “will best serve the purposes of these rules and the interests of justice. Rule 805. • and then supported. bc the courtroom witness usually lacks information about early declarants in the communication chain.” (6) Proponent must give “reasonable notice” to the other party of her intent to use the statement. (D). Hearsay Within Hearsay. Hard to lay the foundation for an original exception. by any evidence that would be admissible for the purposes if the declarant had testified as a witness. When a hearsay statement—or a statement described in Rule 801(d)(2)(C). regardless of when it occurred or whether the declarant had an opportunity to explain or deny it. as if they were witnesses: Rule 806. • • Multiple hearsay o Rule 805 allows hearsay within hearsay to be admitted as long as each out-ofcourt statement is admissible under an exception. The court may admit evidence of the declarant’s inconsistent statement or conduct. Six Key Points: (1) Applies to all hearsay statements admitted under an exception or exemption. If the party against whom the statement was admitted calls the declarant as a witness.
But can attack credibility of an opponent’s agent or co-conspirator. (5) Any party may impeach a hearsay declarant. o Statements made or adopted by the opponent. • Rebut allegations of bias. • Available tools: o Evidence of bias. One court held: let party impeach out-of-court declarants with extrinsic evidence instead. (2) Lets parties attack declarant’s credibility by introducing any extrinsic evidence that would be admissible if declarant had testified. prejudice. Bc the party would be attacking his own credibility. • Not available: o Questions about specific dishonest acts under 608(b) (because no ability to cross). Not statements that fail to qualify as hearsay: o Offered for a purpose other than the truth of the matter asserted Not covered o Prior statements by witnesses falling under 801(d)(1) N/A Bc not “on the stand” statement for the hearsay to be inconsistent with. (3) Once declarant’s credibility has been attacked. Majority: just ask the witness who heard/is reporting the out-of-court statement if they have heard about the specific act. • Analogous to 607 • 110 . incapacity. or interest • Introduce consistent statements • Call positive character witnesses (4) Parties may present a declarant’s prior inconsistent statement without giving declarant an opportunity to explain or deny. the other party can rehabilitate that declarant in any way allowed for witnesses. • Regular rule requiring “subject to cross” would be too hard to satisfy. prejudice. or interest in the case o Inconsistent statements (613) o Evidence declarant lacked personal knowledge (602) o Evidence declarant lacked capacity to testify truthfully (603) o General reputation or opinion character evidence suggesting declarant is untruthful (608a) o Prior criminal convictions (609).
out-of-court statements must satisfy both the hearsay rule and the Confrontation Clause of the Sixth Amendment to be admissible: o The Sixth Amendment: “In all criminal prosecutions.e. you’re done.. Civil trial? the 6th A doesn’t apply. not the prosecutor “Confronted” – equated with ability to cross-examine (Crawford) “Witnesses” – limited to people giving “testimonial” evidence (Crawford) o Five Principles: (1) Evidence must satisfy the FRE If no hearsay exception applies. Washington. What statements are “testimonial?” • “A testimonial statement is a solemn declaration or affirmation made for the purpose of establishing or proving some fact. not prove a perp purchased tools for a crime. (3) If a statement is non-testimonial. Bc maintained to collect payment. Sworn police statements Bc designed to ID and convict the perp. the statement is out. it satisfies the Sixth Amendment Only testimonial statements invoke a criminal defendant’s right to confrontation. . . you’re done. . • Overrides 611 – CLEAR THIS UP. (6) If declarant’s out-of-court statement is admissible. (2) Applies only to evidence offered against a criminal defendant Offered by the defense? no 6th A implicated.” “Criminal” – applies only to criminal cases “Accused” – protects the accused. • Two types of hearsay are per se “testimonial”: o (1) Formal statements during litigation 111 . the accused shall enjoy the right . . • Recognizes parties use hearsay exceptions to avoid cross of their witness. • The Sixth Amendment and Hearsay In a criminal trial. you’re done. then a party can introduce that statement w/o subjecting the declarant to crossexamination.” Crawford v. made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial. Resemble in-court testimony o NOT database of maintained credit receipts. YOU’RE CONFUSED.” NB: “Right to be confronted with witnesses against him” ≈ “right to crossexamine people who make testimonial statements against him. o i. to be confronted with the witnesses against him.
Classic “stationhouse interrogations”: providing details of a crime. post-trial proceedings. alibis or confessions in response to questioning by law enforcement.g. it’s not “testifying” to anything.. Bc reasonably presumed prosecutorial purpose. NB: Absence of records not a “statement. Enable police assistance to meet an ongoing emergency? nontestimonial. 112 . stationhouse confessions ARE testimonial. Harder cases: o (1) Statements made to law enforcement outside of a traditional interrogation. Four types of hearsay are per se “not testimonial”: o (1) Business records Bc created for administration.• • Sworn statements: grand juries. Check “in furtherance of” e. Bc declarants would reasonably expect them to be used prosecutorially.” o (2) Statements in furtherance of a conspiracy Not made under circumstances which would lead an objective witness reasonably to believe they’d be available for use at later trial. o (2) Statements responding to conventional police interrogation. trial testimony. Primary purpose of the interaction?: Establish or prove past events potentially relevant to a later criminal prosecution? testimonial. Also affidavits. not proving facts at trial. Bc if not offered for truth of the matter. etc. Unless specifically kept for use at trial.” but a statement made to law enforcement declaring an absence of records might be “testimonial. depositions. confessions. o (3) Defendant’s own statements You have no right to confront yourself. pretrial hearings. etc. o (4) Statements admitted to prove a point other than the truth of the matter asserted.
o (3) Statements among private parties Several cases expressly leave this question open. When is a declarant “available for cross-examination?” • Witness subject to cross in the courtroom? no 6th A prob. 1) Past. Affidavits between private parties? Reports of child abuse? (4) If a statement is testimonial. o (2) Laboratory Reports Melendez-Diaz held: lab certificates are testimonial statements requiring crossexamination. Testifies under oath + subject to cross = OK Must respond willingly to questions. looking at declarant’s perspective + any other participant in the exchange. the right to confrontation is satisfied so long as the accused has a chance to cross-examine the declarant. not current events? 2) Deliberate recounting of those events. or providing info necessary to resolve an emergency?3 3) Absence of any other purpose? Three USSC Cases: Hammon – signed battery affidavit taken at the crime scene. • Can a prior cross-examination be sufficient? o See below. argue it. But some lower courts/dissenters have stressed their ministerial nature. o Even if witness remembers neither his prior statement nor the facts underlying the statement (real or feigned). Must be the analyst who performed that analysis to satisfy right to confrontation. 113 . shortly after the crime occurred = testimonial Davis – 911 call describing potentially dangerous felon/abusive bf to the operator = not testimonial Bryant – dying declaration not testimonial bc more like Davis than Crawford/Hammon. Objective standard: totality of the circumstances. Privilege = unavailable.
Founding-era exception. (b) a prior opportunity to examine. See flowchart on page 725. o Not grand jury o Not talking to police • Exceptions to the “prior opportunity” requirement: o (1) Forfeiture: extinguishes confrontation clause claims on equitable grounds.726-28 XIII. (5) If the accused cannot cross-examine at trial.. the court must follow the following procedure: 114 . (a) Scope.e. Judicial Notice of Adjudicative Facts. o (2) Dying Declarations: USSC dicta and lower court decisions suggest that dying declarations are free of Sixth Amendment constraints. then the prosecutor must establish. NB: Judges may always take judicial notice of legislative facts without following any proscribed procedures. Even testimonial statements are admissible against a defendant under this exception. was the traffic light red when the car went through the intersection? • Legislative fact: A fact that informs a court’s ruling on a legal issue or principle.e. not a legislative fact. (a) unavailability. Judicial Notice • Rule 201 allows the judge to take judicial notice of facts not subject to reasonable dispute: Rule 201. • To take notice of an adjudicative fact. This rule governs judicial notice of an adjudicative fact only. the financial cost of political campaigns informs the court’s opinion on whether a challenged campaign finance law violates First Amendment principles.. o i. Confrontation clause rights waived. plus list of rules affect on pp. grandfathered in. and • Same five categories listed in 804(a) o Must make a good faith effort. • What constitutes a “prior opportunity” to cross-examine? o Defendant must have had a similar motive to cross at the prior proceeding Similar to 804(b)(1) exception for prior testimony. • Adjudicative fact: A fact that helps prove the elements of a specific case. o i.
Judge decides.” (internal routine) o Sources “verifying” the fact needn’t be independently admissible. The court: (1) may take judicial notice on its own. “Canada is a nation” – OR – • (b) accurately and readily determined from sources whose accuracy cannot reasonably be questioned. only requires the parties agree.g. Two-Part Test: (1) Fact must not be subject to reasonable dispute • Facts previously judicially noticed include: o “Credit cards play a vital role in American society” o “Bingo is a senior citizen pastime. The court may judicially notice a fact that is not subject to reasonable dispute because it: (1) is generally known within the trial court’s territorial jurisdiction. often request judicial notice. Remember stipulations – not constricted by the “not subject to reasonable dispute” language. judgments rendered by other courts BUT NOT “Judges review. Judicial Notice of Adjudicative Facts. (c) Taking Notice. or o 115 . • When parties disagree on stipulation.g.. the beliefs of the Mennonite church. Court may take notice either on its own motion or at a party’s request: Rule 201.• Rule 201. (b) Kinds of Facts That May Be Judicially Noticed.g. o Not just within a specific interest group or profession e. approve and sign all Orders before they are entered. o But must be accurately and readily verifiable e. (2) Fact MUST be either: • (a) generally known to the public within court’s jdx. subject to appellate review. Judicial Notice of Adjudicative Facts.. or (2) can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.” o “The KKK has a history of violence against African Americans. NB: Judicial notice can offer a quicker route than the business or public records exceptions to hearsay.. o Lets parties prove a fact well known within a particular subgroup or profession.” • Dependant on the era and the circumstances. e.
the court must instruct the jury to accept the noticed fact as conclusive. Rule 201.• • • (2) must take judicial notice if a party requests it and the court is supplied with the necessary information. is still entitled to be heard. but not in criminal ones. (f) Instructing the Jury. If the court takes judicial notice before notifying a party. Limited guarantee: doesn’t require a full hearing. Judicially noticed facts bind the jury in civil cases. on request. • Judge can take judicial notice w/o prior notice to the parties. On timely request. Includes appellate courts on post-verdict motions. XIV. (d) Timing. (b) helpful to clearly understanding the witness’s testimony or to determining a fact in issue. In a criminal case. Judicial Notice of Adjudicative Facts. Civil: Facts deemed beyond reasonable dispute. Court may take notice at any stage of a proceeding: Rule 201. technical or other specialized knowledge within the scope of Rule 702. just “some” opportunity to be heard. The court may take judicial notice at any stage of the proceeding. 116 . • Judge may refuse to take notice if she finds the fact fails 201(b). • NB: Any person may give a lay opinion. Judicial Notice of Adjudicative Facts. the court must instruct the jury that it may or may not accept the noticed fact as conclusive. and (c) not based on scientific. If a witness is not testifying as an expert. expert witnesses included. Opinion Testimony by Lay Witnesses. Parties are guaranteed the right to be heard on the issue of notice. Opinion Testimony Rules 701 through 706 describe when opinion testimony is admissible. In a civil case. Judicial Notice of Adjudicative Facts. the party. testimony in the form of an opinion is limited to one that is: (a) rationally based on the witness’s perception. Criminal: The jury is the final arbiter of all facts in criminal cases. o So long as parties have a chance to contest that notice ok. (e) Opportunity to Be Heard. a party is entitled to be heard on the propriety of taking judicial notice and the nature of the fact to be noticed. • Lay Opinions Lay witnesses have limited authority to offer opinions: o Rule 701. at any stage: Rule 201.
Three Requirements: (1) The opinion must be “rationally based on the witness’s perception.” (a) Resembles 602’s personal knowledge requirement • Lay the foundation establishing witness has the information required to form an opinion. o Prevents speculation o Distinguishes lay opinion from expert testimony (b) Opinion must be one that a reasonable person could reach. • Lay witnesses may make reasonable inferences based on a wide range of life experiences. o HYPO: Drug user allowed to testify to the quality of dealer’s cocaine. (2) The lay opinion must help the fact finder. Courts consider three factors: • (1) Conveys additional information? o “He looked tired,” rather than “he moved more slowly than usual and his eyelids drooped,” gives the jury more information than a simple sum of the parts. • (2) Jurors unable to view the underlying facts and form their own opinions? o How mature did the 16yr. old victim look a year ago? • (3) Opinion relates to a central, not tangential, aspect of the case? o Not decisive, but persuasive. If doesn’t meet all these criteria, may be excluded as “unhelpful.” (3) Lay opinions must be non-technical. Lay witnesses may give opinions based on their unique, unusual or distinctive experiences, so long as those events don’t reflect any specialized training. • i.e., can testify about the value of their land, profits their business lost from breach, that defendant was drunk, etc. Prevents presenting unqualified expert opinions. • Can avoid qualifying experts so long as they don’t stray into “expert” territory, o Can avoid giving the other side notice.
Experts Experts give testimony based on their scientific, technical, or other specialized knowledge. Expert = a witness who offers “scientific, technical, or other specialized knowledge.”
o Subjects Appropriate For Expert Testimony. Before allowing an expert to
testify, the judge must determine that both the field of expertise and the expert’s application of that knowledge are reliable: Old test: Frye asked whether the principle underlying an expert’s opinion sufficiently reliable to have gained acceptance in the field. New test: Daubert overturned Frye, stressing that judges, not a closed circle of experts, should determine reliability of expert testimony. Daubert Factors consider: • Whether the theory or technique has been tested • Whether it has been subject to peer review and publication • The technique’s error rate • The existence of standards controlling the technique’s application • Whether the theory or technique has been generally accepted in the relevant scientific community. (Frye) Congress codified Daubert by amending Rule 702 in 2000: Rule 702. Testimony by Expert Witnesses. • A witness who is qualified as an expert by knowledge, skill, experience, training, or education may testify in the form of an opinion or otherwise if: o (a) the expert’s scientific, technical, or other specialized knowledge will help the trier of fact to understand the evidence or to determine a fact in issue; o (b) the testimony is based on sufficient facts or data; o (c) the testimony is the product of reliable principles and methods; and o (d) the expert has reliably applied the principles and methods to the facts of the case. Four Key Principles: • (1) Court must “qualify” the witness before they may offer expert testimony o Education’s not essential. Includes experience & informal training o Qualification evaluated by the judge as a preliminary determination. (so no jury present & FRE don’t apply): 1) Lay a foundation for the following (leading Q’s ok on direct): Knowledge Skill Experience Training Education 2) Ask the judge to certify your witness.
Opposing counsel may voir dire the witness 3) Judge will usually certify the witness. Proponent lays the foundation again in front of the jury to advocate the strength of the witnesses opinion. Opposing side voir dires again in front of the jury to expose any weaknesses in the jury’s credentials o Parties may choose to stipulate “expert” status. o NB: Just because an expert is qualified doesn’t mean his testimony will come in… (2) Expert testimony must be helpful to the trier of fact. o Does the testimony “fit” the dispute? “An expert cannot present detailed testimony about lunar phases to argue he acted irrationally when the moon was full.” Ex: testimony about general confirmation bias doesn’t “fit” an individualized legal standard. Expert’s qualifications must match her testimony. HYPO: Wharton business school Fit is especially important where expert’s knowledge is based on experience or informal training, rather than formal education. o Ask: does it add a perspective that the jurors couldn’t provide on their own? Super obvious? Hitting a deer is foreseeable in Maine. Super conclusory (supplanting the jury’s role as fact finder)? o Does the testimony make sense? If jargon’s too confusing, judge might exclude it. (3) Testimony must be reliable both generally + specifically: o (a) Product of reliable principles and methods Suggested Daubert factors: Can the theory be tested? Has it been subjected to peer review and publication? Is there a known error rate? Are there standards controlling the techniques operation? Has the theory been generally accepted?
Inquiry = reliability. where appropriate? • (4) Double Check Rule 403 o Judge serves as a gatekeeper.” Followed rules of method/test? Applied in a proper context? Ruled out other explanations. but in actuality. experts may testify to the jury from: (1) Personal knowledge (2) Trial testimony. Testimony must rely on “sufficient facts or data. 120 . o So once qualified. See chart on p. o (b) Technique reliably applied to the facts. and acts or data that have been admitted into evidence (3) Inadmissible facts or data if they are the type reasonably relied upon by experts in the field. o The farther you get from scientific testimony. probative and nonprejudicial?” Daubert was intended to be broader than Frye. not accuracy. Particularly important with expert testimony bc experts are often determinative. the less these factors will apply & the more you’ll have to rest on the test’s flexibility. they need not be admissible for the opinion to be admitted. shielding the jury from potentially misleading or prejudicial expert evidence. given tons of weight by juries. • An expert may base an opinion on facts or data in the case that the expert has been made aware of or personally observed. If experts in the particular field would reasonably rely on those kinds of facts or data in forming an opinion on the subject. 772 Bases of Expert Opinion. Daubert applies to ALL types of expert testimony. “Sufficiently reliable. judges have taken their special gatekeeping role so seriously that less expert testimony comes in. Rule 703 supplements 702’s requirement that expert testimony rest on “sufficient facts or data” by describing the data experts may use: Rule 703. Bases of an Expert’s Opinion Testimony.
Experts in the field must in fact rely upon that type of evidence + that reliance must be reasonable. But if the facts or data would otherwise be inadmissible. o Lets experts state bare conclusions. “Based on defendant’s blood alcohol content. experts often testify in response to hypotheticals based on the facts of the trial (as crafted by the atty). 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. . Beware framing of facts! Experts are allowed to state conclusions based on their special training or expertise. must cite which portion supports that opinion. If opinion based on testimony. So where lay witness would have to say ‘defendant was drunk. o Narrower reverse 403 standard – only looks to the probative value in helping the jury evaluate the expert’s opinion. Disclosing the Facts of Data Underlying an Expert’s Opinion. . Most efficient way for the expert to obtain information critical to the trial and her testimony. an expert may state an opinion—and give the reasons for it—without first testifying to the underlying facts or data. o Expert witnesses may remain in the courtroom even if the judge excludes other witnesses under 615. Rule 703. Bases of an Expert’s Opinion Testimony. But bc this gets expensive. an expert may not disclose inadmissible information to the jury. without first recounting all of the underlying data: Rule 705.” expert witness can say. . Unless the opposing party wants to reveal the otherwise inadmissible evidence supporting an expert’s testimony: 121 . not it’s probative value generally speaking.” But in most cases. he was incapable of safely operating workplace machinery. But only admissible to evaluate the expert’s opinion (unless independently admissible). Unless the court orders otherwise. not for the truth of the matter asserted.
• Generally preferred that witnesses avoid legal terms o Negligent wasn’t careful o Exercised reasonable care drove safely Experts technically not able to offer opinions about a defendant’s mental state: • Rule 704. An opinion is not objectionable just because it embraces an ultimate issue. . Opinion on an Ultimate Issue. Opinion on an Ultimate Issue. bc adds nothing new. Limits on Opinion and Expert Testimony Common Law: No witness could offer testimony about an “ultimate issue. But the expert may be required to disclose those facts or data on cross examination.” • Remember: Issue in criminal trials only. or the jury’s task of resolving credibility. o Experts and the Confrontation Clause. • Judges retain authority under 403 and 701–702. o Ex: Not helpful if witness tries too emphatically to steer the jury’s finding on an ultimate issue (under 701(b)) Conclusory language deemed not helpful. the jury’s authority to apply law to facts. • (a) In General –Not Automatically Objectionable. • Answer: We don’t know. . Most courts assume the confrontation clause is satisfied. testimonial hearsay? i. Does it violate the Sixth Amendment for prosecutors to ask expert witnesses to offer opinions based on inadmissible. o 122 . But doesn’t permit every opinion on an ultimate issue Judges still reject testimony that threatens to supplant judge’s power to declare the law. Disclosing the Facts or Data Underlying an Expert’s Opinion.. like in Melendez-Diaz. a drug analysis report where the original analyst is unavailable. .” Reasoning: province of the jury • BUT triggered battles over when testimony embraced an “ultimate issue” The FRE swept away with that rigid bar against ultimate issue testimony: Rule 704. o Prosecutor will argue “expert is the only witness.e. but the USSC has yet to rule on the issue.• Rule 705.
• Eyewitness Testimony: courts growing more tolerant of experts to discuss unreliability of eyewitness testimony. only restricts types of words experts use. but construed by courts very narrowly…in practice. Probability evidence may be ruled out as unhelpful or prejudicial if: Four Factors • (1) Calculation not based on properly supported facts • (2) Technically flawed • (3) Claim distracts jury from assessing conflicts in the eyewitnesses’ testimony • (4) Confuses rarity of an event with probability of defendant’s guilt Controversial types of evidence: • DNA: While DNA samples are very accurate when well preserved and processed fully. Rule 706 establishes a procedure for court-appointed experts: Rule 706. Broadly drafted. crime-scene scientists don’t always profile entire DNA (bc would take years). Court-Appointed Expert Witnesses 123 . Those matters are for the trier of fact alone. o Judge Appointed Experts Judges have inherent power to appoint their own experts. Can’t testify about legal conclusions as to a required mental state But can say defendant acted consistently with that mental state. • Polygraphs: Most jdx’s won’t admit polygraphs unless all parties stipulate to its admission. In a criminal case. not the content of their opinions. 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. 2) Usually allowed only when circumstances suggest eyewitness is less reliable than usual. o Two Limits: 1) Can’t offer opinions on whether a particular eyewitness is reliable only general feelings about eye witness testimony.o (b) Exception.
Each party may depose the expert Each party may call the expert to testify If no party calls the expert at trial. The expert: (1) must advise the parties of any findings the expert makes. (c) Compensation. o Having decided to appoint an expert. (2) may be deposed by any party. and (4) may be cross-examined by any party. The trial judge decides what compensation is reasonable for the expert. each party may cross-examine the witness during trial. Once appointed. as set by the court. The expert is entitled to a reasonable compensation. (3) may be called to testify by the court or any party. Regardless of who calls the expert. judge may ask the parties for nominations. The court may do so in writing and have a copy filed with the clerk or may do so orally at a conference in which the parties have an opportunity to participate. or find her own. Court-Appointed Expert Witnesses. the expert must report his findings to all parties. Take Away: • One of the parties may petition the judge to appoint an expert. Rule 706. Criminal trials + eminent domain proceedings: paid with public funds Civil cases: parties pay in whatever proportion the judge deems fair. urge the parties to agree on an expert. But the court may only appoint someone who consents to act. or the judge may decide to appoint one herself.(a) Appointment Process. including the party that called the expert. The court must inform the expert of the expert’s duties. the court may order the parties to show cause why expert witnesses should not be appointed and may ask the parties to submit nominations The court may appoint any expert that the parties agree on and any of its own choosing. The compensation is payable as follows: 124 . On a party’s motion or on its own. the judge may call the expert herself. (b) Expert’s Role.
by the parties in the proportion and at the time that the court directs —and the compensation is then charged like other costs. Court Appointed Expert Witnesses. from any funds that are provided by law. • State law governs in diversity actions. To court may authorize disclosure to the jury that the court appointed the expert. Privilege • Privileges protect social interests o All share three criteria: 1) Relationship must be one that society wants to foster 2) Confidential communications essential to maintaining the relationship 3) Injury to the relationship from disclosure is greater than the benefit to the truth-seeking process from that disclosure o Courts apply common law to most privilege claims. most are uncodified by the Rules. state law governs privilege regarding a claim or defense for which state law supplies the rule of decision. avoid issues of confidentiality XV. The trial judge has discretion to decide whether to tell the jury that the expert was court appointed NB: judges usually reveal court-appointed status. o (d) Disclosing the Appointment to the Jury.e. New uses may be emerging • i. Rule 501. (1) In a criminal case or in a civil case involving just compensation under the Fifth Amendment. 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: • The United States Constitution • A federal statute. Rule 706. Court appointed experts are generally rare Most common on issues of foreign law.. Privileges in General. or • Rules prescribed by the Supreme Court But in a civil case. • Privileges apply to all parts of a proceeding o Includes preliminary determinations [Rule 1103(c)] • Privileges Recognized by Federal Law: o (1) Attorney-Client Privilege Six elements: (1) Communication 125 . and (2) in any other civil case.
• (2) Between a client (3) And a lawyer (4) That is confidential (5) And concerns legal advice (6) Crime-fraud exception o (2) Attorney Work Product Elements: In anticipation of litigation Any documents prepared Qualified for facts about the dispute o Waiver of Attorney Client and Work Product Privileges: Rule 502. Disclosure intentional Disclosure inadvertent o (3) Spousal Privilege Testimonial Confidences o (4) Psychotherapist-Patient Privilege o (5) Privilege Against Self-Incrimination o (6) Other Federal Privileges Executive Privilege Clergy-Communicant Privilege Privileges Not Fully Recognized by Federal Law o (1) Journalists’ First Amendment Privilege o (2) Physician-patient relationship o (3) Intra-family privilege 126 .
Evidence Attack Outline 07:39:00 21/11/2012 1 .
Specialized Rules • Article IV • Witnesses • Impeachment o Rule 613: Prior Inconsistent Statements 1. Has the witness received a pardon. apply Rule 609(a)(2) and admit 5. the judge probably will limit exploration to questions. apply Rule 609(b) 4. apply 609(a)(1) and preclude 6. Is the crime over 10 years old? If so. Do the FRE apply? • Federal Court? • At Trial? • Exceptions? • Remember: Privilege rules will always apply 2. Is the crime one of falsity? If so. Is it a statement? 2. Does the inconsistency involve a fact of consequence? If so. annulment.Attack Plans 21/11/2012 07:39:00 1. or certificate of rehabilitation? If so. Does the inconsistency involve a collateral issue? If so. the judge will take time for extrinsic evidence 4. Is the crime a misdemeanor? If so. o Rule 609: Impeachment Using a Witness’s Prior Convictions 1. Is it inconsistent with the witness’s testimony? 3. apply Rule 609(c) 2. Is the prior crime a juvenile adjudication? If so. Is the witness the defendant? 1 . apply Rule 609(d) 3. Is the evidence relevant? • Rules 401 & 402 3.
Is the party offering the statement to prove the truth of the matter asserted? o 4. Does the Sixth Amendment limit use of the statement? • Experts 4. then can’t have been preserved on appeal • Apply the correct standard of review o Deferential o Evidentiary issues rarely reversed on appeal 2 . Did the statement occur outside the courtroom? o 3. Does the evidence contain a statement? Human declarant? Intentional assertion? o 2. apply 609(a)(a)(B)’s test • Admit the evidence if its probative value outweighs its prejudicial effect to the accused. Does an exception apply? o 5.If so. 7. Unfair Prejudice? • Rule 403 o Strong slant towards admissibility o Great judicial discretion 5. • Completeness • Character Evidence • Preliminary Determinations • Hearsay o 1. Otherwise. apply 609(a)(1)(A) Use the ordinary Rule 403 test to determine admissibility. Was the evidence objected to properly? • If not.
141): 21/11/2012 07:39:00 1 .Charts Rule 410 – Plea Bargaining (See p.
410(a)(3) & (4) Yes.Plea Type Plea Admissible? Statements Made During Bargaining Admissible? Statements Made During Plea-Related Court Proceedings Admissible? Accepted Plea of Nolo Contendere Withdrawn Guilty Plea No. 410(a)(3) No. 410(a)(3) Accepted Guilty Plea Yes. 410(a)(1) Yes. 2 . No. No. 410(a)(2) No. 410(a)(3) No.
No plea made. No. 3 . 410(a)(4) N/A No proceeding.No Plea N/A.
Non-Extrinsic Evidence Non-Collateral Matter Cross-examiner asks Wilma. “Didn’t you tell your friend Sharon that Fred hit Betty?” Extrinsic Evidence Sharon testifies that Wilma told her that Fred hit Betty. Allowed. 5 . Allowed. subject to procedures in Rule 613.
subject to some outer limits under Rules 403 & 611. “Didn’t you tell the police that you drove to the golf course that day?” Allowed. Police officer testifies that Wilma told him she drove to the golf course.Collateral Matter Cross-examiner asks Wilma. Prohibited under Rules 403 and 611. 6 .
Public Records Exception – 803(8)(A) 7 .
Ministerial Observation Other Observation Police and Law Enforcement Admissible against all Not admissible against a criminal defendant Other Agencies Admissible against all Admissible against all 8 .
9 .Investigation Not admissible against a criminal defendant Not admissible against a criminal defendant.
Rule 613: Prior Inconsistent Statements May inquire on cross-examination with good faith belief
Rule 608(b): Conduct that Shows Untruthful Character May inquire on cross-examination with good faith belief
No extrinsic evidence if inconsistency is collateral
No extrinsic evidence to attack character (that’s collateral)
When Prejudicial Effect… Rule 403 Rule 609(a)(1) (B) Rule 609(a)(1) (B) [for conviction less than 10yo] Admits the evidence Admits the evidence Excludes the evidence Is less than probative value Equals probative value Somewhat outweighs probative value Admits the evidence Admits the evidence Admits the evidence Admits the evidence Excludes the evidence Excludes the evidence Rule 609(b) [any conviction more than 10yo.] Admits the evidence Excludes the evidence Excludes the evidence 14 .
Substantially outweighs probative value Excludes the evidence Excludes the evidence Excludes the evidence Excludes the evidence. 15 .
RULE 609 CHART: 16 .
Defendant in criminal case Anyone other than the defendant in a criminal case. Admit in a criminal case IF conviction would be admissible against an adult AND the evidence is necessary to fairly determine guilt or innocence. but has not subsequent felony convictions Crime committed as a juvenile Crime committed as a juvenile. Admit unless Rule 403 (unfair prejudice substantially outweighs probative value) dictates exclusion. No balancing required. without finding of innocence. Defendant in criminal case Anyone other than the defendant in a criminal case Crime for which witness was released from confinement (or convicted. Type of Witness Any Any Any Outcome Automatically exclude. No balancing required.Type of Conviction Misdemeanor that did not involve dishonest act or false statement Crime pardoned or annulled based on finding of innocence Crime for which witness obtained pardon. annulment. Admit if probative value outweighs prejudicial effect to that defendant. Exclude unless probative value substantially outweighs prejudicial effect. 17 . or certificate of rehabilitation. if no confinement) more than ten years ago. Felony that did not involve dishonest act or false statement Felony that did not involve dishonest act or false statement Any. Automatically exclude. Automatically exclude. Automatically exclude. No balancing required. No balancing required.
No balancing test—not even 403— applies. 18 . Any.Felony or misdemeanor involving a dishonest act or false statement that (a) was committed as adult and (b) for which confinement ended (or conviction occurred). Automatically ADMIT. ten years ago or less.
N/A. In a homicide case: To rebut any evidence that the alleged victim was the first aggressor. In other cases: To rebut character evidence that the victim was not peaceful. Defendant wouldn’t introduce this evidence 20 .Type of Character Evidence Pertinent Trait of the Defendant Trait of Peacefulness of Alleged Victim When May the Defendant Offer this Evidence? Anytime When May the Prosecution offer this Evidence? To rebut character evidence of the same trait offered by the defendant. OR to match character evidence that the defendant offered about the alleged victim.
HEARSAY POLICIES Out-of-court statement is more reliable than most Out-of-court statement is more necessary than most RESIDUAL EXCEPTION Out-of-court statement has guarantees of trustworthiness Out-of-court statement satisfies important need... Introduce evidence of the victim’s good character for the same character trait AND evidence of the defendant’s bad character for the same character trait. Introduces evidence of his own good character… Introduces evidence of the victim’s bad character… Introduces evidence that the victim in a homicide case was the first aggressor… Rule 612: Refreshing Memory Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge What Witness Does: Looks at evidence (usually a writing) to jog memory. Introduce evidence of the victim’s peaceful character. If adverse party introduces writing into evidence. the party who didn’t call the witness) Relationship to Hearsay: Statements contained in the record are admitted as an exception to the hearsay rule. it must fall within a hearsay exception. For the jury to consider the writing for the truth of the matter asserted. the party who didn’t call the witness) Relationship to Hearsay: Witness testifies directly from memory after refreshment. unless barred by the rape shield law (Rule 412). made under penalty of perjury. so there is no hearsay issue. If the Defendant . . evidence must comply with the rape shield law (Rule 412). subject to cross Declarant unavailable Prior inconsistent statement. Then the Prosecutor Can: Introduce evidence of the defendant’s bad character for the same character trait. Only to rebut evidence of the same trait offered by the defendant. The jury may consider the content of the document or other record. in a proceeding Prior testimony.Other Pertinent Character Trait of Alleged Victim Anytime. Rule 803(5): Recorded Recollection Need Arises When: Witness cannot recall details of an event or other matter of which she once had personal knowledge What Witness Does: Reads into the record information from a document or other record What Type of Document or Other Record: One that the witness “made or adopted” when the matter was “fresh” in the witness’s memory. then testifies orally without referring further to evidence. for the truth of the matter asserted. made in a proceeding (oath) with opportunity and similar motive to develop. the witness need not have created or adopted the material Who May Introduce Evidence Used To Refresh: Only adverse party (i.e. Prior Statements 801(d)(1)(A) 804(b)(1) Declarant on stand. it is admissible only on the issue of credibility. What Type of Evidence: Any writing or other evidence that will help witness remember. Who may Introduce Record Recollection: Only adverse party (i. Record must correctly reflect witness’s personal knowledge at time it was recorded. 21 .e. . as read into the trial record by the witness.
or to secure permission to introduce a potentially contested piece of one’s own evidence before trial. Three advantages: (i) allows more planning of trial strategy (ii) allows for more lengthy/sophisticated arguments to make it before a judge (iii) insulates any “defeat” from the jury o (b) Motion to suppress A claim that the opponent’s evidence was illegally obtained Legal issues generally governed by criminal procedure o (c) Pretrial motion for summary judgment Civil cases only Argue that there is “no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.(NB: Can be waived) • (1) Pretrial Motions: o (a) Motion in limine – “at the threshold” Filed either to exclude an opponent’s piece of evidence. documents and demonstrations o At the end of civil plaintiff’s case.” • (2) Jury Selection: o Parties select a jury via voir dire o No evidence is presented • (3) Opening Statements o Each side provides the jury with an overview of the evidence they intend to present o The party who bears the burden of proof at trial (prosecutor/plaintiff) goes first o An opening statement should: (a) tell a compelling story (b) reflect the evidence that will unfold at trial Opening statements are not themselves evidence But often include demonstrative evidence • (4) Plaintiff/Prosecutor’s Case-in-Chief o Plaintiff/Prosecutor presents its case to the jury All evidence: witness testimony.Structure of a Trial 21/11/2012 07:39:00 Overview: Structure of a Jury Trial . π moves for judgment as a matter of law 1 . real evidence.
o At the end of a prosecutor’s case. ∆ moves for acquittal Granted (in both cases) only if no reasonable jury could find for that side (5) Defendant’s Case-in-Chief or Case-in-Defense o ∆ may chose not to present a defense (6) Plaintiff/Prosecutor’s Case in Rebuttal o Plaintiff/prosecutor rebuts evidence introduced by the defense o May call new witnesses/evidence. but they must focus on issues raised by the defense (7) Defendant’s Case-in-Rebuttal or Case-in-Rejoinder o Defense may respond to plaintiff/prosecutor’s rebuttal o Must respond only to new evidence (8) Further Rebuttal and Rejoinder o Trial judge has discretion to allow further rounds of rebuttal and rejoinder (9) Closing Statements o Both sides sum up their arguments o Often include demonstrative evidence (10) Instructing the Jury (11) Deliberation (12) Verdict o • • • • • • • • 2 .
half essay. you can bring it in if it’s collateral so long as something else doesn’t keep it out. The Practice Exam: • Meth • Indictment • Statement: “Bonnie used meth sometimes” 1 .Review Session 21/11/2012 07:39:00 612: Refreshing Recollection: A writing = any writing Melendez – Diaz: supervisor may be ok to testify (Sotomyor’s dissent) When can extrinsic evidence be offered for a non-collateral matter always • So if a rule like 613 has limits. Half multiple choice (30 MPC Q’s).
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